The Anti-Union Rhetoric Is Coming From Inside the House

How a cement company could change the power of unions and labor laws as we know it.

Hi friends, 

Before digging into this week’s story, I wanted to say a big thank you for being so gracious and kind in response to my recent article. Grad school is scary, but it’s also the best thing I’ve done for myself in years (learning is so cool!). I’m still feeling out how my working life will fit around it—and if my new schedule will impact my publishing calendar at Boss Barista.

To be clear, I don’t have plans for any big changes yet—but I did want to be transparent about that potential in the future. Whatever happens, I’ll be sure to keep you informed well in advance. Thank you again for your support!

Photo by Davis Patton on Unsplash

Let’s jump back into the wild world of coffee news with a sobering statistic: As of this writing, there are 358 unionized Starbucks stores representing roughly 9,000 employees in the U.S. Cool, right?! Yes, but as we’ve previously discussed, winning a union vote is only half the battle—really, the ultimate goal of a campaign is to sign a contract and codify the rights and protections your union seeks to safeguard. Despite the fact that there is now a Starbucks union in nearly every state and major U.S. municipality, zero stores have successfully negotiated a union contract. In some cases, they’ve waited years—the first Starbucks store unionized in December 2021. 

Both parties allege that the other is responsible for the slow pace of negotiations, despite a National Labor Relations Board (NLRB) ruling that found the megachain failed to bargain in good faith with 163 of its unionized stores. Slowing down the unionization process for as long as possible is a tried-and-tested tactic among employers, one that means owners and management can delay conferring rights or relinquishing power. (It’s also confounding to me that Starbucks claims the union is the one stalling here—the whole goal of a union is to negotiate a contract.)   

The process of organizing has been grinding, but a few key rulings could change the pace of unionization and negotiation going forward. Over the last few weeks, the NLRB handed down decisions on several cases directly impacting the unionizing efforts of Starbucks employees: 

• In May 2022, Starbucks extended raises and benefits to its workers—unless they were part of the union. On October 5, 2023, the NLRB ruled that withholding benefits was illegal. 

• On October 9, the NLRB found that former Starbucks CEO Howard Schultz “illegally threatened [a] union supporter,” according to CNBC. In response to a question a worker asked about the union, Schultz responded that they should “go work for another company.”

• Not to be outdone, the U.S. Department of Labor issued a subpoena compelling Starbucks to disclose how much money it spent in 2021 to ship Howard Schultz around the nation to visit different locations as part of a “listening tour.” (The company is required to disclose to regulators how much it spends on anti-union efforts.) The finding determined that Schultz’s tour was part of those efforts. 

But the most potentially consequential finding of all didn’t come via Starbucks—it came from a cement company. 

ELECTION D(EL)AY

On August 25, 2023, the NLRB issued a decision involving workers at a company called Cemex Construction Materials that removes one of the key tactics employers have used to challenge the legitimacy of a union: elections. 

Usually, unions announce themselves to employers by signing union cards. If a majority of workers sign cards, the employer can then recognize the union and begin the bargaining process, or they can reject the cards. Before Cemex, it was up to the union to file a petition for an election. Now, it’s the responsibility of the employer. 

What’s crucial about this finding is that, if an employer chooses to pursue the election route and is found to use any sort of illegal union-busting techniques, it will forgo its right to an election and be forced to recognize the union. “The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment,” said Lauren McFerran, the chairperson of the NLRB board. “Under Cemex, an employer is free to use the Board’s election procedure, but is never free to abuse it—it’s as simple as that.”

https://twitter.com/NLRB/status/1695082781439651983

(include screenshot since Substack no longer supports twitter embeds)

The NLRB decision is pivotal for a lot of reasons. For one, it shifts the burden on employers to file for an election if they want to challenge their workers’ union efforts. But what I think is really key is that the NLRB actively acknowledges the harm and influence of anti-union rhetoric.   

Currently, the consequences companies face for illegal union-busting activity are pretty weak. Despite the fact that Starbucks has been found in violation of various labor laws hundreds of times, the brand has faced few repercussions. When the chain was accused of firing pro-union workers, it was simply ordered to rehire them; when it was accused of not bargaining in good faith, it was ordered to return to the bargaining table. “The remedy that’s ordered for a failure to bargain in good faith is an order to bargain more. That just doesn’t work,” Harvard law professor Benjamin Sachs told The Guardian. 

But the Cemex ruling factors in the pervasiveness of anti-union rhetoric and tactics to influence workers. “In Cemex, the Board found that the employer engaged in more than 20 instances of objectionable or unlawful misconduct during the critical period between the filing of the election petition and the election,” the NLRB Office of Public Affairs noted in a statement. The Cemex filing is 121 pages, and I’m not a lawyer, but my understanding of the facts of the case is as follows: 

• Workers representing “approximately 366 ready-mix drivers” presented management with union cards. “The Union’s efforts achieved broad support: it gathered authorization cards signed by at least 207 drivers (approximately 57 percent of the unit) during October and November 2018,” the ruling states. 

• Cemex hired the Labor Relations Institute, a consultancy that claims it has “Helped Thousands Of Companies Stay Union-Free,” according to its website. The consultants for the LRI helped train leaders on how to talk with workers, and held group meetings with employees.

• On March 7, 2019, the union lost its election with a vote of 166 to 179. 

I couldn’t find a detailed breakdown of the facts of the case. Still, from my understanding, the union alleges that the illegal anti-union actions taken by Cemex directly impacted the outcome of the vote. The union lost the support of more than 40 drivers in the time between signing cards and voting. 

“Cemex establishes a new and quite promising disincentive to employer unfair labor practices: the employer that commits ulp’s in the Cemex context (ones that warrant setting aside the election) must comply with the results of a card check,” writes Professor Sachs for OnLabor. 

Venti-Sized Justice

So what does this Cemex ruling mean for Starbucks? It’s impossible to know yet, but what we do know is that Starbucks’ vicious anti-union campaign has directly affected the number of stores that have filed for a union. 

From that same Guardian article: “‘If Starbucks had not engaged in this ferocious, unlawful campaign, they would have 3,000 unionized stores by now, not 300,’ said John Logan, a professor of labor studies at San Francisco State University and an expert on corporations’ anti-union strategies. The number of unionization petitions filed by Starbucks workers has plummeted from 71 a month in March 2022 to around a dozen a month today.” 

Many of the actions taken by Starbucks have been retaliatory, which can actively discourage others from engaging in their federally protected right to organize. And some argue that the extremity of Starbucks’ anti-union efforts is intentional, a point brought up by Sen. Bernie Sanders during a congressional hearing with Schultz. “[W]hat is outrageous to me is not only Starbucks’ anti-union activities and their willingness to break the law, it is their calculated and intentional efforts to stall, to stall, and to stall,” said Sanders. “They understand that if workers do not see success in gaining a contract, they are going to get discouraged and give up the fight.”

This ruling isn’t a silver bullet. As far as I understand it, a union would still have to file a complaint with the NLRB—and then prove there had been illegal anti-union activity at its workplace—to take advantage of it. On top of that, I’m still not aware of any significant punitive impact for companies that use stalling tactics. That means little recourse for the thousands of workers still waiting to negotiate a contract. 

But I do see hope in this ruling as a cultural shift. Initially, I wanted to write a story about the pervasiveness and perniciousness of anti-union rhetoric, because it feels so familiar yet so misguided—and it’s interesting to see which arguments people gladly accept as reasons to doubt the validity of unions. Perhaps the most common is the rationale that makes a union fight personal: “This employer is a good boss, so workers don’t need a union.” But anti-union rhetoric comes in a lot of other flavors, some of which are less easily recognizable. For instance: “This union fight comes from new people, not the established folks who have been here forever,” or “This is just the work of a few disgruntled employees,” or “This will cause the business to close.”

None of these arguments have to do with the individual right to organize, but they sound coherent enough to trick us into thinking they make sense. When you hear someone question the validity of a union by seeding doubts about the workers organizing—especially someone who might otherwise claim to be a union supporter—that may seem logical enough to avoid scrutiny. 

An aside: I had an inkling that common anti-union arguments rely on logical fallacies, but I wasn’t sure which ones exactly. I thought I’d ask ChatGPT:

Arguments like the ones above get at our feelings about dignity, who deserves comfort and safety at work, and who should have a say in their workplace conditions. We’re so used to the stratification of money, prestige, and control that when workers demand rights and recognition from their bosses, we immediately question their standing and legitimacy.

Union support in the United States may be higher than it’s ever been—but it feels like many of us still don’t understand what that means in practice. 

I hope the Cemex outcome will help people name and recognize anti-union tactics more quickly, and draw a clearer line between illegal actions and consequences. I also hope that, once that line becomes apparent, many other ideas about unions will come into sharper focus, and misconceptions about organizing will begin to dispel. A post on X (formerly Twitter) from the outlet More Perfect Union makes me hopeful this ruling will have a huge impact: “Union-busting just got a lot harder,” it says.

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Again, thank you for your support. I wanted to wrap this up with a quick audience poll: Usually, I release a podcast episode every other week, but next week I want to try something different—and I’d love to hear what you think! Would you be interested in an AMA with me? Maybe a different audio project? Something weird and out of the norm for Boss Barista? (Maybe another breakdown of how to win a different game show than Supermarket Sweep?)

Whatever it is, let me know—the more unexpected, the better!