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MAY 12, 2022

Meyerson on TAP

Law and Order Returns to Labor Relations

A federal court in Tennessee could require Starbucks to adhere to labor
law now-not, as has been customary, in the far distant future.

One reason why the share of American workers in unions has been
declining for half a century or thereabouts is that when employers
violate the law by firing pro-union employees to thwart unionization
campaigns, the legal process that follows takes so long that by the time
it's settled, the unionization campaign is usually just a faint and
distant memory. Customarily, what happens is that the workers or the
union lodge a complaint with the National Labor Relations Board,
hearings are held, rulings delivered, the employer appeals to a court,
and the court delivers its own ruling. If found guilty, the employer is
then ordered to rehire the worker (who in all likelihood may have found
other employment), pay that worker their back pay minus any pay
they've received in their new job, and post a notice somewhere in the
workplace alerting passers-by to the outcome of the legal action.

In other words, (1) the penalty is completely negligible compared to
what the employer would pay had the workforce voted in a union; and (2)
the process takes so long that the remedy (if remedy it be) comes months
or years after it could affect the unionization campaign.

As I've noted in my article
in the
current print issue of the

**Prospect**, NLRB General Counsel Jennifer Abruzzo, understanding that
this process has been effectively negating the National Labor Relations
Act's guarantee of workers' right to form unions, has devised a
remedy. In a memo, she's instructed the roughly 500 attorneys who
staff NLRB offices across the country to seek to get those illegally
fired workers back on the job posthaste, while the organizing campaigns
are still ongoing, by getting a federal court injunction ordering the
miscreant employers to put those workers back on the job. Section 10 (j)
of the NLRA empowers NLRA attorneys to get injunctions when violations
of the law have immediate and serious consequences, but Abruzzo appears
to be the first general counsel in at least half a century to use that
section to keep employers from illegally thwarting organizing campaigns.

On Tuesday, the application for just such an injunction was filed in a
federal court in Tennessee, seeking the restoration of the jobs of seven
baristas who were fired from a Memphis Starbucks. To date, elections for
unionization have taken place at 42 Starbucks, and workers voting to go
union have won in 41 of them. Starbucks is responding with the standard
playbook of tactics-many of them in clear violation of the NLRA-that
American employers have felt free to invoke ever since the kind of
rigorous defense of workers' rights that the act's authors intended
began to fall through the cracks many decades ago. Better late than
never, NLRB attorneys are now treating those violations seriously and
urgently.

While anti-union forces complain that this kind of enforcement
constitutes a pro-union bias, I think a fairer description is that Joe
Biden's NLRB is committed to law and order.

~ HAROLD MEYERSON

Follow Harold Meyerson on Twitter

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