September 24, 2021
Buffalo, New York is proving to be the next flashpoint of union activity and Starbucks Corp. (“Starbucks”) finds itself smack in the middle of it. In the past month, a union at multiple Starbucks’ cafes in Buffalo has petitioned the National Labor Relations Board to hold a union election at their restaurants. The union is Workers United, an affiliate of the SEIU. Currently at issue is whether each store should be voting as a separate bargaining unit or if all the Buffalo area stores should be required to vote as a single unit (even those employees at cafes who did not petition to be unionized). A hearing on this issue took place last Thursday, September 23, and it is now up to the NLRB Hearing Officer to decide.
At the NLRB hearing lawyers for Starbucks argued their workers should not be able to vote for a union at the individual store level claiming, “the facts and the law do not support holding individual and separate elections.” Starbucks went on to argue because of similarities among the cafes, a union vote needs to include all employees at Starbucks 20 Buffalo-area locations. If Starbucks argument proves successful, the union will be forced to garner support from the majority of eligible workers at the 20 stores in the region to win rather than just the locations where the employees had expressed an interest. This could destroy the unions efforts by pulling into the voter pool a large number of employees who may not be in favor of unionizing. Or it could backfire, and the entire Buffalo market could become unionized.
Meanwhile the union attorney argued that such a regional vote would go against “decades of precedent.” The attorney argued that union elections should be held at a store-wide level unless there are specific facts that require otherwise.
So what is the right voting unit?
When it comes to union votes, the NLRB’s precedent is the “presumptively appropriate” bargaining unit (i.e., the group that will vote on the issue) is each separate location. This presumption places the burden of proof on Starbucks to prove why precedent should not be followed in this instance.
Generally, employers prefer the vote to include a larger unit of employees because it is harder for the union to obtain and maintain support among a large group of employees. Conversely, unions generally prefer smaller units.
For Starbucks’ argument to prevail and for it to satisfy its burden of proof, Starbucks must prove the employees at the 20 Buffalo area locations have a “community of interests” sufficient to warrant they be treated as a single bargaining unit. To do this, Starbucks must argue that all labor related issues are controlled from a centralized location, and individual stores lack the autonomy to make key day-to-day personnel decisions. It is also possible Starbucks will argue it frequently flexes employees and supervisors among multiple work sites, which is another strategy businesses use to prove a larger voting group is appropriate (See prior article on “Community of interest” test).
Arguments have been made by both sides. Now, a NLRB Hearing Officer is left to decide whether to have separate votes for each of the Starbucks cafes or hold a much larger vote. We should learn the answer soon.
As we have written previously, with President Biden’s election, we are witnessing a new and sustained push for unions. What is happening in Buffalo is being watched around the country and not just by Starbucks and its workers. What the NLRB decides on this issue and how the ultimate vote goes, whether on a store-by-store basis or as a larger unit, will be key indicators on where we can expect things to head in the rest of the Quick Service Industry.
Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
