December 15, 2021
Like it or not, last week was an historic week in Buffalo, New York, and across America. Workers United, the union, was able to garner a union victory at one of the first three Buffalo-area Starbucks locations it was looking to unionize. Starbucks, at least so far, won at a second location and the third election is unresolved. These two latter stores should have their vote counts resolved in the coming weeks – at least preliminarily. In addition to these first three Starbucks, three more Starbucks in Buffalo, two in Boston, Massachusetts and one in Mesa, Arizona, are working towards holding union votes. Industry experts and scholars agree that what took place last week could serve as the flashpoint for a QSR union revolution.
Last Week’s Results
Last week, the first ever Starbucks voted in favor of unionizing by a vote of 19-8. A second Starbucks voted against unionizing; however, the union promises to file an objection to this outcome alleging ballots which were properly caste were inadvertently sent to the wrong location and need to be counted. The third store’s vote count was suspended with the union leading by the count of 15-9 with seven votes left to be counted. The suspension of the vote was the result of the union objecting to the eligibility of six voters based on the work location of these six workers. The union argues those workers actually work at a different Starbucks location. Starbucks objected to the eligibility of the seventh voter. If any one of these objections are upheld, the union will win that election.
What’s Next
Starbucks will likely appeal the outcome of the first election, and if either or both of the other stores are determined to have voted in favor of unionizing, Starbucks will likely appeal those elections as well. We expect Starbucks to argue the bargaining unit that voted, was improper (i.e., the group that should have voted was all 20 stores in Buffalo, not individual stores).
With all that being said, the first step the union will take is to make a formal request to Starbucks to negotiate at the first store. Starbucks can either appeal (as discussed above) or start negotiating. If Starbucks agrees to negotiate, that will mark the beginning of what is typically a laborious, contentious, and extended process. Under the current law, there is no guarantee an agreement will be reached and even if one is reached, no one knows what it will provide.
If Starbucks refuses to negotiate, the union will file a charge with the local NLRB office, claiming the company illegally refuses to bargain. If the NLRB Regional office overseeing the appeal rules in favor of the union (or vice-versa as the case may be) the losing side can appeal to the five member NLRB in Washington, DC. As we have previously written, the Biden Administration has quickly put in place a pro-union NLRB, which may tip the scales in favor of the union should they ultimately hear the matter.
Should Starbucks lose before the NLRB, it may appeal to a Federal U.S. Circuit Court of Appeals. Since Starbucks does business in every state, it can file its appeal in any of the 12 Regional Circuit Courts. This is important as some Circuits seem to be more supportive of the NLRB and some less.
Ultimately, if the losing party at the Circuit Court level chooses and the Supreme Court elects to hear the matter, any remaining dispute could be resolved by the United States Supreme Court. This would be extremely unlikely unless the issue in dispute was so unique as to warrant the Supreme Court to weigh in on the matter.
After the Dust Settles
Once the smoke clears from the appeal process, negotiations between the union and Starbucks will begin.
The union will be permitted to negotiate on behalf of the workers on issues relating to wages, hours and working conditions. Yes, these are very broad areas, and the union has wide latitude in asking for related concessions from Starbucks. What the union will seek is totally unknown. Last week’s union votes merely determined if the Starbucks’ employees wanted the union to represent them without any commitment to an exact agenda.
Why you Should Care
A chain is only as strong as its weakest link. Every QSR needs to be prepared for a potential union attack. Once a union finds fertile ground, it will attack every QSR in the area. But, if they find no interest in a union, they will move on to more fertile ground. Your goal should be to ensure none of your stores provide fertile ground.
Brody and Associates regularly advises management on complying with the latest state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
