The Executive View: Predictions About Unionizing Come to Pass

Back in May 2020, the law firm Seyfarth Shaw LLP predicted that the pandemic would cause a spike in union-organizing activities. Sixteen months later, those predictions seem to be coming true. 

By Dana Wilkie September 13, 2021
The Executive View: Predictions About Unionizing Come to Pass

​Back in May 2020—shortly after the COVID-19 pandemic moved into full swing—law firm Seyfarth Shaw LLP predicted that the public health crisis would likely cause a spike in union-organizing activities.

Sixteen months later, those predictions seem to be coming true.

The latest group of employees to make headlines for seeking unionization work at five Starbucks stores in Buffalo, N.Y. They filed petitions Aug. 30 with the National Labor Relations Board (NLRB) seeking to form "Starbucks Workers United" and to hold elections on union representation.

Labor experts say the effort to unionize at Starbucks is rare, which is why it has become international news. During the coffee giant's 50-year history in the U.S., none of its more than 8,000 Starbucks-owned stores has even had a union. However, unions exist at some of the stores that are owned and operated by other companies under licensing agreements.

The workers in Buffalo want to hold elections store by store, though Starbucks could ask for a collective vote among all the stores seeking unionization in the area.

For years, Starbucks workers have complained about the company's labor practices, saying chronic understaffing has led to a chaotic work environment, erratic hours and difficulty taking sick days. Things grew worse during the pandemic, workers said, as they had to deal with health concerns and safety measures, turnover, absenteeism, and extra duties such as sanitizing surfaces. Some workers also said they felt pressured to come to work even when they were sick, unless they could find a colleague who could replace them.

Starbucks countered that it directs workers to stay home if they have COVID-19 symptoms and that they can receive sick pay during that time.

"We respect our partners' right to organize but believe that they would not find it necessary given our pro-partner environment," Starbucks said in a statement.

Pandemic Lit Fire Under Union Efforts

Labor activism appears to be on the rise across the nation: Workers United recently helped unionize several Buffalo-area locations of SPoT Coffee; there was a well-publicized union election at an Amazon warehouse in Alabama; Google workers formed a minority union; and coal miners in Alabama, as well as employees who work for the maker of Oreos and Chips Ahoy!, went on strike.

Such developments are precisely what Seyfarth Shaw forecast. Attorney Ashley K. Cano, a Seyfarth partner who specializes in labor and employment law, wrote on her law firm's website that "it is becoming increasingly clear that labor unions are seeing the pandemic as an opportunity to organize new groups of workers."

"With the pandemic and labor shortages—the fact that for once we're not totally disposable, they need us—it was the perfect time," Alexis Rizzo, a shift supervisor at a Starbucks in the Buffalo area, told The New YorkTimes.

And union-organizing efforts aren't likely to subside once the pandemic does, Cano predicted.

"As businesses start to reopen their doors or return more employees back to work, the potential for unions to gain traction among employees will almost certainly increase, with worker concerns about issues related to COVID-19 precautions taking center stage," she wrote. "Employees may be asking themselves whether their employer is doing enough to promote their safety and well-being, and unions will likely be telling them that their employer should be doing more."

In her post, Cano explains the union-organizing process, the repercussions for employers should a union take hold and what employers can do to avoid unionization.

Sympathizers in the Biden Administration

With the White House and all of Congress in Democratic hands, workers prone to organizing are finding sympathizers.

In early August, an NLRB hearing officer recommended that Amazon hold a new union election in Bessemer, Ala., even though the plant's warehouse workers rejected a union by a more than 2-to-1 margin back in April.

The officer's recommendation is now in the hands of the NLRB's regional director in Atlanta, who will issue a ruling.

The Retail, Wholesale and Department Store Union charged Amazon with illegal misconduct during the April union vote, claiming that the retail giant tried to illegally interfere with and intimidate workers as they tried to exercise their right to form a union.

The NLRB officer who presided over the case concluded that Amazon violated labor law and recommended that the board's regional director in Atlanta set aside the election results and order a second election.

Amazon workers "overwhelmingly" opposed unionization, a spokesman said in a statement. "Their voice should be heard above all else, and we plan to appeal to ensure that happens," he said.

Phil Wilson, president and general counsel of the Labor Relations Institute in Broken Arrow, Okla., told SHRM Online that union petitions will likely ramp up as the country emerges from COVID-19 shutdowns. "I also think unions will be energized by changes in the Biden administration that have already begun, but [they] will accelerate once the National Labor Relations Board gains a Democratic majority toward the end of the year."

Employers Should Know Their Limits

For employers, an uptick in union-organizing efforts means they need to be more vigilant and aware of dissatisfaction among their workers, according to workplace experts.

David Pryzbylski, a labor and employment attorney at Barnes & Thornburg LLP in Indianapolis, told SHRM Online that employees' perception that their company does not care about them or is not sharing information critical to job security "exponentially heightens" the risk of an organizing drive and the chances that this drive will result in a union vote. These possibilities are especially ripe when people are working remotely in far-flung locations during the pandemic and not interacting in person with managers.

Indeed, management consultants say that in a political era of potentially strict enforcement of labor laws, it is important that employers are mindful of limits on what companies can say to employees during a union-organizing campaign.

For example, executives and supervisors cannot make statements that threaten employees with adverse consequences related to their union views, question workers about their union views, promise benefits to employees in exchange for not supporting the union, engage in surveillance of employee union-organizing efforts or create the impression a company is "spying" on such efforts.

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