Wilma Liebman thought she had seen it all in her 14 years serving on the National Labor Relations Board.
The tactics deployed by the larger companies to counter union campaigns have largely been developed by consultants who Liebman said have gotten good at pushing the limits of the laws.
“These consultants are experts on the nuts and bolts of the NLRB,” Liebman said. “They have studied cases and decisions to learn what campaign conduct can still push the limits while being lawful. And they’re always kind of right on that edge, maybe a little over edge, trying to push the law.”
In an exclusive interview with News 4 Investigates, Liebman, who served on the National Labor Relations Board from 1997 to 2011, spoke about the unionizing efforts of Starbucks workers in the Buffalo area and why some companies feel emboldened to push back on unions.
Liebman has watched from the sidelines this year as Amazon successfully pushed back a union campaign in Bessemer, Alabama. Pro-union workers and Amazon officials are set to face-off again after the NLRB signaled it would seek a revote.
And she has watched closely the efforts of workers to unionize at three Starbucks stores in the Buffalo area.
Starbucks has hired Littler Mendelson, a labor law firm that consults with companies on ways to counter union campaigns. Such a practice has become common, Liebman said. Indeed, a 2019 report by Economic Policy Institute found that companies spend some $340 million annually on “union avoidance” consultants.
On Tuesday, the NLRB shot down an effort by Starbucks to impound the votes while it appealed a prior decision that allowed the three stores in the Buffalo area to unionize individually with Workers United Upstate NY, an affiliate of the Service Employees International Union.
Starbucks favored a market-wide vote of all 20 stores.
“In denying review, we emphasize that the central issue here is whether the Employer has met its ‘heavy burden’ to overcome presumption that the single-store units sought by the Petitioner are appropriate,” the NLRB order states. “… the mere fact that the petitioned-for employees may share some community of interest with excluded employees does not serve to rebut the presumption.”
As a result, an NLRB spokeswoman said union ballots for the Elmwood Avenue, Camp Road and Genesee Street stores will be counted as scheduled at 1 p.m. on Thursday.
Established in 1935, the NLRB is a federal agency that seeks to protect workers, employers, and unions from unfair labor practices. Employees file between 20,000 and 30,000 charges a year with the NLRB.
In fiscal year 2021, the NLRB recovered almost $57 million in backpay and nearly $3 million in fees and dues. In addition, the NLRB states that during the same period at least 6,307 people were offered their jobs back after what it deemed as “unlawful discharges.”
The NLRB also conducts hundreds of workplace elections each year and is about to finalize the historic unionization effort at the local Starbucks stores with the counting of ballots on Thursday.
While consultants have certainly helped some companies push back on union campaigns, the bigger problem, according to Liebman is the “famously weak” penalties dolled out by the NLRB.
Currently, the NLRB does not have the authority to issue monetary fines. Instead, the NLRB only can order companies to reinstate employees, pay backpay to employees who are unlawfully terminated, and grant other remedies.
“So many companies just make a determination that it’s in their business interest to fight the union even if they are ultimately held to break the law because the remedies are so weak,” Liebman said.
The 2019 Economic Policy Institute report found that employers in the United States are charged with violations of federal law in almost 42% of union election campaigns.
Congress is considering the first re-write of federal labor laws since 1957. One of the changes on the books is to give the NLRB the power to fine employers for breaking the law.
The unionization efforts of the three Starbucks stores in the Buffalo area have drawn national attention for having the potential to be the first company-owned stores to successfully organize unions. The effort has gained the support of at least three U.S. lawmakers – Chuck Schumer, Kirsten Gillibrand, and Rep. Alexandria Ocasio-Cortez – along with Bernie Sanders, I-Vermont, who twice unsuccessfully ran for president.
Pro-union workers said unions are their best option to have more of a say in how the company operates.
News 4 Investigates recently interviewed 10 workers and two leaders of Workers United Upstate NY, who all said Starbucks has swarmed stores with higher-ups from other markets to intimidate them, held “anti-union” meetings, and told workers that they should vote ‘no’ on a union.
A Starbucks spokesman denied that the company has attempted to bust the union and said it often has leaders visit markets where employees have expressed concerns about their working conditions, as they have in Buffalo.
“Our leaders are there to listen to all partners in the market because they recognize based off of the feedback that they heard that there’s some issues that need to be addressed,” said Starbucks spokesman Reggie Borges.
Liebman said she found the presence of Rossann Williams, an executive vice president for Starbucks, in the Buffalo-area stores as a bit unusual.
“I just don’t remember anything like this in stores or workplaces that are as small and confined as a Starbucks store is – is the presence of the top corporate official from North America appearing on the scene, being in the stores working side-by-side with the workers,” Liebman said. “I’m sure the workers think that they’re being surveilled and having someone breathing down their necks all day long.”
“It’s one thing if a top official shows up in an Amazon warehouse, which is probably like miles long so you wouldn’t necessarily see the person; be hard to miss the person in a Starbucks café.”
The pro-union workers said the swarm of executives and managers not only impeded the general workflow, but it made them feel uncomfortable.
“Just having the feeling of being watched, there’s always a pair of eyes on you now,” said Gianna Reeve, a pro-union worker at the Camp Road store.
The workers have since filed complaints against the coffee-house giant with the NLRB for interfering with its union campaigns. Starbucks denied any wrongdoing, saying it has followed all laws and guidelines and leaders are not trying to intimidate workers.
Liebman said she did not quite understand why Starbucks would send a senior executive into stores to do menial tasks such as mopping bathroom floors and removing garbage bags from stores.
“I can’t quite figure out how they thought it was a good idea,” Liebman said. “They must somehow believe that her presence there day in and day out will help to dilute the union support.”
Meanwhile, three more Starbucks stores from the Buffalo area are asking the NLRB to greenlight their union campaigns.
The new stores are on Sheridan Drive & Bailey Avenue in Amherst, Walden Avenue & Anderson Road in Cheektowaga and Transit & French roads in Depew.
The Buffalo union drives at Starbucks has also spread to Arizona.
Workers United Upstate said a store in Mesa, Arizona, has formed an organizing committee.
In a letter to the company, workers at the Mesa store said that they are forming a union to “bring out the best in all of us.”
“We want the company to succeed and we want our work lives to be the best they can be.”