By Jacob Schramm, Features Editor
November 17, 2022, was “Red Cup Day” at Starbucks locations across the country, on which customers received a reusable red cup with their purchase. At over one-hundred locations, more than a thousand employees participated in the Starbucks Workers Union’s largest single-day strike. The following day, pictures of abandoned Starbucks orders piled on counters were posted along with messages of solidarity. The union efforts at Starbucks are part of a recent surge in which retail and food-service workers have organized at large corporate chains.
The right to unionize and collectively bargain with an employer is protected by the National Labor Relations Act (“NLRA”), which was passed in 1935 after decades of struggle between business owners and workers in the mining, coal, steel, and railroad industries. The NLRA established the “right to self-organization” and “to engage in other concerted activities for the purpose of collective bargaining.” Any majority of employees may designate or select representatives to bargain on their behalf with employers. The National Labor Relations Board (“NLRB”) is empowered to certify or decertify union designations, investigate claims of unfair labor practices, and petition any federal district or appeals court for enforcement of an order and temporary relief. The NLRA prohibits unfair labor practices by employers or labor organizers, which include the refusal to collectively bargain with duly chosen representatives, or actions by either party which “interfere,” “coerce,” or discriminate against an employee related to participation in organization activities.
Union membership in the United States reached its peak in 1979, when an estimated 21 million workers belonged to a labor organization. That number has been on the decline since. Only an estimated 15.8 million workers belonged to a labor organization in 2003 and a more recent estimate suggests only 14 million, or 10.8 percent of the workforce, currently belongs to a labor organization. Most unions represent public sector employees, with the highest proportions in education and protective service occupations. In the private sector, only 6 percent of the workforce is unionized—only 4 percent of those employees work in wholesale or retail trade, and 1.2 percent work in food services and drinking establishments. Despite the decline and apparent stagnation over the last decade, newfound momentum for labor organization is coming from workers in the retail and food service industries in what has been called a “wave of unionization.”
Workers at Starbucks have begun to change the trajectory of representation in the food service industry. The Starbucks Workers Union began in August of 2021 when 50 Starbucks workers in Buffalo, New York announced their intent to organize to the CEO of the company. In a letter, the union stated, “[w]e see unions as the best way to make Starbucks a place to have a sustainable career and a true partnership. We do not see our desire to organize as a reaction to specific policies but as a commitment to making Starbucks, Buffalo, and the world a better place.”
Employees in more than 300 stores have held union elections, with more than 80 percent successfully voting to organize. The group has also identified fifteen “non-economic proposals” as representative of the national demands the group seeks to achieve. These proposals include general non-discrimination goals, employment-specific goals related to dress code, scheduling, job status and seniority, and organizational rights within the stores. Adding to this momentum, workers at a Chipotle in East Lansing, Michigan voted to unionize in August 2022, seeking to improve their work schedules, increase wages, and gain respect from management.
A parallel movement is being led by Amazon workers in the retail industry. Workers at a Staten Island Amazon Fulfillment Center voted to form the first union in the company’s history in April 2022. The demands of the Amazon Labor Union include better pay, better benefits, and better working conditions. However, since the Staten Island election, four unsuccessful elections have taken place. Amazon has received attention in recent years for the work conditions in its fulfillment centers, where steep work quotas and insufficient protections have caused public health professionals to urge them to “systematically improve conditions for their workers.” Amazon is not alone in the retail market. Employees at a Trader Joe’s in Hadley, Massachusetts narrowly voted to organize in July of this year, a first for the company. In August, five workers at a Petco in Aurora, Illinois filed with the NLRB to unionize as well.
With the increase in petitions to certify representative designations, the NLRB has also reported that unfair labor practice complaints have risen by 16 percent in the past year. For example, a Chipotle in Maine was permanently closed in July after the employees filed a union election in June 2022, and were subsequently blacklisted from working at other stores. The NLRB ordered that this closure violated the NLRA and ordered the chain to reopen the store, recognize and bargain with the union, pay dislocated employees, and offer them reinstatement. Amazon employees have alleged that a common tactic used by employers is the “captive-audience meeting,” in which employees are required to attend meetings where they are subjected to anti-union messaging. There are currently 133 open NLRB cases involving Amazon, though not all involve charges of unfair labor practices.
Unfair labor practices are not the only factors that contribute to a failed union election. One Amazon employee said that the company’s $15 minimum wage was a powerful incentive to vote against organizing, along with Amazon’s health insurance. The normal rate of turnover in these industries can also play a role in the failure of union efforts. Organizers at a New York Amazon location noted that up to 25 percent of the employees who would have been eligible to vote in early January were no longer employed by the time of the vote in March. Others may have had potential income outside of Amazon, lessening their stake in the cost of organizing. A professor at Columbia University pointed out that transient employers have less of a stake improving a workplace and are less likely to have strong relationships with co-workers.”
There are several reasons being cited for the surge in unionization in the past two years. A recent Gallup poll found that 71 percent of Americans approve of labor unions, the highest measure since 1965. Some point to the pandemic as being the motivation for this renewed movement, as some workers saw wages stagnate despite newfound hardship associated with work. Others point to the increasing number of “overworked, underpaid, overeducated workers” fueled with enthusiasm. Other factors include the minimum wage, the perception that corporations have continued to see healthy profits during the pandemic, and the heightened demand for employees without proper incentives.Additionally, the Biden administration has touted itself as being the most pro-union administration in years. The newly-appointed NLRB General Counsel immediately identified areas to undo some of the “doctrinal shifts” that occurred during the Trump administration. On November 3, the NLRB issued its Notice of Proposed Rulemaking to eliminate a final rule established in 2019 and proposed the Fair Choice and Employee Voice Rule, which is aimed at expanding worker rights and eliminating barriers to organization. The future of these movements remains to be seen, as their success depends on social and political factors, as well as collective and individual motivations.
 Vanessa Romo, On Red Cup Day, Thousands of Starbucks Workers Go on Strike, NPR, https://www.npr.org/2022/11/17/1137296597/starbucks-strike-red-cup-day, (November 17, 2022).
 Pre-Wagner Act Labor Relations, NLRB.gov, https://www.nlrb.gov/about-nlrb/who-we-are/our-history/pre-wagner-act-labor-relations; See 29 U.S.C.A. § 151.
 29 U.S.C.A. § 157.
 29 USCA § 158.
 Union Membership Trends in the United States, CRS Report for Congress, (August 31, 2004), https://sgp.fas.org/crs/misc/RL32553.pdf; Union Members – 2021, Bureau of Labor Statistics, US Department of Labor, 1, (January 20, 2022), https://www.bls.gov/news.release/pdf/union2.pdf.
 Union Members – 2021.
 Raisa Bruner, American Companies Have Always Been More Anti-Union Than International Ones. Here’s Why, Time, (April 21, 2022), https://time.com/6168898/why-companies-fight-unions/.
 “Dear Kevin,” Starbucks Workers United Tweet (August 23, 2021), https://twitter.com/SBWorkersUnited/status/1429843732715692040/photo/1.
 Andrea Hsu, Starbucks Workers Have Unionized at Record Speed; Many Fear Retaliation Now, NPR (October 2, 2022), https://www.npr.org/2022/10/02/1124680518/starbucks-union-busting-howard-schultz-nlrb; See also “Starbucks Workers United Website,” https://sbworkersunited.org/.
 Lauren Kaori Gurley, Michigan Chipotle Outlet the Chain’s First to Unionize, The Washington Post (August 25, 2022), https://www.washingtonpost.com/business/2022/08/25/chipotle-union-victory-fastfood-michigan/; Ramishah Maruf, A Chipotle in Michigan Becomes the Company’s First Location to Unionize, (August 27, 2022), https://www.cnn.com/2022/08/27/business/chipotle-workers-union-michigan.
 Andrea Hsu, Amazon Seeks to Overturn Historic Staten Island Union Victory at Labor Hearing, NPR, (June 13, 2022), https://www.npr.org/2022/06/13/1104549165/amazon-labor-union-election-hearing-staten-island-objection-nlrb-warehouse.
 Alina Selyukh and Lucas Willard, Amazon Workers Vote Against Unionizing at Upstate NY Warehouse, NPR, (October 18, 2022), https://www.npr.org/2022/10/18/1128487687/amazon-workers-vote-against-unionizing-at-upstate-ny-warehouse.
 Chris Mills Rodrigo, Public Health Experts Push Amazon to Imrpove Working Conditions, (November 17, 2021), https://thehill.com/policy/technology/581873-public-health-experts-push-amazon-to-improve-working-conditions/.
 Lauren Kaori Gurley, Trader Joe’s Workers Vote to Unionize for the First Time, The Washington Post, (July 28, 2022), https://www.washingtonpost.com/business/2022/07/28/trader-joes-union/.
 Guy Oron, Shoreline Petco Workers File for the Company’s First Union, Real Change, (August 17, 2022),https://www.realchangenews.org/news/2022/08/17/shoreline-petco-workers-file-company-s-first-union.
 Michael Sainato, Mass firings, wage cuts and open hostility: workers are still unionizing despite obstacles, The Guardian, (September 13, 2022), https://www.theguardian.com/us-news/2022/sep/13/unions-starbucks-trader-joes-chipotle-petco.
Andy O’Brien, NLRB’s Complaint Against Chipotle Huge Win for Augusta Workers, Maine AFL-CIO, (November 4, 2022), https://maineaflcio.org/news/nlrbs-complaint-against-chipotle-huge-win-augusta-workers
 Katherine Long, Amazon Held 25 Mandatory Anti-Union Meetings Each Day in the Weeks Leading Up to the Staten Island Union Vote, Business Insider, (June 15, 2022), https://www.businessinsider.com/amazon-anti-union-meetings-staten-island-vote-2022-6; See also https://www.businessinsider.com/amazon-union-alabama-workers-describe-anti-union-tactics-bessemer-2021-3.
 Karen Weise and Noam Scheiber, Why Amazon Workers Sided with the Company Over a Union, New York Times, (April 16, 2021), https://www.nytimes.com/2021/04/16/technology/amazon-workers-against-union.html.
 Haleluya Hadero and Anne D’Innocenzio, Amazon Workers in NYC Reject Union in Reversal of Fortune, AP, (May 2, 2022), https://apnews.com/article/business-elections-staten-island-labor-unions-0df68d4fd584aa77556b3226d5a92300.
 Michael Sainato, Mass firings, wage cuts and open hostility: workers are still unionizing despite obstacles, The Guardian (September 13, 2022), https://www.theguardian.com/us-news/2022/sep/13/unions-starbucks-trader-joes-chipotle-petco
 Avery Hartmans, A surge in retail union organization is the surest sign yet that workers are fed up, Business Insider, (March 26, 2022), https://www.businessinsider.com/retail-unions-rise-worker-frustration-covid-pandemic-2022-3; See also Katie Tarasov, Unions are Forming at Starbucks, Apple and Google. Here’s Why Workers are Organizing Now, CNBC, (August 5, 2022), https://www.cnbc.com/2022/08/05/why-starbucks-apple-and-google-are-unionizing-now-for-the-first-time.html.
 Steven Greenhouse, Biden stakes claim to being America’s most pro-union president ever, The Guardian (May 2, 2021), https://www.theguardian.com/us-news/2021/may/02/joe-biden-unions.
 Memorandum Mandatory Submissions to Advice, Office of the General Counsel, (August 12, 2022), https://www.nlrb.gov/news-outreach/news-story/general-counsel-jennifer-abruzzo-releases-memorandum-presenting-issue.