When you think of a union campaign, you might picture an organizer, standing in front of a committee after a strong supporter has been fired, yelling, “We will fix this. We will file board charges!”
Experienced organizers know how difficult this organizing is, especially because the National Labor Relations Act (NLRB) is, like the US Constitution, a series of general principles that are subject to political and judicial interpretation.
The most recent example is a Supreme Court decision on June 13, 2024, Starbucks v. McKinney, written by Clarence Thomas and supported by seven other justices, with a partial dissent by Justice Ketanji Brown Jackson. The decision is that the general counsel of the NLRB cannot get an injunction to immediately have a member of a union organizing committee reinstated.
Sound confusing? Here’s what happened at a Workers United campaign at a Starbucks in Memphis in 2022.
Starbucks v. McKinney
Seven workers — who called themselves The Memphis Seven — were fired by Starbucks in January 2022 for allowing a television crew into a closed store. The workers responded that they were fired for their organizing efforts and that the company didn’t typically enforce the rules they were accused of violating.
In a “normal” campaign, the union would file a charge with the NLRB for discrimination based on “concerted activities.” If the board found probable cause, it would issue a complaint and schedule a trial several months after the firing. An NLRB administrative law judge would preside and issue a decision after many more months. All this time, the fired workers are out — no work, no income, no insurance — and with appeals, the process can drag on for years. Not only do the delays punish the individual workers, but the firings can also really hurt a campaign. What workers want to step up to promote the union when others have been fired?
Many experienced organizers reading this may be muttering: “Been there, done that.”
The NLRB Responds
The NLRB general counsel, Jennifer Abruzzo, a longtime NLRB attorney and special counsel for strategic initiatives for the CWA, took a more aggressive position.
In this Starbucks campaign, the NLRB issued a complaint saying that Starbucks had acted because the workers had “joined or assisted the union and engaged in concerted activities, and to discourage employees from engaging in these activities.” Separately, lawyers for the board asked a federal judge in Tennessee for an injunction that would immediately reinstate the workers, which the judge issued the order in August 2022. Yes, it’s a delay of almost eight months, but the judge ordered the workers put back to work until the hearing process was finished. After the Sixth U.S. Circuit Court of Appeals upheld that ruling, Starbucks appealed to the Supreme Court.
“Fighting the stigma that Starbucks has put out there on our names has been hard and detrimental to my reputation around the country,” said Nabretta Hardin, 23, who is one of the fired employees. “For us to win our injunction and for us to get our jobs back, that’s amazing and that’s huge especially for the South when it’s so hard to unionize.”
The Memphis store voted to unionize in June 2022.
The Aftermath
When the Supreme Court issued its decision, five of the seven workers were still employed at the Memphis store, while the other two remained involved with the organizing effort, according to Workers United.
The NLRB had argued that the National Labor Relations Act, the law that governs the agency, has for more than 75 years allowed courts to grant temporary injunctions if they find requests “just and proper.” In the decision in the Starbucks case, the justices agreed to a stricter standard for getting an injunction, effectively blocking an important legal support for organizing campaigns.
“The NLRB requested fewer than 20 injunctions last year. But they serve as a powerful deterrent against firing workers trying to unionize,” said Sharon Block, a professor at Harvard Law School and a former member of the NLRB. With a stricter standard in place to win the reinstatement of fired workers, more companies may feel empowered to crack down on unionization efforts, Block said.
The Supreme Court decision sounded like a procedural dispute, with pages of legal mumbo-jumbo about stricter standards, requiring the board to show that not reinstating the workers would cause “irreparable harm,” and that the board was likely to prevail in the case. The bottom line is that workers trying to organize had been blocked from protections that could support the campaign.
One organizer remarked to me that “Some justices on the Supreme Court are liberal — except when it comes to workers’ rights.”
These justices may get yet another opportunity to attack workers’ rights. In February 2024, Elon Musk, Jeff Bezos, and Bryan Palbaum of Trader Joe’s filed a court case arguing that the very existence of the NLRB is unconstitutional. The case was filed in the Fifth U.S. Circuit Court of Appeals in New Orleans, a Trump-stacked court that covers deep-red Texas, Louisiana, and Mississippi. This challenge supports Amazon’s opposition to NLRB hearings over its firing of workers at the company’s Staten Island facility.
A similar challenge was made in 1935, at the height of controversy over the New Deal labor legislation. In the pivotal 1937 Jones and Laughlin case, the Supreme Court saved the Wagner Act in a 5-to-4 decision, upholding its constitutionality.
These treacherous legal shifts emphasize the importance of developing leverage in organizing campaigns, so the boss is actually afraid to fire a union supporter. With a stronger workplace defense, a campaign is not dependent on nine unsympathetic individuals.
