In Starbucks Corp v. McKinney, the Supreme Court ordered lower courts to apply a stricter test when deciding whether to grant the National Labor Relations Board’s petitions for emergency relief, like ordering the reinstatement of seven fired Starbucks workers in Memphis.
The outcome is predictable: the most conservative Supreme Court in decades eroded another legal protection of workers’ right to organize. In response, the labor movement must re-evaluate the source of our power; the law will not save us.
U.S. labor law contains no penalties for firing workers in retaliation for organizing — only remedies. If the courts rule that a worker was unlawfully fired, they are entitled to reinstatement and back pay, minus their interim earnings. In practice, the court process can take years and workers frequently receive significantly reduced back pay.
By making it harder for the N.L.R.B. to obtain 10(j) injunctions, which are emergency legal measures intended to stop the harm that extreme union-busting actions cause to organizing campaigns, the Supreme Court underestimates the damage that retaliatory firings cause. Even before the decision, 10(j) injunctions were rare, totaling less than 20 in 2023. The Supreme Court’s action exposes how little relief workers can expect to receive moving forward.
As a union organizer and Starbucks worker, I’ve seen the effects of corporate retaliation up close. In December 2020, I took a job at the Elmwood Avenue Starbucks in Buffalo, with the goal of unionizing my workplace. A year later, our store voted to become the first unionized corporate Starbucks location in the United States, sparking a wave of organizing across the company. In response to our union campaign, Starbucks unleashed a union-busting effort that began with managers and executives swarming our stores in Buffalo and escalated to firings (including my own), store closings, and the withholding of new benefits, like seniority pay and credit card tipping, from unionized stores nationwide.
The workers at the heart of the Supreme Court case, who became known as the Memphis Seven, launched their campaign on Jan. 17, 2022 — Martin Luther King’s Birthday. Nikki, a shift supervisor at the Tennessee store, called me that day. She told me she had caught Covid at work and brought it home to her daughter. Unionizing would allow her to advocate for better health and safety conditions, as we had done earlier that month at the Buffalo store where I worked, going on strike in order to be able to self-isolate after exposure to the virus.
When we met on Zoom that night, the Memphis workers wrote a letter announcing their union campaign. Dr. King had been killed while fighting for union rights in their city, and they hoped to continue that struggle by organizing. “Please, in the memory of Dr. Martin Luther King, Jr. do not bring your so-called ‘pro-partner’ anti-union campaign to Memphis,” they asked.
But Starbucks did, in fact, bring its union-busting to Memphis. Less than a month later, on Feb. 8, Starbucks fired all but one of the organizing committee members after they invited the media into the store to speak about their organizing efforts.
The Memphis workers won their union before any of the fired workers were reinstated, due not to legal interventions but to the tireless efforts of Reaghan Hall, the sole committee member who hadn’t been fired, who organized the new hires. Several months later, on Aug. 18, the fired workers won a coveted 10(j) injunction. But even with the injunction in place, it took until October for Starbucks to exhaust its opportunities for appeal and finally reinstate the workers.
The tiny number of 10(j) injunctions sought yearly — ranging, in recent years, from one to over 20 — represents a fraction of the workers who are actually fired in retaliation for organizing. In my experience, many never file charges with the N.L.R.B. The standard N.L.R.B. process for bringing companies to justice, involving a trial before an agency judge and multiple opportunities for appeal, can drag on for years, a delay that can undermine or destroy a union organizing campaign.
Even a petition for a 10(j) is not a guarantee of success: In Buffalo, an attempt to win a 10(j) devolved into a fight over discovery. Starbucks subpoenaed every union-related exchange my fellow organizers and I had had with co-workers and journalists. With the help of a Trump-appointed federal judge, the company subverted the 10(j) process from its intended use of speeding up justice into another delay mechanism.
In 1977, labor law reformers attempted to make a 10(j) the virtual default proceeding when workers were fired, which would have dramatically increased the number of injunctions sought annually. While the legislation failed, the dire situation that firings create for workers and union campaigns alike warrants movement in that direction. In increasing the difficulty of obtaining this critically needed and already-elusive relief, the Supreme Court decision has wide-reaching implications that threaten to curb what power the N.L.R.B. does have to enforce labor law.
While workers wait for justice, a company that engages in unlawful activity reaps the immediate and desired effects of its actions: the pro-union worker is thrown out of the workplace and those who remain are afraid to speak up lest they suffer the same fate. Not only are the minimal consequences insufficient deterrents, but companies have every incentive to break the law.
Starbucks Workers United and other recent union campaigns at companies ranging from R.E.I. to Chipotle have exposed the limitations of labor law, the difficulties of winning a union and a contract, and the lengths to which companies will go to try to prevent workers from organizing (Starbucks has joined other companies, like Amazon and SpaceX, in attempting to challenge the constitutionality of the N.L.R.B. itself). The Supreme Court ruling just increased the obstacles facing unionizing workers.
To win a union campaign, workers need two critical components: a strong organizing committee and a hammer to bring down on the company if it doesn’t respect the right to organize. The law is not that hammer. For many public-facing, brand-oriented companies, the key to winning is public pressure. For example, in 2019, I worked with baristas at Spot Coffee, a local coffee shop chain in Buffalo. Shortly after workers held a meeting to discuss unionizing, the company fired three leaders.
Instead of waiting for the N.L.R.B. to adjudicate the case, the organizing committee launched a community boycott of the company. Under pressure, Spot Coffee agreed to a fair election process, reinstated fired workers, and negotiated a strong contract.
Likewise, Starbucks recently announced an about-face from its scorched-earth union-busting approach to its newfound stated desire to reach a contract and peace with the union (a shift which did not prevent it from still arguing against the union at the Supreme Court). The change, which came after years of continued worker organizing against immense odds and increasing public scrutiny of Starbucks’ union-busting, is in part because of a grass-roots global boycott of Starbucks, which launched after Starbucks Workers United made a social media post in solidarity with Palestine and Starbucks responded by suing the union for alleged copyright infringement over our name and logo.
The Starbucks Corp v. McKinney decision will not curb workers’ desire to unionize: public support for unions is higher than it’s been in decades. Workers’ power never came from the N.L.R.B. or the courts; we will only win labor law reform when our movement is strong enough to force government action. Unions must go on the offense, using tactics like boycotts to defend workers’ rights on our own timeline, not the courts’.
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