The Law Won’t Save Labor, but Labor Does Need the Law

Jaz Brisack is one of the founders of the Starbucks organizing campaign. You can read an interesting interview with Brisack here about organizing and the attempt to create replicable campaign strategies. I am less sure that particularly campaign strategies can lead to consistently replicable victories, but I get why you’d try. Anyway, Brisack had a Times op-ed a few days about this year’s Supreme Court jab at labor, making it much harder for the NLRB to force companies to hire back workers fired for organizing. The point here is that organized labor made a mistake by relying on the 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’.

This is fine, as far as it goes. I don’t per se disagree. But as I noted in A History of America in Ten Strikes and a zillion times before and since, the reality is that it is extremely difficult for unions to win anything at all when corporations and government are working together in an all-too-common alliance, as we are seeing here with the Court and Starbucks. That means that, yes, organized labor cannot rely on the courts to enforce its rights. Totally agree. But I think this also misses a key point, which is that the courts are rapidly moving back to their Gilded Age mentality of simply declaring anything unions that works illegal. I think Brisack is pretty confident in their position about what works for a union and I get that–youth and early success will lead to those kind of conclusions. There’s a big place for that in the labor movement. But all the union power in the world is extremely unlikely to win with the legal process geared so strongly against it.

A second Trump term will really show this, not that it will lead most workers to understand the necessity of electing Democrats. Joe Biden is old after all and is also responsible for TNT losing the NBA and also hasn’t unilaterally recreated the IWW through executive order.