New Orleans      It was only a matter of time before someone outside the labor movement pointed out what should have become all too obvious to union organizers and leadership for a while.  In the exciting and inspiring victories of Amazon workers in Staten Island and Starbucks baristas in hundreds of locations around the country who came together to organize their unions in 2022, the workers won the early battles, but the giant companies are winning the war.  The workers and their unions were able to build power in their workplaces, but the companies are winning the delay game enabled by the legal regime of labor law, the NLRB, and the courts.

The way US labor law works, all that workers really win in a union certification election under the NLRB is the ability to block the company from challenging whether they represent a majority for one year after their election victory is certified.  That clock only starts ticking once there is in fact a formal certification of the victory which can easily be delayed by challenges by the company to the victory itself, first through the NLRB’s slow-moving process, and then in the courts even after the NLRB finds no merit in the company’s position.  Any delay helps the company take wind out of the union’s sails, because it blunts the momentum of the union in many cases, because organizers and leaders have too often laid out candy cane visions of a collective bargaining agreement.

These delays are even more effective as union-killers in industries marked by high turnover, part-time schedules, and younger, more mobile workers, both of which are true in spades at Starbucks and Amazon.  The long article by Megan K. Stack in the Times, “This Is How the Bosses Win” does an excellent job of documenting the impact of turnover in the Starbucks campaign, where these ostensibly legal union avoidance tactics can decimate rank-and-file leaders and activists that propelled the original union election victory, and as time bleeds the union out, invite decertification petitions or potentially RD petitions challenging the union’s majority.   The article also details how the current process is toothless in dealing with delays, even once bargaining with the company begins.  Starbucks is demanding in-person bargaining, which is usually the union’s demand, but in this case with such a far-flung organizing supply chain, is allowing the company to refuse to bargain.

Amazon is no better. They have thus far managed to delay bargaining more than a year after the Amazon Labor Union won the first ever election at one of their warehouses.  The company’s delays have been so tactically successful that they have laid the groundwork for internal conflict within this nascent union’s leadership, playing right into the company’s hands.  In a painful irony, one of the dissidents many issues are whether or not the primary leader has done enough to force the company to begin bargaining, which would be impossible for Superman.

Here’s what is worse this time.  For a change, you can’t blame the NLRB.  The current general counsel and the board itself are arguably the best any of us have seen in the last generation of organizers.  They have used all the tools they have to try to put pressure on both companies, including consolidating cases, ordering workers back on the job, and now threatening to file 10(j) injunctions to force bargaining and pressure the companies.  It is inescapable though to conclude that none of this is working.

The law and the entire legalistic system are irredeemably broken.  Amazon and Starbucks are not doing anything new.  It has always been the case that if a company didn’t want to recognize the union and agree to a contract, unions would only be able to get the job done if they had enough leverage and power to force the company to comply.  The law demands “good faith,” but it does not demand agreement.  The penalties to company infractions are miniscule and ineffective.  It took seven years for our union to get a contract from the Hyatt and by the time we got there, it was a pyrrhic victory, because the workers were beaten.

More than the law is broken.  In this organizing climate, collective bargaining is fools’ gold.  In this imbalance of power, where unions are so clearly on the short end of the stick, a contract can no longer be raised as a goal in organizing new workers, because we can’t guarantee delivery and making the promise just sets us up for these kinds of defeats.  The current economic and legal environment has to force unions to rethink tactics and strategy in organizing new segments of the working class.  Amazon and Starbucks are once again teaching us that this doesn’t work and will force us to go “old school” before the law was written and “new school” to fit these times and build majorities and support without contracts.