Euphoric. That’s how workers at Brooklyn Defender Services described the mood on Sept. 7, 2021—the day workers at Brooklyn Defender Services won their union election with more than 71% of the vote.
Almost two years later, a very different mood permeated the picket line in front of Brooklyn Defender Services. Since winning its election, the union has been waging a kind of cold war: a less visible but no less fraught campaign to turn their collective will into concrete gains.
“I think I had a very naive understanding before that, once you win an election, you will have a contract,” said Carolyn, an attorney with Brooklyn Defender Services and bargaining committee member who asked to use her first name only. When Carolyn returned to work after a year of leave, she joined the bargaining committee, expecting a collective bargaining agreement. Instead, she was thrust into a contentious negotiation that has led to two pickets since negotiations began.
After 18 months of bargaining, the bargaining committee estimated that they had only reached tentative agreements on about 20% of the contract. Committee members accused management of adding provisions to the contract that maintain management discretion, mischaracterizing their own behavior at bargaining sessions, refusing raises during the bargaining process, and pulling back on schedule flexibility.
“It’s really frustrating,” said Murtaza Husain, another bargaining committee member. “It feels like a tactic to just delay having the outcome that we voted on, which is having a union and having a contract and having protections.”
Kate Bronfenbrenner, the director of labor education research at Cornell University, says cases like Brooklyn Defender Services’ are not uncommon.
“A lot of unions just think, ‘Oh, we won,’ and they stop organizing, and they sit back and wait to bargain,” she said.
Bronfenbrenner stresses that while 80% of unions will eventually reach a collective bargaining agreement, it can take years—far longer than the public’s attention span. Bloomberg Law estimates that it takes 465 days for a union to reach its first contract, up from 409 days in 2021. Bronfenbrenner’s 2009 study also found that half of unions lacked a collective bargaining agreement one year out from their election, and almost 40% were still without a contract two years out. Three years out, that number was still as high as 30%.
What gives employers such an advantage, Bronfenbrenner and other labor experts say, is the NLRB’s powerlessness during the bargaining stage. While there is a long list of forbidden conduct during bargaining, challenging that conduct involves a lengthy legal process, the result of which is a paper ruling on behalf of the union. In fact, the NLRB is statutorily prohibited from imposing fines.
“By the time it’s getting to the board, it’s probably been a year since the ULP was filed, and they can still drag it out,” added Will Bloom, a Chicago-based labor lawyer. “They could appeal it to a circuit court or force the board to take it to a circuit court to enforce it.”
Bronfenbrenner says unions that want to win should organize like a union even before the first bargaining agreement is in place.
“For the union to succeed, they have to not just be continuing to organize the members, but they have to understand the power within the company to figure out [how to] make the cost of not settling greater than the cost of settling.”
Genevieve Rand agrees. She and fellow workers at Citizen Action of New York announced their intent to form a union in May 2022 and entered into their first collective bargaining agreement less than a year after they started negotiations.
“I think we were definitely all surprised by how long the contract fight took and how much time the leadership spent arguing with us over really minute things,” she said.
She attributes the strength of their agreement to their persistent organizing, threatening action when management appeared to be stalling negotiations, and negotiating for open bargaining during work hours so that as many workers as possible could participate directly in the process.
“Something I think that we’re really proud of is that we got the best layoff terms I’ve ever heard of in our industry,” Rand said. In the midst of bargaining, the organization’s budget was cut almost in half due to a slowdown in contributions felt throughout the nonprofit industry. Layoffs were imminent, but workers were able to negotiate a voluntary layoff program and three months of severance for all employees.
Bronfenbrenner says the costs of a drawn-out bargaining fight can be high.
“The longer it takes, the more likely the union is to end up with a weaker agreement,” she said.
However, there’s more than legal fees, wages, and benefits at stake in collective bargaining. Under NLRB rules, decertification campaigns are barred for one year after a union election and during the first three years of a collective bargaining agreement. However, if one year passes and no collective bargaining agreement has been reached, 30% of bargaining unit employees can sign a decertification petition, and the NLRB can authorize a decertification election.
A recent investigation by More Perfect Union found that Starbucks hired the National Right to Work Foundation, a nonprofit with the stated goal of “eliminate coercive union power and compulsory unionism abuses,” to lead a decertification campaign starting in spring of 2023. The first Starbucks union won their election in December 2021. Several stores have already filed decertification petitions.
James Carr is a shift supervisor at one of the more than 340 Starbucks stores that have organized a union out of about 16,000 stores in the U.S. He says that because there’s nothing the NLRB can do to force Starbucks to negotiate in good faith, Starbucks United is instead relying on building momentum and organizing public sentiment to put pressure on management.
“As we start to get up to 800, 900 stores, that’ll be the kind of turning point where the corporation will not be able to drag this out any longer,” he said.
Carr says one struggle the Astoria, Queens, store has had is turnover, which is generally high for food service chains like Starbucks but has been higher as workers allege Starbucks has retaliated against unionized stores by cutting back their hours and firing union leaders without just cause. In the spring of 2022, Starbucks rolled out a benefits program to workers at non-unionized stores while withholding it from unionized and unionizing stores.
Carr said no employees at the Astoria Boulevard store were fired after they won their union, but one barista at a nearby Starbucks won a settlement for more than $20,000 in back pay after he was fired following the store’s successful union election.
Carr also says recruiting new workers is a challenge but one they’ve succeeded in so far, despite strategic hiring.
“It’s poor people that work at Starbucks,” Carr said. “The company has gone out of its way to specifically hire new workers who are minors, who are young people desperate for work, who are still in school and do not want to risk their employment by going on strikes or doing walkouts or engaging in collective actions.”
Despite turnover, Carr says workers have been successful on both a store and regional level, not only winning new workers over to the union but supporting workers through work stoppages and other actions that could affect their pay through Workers United and their own store solidarity fund.
Brooklyn Defender Services has also seen success despite high turnover. In 2022, a New York Times article revealed that Brooklyn Defender Services had lost 27% of its staff over the course of a year, the highest rate of the public defender organizations the Times reported on. Despite this, Husain says the sustained pressure the union has applied and escalating tactics like pickets have galvanized workers to continue supporting the contract fight.
“I’m my most optimistic right now,” said Husain. “What I’m seeing is that our staff are still as engaged as when this thing started and when they voted for the union in the first place.”