A Double Shot of False Attacks from the Senate

On March 29, Senator Bernie Sanders (I-VT), held the latest made-for-TV Senate hearing related to unions, entitled: “No Company is Above the Law:  The Need to End Illegal Union Busting at Starbucks.”  The title didn’t leave much ambiguity as to Sen. Sanders’s views, and much like his March 8 hearing, the March 29 hearing was long on accusations and innuendo and short on the realities of how organizing campaigns and the judicial system work.  In the case of this hearing, the main focus was of course on Starbucks, and it was evident that Sen. Sanders is unhappy with the company and its former CEO, Howard Schultz.

For starters, as in previous hearings, Sen. Sanders referred to a “constitutional right” to unionize, perhaps to add more gravitas to the event.  Joining a union, or declining to do so, is in fact protected under the National Labor Relations Act (NLRA).  The United States Constitution, however, and its accompanying amendments, does not discuss union organizing.

In the days before the hearing, majority staff on the Senate HELP committee released a slanderous “report” on Starbucks.  Playing judge, jury, and executioner, the report proclaimed ominously that there have been 500 unfair labor practice charges (ULPs) filed against Starbucks.  However, the report fails to note the reality that anyone can file a ULP against any entity subject to the NLRA for any reason.  As an example, the Teamsters Union had nearly 800 ULPs filed against it over a two-year period.  The vast majority of ULPs are, in fact, dismissed as being without merit.  Even those that the NLRB chooses to pursue (in this case just 80 of the 500, or 16%, according to the committee report) are frequently overruled, settled, or appealed to federal courts.  The sheer number of ULPs filed is illustrative of little more than the size of the targeted entity, whether it’s a business or a union.

The report, along with several Democratic committee members, also complained that Starbucks has “refused to bargain a first contract” with the Starbucks Workers United union.  Schultz responded that in fact, the company has sat down with the union on 80 or so occasions.  However, the whole line of questioning neglects to mention that there are two parties that are required to participate in meaningful negotiations, and the union hasn’t exactly been cooperative, insisting that the company negotiate for all stores as one unit and demanding that sessions be held virtually with unknown parties participating.  No business would agree with those terms, and under the law, no business has to.

In Sen. Sanders’s mind, a first contract should be wrapped up almost immediately after an NLRB election (see his support for the PRO Act), but the reality is that negotiating a first contract is difficult and can take a long time.  The two parties typically have no history of working together, and there are critical issues to work out including wages, benefits, working conditions, and pensions, that will impact workers and the company for years.  The process simply shouldn’t be rushed.

Finally, the report levied all sorts of aspersions against Starbucks and Schultz.  For example, it accused Starbucks of “breaking the law” even though ULPs have yet to be fully adjudicated, asserted that Schultz is the “architect” of a “failed and illegal attempt to block workers from unionizing,” and gratuitously trashed the company’s pay and benefits policies, which include a $15 an hour starting wage (with an average wage of $17.50), tuition benefits, and health benefits, among others.  One can always quibble about the generosity of pay and benefits, but this seems more like a cheap shot at the company than anything having to do with the alleged subject of the hearing.

As to the actual hearing itself, it mirrored the accusations levied by the committee report but stepped it up a notch.  For example, Sen. Sanders all but demanded that Schultz read publicly a 14-page letter confessing to violations of the law, pressed him to exchange proposals with the union within 14 days, and intimidatingly asked if Schultz knew that making false statements to the committee was illegal.  This last statement set the stage for a series of additional interrogation-style questions that included an assertion that Schultz personally violated the law over 100 times.  While denying that baseless claim, Schultz made the point that, as noted above, allegations by the NLRB are just that until fully adjudicated.

Ranking member Senator Bill Cassidy (R-LA) made two particular points worth noting.  First, in response to the accusation that Schultz had only appeared before the committee under threat of subpoena, Sen. Cassidy noted that if there was a reluctance to testify it would hardly be surprising given the title of the hearing itself and the clearly accusatory and conclusory nature of Sen. Sanders’s pre-hearing statements.  Second, Sen. Cassidy noted that the NLRB itself is facing an investigation over its own misconduct during Starbucks elections, as noted in a recent U.S. Chamber report.

The March 29 hearing resolved little other than demonstrating that Sen. Sanders really likes unions and really doesn’t like Starbucks.  One can only guess what the Senator will choose to feature at his next media event.