If you are like me, you start your workday with a cup of coffee. Or maybe two. I drink my coffee black, but, to each their own. Maybe you, like many others, look forward to a frothy pumpkin spice latte in the fall. Some people grind their coffee beans each morning to achieve the perfect brew.  Others dash through the drive-thru at their favorite coffee shop during their morning commute. We are all different coffee people. But, no matter what kind of coffee person you are, chances are good that enjoying your favorite cup of Joe recently has also made you think of something else — labor unions. 

Starbucks stores across the state — from Knoxville to Memphis — are unionizing. Nashville has seen a series of specialty coffee shops close recently due to labor disputes. Labor unions are back in the news, and the coffee industry seems to be the public-facing example of the pitfalls of modern labor organizing and representation elections. 

Federal labor laws guarantee most workers in the U.S. the right to band together in the workplace to better the terms and conditions of their employment, including the right to come together to form a union. Employers, in turn, are prohibited from interfering with the exercise of those rights in certain ways. Labor lawyers talk about this framework in terms of Section 7 rights and Section 8 obligations under the National Labor Relations Act (NLRA). Representation elections are conducted, upon the employees’ petition, by the National Labor Relations Board (Board). With renewed interest in forming unions among American workers, the current Board finds itself grappling with how to protect Section 7 rights in the modern workplace and, importantly, how to remedy an employer’s unfair labor practices during an election. 

The Sixth Circuit’s recent McKinney v. Starbucks decision is a helpful example. Last year, employees at a Memphis Starbucks location wanted to unionize. So, they organized themselves, signed authorization cards, and petitioned the Board for an election. However, prior to the election, Starbucks fired seven of the store’s employees. The Board’s general counsel, as the enforcement agent for the Board, sought an injunction in federal court to reinstate the “Memphis Seven,” as the workers came to be known. The district court issued the requested injunction, and Starbucks appealed. On appeal, the Sixth Circuit grappled with the question of remedies for unfair labor practices in the context of representation elections.[i]    

How can the Board, and the courts, ensure “laboratory conditions” — the legal standard — when running an election? Reinstatement, as the court ordered in Starbucks, obviously puts the workers back into their jobs in time for the election. But how does a court remedy the psychological harm suffered by the employees in the bargaining unit, whether a chilling effect on the exercise of their statutory rights or an erosion of support for the union? Indeed, in the context of representation elections under the NLRA, traditional remedies, money damages in particular, are largely inadequate to address the harm done, where the harm is to a diminish the belief in a right, an ideal – the right to vote.[ii]  

The Board, for its part, has recently attempted to bring the more traditional remedies in labor law into the 21st century workplace. First, in Thryv, Inc., 372 NLRB No. 22 (2022), the Board expanded the types of remedies available to workers suffering an adverse employment action in violation of the act. Identifying the modern reality that, for example, many people maintain health insurance through an employer-sponsored plan, the Board allowed employees that lost coverage as the result of a wrongful termination to recover the costs of replacement coverage or out-of-pocket medical expenses.[iii] The Board catalogued a number of potential remedies for such workers, recognizing the need for the Board to “periodically update[] its make-whole relief to better effectuate the purposes of the Act.”[iv] Next, in Noah’s Ark Processors, 372 NLRB No. 80 (2023), the Board addressed remedies to cure the more intangible harms coming from unfair labor practices, such as loss of support for a union, erosion of bargaining power, or a chilling effect on the exercise of Section 7 rights. Terming them “special” remedies, the Board suggested, for example, an "explanation of rights" poster, a reading of the poster or other notice by the company CEO or other senior official, dissemination of notices and explanations of rights by mail and email, periodic site visits by Board employees, and trainings for the employer’s supervisors and other managers.

Finally, in late August the Board issued its decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023), which stands to dramatically alter the landscape of representation elections not how they are conducted, but whether they are conducted at all. Of course, nothing in the NLRA requires an election for a union to be certified. Rather, the NLRA permits employees to choose to be represented by a union, or not be represented, by “designation” or “selection.”[v]  An election is one form of selection. But employees can designate their chosen union representative in other ways, for example by signing authorization cards. An election is, in a sense, a remedy provided by statute to an employer that has reason to doubt that a majority of its employees truly support unionization. Since the early 1970s, the Board has favored elections as a means of ascertaining majority support, so much so that elections are now standard practice in labor law. In Cemex, however, the Board adopted a new standard that encourages employers to recognize and bargain with its employees’ designated representative without the need for an election. “We conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit . . .”[vi] In other words, Cemex moves the burden of filing an election petition off of the employees and places it on the employer when the employer is faced with evidence of majority support for the union by designation.

Of course, how Cemex impacts workplace organizing in practice is anyone’s guess. For now, all we lawyers can do is grab our favorite cup of coffee and wait to see.

Karla Campbell practices employment law, in particular ERISA, and traditional labor law at Stranch Jennings & Garvey in Nashville. She is a long-time member of the AFL-CIO’s Union Lawyers’ Alliance and a frequent speaker on labor law topics.  Before attending law school, Campbell served in the U.S. Peace Corps in Ecuador.