Since December 2021, workers at 446 Starbucks shops in 46 states have filed to organize. Of those, 354 locations in 42 states won union elections — the most formed in a 12-month-period for any company in the U.S. over the past two decades, according to Starbucks Workers United.
Within New Jersey, cafés in Hamilton, Summit, Montclair and Hopewell (Pennington) are all rallying to demand improved training, quality health care benefits, consistent scheduling and protection of benefits.
In a statement, Rouen Nelson, who has worked at Starbucks in Succasunna for over two years, said, “I can say that management has undermined our needs, solely focusing on corporate demands. We have survived understaffing and illegal union busting practices from our ever-changing managers. Our success this week ensures that our voices will be heard, and our workplace environment will be a welcoming one. Can not wait to see what we can accomplish in the future.”
Albert Arroyo, co-manager of the Laundry, Distribution and Food Service Joint Board, Workers United, SEIU, congratulated Succasunna’s employees, saying, “We commend their efforts in calling the Starbucks company to begin bargaining in good faith. We support their cause and encourage the public and legislators to join us in the unionizing of Starbucks workers.”
In a statement to NJBIZ, a spokesperson for Starbucks reinforced that the company respects “the right of all partners to make their own decisions about union representation” and is “committed to engaging in good faith collective bargaining for each store where a union has been appropriately certified.”
Starbucks – which has more than 9,000 stores nationwide – has opposed the unionization efforts, saying the company functions best when it works directly with employees.
U.S. Sens. Cory Booker, far left, and Bob Menendez, foreground, shown in April 2021. – OFFICE OF U.S. SEN. ROBERT MENEDEZ
In March, Sens. Robert Menendez and Cory Booker, both Democrats from New Jersey, penned a letter to then-Starbucks CEO Howard Schultz urging him to stop delaying negotiations with the cafés that have unionized in the Garden State.
In the letter, the senators called on Schultz and Starbucks to negotiate in good faith with Starbucks Workers United as required by the National Labor Relations Act (NLRA), noting that the four shops had waited between six and 10 months to form a first collective bargaining agreement, as required by the NLRA.
According to SEIU, the National Labor Relations Board is currently prosecuting the company for failing to bargain in good faith with workers.
So far, in 15 favorable decisions out of 16, NLRB judges have found that Starbucks committed 161 federal labor law violations, including 19 unlawful discharges.
The federal government is currently prosecuting Starbucks for approximately 75 complaints, encompassing over 200 charges and alleging more than 1300 violations, including 77 discharges, the SEIU said.
On June 20, over 60 members of Teamsters Local 11 held a three-hour demonstration to fight against any plans to shutter the 75-year-old plant on Jerseyville Avenue, saying such a move “would deeply impact workers and the local community,” according to a union representative.
While Nestlé says a final decision has not yet been made, the union said company managers told employees the plant “could close by the end of 2023” as part of a plan to relocate production to Mexico, which is where the global corporation invested $340 million to build a state-of-the-art coffee factory.
After opening in 2022, the new Nescafe plant in Veracruz brought 1,200 jobs to the region, making Mexico Nestlé’s main producer of coffee in the world.
Meanwhile, the Freehold manufacturing facility has undergone improvements since it began operating in 1948, but the location is limited based on “its age, flexibility and ability to meet growing consumer demand in a cost-effective way,” Nestlé said in May.
Although the company’s beverage division – whose brands include Nescafe, Clasico, Taster’s Choice, Coffee-Mate, Nestea, Carnation, Juicy Juice, Ovaltine and Nesquick – has four factories across the country, the Freehold plant is the only one that produces coffee.
Over the past month, the company – which has its U.S. headquarters in Arlington, Va. – has sat down with the union to discuss the site.
Following the June 20 demonstration, Local 11 representative Anita Clark said Nestlé “continues to be vague about the future of this plant and the futures of over 200 families that depend on these jobs.”
In a statement, a Nestlé spokesperson said, “We appreciate the union’s willingness to discuss the situation, including the annual cost savings required to make continuing operations there viable for our business in the long term. Our decision process has also included conversations with local Freehold officials and New Jersey government agencies.”
“Decisional bargaining with the union has concluded, and our leadership team will now make a final decision regarding the factory,” the spokesperson added. “We are committed to giving our Freehold employees updates in a timely manner.”
The Teamsters Local 11 members who protested plans to shutter the Nestlé plant in Freehold believe such a move “would deeply impact workers and the local community,” according to a union representative. – TEAMSTERS LOCAL 11
Employees at a Somerset County medical dispensary have joined a growing number of workers in New Jersey’s cannabis landscape who have opted to unionize.
According to the United Food and Commercial Workers (UFCW) Local 360, workers at Valley Wellness in Raritan voted to organize as members of the union, which represents hundreds of thousands of cannabis industry workers in dispensaries, labs, manufacturing, processing, delivery and grow facilities across the U.S.
In a March 22 statement, UFCW Local 360’s director of organizing Hugh Giordano said, “Valley Wellness, and its owner Sarah Trent, have already proven to be a great addition to the growing New Jersey cannabis community. We’re looking forward to a long and mutually beneficial relationship with what is one of the first stand-alone dispensary operators in the state, a company that provides a refreshing alternative to the large number of multistate operators here.”
Trent is also known for her commitment to promoting responsible use of the product, as well as creating an educated workforce in the budding industry. In March 2020, she founded NJ Cannabis Certified, a 15-hour educational certificate program taught virtually in conjunction with eight community colleges across the state that is geared toward those interested in working in the industry or wanting to learn more about cannabis.
“Sarah and her team clearly recognize the role professional employees play in driving long-term success,” added Giordano. “So, it was a real vote of confidence in the future of both the company and the industry when those same professional employees carefully considered, and then selected, the career-supporting benefits that come with joining Local 360.”
Trent declined to comment to NJBIZ regarding unionization efforts at her dispensary.
When New Jersey launched its recreational cannabis industry in April 2022, the law included pro-labor provisions requiring companies to negotiate in good faith if their employees want union representation.
In recent months, workers at some of the largest cannabis companies in New Jersey, including Curaleaf, Ascend, The Cannabis Dispensary, Harmony Dispensary, Verano and AYR Wellness, have also organized.
“It is a very positive development. After a blockbuster 2022, this year is continuing the trend of votes in favor of unionizing,” said Sam Ferraino Jr., president, UFCW Local 360. “This vote is not just in support of unions organizing, it’s in the power of unions to positively impact businesses, families and communities, while maintaining high operating standards powered by a diverse and skilled workforce.”
Sens. Bob Menendez and Cory Booker, both Democrats from N.J., penned a letter to Starbucks CEO Howard Schultz March 14 urging him to stop delaying negotiations with four unionized New Jersey Starbucks stores in Hopewell Township, Hamilton, Summit and Montclair.
In the letter, the senators call on Schultz and Starbucks to negotiate in good faith with Starbucks Workers United as required by the National Labor Relations Act (NLRA), noting that the four shops have waited between six and 10 months to form a first collective bargaining agreement, as required by the NLRA.
“On May 4, 2022, the National Labor Relations Board (NLRB) certified the first New Jersey union at a Starbucks store in Hopewell Township with the employees voting unanimously to form a union. Since then, despite Starbucks’ blatant anti-union behavior, three other stores in the state have voted to unionize. In forming these unions, our constituents have demanded commonsense requests like pay increases for the augmentation of their responsibilities due to the pandemic, higher quality training, more consistent scheduling, health and safety improvements, and the protection of benefits for part-time workers,” the senators wrote.
These union stores have also sent representatives to a national bargaining committee where they have developed non-economic proposals, such as non-discrimination policy enhancements to protect employees from harassment and bullying; the creation of a labor-management committee for employees and management to jointly resolve disputes; and seniority rights in union stores.
“Whether you agree or disagree with these proposals, the NLRA provides all New Jerseyans the right to bargain in good faith with you as their employer regarding their pay, hours, and workplace conditions. Section 8(a)(5) of the law clearly makes it an unfair labor practice to refuse to bargain collectively with the representatives of its employees,” the letter continues.
The senators say the delay is cause for serious concern, pointing out:
While the Hopewell Township Starbucks unit was certified on May 4, 2022, it took over six months to hold a first bargaining session on Nov. 29, 2022.
While the Hamilton Starbucks unit was certified May 10, 2022, it took over six months to hold a first bargaining session six months later on Nov. 30, 2022.
While the Summit Starbucks unit was certified May 10, 2022, it took over nine months to hold a first bargaining session on Feb. 13, 2023.
While the Montclair Starbucks unit was certified Aug. 19, 2022, it took nearly six months to hold a first bargaining session on Feb. 14, 2023.
U.S. Sens. Cory Booker, far left, and Bob Menendez, foreground, shown in April 2021. – OFFICE OF U.S. SEN. ROBERT MENEDEZ
Menendez and Booker said they do not expect Starbucks to immediately accept all of the proposals made by the union.
“However, we urge you to sit down with union representatives in an honest attempt to form a collective bargaining contract in accordance with requirements set forth under the NLRA,” they said.
The letter closed with a pointed criticism of Starbucks by Menendez and Booker.
“While Starbucks has gone to great lengths to present itself as a company that takes care of its employees, going so far as to call employees ‘partners,’ it appears the reality is detached from this brand image,” they wrote.
The New Jersey senators requested a written response by March 27—two days before a March 29 Senate Health, Education, Labor and Pensions Committee hearing, where Schultz, who is stepping down later this month as Starbucks CEO, will testify.
“We would like to request a written response by March 27, 2023, that explains the most recent actions your company has taken to advance good faith negotiations with the union in New Jersey,” said Menendez and Booker.
Starbucks disputes the assertions made in the letter, telling NJBIZ that it has acted in good faith throughout the process with Workers United, attributing blame to the group for the delay in scheduling and having substantive bargaining sessions.
“We believe our direct relationship as partners is core to the culture and experiences we create in our stores. We respect our partners’ rights to organize and engage in lawful union activities and we have fully honored the process laid out by the NLRB to ensure that partners can trust the process is fair and their voice is heard,” Rachel Wall, director of corporate & labor communications, told NJBIZ in a statement. “With our partners in mind, we remain ready to bargain in good faith and have urged Workers United to do the same.”
“Starbucks is currently being prosecuted for over 1,400 alleged violations of federal labor law. They have flagrantly violated the law in many instances in the name of their union-busting campaign and are finally being held accountable for their actions both by the National Labor Relations Board and now the U.S. Senate,” Starbucks Workers United told NJBIZ in a statement. “We look forward to hearing Starbucks CEO Howard Schultz testify on his role as the architect of Starbucks’ union-busting campaign in front of the Senate HELP committee on March 29th.”
Baristas at three unionized Starbucks locations in New Jersey are among those participating in a Nov. 17 nationwide day of protest against the Seattle coffee giant, their union announced.
According to Starbucks Workers United, employees at Montclair, Hopewell (Pennington) and Summit are joining with more than 100 stores across the U.S. to take part in the Red Cup Rebellion, calling on corporate to “fully staff all union stores” and start bargaining with unionized workers in good faith.
A nationwide day of protests falls on the same day as Red Cup Day, when thousands of Starbucks stores will offer a free reusable cup to customers who order a holiday drink. – STARBUCKS
Picket hours were limited to 7 to 9 a.m. at Summit and between 7 a.m. to noon at Montclair and Hopewell, the union said.
The demonstration falls on the same day as Red Cup Day, when thousands of Starbucks stores will offer a free reusable cup to customers who order a holiday drink.
After noting that Red Cup Day “is the equivalent of Black Friday for Starbucks,” the union said striking workers will be outside of their stores handing out Starbucks Workers United branded cups.
Over the past year, workers at 343 Starbucks shops in 39 states have filed to organize. Of those, 264 locations in 36 states won union elections — the most formed in a 12-month-period for any company in the U.S. over the past two decades, according to Starbucks Workers United.
“Starbucks’ management has other things in mind than worker safety and fair wages this holiday season. They have refused to come to the bargaining table to negotiate a fair contract with our sisters and brothers,” the union said.
Starbucks – which has more than 9,000 stores in the U.S. – has opposed the unionization efforts, saying the company functions best when it works directly with employees.
Understanding the trends behind the current uptick in union organizing activity provides important insights for all employers as they develop their own positions toward unions and unionization in this new labor relations climate.
This article will focus on three trends that are particularly important for employers to be aware of. First, unions are increasingly relying on non-traditional labor entities like the Democratic Socialists of America and younger ideological organizers to organize non-union employers. Second, social, political and ideological bargaining demands – like refusing to agree to no-strike clauses, demanding the ability to wear union apparel at work without limitation and wanting a greater role in company decisions – are becoming as important to unions as traditional economic demands. And third, federal labor law policy seeks to encourage and facilitate union organizing, even if that means overturning decades old precedent.
Several high-profile union organizing efforts, including organizing campaigns at Amazon and Starbucks, were led in part by younger, college-educated workers, who specifically took jobs with those companies to encourage company employees to form and/or join a union. These organizers are ideologically committed to unionization and, unlike more traditional organizers, emphasize the importance of workers to organize for social and political reasons — not just because their economic conditions may improve. These organizers also tend to resonate with workforces that have higher percentages of younger employees — that is, those under 40.
Supporting this new type of organizer are a host of non-traditional labor organizations. For example, the Democratic Socialists of America have become extremely active in union organizing campaigns by, among other things, leading rallies to support union campaigns, assisting union members in handbilling and providing volunteers to man picket lines in support of strikes/job actions. Similarly, instead of affiliating with an existing union, Amazon workers interested in organizing started their own union, appropriately titled the Amazon Labor Union. The Amazon Labor Union proudly declares its independence from traditional labor unions, stating that it is a “grassroots, worker-led union.”
Employers need to be aware that college-educated “salts” and newly formed grassroot unions supported by political activists like the Democratic Socialists are the current face of union organizing.
Bargaining demands
Just as the entities and organizers who power union organizing efforts are changing, union bargaining demands, which historically centered on economic issues – higher wages and better benefits – are also changing. While union bargaining demands continue to emphasize economic issues (think of the fight for $15), in today’s climate, unions are focusing equally on demands that express the social and political perspectives of their members, including a larger role for employees in corporate governance and more flexible leave and vacation policies that comport with employees’ sense of an appropriate work life balance.
Additionally, unions are increasingly taking strident bargaining positions over longstanding features of collective bargaining, like no strike clauses, which some unions ideologically oppose. For example, two candidates for the presidency of Service Employees International Union (SEIU) Local 1000, the largest SEIU local in California, campaigned on the elimination of all no strike clauses from their contracts.
These ideological and social/political demands are often difficult to address in collective bargaining because they are either non-starters for the employer (removing no strike clauses) or infringe on core and longstanding management rights (such as corporate governance and hiring). As a result, bargaining can drag on and the risk of labor instability increases.
Federal labor policy
Central to the Biden administration’s pro-union, pro-organizing policy agenda is an active National Labor Relations Board that advances policies encouraging the expression of pro-union sentiment and making it easier for unions to organize employees.
To that point, on Aug. 29, the NLRB issued its first precedent-shifting decision in Tesla Inc., 370 NLRB No. 131 (2022). In Tesla, the agency found that an employer cannot impose any restrictions on its employees’ right to wear union apparel or clothing with union insignia unless the employer can establish “special circumstances” warranting such restrictions. The board went on to specifically overrule prior precedent that allowed employers to impose certain restrictions on employee rights to wear union apparel without justifying those restrictions with special circumstances.
Similarly, the NLRB’s general counsel has asked the board to find captive audience meetings unlawful — a position that would reverse over 70 years of precedent. Captive audience meetings are compulsory meetings conducted by a company during a union organizing campaign where the company expresses its position on unionization.
In Babcock & Wilcox, a case decided in 1948, the NLRB found captive audience meetings to be lawful. On April 7, in Memorandum GC-22-04, the NLRB’s general counsel took aim at this decades-old precedent, urging the board to outlaw these meetings as inherently retaliatory and coercive of employees’ Section 7 rights. While the general counsel’s memorandum is not binding law, the board is considering the lawfulness of captive audience meetings in Cemex Construction Materials Pacific LLC, Case No. 28-CA-230115 (2018), with a decision likely next year.
In the face of this new labor relations climate, it is more important than ever for employers to be proactive about unionization and think critically about the course of conduct an employer would take if its employees attempted to organize.
Matthew A. Fontana is a labor and employment partner at Faegre Drinker.
Starbucks workers at the Montclair-Church Street location became the fourth store in New Jersey to unionize.
Workers United will represent the workers after a unanimous vote, according to an Aug. 11 announcement by New Jersey State AFL-CIO.
“We are incredibly proud to continue our support of Starbucks workers in this historic, worker-led campaign. Their strength, strategy and solidarity serve as an inspiration to us all. As the drive to unionize more Starbucks locations moves on, we look forward to more successful elections,” an AFL-CIO email said.
Nationally, over 260 Starbucks locations have filed paperwork with the National Labor Relations Board to begin the union election process since August 2021. – UNSPLASH
“Unions help level the playing field between employees and employers. Starbucks workers nationally want more say in their wages, hours, and working conditions. Instead of treating them with respect, the company under CEO Howard Schultz has engaged in a union-busting campaign and retaliation against workers,” the email said. “Starbucks has been conducting captive audience meetings, spreading anti-union lies and propaganda, and cutting hours to deprive employees of healthcare benefits. Despite Starbucks union-busting, the workers at the Montclair-Church Street location and nationally have continued to file for and win union elections.”
The Montclair-Church Street unionization follows that of the Hamilton, Hopewell and Summit locations.
Nationally, over 260 Starbucks locations have filed paperwork with the National Labor Relations Board to begin the union election process since August 2021. More than 140 Starbucks locations have voted for unionization throughout the country.
Starbucks is making national headlines for its alleged union busting tactics, including firing union leaders. NPR reported in May that interim CEO Howard Schultz announced new benefits, including expanded training, improved sick leave and credit card tipping for almost half a million employees nationwide, but not at stores that are unionizing.
“We do not have the same freedom to make these improvements at locations that have a union or where union organizing is underway,” Schultz said on a conference call with shareholders on Tuesday.
Starbucks did not return a request for comment by press time.
Greg Lalevee, right, the business manager for the International Union of Operating Engineers Local 825, speaks with William Vaccaro, the director of training at the union’s education center. –
Every year, hundreds of students spend time at the International Union of Operating Engineers Local 825 training facility in Dayton learning how to operate heavy machinery before going to work on real world infrastructure projects. Even the most experienced of the local’s more than 8,000 members will come to the facility to train on machinery they’re less familiar with, enhancing their opportunities for work in all sectors that use them, from paving the highways to driving piles for bridge construction.
Now, men and women are training for what will be IUOE Local 825’s biggest undertaking in recent memory: The Gateway Project, a mammoth $30 billion bridge-and-tunnel infrastructure project to improve connections between New York and New Jersey, and therefore streamline travel along the entire Northeast corridor. In October, the New Jersey Transit board of directors voted unanimously to award a $1.6 billion contract to build a new Portal North Bridge over the Hackensack River to Skanska Traylor PNB JV, a joint venture between Skanska USA Civil in Parsippany and Alexandria, Va.-based Traylor Bros. Inc.
In January, the final hurdle necessary to qualify for federal funding to build a $12.3 billion rail tunnel was cleared when the Federal Transit Administration raised its rating of the project. While the build out won’t finish until the latter half of this decade, “at least the clock can start to tick,” the union said on its Facebook page.
In the meantime, members of Local 825 are a busy bunch. Infrastructure statewide is aging, and they address that—repaving roadways, fixing dams, and trenching for utilities companies. Crews are replacing gas pipes for PSE&G and lead water pipes where they still exist. The dam at Round Valley Reservoir in Hun-terdon County, which at 55 billion gallons is the largest water supply reservoir by volume in the state, is being redone by a team of 30 to 40 operating engineers, IUOE Local 825 Business Manager Greg Lalevee said. After a couple years of work, they have about a season left.
“There’s a great amount of optimism that with the recent infrastructure bill that passed. There’s $1 billion that’s earmarked for New Jersey for water work, and most of that runs through the state’s infrastructure bank, which uses those funds typically to bond for bigger projects,” Lalevee said about future work.
Offshore, Lalevee said the 200-acre wind port project in South Jersey, which upon completion is expected to support up to $500 million in new economic activity within the state and region each year, is just beginning; and the aforementioned Portal North Bridge project is due to start in a matter of weeks.
“I can’t believe it’s actually that close now,” Lalevee said.
What some do for entertainment—construction-themed amusement park Diggerland USA opened in West Berlin in 2018, and before COVID brought in several hundred thousand guests each year to play around in its heavy equipment; and what little kid doesn’t grow up playing with Tonka trucks? — operating engineers do for a paycheck. For union operating engineers, it’s a healthy paycheck.
“Where I went to college was a pre-med factory when I was there, so I have a lot of friends that are doctors today. But if you really compared the trajectory of our lives, I started working in the union the summer of ’84,” said Lalevee, who was an operating engineer in the field long before taking the business manager position. “They all went off to med school and built up a tremendous amount of debt. We got to house-buying age, getting married age and all that other stuff. I bought the modest home of an operating engineer. They bought a home of a doctor to keep up with the other doctors. Same thing with vehicles, I had Fords and Chevys; they had BMWs and Lexuses.
“Now we’re at different stages of putting kids through college and getting kids married, but I’m 57 years old, and if I retire tomorrow, I have a pension check that I would get every month for a couple thousand dollars, I have an annuity fund that the union has set up through its collective bargaining agreements that, like a 401(k), I have a healthy pot of money in after 35 years,” Lalevee said. “They’re just starting to figure out how to retire and how to save for it. They’re all sitting there going, ‘well, how do I retire?’ I’m like, ‘I can retire tomorrow.’”
Practicing on a real machine gives workers the confidence to know they’ll operate appropriately on the job site.
If it can be done in the field by a guy in a machine, it can be trained for at the center in Dayton. The facility and surrounding 61-acre plot is like a wonderland for mastering heavy machinery of all types and sizes. First, green students and journeyman operators alike can learn and practice indoors on simulators that mimic the real world. To learn crane operation, use a crane simulator; regardless of the real-life weather outside, the device can factor in wind, rain, snow, and shadows from the sun in a virtual reality. The same goes for excavator operation.
And with the cost of diesel these days—more than $5 a gallon in several towns across the state, as of March 10—the simulators offer a learning opportunity without fuel expenditures.
A few doors down, students learn to weld, also on a simulator. Simulation training has been around for several years but has leveled up in the last five, according to Lalevee. While IUOE Local 825’s four welding simulators cost around $100,000 altogether, Lalevee and IUOE Local 825 welding trainer Victor Grigoriew said it was a worthwhile investment.
When learning on real welding equipment “it’ll take you about two weeks to a month just to strike an arc. Whereas with [the simulator], you get direct feedback on what you’re doing,” Grigoriew said. “It’s green technology because we’re not wasting any steel. You’re not dealing with burning yourself right away or anything like that. And this unit’s totally portable; we can take it to job fairs, colleges, tech schools, so on and so forth.”
Grigoriew said that the welding simulator improves the pace of learning overall, and that there’s a significant reduction in cost savings for material and man hours to boot.
Beyond the walls of the facility, several cranes, backhoes, bulldozers, excavators, front-end loaders, and other equipment lay in waiting for men and women to gain experience using.
While the simulators give them muscle memory, practicing on a real machine gives workers the confidence to know they’ll operate appropriately on the job site. Stakes are higher than on a simulator, sure, but still much lower than on a job site, where quarters may be tighter and there’s an added variable of other workers.
Lalevee’s team has bigger plans for the facility moving forward. There’s a 4-acre, 80-foot-deep lake where they’re developing wind survival training for wind port workers to protect themselves if they fall into the water; and recently, the facility became a licensed technical college, meaning it can start to offer associate degrees.
“We’re going to hybrid our education between the traditional apprenticeship and some more academic work. We see the operating engineer of the future is going to have to be a more broadly educated individual, so we’re leaning into that,” Lalevee said.
Editor’s note: IUOE Local 825 Business Manager Greg Lalevee’s name has been corrected from the print version of this story.
Over the next several years, the Biden National Labor Relations Board is likely to dramatically alter the legal landscape surrounding union organizing and bargaining and it is important that New Jersey employers understand these changes and are prepared to meet them. The Biden NLRB will likely endorse changes to current NLRB rules and precedent to make it easier for independent contractors to be classified as employees (and therefore able to be organized), allow for smaller groups of employees to organize and make it easier for unions to establish that companies are joint employers. The net impact of these changes will be to make it easier for unions to attempt to organize workplaces and expand their reach in companies that already have a union workforce. These potential changes are particularly salient for New Jersey employers given the uptick in union organizing activity across the state.
The NLRB has already set its sights on altering the standard to determine whether independent contractors are employees—which is a critical issue as only employees have a right to join a union. In The Atlanta Opera, 371 NLRB No. 45 (2021), hair and makeup workers hired by the Atlanta Opera as independent con-tractors claim that they are in fact employees of the Opera and should be allowed to join the International Alliance of Theatrical Stage Employees union.
On Dec. 27, 2021, the NLRB invited non-parties to submit briefs on this case, specifically requesting positions as to whether the NLRB should replace its cur-rent independent contractor standard. If the NLRB decides to replace the current independent contractor standard, it will likely adopt a more stringent standard, akin to the “ABC test” used in New Jersey to determine whether an independent contractor is an employee for purposes of alleged wage and hour violations, which will result in many more independent contractors being classified as employees under the National Labor Relations Act. For New Jersey employers this means that many of the hundreds of thousands of independent contractors working in the state would then be able to join a union.
The Biden NLRB is also looking to change the standards governing the appropriate size of bargaining units, allowing smaller units with fewer employees that are easier for unions to organize. In American Steel Construction, 371 NLRB No. 41 (2021), the Biden NLRB is considering whether to return to the “micro-unit” rule articulated in Specialty Healthcare, 357 NLRB 934 (2011), which the Trump NLRB overruled in 2017. In Specialty Healthcare, the Obama NLRB endorsed the concept of “micro-units” when evaluating potential bargaining units. Under the “micro-unit” standard, the NLRB presumes that a bargaining unit is appropriate when it is composed of employees that perform the same job at the same facility regardless of whether other employees share a community of interest with that unit. This means that organizing efforts can target a smaller group of employees to organize, allowing the union to gain a “toe-hold” in an employer’s operation from which it can expand its representation.
Finally, the Biden NLRB will likely return to the joint-employer test articulated in the Obama-era decision Browning-Ferris Industries, 362 NLRB 1599 (2015), which the Trump NLRB overruled. In Browning-Ferris, the NLRB expanded the joint-employer standard by holding that an employer’s status as a joint-employer hinges on the employer’s reserved right to control employees as well as its indirect control over employees. The Browning-Ferris decision relaxed the previous joint-employer standard, which required a demonstration that the putative joint-employer actually exercises direct control over the employees in question. By re-laxing the joint-employer standard, employees may assert their right to bargain with both their direct employer and the company that contracted their services. A return to the Browning-Ferris standard has the potential to lead to increased bargaining across a variety of industries, particularly those industries that rely on a franchise model. Importantly, the Biden NLRB announced its intention to imminently commence rulemaking on the standard for determining a joint employ-er—beginning the process of re-establishing Browning-Ferris through rulemaking.
In sum, the Biden NLRB is actively considering revising established NLRB rules and precedent. The net impact of these decisions will likely be to make it easier for unions to organize employees across a wide variety of industries. New Jersey employers should pay special attention to these decisions as the Garden State is seeing an increase in union activity and membership. In fact, in 2020, 16.1% of New Jersey employees were members of a union, up from 15.7% in 2019 and well above the national average of unionized workers per state which is approximately 10.8%. Given these trends, if the Biden NLRB adopts the organizing friendly posi-tions it is expected to, New Jersey will likely see continued growth in union efforts to organize workers and increases in overall union membership.
Matthew A. Fontana is a labor and employment partner at Faegre Drinker.
Workers at Ascend Montclair Dispensary have ratified a three-year labor agreement with the Cannabis Engineers Extractors & Distributors Local 420, International Union of Journeymen and Allied Trades. This labor agreement is the dispensary’s first and it covers approximately 22 employees who work at the company’s medical cannabis dispensary in Essex County.
CEED Local 420, IUJAT was established solely to represent cannabis workers in New Jersey. IUJAT is a national labor union dating back to 1874, nearly a decade before the formation of the American Federation of Labor.
The contract includes three annual 3% wage increases that, when compounded, are valued at 9.27% over the life of the contract. It also includes access to a more comprehensive health care plan that decreases copays and deductibles without an increase in overall costs, and a contract wage re-opener contingent on Ascend being awarded any future license for recreational cannabis operations. Workers will earn more paid time-off based on a new seniority schedule, and Ascend budtenders now have a say in their workplace conditions and are just cause employees with access to a grievance procedure and regular contract negotiations.
“CEED Local 420 members are dedicated to ensuring New Jersey’s medical cannabis patients can access safe and quality products. Our budtenders contribute greatly to Ascend’s success and were with us every step of the way at the negotiating table. With annual wage increases, a contract re-opener, and significantly improved benefits for workers and their families, this contract will set a standard not just at Ascend but also for New Jersey’s burgeoning medical cannabis industry,” said Connor Shaw, business agent and legislative director of IUJAT.
“It is crucial that workers in the fast-growing cannabis industry are afforded the protections and benefits of a labor contract and have a say in their workplace conditions,” Shaw said.
When Garden State Dispensary in Woodbridge became the first alternative treatment center in the state to unionize in 2016, employees joined the United Food & Commercial Workers Local 152, recognized as the official cannabis labor union under the AFL-CIO.
Now going into its third collective bargaining agreement with the UFCW, Local 152 Representative Hugh Giordano said there’s “lots of good stuff in [GSD’s agreement]. They get good wages, they get good health care, as the company grows so do their wages. Garden State, I have to give them full credit, they led the way on that.”
GSD was recently acquired by multi-state operator Ayr Wellness, which works with another UFCW local on collective bargaining in Pennsylvania. Another New Jersey ATC, Verano’s Zen Leaf, finalized its collective bargaining agreement with UFCW in February, which at the time made it the state’s second unionized shop.
The right to unionize is baked into the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act as it is in the Jake Honig Compassionate Use Medical Cannabis Act. The law requires each cannabis business licensee to sign a labor peace agreement with a bona fide labor organization, with parties entering into an agreement that the employer will not oppose unionization and the union, if and when it organizes the workforce, agrees to not strike or otherwise stop work.
While the LPA does not guarantee unionization, it creates a clear path toward unionizing, if the employees see fit. It also ensures that, in the case of medicinal cannabis, the supply of medicine to patients will not be upset by pickets outside their ATCs.
“This principle is importantly reflected in the awards given out on Oct. 15. Of the many things that the CRC asked winners to confirm was that they successfully maintained the LPA, and they [reiterated] that maintenance of that LPA is required for the award,” Foley Hoag LLP Counsel Mike McQueeny explained.
Workers’ rights are included in the laws here in large part, according to McQueeny, because of Giordano. Before legalization, if you found yourself at a city council meeting or legislative hearing with cannabis talks on the table, he was sure to be there there. His advocacy work spanned over a decade.
“When Gov. Corzine signed into law the day before his departure, the UFCW was involved. Even during the Christie administration, which was very an-ti-cannabis, we were talking to medical groups, having these conversations,” Giordano said.
Although the process of unionizing is similar regardless of industry, the cannabis industry is different than, say, cafeteria workers or factory workers in one way: cannabis remains federally illegal, and federally scheduled. These factors presented challenges initially when the UFCW moved to represent cannabis workers, though Giordano said things are much easier now.
“When there were no laws in the state level, you had to go to the federal level. And that was hard because you had attorneys saying, ‘I don’t know if I can represent that client,’ and the National Labor Relations Board didn’t know what to do. It was a problem. It held back the ability for workers to get their day in court be-cause of this issue or that issue. Companies loved it because they used postponement to hold off unionization in a sense, but it’s gotten better. The NLRB put an advisory out saying that they do cover cannabis workers. And now that the state has their laws in place, it makes it that much easier,” he said.
“LPAs make it that much easier,” he added. “If the workers choose to do it, it gets done. It’s not held up with some frivolous claim at the federal level. Where the law is weak on the federal level, it takes state leadership to fill in. New Jersey has done that, with labor peace agreements and project labor agreements [for contrac-tors].”
We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. By clicking “Accept”, you consent to the use of ALL the cookies.
This website uses cookies to improve your experience while you navigate through the website. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. We also use third-party cookies that help us analyze and understand how you use this website. These cookies will be stored in your browser only with your consent. You also have the option to opt-out of these cookies. But opting out of some of these cookies may have an effect on your browsing experience.
Necessary cookies are absolutely essential for the website to function properly. This category only includes cookies that ensures basic functionalities and security features of the website. These cookies do not store any personal information.
Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. It is mandatory to procure user consent prior to running these cookies on your website.
Sign In
Free Newsletter
