They Tried to Start a Union During a Pandemic, But They Were Fired. What’s Next?

Abismael Colon, a server at an Outback Steakhouse in the Orlando International Airport, was ready to unionize his workplace. For almost nine years, Colon had served countless Bloomin’ Onions and trained new hires despite what he describes as verbal insults and a daily fear that he’d be fired without cause by his superiors. This particular Outback Steakhouse was operated by HMSHost, an airport and highway food service company. Together with the hospitality-industry union Unite Here, the veteran employee and his colleagues helped garner majority support of about 800 workers at the airport’s other HMSHost-operated restaurants, such as Chili’s and Starbucks, with an election slated for late March to determine whether the union would officially represent the staff.

But Colon’s hopes for union representation took a heavy blow once the novel coronavirus hit Florida. The National Labor Relations Board delayed all elections a week before the HMSHost vote due to the pandemic. Once the Tampa regional branch reopened and announced it was accepting mail-in ballots, the company successfully moved to block the option and pushed for in-person voting, further dragging out the union campaign. More than three months later, Colon, like many of his now-furloughed colleagues, is without a paycheck, without health insurance, and without any job security.

“By them delaying the union and getting ourselves into a contract or negotiating, right now, we don’t have a guarantee to go back to work,” Colon says. “So employees are angry. They’re like, ‘Hey, when are we gonna get this vote?’ because they want their jobs back.”

Amid a growing wave of worker activism across the food industry, employees and contractors at restaurant chains and delivery apps alike have found themselves banding together to improve workplace conditions. In 2012, the Fight for $ 15 movement began to push nationally for a $ 15 minimum wage and union representation for fast-food workers, and in the years since, Gimme Coffee baristas in upstate New York have voted in favor of unionization, followed by employees at Portland branches of the fast-food chain Burgerville and Tartine locations in the Bay Area, as well as a group of Instacart workers in Skokie, Illinois.

More recently, as the coronavirus spurred citywide business shutdowns, grocery store and restaurant workers were deemed “essential” in ensuring communities’ access to food and supplies. This led to some crisis-born benefits like pay raises and improved sick leave options at chains like Starbucks, where employees were given a temporary $ 3 per hour pay bump along with extended catastrophe pay. Other workers, however, saw their temporary wage increases and new workplace safety measures only through strikes and sickouts: After hundreds of workers at Kroger’s Delta Distribution Center in Memphis briefly stopped fulfilling orders in late March, the company granted all its employees temporary $ 2 per hour hazard pay and increased protections, like plexiglass protecting workers at the cash register.

But even as low-wage workers across the industry have gained these handfuls of new financial and health perks, some say companies have wielded the ongoing public health crisis as a tool for cracking down on union and worker organizing. On July 5, California-based Augie’s Coffee laid off its baristas and closed its retail operations indefinitely so as not “to risk the health and safety of our staff.” The timing was roughly a week and a half after employees informed management of their intent to unionize and asked for recognition, according the Augie’s Union; many of the company’s stores had continued service throughout the pandemic, even after Los Angeles County reported its first death. Whole Foods, which, according to a Business Insider report, has been using a heat map to monitor potential unionization activity, fired an employee who had been tracking the number of COVID-19 cases at Whole Foods locations; the company told Motherboard that the employee’s firing was not retaliatory and that she had violated company policies. And after Trader Joe’s workers began organizing earlier this year, in March, an employee who helped start a non-management-staff Facebook group to discuss coronavirus safety and health concerns was similarly fired. A Trader Joe’s spokesperson also said the firing was not retaliatory.

“The Trump [National Labor Relations] Board has made some changes to the rules, and employers feel they have a real friend in the Trump Board,” says Kate Bronfenbrenner, director of labor education research at Cornell University. “So they’re acting with even more impunity.”

On March 20, employees at the downtown Portland, Oregon, location of the nationally expanding chain Voodoo Doughnut delivered a letter to management announcing that they had formed a union with the International Workers of the World. Even before holding an official union election, the newly formed Voodoo Doughnut Workers Union demanded higher wages and increased safety protections for staff, and severance packages for the branch’s roughly 30 employees laid off because of the pandemic.

Workers said they were told their unemployment would be temporary, and that the company would rehire workers once the social and economic climates stabilized. But this past June, the workers’ union accused the company of using the layoffs to “clean house” and hire new, non-unionized employees through Snagajob. Under overcast skies and the watch of pastry-hungry customers, workers picketed outside of the chain’s Old Town location, holding signs that read “Stop Union Busting” and “Don’t Throw Us Out Like Day Old Donuts.”

“It absolutely was a shock to many of us how the company has treated us,” says Samantha Bryce, a Voodoo Doughnut Workers Union representative. “Really what we want is recognition and we want our jobs back.” The workers’ union said that it had filed 29 charges against the company with the NLRB.

In response to questions regarding the allegations of discriminating against union workers in rehiring, Audrey Lincoff, a Voodoo Doughnut spokesperson, said in a statement to Eater: “Like all affected businesses during the COVID-19 pandemic, Voodoo Doughnut continues to rehire and hire as the business needs dictate.”

Since the establishment of the Wagner Act in 1935, private-sector workers have been legally guaranteed the right to organize workplace unions and collectively bargain. But according to a 2019 report by the Economic Policy Institute (EPI), a left-leaning think tank, more than 41 percent of employers were found to have violated the federal law in union election campaigns. According to Celine McNicholas, labor counsel for the EPI and co-author of the report, part of the reason companies feel secure in breaking the law by firing workers or threatening to discipline them for organizing a union is that the enforcement of the law is lax, cases brought by unfairly discharged workers can drag on for years, and the penalties to many employers — rehiring the employee plus back pay, which deducts any income they earned from another job — are a slap on the wrist compared to having to deal with a more expensive and protected workforce.

“Even if it’s patently illegal under the NLRB, with the particular way it’s being enforced in this administration, employers are able to bend and break the law with relative impunity in really egregious cases,” McNicholas says, adding that there are “not adequate remedies and enforcement methods to make it scary enough for employers not to do it.”

Employees at HMSHost-operated restaurants at Orlando International Airport have been campaigning for a union since last year, and the company has taken steps in an apparent aim to stifle the union drive — and use the coronavirus as pretext to ensure its success. (HMSHost did not respond to a request for comment.)

According to restaurant workers, HMSHost hired a labor relations consulting firm and hosted captive audience meetings starting in February. In a tiny room at the airport, consultants lectured groups of employees with anti-union talking points, even when the Centers for Disease Control and Prevention began to recommend early social-distancing methods. As staff members began to face furloughs, Colon says an assistant manager informed him and other workers that the general manager was planning to bring back only non-union workers. And the company stymied election proceedings by arguing against a mail-in-ballot election to the National Labor Relations Board, as employees wanted to avoid congregating for in-person voting while coronavirus cases surged in Florida.

With a successful vote in favor of a union, HMSHost would be legally required to bargain with employees’ union representatives and sign a contract. Along with higher wages, health benefits, and workplace safety provisions, union representatives could also push for an agreement that includes recall guarantees and a fair recall system. But as of now, there is no election date in sight: According to emails between company and union lawyers, HMSHost’s latest holdup is arguing to the National Labor Relations Board that furloughed workers — roughly 90 percent of the company’s airport restaurant staff — shouldn’t be allowed to vote in the union election. And lately, some workers are worrying that their campaign could lose steam.

“I have coworkers who have kids,” says Rosanny Tejeda, a furloughed barista at an HMSHost-operated Starbucks. “The unemployment benefits aren’t going to last forever, and for a big family it might not be enough. They might give up on waiting and find themselves another job.”

American companies have exploited chaotic climates to undermine workers’ organizing efforts before. In an interview with the New York Times, the Georgetown University labor historian Joseph McCartin said that during the 1918 flu pandemic, steel plants and industrial companies managed to sway local officials to ban union meetings and frustrate organizing campaigns, the rationale being that they were breeding grounds for disease transmission. During the Great Depression, he added, employers often targeted union workers for layoffs.

But now, even employees who are simply organizing for safe working conditions and hazard pay during the pandemic are coming under fire from their superiors. Louisville, Kentucky, Trader Joe’s employee Kris King was among those fired after starting a Facebook group to discuss workplace health and safety concerns. On March 31, shortly after King was fired, Trader Joe’s chairman and CEO, Dan Bane, sent a letter to company employees, writing that “a host of union campaigns have been launched that seek to capitalize on the current unstable environment in America.”

“I think they’re just afraid of a larger voice and losing control of their employees,” King says. He adds that although the company manages to keep most of its employees content during normal times, “when more is at stake and people want to step up and be vocal together, they don’t want to lose control of the dynamic.”

In April, Kenya Friend-Daniel, a spokesperson for Trader Joe’s, wrote in an email to Eater regarding King’s firing: “I can tell you we did not end his employment due to a desire to unionize, set up a social media page or express concerns, nor would we do so with any other Crew Member.”

For McNicholas, the labor counsel at the EPI, there is a potential silver lining in this moment. Food industry workers who have continued to supply everyone from the newly unemployed to people working from home with basic necessities and comforts are shedding light on their treatment by companies, whether it’s by demanding union recognition or the extension of hazard pay and more hand sanitizing stations. In turn, they’re gaining community support, and more importantly, an increased desire to hold companies accountable.

“There has been a backlash, and the more these stories are told, that comes together for the perfect storm where you have a new administration with demands put on it by working people,” she says, “and those become priority for new administration, changes for the way we work, and then growth for the union movement.”

Matthew Sedacca is a writer living in Brooklyn.

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