Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about the changing union landscape. Our guest is Cristina Gallo, a partner at Cohen, Weiss and Simon.
Unions are creeping into new industries, the National Labor Relations Board is increasingly favoring workers’ rights, and some companies are fighting more aggressively once organization efforts start.
Having grown up in a union family and worked as a campaigner before she was a lawyer, Gallo has been in the trenches for much of her life. Today she is outside counsel for Workers United, the union representing Starbucks employees.
In this interview, she explains the changing role of social media in organizing, the strategies Starbucks has used against organizers, and her own personal passion for workers’ rights. The supplemental materials and episode transcript are available below.
Cristina Gallo’s Cohen, Weiss and Simon profile
12:13 | Shierholz, H., Poydock, M., & McNicholas, C. (2023, January 19). Unionization increased by 200,000 in 2022. Economic Policy Institute.
I. SOCIAL MEDIA, CORPORATE IMAGES AND LEVERAGE
Matt Crossman, Host: You have a long history in labor, both personally and professionally. Let’s start there because I think your background is important on this topic. Did you grow up in a union family?
Cristina Gallo: I did, in fact, grow up in a union family. My sister has been an organizer for approximately 30 years. And my grandparents on one side were union members and activists in their unions.
MC: What is your role representing the union for Starbucks workers?
CG: I am outside counsel at Cohen, Weiss and Simon for the union Workers United, which is the union that is undertaking to represent Starbucks workers and leading the Starbucks Workers United campaign. In that role, we help to organize new shops, deal with the National Labor Relations Board representation election process and handle all of the litigation that has ensued from those representation elections.
That has quieted down a little bit. We’ve moved into dealing with a lot of the alleged unfair labor practice charges against the company. Those are also with the National Labor Relations Board. And then we provide advice and counsel to the organizers who are day-to-day managing this nascent relationship with Starbucks and attempting to bargain first contracts.
MC: Unions have been in the news a lot in the last few years. What have you learned from this experience that other labor attorneys and HR executives need to know?
CG: I think this particular campaign is something folks in the industry should be paying attention to, and I think that is part of the reason that it’s generated so much news coverage.
This is a service-sector employer, which is an area of the economy that’s been historically difficult to organize and has low union density, so that’s noteworthy. It has a very young workforce. Young folks are known to have more favorable attitudes toward unionization than those in older generations. What I think is also significant about this campaign is the influence and the function of social media as part of the organizing.
Even though social media has been a part of campaigns in the past, what was interesting here is that the social media coverage and use of social media actually drove the further unionization, so it sparked more interest. It sparked more campaigns. It allowed the campaign to spread organically in a way that folks in the industry should pay attention to.
The employer, Starbucks, has attempted to, over the course of time, have a progressive branding and image that I think has been a liability to it in the organizing campaign. I think that employees are pretty attuned to a mismatch between a branding ethos and a marketing message and conditions on the ground that they face.
MC: You brought up a couple things I want to follow up on. The first one is social media and the ability to report things that didn’t used to get reported. It seems like it helps both in the wider world that somebody who’s not necessarily working for Starbucks will become aware of what’s happening, but also is it a way for Starbucks employees who might want to join the union to find out what’s going on in a way they couldn’t find out before?
CG: Yes, definitely. It’s helped in both respects. It helps generate public interest, enthusiasm and support for the campaign among members of the public and potentially members of the public who historically may not have been attuned to a union campaign.
But I think what’s very notable in this case, it facilitates the ability of workers who have not yet been approached by a union organizer to say, “hey, wait, we’re part of something, too. We can do this here, too, and we can start the momentum right here ourselves” and reach out affirmatively to the union.
Historically in campaigns, it’s not that the union has always been the seed. Oftentimes workers do come to the union, but in this particular case, there were a lot of different workers and a lot of places coming to the union.
MC: Corporate social responsibility and ESG are much more prominent now than they used to be. I wonder if from your perspective, that is a good point of leverage that organizers can use as a pressure point for Starbucks to say, “Hey, you have this progressive image, but the way that you’re treating the workers doesn’t line up with that.”
And so you can use that to almost guilt them or shame them into cooperating more. Is that true?
CG: I think that’s an accurate characterization of the way that the image can be used, that there are aspects of a progressive image or a socially responsible image that scrutiny may prove not to be as up-and-up as they’ve been projected to be.
I was a campaigner in the labor movement before I was a lawyer. From a campaigner’s perspective, there are going to be many potential areas where you can say the company projects, for example, a clean, environmentally conscious position. And yet you look at their supply chain, and that’s not what you see. The company projects an embrace of diversity, but when you look under the surface, that’s not what you see.
So there could be any number of ways in which the reputation that they’ve attempted to espouse can be interrogated.
II. USING ALL OF THE AVAILABLE TOOLS
MC: What area were you a campaigner in? What area of work?
CG: I worked for Unite Here as a researcher and strategic campaigner in specific industries that the union was active in. I worked in campaigns in the laundry and apparel distribution sectors, and also in government uniforms for the military.
MC: How did that prepare you for what you’re doing now?
CG: It gave me a perspective on the politics and the political economy of our work and what forces shape our work and what constraints we operate under.
From a legal perspective, it’s helped me to understand the importance of organizers and the importance of campaigners as part of a synergistic and holistic campaign, of which legal is just simply one piece. And it has allowed me to really understand that it is a tool in the toolkit, it is not a means or an end itself.
MC: Speaking of this Starbucks case in particular, what has been the most challenging part?
CG: Probably the volume. There have been a lot of different shops. In my particular case, we’ve been mostly focused on Connecticut, New Jersey and New York area stores. There’s the sheer number of stores, and then there’s the degree to which the employer has heavily litigated various stages of the campaign.
So we’ve really had to dust off our National Labor Relations Board rules and regulations and playbook. From a lawyer’s perspective, we’ve really had to push a lot more paper than I think has often been the case in campaigns. And push a lot more paper at the same time - a lot of filings, a lot of motions, a lot of oppositions to motions. Things that have come up before but just haven’t come up before with such frequency.
MC: What does that tell other labor attorneys and HR executives about the distinctiveness of this case?
CG: I think that we are going to see more use of the NLRB procedure potentially than we have seen before. I don’t say that as a speculation. I actually did hear from a board agent who I’ve been working with on a Starbucks case. The board agent of the NLRB said that other employers have started to replicate some of the same motion practice tactics that Starbucks has used in its cases. So people are paying attention to what strategies have been employed.
And I think that at least for the near term, we’re going to see more of this kind of conduct on the part of the employer’s lawyers.
MC: What is a good counter strategy for the labor side?
CG: Well, the counter strategy is never to rely exclusively on lawyers to save the day. And I think that is really one of the things that’s really wonderful about this campaign and the Starbucks Workers United campaign is how aggressively the workers have themselves been engaged in on the ground, direct action.
There’s been real mobilization on the part of the workers because none of these campaigns can be won with one tool alone. So like I said, where the legal is one tool, the ground activity and worker mobilization is another tool. And then there’s a third tool that I think is generally an important ingredient, which is the corporate and research strategic element.
Of course I may be a little biased because that’s where I started out. But I am firmly convinced that lawyers can’t do it alone.
MC: Starbucks is just one of many high-profile new unions. I want to read some stats to you from the Economic Policy Institute. Between October, 2021 and September, 2022. The NLRB saw a 53% increase in union election petitions. That’s the biggest increase going back to the mid-teens. From your perspective, what is driving that growth that other labor attorneys and HR executives need to know?
CG: Some of this I think is speculative, but I will add my thoughts on this, which is that we are seeing a cyclical uptick.
I think there are some macroeconomic factors at work. One is the true growth of income disparity in this country. So I think what’s really catching up to the American workforce is the inability to build wealth just simply through earnings, through work, but also through, for instance, real estate, things of that nature. So you have a whole new generation of people that feel economically insecure in a way that their predecessors and older generations may not have felt.
So I think that’s a macro-economic factor. And then there’s covid. I think that being a service sector worker is very much colored by the covid pandemic and by the really difficult working conditions that they experienced during that time.
And I think that is a factor that motivates workers and emboldens workers in a way that they’re not emboldened to take action when there are higher rates of unemployment. We’re in a full employment economy where workers feel insecure. That is a contradiction but also kind of a perfect storm of conditions.
We feel like if we lose our jobs because we fought in a union campaign, which is something that people take into consideration when they decide whether or not they want to be part of one, we’ll get another job. But if we stay at this job, there’s not much benefit for us because this job is a job where wages don’t increase and there’s no retirement benefits, medical benefits may be non-existent or inordinately expensive.
III. BARRIERS TO ENTRY
MC: I wanted to read another quote from that Economic Policy Institute report. After laying out the growth in unions, the report said this: “There is further evidence that many more workers would like to form a union but face barriers to doing so.” What are some of those barriers?
CG: There’s barriers built into the process, very specifically the unionization election process, and there have been attempts to really streamline it and expedite it in a way that will allow workers to get to their vote sooner. And the reason that matters is because the employer has a lot of opportunity in the course of the campaign to talk to workers about why they shouldn’t want to unionize and why the employer thinks they shouldn’t want to unionize.
And I think that is a distinct barrier—the ability of the employer to speak to workers and the access the employer has to workers. Now there are attempts on the part of the National Labor Relations Board General Counsel (Jennifer Abruzzo) to push back on that, but that is a long-standing interpretation of the Act - that the employers have a lot of latitude to talk to their employees.
They file the campaign. Time passes, they get to a vote, hopefully not more than two months later. But right now the employers are able to really capitalize on the understaffing of the board and their slow processes to basically push things out in a way that they wouldn’t be able to do if the board had more staff.
Let’s say the union succeeds. Then they have the often very long first contract fight, which is a huge deterrent. So I think the statistics would say that it’s not uncommon for there to be a year between an election victory and finally a negotiation of a first contract.
They’ve had to spend nights, they’ve had to spend weekends, they’ve lost sleep dealing with this long struggle, and I think that that is a huge deterrent.
MC: I imagine that would be a reason why service industry jobs are less frequently represented by unions. You don’t get a job at Starbucks and stay there for 10 years. It’s not like getting a job at a Ford plant in Detroit where there’s some expectation that’s going to be a long-term job. Is there a way to overcome that, or is that going to be baked in all the time?
CG: There’s a little bit of a chicken-and-egg consideration there, right? Because why were people treating those UAW jobs as jobs that they might stay for a long time? Part of it was because they were jobs that were unionized, where there was increasing earnings over time, pension contributions and significant benefits to sticking around.
The American workforce, generally speaking, is more migratory than it has been in the past. And some of that is because of the interest in job-shopping, to try to get to better terms and conditions, and the lack of incentive to stay in any particular place.
MC: I’ve read a lot about the perceived shift in the NLRB becoming more worker friendly. Do you buy that, and what do you see on the ground?
CG: Yes, I definitely believe that the folks who are on the board right now are deeply committed to workers’ rights and to the ability to organize. However, they can only make change so fast.
They have cases that come before them, and it takes time for a case that could potentially change the law to better reflect the whole intent of the National Labor Relations Act. They can only act as fast as those cases come before them. And those cases don’t necessarily come on that quickly.
And so there is an urgency on the part of practitioners on this side to say is there anything more that we can do to change the law the way we think it needs to be changed?
MC: What is the answer to that question you asked? Is there anything more that labor attorneys can do to expedite the process?
CG: Well, it’s somewhat of a rhetorical question, but I think it really specifically just means that we’re encouraging one another to be mindful if there are cases that we want to attempt to bring forth, if there are issues that we want to get before the board, we can have a case that raises the particular question.
IV. WHEN YOUR JOB AND PERSONAL PASSIONS MEET
MC: Now I want to pivot and ask you professional development questions. You went to Brown University and majored in Africana studies. How did you go from that to being a labor attorney?
CG: I see a pretty direct line from my academic work as an undergraduate in Africana Studies to being an advocate on behalf of workers’ rights.
The reason I gravitated toward Africana studies is because I felt, and I still feel, that it is extremely important in order to understand the history of this country that you have to look at it through the lens of slavery and racism, which I think is really the bedrock of this country.
The way I ended up actually gravitating towards the labor movement, in addition to the family connection that I mentioned earlier, is because I started working with prisoners when I was an undergraduate.
I was particularly interested in some sort of academic study of incarceration. I ran a volunteer program that did art workshops and education content with women prisoners in Rhode Island. And it was through that work and through the interaction with the women who were incarcerated that I came to see the sort of lack of attachment to the workforce and the lack of employment stability that many prisoners face.
And I began to see a need for good jobs, and good jobs as essentially a preemptive strike against incarceration. I began to see economic justice as a really important ingredient to a bigger picture, and a bigger fight for social and racial justice.
MC: You had five years between undergrad and law school. Do you recommend that break, or do you wish you had gone right to law school?
CG: Yeah, I definitely recommend the break. Law school’s grueling, and so I do think you really want to know that that’s what you want to do before you do it.
It’s not only grueling, it’s also, generally speaking, very expensive and getting increasingly expensive. So you have the question of your time and the opportunity cost of having gone to law school, but also $300,000 worth of debt that you’ve accumulated that’s now going to hang on you for any number of years to come. So you really want to be certain that that’s what you want to do.
I think that having been in the workplace is a big advantage going into law school. You have kind of a framework of how the law operates in the world and a little bit more exposure to the day-to-day of the workplace, which of course you’re going to become a part of after you graduate. And you have gotten an experience of being a worker, being a professional potentially beforehand, which I think is just helpful to starting out in a profession that is a little bit image conscious and sort of formality minded.
MC: What challenges have you faced in pursuing a career in an area that you’re passionate about? The old cliche is, don’t meet your heroes. Have you had any struggles actually working in the field that you’re so passionate about?
CG: I think there’s been a couple of different struggles, and one is to your point about being idealistic and passionate. There are not as many jobs on this side of the aisle as there are on the other side.
And I don’t just mean labor law versus employment law. I mean that if you want to work in social justice and economic justice and racial justice, there are less jobs out there to really do that work.
I think that a challenge that I’ve experienced is being a woman and being a younger woman, relatively speaking, in a very male-dominated field of labor law specifically. I think employment law is a little less male dominated, but I think labor law is more so and I think it is something that I’ve had to contend with. It’s something that I’m mindful of.
It may be more of a challenge psychologically than it is really in practice, but I think it’s important when you’re going into this work to have fortitude.
Fortitude is the belief that you belong in the room and that your voice is valuable, and that even though the person on the other side of the table has 30 years more experience doing this work than you do, that you still know what you’re talking about.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on May 4, 2023.
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