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    Labor Agency Seeks Broad Order Against Starbucks in Federal Court

    Federal labor regulators have asked a court to force Starbucks to stop what they say is extensive illegal activity in response to a nationwide campaign in which workers at more than 150 corporate-owned stores have voted to unionize.In a petition filed Tuesday with U.S. District Court in Buffalo, officials with the National Labor Relations Board accused the company of firing and disciplining union supporters; intimidating and threatening workers to discourage them from voting for the union; and effectively offering benefits to workers if they opposed the union.The agency is also seeking the reinstatement of seven Buffalo-area employees whom, it said, Starbucks had illegally forced out in retaliation for their union-organizing activities, and an order effectively recognizing the union in a Buffalo-area store where the union lost a vote despite strong initial support.The agency said in its filings that the court’s intervention was necessary to stop Starbucks’s “virulent, widespread and well-orchestrated response to employees’ protected organizing efforts” and that without the proposed remedies, Starbucks would “accomplish its unlawful objective of chilling union support, both in Buffalo and nationwide.”Reggie Borges, a Starbucks spokesman, rejected the accusations. “As we have said previously, we believe these claims are false and will be prepared to defend our case,” Mr. Borges wrote in an email.Matt Bodie, a former lawyer for the labor board who teaches labor law at St. Louis University, said it was not unusual for the agency to seek reinstatement of ousted workers. But he said the nationwide breadth of the injunction the agency was seeking was far less common, as was the request for the court to order recognition of a union at a store where the union initially lost its election.“It’s a big step in line with the Biden board’s commitment to a more rigorous and aggressive approach to labor law enforcement,” Mr. Bodie wrote in an email.The labor board has already issued more than 30 formal complaints finding merit in allegations similar to the ones it cataloged in its petition on Tuesday. It typically takes months or years to adjudicate such complaints, and the board asserted that allowing the process to run its course while the company continued to break the law would “cement this chill and nullify the impact of a final remedy.”The agency said that unlawful anti-union activity had begun shortly after workers in Buffalo went public with their union campaign in late August, and that it had escalated after two Buffalo-area stores won union votes in December. It said Starbucks had forced out several union supporters for violating rules that the company had not previously enforced.The company “quickly jettisoned its past practices to target union supporters more effectively,” the labor board wrote.A federal judge recently denied the labor board’s request to reinstate pro-union workers it said Starbucks had unlawfully forced out in a similar, if narrower, case in Arizona.The judge found that in the case of two workers, there was not evidence of retaliation for union activities, or the evidence was “inconsistent” with the accusations.In the case of a third worker, the judge found that both sides had arguments supporting their positions and that an administrative proceeding might ultimately show that Starbucks sought to retaliate over the worker’s union activities. But the judge concluded that Starbucks would have fired the worker even absent her union involvement. More

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    NLRB Finds Merit in Union Accusations Against Amazon and Starbucks

    In a sign that federal labor officials are closely scrutinizing management behavior during union campaigns, the National Labor Relations Board said Friday that it had found merit in accusations that Amazon and Starbucks had violated labor law.At Amazon, the labor board found merit to charges that the company had required workers to attend anti-union meetings at a vast Staten Island warehouse where the Amazon Labor Union won a stunning election victory last month. The determination was communicated to the union Friday by an attorney for the labor board’s regional office in Brooklyn, according to Seth Goldstein, a lawyer representing the union.Such meetings, often known as “captive audience” meetings, are legal under current labor board precedent. But last month, the board’s general counsel, Jennifer Abruzzo, issued a memo saying that the precedent was at odds with the underlying federal statute, and she indicated that she would seek to challenge it.In the same filing of charges, the Amazon Labor Union accused the company of threatening to withhold benefits from employees if they voted to unionize, and of inaccurately indicating to employees that they could be fired if the warehouse were to unionize and they failed to pay union dues. The labor board also found merit to these accusations, according to an email from the attorney at the regional office, Matt Jackson.Mr. Jackson said the agency would soon issue a complaint reflecting those accusations unless Amazon settled the case. The complaint would be litigated before an administrative law judge, whose decision could be appealed to the labor board in Washington.Understand the Unionization Efforts at AmazonBeating Amazon: A homegrown, low-budget push to unionize at a Staten Island warehouse led to a historic labor victory. (Workers at another nearby Amazon facility rejected joining a similar effort shortly after.)Retaliation: Weeks after the landmark win, Amazon fired several managers in Staten Island. Some see it as retaliation for their involvement in the unionization efforts.A New Playbook: The success of the Amazon union’s independent drive has organized labor asking whether it should take more of a back seat.Amazon’s Approach: The company has countered unionization efforts with mandatory “training” sessions that carry clear anti-union messages.Mr. Goldstein applauded Ms. Abruzzo and the regional office for taking “decisive steps ending required captive audience meetings” and said the right to unionize “will be protected by ending Amazon’s inherently coercive work practices.”Kelly Nantel, an Amazon spokeswoman, said in a statement that “these allegations are false and we look forward to showing that through the process.”At Starbucks, where the union has won initial votes at more than 50 stores since December, the labor board issued a complaint Friday over a series of charges the union filed, most of them in February, accusing the company of illegal behavior. Those accusations include firing employees in retaliation for supporting the union; threatening employees’ ability to receive new benefits if they choose to unionize; requiring workers to be available for a minimum number of hours to remain employed at a unionized store without bargaining over the change, as a way to force out at least one union supporter; and effectively promising benefits to workers if they decide not to unionize.In addition to those allegations, the labor board found merit to accusations that the company intimidated workers by closing Buffalo-area stores and engaging in surveillance of workers while they were on the job. All of those actions would be illegal.In a statement, Starbucks Workers United, the branch of the union representing workers there, said that the finding “confirms the extent and depravity of Starbucks’s conduct in Western New York for the better part of a year.” It added: “Starbucks will be held accountable for the union-busting minefield they forced workers to walk through in fighting for their right to organize.”Starbucks said in a statement that the complaint doesn’t constitute a judgment by the labor board, adding, “We believe the allegations contained in the complaint are false, and we look forward to presenting our evidence when the allegations are adjudicated.” More

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    How a Dollar General Employee Went Viral on TikTok

    Mary Gundel loved managing a store in Tampa, Fla. But when she detailed its challenges on social media, the company — and fellow employees — took notice.In January 2021, Mary Gundel received a letter from Dollar General’s corporate office congratulating her for being one of the company’s top-performing employees. In honor of her hard work and dedication, the company gave Ms. Gundel a lapel pin that read, “DG: Top 5%.”“Wear it proudly,” the letter said.Ms. Gundel did just that, affixing the pin to her black-and-yellow Dollar General uniform, next to her name badge. “I wanted the world to see it,” she said.Ms. Gundel loved her job managing the Dollar General store in Tampa, Fla. It was fast-paced, unpredictable and even exciting. She especially liked the challenge of calming down belligerent customers and pursuing shoplifters. She earned about $51,000 a year, far more than the median income in Tampa.But the job had its challenges, too: Delivery trucks that would show up unannounced, leaving boxes piled up in the aisles because there weren’t enough workers to unpack them. Days spent running the store for long stretches by herself because the company allotted only so many hours for other employees to work. Cranky customers complaining about out of stock items.So on the morning of March 28, in between running the register and putting tags on clothing, Ms. Gundel, 33, propped up her iPhone and hit record.The result was a six-part critique, “Retail Store Manager Life,” in which Ms. Gundel laid bare the working conditions inside the fast-growing retail chain, with stores that are a common sight in rural areas. “Me talking out about this is actually kind of bad,” Ms. Gundel said as she looked into her camera. “Technically, I could get into a lot of trouble.”But she added: “Whatever happens, happens. Something needs to be said, and there needs to be some changes, or they are probably going to end up losing a lot of people.”Her videos, which she posted on TikTok, went viral, including one that has been viewed 1.8 million times.

    @alwaysmrsgundel #corperateslavery #retail #dobetter #storemanagerlife #storemanagerlife ♬ original sound – ❤️AlwaysMrs.Gundel❤️ And with that, Ms. Gundel was instantly transformed from a loyal lieutenant in Dollar General management into an outspoken dissident who risked her career to describe working conditions familiar to retail employees across the United States.As Ms. Gundel had predicted, Dollar General soon fired her. She was let go less than a week after posting her first critical video, but not before she inspired other Dollar General store managers, many of them women working in stores in poor areas, to speak out on TikTok.“I am so tired I can’t even talk,” said one woman, who described herself as a 24-year-old store manager but did not give her name. “Give me my life back.”“I’ve been so afraid to post this until now,” another unidentified woman said, as she walked viewers through a Dollar General store while discussing how she was forced to work alone because of labor cuts.“This will be my last day,” she said, citing Ms. Gundel’s videos. “I am not doing this anymore.”In a statement, Dollar General said: “We provide many avenues for our teams to make their voices heard, including our open-door policy and routine engagement surveys. We use this feedback to help us identify and address concerns, improve our workplace and better serve our employees, customers and communities. We are disappointed any time an employee feels that we have not lived up to these goals and we use those situations as additional opportunities to listen and learn.“Although we do not agree with all the statements currently being made by Ms. Gundel, we are doing that here.”The store where Ms. Gundel worked. “You can only feel unappreciated for so long,” she said in an interview.Todd Anderson for The New York TimesBefore March 28, Ms. Gundel’s TikTok page was a mix of posts about hair extensions and her recent dental surgery. Now it is a daily digest dedicated to fomenting revolt at a major American company. She’s trying to build what she calls a “movement” of workers who feel overworked and disrespected and is encouraging Dollar General employees to form a union.Just about every day, Ms. Gundel announces on TikTok a newly “elected spokesperson” — each one a woman who works for Dollar General or worked there recently — from Arkansas, Ohio, Tennessee, West Virginia and other places. These women have been assigned to answer questions and concerns from fellow employees in those states and most are keeping their identities hidden because they worry about losing their jobs.Social media not only gives workers a platform to vent and connect with one another, it empowers rank-and-file workers like Ms. Gundel to become labor leaders in the postpandemic workplace. Ms. Gundel’s viral videos appeared as Christian Smalls, an Amazon warehouse employee on Staten Island who was derided by the company as “not smart or articulate,” organized the first major union in Amazon history last month.Ms. Gundel — who often dyes her hair pink and purple and has long painted nails that she uses to slice open packaging at work — has been able to break through, it seems, because other workers see themselves in her.“Everyone has their breaking point,” she said in a telephone interview. “You can only feel unappreciated for so long.”Ms. Gundel planned on a long career at Dollar General when she started working in her first store in Georgia three years ago. She has three children, including one who is autistic, and her husband works at a defense contractor. She grew up in Titusville, Fla., near Cape Canaveral. Her mother was a district manager at the Waffle House restaurants. Her grandmother worked in the gift store at the Kennedy Space Center. Ms. Gundel moved to Tampa as a Dollar General store manager in February 2020, just before the pandemic.Two of the awards that Ms. Gundel received from Dollar General.Todd Anderson for The New York TimesTodd Anderson for The New York TimesThe store used to have about 198 hours a week to allocate to a staff of about seven people, she said. But by the end of last month, she had only about 130 hours to allocate, which equated to one full-time employee and one part-time employee fewer than when she started.With not as many hours to give to her staff, Ms. Gundel often had to operate the store on her own for long stretches, typically working six days and up to 60 hours a week with no overtime pay.Ms. Gundel’s protest was prompted by a TikTok video posted by a customer complaining about the disheveled state of a Dollar General store. Ms. Gundel had heard these complaints from her own customers. Why are boxes blocking the aisles? Why aren’t the shelves fully stocked?She understood their frustration. But the blame on employees is misplaced, she said.“Instead of getting mad at the people working there, trying to handle all of their workload, why don’t you say something to the actual big people in the company?” Ms. Gundel said on TikTok. “Why don’t you demand more from the company so they actually start funding the stores to be able to get all this stuff done?”Ms. Gundel soon tapped into a network of fellow employees, some of whom had already gone public about challenges at work. They included Crystal McBride, who worked at a Dollar General in Utah and had made a video that showed her store’s dumpster overflowing with trash that people had deposited there.“Thanks, guys, for adding some more dirty work for me,” Ms. McBride, 37, said in her post.

    @cruiseforkarma #trash #retaillife #GameTok #utah #fyp #putinaticket ♬ original sound – Crystal She said in an interview that Dollar General had fired her earlier this month, and that her manager had warned her about some of her videos. As someone who had walked out of an abusive relationship with “just the clothes on my back” and lost her 11 year-old daughter to cancer in 2018, “I wasn’t afraid of losing my job,” she said. “I was not going to be silenced.”Neither was Ms. Gundel. As her online following grew, she kept posting more videos, many of them increasingly angry.She talked about a customer who had pulled a knife on her and a man who had reached into her car in the store parking lot and tried yanking her through the window.She said the company’s way of avoiding serious issues was to bury them in bureaucracy. “You know what they tell you? ‘Put in a ticket,’” she said.Ms. Gundel started using the hashtag #PutInATicket, which other TikTok users tagged in their own videos.On the night of March 29, Ms. Gundel posted a video, saying her boss had called her that day to discuss her videos. He told her to review the company’s social media policy, she said. She told him that she was well aware of the policy.“I was not specifically told to take my videos down, but it was recommended,” she said in the video. “To save my job and future career and where I want to go.”She closed her eyes for a moment.“I had to respectfully decline” to remove the videos, she said. “I feel like it would be against my morals and integrity to do so.”

    @alwaysmrsgundel #dobetter #retail #corperateslavery #putinaticket #fyp #storemanagerlife #corperateamerica #harrassment #viral ♬ original sound – ❤️AlwaysMrs.Gundel❤️ Ms. Gundel also got a call from one of the senior executives who had sent her the “DG: 5%” pin she had been so proud of. Ms. Gundel insisted on recording the call to protect herself. The executive said she just wanted to talk through Ms. Gundel’s concerns, but didn’t want to be recorded. The call ended politely but quickly.On April 1, Ms. Gundel reported to work at 6 a.m. “Guess what,” she said in a post from outside the store. “I just got fired.”She added, “It’s pretty sad that a store manager or anybody has to go viral on a social media site in order to be listened to, in order to get some help in their store.”Ms. Gundel continues to post videos regularly and recently started driving for Uber and Lyft.While Ms. Gundel’s unionizing effort may be an uphill effort, some people say she has already had an impact. In one recent TikTok video, a woman shopping at a Dollar General in Florida credited Ms. Gundel with forcing the company to spruce up the store she shops in.“Look at the refrigerators — everything’s stacked in there,” the woman said as her camera panned the aisles. “They’ve got toilet paper to the roof, y’all.”“Thank you, Mary, for going viral and holding your ground and standing up to corporate and losing your job, because it wasn’t done in vain,” she said. “I’m proud to go into a Dollar General now, because look at it. Look at it.” More

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    U.S. Tries New Tactic to Protect Workers’ Pay: Antitrust Law

    The Justice Department is using antitrust law to charge employers with colluding to hold down wages. The move adds to a barrage of civil challenges.Antitrust suits have long been part of the federal government’s arsenal to keep corporations from colluding or combining in ways that raise prices and hurt the consumer. Now the government is deploying the same weapon in another cause: protecting workers’ pay.In a first, the Justice Department has brought a series of criminal cases against employers for colluding to suppress wages. The push started in December 2020, under the Trump administration, with an indictment accusing a staffing agency in the Dallas-Fort Worth area of agreeing with rivals to suppress the pay of physical therapists. The department has now filed six criminal cases under the pillar of antitrust law, the Sherman Act, including prosecutions of employers of home health aides, nurses and aerospace engineers.“Labor market collusion dots the entirety of the U.S. economy,” said Doha Mekki, principal deputy assistant attorney general in the department’s antitrust division. “We’ve seen it in sectors across the board.”If the courts are swayed by the government’s arguments, they could drastically alter the relationship between workers and their employers across large swaths of the economy.“The expansion of Sherman Act criminal violations changes the ballgame when it comes to how companies engage with their workers,” noted an analysis by lawyers at White & Case, including J. Mark Gidley, chair of the firm’s global antitrust and competition practice. “Executives and managers could face jail time for proven horizontal wage-fixing conspiracies.” In addition to fines for corporations or individuals, the Sherman Act provides for prison terms of up to 10 years.The Biden administration is also deploying antitrust law in civil cases to shore up workers’ pay. And in another first, the Justice Department filed a lawsuit in November to stop Penguin Random House’s attempt to buy Simon & Schuster on the grounds that the resulting publishing Goliath would have the power to depress advances and royalty payments to authors.The move to block the publishers’ merger “declines to even allege the historically key antitrust harm — increased prices,” the White & Case lawyers argued. It is “emblematic of the Biden administration’s and the new populist antitrust movement’s push to direct the purpose of antitrust away from consumer welfare price effects and towards other social harms.”And yet the Justice Department’s push builds on a rationale for criminal antitrust enforcement articulated since the Obama administration. “Colluding to fix wages is no different than colluding to suppress the prices of auto parts or homes sold at auction,” said Renata Hesse, acting assistant attorney general for antitrust, in November 2016. “Naked wage-fixing or no-poach agreements eliminate competition in the same irredeemable way as per se unlawful price-fixing and customer-allocation agreements do.”The Biden administration has picked up the argument with a vengeance. Last summer, President Biden issued an executive order mandating a “whole of government” effort to promote competition across the economy. Last month, the Treasury Department issued a report on just how anticompetitive labor markets have become.Corporate America is alarmed. “In their minds, everything is an antitrust issue,” said Sean Heather, senior vice president for antitrust at the U.S. Chamber of Commerce. “There is a role for antitrust in labor markets,” he added. “But it is a limited one.”The State of Jobs in the United StatesJob openings and the number of workers voluntarily leaving their positions in the United States remained near record levels in March.March Jobs Report: U.S. employers added 431,000 jobs and the unemployment rate fell to 3.6 percent ​​in the third month of 2022.A Strong Job Market: Data from the Labor Department showed that job openings remained near record levels in February.New Career Paths: For some, the Covid-19 crisis presented an opportunity to change course. Here is how these six people pivoted professionally.Return to the Office: Many companies are loosening Covid safety rules, leaving people to navigate social distancing on their own. Some workers are concerned.The latest criminal indictment, brought in January against owners and managers of four home health care agencies in Portland, Maine, is emblematic of the new approach.According to the indictment, the agencies agreed to keep the wage of health aides at $16 to $17 an hour. They encouraged other agencies to sign on, prosecutors said, and threatened an agency that raised its pay to between $17 and $18.50.The agencies’ margin is essentially the difference between the wage and the reimbursement from the Maine Department of Health and Human Services. In April 2020, the department raised the rate to $26.20 an hour, from $20.52, explicitly to “fund pay raises for approximately 20,000 workers,” according to the indictment.The agencies’ agreement, the indictment said, was “a per se unlawful, and thus unreasonable, restraint of interstate trade and commerce in violation of Section l of the Sherman Act.”That blows directly against the position of the Chamber of Commerce. Last April, it filed a brief in a similar case, opposing the government’s argument against an outpatient medical care facility that agreed with a rival not to solicit each other’s employees. The Justice Department was overstepping, the brief argued, because the company couldn’t know the behavior was “per se” illegal — an outright breach of the law irrespective of its effects — since the government’s argument had not been tested in court.American companies “are entitled to fair notice of what conduct is and is not prohibited by the federal antitrust laws,” it argued. “Because no court has previously held that nonsolicitation agreements are per se illegal, this prosecution falls far short of the fair notice that due process requires.”A federal court in a separate case has since sided with the government’s interpretation. In November, Judge Amos L. Mazzant III of the United States District Court in the Eastern District of Texas denied a motion to dismiss a federal criminal indictment alleging wage-fixing at a staffing company providing physical therapists, agreeing that price fixing would be “per se” illegal and that the defendants had fair warning that their behavior was against the law.But beyond the legal wrangling brought about by the Justice Department’s new approach, there are striking examples of efforts by employers to suppress wages.“I suspect those things are all over the place,” said Ioana Marinescu, an economist at the University of Pennsylvania’s School of Social Policy and Practice, whether it is employers hoarding highly paid computer engineers or chicken plants paying $15 an hour. “The benefits of collusion may not be super large, but if the costs are quite low, why not do it if you can extract profit?”Until recently, over half of all franchise agreements in the United States, at companies including McDonald’s, Jiffy Lube and H&R Block, included provisions barring franchisees from hiring one another’s workers, according to research by the economists Alan B. Krueger and Orley Ashenfelter. Economic analysis has found that suppressing competition for workers, reducing their options, generally means lower wages. After challenges from several state attorneys general, hundreds of companies abandoned the practice.Another study found that 18 percent of workers are under contracts that forbid moving to a competitor. Most are highly skilled and well paid. Employers who invest in their training can plausibly argue that the noncompete clauses protect their investment and prevent workers from taking valuable information to a rival.But such provisions cover 14 percent of less-educated workers and 13 percent of low-wage workers, who receive little or no training and hold no trade secrets. Several states have challenged the provisions in court. Some, including California, Oklahoma and North Dakota, have prohibited their enforcement.Then there is the litigation. There are civil cases from the 1990s: one by the Justice Department against the Utah Society for Healthcare Human Resources Administration and several hospitals in the state that shared wage information about registered nurses and matched one another’s wages, keeping their pay low. Lawsuits filed by nurses in 2006 accusing hospital systems of conspiring to suppress their wages led to multimillion-dollar settlements in Albany and Detroit.In 2007, the Justice Department sued the Arizona Hospital and Healthcare Association for fixing the rates that hospitals paid to nursing agencies for their temporary nurses, putting a cap on their wages. In settling the case, the association agreed to abandon the practice.The pace picked up after a Justice Department lawsuit in 2010 taking aim at no-poaching agreements involving Adobe, Apple, Google, Intel, Intuit, Pixar and later Lucasfilm. The companies settled the case without admitting guilt or paying fines, but Adobe, Apple, Google and Intel paid $415 million to settle a subsequent class-action lawsuit.Since then, lawsuits have been filed across the industrial landscape. Pixar, Disney and Lucasfilm paid $100 million to settle an antitrust challenge to their agreements not to hire one another’s animation engineers. In 2019, 15 “cultural exchange” sponsors designated by the State Department paid $65.5 million to settle a lawsuit claiming, among other things, that they colluded to depress the wages of tens of thousands of au pairs on J-1 visas. Since 2019 Duke University and the University of North Carolina have paid nearly $75 million to settle two antitrust cases over agreements not to recruit each other’s faculty members.This month, Local 32BJ of the Service Employees International Union filed a complaint with the Federal Trade Commission arguing that Planned Companies, one of the largest building services contractors in the Northeast and Mid-Atlantic, illegally forbids its clients to hire its janitors, concierges or security guards either directly or through another firm — locking its workers in.In perhaps the biggest case of all, in 2019 a class action was filed against the American chicken industry, growing to cover some 20 producers responsible for about 90 percent of the poultry market. The complaint accused them of exchanging detailed wage information to fix the wages of about a quarter-million employees, including hourly workers deboning chickens, refrigeration technicians and feed-mill supervisors on a salary.Four of the chicken processors have settled, agreeing to pay tens of millions of dollars. In February, Webber, Meng, Sahl & Company, one of two firms that collected wage data for the poultry companies, settled as well, offering a fairly clear window into the industry’s attempts to suppress wages.In a declaration to the court, part of the settlement agreement, the law firm’s president, Jonathan Meng, said the chicken companies had used the firm “as an unwitting tool to conceal their misconduct.” He offered details about how poultry executives would share detailed wage information. “They wanted to know how much and when their competitors were planning to increase salaries and salary ranges,” he said, because it would allow them “to limit and reduce their salary increases and salary range increases.”Most of the defendants, however, are still contesting the case. They have argued that to prove collusion, the plaintiffs must show that wages across the industry moved in tandem, an argument the court has yet to rule on.Another hurdle is convincing judges that chicken industry workers amount to a specific occupation. If workers deboning chickens could easily leave the poultry industry to work for a better wage at McDonald’s or 7-Eleven, they would have a tougher case to prove that anticompetitive practices by poultry processors caused them direct harm.In pursuing such cases, the government is likely to be challenged by corporate groups every step of the way.Mr. Heather at the Chamber of Commerce, for one, argues that “this narrative that lax antitrust is responsible for income inequality” is wrong. He notes a study sponsored by the chamber showing that corporate concentration is no higher than in 2002 and has been declining since 2007. “The heart of the premise is just flawed,” Mr. Heather said.Moreover, Mr. Heather said, labor markets are already covered by labor laws. “The chamber has an objection to the blending of antitrust and workplace regulation,” he said.Mr. Gidley of White & Case broadly agrees. “It is intriguing to us to see the last 40 years of antitrust law thrown out the window,” he said in an interview. “If antitrust is no longer about low prices but about a clean environment and wages and this, that and the other, it loses its compass.” More

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    NLRB Counsel Calls for Ban on Mandatory Anti-Union Meetings

    The general counsel of the National Labor Relations Board issued a memo on Thursday arguing that the widespread employer practice of requiring workers to attend anti-union meetings is illegal under federal law, even though labor board precedent has allowed it.The general counsel, Jennifer Abruzzo, who enforces federal labor law by prosecuting violations, said her office would soon file a brief in a case before the labor board, which adjudicates such questions, asking the board to reverse its precedent on the meetings.“This license to coerce is an anomaly in labor law, inconsistent with the act’s protection of employees’ free choice,” Ms. Abruzzo said in a statement, referring to the National Labor Relations Act. “I believe that the N.L.R.B. case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language and our congressional mandate.”In recent months, high-profile employers like Amazon and Starbucks, which are facing growing union campaigns, have held hundreds of meetings in which they try to persuade workers not to unionize by arguing that unions are a “third party” that would come between management and workers.Amazon officials and consultants have repeatedly told workers in mandatory meetings that they “could end up with more wages and benefits than they had prior to the union, the same amount that they had or potentially could end up with less,” according to testimony from N.L.R.B. hearings about a union election in Alabama last year.The company spent more than $4 million last year on consultants who took part in such meetings and sought out workers on warehouse floors.But many workers and union officials complain that these claims are highly misleading. Unionized employees typically earn more than similar nonunion employees, and it is highly unusual for compensation to fall as a result of a union contract.Wilma B. Liebman, who headed the labor board under President Barack Obama, said it would probably be sympathetic to Ms. Abruzzo’s argument and could reverse its precedent. But Ms. Liebman said it was unclear what practical effect a reversal would have, since many employees may feel compelled to attend anti-union meetings even if they were no longer mandatory.“Those on the fence may be reluctant not to attend for fear of retaliation or being singled out,” she wrote by email.According to a spokeswoman, the board’s regional offices, which Ms. Abruzzo oversees, are also likely to issue complaints against employers over the meetings. One union, the Retail, Wholesale and Department Store Union, has brought such a case in Bessemer, Ala., where it recently helped organize workers seeking to unionize an Amazon warehouse. A vote count last week showed union supporters narrowly trailing union opponents in that election, but the outcome will hinge on several hundred challenged votes whose status will be determined in the coming weeks.The labor board spokeswoman said the outcome of the board’s “lead” case on the mandatory meetings would bind the other cases. The case is pending but has not been identified. More

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    Amazon Workers on Staten Island Vote to Unionize

    It was a union organizing campaign that few expected to have a chance. A handful of employees at Amazon’s massive warehouse on Staten Island, operating without support from national labor organizations, took on one of the most powerful companies in the world.And, somehow, they won.Workers at the facility voted by a wide margin to form a union, according to results released on Friday, in one of the biggest victories for organized labor in a generation.Employees cast 2,654 votes to be represented by Amazon Labor Union and 2,131 against, giving the union a win by more than 10 percentage points, according to the National Labor Relations Board. More than 8,300 workers at the warehouse, which is the only Amazon fulfillment center in New York City, were eligible to vote.The win on Staten Island comes at a perilous moment for labor unions in the United States, which saw the portion of workers in unions drop last year to 10.3 percent, the lowest rate in decades, despite high demand for workers, pockets of successful labor activity and rising public approval.Critics — including some labor officials — say that traditional unions haven’t spent enough money or shown enough imagination in organizing campaigns and that they have often bet on the wrong fights. Some point to tawdry corruption scandals.The union victory at Amazon, the first at the company in the United States after years of worker activism there, offers an enormous opportunity to change that trajectory and build on recent wins. Many union leaders regard Amazon as an existential threat to labor standards because it touches so many industries and frequently dominates them.Amazon employees waited to vote in the parking lot of the JFK8 fulfillment center last week.DeSean McClinton-Holland for The New York TimesBut the win by a little-known, independent union with few ties to existing groups appears to raise as many questions for the labor movement as it answers: not least, whether there is something fundamentally broken with the traditional bureaucratic union model that can be solved only by replacing it with grass-roots organizations like the one on Staten Island.Amazon is likely to aggressively contest the union’s win. An unsigned statement on its corporate blog said, “We’re disappointed with the outcome of the election in Staten Island because we believe having a direct relationship with the company is best for our employees.”The Staten Island outcome followed what appears likely to be a narrow loss by the Retail, Wholesale and Department Store Union at a large Amazon warehouse in Alabama. The vote is close enough that the results will not be known for several weeks as contested ballots are litigated.The surprising strength shown by unions in both locations most likely means that Amazon will face years of pressure at other company facilities from labor groups and progressive activists working with them. As a recent string of union victories at Starbucks have shown, wins at one location can provide encouragement at others.Amazon hired voraciously over the past two years and now has 1.6 million employees globally. But it has been plagued by high turnover, and the pandemic gave employees a growing sense of power while fueling worries about workplace safety. The Staten Island warehouse, known as JFK8, was the subject of a New York Times investigation last year, which found that it was emblematic of the stresses — including inadvertent firings and sky-high attrition — on workers caused by Amazon’s employment model.“The pandemic has fundamentally changed the labor landscape” by giving workers more leverage with their employers, said John Logan, a professor of labor studies at San Francisco State University. “It’s just a question of whether unions can take advantage of the opportunity that transformation has opened up.”Standing outside the N.L.R.B. office in Brooklyn, where the ballots were tallied, Christian Smalls, a former Amazon employee who started the union, popped a bottle of champagne before a crowd of supporters and press. “To the first Amazon union in American history,” he cheered.Christian Smalls, a former Amazon worker who led union efforts on Staten Island, popped a bottle of champagne before a crowd of supporters and press on Friday.DeSean McClinton-Holland for The New York TimesAmazon said it was evaluating its options, including potentially filing an objection to “inappropriate and undue influence” by the N.L.R.B. for suing Amazon in federal court last month.In that case, the N.L.R.B. asked a judge to force Amazon to swiftly rectify “flagrant unfair labor practices” it said took place when Amazon fired a worker who became involved with the union. Amazon argued in court that the labor board abandoned “the neutrality of their office” by filing the injunction just before the election.Amazon would need to prove that any claims of undue influence undermined the so-called laboratory conditions necessary for a fair election, said Wilma B. Liebman, the chair of the N.L.R.B. under President Barack Obama.President Biden was “glad to see workers ensure their voices are heard” at the Amazon facility, Jen Psaki, the White House press secretary, told reporters. “He believes firmly that every worker in every state must have a free and fair choice to join a union,” she said.The near-term question facing the labor movement and other progressive groups is the extent to which they will help the upstart Amazon Labor Union withstand potential challenges to the result and negotiate a first contract, such as by providing resources and legal talent.“The company will appeal, drag it out — it’s going to be an ongoing fight,” said Gene Bruskin, a longtime organizer who helped notch one of labor’s last victories on this scale, at a Smithfield meat-processing plant in 2008, and has informally advised the Staten Island workers. “The labor movement has to figure out how to support them.”Sean O’Brien, the new president of the 1.3 million-member International Brotherhood of Teamsters, said in an interview on Thursday that the union was prepared to spend hundreds of millions of dollars unionizing Amazon and to collaborate with a variety of other unions and progressive groups.“We’ve got a lot of partners in labor,” Mr. O’Brien said. “We’ve got community groups. It’s going to be a large coalition.”A culture of fear created by intense productivity monitoring that was documented by The Times at JFK8 has been a key motivator for the unionization drive, which started in earnest almost a year ago. The Amazon facility offered a lifeline to laid-off workers during the pandemic but burned through staff and had such poor communication and technology that workers inadvertently were fired or lost benefits.For some employees, the stress of working at the warehouse during Covid outbreaks was a radicalizing experience that led them to take action. Mr. Smalls, the president of the Amazon Labor Union, said he became alarmed in March 2020 after encountering a co-worker who was clearly ill. He pleaded with management to close the facility for two weeks. The company fired him after he helped lead a walkout over safety conditions in late March that year.Amazon said at the time that it had taken “extreme measures” to keep workers safe, including deep cleaning and social distancing. It said it had fired Mr. Smalls for violating social distancing guidelines and attending the walkout even though he had been placed in a quarantine.After workers at Amazon’s warehouse in Bessemer, Ala., overwhelmingly rejected the retail workers union in its first election last spring, Mr. Smalls and Derrick Palmer, an Amazon employee who is his friend, decided to form a new union, called Amazon Labor Union.While the organizing in Alabama included high-profile tactics, with progressive supporters like Senator Bernie Sanders visiting the area, the organizers at JFK8 benefited from being insiders. For months, they set up shop at the bus stop outside the warehouse, grilling meat at barbecues and at one point even passing out pot. (The retail workers said they were hamstrung by Covid during their initial election in Alabama.)They also filed numerous unfair-labor-practice charges with the N.L.R.B. when they believed Amazon had infringed on their rights. The labor agency found merit in several of the cases, some of which Amazon settled in a nationwide agreement to allow workers more access to organize on-site.At times the Amazon Labor Union stumbled. The labor board determined this fall that the fledgling union, which spent months collecting signatures from workers requesting a vote, had not demonstrated sufficient support to warrant an election. But the organizers kept trying, and by late January they had finally gathered enough signatures.Amazon played up its minimum wage of $15 an hour in advertising and other public relations efforts. The company also waged a full-throated campaign against the union, texting employees and mandating attendance at anti-union meetings. It spent $4.3 million on anti-union consultants nationwide last year, according to annual disclosures filed on Thursday with the Labor Department.In February, Mr. Smalls was arrested at the facility after managers said he was trespassing while delivering food to co-workers and called the police. Two current employees were also arrested during the incident, which appeared to galvanize interest in the union.The difference in outcomes in Bessemer and Staten Island may reflect a difference in receptiveness toward unions in the two states — roughly 6 percent of workers in Alabama are union members, versus 22 percent in New York — as well as the difference between a mail-in election and one conducted in person.But it may also suggest the advantages of organizing through an independent, worker-led union. In Alabama, union officials and professional organizers were still barred from the facility under the settlement with the labor board. But at the Staten Island site, a larger portion of the union leadership and organizers were current employees.“What we were trying to say all along is that having workers on the inside is the most powerful tool,” said Mr. Palmer, who makes $21.50 an hour. “People didn’t believe it, but you can’t beat workers organizing other workers.”The independence of the Amazon Labor Union also appeared to undermine Amazon’s anti-union talking points, which cast the union as an interloping “third party.” On March 25, workers at JFK8 started lining up outside a tent in the parking lot to vote. And over five voting days, they cast their ballots to form what could become the first union at Amazon’s operations in the United States.Another election, brought also by Amazon Labor Union at a neighboring Staten Island facility, is scheduled for late April.Jodi Kantor More

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    Making ‘Dinobabies’ Extinct: IBM’s Push for a Younger Work Force

    Documents released in an age-discrimination case appear to show high-level discussion about paring the ranks of older employees.In recent years, former IBM employees have accused the company of age discrimination in a variety of legal filings and press accounts, arguing that IBM sought to replace thousands of older workers with younger ones to keep pace with corporate rivals.Now it appears that top IBM executives were directly involved in discussions about the need to reduce the portion of older employees at the company, sometimes disparaging them with terms of art like “dinobabies.”A trove of previously sealed documents made public by a Federal District Court on Friday show executives discussing plans to phase out older employees and bemoaning the company’s relatively low percentage of millennials.The documents, which emerged from a lawsuit contending that IBM engaged in a yearslong effort to shift the age composition of its work force, appear to provide the first public piece of direct evidence about the role of the company’s leadership in the effort.“These filings reveal that top IBM executives were explicitly plotting with one another to oust older workers from IBM’s work force in order to make room for millennial employees,” said Shannon Liss-Riordan, a lawyer for the plaintiff in the case.Ms. Liss-Riordan represents hundreds of former IBM employees in similar claims. She is seeking class-action status for some of the claims, though courts have yet to certify the class.Adam Pratt, an IBM spokesman, defended the company’s employment practices. “IBM never engaged in systemic age discrimination,” he said. “Employees were separated because of shifts in business conditions and demand for certain skills, not because of their age.”Mr. Pratt said that IBM hired more than 10,000 people over 50 in the United States from 2010 to 2020, and that the median age of IBM’s U.S. work force was the same in each of those years: 48. The company would not disclose how many U.S. workers it had during that period.A 2018 article by the nonprofit investigative website ProPublica documented the company’s apparent strategy of replacing older workers with younger ones and argued that it followed from the determination of Ginni Rometty, then IBM’s chief executive, to seize market share in such cutting-edge fields as cloud services, big data analytics, mobile, security and social media. According to the ProPublica article, based in part on internal planning documents, IBM believed that it needed a larger proportion of younger workers to gain traction in these areas.In 2020, the Equal Employment Opportunity Commission released a summary of an investigation into these practices at IBM, which found that there was “top-down messaging from IBM’s highest ranks directing managers to engage in an aggressive approach to significantly reduce the head count of older workers.” But the agency did not publicly release evidence supporting its claims.The newly unsealed documents — which quote from internal company emails, and which were filed in a “statement of material facts” in the lawsuit brought by Ms. Liss-Riordan — appear to affirm those conclusions and show top IBM executives specifically emphasizing the need to thin the ranks of older workers and hire more younger ones.“We discussed the fact that our millennial population trails competitors,” says one email from a top executive at the time. “The data below is very sensitive — not to be shared — but wanted to make sure you have it. You will see that while Accenture is 72% millennial we are at 42% with a wide range and many units falling well below that average. Speaks to the need to hire early professionals.”“Early professionals” was the company’s term for a role that required little prior experience.Another email by a top executive, appearing to refer to older workers, mentions a plan to “accelerate change by inviting the ‘dinobabies’ (new species) to leave” and make them an “extinct species.”A third email refers to IBM’s “dated maternal workforce,” an apparent allusion to older women, and says: “This is what must change. They really don’t understand social or engagement. Not digital natives. A real threat for us.”Mr. Pratt, the spokesman, said that some of the language in the emails “is not consistent with the respect IBM has for its employees” and “does not reflect company practices or policies.” The statement of material facts redacts the names of the emails’ authors but indicates that they left the company in 2020.Both earlier legal filings and the newly unsealed documents contend that IBM sought to hire about 25,000 workers who typically had little experience during the 2010s. At the same time, “a comparable number of older, non-Millennial workers needed to be let go,” concluded a passage in one of the newly unsealed documents, a ruling in a private arbitration initiated by a former IBM employee.Similarly, the E.E.O.C.’s letter summarizing its investigation of IBM found that older workers made up over 85 percent of the group whom the company viewed as candidates for layoffs, though the agency did not specify what it considered “older.”The newly unsealed documents suggest that IBM sought to carry out its strategy in a variety of ways, including a policy that no “early professional hire” can be included in a mass layoff in the employee’s first 12 months at the company. “We are not making the progress we need to make demographically, and we are squandering our investment in talent acquisition and training,” an internal email states.Previously sealed documents show IBM executives bemoaning the company’s relatively low percentage of millennials.David Paul Morris/Bloomberg
    The lawsuit also argues that IBM sought to eliminate older workers by requiring them to move to a different part of the country to keep their jobs, assuming that most would decline to move. One internal email stated that the “typical relo accept rate is 8-10%,” while another said that the company would need to find work for those who accepted, suggesting that there was not a business rationale for asking employees to relocate.And while IBM employees designated for layoffs were officially allowed to apply for open jobs within the company, other evidence included in the new disclosure suggests that the company discouraged managers from actually hiring them. For example, according to the statement of material facts, managers had to request approval from corporate headquarters if they wanted to move ahead with a hire. Several of the plaintiffs in a separate lawsuit brought by Ms. Liss-Riordan appeared to have been on the receiving end of these practices. One of them, Edvin Rusis, joined IBM in 2003 and had worked as a “solution manager.” He was informed by the company in March 2018 that he would be laid off within a few months. According to his legal complaint, Mr. Rusis applied for five internal positions after learning of his forthcoming layoff but heard nothing in response to any of his applications.Mr. Pratt, the spokesman, said that the company’s efforts to shield recent hires from layoffs, as well as its approach to relocating workers, were blind to age, and that many workers designated for layoffs did secure new jobs with IBM.The ProPublica story from 2018 identified employees in similar situations, and others who were asked to relocate out of state and decided to leave the company instead.The company has faced other age discrimination claims, including a lawsuit filed in federal court in which plaintiffs accused the company of laying off large numbers of baby boomers because they were “less innovative and generally out of touch with IBM’s brand, customers and objectives.” The case was settled in 2017, according to ProPublica.In 2004, the company agreed to pay more than $300 million to settle with employees who argued that its decision in the 1990s to replace its traditional pension plan with a plan that included some features of a 401(k) constituted age discrimination.The federal Age Discrimination in Employment Act prohibits discrimination against people 40 or over in hiring and employment on the basis of their age, with limited exceptions.The act also requires companies to disclose the age and positions of all people within a group or department being laid off, as well as those being kept on, before a worker waives the right to sue for age discrimination. Companies typically require such waivers before granting workers’ severance packages.But IBM stopped asking workers who received severance packages to waive their right to sue beginning in 2014, which allowed it to cease providing information about the age and positions of workers affected by a mass layoff.Instead, IBM required workers receiving a severance package to bring any discrimination claims individually in arbitration — a private justice system often preferred by corporations and other powerful defendants. Mr. Pratt said the change was made to better protect workers’ privacy.While some former employees preserved their ability to sue IBM in court by declining the severance package, many former employees accepted the package, requiring them to bring claims in arbitration. Ms. Liss-Riordan, who is running for attorney general of Massachusetts, represents employees in both situations.The particular legal matter that prompted the release of the documents in federal court was a motion by one of the plaintiffs whose late husband had signed an agreement requiring arbitration, and whose arbitration proceeding IBM then sought to block.IBM argued that the plaintiff sought to pursue the claim in arbitration after the window for doing so had passed, and that some of the evidence the plaintiff sought to introduce was confidential under the arbitration agreement. The plaintiff argued that those provisions of the arbitration agreement were unenforceable.The judge in the case, Lewis J. Liman, has yet to rule on the merits of that argument. But in January, Judge Liman ruled that documents in the case, including the statement of material facts, should be available to the public.IBM asked a federal appellate court to stay Judge Liman’s disclosure decision, but a three-judge panel of the U.S. Court of Appeals for the Second Circuit rejected the company’s argument, and the full circuit court also declined to grant a stay. The New York Times filed an amicus brief to the circuit court arguing that the First Amendment applied to the documents in question. More

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    For Retail Workers, Omicron Disruptions Aren’t Just About Health

    Stores are shortening hours, fitting rooms are being closed and some employees can’t go on break. “Morale could not be lower,” one retail worker said.Long checkout lines. Closed fitting rooms. Empty shelves. Shortened store hours.Plus the dread of contracting the coronavirus and yet another season of skirmishes with customers who refuse to wear masks.A weary retail work force is experiencing the fallout from the latest wave of the pandemic, with a rapidly spreading variant cutting into staffing.While data shows that people infected with the Omicron variant are far less likely to be hospitalized than those with the Delta variant, especially if they are vaccinated, many store workers are dealing with a new jump in illness and exposures, grappling with shifting guidelines around isolation and juggling child care. At the same time, retailers are generally not extending hazard pay as they did earlier in the pandemic and have been loath to adopt vaccine or testing mandates.“We had gotten to a point here where we were comfortable, it wasn’t too bad, and then all of a sudden this new variant came and everybody got sick,” said Artavia Milliam, who works at H&M in Hudson Yards in Manhattan, which is popular with tourists. “It’s been overwhelming, just having to deal with not having enough staff and then twice as many people in the store.”Ms. Milliam, a member of the Retail, Wholesale and Department Store Union, is vaccinated but contracted the virus during the holidays, experiencing mild symptoms. She said that fewer employees were working registers and organizing clothing and that her store had been closing the fitting rooms in the mornings because nobody was available to monitor them.Macy’s said last week that it would shorten store hours nationally on Mondays through Thursdays for the rest of the month. At least 20 Apple Stores have had to close in recent weeks because so many employees had contracted Covid-19 or been exposed to someone who had, and others have curtailed hours or limited in-store access.At a Macy’s in Lynnwood, Wash., Liisa Luick, a longtime sales associate in the men’s department, said, “Every day, we have call-outs, and we have a lot of them.” She said the store had already reduced staff to cut costs in 2020. Now, she is often unable to take breaks and has fielded complaints from customers about a lack of sales help and unstaffed registers.“Morale could not be lower,” said Ms. Luick, who is a steward for the local unit of the United Food and Commercial Workers union. Even though Washington has a mask mandate for indoor public spaces, “we get a lot of pushback, so morale is even lower because there’s so many people who, there’s no easy way to say this, just don’t believe in masking,” she added.Store workers are navigating the changing nature of the virus and trying their best to gauge new risks. Many say that with vaccinations and boosters, they are less fearful for their lives than they were in 2020 — the United Food and Commercial Workers union has tracked more than 200 retail worker deaths since the start of the pandemic — but they remain nervous about catching and spreading the virus.At a Stop & Shop in Oyster Bay, N.Y., Wally Waugh, a front-end manager, said that checkout lines were growing longer and that grocery shelves were not being restocked in a timely manner because so many people were calling in sick with their own positive tests or those of family members.That has forced remaining employees to work more hours. But even with overtime pay, many of his colleagues are not eager to stay in the store longer than they must. Mr. Waugh has started taking off his work clothes in his garage and immediately putting them in the laundry before entering his house — a routine he hadn’t followed since the earliest days of the pandemic.Wally Waugh in his garage, where he changes out of the clothes he wears to work at a Stop & Shop to avoid possibly spreading the coronavirus.Sasha Maslov for The New York Times“People are not nervous like when Covid first started,” said Mr. Waugh, who is a steward for the Retail, Wholesale and Department Store Union. “But we are gravely concerned.”At a QFC grocery store in Seattle, Sam Dancy, a front-end supervisor, said many colleagues were calling out sick. The store, part of a chain owned by Kroger, has closed early several times, and customers are helping to bag their own groceries. There are long lines, and some of the self-checkout lanes are closed because employees aren’t available to oversee them.“Some people are so tired of what’s going on — you have some that are exposed and some that are using it as an excuse to not have to work to be around these circumstances,” said Mr. Dancy, a member of the local food and commercial workers union, who has worked at the chain for 30 years. “I have anxiety till I get home, thinking, ‘Do I have this or not?’ It’s a mental thing that I think a lot of us are enduring.”Shifting guidelines around isolation are also causing confusion at many stores. While H&M has instructed employees like Ms. Milliam to isolate for 14 days after testing positive for Covid-19, Macy’s said in a memo to employees last week that it would adopt new guidance from the Centers for Disease Control and Prevention that recommended shortening isolation for infected people to five days from 10 if they are asymptomatic or their symptoms are resolving.But even if retailers shorten isolation periods, schools and day-care facilities may have longer quarantine periods for exposed families, putting working parents in a bind.Ms. Luick of Macy’s said she felt the guidance was aimed at “constantly trying to get people to work,” and did not make her feel safer.Even as Omicron spreads faster than other variants, employers have not shown a willingness to reinstitute previous precautions or increased pay, said Kevin Schneider, secretary-treasurer of a unit of the United Food and Commercial Workers in the Denver area.Like many retailers, Kroger hasn’t provided hazard pay nationally since the early stages of the pandemic, though the union is negotiating for it to be reinstated. The chain has also discontinued measures like controlling how many customers are allowed in stores at a time. The union has been asking for armed guards at all of its stores in the Denver area as incidents of violence increase.“The company says they are providing a safe environment for workers to do their jobs in,” Mr. Schneider said. “We don’t believe that.”In a statement, a Kroger spokeswoman said, “We have been navigating the Covid-19 pandemic for nearly two years, and, in line with our values, the safety of our associates and customers has remained our top priority.”The company added that frontline employees had each received as much $1,760 in additional pay to “reward and recognize them for their efforts during the pandemic.”Some workers have reached another breaking point. In Jacksonville, Fla., one Apple Store employee organized a brief walkout on Christmas Eve to protest working conditions after he witnessed a customer spitting on his colleague. Dozens of people at other stores also participated.“It was my final straw,” said Daryl Sherman II, who organized the walkout. “Something had to be done.”In some cases, municipalities have stepped in to obtain hazard pay for workers. In Seattle, Kroger has been required to pay grocery store employees like Mr. Dancy an extra $4 an hour based on local legislation.“Some people are so tired of what’s going on,” said Sam Dancy, a front-end supervisor at QFC, a grocery store chain.Grant Hindsley for The New York TimesMore broadly, the staffing shortages have put a new spotlight on a potential vaccine-or-testing mandate from the Biden administration, which major retailers have been resisting. The fear of losing workers appears to be looming large, especially now.While the retail industry initially cited the holiday season rush for its resistance to such rules, it has more recently pointed to the burden of testing unvaccinated workers. After oral arguments in the case on Friday, the Supreme Court’s conservative majority expressed skepticism about whether the Biden administration had legal authority to mandate that large employers require workers to be vaccinated.The National Retail Federation, a major industry lobbying group, said in a statement last week that it “continues to believe that OSHA exceeded its authority in promulgating its vaccine mandate.” The group estimated that the order would require 20 million tests a week nationally, based on external data on unvaccinated workers, and that “such testing capacity currently does not exist.”When the top managers at Mr. Waugh’s Stop & Shop store began asking employees whether they were vaccinated in preparation for the federal vaccine mandates that could soon take effect, he said, a large number expressed concern to him about being asked to disclose that information.“It was concerning to see that so many people were distressed,” he said, though all of the employees complied.Ms. Luick of Macy’s near Seattle said that she worked with several vocal opponents of the Covid-19 vaccines and that she anticipated that at least some of her colleagues would resign if they were asked to provide vaccination status or proof of negative tests.Macy’s told employees last week that it would adopt new guidance from the C.D.C. that recommended shortening isolation periods.Jeenah Moon for The New York TimesStill, Macy’s was among major employers that started asking employees for their vaccination status last week ahead of the Supreme Court hearing on Friday and said it might require proof of negative tests beginning on Feb. 16.“Our primary focus at this stage is preparing our members for an eventual mandate to ensure they have the information and tools they need to manage their work force and meet the needs of their customers,” said Brian Dodge, president of the Retail Industry Leaders Association, which includes companies like Macy’s, Target, Home Depot, Gap and Walmart.As seasonal Covid-19 surges become the norm, unions and companies are looking for consistent policies. Jim Araby, director of strategic campaigns for the food and commercial workers union in Northern California, said the retail industry needed to put in place more sustainable supports for workers who got ill.For example, he said, a trust fund jointly administered by the union and several employers could no longer offer Covid-related sick days for union members.“We have to start treating this as endemic,” Mr. Araby said. “And figuring out what are the structural issues we have to put forward to deal with this.”Kellen Browning contributed reporting. More