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Food Retailers’ Card Check Alternative Makes Labor Officials Choke

Three major food retail firms—Costco, Starbucks and Whole Foods—are offering an alternative outline for a controversial bill that would make it easier for workers to form unions.

But the proposal, which is not in legislative form, may not bring everyone to the table. As business interests consider backing it, organized-labor supporters are skeptical.

The companies listed six “principles” for the bill, including a guarantee for a secret-ballot process for union elections and not requiring mandatory arbitration for first contracts.

The Employee Free Choice Act, which was introduced March 10, would allow a union to form when a majority of workers have signed cards authorizing one.

Under current law, a company can demand a secret-ballot election. The bill also would subject first-contract negotiations to binding arbitration if an agreement isn’t reached within 120 days of a union being formed.

The measure is the top legislative priority for unions, which take credit for helping secure an increased Democratic majority in the Senate and for putting President Barack Obama in the White House. Obama was a co-sponsor of the legislation while in the Senate.

The legislation died in the previous Congress when Senate Republicans blocked it through a procedural maneuver called a filibuster. Following the election, the GOP is down to 41 members in the Senate—exactly the number needed to sustain a filibuster.

But the bill was unveiled earlier this month with fewer co-sponsors than it garnered in 2007, the last time it was introduced. Unions face a significant challenge in getting enough moderate to conservative Democratic senators onboard to defeat a filibuster.

The bill has stoked fierce lobbying campaigns from both business and labor interests, with neither side inclined to compromise.

That’s why the three companies stepped in to “open a dialogue about a third way alternative,” according to Eileen O’Connor, an attorney at Orrick Herrington & Sutcliffe in Washington. The firm represents the organization that Costco, Starbucks and Whole Foods have formed, the Committee for a Level Playing Field for Union Elections.

The group is promoting a framework for a union bill that includes guaranteeing a secret ballot election in all circumstances; permitting management to initiate a decertification process through a secret ballot election; guaranteeing a fixed time period for a union election; providing unions access to employees during nonworking hours in a campaign period; imposing stricter penalties for labor law violations by labor and management; and barring mandatory first-contract arbitration but enforcing stricter penalties for bad-faith bargaining.

O’Connor said the group has met with the staffs of more than a dozen Republican and Democratic senators.

“The reception was quite good and in some quarters enthusiastic,” O’Connor said.

The U.S. Chamber of Commerce, which is leading the fight against the union bill, isn’t ready to compromise. But one official says that the retailers’ proposal is an indication that the so-called card-check requirement is a non-starter.

“It recognizes that to get any movement in [labor law], you have to take the existing card-check bill off the table and out of this discussion,” said Glenn Spencer, executive director of the chamber’s Workforce Freedom Initiative.

The two members of Congress shepherding the union bill reject the retailers’ proposal because it eliminates the card-check option.

“It was written by CEOs for CEOs,” said Sen. Tom Harkin, D-Iowa, and Rep. George Miller, D-California, in a statement. “[It] maintains the status quo by denying workers a real say in the workplace.”

Proponents say the bill does not eliminate secret-ballot elections. Instead, it allows workers to choose a card-check process that overcomes corporate bullying tactics. Opponents say that having workers publicly sign authorization cards subjects them to union coercion.

“A proposal coming from corporations, some of whom have their own history of violating workers’ rights, is simply not an alternative that lives up to giving workers back the freedom to form unions,” William Samuel, director of government affairs for the AFL-CIO, said in a statement.

O’Connor counters that Costco, Starbucks and Whole Foods have a history of offering fair wages and benefits. Costco is partially unionized; the other two companies do not have unions.

“These are companies that are known for their ability to work with their employees and partner with them,” O’Connor said. “They’re very purpose-driven companies with strong core values.”

The announcement about the retailers’ proposal was rushed out Sunday, March 22, when speculation swirled that it contained a so-called 30-50-70 provision.

That idea involves using a secret-ballot election if 30 percent of workers sign cards, a “quickie” election if 50 percent sign them, and allowing the union to form at 70 percent. So far, no group has made that proposal.

—Mark Schoeff Jr.

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