The Politics of Labor

Events taking place away from the bargaining tables could have long-range implications for supermarket operators as some prepare to grapple over central issues like health and welfare benefits, higher wages and improved working conditions in the 62 contracts, representing 194,718 grocery workers, up for negotiation this year.

The United Food and Commercial Workers stands to gain strength this year through the presidential election process. The UFCW, which represents about 1.4 million workers, including those in food retail, endorsed Sen. Barack Obama, D-Ill., earlier this month. With its endorsement, the UFCW offers Obama an attractive constituency of younger voters, with more than 40% of its members under the age of 30.

“As a community organizer, Obama understands that America must restore the balance between working America and corporate America,” the UFCW said in a statement.

Obama and Sen. Hillary Clinton, D-N.Y., favor the Employee Free Choice Act, which would facilitate workers' rights to unionize if a majority of workers signed authorization cards (known as “card check”), forgoing the National Labor Relations Board's process requiring a secret ballot election.

The UFCW and other unions have been lobbying nationally for the law, which passed the House last year but stalled in the Senate. Food Marketing Institute, Alexandria, Va., and National Grocers Association, Arlington, Va., not surprisingly, oppose such a bill.

“Sen. Obama is absolutely committed in supporting the Free Choice Act if he gets to be president, and we are looking forward to that happening,” Bill McDonough, executive vice president of Washington-based UFCW, told SN.

McDonough contends the act has broad-based support beyond the unions. “We actively do everything we can to get out and educate people about what [the EFCA] means. You have more people supporting it than a few years ago when the concept was first introduced,” he told SN.

Labor-employement attorney Tom Davis, managing shareholder in the Nashville, Tenn., office of Ogletree Deakins, which advises management on labor issues, told SN getting the EFCA passed is AFL-CIO President John Sweeney's No. 1 objective. “They [unions] see the opportunity to have a Democrat who will be supportive of the EFCA as bright as it has been in any recent period of time.”

If voting to unionize via card checks becomes law, the UFCW may be at an advantage to convert workers at nonunion supermarkets like Bashas', observers said. The Chandler, Ariz.-based chain filed a defamation lawsuit late last year against UFCW Local 99 and UFCW affiliates, charging the union with intentionally interfering with the grocer's operations to extort an agreement for union representation.

The UFCW declined to comment on the case due to the pending litigation. Bashas' could not be reached for comment.

In a press release, Bashas' listed the following complaints against the UFCW: frivolous Equal Employment Opportunity Commission charges; promoting a class-action lawsuit; conducting defamatory phone surveys; distributing negative fliers, door hangers and direct-mail pieces; crafting, distributing and publicizing inflammatory and false reports; accusing the company of selling expired products, then planting expired products on store shelves; calling in false reports to governmental agencies alleging health code and other operational violations; organizing public demonstrations both inside and outside of stores, with the goal of disrupting and discouraging business; showing up uninvited to homes of Bashas' employees; arranging “town-hall-style” meetings to publicly attack Bashas'; paying for automated pre-recorded phone and text messages that disparage Bashas' and Food City stores; paying prominent and recognizable media outlets to defame Bashas'; handsomely funding vocal community activists to serve as spokesmen and women against Bashas'; and making personal home visits to encourage shoppers to boycott Bashas' and Food City stores.

Bashas' has been a target of union organizing since 2001, when the UFCW filed a petition with the NLRB to unionize Bashas' Food City workforce. That petition was rejected.

Bashas' called the union's latest tactics a “win at all costs” corporate campaign. “The goal of this campaign is to pressure management into voluntarily signing a union contract on behalf of its 14,000 employees — rather than allowing individual employees to vote for themselves, in a secret-ballot election when they want a union,” the release stated.

Although he wasn't familiar with Bashas' case, Davis confirmed that such campaigns and tactics take place in various industries. “Unions use corporate campaigns and top-down organizing tactics where they will make it look bad in public if the company doesn't agree to card check and neutrality.” While the current laws to organize a union don't force management to accept card check votes, they do allow such votes if management agrees. However, if the EFCA should pass, employers would be obligated to accept card check votes, said Davis.

“The UFCW has given Bashas' an ultimatum with two unacceptable choices — force Bashas' employees into their union or the UFCW will destroy Bashas' business,” Michael Manning, an attorney for Stinson Morrison Hecker, Phoenix, which represents Bashas' in the lawsuit, stated in the press release.

The union has also asserted pressure on other nonunion chains like Wegmans Food Markets, Rochester, N.Y., which is running up against opposition from union affiliates in Columbia, Md., over traffic studies submitted for zoning on a new building site, according to press reports.

Tesco USA, El Segundo, Calif., which plans to open as many as 300 grocery stores in Western states over the next five years, is also a UFCW target. UFCW President Joseph T. Hansen recently sent a letter to the United Kingdom's Prince Andrew asking him to help arrange a meeting with Tesco, which has refused to meet with the union.

Lance Compa, who teaches labor law at Cornell University, ILR School, Ithaca, N.Y., said he thinks Tesco, which is unionized in the U.K., is playing a high-risk game with the union. “For Tesco to come in on the West Coast where the union has a big presence and try to hold off as nonunion invites a union campaign and criticism from labor, religion coalitions, politicians and all the rest,” he said.

Burt P. Flickinger III, managing director of Strategic Resource Group, New York, believes the UFCW eventually can prevail over Tesco. “It may involve a lot of organizing drives market by market,” with success coming where the union is strongest in the north-central states, he said.

The trend, said Davis, is for labor to capitalize on international partnerships. “Labor is looking at companies here that have unions in other countries and are trying to exploit those relationships. The unions have identified that as a point of leverage,” he noted.

Small independents also face union opposition. UFCW Local 1473 is challenging a petition to decertify from union representation filed by workers at four Woodman's Food Market stores in Jainsville, Madison and Beloit, Wis. According to Clinton Woodman, vice president of the 11-store, employee-owned retailer, the case is under review by the NLRB. Woodman's contract is up on March 16, and Woodman said the NLRB may not decide on the petition's validity before the contract expires. Woodman's currently has six stores that are unionized. “There is a reason the employees filed the petition: They are paying union dues and have the same benefits that our other [nonunion] stores have,” Woodman said.

McDonough denies that the union pressures supermarket companies to unionize. “We are following up on employees' rights and educating consumers as to what goes on in a particular location. It is an important part of our strategy,” he said.

Since the UFCW broke away from the AFL-CIO with the Change to Win coalition three years ago, there has been a renewed effort to organize workers. UFCW officials said the effort is working. Last year the UFCW said it added 25,000 new unionized workers in about 250 locations, with the majority of those being food retail.

Michael Forman, a spokesman for UFCW Canada, also says the Canadian arm has increased its membership, but not as much as it would like. While Forman didn't have specific figures available, he said, “In calendar year 2007, we've increased the number of locations we represent. We'd like to grow more aggressively than we did last year. Growth is an issue for us and for the union internationally. Grocery represents at least a third of the labor force in Europe and Canada. So, there are significant employers and there are opportunities to grow just based upon growth of the supermarket sector.”

Forman said he expects by the end of this year to have its first unionized Wal-Mart store in St. Hyacinthe, east of Montreal, Quebec. He said the contract has been in negotiation for two years and is now in hearing.

Back in the U.S., if the Democrats win the White House, labor experts expect to see a change in the makeup of the NLRB, the independent federal agency charged with administering the National Labor Relations Act that governs relations between unions and employees. Board members are appointed by the president to five-year terms with Senate consent, and the term of one member expires each year. There are currently three board vacancies, and it is not likely that those will be filled before the presidential election even though President Bush designated three nominees last month. Therefore, a new president will likely nominate new NLRB members, and if it is a Democratic president, chances are the nominees will be union-friendly. Observers said that under Bush, the makeup of the five-member NLRB panel has changed dramatically since the Clinton administration, with a markedly pro-management tilt.

“Employers in general are apoplectic about the EFCA, but I think it is misplaced, because the NLRB has tilted so far in favor of employers that they want to preserve that system,” said Compa. “The EFCA would tilt it back toward workers. But I don't think it would tilt it all the way in the unions' favor the way they would hope.”

He believes passage of the EFCA would result in a more balanced situation between labor and unions.

Flickinger sees a power shift in unions' favor with the NLRB changing at the end of the administration. He said even under an administration led by Arizona Sen. John McCain, the Republican front-runner, the NLRB would change “constructively and immeasurably. If Obama is elected it will change exponentially.”

With a change to a Democratic administration, Davis said there is no question that momentum will be at the unions' back. “There are 20 to 30 pieces of legislation that will impact the employment setting and likely to pass under Democratic control,” he added.