News & Analysis: Senator Arlen Spector's Switch to Democratic Party Offers Increased Probability Employee Free Choice Act Could Pass in U.S. Senate

U.S. Senator Arlene Spector, pictured above briefing reporters at the U.S. Capital building in February of this year, announced this morning he will become a Democrat, ending his many years as a Republican Senator from Pennsylvania. [Photo Credit: Chip Somodevilla-Getty Images.]

The Employee Free Choice Act, Tesco's Fresh & Easy and Food & Grocery Retailing USA

Republican Senator Arlene Spector from Pennsylvania, a crucial swing vote in the U.S. Senate regarding the Employee Free Choice Act legislation that most likely will be approved by the U.S. House of Representatives this year and then voted on by the U.S. Senate, announced this morning he is changing parties and becoming a Democrat.

"Since my election in 1980, as part of the Reagan Big Tent, the Republican Party has moved far to the right," Specter, 79, said in a statement this morning. "Last year, more than 200,000 Republicans in Pennsylvania changed their registration to become Democrats. I now find my political philosophy more in line with Democrats than Republicans."

Spector is in his fifth term in the U.S. Senate. Each Senate term is for a period of six years.

He faces a tough election for a sixth term next year, facing challengers from both the Republican and Democratic sides. That was before he announced today his switch to the Democratic Party.

Party-switching seldom a spur of moment decision

However, we suspect his changing parties wasn't done without consultation with Senate Majority Harry Reid, D-Nevada, and other top Democrats like Senator Charles Schumer, D-NY, who heads up the Senate Democratic Campaign Committee, the Senate Democrat's political arm.

Therefore, look for heavy Democratic support from these and other Democrat big guns for Spector's 2010 run in Pennsylvania as a Democrat.

Pennsylvania's other Senator, Robert Casey, is a Democrat.

Also look for the Republicans to put a big pot of money and lots of grassroots effort behind a Republican candidate in a challenge to Spector in 2010. It will be tough though for a Republican, particularly a conservative, to get elected to the U.S. Senate in Pennsylvania, as the state has trended Democrat and likes moderate Republicans, which is why its voters have given moderate Republican Arlene Spector five terms.

Senate leader Harry Reid welcomed Spector to the Democratic Party and Democrat Senate Caucus this morning with wide open arms, saying: "I welcome Senator Specter and his moderate voice to our diverse caucus. We have not always agreed on every issue, but Senator Specter has shown a willingness to work in a bipartisan manner, put people over party, and do what is right for Pennsylvanians and all Americans."

And Senator Chuck Schumer offered his two cents as well, saying: "Senator Specter is an effective, intelligent and moderate senator. We welcome him into the Democratic Party and our caucus in the Senate."

Senator Spector's switch to the Democratic Party and therefore to the Senate Democratic Caucus gives the Democrats 59 members, just one Senator shy of the magic 60-vote majority needed to prevent a fillibuster by Republicans on bills the Democrats want to pass, such as the Employee Free Choice Act, which is supported by Leader Reid, the majority of Senate Democrats, and President Barack Obama.

Employee Free Choice Act

The organized labor-advocated Employee Free Choice Act, often referred to as "Card Check," would among other things allow workers to merely check "yes" on a card if they want to be represented by a labor union at their non-union place of work, rather than going through the long "secret ballot" process that currently is a part of U.S. Labor law.

The proposed legislation also makes it much more difficult for employers to lobby employees against joining a union, which is something the employers are given ample opportunity to do under the current "secret ballot" method used by unions and workers to vote on union representation.

There's strong opposition to the Employee Free Choice Act among corporate America and small business. And all of the current Senate Republicans, as well as the vast majority in the U.S. House of Representatives, oppose the legislation.

As we reported in this story on April 13, 2009 [Analysis: Major Retailers Costco, Whole Foods Market and Starbucks Propose Employee Free Choice Act 'Third Way' Compromise; What About Fresh & Easy?] Spector announced he was switching his previous support in favor of the Employee Free Choice Act to a new position of being against the legislation.

Senator Spector was the only Senate Republican to vote in favor of the legislation in 2007. The Employee Free Choice was defeated in 2007, despite passing in the U.S. House of Representatives by a wide margin and winning in the Senate by a majority. The reason it was defeated in the Senate is because Senate Republicans fillibustered the bill and the Democrats didn't have to 60-votes needed to break the fillibuster.

President Bush opposed the legislation and said he would veto the bill if it passed the Senate. The 60 vote majority is needed according to Senate rules in order to override a Presidential veto.

President Obama voted for the Employee Free Choice as a Senate Democrat in 2007. He campaigned for President in 2008 in support of the legislation, and has said he will sign the bill if it is passed out of Congress.

We suspect Senator Spector's recently taken new position on the Employee Free Choice Act legislation just might have come up in talks with Senate Democratic leaders regarding his switch from Republican to Democrat -- and the deal-making that likely was a part of the switch -- although we can't confirm that.

Spector said at a press conference this morning that he still opposses the Employee Free Choice Act bill as written, saying that "it is a bad bill as currently written." The key phrase is: "It is a bad bill as currently written."

At a news conference later, Senate Leader Harry Reid was asked about Spector's continued opposition to the Employee Free Choice Act (EFCA) despite the Senator's switch to the Democratic Party. Reid made a point of saying that Senator Spector opposes the current "iteration" of the EFCA bill, then saying: "The bill will likely go through one or more iterations (read changes) when it gets to the Senate."

Our analysis is that Reid was signaling two things: That the current EFCA bill will be amended when it gets to the Senate from the House, and that now Democrat Senator Arlene Spector just might be willing to vote in the afirmative for a new "iteration" of the EFCA bill.

Spector wants to be Chairman of the Senate Appropriations Committee. One of the things Reid said in the news conference that he agreed on with Spector was that is the former Republican switched parties he would be considered to have senority in the Senate from day one just as if he had been a Democrat all along. That's an unusual agreement to make. (Spector was actually a Democrat until he switched to the Republican party in 1965.)

Such seniority would be a prequisite for Reid in giving him Chairmanship of the Senate Appropriations Committee, a position Arlene Spector wants dearly.

Therefore, since Spector is willing to switch parties because he knows he can't win in the 2010 Republican primary in Pennsylvania, the key reason he says he switched to the Democratic Party, it's not far-fetched to believe that the Senator might be willing to switch his vote again, in favor of a new "iteration" of the Employee Free Choice Act, particularly if being named to the Appropriation's Chair just happens to be a part of the bargain.

Assuming he gets relected next year as a Democrat, Spector will be 80-years old. He would like to finish out what will likely be his last term in the Democrat-controlled Senate as the chair of the powerful Senate Appropriation's Committee.

Would the Gentleman from Pennsylvania let his at present position on the Employee Free Choice Act stand in the way this year, especially since he voted for the legislation in 2007? We think not. Rather we think Senator Spector is one "iteration" (an amendment or two to the bill) away from a yes vote on the EFCA. And Leader Reid, who will be heading up the EFCA legislation in the Senate, said today an "iteration" or two to the current bill as it is written will likely happen.

Franken makes 60

Democratic Senator number 60 could be coming soon for Senate Democrats.

Last week Democrat Al Franken, the former comedian and talk show host, received positive news from a court in Minnesota regarding his disputed victory over Republican Norm Coleman in the November 2008 Senatorial election in the state. The court ruled in Franken's favor that his about 300-vote lead over Coleman, who was the state's incumbent Senator, is valid.

Coleman, who is no longer a U.S. Senator pending a resolution on the race, is appealing the court's decision to the Minnesota Supreme Court, the state's highest court.

However it's possible that Minnesota Governor Tim Pawlenty, a Republican, could certify Franken as the winner before the Minnesota Supreme Court rules on the election, which would allow him to take the Senate seat.

In fact, many political observers in Minnesota have been saying that's likely to happen. But with Senator Spector's defection to the Democrats today, it's safe to say there will be added pressure on the Republican Governor from Minnesota, who is a GOP favorite to run for President in 2012, to hold off on certifying Franken, at least until the state's Supreme Court makes its ruling, either upholding the lower court's ruling in favor of Franken, or shooting the ruling down.

If Governor Pawlenty doesn't certify Franken, and the Minnesota Supreme Court upholds the lower court's ruling in favor of Franken --which the political and legal odds makers in Minnesota are currently betting will be the case -- the only recourse Coleman has is to then appeal the election to the U.S. Supreme Court.

Most U.S. Supreme Court-watchers are saying they doubt if the U.S. Supreme Court will hear the case. The court chooses the handful of cases it hears each term among many that are submitted to it.

Additionally, it's likely that if the Minnesota Supreme Court upholds the lower court's ruling in favor of Franken that the Governor will then certify Franken as the new Senator from Minnesota, since the court is that state's highest. Most doubt the Governor will want to go against the court's ruling if it upholds the lower court's opinion in favor of Franken because the potential negative political fallout from doing so could be significant.

And of course there's no guarantee that if Coleman does appeal such a ruling to the U.S. Supreme Court, and he might not, that the court will even hear the case.

There's another potential factor at play. Democrat Senate Majority Leader harry Reid could if he wants seat Franken as the Senator from Minnesota, siting the state court's ruling that he is the winner of the race as ample reason to do so.

It not clear what would happen but we've been told that it's unlikely the Republicans could do anything to stop such a move. And that Franken could serve in the Senate starting right after such a move by Reid unless or until the Minnesota Supreme Court ruled against the lower court's ruling, which would toss the election back into a stalemate with no winner.

Even 60 doesn't mean sure thing

The fillibuster-proof 60-vote majority for the Democrats, assuming Franken gets seated in the near future, of course assumes that all of the members of the Democratic Caucus, including its two Independents, will vote in favor of the Employee Free Choice Act bill when it comes before the U.S. Senate.

One Democrat, Senator Blanche Lincoln of Arkansas, has said she isn't sure she supports the legislation.

But it's still early. On the fence Senators like Lincoln can be persuaded.

And on the other side of the coin, other Democrat Senators from moderate -to- conservative states might decide to vote against the legislation, siting the poor economy as their primary reason for doing so. Of course, they are subject to deal making from the Democratic Senate leadership as well. Bucking the leaders isn't generally a good career move.

Further, moderate Democrats from conservative states might be concerned about voting in favor of the pro-organized labor legislation for political reasons, such as a fear of not being sent back to the Senate by their moderate -to- conservative constituents.

And this morning Senator Spector made a point of saying he isn't an "automatic 60th vote" for the Senate Democrats, signaling a continuation of his role in the U.S. Senate as a moderate swing vote as a Republican; a role often met with displeasure from his now former fellow Senate Republicans such as when he recently sided with Democrats, voting in favor of President Obama's nearly $1 billion economic stimulus package.

Good news to EFCA supporters: Spector back in play

But Spector's defection to the Democratic Party is overall good news to supporters of the Employee Free Choice Act (EFCA). His position of a couple weeks ago -- that he now is against the legislation although he voted in favor of it in 2007, the only Republican to do so at the time --will be much more malleable (to change back to his original position) now that he will be a member of the Democratic Party and Senate Democratic Caucus.

Additionally, we further suspect that if organized labor were to throw its support behind Spector in his 2010 bid for a sixth term in Pennsylvania, his position might become downright plastic, and he could do what isn't an unusual thing for elected officials to do, which is to change his mind and position once again, reverting back to his support of the Employee Free Choice Act as a freshly minted Democrat.

Being given an important committee chair by the Senate Democrat leadership, which we expect to happen, also could make Senator Spector's recent change from being pro-Employee Free Choice to against it, turn from plastic to down right making it melt away, thereby causing him to "see the light" and announce his support once again for the pro-organized labor legislation.

Tesco's Fresh & Easy

As we've reported and written about extensively in Fresh & Easy Buzz, the United Foods & Commercial Workers union (UFCW), which represents over 1 million unionized grocery store clerks in the U.S., Canada and Puerto Rico, has been conducting a campaign to unionize Tesco Fresh & Easy Neighborhood Market's non-union store-level employees since late 2007 when the first Fresh & Easy markets were opened. The campaign intensified in 2008.

Passage of the Employee Free Choice Act with its "Card Check" provision, in which rather than going through a "secret ballot" election process employees would be able to check off a box on a card indicating they support a union at their place of work, would make it much easier for the UFCW union to organize Tesco Fresh & Easy store employees. In fact, the union is banking on passage of the Employee Free Choice Act in order to unionize Tesco's Fresh & Easy, along with other non-union chains like Wal-Mart.

Most of the major supermarket chains in California, Nevada and Arizona where Tesco has its 119 Fresh & Easy combination grocery and fresh foods stores, such as Safeway Stores' Vons and Safeway, Kroger's Fry's and Smith's, and Albertsons, are unionized.

Others retail chains that sell food and groceries like Tesco's Fresh & Easy, Wal-Mart, Costco, Trader Joe's, Target and a couple others are non-union.

The UFCW union, as we've previously reported, has backed off somewhat so far this year compared to last year, in its aggressive, multi-front campaign to unionize Tesco Fresh & Easy Neighborhood Market's store-level employees.

However, according to our sources, the union is planning to once again intensify its campaign to unionize the Fresh & Easy store workers in the coming months. That return to a more aggressive campaign will kick off when United Kingdom-based Tesco, which owns and operates Fresh & Easy USA, holds its Annual General Meeting (AGM) later this year in the UK.

We will have more on what the UFCW will be doing in an upcoming piece.

[Below is a selected, linked bibliography of past stories and posts in Fresh & Easy Buzz about the UFCW union's campaign to unionize store-level employees of Tesco's Fresh & Easy Neighborhood Market (and related issues, including the Employee Free Choice Act), which currently has stores in California (Southern and Bakersfield), southern Nevada and Metropolitan Phoeniz, Arizona, in the Western United States.]

>February 13, 2009: Labor & Food Retailing: Kroger Co. Chains Sign New Contract With the UFCW Union in Vegas; What Happened to the UFCW Tesco Fresh & Easy Campaign?

>November 10, 2008: Food Retailing & Organized Labor: Tesco's Fresh & Easy Gets Some Company as the UFCW Union Launches Campaign to Unionize Wakefern's PriceRight Banner

>November 4, 2008: U.S. Organized Labor, Including the UFCW Union, is Feeling Good Tonight About A President Obama and Stronger Democratic Majority in Congress

>October 28, 2008: The UFCW Union, Tesco's Fresh & Easy, U.S. Labor Relations, and Next Week's Presidential and Congressional Election

>October 2, 2008: Tesco Fresh & Easy Denies Huntington Beach Store Employees Request to Be Recognized As A Union Store; Next Step Likley to Be Open Ballot Election

>September 26, 2008: News & Analysis: Employees At Two More Fresh & Easy Grocery Stores Could Soon Request UFCW Union Recognition From Tesco's Fresh & Easy

>September 17, 2008: Store Workers at Huntington Beach Fresh & Easy Demand Union Recognition From Tesco Fresh & Easy Neighborhood Market

>August 27, 2008: UFCW Union Reports Tesco Fresh & Easy Neighborhood Market's Prepared Foods Supplier to Labor Board For What it Says is Unfair Firing of Six Employees

>August 5, 2008: UNI Global Union Launches Tesco-Specific Alliance; Calls For Tesco Executives to Meet With UFCW Union Officials Over Fresh & Easy Neighborhood Market

>August 4, 2008: Pico Rivera, California City Council Members Boycott Fresh & Easy Store Grand Opening; Mayor Attends But Delivers Pro-UFCW Union Message to Execs

>July 30, 2008: UFCW Union Flyers On His Door Knob Cause Heat in 'The Pragmatic Chef's' Mental Kitchen; Others Wondering About the Negative Campaign As Well

>July 3, 2008: July 3, 2008: Mid-Week Fresh & Easy Roundup: Fresh & Easy Gets Caught in A Land Use Dispute; Those Near-Famous Mixed Grill Packs; More On Manhattan Beach

>July 4, 2008: Breaking News: UFCW Union Strikes Again With Anti-Tesco Fresh & Easy Brochure Drop in Neighborhood Surrounding New Manhattan Beach Store

>July 2, 2008: UFCW Union Pickets Out in Force This Morning At Manhattan Beach Fresh & Easy Store Grand Opening

>June 30, 2008: Breaking News: UFCW Union Launches Preemptive Anti-Tesco Fresh & Easy Brochure Distribution Drop on the Eve of Manhattan Beach Store Grand Opening

>June 26, 2008: Tesco 2008 AGM: Barack Obama Sends Second Letter to Tesco CEO Requesting the Company Meet With U.S. UFCW Union Leaders About Fresh & Easy

>June 22, 2008: Vocal Cast of Critics and Advocacy Groups to Attend Tesco's Annual General Meeting On Friday, June 27

>June 4, 2008: News and Analysis: UFCW Union Takes its Tesco Union Organizing Campaign Across the Pond to the United Kingdom Beginning Today

>March 26, 2008: United Food and Commercial Workers Union Begins its Spring 2008 Organizing and Communications Campaign Directed at Tesco's Fresh & Easy

>February 11, 2008: Supermarket Union President Asks Britain's Prince Andrew to Arrange A 'Sit-Down' With Tesco Fresh & Easy Neighborhood Market Senior Executives

>December 30, 2007: UFCW Union to Organize Fresh & Easy Clerks in 2008

[Follow Fresh & Easy Buzz around on Twitter.com at www.twitter.com/freshneasybuzz.]

Analysis: Major Retailers Costco, Whole Foods Market and Starbucks Propose Employee Free Choice Act 'Third Way' Compromise; What About Fresh & Easy?

Members of the United Food & Commercial Workers (UFCW) union and their families, like those pictured above, are out campaigning for passage of the Employee Free Choice Act, which will likely be voted on soon in Congress.

On March 22, the CEO's of two food and grocery retailing companies -- Jim Sinegal of Costco and John Mackey of Whole Foods Market, along with Howard Schultz, the CEO of Starbucks -- announced that the three retailers had formed what they are calling the ad hoc "Committee for a Level Playing Field for Union Elections."

Specifically, the three leading U.S. retailing chains say the group has come together to open dialogue about a "third way" approach to reform labor law. The group says its "purpose is to offer a new solution wholly distinct from the recently-introduced and controversial 'card check' bill, the Employee Free Choice Act (EFCA)."

All three retailers -- Costco, Whole Foods Market and Starbucks -- are currently non-unionized chains.

Heading up the "committee" is the highly-connected Washington, D.C. lawyer Lanny Davis, a Liberal Democrat. Davis, who is a partner in the Washington, D.C. office of the Orrick, Herrington and Sutcliffe law firm, most recently led Whole Foods Market, Inc.'s team of outside legal counsel (three firms) in the natural grocery chain's battle against the U.S. Federal Trade Commission's (FTC) nearly two year antitrust legal challenge against Whole Foods' 2007 acquisition of rival natural foods retailing chain Wild Oats Markets.

On March 6, 2009 the FTC and Whole Foods reached a settlement agreement which required Whole Foods Market, Inc. to only sell 13 stores (12 former Wild Oats stores and one existing Whole Foods banner store, sell 19 former Wild Oats stores that were already closed, and sell the acquired Wild Oats' brand and related intellectual property.

Lanny Davis, the spokesperson for the "third way" group, came onto the Whole Foods legal team in about January, 2009. Prior to that the FTC had made every indication that it planned to do all in its power to overturn the 2007 merger-acquisition. Just two months later, on March 6, a settlement agreement was reached. The politically-connected Davis, who is more of a lobbyist-lawyer than he is a litigator, was instrumental in Whole Foods' being able to settle the antitrust challenge.

Davis served as former President Bill Clinton's Special Legal Counsel in the 1990's, where he honed his skills by defending the President and now Secretary of State and former First lady Hillary Clinton against a myriad of charges -- Trooper Gate, Whitewater, the Monica Lewinsky scandal and impeachment -- just to name three.

Lanny Davis is a close personal friend of Hillary Clinton. They met while attending Yale Law School together in the 1960's and have been fast friends and political allies since. Davis was a key fund raiser for and supporter of Hillary Clinton's 2008 campaign for the Democratic nomination for U.S. President in 2008.

And when Barack Obama won the nomination, Davis became the leading public and private advocate within the Democratic party for her being named Vice President by President Obama.
When the then Democratic nominee and now President named Joe Biden as his Vice President, Davis became the leading advocate to the Obama team for Ms. Clinton's being named Secretary of State. She was named to that position by President Obama.

In making the announcement of the Costco-Whole Foods Market-Starbucks "third way" on the Employee Free Choice Act (EFCA) legislation coalition on March 22, Lanny Davis said: "The founding companies that formed the committee have consistently appeared on Fortune Magazine's 100 Best Companies to Work For. Their CEO's -- James Sinegal of Costco, Howard Schultz of Starbucks, and John Mackey of Whole Foods Market -- today introduce a 'Statement of Principles,' that would substantially level the playing field for union organizers, improve their access to employees and provide a fair chance to make their case for a union election."

The use of the term "third way" by the Lanny Davis-led retailer coalition is very interesting. Former President Clinton, who's administration Lanny Davis was a member of for a number of years as legal counsel (along with being close to both of the Clintons), often used the term "third way" to describe its centrist approach to politics and governing, meaning not right or left, or highly partisan, but using a "third way." [Click here for information about what's called the "third way" approach to politics and legislation.]

Interestingly, former Illinios Congressman Rham Emmanuel, who is currently President Obama's chief of staff and was a former staff member in the Clinton Administration, was one of the promoters of that "third way" strategy and position during the first Clinton Presidential campaign and during Clinton's first term. The "third way" didn't last much in President Clinton's second term, amid all the partisan ranker that took place.

Below are the six principals the Costco, Whole Foods Market and Starbucks CEO's have designated as what they want to be part of the debate (and a part of the eventual legislation if they get their way) in Congress over the Employee Free Choice Act (EFCA), which the U.S. House of Representatives is beginning to discuss and debate, and will likely vote on in the next couple months:

1) Secret Ballot. Guarantee the right of management and unions to require a secret ballot under all circumstances.

(2) Certification and Decertification Treated Equally. Permit management to initiate a decertification campaign through a secret ballot election just as employees and unions are presently able to initiate certification and decertification campaigns.

(3) Date Certain for Elections. Guarantee a fixed time period for the secret-ballot election--i.e., do not permit delays of an established day for a secret ballot to certify or decertify a union.

(4) Equal Access to Employees for Campaign Purposes. Level playing field for unions and management to access employees during non-working hours during the campaign period, e.g., permitting each to make presentations to employees at a neutral location concerning the issue of whether to form a union.

(5) Expedited Enforcement and Stricter Penalties. Expedited enforcement for serious and pervasive violations of law by labor and management and stricter penalties for serious and pervasive violations (e.g., unlawful discharges), including the penalty of mandatory injunctions when appropriate.

(6) Preserve Private Collective Bargaining. No mandatory arbitration that dictates contract terms, but stricter penalties and expedited enforcement for violations of good faith bargaining rules, including an expedited timetable to begin bargaining after union certification.

These six principals would guarantee a fixed time period for the secret-ballot election--by eliminating delays for establishing a day for a secret ballot to certify or decertify a union, Lanny Davis, representing the three retailers, says. The principles also include increased penalties for serious and pervasive violations of the law by labor or management and expedited procedures to impose them, Davis says.

Davis says the group strongly opposes the EFCA in its current form, which includes the abolition of a guaranteed option for management or employees to require a secret ballot, what they call a "bedrock principle of American democracy."

The group also opposes the EFCA's provision for government-imposed mandatory arbitration dictating terms of employment, which would overturn the time-valued tradition dating back to Franklin Delano Roosevelt and the Wagner Act of 1935 that preserves private, good faith collective bargaining, free of government intrusion or dictates, according to Davis and the group's position statement.

"We believe in and trust our employees, which is neither anti-union nor pro-status quo," says James Sinegal, the CEO of Costco. "We favor fairness and believe that the passage of a law based on these six principles will ensure a fair opportunity for workers to make an informed choice, with a secret ballot, whether they want a union or whether they wish to retain non-union status."

The coalition is asking other retailers that agree with its approach to join their group So far no other retailers we are aware of have joined Costco, Whole Foods Market and Starbucks in the coalition. It's only been three weeks since the retailers announced the formation of the group though.

The main aspect of the Employee Free Choice Act (EFCA) that's got non-unionized food and grocery retailers, along with most of corporate America and small businesses, up in arms is what's called the "Card Check Provision." Card check basically allows workers at non-union businesses (or stores in the case of retailers) to check a box on a card provided by a union indicating if the employee is for or against unionization. If a majority of the employees check "yes," that they are for a union shop, the company or business must go along with the worker-majority and unionize that particular store, plant or other business place.

Currently, employees, unions and employers go through a secret ballot process similar to how American citizens vote for their elected political leaders -- from city Mayor on up to President of the United States. The secret ballot process allows employers to lobby workers extensively if they desire to do so, attempting to persuade them that joining a union would be against their best interests and the interests of the company they work for.

Unions argue this process is unfair because it stacks the deck against unionization. Employers argue that's not true. It's a stalemate. And it's one of the primary reasons that organized labor wants the Employee Free Choice Act and its "Card Check" provision passed into law.

It's this "Card Check" provision of the EFCA that the Costco-Whole Foods-Starbucks coalition wants to change most.

Lanny Davis says that, contrary to assertions made by supporters of the EFCA, the card-check bill would, in fact, permit the exclusion of the secret ballot option. "It defies logic to say that once 51% of eligible voters sign the cards, the union that is entitled to automatic certification under EFCA would then ask for a secret ballot. That deprives the 49%, and perhaps some who signed the cards under pressure, the right to demand a secret ballot."

Organized labor says the "Card Check" provision in the current Employee Free Choice Act (EFCA) legislation before the U.S. House of Representatives allows for employees to choose a secret ballot election if they desire, or to choose the card check off process. As such, the unions say the bill offers full employee choice.

Davis says he has discussed the Costco-Whole Foods Market-Starbucks "Statement of Principles" with the staffs of almost two dozen Democratic and Republican Senators. Most, he said, indicated the Senators for whom they worked were "positive about our third way approach, including many Democratic Senators who were co-sponsors of EFCA and had voted for the same measure last year."

"I'm proud to call myself a pro-labor liberal Democrat who believes that reforms are needed to provide a level playing field for both labor and management, but not at the expense of a guaranteed option for a secret ballot by both workers and management and certainly not at the expense of preserving the historic process of private, voluntary collective bargaining, Davis says. "I consider the committee's third way' proposal based on these six principles to be favorable to labor and fair to management. "If I did not, I would not have taken on this assignment."

"Given the severe economic crisis facing America it is time to avoid the polarization that has occurred on both sides of this issue, and instead, come together to find a productive approach," Davis adds.

Organized labor's AFL-CIO responds

The AFL-CIO's Bill Samuel recently responded to the Costco-Whole Foods Market-Starbucks coalition and Lanny Davis' arguments in a statement. Below is what the union leader said:

"The Employee Free Choice Act is about protecting the fundamental freedom of workers to bargain with their employers for a better life and to join a union without corporate interference and harassment. The proposal being circulated by these companies falls short of meeting these standards.

We (AFL-CIO) are open to discussing the legislation with parties who are legitimately concerned with protecting workers. However, 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.

Of particular concern (to organized labor) is the removal of majority sign up – which exists under current law - and the removal of the arbitration provisions. Removing the arbitration provisions will allow companies to continue to stall and delay and refuse to negotiate a contract in good faith.

It appears the battle is joined.

U.S. House and the Employee Free Choice Act

The Employee Free Choice Act (EFCA) passed the U.S. House of Representatives in 2007 with a strong majority (241 members in favor, 185 against). Most Congressional observers expect the 2009 EFCA bill to pass in the House by an equally wide margin again this year when it is voted on.

The Democrats obtained an even stronger numerical House majority after the 2008 elections than they had in 2007. A majority win is all that's required to pass legislation in the House, unlike in the Senate where it takes 60 votes to pass a bill if the opposition party launches a filibuster of a given piece of legislation.

House Democratic speaker Nancy Pelosi is a major supporter of the Employee Free Choice Act (EFCA), and says getting the legislation passed is one of her key legislative priorities this year.

The U.S. Senate and the Employee Free Choice Act

The Employee Free Choice Act (EFCA) passed in the U.S. Senate in 2007 by a four vote majority -- 51 members for, 49 against. Forty seven Senate Democrats, the two Independents in the Senate, and one Republican -- Senator Arlene Spector of Pennsylvania who now says he opposses the EFCA -- voted for the bill in 2007. All of the Senate Republicans except Spector voted against the legislation in 2007.

But as mentioned above, majority does not rule in the Senate in most cases of legislation. Members of the minority party can filibuster a bill, which the Republicans did with the EFCA legislation in 2007. In order to beat a filibuster, 60 votes in favor of the bill are required. The Senate Democrats missed the mark by nine votes in 2007.

In addition, then Republican President George W. Bush was against the legislation, and planned to veto it if passed in the Senate. It takes those 60 votes in order to make a bill veto-proof. As a result, the Republicans were able to kill the EFCA bill in the U.S. Senate in 2007.

The Democrats gained a number of seats in the Senate in the 2008 election. But at a current 56 members they remain short of the full 60-member super-majority needed to prevent a filibuster. President Obama supports the EFCA though, so there is no concern over a Presidential veto as there was in 2007.

The Franken factor

The Democrats do have Senate member number 57 in waiting -- Former comedian Al Franken, who is ahead of Republican Norm Coleman by about 250 votes in what has become the longest-running vote recount in history in Minnesota. Coleman continues to challenge Franken's lead in the 2008 Minnesota Senatorial race. And the Democrats have refused to seat Republican Coleman, which makes sense since he hasn't won either, the former incumbent Senator from Minnesota, in the U.S. Senate, taking away his office. He remains in Minnesota challenging Franken's apparent victory.

Should the courts declare Al Franken the Democratic Senator from Minnesota, that would give the Democrats 57 votes in favor of the EFCA, assuming all of the other 56 Democrats vote in favor of the bill, which no longer is a lock as it was in 2007.

Additionally, If the two Independents -- Senator Bernie Sanders (I-Vermont) and Senator Joe Lieberman (I-Connecticut) -- vote in favor, as they both did in 2007, that would give the Democrats 59 votes, just one short of the required 60 votes needed to make any Republican filibuster moot.

That one vote, under the scenario, just recently went away with Republican Arlene Spector's changing his vote from "yea" to "nay" on the Employee Free Choice Act. But he could potentially change his mind back again, with enough enticement by the Democrat majority. Perhaps a federal government jobs' bill for recession-suffering Pennsylvania that is just too hard to refuse, for example?

The two Senate Independents are members of the Democratic Caucus and vote with the Democratic majority most of the time on domestic issues. Both support the EFCA at present. Lieberman is a former, long time Democrat who left the party after many of its leaders supported his Democratic challenger, Ned Lamont, in the last election.

Lieberman defeated Lamont in the Connecticut general election, changing his party affiliation from Democratic to Independent, which he still keeps. Lieberman supported Republican John McCain and not President Obama in the 2008 election. Despite that, President Obama reached out to the Independent and saved his Senate Committee Chairmanship for him, a debt owned the Democratic President, who supports the EFCA, by Joe Lieberman.

That means under this scenario -- Franken gets seated, all the Senate Democrats (57 with Franken) and the two Independents vote yes for a total of 59 votes -- that the Democrats will need to convince one moderate Republican to vote with the majority in order to pass the EFCA over any Republican fillibuster.

Pressure on moderate Senate Democrats

A coalition of business groups representing corporate America, agribusiness and small business (including the U.S. Chamber of Commerce) is now putting heavy pressure on a handful of conservative and moderate Democratic Senators like Senator Ben Nelson of Nebraska and Senator Bill Nelson of Florida (no relation) to vote against the Employee Free Choice Act (EFCA) legislation in its current form. The business coalition is particularly against the "Card Check" provision in any form being a part of the bill. Since most argue that "Card Check" is the key provision of the EFCA for organized labor, reaching some sort of compromise agreement will be very difficult.

Moderate Democratic Senators like Ben and Bill Nelson, along with a couple others from more conservative voting states, could find it politically difficult to vote for the EFCA though, because in the case of Senator Ben Nelson from Nebraska, which is a major farm state, agribusiness leaders in the state are dead against the legislation.

In the case of Senator Bill Nelson from Florida, his state is one of the hardest hit by the current recession. Business leaders are telling him that a vote for the EFCA by the moderate Senator would be a vote for killing jobs, attempting to put him in a no win situation if he supports the bill.

Of even more serious concern to the Senate Democrat leadrship is Senator Blanche Lincoln of Arkansas, who recently said she is going to have a difficult time voting for the Employee Free Choice Act (EFCA) as it's presently written. The supporters of the EFCA need her vote.

Another Democratic Senator who could go either way on the EFCA is Montana's John Tester, a moderate-to-conservative Democrat who won election in 2008 in a very traditionally Republican state. The first-term Senator wasn't in the Senate in 2007, when the last vote on the EFCA was taken.

The UFCW union and the Employee Free Choice Act

The United Food & Commercial Workers union (UFCW), which represents about 1.5 million unionized supermarket clerks in the U.S., Canada and Puerto Rico, is a major supporter of the Employee Free Choice Act (EFCA). The retail clerks union is currently devoting most of its financial and human resources to lobbying Congress, along with conducting a grass roots organizing campaign, to get the EFCA legislation passed this year.

You can read the UFCW union's position on the Employee Free Choice Act here.

The UFCW has conducted an aggressive campaign since early 2008 to unionize workers at Tesco Fresh & Easy's 116 grocery and fresh foods stores in California (Southern and Bakersfield), southern Nevada and Metropolitan Phoenix, Arizona. [Fresh & Easy Buzz was one of the first publications to report on the union's plans to organize Fresh & Easy store employees in an aggressive and comprehensive manner. Read our December 30, 2007 story here: UFCW Union to Organize Fresh & Easy Clerks in 2008.]

As we reported in this September 17, 2008 piece: [Store Workers at Huntington Beach Fresh & Easy Demand Union Recognition From Tesco Fresh & Easy Neighborhood Market], store-level workers at the Tesco Fresh & Easy Neighborhood Market grocery store in Huntington Beach (Southern) California formally requested of company management to be recognized as a union shop in September of last year.

In this October 2, 2008 story [Tesco Fresh & Easy Denies Huntington Beach Store Employees Request to Be Recognized As A Union Store; Next Step Likley to Be Open Ballot Election] we reported management's response to the store employees, which was to deny the request and suggest the store workers follow U.S. labor law rules and organize a secret ballot election if they desired UFCW union representation, which isn't an uncommon management response to such a letter. [See the bibliography at th end of this story for more reports and analysis.]

It's been six months since the Huntongton Beach store workers wrote their letter and Tesco Fresh & Easy's management denied the request. To date no secret ballot election has been held, nor is one planned as far as we are aware, at the Huntington Beach Fresh & Easy store. We recently talked to employees of the store who confirmed this situation.

Additionally, none of the employees at any other Fresh & Easy markets have requested union representation via letters to company management to date, based on our sources and research.[Related story - September 26, 2008: News & Analysis: Employees At Two More Fresh & Easy Grocery Stores Could Soon Request UFCW Union Recognition From Tesco's Fresh & Easy.]

The UFCW has, since late 2008, been far less aggressive in its campaign to unionize the Tesco Fresh & Easy store-level employees than it was for most of last year, as we wrote about in this piece [Labor & Food Retailing: Kroger Co. Chains Sign New Contract With the UFCW Union in Vegas; What Happened to the UFCW Tesco Fresh & Easy Campaign?] on February 13, 2009.

The union still has a major strategy to unionize Fresh & Easy though, along with numerous other non-union food and grocery retailing chains. Our sources and research tell us the UFCW's less aggressive approach to Tesco's Fresh & Easy over the last few months has more to do with its focus on getting the Employee Free Choice Act (EFCA) passed -- which then will make it much easier to unionize Fresh & Easy employees and all others at non-union chains -- than it does any less desire to unionize Tesco in the U.S.

The coalition's 'third way' and the UFCW

The UFCW has recently indicated, as have all of the U.S. labor unions, that it doesn't support the "third way" principles for the Employee Free Choice Act (EFCA) that are being suggested and advocated by the Costco-Whole Foods Market-Starbucks coalition.

However, with Al Franken yet to be seated as a U.S. Senator, Republican Senator Spector's changing of his position on the EFCA, and the increased pressure being put on moderate Democrats in the Senate by the business coalition against the Employee Free Choice Act (EFCA), some sort of compromise legislation is much more likely this year than it was in the period after the November 2008 election, in which organized labor helped elect a President (Obama) who is a major supporter of the EFCA, and saw a 57-member Democratic majority in the Senate, along with two Independents and one Republican, Senator Spector, all supporting the EFCA legislation, adding up to that magic 60-member filibuster-proof Democrat super-majority.

That 60-member super-majority is now gone, although lots of horse-trading and deal making will be going on by Senate Democrats to obtain it again on the Employee Free Choice Act EFCA).

Will other non-union retailers join the coalition?

In addition to Costco (which is ranked as the third-largest seller of food and groceries in the U.S. after Wal-Mart and Kroger Co. by a number of research fims) and Whole Foods Market, Inc. ($8 billion in annual sales), numerous top food and grocery retailers in the U.S. are non-union. These major retailers include: Wal-Mart (number one market share leader nationally in the U.S.); Target; Trader Joe's; and others.

And of course Tesco's Fresh & Easy -- which isn't a leading food and grocery retailer in the U.S. but is so globally, United Kingdom-based Tesco being the third-largest retailer in the world after number one Wal-Mart and number two Carrefour, which is based in France -- is a non-union grocery chain. Tesco, which is the number one food and grocery retailer in the United Kingdom, is unionized in Britain.

None of these retailers support the Employee Free Choice Act (EFCA) that we are aware of. Wal-Mart has publicly come out strongly against the legislation. We have yet to see a public position taken by Target, Trader Joe's or Tesco's Fresh & Easy. But, and you will have to trust us on this one, they are all against it.

The UFCW union has attempted to organize store-level employees at Wal-Mart, Whole Foods Market and Trader Joe's in the U.S. for many years, less so at Target. The union hasn't been able to get workers at one store in each of the three chain's unionized to date however.

Most of the leading supermarket chains in the U.S. -- Kroger Co., Supervalue, Inc. and Safeway Stores, Inc. (the top three) -- have all or many of their divisions and stores unionized, with employees represented by the UFCW. Numerous regional supermarket chains and independents, particularly in California and other stronger union states, are also union shops.

For example, in Southern California where Tesco has over half of its current 116 Fresh & Easy markets (the other slightly less than half are split between Arizona and Nevada), and where the grocery chain is headquartered, all of the leading supermarket chains -- Safeway-owned Vons, Kroger's Ralphs, Supervalu-owned Albertsons, Stater Bros. (the top four in market share) -- are unionized.

It will be interesting to see if Wal-Mart, Target, Trader Joe's, Tesco's Fresh & Easy -- all retailers that also position themselves as being progressive -- or any other non-union food and grocery (and other format) retailers join the Costco-Whole Foods Market-Starbucks "third way" coalition.

A major part of the positioning of the three retailers in forming the group and offering an alternative to the present EFCA legislation is that they are progressive retailers, as coalition spokesperson Lanny Davis has made a point of noting. Might other retailers that consider themselves in a similar "progressive" mode join the three? None have so far -- but it's still early.
Meanwhile, organized labor is showing no signs of interest yet in the Costco-Whole Foods Market-Starbucks proposal. And it's our analysis the unions won't unless it begins to look like the Employee Free Choice Act (EFCA) legislation isn't going to pass in the Senate -- it's a virtual lock in the House -- if and when it is voted on this year. The probability is high that it will be voted on in the U.S. Senate this year since House Speaker Pelosi says it will be in that body, perhaps very soon.

The Employee Free Choice Act issue and legislation is only beginning to heat up. It's going to get much hotter in the coming weeks and months. Stay tuned for continued and ongoing extensive reporting and analysis on the issue in Fresh & Easy Buzz.

[Below is a selected, linked bibliography of past stories and posts in Fresh & Easy Buzz about the UFCW union's campaign to unionize store-level employees of Tesco's Fresh & Easy Neighborhood Market (and related issues, including the Employee Free Choice Act), which currently has stores in California (Southern and Bakersfield), southern Nevada and Metropolitan Phoeniz, Arizona, in the Western United States.]

>February 13, 2009: Labor & Food Retailing: Kroger Co. Chains Sign New Contract With the UFCW Union in Vegas; What Happened to the UFCW Tesco Fresh & Easy Campaign?

>November 10, 2008: Food Retailing & Organized Labor: Tesco's Fresh & Easy Gets Some Company as the UFCW Union Launches Campaign to Unionize Wakefern's PriceRight Banner

>November 4, 2008: U.S. Organized Labor, Including the UFCW Union, is Feeling Good Tonight About A President Obama and Stronger Democratic Majority in Congress

>October 28, 2008: The UFCW Union, Tesco's Fresh & Easy, U.S. Labor Relations, and Next Week's Presidential and Congressional Election

>October 2, 2008: Tesco Fresh & Easy Denies Huntington Beach Store Employees Request to Be Recognized As A Union Store; Next Step Likley to Be Open Ballot Election

>September 26, 2008: News & Analysis: Employees At Two More Fresh & Easy Grocery Stores Could Soon Request UFCW Union Recognition From Tesco's Fresh & Easy

>September 17, 2008: Store Workers at Huntington Beach Fresh & Easy Demand Union Recognition From Tesco Fresh & Easy Neighborhood Market

>August 27, 2008: UFCW Union Reports Tesco Fresh & Easy Neighborhood Market's Prepared Foods Supplier to Labor Board For What it Says is Unfair Firing of Six Employees

>August 5, 2008: UNI Global Union Launches Tesco-Specific Alliance; Calls For Tesco Executives to Meet With UFCW Union Officials Over Fresh & Easy Neighborhood Market

>August 4, 2008: Pico Rivera, California City Council Members Boycott Fresh & Easy Store Grand Opening; Mayor Attends But Delivers Pro-UFCW Union Message to Execs

>July 30, 2008: UFCW Union Flyers On His Door Knob Cause Heat in 'The Pragmatic Chef's' Mental Kitchen; Others Wondering About the Negative Campaign As Well

>July 3, 2008: July 3, 2008: Mid-Week Fresh & Easy Roundup: Fresh & Easy Gets Caught in A Land Use Dispute; Those Near-Famous Mixed Grill Packs; More On Manhattan Beach

>July 4, 2008: Breaking News: UFCW Union Strikes Again With Anti-Tesco Fresh & Easy Brochure Drop in Neighborhood Surrounding New Manhattan Beach Store

>July 2, 2008: UFCW Union Pickets Out in Force This Morning At Manhattan Beach Fresh & Easy Store Grand Opening

>June 30, 2008: Breaking News: UFCW Union Launches Preemptive Anti-Tesco Fresh & Easy Brochure Distribution Drop on the Eve of Manhattan Beach Store Grand Opening

>June 26, 2008: Tesco 2008 AGM: Barack Obama Sends Second Letter to Tesco CEO Requesting the Company Meet With U.S. UFCW Union Leaders About Fresh & Easy

>June 22, 2008: Vocal Cast of Critics and Advocacy Groups to Attend Tesco's Annual General Meeting On Friday, June 27

>June 4, 2008: News and Analysis: UFCW Union Takes its Tesco Union Organizing Campaign Across the Pond to the United Kingdom Beginning Today

>March 26, 2008: United Food and Commercial Workers Union Begins its Spring 2008 Organizing and Communications Campaign Directed at Tesco's Fresh & Easy

>February 11, 2008: Supermarket Union President Asks Britain's Prince Andrew to Arrange A 'Sit-Down' With Tesco Fresh & Easy Neighborhood Market Senior Executives

>January 2, 2008: Sacramento Bee on UFCW Union and Fresh & Easy

>December 30, 2007: UFCW Union to Organize Fresh & Easy Clerks in 2008

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