Davis, the Whole Foods lawyer, counters that card check robs workers of the anonymity of a secret-ballot election, exposing them to coercion by union organizers. Yampolsky discounts that claim, however, pointing out that the NLRB will probably design the cards to allow workers to check one of two boxes: either to form the union or to ask instead for a secret-ballot vote on the question. Moreover, the corporate world’s Fabian Veras usually know well in advance of a union election how workers will vote, Yampolsky points out. “Both sides essentially do the same thing, which is go to the workers, ask them if they support the union, and then engineer various ways to test their position,” he says. “Except the employer has profoundly more power in asking the question as well as access to workers."
Still, Davis maintains that uneven balance of power is better solved by improving unions’ access to workers, setting a firm date for union elections, and tightening penalties for serious violations of labor law such as illegal firings. “This is not a compromise between union bashing on one side and management bashing on the other side,” he says of the proposal. “We’ll make this into a labor reform bill that levels the playing field."
The group’s ideas mirror several proposals in a recent law review article by Arlen Specter (R-Pa.), who Democrats had hoped would protect EFCA from a filibuster in the Senate before he came out against it two weeks ago. Though Davis says 20 Senate offices have offered reactions to the plan ranging “from encouragement to extreme happiness,” it has met stiff opposition from EFCA sponsors George Miller, Tom Harkin, and Rob Andrews. “It was written by CEOs for CEOs,” the congressmen said in a statement. “It is nothing more than a classic Washington lobbying campaign intended to confuse the issues and disguise the real agenda of maintaining the status quo.”
Whole Foods vs. the Teamsters
Even after unions are certified and begin representing workers, 40 percent of them disband before negotiating their first contract. Such was the fate of the only union ever established at a Whole Foods store, a local of the United Food and Commercial Workers in Madison, Wisconsin. Once employees approved the union in 2002 and began negotiating a contract with Whole Foods’ lawyer, they asked the company to award raises more equitably, establish a grievance procedure, and protect them from arbitrary firing. The lawyer rejected the proposals but never put forth alternatives, while scheduling and rescheduling meetings that were spaced out every other month for more than a year. “They were just trying to stall,” says Debbie Rasmussen, who worked at the store’s juice bar and spearheaded the union effort. Whole Foods meanwhile hired anti-union workers while firing her and another union sympathizer on a technicality: drinking a botched latte instead of discarding it, she says.
Whole Foods employed similar tactics in 2006, after truck drivers working at its San Francisco-based distribution center voted to unionize with the Teamsters. The company fired two of the drivers, altered its sick-leave policy, froze wage increases, refused to provide information to the union that was necessary to negotiate a contract, and “harassed and disciplined employees,” found NLRB investigators, who concluded that “Whole Foods engaged in a variety of retaliatory measures to discourage union activity.” An out-of-court settlement required Whole Foods to reinstate the employees and reverse some of its policies.
Similarly, in 1999, after workers at a coffee bean roasting plant in Kent, Washington, elected to unionize, Starbucks stalled contract negotiations for a year while systematically denying employment at the plant to any job applicants who’d ever been in unions or were related to union members. The NLRB eventually forced Starbucks to compensate several workers it hadn’t hired and pay damages to a fired human resources employee who’d exposed the arrangement—though not before the plant’s stacked workforce voted out the union.
To prevent employers from stalling negotiations while intimidating and firing employees, EFCA would require deadlocked contract talks to go before a federal arbitrator—an idea that Whole Foods attorney Davis calls “way over the top.” He instead proposes stricter penalties for bad-faith bargaining. Yampolsky is skeptical of the idea, noting that proving bad-faith bargaining in court “is incredibly difficult.”
As it stands, a union that hasn’t inked a contract with an employer after a year can be voted out by employees, as happened in Madison. Though the UFCW claimed but never proved that Whole Foods illegally promoted the vote, Whole Foods now wants the right to require a referendum on union representation at any time; Mackey “wanted the right of employers to go to workers and ask for another union election if he feels the union is doing a bad job,” Davis explains.
Employees at the Bay Area Whole Foods store grant that Mackey’s model of “conscious capitalism” makes workers feel like they have a voice, but say that their rights are still subject to the whims of the men in charge. Mackey is pushing ahead with plans to build two new stores in San Francisco even as an existing store is cutting back hours, freezing hiring, and asking employees to do the same amount of work in less time, the workers say. “My opinion is, you shouldn’t open a new store if you can’t take care of what’s going on at the ones you already have,” says a worker, who asked that his name and the exact location of his store not be used for fear of reprisals. “But they are going to
take the opposite approach. If they can cut costs at our level and then open up a new store, that’s what shareholders want.”
The recent anti-union lecture at the Bay Area store has made some workers skeptical that Whole Foods will react with integrity and good faith to their organizing campaign—not to mention the broader efforts at labor law reform. As the meeting dragged on, the store’s manager falsely implied that employees in Madison who’d organized the store’s workers had been nothing more than plants from the labor union. “Union organizers got into the store [and] while they were employed there they started organizing the store,” he claimed. “After their job was done, so to speak, they left the store, they left the company, leaving behind team members that really weren’t the driving force behind this.
“Pretty soon thereafter, they were kind of regretful of what they had done."