Card Check May Fall to Death by Negotiation

Costco, Starbucks and Whole Foods may seem unlikely to win the affection of their fellow retailers over their proposal for compromise on the Employee Free Choice Act, or card check bill, but they may just have begun the process of gutting the proposal.

Costco, Starbucks and Whole Foods are suggesting compromise in a situation where the two sides in direct opposition have firmly said they don’t want it. Labor wants major retailers unionized by the easiest route possible, and that’s EFCA bill before Congress. Non-unionized major retailers want to keep labor organizers out, and that means uniting as much support as possible to kill the measure.

The three retailers introduced their compromise proposal under the umbrella of something called the Committee for a Level Playing Field for Union Election, an organization represented by Lanny Davis, a lawyer who was a special counsel to President Bill Clinton. Compromise might be welcome by the administration, allowing the President Barak Obama to appease labor allies without spending political capital he wants to devote to issues such as health care.

The compromise offered isn’t likely to satisfy labor. While it nominally focuses on developing a fair way to ensure secret ballots in union election, the committee proposal doesn’t provide  clear directives about how this might be accomplished and, on top of that, takes out a provision for binding arbitration in labor negotiations. One of the major points of the EFCA is providing binding arbitration to deprive employers of what unions deem stalling tactics, prolonging the process of setting union elections and stretching out contract talks to thwart labor representatives when they need to get a deal done quickly.

In the meantime, as the EFCA bill rattled around Congress, Wal-Mart suddenly loomed to provide an interesting little a sideshow. Late last week, Reuters reported that Wal-Mart would award about $2 billion in bonuses and other incentives to its U.S. hourly employees. Wal-Mart’s new CEO Mike Duke detailed the move in a memo Reuters said it had “obtained” without revealing its source. Skeptics couldn’t be blamed for suspecting the ultimate source was Wal-Mart itself.

Wal-Mart has invested in both benefits and public relations recently to ensure it isn’t viewed as a bad employer, but it remains part of the majority camp of businesses that oppose the EFCA bill and make the argument that it would cost jobs at a time when they are needed badly. Even if peripheral to the main issue, the Wal-Mart action muddies the waters, and that’s not good for labor. It needs the EFCA bill as written, recognizing that a compromised version could provide employers the kind of maneuvering room they have  used to keep organizers at arm’s length. Labor organizers, though, are politicians in their own way and might not be prepared to fall on their swords if they can’t push through a law they are sure is effective.

Reports have floated about more compromise proposals coming on EFCA. Ultimately, it may be in the interest of the bill’s opponents to drag out the debate with new recommendations and compromises and let it lose steam while other issues arise to distract Congress and an administration that may be prone to distraction. Remember those stalling tactics? Even if they failed to kill EFCA outright, stalling tactics might ensure that any compromise that becomes law won’t effectively change the status quo.