The So-Called Compromise

Ambinder had rumblings last night, and now there's a clear split among employers, with Starbucks, Costco and Whole Foods proposing an alternative organizing bill to supplant the Employee Free Choice Act.

As business and labor gird for battle over legislation that would make it easier for workers to organize, the debate could be transformed by a "third way" proposed by three companies that like to project a progressive image -- Costco, Starbucks and Whole Foods.

Like other businesses, the three companies are opposed to two of the Employee Free Choice Act's components -- a provision that would allow workers to form a union if a majority sign pro-union cards, without having to hold a secret ballot election, and one that would impose binding arbitration when employers and unions fail to reach a contract after 120 days.

But the companies' CEOs say that they also recognize that just opposing the legislation, dubbed "card-check," is not enough, because of the widespread perception in Democrat-dominated Washington that there is not a level playing field between labor and business. So the CEOs have come up with ideas they hope will form the basis of new legislation.

Their proposal would maintain management's right to demand a secret ballot election, and would leave out binding arbitration. The proposal would keep the third main element of the "card-check" bill -- toughening the penalties for companies that retaliate against workers before union elections or refuse to engage in collective bargaining. But it would also toughen penalties for union violations, and it would make it easier for businesses to call elections to try to decertify a union.

To address labor's concern that businesses intimidate workers before elections, it would set a fixed period in which an election must be held, limiting the delays that give employers time to exert pressure. The proposal does not specify what the time period should be.

The proposal would also provide unions equal access to workers before elections -- for instance, by allowing organizers to address workers on a lunch break in the company cafeteria just as management can.

Um. Would this improve upon current law? Probably, although the decertification provision is probably ripe for abuse. Does it come anywhere near what is needed to fix the broken bargaining process? No, in a word. Without binding arbitration on contracts, and without the option for majority sign-up, you keep labor in a box, and keep the playing field tilted toward management. This statement from AFL-CIO Government Affairs Director Bill Samuel reflects labor's concern:

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 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 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.

That said, there are positive and negative elements to this from the perspective of politics.

The positive is the perceived split among business. Anti-union forces oppose this deal, and the cracks among businesses can be exploited.

However, these companies, particularly Starbucks and Whole Foods, are no friends of labor. The NLRB cited Starbucks for illegally firing three union organizer baristas in New York City and prohibiting employees to discuss union issues at work. Whole Foods' CEO compared unions to herpes: "It doesn't kill you, but it's unpleasant and inconvenient and it stops a lot of people from becoming your lover." These are not good-faith negotiating partners.

And the bigger negative is that this now becomes the "sensible centrist" alternative, the Solomonic way, that the bipartisan fetishists can push forward and consider themselves beloved by all rational people. Just look who brokered this deal:

The effort is being led in Washington by Lanny Davis, a former special counsel to President Clinton. Davis said he has approached about 20 Senate offices and gotten an overwhelmingly encouraging response. The Employee Free Choice Act has majority support in both chambers, but there are signs it may have trouble getting a filibuster-proof 60 votes in the Senate, where several centrist Democrats who previously supporting it are expressing reservations.

Sen. Mark Pryor (D-Ark.), a centrist ambivalent about card-check, praised the companies' proposal. "I appreciate good faith effort that could result in a reasonable compromise on what has become a highly polarizing matter," he said.

You can just see where this can go, ending in a half-measure that will fail to solve the problem. It's the old "Washington compromise" all over again. And only workers get screwed, so who cares, right?