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Slice and Dice on Card Check


It’s been reported that a coalition of “labor friendly” retailing giants—Costco Wholesale Corporation, Starbucks Corp., and Whole Foods Markets Inc.—has met with congressional sponsors of the EFCA (Employee Free Choice Act) in the hope of reaching a compromise on the controversial legislation.  If your mind is flooded with images of foxes seeking entry to the henhouse, it’s understandable.

As most are aware by now, under the provisions of the EFCA ((H.R. 1409, S. 560), employees would be permitted to join a labor union simply by signing cards saying they wish to do so (known as the “card check” method), thus obviating a need for a full-blown NLRB (National Labor Relations Board) certification election.  If 50 per cent  sign cards, they have themselves a union.

Historically, one of the problems with certification elections has been that companies take advantage of their “captive audience” employees by subjecting them to an unremitting barrage of anti-union propaganda.  After being hit with all kinds of threats, pleas, intimidation and misleading data, by the time the actual vote took place, these workers are understandably shaken up and confused.

Sometimes these “indoctrination sessions” are done with home-grown talent, sometimes they are farmed out to consulting firms that specialize in running scare campaigns.  In either case, these anti-union drives can be brutal.  With the stakes this high, companies don’t pull their punches.  Passage of the EFCA would make the whole procedure simpler and, from labor’s vantage, eminently fairer.

Despite the EFCA having the nominal support of President Obama, it’s been speculated that sponsors of the bill—under pressure from House Speaker Nancy Pelosi, who worries that conservative/moderate Democrats voting for it would jeopardize their re-elections in 2010—are open to anything that would avoid what is expected to be a savagely contentious legislative battle.

It goes without saying that House and Senate Republicans, in concert with the U.S. Chamber of Commerce, are vehemently opposed to the bill.  Indeed, its opponents have mounted a comprehensive and well-financed campaign against its passage.  The Chamber of Commerce and other lobbying groups have already raised tens of millions of dollars in an effort to see it killed.

The problem with the rumored compromise, at least from the standpoint of its congressional sponsors and the country’s labor leaders—who haven’t been this excited by a piece of legislation since the 1930s—is that the language changes being discussed appear to neutralize much of the bill’s original sizzle.

To the extent that the EFCA was supposed to reflect the will of a majority of the workers by making it easier to join a union, as well as prevent the company from stalling or playing games at the bargaining table during the newly installed union’s first contract negotiations, this proposed “compromise,” if accurately reported, more or less guts the bill.

While the discussions initiated by Costco, et al, are still in the “informal” stages, tentative proposals have been made.  Among them:  the 50 per cent  card check would be raised to 70 per cent , and the mandatory 120-day time period (after which an arbitrator would be empowered to set the actual terms of the contract) would be removed entirely, allowing management to continue to engage in the same devious tactics that led to these restrictions being proposed in the first place.

Here’s the agonizing part.  Assuming that the details of any eventual compromise are close to those being leaked, organized labor and the bill’s Democratic sponsors are going to be faced with the time-honored Principle vs. Pragmatism dilemma.

Do they stubbornly resist any attempt to dilute what they consider a fair and much needed proposal—while acknowledging that it stands a good chance of being defeated—or do they lower their standards, agree to the compromise, spin it as “the best deal they could get,” and begin plans to build on it for the future?

Getting 70 per cent  agreement on anything is difficult, and labor knows it.  Although Obama’s victory over McCain has been portrayed as “decisive,” he got slightly less than 53 per cent  of the popular vote.  And in his historic 1984 “landslide” defeat of Walter Mondale, Ronald Reagan fell short of 60 per cent .  So anything meaningful (including card check) that can pull 70 per cent  approval is a major achievement.  And labor knows it.

But even if the proposed compromises were somehow made palatable to EFCA’s sponsors, another problem looms.  There’s a competing “coalition” out there—composed of a prominent anti-labor lobbying group (the National Right to Work Committee) and, literally, thousands of smaller, non-union businesses—and this coalition is terrified that Big Business and Big Labor will come to some sort of accommodation.

Despite the prospect of key provisions being removed from EFCA, this coalition strongly objects to making card check (even with the 70 per cent  minimum) the law of the land.  Because they’ve had so much success deflecting union drives in the past, they don’t want anything short of a full-blown NLRB election to be used.  And they are pleading their case to congressional Republicans.

This EFCA issue is still very much up in the air.  It could go to a straight “up or down” vote in its present form.  It could go to a “brokered” vote, after being properly trimmed down and de-fanged.  Or it could be significantly diluted and still face substantial opposition.

In any event, because this bill must be voted on in April, what happens during the next week or two is going to be critical.  One hopes that—win or lose—labor will resist the temptation to settle for crumbs instead of a full slice of the cake.  After all, haven’t they been doing that for 70 years?

DAVID MACARAY, a Los Angeles playwright (“Borneo Bob,” “Larva Boy”) and writer, was a former labor union rep.  He can be reached at



David Macaray is a playwright and author. His newest book is “Nightshift: 270 Factory Stories.” He can be reached at

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