Mandatory Labor Arbitration; Organizers' Compensation for Setback on Card Check

Article excerpt

Byline: Richard A. Epstein, SPECIAL TO THE WASHINGTON TIMES

Rumors in Washington hint that the Employee Free Choice Act is in trouble. The public outcry against the card-check system apparently has taken its toll. One sign of the unions' weakness on this issue is their deliberate obfuscation of the issue. The secret-ballot election would remain available under the act, according to no less an authority than Rachel Maddow. But of course it would be available only at the option of the union and never the employer, which means that were this provision to become law, secret-ballot elections would go the way of the dodo bird.

So now it appears that unions may be prepared to scrap the card check - if they can salvage the more insidious portion of the EFCA, its compulsory arbitration provision.

Here is what the key provision says: Once mediation has failed, the Federal Mediation and Conciliation Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. The arbitration decision then binds the parties for two years.

For the layman, here is what it means: An outpost of the Labor Department, the mediation service, will set the terms of all new labor contracts in the United States. It will do so under provisions that are undefined under the act. The FMCS will have sole authority to pick the arbitration panel, which will have the power to draft, on its own initiative, detailed contract provisions, tables and appendices that can run to more than 1,000 pages. The arbitrators' decision will be final: The EFCA allows neither employers nor unions to appeal arbitrators' decisions to a neutral judicial body.

No one has the slightest idea how this bill would work in practice. Arbitration is common in labor relations, but only for grievances under contracts in an environment that gives both parties control over the arbitration procedures and the selection of arbitrators.

In contrast, interest arbitration requires a panel of arbitrators to draft a contract from scratch to cover every issue: wages, benefits, overtime, layoffs, transfers, grievances, work rules and the like. There is, unfortunately, not a single person in the United States who has any experience dealing with these matters because no business in possession of its faculties has ever surrendered every key management function to uninformed functionaries who are clueless about the operation of the business.

Unions claim that imposing this untried system of the private sector is just a walk in the park. After all, compulsory interest arbitration is used in the public sector in exchange for surrender of the right to strike. …