Card-Check Bill Would Empower Federal Government to Dictate Labor Agreements

January 5, 2009 - 5:22 PM
A little-known provision of Big Labor's proposal to do away with secret-ballot union elections could force binding arbitration and government-mandated agreements in cases where the negotiating parties can't agree. 
(CNSNews.com) – A provision in the controversial Employee Free Choice Act (EFCA) would allow federal arbitrators to dictate the terms of labor contracts – contracts that would be binding on both businesses and employees for two years.
 
The bill, which is heavily favored by labor unions and congressional Democrats, says that if a majority of workers wish to unionize, the employer must enter into collective bargaining with them within 10 days of their decision.
 
“Not later than 10 days after receiving a written request for collective bargaining,” the bills states, “the parties shall meet and commence to bargain collectively.”
 
If, after 90 days, no agreement is reached, the law empowers federal arbitrators to step in and facilitate negotiations between a business and the new union.
“If after the expiration of the 90-day period beginning on the date on which bargaining is commenced  ... the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation.”
 
If the government fails to negotiate a compromise within 30 days, the law allows it to dictate one, which will be binding for two years unless both parties agree to amend it.
 
“(If) the Service is not able to bring the parties to agreement by conciliation,” the law says, “the arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.”
 
The EFCA would grant no opportunity to either employees or businesses to appeal the government’s decision, nor would it allow a newly organized union to vote on the deal.  The law also does not allow for unions to strike if they don’t like the government-mandated agreement.
 
Any agreement the government dictates wouldn’t be a contract, said Heritage Foundation labor expert James Sherk, because contracts are negotiated between two parties, not dictated by governments.
 
“You can’t really call it a contract, because a contract is voluntarily agreed to by both parties,” Sherk told CNSNews.com. “They will dictate to the company and the workers the conditions that would have been in a labor contract for the next two years.
 
“Whatever the arbitrator hands down is final. The workers lose all say, and the employers lose all say,” Sherk added.
 
The bill, if it becomes law, would amend the National Labor Relations Act of 1935, a Depression-era law designed to give workers increased rights to unionize. A mandatory arbitration proposal was considered then, too, Sherk said, but was rejected on the grounds that it actually took power away from workers.
 
“The decision made by Roosevelt and the Democrats at the time, something I believe was a good decision, was that the goal was to give workers more bargaining power,” Sherk said.
 
“You balance the workers’ power against the employer’s power, but at the end of the day, both of them have to agree that they can live with the final contract. With binding arbitration, none of that holds true,” he added.
 
A spokesman for the AFL-CIO, speaking on condition of anonymity, said that the new law would not allow the government to simply dictate terms to workers. Instead, any federal ruling would be based on previous negotiations – guaranteeing workers a contract.
 
“It would certainly be a more complicated process. It would be based on the negotiations already taking place. It is trying to make the process more fair so that workers can be guaranteed that should they organize a union, they would have a contract.”
 
Sherk argued that the mandatory arbitration proposal was worse than central planning, because it lacked a coherent process for dictating bargains.
 
“These arbitrators have no expertise. Their goal is to bring people together. They don’t have the economic expertise to write these contracts. They don’t know the working conditions. They don’t have the business background to write business conditions for these companies,” Sherk said.
 
“It’s got all the downsides of bureaucratic central planning without the upsides of at least having a coherent central plan.”
 
The legislation has passed the House, but it has not passed the Senate. House Majority Leader Steny Hoyer (D-Md.) told Fox News’ Chris Wallace on Sunday that the EFCA would be passed early this year for President-elect Barack Obama to sign.
 
“I don’t know about the first month, but we’re going to pass it early,” Hoyer said.