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The Other Half of EFCA

Would the Employee Free Choice Act--the mis-named bill best known for a provision would put an end to secret-ballot voting in union organizing--also empower government bureaucrats to impose the initial contract between a newly recognized union and an employer? No one, explains Slate's Mickey Kaus, seems to know:

The arbitration parts of the card check bill are so vaguely drawn that nobody knows who the arbitrators will be. The job appears to be delegated entirely to the Federal Mediation Service. The FMS might decide to use its own employees. It might decide to use arbitrators from the private sector selected along more traditional lines. The two breakfast debaters (Prof. Richard Epstein and attorney Anthony Segall) did seem to agree that, since thousands of arbitrators might quickly be needed for the expected explosion of mandatory arbitration, it's unlikely they would all be newly hired GS-12s. But they don't know.

But, as Kaus explains, whoever is in charge, mandatory arbitration will inevitably "freez[e] in place hierarchies and job categories both across industries and within individual firms."

Labor-induced stagnation: that's a sure recipe for success.

Commentary's Jennifer Rubin calls the provision "far more extreme" than Roosevelt's National Industrial Recovery Act, which allowed industries to set their own (incumbent-protecting) codes. Unions, she concludes, "would have little reason to agree voluntarily to a deal with management so long as a government arbitrator would be available to ring still more concessions out of the employer."

No surprise, then, that mandatory arbitration is a top labor priority, perhaps even more so than card-check. Opposition to ending secret-ballot elections--or, at least, the fear of the political fallout from doing so--has kept EFCA from moving forward this year, leading some to predict that, with watered-down card-check language, the bill could cruise through Congress this summer, arbitration language intact.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.