Card Check: Rather Large Assumptions on the EFCA

By June 17, 2009Labor Unions

MIT’s Thomas A. Kochan  and Arnold Zack, past president of the National Academy of Arbitrators, have penned a piece in “Roll Call” this week attempting to justify Sec. 3 of the Employee Free Choice Act (EFCA). This is the provision of the bill that would allow for government arbitrators to impose the terms of the first labor contract on newly unionized private employers.

In this piece they claim:

If passed, the Employee Free Choice Act would assign a mediator by the Federal Mediation and Conciliation Service as soon as a new unit is certified to support the negotiations by offering the full range of mediation, education, and facilitation services helping the parties reach a voluntary agreement.

Not exactly. The EFCA dictates in Sec.3 that the NRLA would be modified to add: `(2) If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, 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. Whenever such a request is received, it shall be the duty of the Service promptly to put itself in communication with the parties and to use its best efforts, by mediation and conciliation, to bring them to agreement.

… contrary to those who argue every case will go to arbitration, the presence of arbitration encourages and enhances the ability of the parties to reach voluntary agreements in negotiation and mediation — and incidentally does so without imposing on employees or employers the risks and costs of a strike to get a contract.

While it may be true that not every case will go to arbitration, the possibility of binding arbitration fundamentally changes the nature of collective bargaining. Under the EFCA one party can unilaterally request that the FMCS become engaged in the mediation and arbitration process would create an environment not conducive to mutual negotiations. Instead, both parties will have a greater tendency to position themselves for arbitration during collective bargaining.

If an agreement is not reached in negotiation or mediation, the FMCS would provide the parties with a list of experienced arbitrators of interest who had previously been vetted and judged by a panel of business and labor representatives to be qualified to serve as neutrals.

Unfortunately the bill does not make this clear. It refers to process for how this may occur to “such regulations as may be prescribed by the Service”. Kochan is assuming how the regulatory component of this legislation would play rather than what the bill actually calls for

Note these will not be “government arbitrators” or individuals appointed at the whim of the FMCS. To get on this panel, arbitrators would have to meet the standards of experience, expertise and mutual credibility and acceptability by business and labor leaders. The employer and union in a particular case could select their own arbitrator or, if unable to agree on one, would choose their neutral arbitrator from this list. They could appoint their own arbitrators in a tripartite structure and in discussion of decision options, thereby building more opportunities for input and mediation in the process and giving the parties another way to inform the neutral arbitrator about how different decision options would affect the business and the workforce

Again, the bill does not make this clear. The EFCA does not determine how the arbitrators will be appointed, paid or who will be able to serve on the panel. No where in the legislation is this made clear. See the section on arbitration below:

`(3) If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service. 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.’

Because these would be first contract negotiations, both the employer and the union would have ample opportunity to provide ideas and evidence on how changing, state-of-the-art practices and current competitive conditions should shape the outcome.

Nope, this assertion isn’t written in the bill either.

This is the real world of collective bargaining under arbitration, not some made up scenario painted by those who oppose designing a proven, fair system for resolving first contracts if one or both parties are unwilling to negotiate an agreement on their own.

Proven? Currently the FMCA doesn’t have any operating procedures that force labor contracts on labor unions, employers or employees. This process is far from “proven” as it leaves an incredible amount of responsibility to interepretting the process of binding interest arbitration to the regulatory function of the FMCS.

UPDATE (9:25 a.m. Friday): The authors respond:

Thomas Kochan

The basic point running through the NAM’s comment on our design for a mediation and arbitration system for the Employee Free Choice Act is that these design features were not built into the bill as it was originally drafted. We agree. Indeed that was the main reason we laid out the evidence on arbitration and designed a system consistent with what has proven to work. (See the full report on http://www.lera.org). As we all know, very few bills make it through Congress without more detailed elaboration in the mark up phase of the process. So we join with what we take as the spirit of the NAM comment and encourage business, labor, and Congressional leaders to now get on with the task of putting these features into a marked up bill. We stand ready to assist the parties in this process and look forward to working with business, labor, neutrals and govenment administrators to make this bill realize its full potential once enacted.

Thomas Kochan and Arnold Zack

From Card Check: Rather Large Assumptions on the EFCA, 2009/06/19 at 9:14 AM

Join the discussion One Comment

  • Thomas Kochan says:

    The basic point running through the NAM’s comment on our design for a mediation and arbitration system for the Employee Free Choice Act is that these design features were not built into the bill as it was originally drafted. We agree. Indeed that was the main reason we laid out the evidence on arbitration and designed a system consistent with what has proven to work. (See the full report on http://www.lera.org). As we all know, very few bills make it through Congress without more detailed elaboration in the mark up phase of the process. So we join with what we take as the spirit of the NAM comment and encourage business, labor, and Congressional leaders to now get on with the task of putting these features into a marked up bill. We stand ready to assist the parties in this process and look forward to working with business, labor, neutrals and govenment administrators to make this bill realize its full potential once enacted.

    Thomas Kochan and Arnold Zack

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