Card Check: Binding Arbitration, a Radical Shift

Judging from the prepared testimony alone, the Employee Free Choice Act was not a dominant topic at a hearing Friday in Berkeley by the House Committee on Education and Labor, “Understanding Problems in First Contract Negotiations: Post-Doctoral Scholar Bargaining at the University of California.” That’s understandable, since negotiations concerning state employees are governed by state labor laws, not the National Labor Relations Act.

Still, Bradley W. Kampas, a partner in the San Francisco office of Jackson Lewis LLP, had useful insights about binding arbitration in first contract negotiations, one of the provisions in the Employee Free Choice Act. From Kampas’ testimony (given on his own behalf, not that of the law firm):

Frustrated by their inability to reach first contract settlements quickly (or at all), many unions and labor supporters have suggested binding interest arbitration if the two parties cannot reach agreement within a certain time line. For instance, the proposed Employee Free Choice would require the parties to enter binding interest arbitration 120 days after negotiations began if settlement had not been reached. While the card-check provision of EFCA received most of the attention from the media and the public, compulsory interest arbitration would have an even greater impact on the business community, employees, and labor relations in general than the practical end of the secret ballot election.

Notwithstanding the unrealistic time pressures (and, in most circumstances, practical impossibility) of negotiating a first contract in four months, compulsory arbitration would completely alter the fundamental concepts of American labor law. It was never the intent of the drafters of the NLRA that the government (or government appointed arbitrators) would play any role in the delicate collective bargaining process. It was never the intent of the drafters that an arbitrator would set terms of conditions of employment to affect the workplace for years.

Kampas cites the Supreme Court’s 1970 ruling in H.K. Porter v. NLRB:

Allowing the Board to compel agreement when the parties themselves are unable to agree would violate the fundamental premise on which the Act is based—private bargaining under governmental supervision of the procedure alone, without any official compulsion over the actual terms of the contract.

The Contra Costa Times previewed the hearing in a story, “Hearing scheduled on dispute between UC, researchers,” noting the involvement of Democratic Reps. Barbara Lee, Lynn Woolsey and George Miller, the committee chairman (all sponsors of the Employee Free Choice Act).

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