At National Review’s The Corner, there are several good posts refuting organized labor’s claim that the Employee Free Choice Act will still allow secret-ballot elections. In theory, yes. In the real world, of course not. Never, ever.

House Majority Leader Steny Hoyer tried to sell the unbelievable argument in the otherwise obfuscation-free interview Sunday on Fox News. (Passage here.) Former NLRB member Peter Kirsanow responds here.

Rep. Hoyer’s assertion on Fox News Sunday that EFCA wouldn’t eliminate secret ballot union elections but would present merely an alternative method for union certification is accurate. It’s also wildly disingenuous. No union, upon obtaining the requisite 50% +1 of union authorization cards, is going to petition for an election when at that point the union can be instantly certified under EFCA.

Hoyer knows perfectly well that employees may act differently in the privacy of the voting booth than when asked to sign a card in the presence of co-workers and union agents. Unions know this, too. That’s precisely why EFCA would cause the extinction of secret ballot union elections.

The good news for EFCA opponents is that if this is Hoyer’s best defense of EFCA, he knows the bill’s got problems.

See also these comments.

In a separate post, Kirsanow makes the important point that the “card check” component of the Employee Free Choice Act is not the only objectionable provision, and indeed, the binding arbitration requirements also make the legislation unacceptable.

For some time, experts close to the EFCA debate have maintained that the strategy of EFCA proponents was to compromise on either the bill’s card check provision or the mandatory arbitration provision in order to enhance the probability that at least one of those provisions would pass. Some contended that mandatory arbitration was always the principal goal of EFCA supporters.

Doubt it has ever been the principal goal, but binding arbitration is clearly a priority for labor. We covered that part of the debate here.

A welcome examination appears in today’s Wall Street Journal of the legal and constitutional considerations involved in the Employee Free Choice Act. Richard Epstein, a professor of law at the University of Chicago, addresses the issues in the op-ed, “The Employee Free Choice Act Is Unconstitutional.”

Epstein’s critique of the card check provisions as abridging free speech rights is intriguing and of particular importance to small businesses. A card check campaign can be conducted clandestinely — think of how you could organize a shop of 20 people over a weekend just by going door to door — depriving an employer of his rights to make the case against unionization.

But Epstein’s analysis is even more persuasive when applied to the binding arbitration provisions. Under the Employee Free Choice Act, both employer and the newly recognized union would have to agree on a first contract within 120 days. If not, then a government arbitrator — an arbitration panel — imposes a two-year contract on both parties. Epstein:

The government-chosen panel could well impose terms that might cripple the firm competitively. Consider that the takings clause surely prevents the government from forcing any person to buy real estate for twice its market value from a seller. That same principle applies to this labor law: No government should be able to force a firm to hire labor at $50 per hour when the company is not willing to pay half that much.

Worse, the EFCA also permits the government arbitrator to strip the employer of all its standard management prerogatives on everything from subcontracting out to promotion policy. By flatly denying the employer any option to walk away, mandatory arbitration under the EFCA runs smack into the takings clause.

Arguments in the 2007 Congressional debate against the Employee Free Choice Act focused primarily on the card check provisions and their destruction of secret-ballot elections in the workplace. The anti-democratic nature of those provisions gave — and still gives — opponents a powerful political weapon, a campaign issue. People want to vote in private, period.

But as time passes, the forced arbitration provisions are coming to the fore. Employers recognize that an imposed contract eliminates the ability to operate a business the way they see fit, and a flawed contract could put them out of business, period. That practical threat, now combined with Epstein’s legal analysis, reveals the Employee Free Choice Act to be a serious, even existential threat to American businesses and a competitive economy. And it means the bill is not one that can be compromised, but only killed.

Rep. Hilda Solis, President-elect Obama’s selection for U.S. Secretary of Labor, is a supporter of the Employee Free Choice Act, the legislation that would eliminate secret ballots in the workplace, inviting intimidation of employees. The bill would also require binding arbitration if first-contract negotiations did not reach conclusion within 120 days, imposing a two-year contract on employers and union alike with no possibility of change.

Here is the statement she made on the legislation during House debate on H.R. 800, March 1, 2008:

Ms. SOLIS. Madam Speaker, I rise in strong support as a family member from a strong union background. My father was a shop steward for the Teamsters and my mother was a proud worker for the United Rubber Workers, who worked tireless for 20 and 25 years. Without the health protection we received and the retirement benefits, I know myself and my seven siblings wouldn’t be where we are today.

It is important for people to have the ability, especially in this day than a time, when new women, new immigrants, are coming about, and want to be part of the American fabric. One of the ways they can do that is by joining the union, being part of that, to have those protections in place.

When union people get paid good wages, that money stays in the community, it helps to provide a vibrant economy, it helps to also even send their children, like me, who is a child of immigrants and of a union household, to be able to come to college and to eventually even run for office. Wow. Outstanding.

The unions always get a bad name by certain people in this area, but I will tell you one thing: I am very proud to stand with many of our union members to see how they have revitalized many of our communities, especially in Los Angeles.

I ask for you to support H.R. 800.

Here’s the YouTube video of her floor statement.

A post from Point of Law, the legal blog run by Walter Olson of the Manhattan Institute:

Critics of EFCA have concentrated most of their fire on the bill’s abolition of the right to a secret ballot before installing a union. But Michael Maslanka at Texas Lawyer suggests that union and Democratic strategists may be willing to trade off card check and instead accept some less radical alteration to current election procedures, such as snap elections in which employers would have relatively little time to make their case. That would furnish cover for pushing through EFCA’s other main provision, the one that hasn’t gotten so much attention, which would direct the imposition of an arbitrator-written union contract if the parties failed to reach one after the initial vote. “The unions will put up a fight on the secret ballot but won’t really care. …The gem of EFCA for unions is that they always, always, always get a contract. Sweet.”

Our suspicions are the same. Card check’s attack against the secret ballot is so egregious, running so contrary to the customs of American democracy, that we opponents have highlighted it. The public readily understands the argument, “They want to eliminate the secret ballot and replace it with a process that will allow union organizers to threaten you into joining…or else.”

Still, in the last half year or so, we’ve tried to talk more about the binding arbitration provisions, which are awful and anti-democratic in their own right. If an initial contract is not reached after 120 days, a government arbitrator comes in and simply imposes a contract on the  company and union for two years. If you run company in a hotly competitive industry and the arbitrator gets it wrong? Well, your company dies.

Compromise. Yeah, compromise.

House Majority Leader Steny Hoyer provided an indication that’s where the majority might be headed when he circumlocuted on the issue on Fox News Sunday.

We’re going to look at that. We’re going to see if there are modifications to it that can be effective. We’ll bring compromise. But we think, absolutely, American workers have the right to organize and be recognized.

Hoyer made similar comments at his November 18 news conference at the National Press Club.

Forecasting a possible labor agenda under an Obama Administration the WSJ outlines today that includes many familiar items — the Employee Free Choice Act — and some not so familiar, including the RESPECT Act, as well some lesser known provisions within the card check bill such as language to impose binding arbitration for first contracts. The column’s summary of the mandatory arbitration provisions is the most concise argument against the card-check bill that’s out there.

Another labor-friendly provision of the Employee Free Choice Act is mandatory arbitration. Under current law, labor and management are required to bargain in good faith but aren’t obliged to reach an agreement. Under Mr. Obama’s proposal, if the parties can’t settle on a contract within 120 days, the dispute goes to an arbitration panel which can impose a contract that is binding for two years.

 

As a practical matter, contracts typically involve dozens of provisions dealing with wages as well as seniority, grievances, overtime, transfers and promotions. Rarely is this accomplished in four months. The provision would notably shift bargaining power to unions, which would have an incentive to run out the 120-day clock and let an arbitrator impose a contract that is bound to include much of what unions demand.

Other points included in the column:

• Senator Obama’s support for the RESPECT Act. This seemingly innocuous bill would drastically amend the National Labor Relations Act to change the legal definition of a supervisor. The result would place many supervisors in the same bargaining unit as their subordinates. As clear conflict of interest;
• The Senator would bar companies from replacing striking workers; 
• Sen. Obama’s plans would also force state and local governments to recognize union leaders as the exclusive bargaining agent for first responders instead of allowing these important public servants to negotiate directly with their employers.
• Additionally, the column states that Sen. Obama is against states’ rights to pass Right to Work laws that protect employees that refuse to join a union or pay union dues.

In other related news, House Republican Leader Rep. John Boehner (R-OH) opines in Townhall.com other plans to implement big labor’s agenda. His piece focuses on the impact of EFCA and Sen. Obama’s position on the bill. Boehner speculates that if EFCA passes “With the stroke of a pen, a time-honored right [to secret ballot union elections] would be signed away into the pages of history.”

Peter Kirsanow at NRO’s The Corner details the “other” provisions of the so-called Employee Free Choice Act and poses some great questions.

As nervous as employers are about card check, it’s EFCA’s first contract mandatory arbitration provisions that have businesses ordering antacids by the truckload. Under EFCA, if the company and union fail to reach agreement on a contract within 120 days after the union requests bargaining, the matter will be referred to an arbitration panel that will actually write the contract. That contract is binding for two years. I’ve negotiated more collective bargaining agreements than I can remember, but I can’t remember too many times when an agreement was reached on an initial contract in four months. It sometimes takes that long just to agree upon the shape of the table.

What if an arbitrator mandates a wage scale that makes the employer uncompetitive? What if the arbitrator puts the company into a pension plan that renders the company unmarketable? Can the arbitrator require interest arbitration in exchange for a no-strike clause?  The questions are interminable.

Yesterday several leading Senators held a press conference in the Capitol with business leaders to warn about the consequences of the misnamed Employee Free Choice Act (EFCA). The Senators who participated (including Sens. Hatch, Enzi, Ensign and Senate Republican Leader McConnell) highlighted some of the lesser known provisions in the bill, such as binding arbitration.

Senator Hatch declared the EFCA ,: “… one of the most heinous pieces of legislation in history,” Hatch also pointed out one of the unfortunate realities of card check systems , i.e “These union organizers will keep coming back until you sign the card. Some people just sign the card to get rid of them.”

Senator Enzi explained that EFCA would lead to federally appointed arbitrators actually setting  wages, pension and health care benefits, work hours and other terms. The Senator said:

“If we adopt this bill, labor and management will no longer negotiate most new contracts and third parties will decide all the important issues such as pay, hours, benefits and working conditions.”

Under EFCA,  bureaucrats from Washington would have unchecked power to impose a two-year binding contract, one that would not even allow the employees to ratify it or approve its terms. Government knows best?  Not when it comes to running your own business.