President Obama has announced his intention to nominate George Cohen for a role that not too many folks outside of Washington have ever heard of: the Director of Federal Mediation and Conciliation Service. So what’s the big deal? Why is this post important?

Well, if the misleadingly named Employee Free Choice Act becomes the law of the land, the Mr. Cohen will be the one that oversees the agency charged with forcing government contracts on newly unionized private employers.

You may think that’s outrageous, but I refer you to read the details of the legislation:

S.560
Section 3
`(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.

`(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.’.

Yikes. George Cohen, a person you may have never heard of before today may become the person that oversees the system that determines how you can you manage your own workforce.

Former House Speaker Newt Gingrich has a column in today’s Politico, “Arbitration the real threat in EFCA,” that raises important objections to the binding arbitration provisions in the Employee Free Choice Act. However, the Speaker repeats a mistake we’ve seen elsewhere, that is, that legislation would force politicized, National Labor Relations Board arbitrators into the employer-union negotiation process.

Here’s the relevant passage from the text of the bill, S. 560, specifically Sec. 3, “Facilitating Initial Collective Bargaining Agreements.” Our emphasis.

`(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.

`(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.’.

The Federal Mediation and Conciliation Service is NOT the National Labor Relations Board and it’s not the Department of Labor, it’s an independent agency within the Executive Branch. Its arbitrators are not permanent agency appointees. As the FMCS explains (in a 2006 publication):

The Federal Mediation and Conciliation Service (FMCS) maintains a roster of approximately 1,400 arbitrators, who are experienced practitioners with backgrounds in collective bargaining and who meet FMCS arbitration requirements. To be listed on the roster, FMCS will determine whether the applicant:

• Is experienced, competent and acceptable in decision-making roles in the resolution of labor relations disputes; or
• Has extensive and recent experience in relevant positions in collective bargaining; and
• Is capable of conducting an orderly hearing, can analyze testimony and exhibits and can prepare clear and concise findings and awards within reasonable time limits.

Binding arbitration is a terrible, terrible idea. But strong opposition to the binding arbitration provisions in the Employee Free Choice Act should not be interpreted as denigrating the current FMCS-appointed arbitrators. The FMCS’s arbitration process now occurs largely out of public eye and from what we can gather, appears to be effective.

Note how the service now emphasizes “voluntary arbitration” in its publications. The Employee Free Choice Act would make a company’s operations — wages, benefits, work rules — subject to binding arbitration, leading to a potentially life-or-death decision about those operations being made by a third party. That’s unacceptable.

(Edited at 4:42 p.m. for clarity.)