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).

Jane M. McFetridge, managing partner of Jackson Lewis LLP’s Chicago office, testifyied at the Senate Committee on Health, Education, Labor, and Pensions hearing, “A Fair Share for All: Pay Equity in the New American Workplace.” From her prepared statement:

The Paycheck Fairness Act would preclude employers from making market-based pay determinations, encourage frivolous litigation, and expose companies to financial ruin by way of uncapped punitive damages and massive class action litigation. Rather than eliminating discrimination, the legislation, if passed, would provide a windfall to attorneys who litigate employment discrimination cases, but result in no meaningful change in the extant wage differential. Furthermore, the Paycheck Fairness Act would levy enormous cost on companies and employers already reeling from the worst economic crisis we have seen in most of our lives.

As public policy, the legislation would be harmful, she testified, but for law firms like Jackson Lewis, it would mean a lot of lucrative new work.

The hearing Thursday also provided a good reminder of how policymaking benefits from having elected officials with experience in the private sector. Both Sen. Mike Enzi (R-WY) and Sen. Johnny Isakson (R-GA) drew on their backgrounds as former business owners to get beyond ideological talking points into a discussion of how litigation-inviting legislation would burden employers — the people who actually create jobs.

Here’s Enzi’s opening statement.

From the EFCA Labor Law and Reform Blog published by Jackson Lewis LLP, reporting on the American Bar Association’s winter meeting last week in Puerto Rico and the AFL-CIO Executive Council’s meeting in Orlando.

Fred Feinstein, former General Counsel of the National Labor Relations Board, spoke at the Bar Association meeting.  He thinks EFCA in a compromised form is still a possibility.  Card check is gone but mandatory arbitration and increased penalties might remain, along with expedited elections.

Mr. Feinstein attributed the delay for passage of EFCA to more pressing items, such as health care, having to take priority.  Since the health care legislation appears to be coming to a climax, it seems that the “health care” rationale for delaying an EFCA vote will no longer justify inaction. EFCA, at least in some form, will have to be brought up for a vote or buried.

Labor certainly hasn’t given up on its campaign to use federal government to restructure the U.S. economy. Here’s just one more example, a hearing Wednesday by a House Education and Labor Committee subcommittee on H.R. 413, Public Safety Employer-Employee Cooperation Act of 2009, designed to force states into collective bargaining with public safety unions.

Philadelphia talk radio station WPHT broadcast an hourlong townhall discussion this morning on the Employee Free Choice Act, focusing today on the employers’ perspective. The Jackson-Lewis law firm helped organize the event, and the firm has an excellent website devoted to the card check legislation.

The program is now available as streaming audio here.

Aric Newhouse, the NAM’s senior vice president for government relations and policy, was one of the panelists. His opening remarks:

Our member companies in this economic environment are facing huge challenges. Using the president’s numbers from Monday night, we’ve lost three million jobs in this country in the last year; we’ve lost 500,000 jobs in the last month. Our companies are facing huge competition from overseas, rising health care costs, rising energy costs… just a very difficult economic environment. This bill is going to put additional cost pressures on our manufacturers, has the potential to make our companies uncompetitive, and will cost jobs.

The program was hosted by Rick Grimaldi. Other panelists:

David Islinger, Jackson-Lewis, Morristown
Steven Law, U.S. Chamber
Marty Payson, Jackson-Lewis, White Plains