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.

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The BNA Daily Labor Report (subscription needed) provides an interesting re-cap of a seminar held by NYU’s Center for Labor and Employment Law where Thomas Kochan (member of President-elect Obama’s transition team) asserts that the misleadingly named Employee Free Choice Act would “build quality labor-management relationships.”

Kochan said that he sees “no significant differences found between settlements reached through arbitration or through bargaining” in public sector collective bargaining. No difference? Unfortunately there will be clear difference in collective bargaining agreements negotiated in good faith in the private sector compared to the terms imposed on businesses by a Federal bureaucrat as this legislation would allow.

Andrew Kramer, an attorney at the firm of Jones Day reminds us that “that the government is not in the business of imposing terms and conditions,” under concepts held in current labor law. Unfortunately this bill would be a radical overhaul of our current legal system that does nothing to encouraging cooperation between employers and labor unions.