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EFCA Without Card-Check?

January 5, 2009 - by Donny Shaw

Over at the corner, Peter Kirsanow writes that when the Employee Free Choice Act (link to bill in 110th) comes up for a vote, what has generally been considered its main provision, card-check union certification, won’t even be included in it:

>There’s increasing speculation that the Employee Free Choice Act won’t be taken up within the first 100 days of the Obama administration and that when it does come up for vote, the card check provision will be either diluted or stripped from the bill entirely.
>Ever since Nov. 4 employers have been apoplectic that a Democratic president plus huge Democratic majorities in Congress meant the EFCA juggernaut couldn’t be stopped. Consequently, removal or dilution of the card check provision would be met with relief by employer groups.
>That relief would be misplaced. 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.
>Eliminating or modifying card check might quell concerns about “instant” unionization, but mandatory arbitration is no less troubling. EFCA opponents who concede mandatory arbitration in exchange for a more palatable card check provision are making a strategic error.

Here’s how the arbitration provision works:

If a newly formed union and an employer can’t reach a first-contract agreement within 90 days, either party may request mediation from the Federal Mediation and Conciliation Service (FMCS). If after 30 days of mediation, they still can’t reach an agreement, the FMCS will refer the dispute to an arbitration panel that will render a decision to settle the dispute. The panel’s decision will be binding for 2 years, unless both parties agree to drop it and renegotiate.

The AFL-CIO cites a study by John Paul Ferguson at MIT that found that “44 percent of newly certified unions fail to get a first contract.” They current rules dictating first contracts are too lenient on employers who bargain in bad faith and incentivize employers to delay bargaining by withdrawing the union’s presumption of majority status after one year without a contract, they argue.

On the other hand, the Heritage Foundation argues that binding arbitration is a bad deal for workers:

>The most obvious consequence is that employees could be stuck working for less than they might get at another company. And because of the way that binding arbitration affects some obscure provisions of the National Labor Relations Act, workers would be stuck with the union that very well may have let them down, perhaps by not accepting a better offer from management when it had the chance or by putting on a poor presentation in front of the arbitration panel.

The Employee Free Choice Act is expected to be taken up by the House soon, maybe next week. We’ll be watching for the new bill, and then watching down the road to see if there is a coup created to oust card-check.

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