Under the Employee Free Choice Act (EFCA, H.R. 800), if a union
and management cannot agree to terms on the first contract after a
union is recognized, either side could send the dispute into
binding arbitration. This means that both workers and management
must accept what is, at bottom, an arbitrator's educated guess at
what a fair and prudent contract might be. This has serious
consequences 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. And those workers would usually be stuck with
paying union dues out of their disappointing wages. No matter how
badly the union let them down, workers who believe they have lost
an arbitration ruling would be unable to even attempt to remove
that union for several years.
Leaving a Union Difficult
The National Labor Relations Act (NLRA) provides for the removal
of a union that has lost workers' support. The process is similar
to that used to join a union today: Union opponents collect
petition signatures from co-workers. When they have 30 percent of
workers on board, they can petition for a decertification vote. The
same rule applies if workers want to bring in another union.
EFCA would change the process for joining a union. Under EFCA's
card check rule, a union would be recognized once it has signatures
from a majority of workers; there is no vote. EFCA does not,
however, change the basic process for removing a union, and the
peculiarities of the binding arbitration process mean that workers
who are dissatisfied with their union would have fewer chances to
start the decertification process.
Employees who oppose the union cannot just start collecting
signatures; they must wait until the law presents them with an
opening, because the law and the decisions of the National Labor
Relations Board (NLRB) have created several "bars" to
decertification.
First, there is the certification bar: After a union is
recognized, workers must wait a full year before they have an
opportunity to vote to remove the union or bring in another one.
During this time, the union has the opportunity to negotiate its
first contract.
Then comes the contract bar. Once a collective bargaining
agreement is in place, a decertification election cannot be held
while that contract is in effect, for up to three years.
The upshot is that workers are left with narrow windows in which
to request a decertification: Generally a decertification petition
must be filed with the NLRB between 90 and 60 days before a
collective bargaining agreement expires. If negotiations on an
initial contract approach a year in duration without an agreement,
workers may file a petition to remove the union then, too, but if
there is a contract in place before that first year expires, the
contract bar sets in, the window slams shut, and workers must wait
up to three years before attempting to decertify.
So getting rid of a bad union is difficult enough already.
Still, the current law does allow workers to remove a union if
negotiations drag on too long. And depending on the rules of the
union, workers can vote down a contract if they are not satisfied
with its terms. Workers also have the right to go on strike or to
refrain from striking, as they believe is best, if the union calls
for its members to cease working. All of these rights serve to give
workers some degree of autonomy and some control over the
union.
Workers Lose Their Say
With binding arbitration in place, these rights would likely
disappear or be rendered moot. EFCA would not allow workers to
terminate the arbitration process, so no matter how long
arbitration dragged on, workers would remain stuck with it-even if
it lasted longer than a year, which is typical in Michigan, which
employs binding arbitration for government workers.
Currently workers vote to ratify the contract their union has
negotiated on their behalf. If they do not like the terms, they can
vote the contract down and send the union back to the negotiating
table. This does not happen with binding arbitration. Once an
arbitrator is called in, his or her word is final, so a vote to
reject the contract is out of the question.
The typical arbitration process in Michigan takes nearly 15
months. This poses serious problems for employers, who must prepare
for the possibility of back pay awards while waiting for an
arbitrator's decision. The possibility of a 15-month wait for a
raise is not a particularly good situation for workers either,
because the wait involves months of uncertainty and of working
without knowing how much they are actually earning. And in states
that do not have a right-to-work law, the arbitrator's ruling is
almost guaranteed to have a forced-dues provision, because forced
dues are relatively common in collective bargaining agreements, and
arbitrators are likely to follow this widespread precedent. This
means that even workers who are dissatisfied with their unions'
representation would have to pay dues to it.
Traps Workers in a Union
Not only would EFCA force workers and management into binding
arbitration, but it would also make card check certification
mandatory, meaning that if a union is able to collect signed
authorization cards from a majority of workers, it must be
recognized as the representative for all of them. Card check leaves
workers vulnerable to deception and intimidation at the hands of
union organizers and is likely to result in unions being installed
in workplaces where they do not have the true support of a majority
of workers.
Combining card check and binding arbitration, as EFCA does,
would result in a system where union officials can bully their way
into representing workers who do not really want them there, and
those workers would be obliged to wait several years-and pay union
dues for two years-before they would have the chance to get rid of
the unwanted union. This state of affairs would make a mockery of
one of the basic premises of American labor law: The will of a
majority of workers should determine whether or not a union
represents them.
As difficult as it is to remove a union, workers have the right
to do so, and they have that right for a reason: A union should not
represent workers when they have lost all confidence in it. EFCA's
binding arbitration process would have the effect of making it even
more difficult for workers to remove a union, and it would leave no
possibility that workers could reject a bad arbitrator's ruling.
Instead, it would leave them stuck with an arbitration process and
an arbitrator that they did not choose and could not remove, no
matter how long it takes or how stingy the arbitrator turns out to
be.
Conclusion
Whether in combination with card check or standing on its own,
mandatory binding arbitration is risky for workers. Under EFCA,
they would not get the chance to vote to ratify the contract that
an arbitrator imposes, and they would have to wait at least two
years before they could vote to decertify their union. Employees
should not be forced into binding arbitration against their
will.
Paul Kersey is senior labor policy
analyst at the Mackinac Center for Public Policy, a research and
educational institute in Midland, Michigan. James
Sherk is Bradley Fellow in Labor Policy in the Center for Data
Analysis at The Heritage Foundation.