The Wonk Room

McGovern Takes Aim At Employee Free Choice Act’s Arbitration Provision

The Wall Street Journal reported today that the Senate is working on a compromise version of the Employee Free Choice Act. The deal may involve dropping the provision allowing workers to form a union through majority sign-up, while negotiating over other parts of the bill aimed at ensuring that workers who form a union get a fair shot at receiving a contract and implementing stiffer penalties for employers who break labor law.

Evidently thinking the battle over “card check” has been won, conservatives are now turning their attention toward these other provisions. To this end, anti-EFCA spokesman George McGovern penned an op-ed today attacking what he calls the bill’s “compulsory arbitration” provision, which would bring in arbitrators if employers and a union can’t agree on a contract in 120 days:

Compulsory arbitration is bound to trigger the law of unintended consequences. Currently, labor law maintains a careful balance between the rights of businesses, unions and individual employees. While bargaining power differs depending on individual circumstances, the rights of the parties are well balanced. When a union and a business enter negotiations, current law requires that both sides bargain “in good faith.”

The law may require “good faith,” but in reality, workers receive anything but. Here are some examples of what “good faith” looks like these days:

- It took meat cutters at a Texas Wal-Mart nine years after they voted to form a union to begin negotiations with the company.

- Employees at a Rite-Aid drug warehouse in California voted more than one year ago to form a union, but Rite-Aid is trying to run out the clock, so that it can “stop the pretense of negotiating.”

- On March 31, 2007, workers at the Trump Casino in Atlantic City, NJ, voted to form a union. They still have no contract.

Cornell organizing expert Kate Bronfenbrenner found that “a third of workers lack a contract a year after voting for union representation.” “There is no penalty,” she said. “You can have an employer that refuses to meet and talk and the worst penalty is another piece of paper saying, ‘Shame on you.’”

And it’s not like businesses don’t use arbitration in other matters. For instance, businesses love to put mandatory arbitration clauses in contracts with consumers, so that they can avoid class action lawsuits. In fact, companies include mandatory arbitration clauses in 75 percent of consumer agreements. The U.S. Chamber of Commerce has also written that “virtually any type of dispute between private individuals or entities can be addressed by arbitration.”

Any compromise on EFCA needs to have a mechanism ensuring that workers who have legally formed a union can take part in fair contract negotations. The status quo of unpenalized delay is simply insufficient.