(Note: part five of six.)
Under the proposed Employee Free
Choice Act (EFCA), if a union and management cannot agree to terms on the
critical first contract after the union is recognized, either side can 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 look like. In
part four of this series, we considered the risks that so-called "interest
arbitration" poses for employers, much of which was based on the possibility
that the arbitrator’s guess might be too high, especially on the always
contentious issue of wages and benefits. Here, we will consider the consequences
that interest arbitration poses for workers.
The most obvious consequence is
that employees may be stuck working for less than they might have received at
another company, but that is not necessarily the end of it. Because of the way
that binding arbitration affects some of the lesser known provisions of the
National Labor Relations Act, workers could also be stuck with a 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. Those same workers would then be stuck 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 will be unable to
even attempt to remove that union for several years.
The National Labor Relations Act
(NLRA) does provide for the removal of a union that has lost worker support. The
process is similar to that used to bring a union in today. When opponents
collect signatures from 30 percent of their coworkers, they can petition for a
decertification vote. The same rules apply if workers want to bring in a
different union.
EFCA, however, changes the process
for creating a union shop. Under EFCA’s "card check," a union will be recognized
once it has signatures from a majority of workers, without allowing for the
age-old democratic centerpiece known as a secret ballot vote. EFCA doesn’t
change the basic process for removing a union, but the peculiarities of the
binding arbitration process mean that workers who are dissatisfied with their
union will have fewer chances to start that decertification procedure.
Employees who have a beef with the
union cannot just go out and start collecting signatures, however, they must
wait until the law presents them with an opening. The EFCA, and 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 its opportunity to negotiate its first contract.
Then comes the contract bar. Once a
collective bargaining agreement is reached, a decertification election may not
be held while that contract is in place, 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. If there’s a contract before that first
year expires, the contract bar sets in, the window slams shut and they 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.
What’s more, workers have the right to go on strike or to refrain from striking,
as they think 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.
With binding arbitration in place,
these rights are likely to be gone or rendered moot. EFCA does not provide for
workers to terminate the arbitration process. No matter how long arbitration
drags on the workers will remain stuck with it, even if it goes on for longer
than a year — which is typical in Michigan. Once an arbitrator is called in, his
or her word will be final, so a vote to reject the contract is out of the
question.
As was noted in
part three of this series, 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 also involves months of
uncertainty and working while not really knowing how much one is actually
earning. And in states that do not have right-to-work protections, 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.
It should be remembered that EFCA
does not merely force workers and management into binding arbitration, it also
makes 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. As we showed in
part two, 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 support of a majority of
workers.
If one combines card check with
binding arbitration, as EFCA does, the result is a system where union officials
can finagle or bully their way into representing workers who do not really want
them there, and those workers will be obliged to wait several years — and pay
union dues for two years — before they have any chance to get rid of the
unwanted union. Such a 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 will represent 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:
workers should not be forced to accept representation from a union in which they
have lost confidence. EFCA’s binding arbitration process will have the effect of
making it even more difficult for workers to remove a union, and it leaves no
possibility that workers might reject what they perceive to be an arbitrator’s
bad ruling. Instead, it leaves them stuck with an arbitration process and an
arbitrator that they did not choose and cannot remove, no matter how long it
takes or how stingy the arbitrator turns out to be.
Whether in combination with card
check or standing on its own, mandatory binding arbitration is a risky deal for
management, and it is not a particularly good deal for workers, either. Neither
employers nor employees should be forced into it against their will.
#####
Paul Kersey is senior labor policy
analyst at the Mackinac Center for Public Policy, a research and educational
institute headquartered in Midland, Mich. Permission to reprint in whole or in
part is hereby granted, provided that the author and the Center are properly
cited.