(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.