Obama cautioned on union favoritism

Related video: "Employee Forced Choice Act"
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Dems Shouldn't Rush on Labor Legislation

The labor movement has announced that it will push passage of the Employee Free Choice Act (EFCA) in the first 100 days of the Obama administration. There is even talk of adding it to President-elect Barack Obama's stimulus legislation, to reduce the spotlight on the issue. This haste is a mistake.

I am a Democrat who has worked at both the National Labor Relations Board (NLRB) and the Federal Mediation and Conciliation Service (FMCS), two agencies that figure prominently in this legislation. I believe we need a better understanding of the problems before signing on to this bill as the solution.

The Employee Free Choice Act has three main components: certification of a union as the bargaining representative if a majority of employees sign authorization cards; mandatory arbitration on the terms of a contract if the parties cannot reach agreement; and stronger penalties for unfair labor practices during a union organizing campaign or while the parties are negotiating a first contract.

Related video: "Employee Forced Choice Act"

Proponents say a quarter of union campaigns result in the illegal firing of at least one employee, and that more than a third of newly certified unions never reach a contract with the company. Opponents say that a secret-ballot election is a time-honored American tradition and that mandatory arbitration only encourages irresponsible negotiations.

Yet the underlying concerns that EFCA supposedly addresses have not been sufficiently examined because hard data are difficult to secure. The FMCS and the NLRB are treasure troves of information, with databases that could give us some answers. Congress should analyze these data before making any decisions.

Consider mandatory arbitration. The FMCS tracks the progress of bargaining for a two-year period after a union wins an election, including the issues that plague the parties during negotiations, the number of mediation sessions, when those sessions were held, and the basis for closing a particular case. Yet the service protects the release of some of those data under mediator confidentiality claims. This information would allow us to determine what actually happens during negotiations that potentially delays a contract.

Similarly, NLRB data can establish whether patterns exist in the kinds of unfair labor practices committed during contract negotiations. MIT recently published research using the board's data establishing that an unfair labor practice charge against an employer reduces the chances of reaching a contract by 58%. Under the Employee Free Choice Act's enhanced remedies provision, employers who engage in flagrant unfair labor practices during an organizing campaign and immediately after a union win must pay significant penalties. But does the rest of this law address the lag in reaching contracts? Will mandatory arbitration solve this problem? We don't know.

Equally important are the practical difficulties EFCA might present. When contract terms are imposed, it absolves the parties of their responsibility to compromise, a critical component of labor-management relations. Conflict resolution professionals rightfully claim that parties to a contract must have "buy in"; they must be part of a joint conciliatory process when reaching terms of a contract that governs their relationship.

And what about the cost of EFCA to Main Street employers, already under pressure in this economy? With companies struggling to survive and the credit markets tightening, passing this bill does not guarantee widespread unionized employment or wage increases.

Case in point: In Canada, after an arbitrator imposed the terms of a contract last month, Wal-Mart was forced to close one of its facilities because of higher costs. Arbitration does not always help employees.

No worker should be fired for supporting a union, nor should employers unlawfully evade their duty to bargain. But the jury is out as to whether the Employee Free Choice Act is the only answer. Let's take a closer look first.

- Ariella Bernstein was deputy director of public affairs during her tenure at FMCS from 2003-2006. She served as a field examiner and supervisor at the NLRB from 1990-2003.


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