Of course we’ve talked endlessly about the fact that the Democrat’s Orwellian named Employee Free Choice Act (EFCA) eliminates the employee’s free choice to vote for or against unionization using the ages-old democratic practice of a secret ballot. Who hasn’t, right? In fact, we’ve talked about it so much that even Democrats are turning against this aspect of the act and this is one of the reasons that the bill has not been able to muster enough votes to get passed. So, we can mark that as a tentative victory.
But there is more in this horrible legislation that needs to be highlighted. Here is something as egregious, but perhaps not as flashy as the elimination of a secret ballot. It is the forced arbitration clause. Let’s call it the Back Seat Driver’s clause because it is essentially a rule that says government takes away any say in unionization from BOTH the union, the workers, and the employer.
Here’s what happens in the current labor laws. Workers call for a union. A secret ballot is held and if a majority accept unionization the union and the employer enter into a negotiation phase to hash out what will happen moving forward. After that is done, the workers then have the opportunity to have an up or down vote to accept the negotiated plan. The negotiations often takes many months, but the time table is up to the union and the employer. The upshot is there is no compulsion by law for workers to accept terms. For instance, Section 8 of the National Labor Relations Act (NLRA) says that union and employer should bargain “in good faith.” But in the end also says, “such obligation does not compel either party to agree to a proposal or require the making of a concession.”
The new arbitration clause casts aside all the integrity of the previous process. Section 3 of the EFCA empowers government arbitrators to storm in at the 120 day mark — if union and employer hadn’t yet agreed on a contract — to force both parties to a set of government chosen rules on how a union contract will be settled. This process also eliminates the workers from being able to reject the contract after negotiation as they can now currently do. It is all forced on the union, the workers and the company by the iron fist of government.
Additionally, this government oppression of the process is probably assured no matter what anyone wants for several reasons. For one, it is already quite common that these negotiation periods last longer than 120 days, so the EFCA is nearly assuring that government arbitration will occur in most cases. Yet, even if automatic government arbitration was benign, there are several other instances of the law of unintended consequences befalling the EFCA.
One thing is that since both the union and the employer will come to understand that the government will come in hot and heavy anyway, the two sides will ask for the most stringent and outrageous proposals expecting that the government will swoop in and cut down the middle. The means that both the union and the employer will likely end up always negotiating in bad faith at the outset.
Additionally, the EFCA does not stipulate how these government arbitrators will be appointed and by whom. This leaves the door open for political chicanery where powerful unions can warp the process… or for that matter where big donor business might buy off government to appoint just the “right” arbitrators to their case. In any case, with no clearly defined rules governing appointments, we have a recipe for disaster.
And again, the worst thing is that if the union OR the employees don’t like what the government arbitrator decides… tough luck. They are stuck with it.
And finally, we have one other problem here that is somewhat new in union/employer relations that the EFCA will make worse. With the ever downward trend in union membership, unions have been negotiating from weakness these last few years. They have also been finding their own membership less and less loyal and less interested in continuing to pay dues. This makes collecting dues a real hassle and oftimes a losing proposition.
But unions have lighted upon an ingenious way to avoid having to collect dues from their own membership. Many unions have realized that if they get dues deducted from member’s paychecks by the employer and directly deposited into union accounts, why they don’t have to mess with all the hassle of trying to collect them themselves. It is often called a “dues checkoff.”
Why would employers want to take on this paperwork and accounting hassle themselves? Ordinarily they would not. However, because they are so interested in filling their own bank accounts first, above and beyond what services they are supposed to offer members with those bank accounts, unions want that direct deposit. So, to entice employers into taking on the hassle for the union, the union bigwigs often negotiate away things that the members want. In this case, we have unions not negotiating in good faith for their own members because union bigwigs are just scrounging for cash to fund their own personal lifestyles, corruption, and largess.
A canny company, then, can dangle dues checkoff in front of the money hungry union negotiators and then tell the unions to give away benefits to get it. Because they want that automatic money, many unions have agreed to do so.
What is likely to happen with the EFCA is that unions will increasingly assume that dues checkoff must be a normal part of the employer’s duties to unions. And eventually this burden will end up on employer’s shoulders whether unions give concessions or not.
This causes employers more money in accounting fees, bank fees, etc., fills union bigwig’s pockets with dues money quicker, and gives union powermongers one more reason not to be accountable to their own membership because dissatisfied union members won’t even have the option to withhold union dues as a protest to keep them in line.
(This is how I understand all this. If I have something wrong, I trust the readers will help me clear up where I am off on these issues)