Answering McKinnon
Earlier, we let Mark McKinnon, an adviser to the Bush administration, make a case against the arbitration argument used of late by supporters of the Employee Free Choice Act. Now, Josh Goldstein, a spokesman for American Rights at Work, pushes back against some of McKinnon's claims:
Labor law reform must ensure that workers who want to join a union are able to do so without facing harassment and stall tactics from corporations. The Employee Free Choice Act without mediation and arbitration is like a shiny new sports car without an engine - it might look good but it won't get you anywhere. Yet Big Business will say and do anything to prevent workers from getting the fair pay and benefits they deserve. That's why they're pouring millions of dollars into front groups like the Workforce Fairness Institute and operatives like Mark McKinnon to mislead the public on the Employee Free Choice Act..McKinnon now claims that arbitration is the most egregious provision in the legislation, yet he has spent the past several months arguing that the measure eliminated workers' rights to a secret ballot - an accusation that has been proven totally false. Now McKinnon and other visible opponents of this critical middle-class policy solution have moved on to try to hysterically brand another provision as 'Armageddon.'
Before acknowledging the 'end of days' rhetoric from the opposition on arbitration, it's critical to underscore why this provision is even needed. Simply put, corporations use stall tactics during contract negotiations to prevent workers from ever getting the fair wages and benefits and better working conditions that they are seeking. One year after a successful union election, more than half of employers deny their workers a contract. And get this, after the employer has stalled for a year, they can attempt to remove the union. Guess how? Through card check. The procedure which the Employee Free Choice Act would allow workers to use to form a union, is already currently allowed for workers to get rid of their union. Now isn't that the ultimate irony?
In fact, Big Business supports using arbitration in cases where they hold all of the power and control. That is why the U.S. Chamber of Commerce has labeled arbitration "efficient" and "effective" for resolving disputes with consumers over credit cards, telephone service, or home construction transactions and contracts. When it's one individual against a large and wealthy corporation, arbitration suits them just fine. Yet when the parties in a dispute are on a more even playing field, the U.S. Chamber of Commerce argues that arbitration is an "anathema."
The Employee Free Choice Act will help level the playing field and end those unfair stall tactics by giving both workers and companies the right to bring in an outside mediator and then an arbitrator if they can't settle a contract. It's a fair and effective way for workers to reach an agreement with their employers for better pay, benefits, and working conditions.
And the fact is, mediation and arbitration work. Major corporations like General Electric, Borders, Pepsi Cola, and Princeton University have all recently used mediation to successfully negotiate contracts. Even in those places where arbitration is currently the law, like the public sector, 90 percent of cases are settled without the need for arbitration. The reality is there is no 'forced' arbitration. Just as with mediation, if negotiations are going well, the parties can agree not to use arbitration. Furthermore, if both parties agree, they can even choose to not accept the terms of the arbitrated contract.
But what about that pesky other 10 percent? That has to be where those evil, union-biased federal government arbitrators that McKinnon loves to talk about come in, right? Hardly. Arbitrators are independent and are selected by both labor and business - similar to a jury of peers selected by their peers. An important piece of information corporate special interests strategically and repeatedly ignore.
It should come to no surprise that Big Business is once again saying and doing anything to protect policies that work for them, yet prevents workers from having the same choices, and the opportunity to get ahead. The reality is that our leaders have a simple choice to make - whose side will they be on? On the side of corporations protecting a system that has generated millions for CEOs while workers struggle to make ends meet? Or on the side of the President, Vice President, and majority of the American public who say it's time to make the economy work for everyone again?
Sadly, this article is yet another example of the failure of the American political system. Both sides prefer name-calling, suspicion and sarcasm to actually addressing issues. When forced to address issues, both sides do so in a vague and inaccurate manner.
For example, the author of this article waits until the third paragraph before he concludes his attack on McKinnon and corporate America and moves on to a purported attempt to address the arbitration issue. Moreover, the rhetoric on which the author relies (i.e., that corporate America is spending millions to oppose EFCA means that they stand a lot to gain by its failure) can be turned against him. Organized labor has spent more than $2 billion dollars in the past two decades to get card-check written into law, and more than $1 billion since 2000 to support candidates who will vote in favor of EFCA. Moreover, a 10% increase in union density equates to about 15 million new, dues-paying union members. The stakes are high on both sides, so it's absurd for either side to question the other's financial motives.
But aside from these flaws, the author is simply incorrect in a number of his factual assertions and/or suggestions. First, his assertion that employers "stall" negotiations overlooks the fact that there are two sides to every negotiation. Apparently, the author believes that unions never make unreasonable demands, and that failed negotiations are therefore always the fault of the employer. As a labor practicioner, I assure you that this is not the case. Unions do, in fact, demand economic improvements that are unrealistic, particularly in first contracts where the employees are sometimes more than can be delivered.
The author also claims that an employer can "get rid" of a union through card check. Wrong again, this time on multiple counts. First, an employer is prohibited by law from having any involvement in decertification (or "getting rid")of a union. The case law is so specific that decertification efforts have been overturned by the NLRB for employer assistance as trivial as providing paper and pen for the signing of a petition.
Second, there is no card check. Employees can submit to their employer a signed petition stating that they no longer wish to be represented by the union. At that point, the employer can either petition for an election with the NLRB, or voluntarily withdraw recognition from the union. This process is identical to certification. The employees (through the union) present the employer with a petition stating their desire to be represented. At that point, the employer can petition for an NLRB election, or it can voluntarily recognize the union.
The author further accuses employers of supporting arbitration only when "it's one individual against a large and wealthy corporation." Here, the author is simply confused. The arbitration programs to which the author refers involve so-called "rights" arbitration, where the parties have a dispute concerning matters in the past, like an employment discharge or a billing controversy. EFCA requires a completely different type of arbitration, "interest" arbitration. Interest arbitration looks forward and establishes rules to govern the parties' relationship for a period in the future. In the case of EFCA, this means that an arbitrator will decide what an employer would pay its employees and what benefits it must provide them for a two-year period. This is of dubious constitutionality, particularly since the Supreme Court upheld the NLRA specifically on the basis that it only required negotiations and did not force any party to submit to an agreement. Simply put, an individual who invests his time and money in building a business shouldn't be told what he has to pay his employees. The author here ignores that issue by speaking only of "Big Business" and the mega-corporations that are household names. EFCA, however, does not share the author's limited focus.
Finally, the author claims that the arbitrators will only be chosen with the employer's agreement. Again, his theory is contradicted by practice. When an arbitrator must be selected, the employer and the union are typically presented with a panel of seven arbitrators from the Federal Mediation and Conciliation Service or the American Arbitration Association. They each take turns striking a name until only one name is left. That name becomes the parties' arbitrator. The parties have no control over who is on the panel. I've had panels where five of the seven names were former union employee or lawyers. I've also had panels where nearly all of the names were management-oriented. So, to say that the employer gets to choose the arbitrator is somewhat of a misrepresentation.
In any event, this responde is much longer than I intended, so I'll bring it to a mercifully abrupt end.