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The EFCA and Meatloaf - When it comes to Binding Arbitration, Two out of Three Aint Bad...

So Card Check is DOA, eh?  If you believe what's making the rounds, the Democrats have determined what everyone else knew all along - that removing a right to vote on an important issue isn't something that plays well to the majority of Americans - even to Democratic senators in states still moderate and capable of swinging Republican next election cycle. 

More on EFCA movement from the American Spectator:

"News broke earlier that Senate Democrats, seeking to save the Orwellian-named "Employee Free Efca Choice Act," have agreed to ditch the provision that would enable unions to rapidly expand their membership ranks by denying workers a right to a secret ballot on unionization. However, the new bill would preserve the other major element of the bill, which would force businesses that failed to reach a contract agreement with unions to accept terms imposed by a mediator. The Associated Press reports that unions are on board with the move. Many conservatives had predicted that if EFCA was in serious danger, Democrats would drop the controversial "card check" provision and settle for binding arbitration. But while the arbitration provision has received less attention, it is no less damaging to the economy or workplace freedom."

So if Card Check is gone, the pro-business groups are right to focus on the dangers of binding arbitration, which by all accounts will be set at the 90 to 120 day mark in the revised bill.  That means if a union is voted in, you've got 90 or 120 days to negotiate a contract with a union before it goes to a federal arbitrator, which obviously is a wild card for business where terrible things can happen.

Here's my take - I'm not sure we'll be able to prevent binding arbitration in the EFCA.  At the risk of peeving my anti-EFCA colleagues, I'd rather focus on winning 2 out of 3 important issues embedded in the EFCA discussion.  You know 2 of them from what's written above - card check and binding arbitration.

The 3rd issue?  That's easy.. What's the election period the company and union will have to pitch their case to employees before the vote is held?  I've read that the Dems are pushing for 10 days, even a 5-day election period, which is basically no campaign period at all.

Binding arbitration might be a done deal.  Organizations like the US Chamber of Commerce deserve a lot of the credit for escalating the card check argument to the point with the moderate Democrats had to pull  their support or risk a fiasco in the next election cycle.  If the Chamber has to pick the next hill to take in the EFCA fight, I'd prefer they secure the need for a 30-day election campaign over killing binding arbitration.

Here's why.  If you can't win the vote against the union after a 30-day campaign, you've likely got workplace issues you should have corrected long ago but chose not to.  A 5 or 10-day campaign is a dice roll, even for good workplaces and companies.

Two out of three ain't bad.  No card check and a 30-day campaign means arbitration doesn't enter into the picture for most employers who are doing things the right way. 


Michael VanDervort

KD- gotta disagree with you. Binding arbotration is worse - for one simple reason. It fundamentally changes the premise on which the entire collective bargaining process is based - the right of workers to withhold their labor, and the right of management to not have to agree to any demand that they believe is fundamentally bad for their business. Both sides know the ultimate consequences and make decisions accordingly. With arbotration, even baseball arbitration, you don't know what will happen at all.

I'd much rather have a shortened campaign calendar in fromt of me. At least I know the rules.

With arbotration, there are no rules, only new unplowed ground.

Ann Bares


I understand where you're coming from here; it's a pragmatic position. But I agree with Michael that the binding arbitration clause introduces a wild card into the process that changes the dynamics completely.

Also, you have to consider the emerging small and mid-size businesses that represent the innovation and job creation engine of our future. Many of these organizations do not have an expert HR Manager or Director on staff, let alone someone seasoned in labor relations. As a result, they may not be prepared to react as quickly and decisively as someone like you might to a campaign. My fear is that binding arbitration will end up as a nearly inevitable outcome for small, growing businesses - which could stop a lot of them in their tracks. Or at least throw a significant boulder into their path.

In sum, I fear that the binding arbitration clause would have far reaching affects on our economic growth that may not be readily apparent today. My two cents worth.

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