Lawyer Criticizes Employee Free Choice Act due to impact on Labor Arbitration

The Daily Labor Report had this story today about objections from labor law attorneys to the proposed Employee Free Choice Act:

“The mandatory first contract arbitration provision of the proposed Employee Free Choice Act (H.R. 800/S. 1041) has a “constitutional problem” and if enacted will be challenged in court, a management attorney said June 10. Addressing the Federal Mediation and Conciliation Service’s 14th National Labor-Management Conference, Harold Coxson of Ogletree, Deakins, Nash, Smoak & Stewart in Washington, D.C., said the mandatory arbitration provision for first contracts is the “biggest concern” business has about the proposed legislation. He acknowledged, however, that the measure likely would pass “depending on the outcome of the upcoming elections.”

The Employee Free Choice Act, which was passed in the House last year, but fell nine votes short of the 60 needed to limit Senate debate (21 LRW 925, 6/28/07 ), would among other things amend the National Labor Relations Act to require the National Labor Relations Board to certify a union if signed union authorization cards are presented from a majority of employees in a particular bargaining unit. One provision would require binding arbitration if a first contract were not reached within 120 days of the union’s being certified.

Although Coxson did not say in his address what provisions of the constitution would be violated, he told BNA after the speech that he believed it would violate the takings clause as well as other amendments.

According to Coxson, who was one of several speakers on a panel discussing the future of collective bargaining, compulsory first contract arbitration is the “antithesis of free collective bargaining,” because the parties do not bargain but instead “posture” to get the contract before the arbitrator.

This provision would violate the U.S. Supreme Court’s ruling in H.K. Porter Co. v. NLRB, 397 U.S. 99, 73 LRRM 2561 (1970), Coxson said. In that decision, the court held that NLRB did not have the power to compel an employer or union to agree to any substantive contractual provisions of a collective bargaining agreement.

Coxson also argued that mandatory arbitration “redefines the definition of impasse.” Not agreeing to a contract in 120 days is not “indicative of an impasse or refusal to bargain in good faith,” he added.

In lieu of first contract binding arbitration, Coxson recommended imposing a role for mediators in first contracts to deal with the concerns of parties who never have bargained before.

Coxson said provisions of labor law in Quebec, Canada, are similar to those in the proposed EFCA and that on average it takes 290 days from the time a first contract dispute is referred to arbitration until there is a decision. Contending that this does not address the concerns of delay in negotiating a first contract, Coxson quipped, “That is hardly time saving.”

He added that 47 percent of the parties who bargain initial contracts in Quebec using binding arbitration never get a second contract and only 24 percent ever get a third contract.

A conference participant questioned why Coxson was citing Canadian law when in the United States there are state laws that require first contract arbitration. The participant pointed to Ohio, where, he said, first contract arbitration for public employees has been in place for 25 years and “has been successful.”

Coxson replied that labor has cited the Canadian law as a model and it is instructive to look at all areas of the law.

Jonathan Hiatt, the AFL-CIO’s general counsel, who also was on the panel, said there was “value” at looking at other countries’ labor laws, but added that there are models in the United States that have worked. “The public sector is a good place to look,” he said, noting that many state laws already call for binding arbitration for first contracts. He added that there also are “mini EFCAs” in many states.

But, Coxson retorted that Hiatt was talking about “apples and oranges,” contending that the private and public sectors have different needs. The EFCA only would apply to private sector companies.”

One thought on “Lawyer Criticizes Employee Free Choice Act due to impact on Labor Arbitration”

  1. This management attorneys cites to Supreme Court decisions is useless as this statute can legislatively overrule them. As for a constitutional “Taking”, that is even a weaker argument. Otherwise, every piece of social legislation such as min. wages, OSHA, FMLA etc. would be a taking.
    Mitchell H. Rubinstein
    Adjunct Prof. St. John’s Law School and New York Law School

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