The Associated Press reported that opponents of the Employee Free Choice Act (EFCA), feeling that they have dispensed with majority sign-up, are starting to “intensify their attack on another major provision [of the bill]: Binding arbitration if a new union and management can’t agree on a first contract within 120 days.”
A popular narrative from these opponents is that majority sign-up was actually just a red herring, meant to distract everyone from the arbitration provision that labor really wanted. “We suspected from the beginning that the binding arbitration was packaged with the elimination of the secret ballot in order to create a straw man they could take down later,” said Sen. Jim DeMint (R-SC). In that vein, the Chamber of Commerce had this to say about EFCA’s arbitration provision:
“Card check is the political poison in the bill, but forced arbitration is the real poison,” said Steven Law, general counsel of the U.S. Chamber of Commerce.
If arbitration truly is poisonous, then the Chamber must have built up quite an immunity over the years. After all, it has consistently favored binding arbitration, when such arbitration helps it avoid litigation in consumer disputes. Here’s some of the Chamber’s prior rhetoric:
— Lisa A. Rickard, president of the U.S. Chamber Institute for Legal Reform, wrote that the findings of an arbitration study “prove that arbitration continues to provide consumers with fair, inexpensive, and unbiased access to justice across the broadest spectrum of consumer disputes.” [3/11/09]
— The data is increasingly clear: for most consumers, arbitration is a better way to resolve disputes than being forced into court. [Chamber Press release, 7/15/08]
— Virtually any type of dispute between private individuals or entities can be addressed by arbitration, including, for example, contract, real estate, employment, and tort disputes. [U.S. Chamber Institute for Legal Reform, “Issues Resource Center”]
Overall, U.S. companies include mandatory arbitration clauses in 75 percent of consumer agreements. The Chamber seems to have no problem with that, but when arbitration translates into workers getting a fair shot at a contract, it’s suddenly poisonous.
Arbitration is a necessary part of EFCA because, all too often, employees vote to form a union, but can’t get a first contract due to their employer’s delay tactics. More than half of new unions still have no contract one year after they are certified, and 37 percent have no contract after two years. A full quarter of new unions wait more than three years to receive a first contract.