Mon, 09 Mar 2009 06:00:54 +0000 – By Loren Smith, Jr. and F. Vincent VernuccioFormer Bush Administration Labor Department Officials
A year from now, Harry Reid is muttering to the cameras that Senate Democrats have conceded defeat on card check, the measure that would effectively end secret ballots for union organizing elections. He is speaking in disappointed tones about the bipartisan bill passed without card check, but as he turns to go back to his office, he has a sly smile on his face. Why?
Defenders of secret ballots in union elections have stayed vigilant and enlightened the public on the realities of card check. The results are already promising. Polls show large public majorities favor the right to a secret ballot, and voters understand that card check will lead to the intimidation of workers.
This victory would not be the end of the story. The bait and switch is an old ploy, and it's getting regular use in the Obama White House. Bank nationalization is off the table, we're told, even as the administration buys a controlling stake in Citigroup. Also, a spate of new regulations is in the pipeline on 401Ks, wages and other business practices that will considerably extend government control over private business.
The so-called Employee Free Choice Act (EFCA), the bill containing card check, is no different. Even most of those who understand card check are unaware of the other half of EFCA. The other half is mandatory binding arbitration, another terrible idea from the same people who think that union organizers should be free to harass and intimidate workers into joining unions.
Once a business is unionized, management and the union have to come to terms on a contract for the unionized workers. This can take months or years as the two parties hammer out their differences.
Under EFCA's proposed binding arbitration provision, the government would step in after 90 days and "work with" the two parties. All that is needed is one party to "request" the process. After another 30 days, the government would assign the case to an arbitrator (the rules for which would be written by the Obama administration) who would impose wage and benefit terms for the company for the next two years.
Arbitrators generally take a split the baby approach and try to come to a middle ground between the two parties. This means the union can make outrageous demands then stonewall an employer knowing they may not get everything in arbitration but they can, with the help of the government, force the employer into concessions that may not be economically feasible for the company. An example would be a new car company -- instead of a regular negation process a union could make outrageous demands and wait for an arbitrator to decide the terms of a contract. Understandably the arbitrator would not want to reinvent the wheel so he would look to other existing contracts in the industry. Soon this company would be shackled with the same type of crippling contract as the Big Three and the UAW.
In the best-case scenario, the collection of Obama appointees would be well-meaning but would still be acting in ignorance of the specific company and what makes the most sense to the workers. (We can say this for certain, since appointees that had dealt with the specific company in question would have to recuse themselves.) In the worst-case scenario, the collection of Obama appointees will be union cronies determined to use the power of government to milk the company dry for more union funds to be used to elect more union-minded politicians.
It would behoove conservatives to urge card check swing votes like Senators Arlen Specter, Ben Nelson, and Olympia Snowe to vote against binding arbitration as well as card check. Otherwise, expect Harry Reid to pull card check from the bill in a grand gesture of bipartisanship, and slip binding arbitration through as a consolation prize.
And expect him to express disappointment, while concealing a smile.
F. Vincent Vernuccio and Loren Smith, Jr. served at the U.S. Department of Labor under President George W. Bush. Vernuccio is an attorney in private practice and Smith is the Senior Fellow for Labor and Employment Policy at the Institute for Liberty.