Richard Epstein: "Mandatory Labor Arbitration"
Rumors in Washington hint that the Employee Free Choice Act is in trouble. The public outcry against the card-check system apparently has taken its toll. One sign of the unions' weakness on this issue is their deliberate obfuscation of the issue. The secret-ballot election would remain "available" under the act, according to no less an authority than Rachel Maddow. But of course it would be available only at the option of the union and never the employer, which means that were this provision to become law, secret-ballot elections would go the way of the dodo bird.
So now it appears that unions may be prepared to scrap the card check - if they can salvage the more insidious portion of the EFCA, its compulsory arbitration provision.
Here is what the key provision says: Once mediation has failed, the Federal Mediation and Conciliation Service "shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service." The arbitration decision then binds the parties for two years.