The highly charged debate between business and labor over how to reform labor law now is focusing on how to negotiate a first contract once a majority of employees have demonstrated they want union representation.A just-completed study by the Massachusetts Institute of Technologys John-Paul Ferguson shows that even after a majority of employees vote for union representation, they only get a first contract about 56 percent of the time. And if an employer resists by engaging in illegal labor practices, the chance of getting a contract reduces by 13 percent. Something is drastically wrong with a labor law when an employer can ignore and thwart the will of the majority of its employees.The Employee Free Choice Act currently before Congress addresses this problem by assuring time for negotiations and mediation as the first step in the process and arbitration when agreement is blocked. The bill has led to a misguided debate and mistaken information about the role played by arbitration in a well-designed and professionally administered dispute resolution system. This has made the current bill an easy target for opponents to argue that everyone will end up having a contract imposed by government arbitrators who know nothing about business or labor issues.These critiques belie the experiences accumulated in more than 30 years of arbitration in the public sector. So it is time to get serious and outline the design of an integrated negotiation, mediation and arbitration system that builds on public and private sector experiences and evidence of the past 40 years. It fits the unique needs of employers and unions negotiating a first labor agreement and addresses each of the arguments against arbitration put forward by its critics.If passed, the Employee Free Choice Act would assign a mediator by the Federal Mediation and Conciliation Service as soon as a new unit is certified to support the negotiations by offering the full range of mediation, education, and facilitation services helping the parties reach a voluntary agreement. The vast majority of cases are likely to be resolved through negotiations and mediation. In fact, settlements are reached more than 90 percent of the time in public sector jurisdictions that provide mediation prior to arbitration. So, contrary to those who argue every case will go to arbitration, the presence of arbitration encourages and enhances the ability of the parties to reach voluntary agreements in negotiation and mediation and incidentally does so without imposing on employees or employers the risks and costs of a strike to get a contract. If an agreement is not reached in negotiation or mediation, the FMCS would provide the parties with a list of experienced arbitrators of interest who had previously been vetted and judged by a panel of business and labor representatives to be qualified to serve as neutrals. Note these will not be government arbitrators or individuals appointed at the whim of the FMCS. To get on this panel, arbitrators would have to meet the standards of experience, expertise and mutual credibility and acceptability by business and labor leaders.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.