Reading the Fine Print

Liberal blogger Mickey Kaus has read the fine print of the Card Check Forced Unionism Bill and discovered the bill is even worse than he thought:

1) In the “card check” bill, if a newly unionized employer can’t reach an agreement with the new union, an arbitrator will step in and impose a two-year contract. I thought Jennifer Rubin must be wrong when she said that this arbitrator would be a government employee:

That’s what we are talking about here: a government official sent into a private workplace to order, in the absence of a voluntary agreement between labor and management, the employer to abide by a government-dictated contract. If this seems like an appalling intrusion into the operation of private businesses, it is.

This is far more extreme than the National Industrial Recovery Act of the New Deal, which at least allowed industries to devise their own “codes.” In the case of the EFCA, the government would be in the position to directly set wages, benefits, and work rules for any business with a union agreement.

That seems like a parody of liberal Washington meddling. It’s one thing for employer and union to have to abide by the decision of a mutually selected third party. It’s another to have a strange bureaucrat from D.C. come and tell everyone how to run things–not just setting a minimum wage but setting wages and job categories up and down the hierarchy. I figured Rubin was being alarmist.

But it turns out Rubin is right. Or at least she might be right. The arbitration parts of the card check bill are so vaguely drawn that nobody knows who the arbitrators will be. The job appears to be delegated entirely to the Federal Mediation Service. The FMS might decide to use its own employees. It might decide to use arbitrators from the private sector selected along more traditional lines. The two breakfast debaters (Prof. Richard Epstein and attorney Anthony Segall) did seem to agree that, since thousands of arbitrators might quickly be needed for the expected explosion of mandatory arbitration, it’s unlikely they would all be newly hired GS-12s. But they don’t know.

2) Because arbitrators typically look to other firms in the industry when deciding what wages to award, Prof. Epstein noted, the bill would have the effect of freezing in place hierarchies and job categories both across industries and within individual firms. You want to start an innovative job structure that, say, collapses six gradations of pay and authority into one?

You think workers will be happier and more productive if they’re delegated authority in this more non-hierarchical arrang[e]ment? Sorry–if the union objects, then the arbitrator is likely to uphold the old regime on the grounds that that’s the way it’s always been done (and the way everyone else does it). A recipe for rigor mortis!

3) I have been worried that big business would sell out small business in the coming negotiations on a “compromise,” watered-down “card check” bill that everyone expects. Prof. Epstein suggested that, if anything, big business is more terrified of the arbitration provisions than small business–simply because big businesses are more complicated and therefore they have a lot more to lose if an unfamiliar arbitrator suddenly steps in and starts messing around and running things. . . . P.S.: But doesn’t that suggest another possible sell out, in which the arbitration provisions of “card check” get dropped while the more notorious anti-secret ballot provisions stay in? I don’t know. If you are Wal-Mart or Toyota I would think you’d be threatened by both provisions.