Gingrich claims about card check are a bit off the mark

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Former Speaker of the House Newt Gingrich is an accomplished man, a dedicated public servant and, I’d be willing to bet, a heckuvalot smarter than I am. Still, I must respectfully disagree with part of his interpretation of the arbitration clause of the Employee Free Choice Act.

We at McKnight’s have been covering the developments with the Employee Free Choice Act for some time now, and I’ve come to know a lot about its ins and outs. First introduced in 2007, the bill, also known as card check, was resurrected in Congress in March of this year. Since then, it has sparked a huge battle between business and labor, Democrats and Republicans … that is, pretty much everyone.  For more on the debate over card check, go to The Editors’ Blog (www.editor.blogs.mcknights.com) and search under “card check.”

Most of the hullabaloo comes from the card-check provision, which basically says that if a simple majority (50% plus one) of workers sign a card saying they want to be in a union, then, poof! they’re in a union. I’ll dispense with the fine print, but suffice it to say, many on both sides have been arguing the pros and cons of this aspect of EFCA.

On Wednesday, however, Former Speaker of the House Newt Gingrich published an opinion piece titled “Arbitration the real threat in EFCA,” in which he argues that the clauses regarding arbitration are the real threat in the bill. You can read the article, which I highly recommend, here: http://www.politico.com/news/stories/0409/21509.html.

Here are some of the choice sections:

“If passed, EFCA would impose mandatory, binding arbitration by government bureaucrats in the National Labor Relations Board if employers and union organizers cannot reach an agreement.

“Once a worksite is unionized through the elimination of the secret ballot, if the employer and union don’t agree to terms in just over three months, a federally appointed arbitrator would impose wages, benefits, hours of work, and other terms and conditions of employment on both the employees and employer.”

While Gingrich raises some other perhaps more legitimate concerns about bias and negotiating techniques, it is these two paragraphs that I take issue with. I think he’s misrepresenting the arbitration clause just a wee bit, and leaves out some important aspects of the bill. So to clear things up, I went to the actual text of the bill (search for “Employee Free Choice Act” at thomas.loc.gov):

“If after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement, either party may notify the Federal Mediation and Conciliation Service of the existence of a dispute and request mediation.”

Yes, after unionization you’ve got 90 days to come up with a contract. But, if you agree on some other time frame for contract resolution, you’ve got that amount of time, as well. The appears to allow for a bit of flexibility. Then, if things aren’t working out, you can call federal arbitrators to come in and help sort things out … as the bill says:

“If after the expiration of the 30-day period beginning on the date on which the request for mediation is made under paragraph (2), or such additional period as the parties may agree upon, the Service is not able to bring the parties to agreement by conciliation, the Service shall refer the dispute to an arbitration board established in accordance with such regulations as may be prescribed by the Service.”

But here’s where Gingrich really starts diverging from the language in the bill. Once the mediators are there, they don’t automatically impose an arbitrary arbitration agreement. The bill allows a month to figure things out with their help. Or, if all parties agree on a different time frame for negotiations, you’ve got that, too, before they send your negotiation off to the arbitration panel. Once that happens, according to the legislation:

“The arbitration panel shall render a decision settling the dispute and such decision shall be binding upon the parties for a period of 2 years, unless amended during such period by written consent of the parties.”

The panel gives both sides a two-year contract based on the work completed with the arbitrator. And what’s more, if both parties agree on a different, better contract during that time, the contract can be changed. The arbitration clause doesn’t lock anyone into anything. All it does is ensure that once a union has been formed, a contract is drawn up within a reasonable amount of time. And if both parties agree, that contract can be changed. There is no 90-day hard deadline. There is, in fact, quite a bit of flexibility. This is what Gingrich glosses over in his article in favor of a more biased description.

The controversy over the Employee Free Choice Act isn’t likely to die down any time soon, and surely all sides will be fighting their hardest to either pass or defeat this bill. But surely the first step toward working together and finding a compromise is to focus on the facts of the bill, free from distortion or embellishment.
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McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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