Legislation recently introduced in the U.S. Senate would force employers and employees in a newly organized workplace to accept “mandatory binding arbitration.”
Under mandatory binding arbitration, government-appointed arbiters would dictate everything in the new contract, including — but not limited to — wages, health benefits, leave policies, retirement benefits, seniority provisions, safety protocols and even reserved parking spaces. Neither the workers in the union nor the employer could alter this government-mandated “contract” for two years.
Previous versions of this idea were proposed in Sen. Bernie Sanders', I-Vt., Protecting the Right to Organize Act and the Employee Free Choice Act, authored by the late Sen. Edward Kennedy, D-Mass. Congress rejected EFCA both times it was considered.
In 12 Congresses, no Republican senator has supported this radical concept, until now. Sens. Josh Hawley, R-Mo., and Bernie Moreno, R-Ohio, are now sponsoring the so-called Faster Labor Contracts Act (S. 844), which would be devasting for employers, employees and the overall economy.
A fundamental principle of U.S. labor law states that employers and employees should come to a mutual agreement when determining employment terms. Both sides need to accept the deal under which they must operate. By allowing government-appointed arbiters to impose contractual language, Sens. Hawley, Moreno and their Democratic co-sponsors would jettison this bedrock tenet.
Indeed, S. 844 violates the U.S. Constitution, as mandatory arbitration would take away property rights from both employers and employees without due process or judicial oversight. The government arbiter could impose costly changes on employers and/or cut wages for employees. Neither would have any recourse.
The bill would make it harder for firms to differentiate themselves from competitors. Whatever specific advantages one firm has over another would be eroded or eliminated now that they must adopt whatever contract the government-appointed arbiters deem appropriate.
This new legislation would not only greatly expand the control of the federal government over private-sector businesses but would require the government to hire thousands of new bureaucrats to implement this massive new mandate. The Federal Mediation and Conciliation Service, the tiny federal agency tasked by Sens. Hawley and Moreno to assist in imposing these “contracts,” has no infrastructure to manage this new responsibility. The Trump administration, for its part, just announced its intention to cut back FMCS to “maximum extent consistent with applicable law.”
In supporting this legislation, the authors fail to even account for the fact that current law already requires employers to bargain in good faith. Employers already must meet with unions, negotiate mandatory subjects and provide relevant information.
This is not a “pro-worker” bill. This is not a “Republican version of the PRO Act.” This is an assault on private-sector employers and employees to accommodate Washington-based union lobbyists. Congress should reject it.