Richard Epstein explains what mandatory arbitration means in the context of the Employee Free Choice Act:
An outpost of the Labor Department, the mediation service, will set the terms of all new labor contracts in the United States. It will do so under provisions that are undefined under the act. The FMCS will have sole authority to pick the arbitration panel, which will have the power to draft, on its own initiative, detailed contract provisions, tables and appendices that can run to more than 1,000 pages. The arbitrators’ decision will be final: The EFCA allows neither employers nor unions to appeal arbitrators’ decisions to a neutral judicial body.
In a lengthy research paper, Epstein (here, beginning at page 98) details the multiple Constitutional issues raised by the mandatory arbitration portion of the EFCA, including improper delegation of Congressional powers, lack of judicial review, due process, and takings concerns. These legal issues, to one degree or another, all focus on whether government appointed arbitrators, unchecked by any legal standard or judicial review, can set wages, benefits, and working conditions for thousands of workplaces which are snared in card check organizing. If it sounds unprecedented or like a radical departure from seventy years of federal labor law, it is.
But this statist approach is entirely consistent with the Obama agenda. As Linda pointed out, the government is going to seize “failing” companies and shred contracts. Tim Geithner is going to tell financial institutions how to compensate their employees. The EPA, or some new bureaucracy, is going to tell every business how much carbon it can emit. Government “experts” are already at work deciding which medical procedures are the “right” ones, a preliminary step to eliminating reimbursement for the “wrong” ones. So mandatory labor arbitration is simply par for the course.
It remains to be seen whether Congress and the American people have a stomach for all this. But make no mistake: the Obama administration likes big government very, very much.
