A report released last week by conservative think tank Manhattan Institute for Policy Research argues that the Employee Free Choice Act’s (EFCA) mandatory arbitration provision equates to a government takeover of the private sector. According to the report, “EFCA seeks in a few short paragraphs to erect a labor regime whose untested provisions and coercive power will add countless business casualties to our already suffering economy.” In particular, the report laments that public debate on EFCA has centered on the card check provisions, and “has thus glossed over the synergistic risks when it is married to a program of compulsory arbitration.”

As summarized in the report’s foreword by James R. Copland, Director, Center for Legal Policy of Manhattan Institute for Policy Research:

The extent to which the EFCA is a radical departure from existing labor law is little understood. Unfortunately, the public discourse has focused on the “card check” provision of the legislation without an adequate grasp of the EFCA’s provision for compulsory arbitration. In essence, the proposed law would place all elements of employment contracts—wages, hours, vacation time, health benefits, promotions, work assignments, termination decisions, even corporate mergers—under the thumb of government appointees in the Department of Labor, for at least the two years specified in the statute.

The EFCA is fundamentally unfair. As Professor Epstein [the report’s author] notes, the EFCA’s title itself is an ironic misnomer: the legislation would effectively eliminate choices that employees are guaranteed under existing labor law—namely, the right to certify a union through secret-ballot elections as well as the right to ratify or reject employment contracts.

The article discusses EFCA from a historical perspective, and includes an examination of the possible constitutional problems with this legislation. Whether such constitutional claims could be raised successfully, however, is not very clear.