R. Theodore Clark Published in Roll Call
“EFCA’s First Contract Compulsory Arbitration Provisions Could Be Disastrous”

R. Theodore (Ted) Clark’s article, “EFCA’s First Contract Compulsory Arbitration Provisions Could Be Disastrous,” was published in the June 22, 2009 issue of Roll Call. In his article, Ted explains why the Employee Free Choice Act’s (EFCA) first contract interest arbitration provisions are unnecessary. Ted structures his article by debating the opinions of two recent Roll Call guest columnists, Thomas Kochan and Arnold Zack, who, as opposed to Ted, favor these provisions.

According to Ted’s article, Kochan and Zack argue that the problems with EFCA’s first contract interest arbitration provisions could be easily fixed by setting forth the procedure for selecting the arbitrator and providing standards for arbitrators to follow in issuing binding awards. Ted notes, however that “While adding such provisions would address some of the criticisms that have been leveled against EFCA, they would not overcome the fundamental public policy objections to mandating first contract interest arbitration.”

In his article, Ted emphasizes that he agrees with the authors’ assessment of the critical role that mediation can play in the negotiation of first contracts. However, he notes that “in my experience… where interest arbitration is mandated, mediation is, in most instances, doomed to failure. Instead, it becomes merely a weigh station on the road to arbitration.”

Ted concludes, “Even in the best of economic times, compulsory arbitration of first contracts poses serious risks to the economy. But for an economy that is in dire straits and in desperate need of encouragement, it would be, in a word, disastrous.”