First Contract Arbitration and the Employee Free Choice Act

Source: Catherine Fisk, Adam R. Pulver, UC Irvine School of Law Research Paper No. 2009-23

From the abstract:
One provision of the proposed Employee Free Choice Act (EFCA) would address the catastrophic underenforcement of the statutory right of employees to bargain, which results in half of all newly certified or recognized unions failing to secure a first collective bargaining agreement. It is an important reform for a seriously dysfunctional aspect of federal labor law and it will be a serious improvement over the status quo. While political and media conversation surrounding EFCA has largely focused on the so-called ‘card check provision’, the provision for first contract arbitration is as important to the protection of the right to unionize. This Essay argues that some form of mandatory interest arbitration for first contract disputes is an appropriate means of stabilizing employee-management relations given the extraordinary difficulties that unions currently experience in negotiating first contracts, the weakness of current NLRB and economic remedies, and the rippling effects of these difficulties on nascent unions. The Essay explains the need for interest arbitration given current trends in labor relations and demonstrates that interest arbitration would increase the incentive for employers to negotiate in good-faith and make reasonable proposals. This would be particularly true if arbitrators used the final offer method, which requires the arbitrator to choose one of the parties’ final offers, rather than to split the difference between the two positions. The Essay also demonstrates that a statutory requirement of first contract arbitration is well within Congress’ power and does not represent an unconstitutional delegation of legislative authority.

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