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Copyright (c) 2009 Louisiana Law Review
Louisiana Law Review

ARTICLE: First Contract Arbitration and the Employee Free Choice Act

Fall, 2009

Louisiana Law Review

70 La. L. Rev. 47


Catherine L. Fisk * and Adam R. Pulver **



One of the most significant failures of the law governing unions and collective bargaining is the catastrophic underenforcement of the statutory right of employees to bargain. About half of all newly certified or recognized unions are not able to persuade the employer to agree to a collective bargaining agreement. 1 While both the employer and the union could in theory be blamed for the failure to reach an agreement, in practice the incentives are much greater for the employer to stall negotiations (and thus defeat the union) rather than for the union to refuse to accept an agreement (and thus ensure its survival for the term of the contract). Refusing to bargain for a first contract is a powerful weapon in the arsenal of employers determined to remain union free, as it prevents a nascent union from ever getting off the ground. While employers can and do thwart the statutory rights of employees simply by refusing ever to agree to a contract, the National Labor Relations Board (NLRB or "Board") lacks the power to remedy even the most egregious cases of refusal to bargain in good faith, except to order the recalcitrant party to bargain more. 2

One provision of the proposed Employee Free Choice Act (EFCA) 3 would deal with this problem by requiring timely bargaining, mediation, and, if the employer and union cannot agree, arbitration of the bargaining dispute. 4 It is an important reform in a critically dysfunctional aspect of federal ...
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