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The Case Against the Employee Free Choice Act


Richard A. Epstein


New York University School of Law; Stanford University - Hoover Institution on War, Revolution and Peace; University of Chicago - Law School

February 3, 2009

U of Chicago Law & Economics, Olin Working Paper No. 452

Abstract:     
This monograph offers a comprehensive critique of the Employee Free Choice Act (EFCA) now before Congress. EFCA would fundamentally alter the current labor law in three ways. The first of these is to allow unions to opt for recognition through a card check instead of the secret ballot currently required under the National Labor Relations Act. The second would institute a regime, if the parties do not reach an agreement within 130 days after the union is recognized, of compusory arbitration and arbitrator-imposed requirements and restrictions, binding for a two-year period. The third would increase the current sanctions for unfair labor practices committed by employers during an organizational campaign. My major thesis is that all of these changes are unwise deviations from the status quo that will introduce unwise dislocations in labor markets that are not justified by the current union claim that the decline of unionization in the private sector is largely attributable to improper employer intransigence. The better explanations focus on structural changes in ordinary labor markets in an increasingly globalized economy, which shows similar downturns in union representation in developed nations, often operating under different legal regimes.

Number of Pages in PDF File: 129

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Date posted: February 4, 2009  

Suggested Citation

Epstein, Richard A., The Case Against the Employee Free Choice Act (February 3, 2009). U of Chicago Law & Economics, Olin Working Paper No. 452. Available at SSRN: http://ssrn.com/abstract=1337185 or http://dx.doi.org/10.2139/ssrn.1337185

Contact Information

Richard A. Epstein (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012
United States
(212) 992-8858 (Phone)
(212) 995-4894 (Fax)
Stanford University - Hoover Institution on War, Revolution and Peace
Stanford, CA 94305-6010
United States
University of Chicago - Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9563 (Phone)
773-702-0730 (Fax)
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