First Contract Arbitration and the Employee Free Choice Act

50 Pages Posted: 30 May 2009 Last revised: 5 Jun 2012

See all articles by Catherine Fisk

Catherine Fisk

University of California, Berkeley - School of Law

Adam R. Pulver

Public Citizen Litigation Group; Columbia University - Law School

Date Written: January 27, 2010


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 substantial improvement over the status quo. While political and media conversation surrounding EFCA has largely focused on the changing the process by which unions are selected, the provision for first contract arbitration is as important to the protection of the right to unionize.

This Article 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 Article surveys the empirical literature on the operation of interest arbitration in the public and private sector in the United States and in Canada and demonstrates that interest arbitration would increase the incentive for employers to negotiate in good-faith and make reasonable proposals. The Article shows that none of the alternative reforms to the law of collective bargaining and to NLRB procedures for protecting the right to bargain will be effective in addressing failures to bargain to a first contract. The Article 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.

Suggested Citation

Fisk, Catherine L. and Pulver, Adam R., First Contract Arbitration and the Employee Free Choice Act (January 27, 2010). Louisiana Law Review, Vol. 70, No. 1, 2009, UC Irvine School of Law Research Paper No. 2010-4, Available at SSRN: or

Catherine L. Fisk (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
(510) 642-2098 (Phone)

Adam R. Pulver

Public Citizen Litigation Group ( email )

1600 20th St NW
Washington, DC 20009
United States

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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