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One Bridge Too Far: Why the Employee Free Choice Act Has, and Should, Fail

48 Pages Posted: 20 Aug 2010 Last revised: 17 Dec 2010

Richard A. Epstein

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

Date Written: August 17, 2010

Abstract

The Employee Free Choice Act has had enjoyed strong academic support. but thus far has been stymied by fierce political resistance to its central positions that first institute a card-check for the selection of a union and then requires mandatory arbitration if the parties cannot agree to a new contract within 130 days of union recognition. This article critiques the arguments made in support of this fundamental revision of labor law offered by Craig Becker, Benjamin Sachs, and Catherine Fisk & Adam Pulver, all of which purport to show that flaws in the current system of collective bargaining need major prounion adjustments. The key theoretical insight of the paper is that no ad hoc justifications for particular changes in the statute can be considered in isolation of the fundamental decision under the National Labor Relations Act to impose a system of mandatory collective bargaining. Once an employer may not refuse to bargain to a union, it must receive in exchange a broad number of offsetting rights, such as the ability to speak during organizing campaigns, and to reject in good faith those offers that it finds unacceptable, as current law provides. EFCA has failed because of the widespread political perception that it would usher in a new wave of union dominance that would destroy job opportunities and create major administrative burdens and political dislocations.

Keywords: Unions, National Labor Relations Act

Suggested Citation

Epstein, Richard A., One Bridge Too Far: Why the Employee Free Choice Act Has, and Should, Fail (August 17, 2010). U of Chicago Law & Economics, Olin Working Paper No. 528; NYU Law and Economics Research Paper No. 10-53. Available at SSRN: https://ssrn.com/abstract=1660683 or http://dx.doi.org/10.2139/ssrn.1660683

Richard A. Epstein (Contact Author)

New York University School of Law ( email )

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Stanford University - Hoover Institution on War, Revolution and Peace

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University of Chicago - Law School ( email )

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