The Employee Free Choice Act’s Interest Arbitration Provision: In Whose Best Interest?
The subject of robust labor law reform usually generates little interest with lawmakers. Before 2008, only once in the last 30 years has major labor law reform captured the attention of Congress. Yet, in 2009, labor law returned to the congressional forefront with the Employee Free Choice Act (EFCA). Generally, the proposed legislation made it easier for unions to organize workers, imposes first contracts with employers through mandatory interest arbitration, and increases penalties for employers that violate labor organizing laws.
The bill is strongly supported by organized labor and opposed in equal measure by employers. Both labor and management have aggressively lobbied Congress on the issue. In announcing his initial opposition to the bill in the spring of 2009, Senator Arlen Specter said that EFCA was the “most heavily lobbied issue I can recall.”
Despite the importance of this legislation to both labor and management, some EFCA provisions have received scant attention. A section of the bill that practically eliminates secret ballot elections and allows unions to organize with the “card check” method has attracted considerable debate. Much less has been written about arguably the most important aspect of the legislation—a provision that would mandate binding government interest arbitration in private sector first contracts when the parties cannot reach a traditional negotiated settlement. Few scholars have explored how this arbitration would work in practice and whether this type of arbitration is desirable as an alternative to the present system.