Under current law, anti-union employers often drag workers through lengthy negotiations by delaying bargaining sessions, withholding relevant information, and putting forth bogus proposals. Even though these tactics are illegal, there are no effective deterrents to prevent “surface bargaining.”
The Employee Free Choice Act would help ensure that workers and employers reach a first contract in a responsible period of time.
First contract mediation and arbitration is necessary because management can hinder employee free choice by refusing to bargain. Even when employees surmount the many obstacles to forming a union, management frequently denies them the benefits of collective bargaining by refusing to agree on a first contract.
According to Cornell University researcher Kate Bronfenbrenner,
52% of newly formed unions had no collective bargaining agreement one year after a successful election. Two years after an election, 37% of newly formed unions still had no labor agreement. .1
According to labor relations scholar John Logan: "Consultants
advise management on how to stall or prolong the bargaining process,
almost indefinitely—'bargaining to the point of boredom,' in consultant
parlance. Delays in bargaining allow more time for labor turnover,
create employee dissatisfaction with the union, and prevent the signing
of a contract. Without a contract, the union is unable to improve
working conditions, negotiate wage increases or represent the workers
effectively with grievances;
and by exhausting every conceivable legal maneuver, certain firms have
successfully avoided signing contracts with certified unions for
According to a 2000 report by Human Rights Watch, "The problem is
especially acute in newly organized workplaces where the employer has
fiercely resisted employee self-organization and resents their success."3
First contract mediation and arbitration is needed because
current law provides no effective remedies against management's refusal
to bargain. Management understands that it can get away with
suppressing employees' collective bargaining rights through bad faith
or surface bargaining because there is virtually no legal deterrent.
If management and employees reach a stalemate at the bargaining
table, current labor law allows management to impose working conditions
The National Labor Relations Act (NLRA) prohibits bad faith bargaining ("surface bargaining"), but this is an exceedingly difficult charge to prove.
No enforceable court order requiring bargaining will typically issue until three or four years after certification of the union.
The penalty for bad faith or surface bargaining is typically an order to resume bargaining.
Following an order to resume bargaining, recalcitrant employers frequently resume bad faith bargaining all over again.
The possibility of mediation and arbitration rules will encourage management and employees’ unions to bargain productively on their own.
1 Kate Bronfenbrenner, "No Holds Barred: The Intensification of Employer Opposition to Organizing," May 2009.
- When mediation and arbitration are available for public sector employees, as they are in 25 states and the District of Columbia, the vast majority of contracts are still settled voluntarily rather than through arbitration.
- A recent study found that in Canada, where first contract mediation and arbitration covers more than 80 percent of the workforce, that the provision “is not accessed frequently and it is even rarer for a first contract (in whole or in part) to be imposed.”
2 John Logan, "Consultants, Lawyers and the 'Union Free' Movement in the USA Since the 1970s," Industrial Relations Journal, vol. 33, no. 3, 2002.
3 Human Rights Watch, "Unfair Advantage: Workers' Freedom of Association in the United States Under International Human Rights Standards," 2000.