Employee Free Choice: The Facts on First-Contract Resolution

As the debate gets underway over the Employee Free Choice Act and the freedom to bargain and form unions, here are the facts on one of the most important provisions of the act: ensuring that workers have the ability to get a first contract.

  • · The Employee Free Choice Act is legislation that will give workers back the freedom to bargain with their employers for better benefits, wages, and working conditions. Corporations pull out all the stops to keep workers from forming unions including harassment, intimidation, and even firings.
  • · Even when workers surmount all the obstacles and succeed in forming a union, employers often deny them the benefits of collective bargaining by dragging their feet on negotiating a contract. According to a study by John Paul Ferguson at MIT, 44 percent of the time workers never get a first contract, even when they’ve won their union.
  • · Workers never get contracts because the current law gives employers lots of incentive to stall indefinitely. The Employee Free Choice Act would set timelines and give workers real recourse when employers won’t bargain in good faith.
  • · According to new public polling conducted by Hart Research Associates and commissioned by the AFL-CIO, 61 percent of the public supports first-contract arbitration.


What is first contract arbitration?

When workers in a union and their corporation can’t reach an agreement on a first contract, either side can choose mediation and arbitration so that disagreements are addressed fairly and according to a set timeline. The amendment is aimed at incentivizing, not replacing, the process of collective bargaining.· Here is how it works:

  • If a new union and an employer are bargaining for their first contract and are unable to reach an agreement within 90 days, either party may request mediation by the Federal Mediation and Conciliation Service (FMCS).
  • After 30 days of mediation, if there is still no agreement, the dispute is referred to binding arbitration.
  • · Arbitration is a common and necessary tool used by corporations to conduct every day business. Corporations object to this provision because the current system allows them to stall and eventually deny workers’ freedom to have unions.

Why are so many newly formed unions unable to get first contracts?

The current company-dominated system does little to punish employers that refuse to bargain. Even if a union proves a corporation is stalling, the current remedies usually are as minimal as posting a notice stating they will not bargain in bad faith again. Newly formed unions lose their presumption of majority status after one year without reaching a contract. This gives employers the incentive to delay the bargaining process for a year and force the workers to go through the system again, when they will try even harder to keep workers from forming a union.

How will the Employee Free Choice Act help?

By giving workers the choice to request mediation and arbitration, the Employee Free Choice Act guarantees that every worker who forms a union will get a contract. Likewise, by giving workers the choice to request mediation and arbitration, the Employee Free Choice Act eliminates the incentive for employers to bargain in bad faith. Knowing that delaying the process indefinitely is no longer an option, employers are much more likely to bargain in good faith. The Employee Free Choice Act will dramatically reduce the delay, frustration and animosity associated with the current company-dominated system.

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