The Deserved Demise of EFCA (and Why the NLRA Should Share Its Fate)
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Description
For the past several years, Democratic majorities in both houses of Congress have championed the passage of the Employee Free Choice Act (EFCA). Some defenders of the proposed legislation did not see it as a sea change. But that position was belied by the vast amounts of energy and money that the dominant players on both sides invested in the battle. Those expenditures are more consistent with the view that passage of the bill would have revolutionized management and labor relations over at least some substantial portion of the labor force, most likely in low-paying jobs in the service industries. When Barack Obama was elected President in November 2008, the odds were good that EFCA would be enacted quickly into law. Obama was elected with strong majorities in both houses of Congress, and the public had soured on American business and had accepted much of the populist critique that attributed the great financial crisis in the fall of 2008 to corporate greed and the nonstop financial machinations on Wall Street. Relationships between the administration and organized labor were close, and the two groups showed every sign of working effectively together on a powerful Congressional campaign to turn the bill into law. Unlike the then pending health care legislation that introduced extensive changes throughout the health care system, EFCA is a short bill whose implementation does not require levying any new taxes or creating any major new administrative agency. Intellectually and emotionally, EFCA fed off the widespread and determined perception within pro-labor circles, both those in practice and those in the academy, that the feeble union remedies available under the National Labor Relations Act (NLRA)—usually holding new elections or issuing bargaining orders—leave employers who consciously breach the statute better off than they would have been if they had complied with the law. Time after time, pro-union scholars have identified the NLRA’s weak remedial side as the major explanation for the rapid decline of labor union membership in the private sector. Those numbers had leveled off in 2006 and 2007, only to plummet again in the post-2008 meltdown to a new low of 6.9 percent of the private workforce today (BLS, 2010). That figure is down from a high of about 35 percent in 1954. Indeed, so great is the transformation in union membership that today there are more members of public sector unions than private sector unions, by a respectable margin of 7.9 million to 7.4 million workers (id.).
Source Publication
Research Handbook on the Economics of Labor and Employment Law
Source Editors/Authors
Cynthia L. Estlund, Michael L. Wachter
Publication Date
2012
Recommended Citation
Epstein, Richard A., "The Deserved Demise of EFCA (and Why the NLRA Should Share Its Fate)" (2012). Faculty Chapters. 379.
https://gretchen.law.nyu.edu/fac-chapt/379
