EFCA Is Unconstitutional

As if our labor laws aren't already unfair enough to employers, the newspeaky Employee Free Choice Act is poised to tilt the table so far in the unions' favor that the whole game will become unplayable.

First, you may be surprised to learn about some of the speech restrictions that already burden employers facing union organization.

Under the National Labor Relations Act (NLRA) today, an employer can insist upon a secret ballot after 30% of workers indicate by card checks their interest in a union. The campaign that follows lets the employer air his views about the downsides of unionization before the vote takes place.

To be sure, the employer's free-speech rights are limited under the NLRA. He cannot threaten to move or shut down if workers vote for the union. Nor can he promise higher wages if they don't. But he can make predictions of what will happen if his firm is unionized, and he can point to the reversal of worker fortunes in other unionized firms.

The Supreme Court (unfortunately, in my view) has held that the peculiar labor-law environment justified these abridgements of ordinary speech rights.

The name of the EFCA bill is absurd on its face: the authors' implication is that the current system of secret ballots impinges the "free choice" of the employees, but that a "card check" system would protect it. The counterargument is easy: secret ballots were good enough for our founding fathers, good enough for our state Constitutions, and good enough for all manners of private organizations. Why mess with success?

Unless you define "success" as unionizing as many workers as possible and stabilizing the power bases of the union bosses and the Democratic Party.