The Employee Free Choice Act: Free Choice or No Choice for Workers
The National Labor Relations Act of 1935 marked a major departure from common law principles, which were modified but not rejected with the passage of the Taft-Hartley Act in 1947. Since that time, the legal regime governing labor relations has been relatively stable. Today, the looming presence of the Employee Free Choice Act of 2009 (EFCA) threatens to alter that balance radically. The EFCA seeks in a few short paragraphs to erect a labor regime whose untested provisions and coercive power will add countless business casualties to our already suffering economy.
Labor unions claim that the unfairness of our labor law has led to a decline of union membership in the private sector from a high of 35 percent in the mid-1950s to about 8 percent today. The stable labor law regime is not the source of that decline, which is attributable to other factors:
Management’s unfair labor practices are not a significant reason for unions’ decline. Unions win a majority of elections but typically in units of 100 or fewer workers. These new workers cannot replace the hundreds of thousands of jobs lost through attrition when unionized firms cannot compete successfully in an open economy.
Nonetheless, unions hope through the EFCA to ramp up their organization by seeking higher penalties against management that campaign in opposition. Far more significant are the “card check” certification procedure that bypasses the secret-ballot election; and a new and undefined compulsory arbitration system that would allow government arbitrators appointed by the Federal Mediation and Conciliation Service in the Department of Labor.
As constructed, the “free choice” act excludes workers from two areas vital to their welfare: union selection and contract ratification. Its compulsory arbitration structure introduces a partial but large-scale, covert government takeover of the private sector. As America faces imploded financial markets and the highest structural unemployment in a generation, the EFCA is a misguided law that it cannot afford.
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