In the Wall Street Journal today, Richard Epstein, a professor of law at the University of Chicago and senior fellow at the Hoover Institution, claimed that the Employee Free Choice Act is “unconstitutional” because it “denies all speech rights to the unions’ adversaries.”
Under the Free Choice Act, employers would have to recognize a union if a majority of workers signed cards of consent, which Epstein argues would make it impossible for employers to adequately lay out the supposed cons of unionization. Having a union be recognized after a majority sign-up is important, however, because currently employers can force workers into an arduous, unfair unionizing campaign, even after a majority have formally expressed their desire to unionize.
But if Epstein is so concerned about the free speech rights of employers (and what prevents employers from making their opinions known during a card signing drive is unclear) then he should be equally troubled by this facet of the current unionizing process:
Management is allowed to bombard employees with anti-union messages anywhere, anytime in the workplace. Workers can only talk about the union while they’re on breaks in the break room or before or after work. Union organizers have no right to set foot in the workplace.
That sure seems like a free-speech infringement. Furthermore, as the AFL-CIO has found:
– 92 percent of private-sector employers, when faced with employees who want to join together in a union, force employees to attend closed-door meetings to hear anti-union propaganda.
– 78 percent force employees to attend one-on-one meetings with their own supervisors against the union.
– 75 percent hire outside consultants to run anti-union campaigns, often based on mass psychology and distorting the law.
Employers can also delay the voting process for years. It took “an expensive and emotional 15-year organizing battle,” which just ended last week, for Smithfield Packing in Tar Heel, NC to unionize, even though in 2006, the United States Court of Appeals “ruled that Smithfield had engaged in ‘intense and widespread’ coercion” to prevent the union from forming.
Fortunately, President-elect Obama has chosen to nominate Rep. Hilda Solis (D-CA) — a “stalwart friend of the unions” — to be the next Secretary of Labor. Solis cosponsored the Free Choice Act when it was before the House in 2007, and had this to say about workers “illegally fired to scare other workers into voting against the union”:
These illegal firings happen all too frequently to constituents of mine in the Los Angeles area who want to join a union to earn fair wages and health care to better provide for their families. The Employee Free Choice Act could end much of the bullying, coercion, and harassment of workers who want to join a union, and build common ground, lead to better wages and a stronger workforce.
Epstein needs to be reminded that free speech works both ways, and that a fair election is one not rigged for a particular side.