The Improbable Claim That EFCA Is Unconstitutional

[Earth Bound Misfit]

X posted in Labor forum http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=367x17603

http://www.acsblog.org/constitutional-interpretation-and-change-the-improbable-claim-that-efca-is-unconstitutional.html

by Michael H. Gottesman, Professor of Law, Georgetown University Law Center.

The proposed Employee Free Choice Act (EFCA) authorizes National Labor Relations Board (NLRB) certification of unions when a majority of employees have signed cards designating a union to represent them, and mandatory arbitration of the terms of a first collective bargaining agreement if the employer and union are unable to reach agreement on their own. Richard Epstein, America’s most prominent libertarian legal scholar, authored a recent op-ed piece in the Wall Street Journal contending that EFCA, if enacted, would be unconstitutional. In his view, card check recognition abridges the employer’s right of free speech protected by the First Amendment; and mandatory arbitration, if it results in terms more expensive than the employer would have agreed to on its own, represents a “taking” violative of the Fifth Amendment.



The debate over EFCA can comfortably remain on the terrain of policy, uncomplicated by concerns of unconstitutionality. For Epstein’s imagined constitutional difficulties haven’t the remotest chance of gaining judicial acceptance.



First Amendment. As things stand presently (i.e., without EFCA) employers, during the course of an NLRB election campaign, are free to air their views about the downsides of unionization so long as they refrain from threats or coercion. Epstein grieves that employers will lose this opportunity if EFCA is enacted, as a union would be able to conduct a “clandestine organizing campaign” and produce a card majority before the employer is aware of the need to speak out in opposition. Whatever its power as a policy argument, this observation has no purchase under the First Amendment. It’s one thing to say that the government can’t muzzle an employer from expressing its views. It’s quite another to say that the government has to structure its laws to provide employers notice about when their speech might be most efficacious. Under EFCA, employers will remain free to voice their views about the downsides of unionization whenever and as often as they want. They can rail against unions on a continuing basis, so long as they refrain from threats or coercion. That’s all the First Amendment guarantees them. Epstein’s “advance notice” theory is unheard of in First Amendment jurisprudence, and would produce preposterous results. Consider just one example: Under Epstein’s theory, a court couldn’t entertain a lawsuit by an employee against her employer unless she first notified the employer of her intention to sue, so that the employer would have an opportunity to express its views about the desirability of her bringing suit.

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An arbitration award issued under EFCA requiring an employer to raise wages or provide other benefits would be analytically indistinguishable, for purposes of the Takings Clause, from minimum wage laws or other laws mandating benefits for employees. It would be a taking only if it awarded the employees 100 percent of the employer’s assets or was so draconian that it qualified for the “goes too far” condemnation not met even in the zoning and historic preservation cases described above. The chances that an arbitrator would issue an award of that dimension are nil. For one thing, the system employed by the Federal Mediation and Conciliation (FMCS) for selection of arbitrators – furnishing a list from which each party strikes names until only one name is left – virtually guarantees that the lunatic arbitrator Epstein envisions will not be chosen. For another, there is considerable experience with interest arbitration, and a track record that shows that arbitrators determine terms and conditions by reference to what other employers in the industry pay, the particular employer’s financial situation, and other criteria that are the antithesis of “going too far.”