Card Check: On Legal and Economic Grounds, a Bad Idea

By February 9, 2009Labor Unions

Richard Epstein of the University of Chicago Law School has completed the book-length analysis, “The Case Against the Employee Free Choice Act,” available as the “U of Chicago Law & Economics, Olin Working Paper No. 452

This monograph offers a comprehensive critique of the Employee Free Choice Act (EFCA) now before Congress. EFCA would fundamentally alter the current labor law in three ways. The first of these is to allow unions to opt for recognition through a card check instead of the secret ballot currently required under the National Labor Relations Act. The second would institute a regime, if the parties do not reach an agreement within 130 days after the union is recognized, of compulsory arbitration and arbitrator-imposed requirements and restrictions, binding for a two-year period. The third would increase the current sanctions for unfair labor practices committed by employers during an organizational campaign. My major thesis is that all of these changes are unwise deviations from the status quo that will introduce unwise dislocations in labor markets that are not justified by the current union claim that the decline of unionization in the private sector is largely attributable to improper employer intransigence. The better explanations focus on structural changes in ordinary labor markets in an increasingly globalized economy, which shows similar downturns in union representation in developed nations, often operating under different legal regimes.

Epstein’s work received financial support from Alliance to Save Main Street Jobs headed by the HR Policy Association and including the Retail Industry Leaders Association, the Real Estate Roundtable, the American Hotel and Lodging Association, the U.S. Chamber of Commerce, the International Council of Shopping Centers, and the Associated Builders and Contractors. So thanks to those groups for helping spread the word.

Leave a Reply