The Ominous Employee Free Choice Act: This Legislation Represents a Dramatic Departure from Previous Labor Law

By Epstein, Richard A. | Regulation, Spring 2009 | Go to article overview

The Ominous Employee Free Choice Act: This Legislation Represents a Dramatic Departure from Previous Labor Law


Epstein, Richard A., Regulation


[ILLUSTRATION OMITTED]

The history of American labor law, to date, can be broken into two broad periods, animated by fundamentally different world views. The first period was marked by the ascendancy of common law principles, which dominated American labor law from the late 19th century until it was fully displaced by passage of the Wagner Act in 1935. The second period runs from that time to the present, and has as its two main landmarks the Taft-Hartley Act of 1947 and the Landrum-Griffin Act of 1959. In between those periods lies a short but important transition that runs, roughly speaking, from the Railway Labor Act of 1926 through the Norris-LaGuardia Act of 1932--a Herbert Hoover confection--and Franklin Roosevelt's ill-fated National Industrial Recovery Act of 1933. Today may prove to be the dawn of a third broad period, defined by the oft-proposed Employee Free Choice Act (EFCA) that passed the U.S. House of Representatives in 2008 only to fall prey to a Republican blockade in the Senate.

In broad outline, I will summarize the salient features of these three approaches as a progression from markets, to politics, to dictatorship. The earliest period, which is uniformly discredited today in polite circles, adopted a basic free-market approach to labor relationships. The second period attempted to introduce a version of union democracy into labor markets, in which organization campaigns were followed by secret ballot elections under the supervision of the National Labor Relations Board (NLRB) . The third period, should it come to be, would introduce a system of dictatorial union and arbitral workplace decrees implemented through a lethal one-two punch. The first blow comes from allowing a union to substitute, at its option, a card-check selection for the current secret ballot elections in recognition disputes. The second blow is the introduction of compulsory interest arbitration that authorizes a panel of arbitrators under a set of procedures as yet to be determined to hash out an initial two-year "contract"--i.e. arbitral award--binding on the parties, who have no recourse to judicial review.

The initial legislative rejection of the common law during the pre-New Deal Progressive Era was stymied by judicial action before 1920, only to be blown away in the United States Supreme Court in the post-1926 period. It is my unrepentant view that earlier judges had it right when they rejected, on constitutional grounds no less, the collective bargaining system subsequently enshrined in the Wagner Act. I review those developments in part for theoretical completeness, knowing that a return to the common law regime has zero political traction in Congress. Understanding that history is critical, however, for setting the stage for a different constitutional indictment of the EFCA that I believe is valid under current law.

Accordingly, the first part of this article examines the common law system that was displaced decisively by the Wagner Act. The second section then looks at the Wagner Act synthesis. The last section examines the EFCA and the constitutional challenges that can be raised against it.

THE COMMON LAW APPROACH

The rise of labor law as a separate branch of law is a creature of the first half of the 20th century. Prior to that time, labor disputes were governed by general principles that common law courts (including the courts of equity that could issue injunctive relief) applied to all business conflicts. Those principles can be briefly summarized as follows: First, the parties had to keep their promises. Except for the usual prohibitions against force and fraud, the parties were left to devise for themselves on the critical matters of wages, termination, discipline, and other terms and conditions of contract. The ostensible imbalance of economic power between the rich employer and the poor employee--a stereotype that is true in some instances, but not in all--was of no moment to the legal system. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Ominous Employee Free Choice Act: This Legislation Represents a Dramatic Departure from Previous Labor Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.