The closer you look at the
Employee Free Choice Act, the worse it becomes.
Of course, there is the act’s ability to set aside workers’ right to a secret ballot and expose them to intimidation. There is also the act’s ability to impose forced government contracts and kill jobs in a weakened economy.
But John S. Irving, a former general counsel to the National Labor Relations Board, has found yet another harmful part of the act. If it becomes law, it can threaten the free speech rights of employers through massive fines – and shut them out of an important debate that affects the future of their companies.
Irving made his case in a Wall Street Journal essay last Friday:
“Today, according to the National Labor Relations Act—as amended in 1947—employers are permitted to express themselves to their employees with ‘views, argument, or opinion . . . if such expression contains no threat of reprisal or force or promise of benefit.’ Of course, this leaves unclear just what constitutes lawful opinion versus unlawful threats or promises. And over the years, the shifting composition of the NLRB—and of the courts—has caused disagreements over what permissible free speech is.
“For example, employers who might sincerely assert to their employees that ‘unions cause plant shutdowns’ or ‘could cause loss of customers’ may or may not be exercising lawful free speech, depending on the views of the labor board at the time. If employers fall afoul of the law today, they face only nonpunitive ‘make-whole’ and ‘cease and desist’ sanctions.
“But EFCA dramatically escalates these penalties. Under the new bill, the employer could be subject to a $20,000 fine for each questionable statement, and to near-automatic injunction proceedings based on union-filed unfair labor practice charges.
“Under EFCA, employers would risk federal injunction litigation even before the labor board has considered whether there was a threat or promise. Based on union-filed unfair labor practice charges, if the board’s general counsel—one person—determines that there is ‘reasonable cause’ to believe an employer threat or promise may have been made, EFCA requires the general counsel to seek an immediate federal court injunction.
“Only much later, perhaps years later, after a costly trial, briefing and appeals will the NLRB and courts decide whether the statements were lawful and whether fines are to be imposed.
“There is no provision in current law for punitive fines and treble damages. Nor is there any requirement, as there would be under EFCA, that nondiscretionary injunctions be sought against employers based solely upon the NLRB general counsel’s determination of ‘reasonable cause.’”
Irving, “Don’t Employers Deserve Free Speech?” The Wall Street Journal, 08.07.09
Irving concludes that faced with these massive penalties, employers will be “forced to remain silent” and not give their side of the unionizing debate to workers “before they make important choices affecting their livelihood.”
So EFCA provides no right to a secret ballot, imposes heavy fines for employers trying to speak up about the future of their companies (while doing nothing to increase protections for workers against illegal or improper behavior on the part of union organizers), and kills jobs in an economy that needs them badly. Remind us again what part of the Employee Free Choice Act is about freedom or free choice?
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