In an article in the Spring 2007 edition of Dissent , University of California Professor Nelson Lichtenstein gives the most sincere defense to date of the Employee Free Choice Act. He doesn’t quote dubious statistics about illegal firings or make disingenuous assertions about “workers” being able to choose secret ballot elections. He doesn’t claim that unions cannot win secret ballot elections. (Indeed, as Bret Jacobson points out , union win rates have increased in each of the last ten years.) Professor Lichtenstein simply believes that employers should be required to be neutral on the subject of union organizing. In the Professor’ s view:

THE CRUCIAL EVENT in the transformation of the representation election, of its movement from a mechanism internal to the life of the unions into one whereby employers could use it as a device for blocking unionism before it got truly started, came in 1947, with the development of the employer free speech doctrine, codified by the Taft-Hartley Act itself. From this point on the board proceeded to regulate union organizing on the hypothesis that employers and unions would—and should—campaign like political candidates for the support of presumptively undecided voters.

The framers of the Wagner Act were good liberals, influenced by the American Civil Liberties Union among others. They were well aware that employer “free speech” was ipso facto coercive. They understood that the enormous inequality of power that existed in the unorganized workplace meant that employer efforts at verbal persuasion could hardly be divorced from the exercise of managerial authority. What an employer says, noted a spokesman for the Twentieth Century Fund, “so easily leads to what is coercion and fear.” All it takes is to “go to a man whose bread and butter is dependent on your pay envelope and suggest to him you think it would be a good thing for him to form a company union.” Or no union . . .

The Taft-Hartley amendments, enacted over President Truman’s veto, have invoked the ire of labor’s supporters since their passage . Many continue to advocate the repeal of certain provisions.

Most EFCA opponents would disagree with Professor Lichtenstein ’s opinions, but one has to admire his honesty. However, the free speech provision merely codified what the courts had repeatedly held before 1947. As summarized by Justice Rutledge in Thomas v. Collins , 323 U.S. 516 (1945):

[D]ecision here has recognized that employers' attempts to persuade to action with respect to joining or not joining unions are within the First Amendment's guaranty. National Labor Relations Board v. Virginia Electric & Power Co., 314 U.S. 469 , 62 S.Ct. 344. Decisions of other courts have done likewise. n21 When to this persuasion other things are added which bring about coercion, or give it that character, the limit of the right has been passed. n22 Cf. National Labor Relations Board v. Virginia Electric & Power Co., supra. But short of that limit the employer's freedom cannot be impaired.

Thus, it would be very difficult for legislation to prohibit non-coercive employer speech. So labor’s supporters want to minimize the opportunity for that speech by mandating a card-check process that does not require employer notification.

Of course, Professor Lichtenstein’s article goes much further than merely supporting the Employee Free Choice Act. He suggests creation of a “new La Follette committee” (named after the committee chaired by Wisconsin senator Robert La Follette, Jr.), which, to use the Professor’s description, “ was a subcommittee of the Senate Committee on Education and Labor, which for four years, from 1936 to 1940, sought to ‘drain the industrial swamp’ by investigating ‘violations of the rights of free speech and assembly and undue interference with the right of labor to organize and bargain collectively.’” (See also: La Follette Committee - Wikipedia, the free encyclopedia). Professor Lichtenstein proposes:

Just as the La Follette Committee of 1936 investigated the strike-breaking agencies, the arms suppliers, and the labor spy rackets at General Motors, Republic Steel, and in California agriculture, so too could the Committee on Education and Workforce use its subpoena power to unearth the way that key U.S. companies—Wal-Mart, Smithfield Meatpacking, Fed Ex, and Peabody Coal, first among them—and key law firms, including Jackson Lewis, Seyfarth Shaw, and the Burke Group, have abused and violated the law to deny workers their right to self-organization.

To the extent that the Professor advocates a serious Congressional inquiry, we agree with him. But we believe that if a labor policy – guaranteed secret ballot elections and other issues compromised by the EFCA -- is to be changed after six or more decades, there at least ought to be a real debate about all of it. So far we’ve had only staged hearings and endless “astroturfing ” on both sides of the issue.

Of course, Professor Lichtenstein starts with the assumption that any employer resistance is bad policy, so he suggests investigating only that conduct. While we do not contend that employer conduct should be off-limits in any serious debate, we also believe that the Professor’s underlying assumptions should also be considered. Is all employer speech “ipso facto coercive”? Even if it may have been in 1936, is that still the case over sixty years later? As we’ve noted before , hundreds of thousands of employees have voted in NLRB elections since Taft-Hartley was enacted. Could Congress not ask at least some of them if their “free choice” was exercised? Also, is there not at least some risk that bad apple employer intimidation could be replaced by bad apple union organizer intimidation? Is employer opposition the sole reason for organized labor’s decline, or are there other problems? The drastic changes being proposed will never be accepted until an honest debate of these and other issues is held.