Workers Have Constitutional Rights, Too

David Brody is professor emeritus of labor history with the Institute for Research on Labor and Employment at the University of California-Berkeley. I wanted to pass along Brody’s great comments to a recent Wall Street Journal opinion column by Richard Epstein, which claims that the Employee Free Choice Act is unconstitutional.

You learn something new every day. According to professor Richard Epstein writing at The Wall Street Journal, the First Amendment not only protects an employer’s right to speak but to be heard. In fact, as things currently stand, an employer can make employees listen, not because of the First Amendment, but because the employer has a property interest in their time and can force them to attend meetings—rightly described as “captive audience”—where, as Epstein says, the employer can “air his views about the downsides of unionization.” Of course, if employees answer back, they can be fired. No free speech for them. Majority sign-up (also called “card-check”) doesn’t impinge on employer free speech. There’s no free speech right that requires people to listen.

According to Epstein, the First Amendment not only protects an employer’s right to speak but to be heard without dissent. In fact, as the law currently stands, he can make his employees listen, not because of the First Amendment, but because he has property interest in their time and can force them to attend meetings-rightly described as “captive audience”-where, as Epstein says, he can “air his views about the downsides of unionization.” Of course, if employees answer back, they can be fired. No free speech for them. Majority sign-up (also called “card-check”) doesn’t impinge on employer free speech. There’s no free speech right that requires people to listen.

I will defer to constitutional lawyers as to whether the “takings” clause applies to first contract arbitration. But isn’t it curious that Epstein has nothing to say about why labor advocates this provision? Only 56 percent of unions that are certified by an election as bargaining agent ever get a first contract. The law says they must bargain in good faith, but union-avoidance consultants (and lawyers like Epstein) make a good living showing employers how to evade their obligation. Frequently, the newly formed union just breaks up in despair after a drawn-out battle for fair treatment. Or, if it chooses to strike, the employer brings in striker replacements-scabs, they used to be called-and the union is broken that way, plus the employees have lost their jobs. Pretty neat.

So tell me, professor Epstein, have you given any thought to the employees who have elected bargaining agents and never get a contract? Or are remedies of no interest to you?

Print This Article | E-Mail This Article |Comments (0)