The Employee Free Choice Act would strip American workers of their right to a private-ballot vote, require companies to submit to binding arbitration, and increase penalties for unfair labor practices committed by employers but not by unions. Congress should instead protect the privacy of American workers and guarantee their right to vote in an election before joining a union.

With the Obama administration in the White House and an overwhelmingly Democratic Congress, passage of the Employee Free Choice Act (EFCA) appears likely. But it can and should be stopped if at all possible, given the adverse impact that it will have on the workplace and the overall economy. In The Case against the Employee Free Choice Act, Richard Epstein examines this proposed legislation and why it is a large step backward in labor relations that will work to the detriment of employees, employers, and the public at large.

The Employer Free Choice Act has had enjoyed strong academic support. but thus far has been stymied by fierce political resistance to its central positions that first institute a card-check for the selection of a union and then requires mandatory arbitration if the parties cannot agree to a new contract within 130 days of union recognition. This articles critiques the arguments made in support of this fundamental revision of labor law offered by Craig Becker, Benjamin Sachs, and Catherine Fisk & Adam Pulver, all of which purport to show that flaws in the current system of collective bargaining need major prounion adjustments. The key theoretical insight of the paper is that no ad hoc justifications for particular changes in the statute can be considered in isolation of the fundamental decision under the National Labor Relations Act to impose a system of mandatory collective bargaining. Once an employer may not refuse to bargain to a union, it must receive in exchange a broad number of offsetting rights, such as the ability to speak during organizing campaigns, and to reject in good faith those offers that it finds unacceptable, as current law provides. EFCA has failed because of the widespread political perception that it would usher in a new wave of union dominance that would destroy job opportunities and create major administrative burdens and political dislocations.