Card Check Is Not Unconstitutional

http://online.wsj.com/article/SB123033969658536557.html

Richard Epstein wrongly asserts the Employee Free Choice Act will "eliminate" employer free speech by allowing certification of unions based upon checked cards, in "The Employee Free Choice Act Is Unconstitutional" (op-ed, Dec. 19).

Nothing in the EFCA curtails what employers can say about unionization. With card check, employers are free to campaign against unionization before and during union membership card drives. Mr. Epstein also wrongly suggests that the EFCA prescribes "clandestine organizing campaigns." Nothing in the EFCA specifies how organizing campaigns are to be run.

When evaluating the constitutionality of card check, it is important to remember that certification based on cards and without an election was regularly practiced by the National Labor Relations Board in the early years of the National Labor Relations Act. Today the NLRB continues to certify unions without an election in cases of egregious employer misconduct and pursuant to voluntary card check agreements between employers and unions. There were, and have been, no constitutional problems with card check.

There are reasonable arguments against card check, but unconstitutionality is not one of them.

Michael Janson, Ph.D.
University of Pennsylvania Law School
Philadelphia