Employee Free Choice or Employee Forged Choice? Race in the Mirror of Exclusionary Hierarchy

Harry G. Hutchison

George Mason University - School of Law; Oxford Centre for the Study of Law & Public Policy

August 24, 2009

Michigan Journal of Race & Law, Vol. 15, No. 2, pp. 369-416, Spring 2010
George Mason Law & Economics Research Paper No. 09-39

The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). Putting the potential impact of the EFCA in historical perspective, one commentator contends that the NLRA marked the culmination of a systematic effort of the Progressive movement that dominated so much of American intellectual life during the first third of the twentieth century. As it was widely acknowledged at the time, the NLRA was revolutionary in its implications for American Labor Law. Less widely recognized were the adverse effects of this and other New Deal statutes on people of color. Readily available evidence shows that President Roosevelt’s insistence on raising the price of labor (1) increased unemployment and human suffering, and (2) also widened the unemployment gap between blacks and whites. Today, this wide, if not widening, unemployment gap remains in effect. Properly appreciated, the consequences of the New Deal for African Americans persist as an important and under-examined issue. It is likely that neither Progressive Era labor legislation nor contemporary efforts to further transform the labor market operate in the best interest of African American citizens. Provoked by the assertion that labor faces a legal crisis and the claim that the statutory right to organize is a sham, energized by the contention that the union movement ought to reinvent itself as a robust engine of collective insurgency against globalization, class-based injustice, and asserted increasing disparities in income, labor union advocates and hierarchs have offered a number of ideas that include the necessity of acting like a genuine rights movement, encouraging open source unionism, and creating alternative (nonunion) worker organizations.

One of the newest attempts to transform labor relations is the EFCA. The first to disappear under the EFCA would be a system of union democracy whereby unions could only obtain the rights of exclusive representation for firms if they could prevail in a secret-ballot election. Second, the EFCA would eliminate the necessity of a freely negotiated collective bargaining agreement between management and labor and instead substitute compulsory arbitration. While some labor union advocates contend that law ought to be conceived of as a vehicle to democratize the workplace by redistributing power in labor markets in favor of workers, while concurrently demolishing hierarchical command structures that entrench gender, race and class lines, this proposal would likely expand labor hierarchy, labor market cartelization and diminish the employment prospects of racial minorities. As such, the EFCA is marked by contradiction. This paper deploys Critical Race Reformist theory, economics and apartheid-era South African labor history in order to show that rather than embracing freedom for workers, eliminating poverty, and expanding opportunities for all, this proposal would likely invert such goals and instead operate consistently with the record of exclusion and subordination tied to American Progressivism and the labor movement.

Number of Pages in PDF File: 49

Keywords: African American economic progress, black underclass, Canada, card check, Cornel West, French Revolution, Henry Louis Gates, marginalization, Richard Epstein, Roger Scruton, unionization

JEL Classification: J21, J30, K31

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Date posted: August 25, 2009 ; Last revised: May 21, 2010

Suggested Citation

Hutchison, Harry G., Employee Free Choice or Employee Forged Choice? Race in the Mirror of Exclusionary Hierarchy (August 24, 2009). Michigan Journal of Race & Law, Vol. 15, No. 2, pp. 369-416, Spring 2010; George Mason Law & Economics Research Paper No. 09-39. Available at SSRN: http://ssrn.com/abstract=1459189 or http://dx.doi.org/10.2139/ssrn.1459189

Contact Information

Harry G. Hutchison (Contact Author)
George Mason University - School of Law ( email )
3301 N. Fairfax
Arlington, VA 22201
United States
703-993-8980 (Phone)

Antonin Scalia Law School, George Mason University Logo

Oxford Centre for the Study of Law & Public Policy
Belsyre Court, 57 Woodstock Road
Oxford 0X2 6HJ
United Kingdom

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