Selected text from

The Case against the Employee Free Choice Act

Richard A. Epstein

THE LAW SCHOOL | THE UNIVERSITY OF CHICAGO

January 2009

https:/www.law.uchicago.edu/files/452.pdf

The bottom line is that the passage of the EFCA will create huge dislocations in established ways of doing business that will in turn lead to large losses in productivity. Small businesses, which as a group are the largest source of new jobs in the country, will find themselves besieged with insistent demands for unionization, for which they are ill-equipped to cope.

These businesses often operate on small budgets, without the assistance of full time lawyers. Under EFCA, their first exposure to unions could come at the conclusion of a secret campaign, which requires them to both hire and acquire expertise on contentious matters for which they are ill‐equipped to deal, at a cost which they can ill afford to bear. These calls for unionization will divert management from the essential tasks of product development, marketing and sales, on which their business models necessarily depend.

The likely consequence of EFCA will be to retard the formation of small businesses, as fledgling entrepreneurs will reassess their prospects of success to take into account the danger of derailment at an early stage in the process. In the long‐term the EFCA will reduce the rate of firm formation, and thus deprive the economy of a central driver of new job creation and technology growth.