Each Labor Day holiday there is an annual rite of editorials that either praise or damn organized labor. With Congress currently deliberating the Employee Free Choice Act (“EFCA”), the fervor and number of these commentaries should increase. This year these commentaries will focus on whether our country would be well-served: (1) by effectively eliminating secret ballot elections as the method by which workers choose whether to have a collective bargaining representative and, if so, which one; (2) by imposing the risk of mandatory arbitration during first contracts negotiations on unions, employers, and employees (i.e., having a panel of federal arbitrators determine the contractually binding “terms and conditions” of employment for all parties); and (3) by significantly increasing fines and penalties for unfair labor practices for employers, but not for unions. While this discussion is healthy, more attention needs to be paid to how EFCA would change the very purpose of federal labor law.

In its Annual Report for the Fiscal Year 2008, the National Labor Relations Board (“NLRB” or “the Board”) observed that, “[t]he purpose of the Nation’s primary labor relations law is to serve the public interest by reducing interruptions in commerce caused by industrial strife.” For example, the law makes it the NLRB’s priority to prevent any union from ordering its members to refuse to handle or work on goods shipped from a disfavored employer (“hot cargo”)or from trying to convince others to stop doing business with an employer because it does business with a disfavored employer (“secondary boycotts”). Simply put, the law reduces interruptions in commerce by minimizing the spill-over effect of disputes between an employer and unions to innocent employers and their employees.

EFCA would eliminate this prioritization by replacing the law’s current text that would make it the Board’s priority to seek injunctive relief in certain instances of alleged employer misconduct. If the economy is this country’s engine, this proposed change is like refusing to use motor oil. While secondary boycotts, hot cargo arrangements, and related activities would not be legalized by this change, they would much easier to get away with and harder to stop. Making this change would increase the incentive for unions use illegal tactics that drag one business into another unrelated business’ labor troubles.

This is a point that should not be lost on the supporters of organized labor. Indeed, in advocating the need for EFCA, organized labor and its cadre of commentators have repeatedly made claims about the ineffectiveness of the NLRB’s remedial provisions in deterring employer misconduct. It would take a healthy dose of hypocrisy or Pollyannaism for these same voices to suggest that weakening the remedial provisions that apply to organized labor would not also promote misconduct.

Right now our nation is struggling to promote commerce. Billions upon billions of taxpayer dollars have already been spent to that end. Putting aside the debate on EFCA’s other provisions (or the purported need for additional injunctive relief efforts against employers), common sense dictates maintaining the policy of “reducing interruptions in commerce caused by industrial strife.” Labor Day should be a day to celebrate the labor of American employees and not promote union interests at the expense of employees.

(Joseph McCoin is a partner is the Labor & Employment department at Miller & Martin PLLC. Larry Bridgesmith serves as Of Counsel in Miller & Martin’s Labor & Employment department.)