One of the alternatives to card-check organization in the Employee Free Choice Act (EFCA) is to allow for quicker secret-ballot elections and permit union organizers to meet with employees on the work site being unionized.

Elections are currently scheduled at about the 39-day point after the National Labor Relations Board (NLRB) receives organizing cards signed by 30 percent of a site’s employees. During that period, employers can hold on-site meetings to present their case against unionization, but organizers are not permitted the same access.

EFCA to the rescue. Even without a rewrite to drop card check, most current versions of the EFCA provide for workplace access by organizers. The Supreme Court has ruled in the past, however, that the National Labor Relations Act (NLRA), the 1935 law governing unionization, does not permit violations of private property–in this case, the workplace. The NLRA merely prohibits employers from interfering with organization activities. It does not require employers to aid and abet the union’s efforts.

In Lechmere Inc. v. National Labor Relations Board, the Supreme Court in 1992 clarified the sanctity of private property in organization efforts.

Lechmere owned a retail operation in a mall and held an ownership stake in the mall’s parking lot. When union organizers took to placing union pamphlets on employee cars in the parking lot, Lechmere ordered them off its private property, and the police obliged by enforcing the order. The retail workers’ union took the issue to the NLRB, which ruled that Lechmere was engaging in an "unfair labor practice" under Section 8 of the NLRA.

Not so, the 6-3 decision of the Supreme Court said, reversing the NLRB. The majority opinion said that granting third parties access to private property for their own purposes would be a dangerous precedent. Employers, it further said, are not required to facilitate unionizing efforts, just not to obstruct such efforts. Further, in cases where employees are otherwise "inaccessible" except on company property, the court said access legislation could be passed on those grounds.

The EFCA, obviously, goes well beyond the "inaccessible" standard set by the Supreme Court and envisions blanket on-site privileges to organizers in all cases.

The question is whether today’s Supreme Court would uphold Lechmere and strike down this portion of the EFCA if it should pass and become law.

The answer is "probably," but it would take years for challenges to wend their way through lower courts, and by then perhaps the conservative, pro-business majority on the Supreme Court might no longer exist.

Might, but one must remember that the conservative majority, craftily reaffirmed by Dubya with relative youngsters John Roberts and Samuel Alito, still has a long-distance hold on the court…providing the unusual and unforeseen doesn’t occur (such as early retirement or death).

So, employers, get ready to throw open your companies’ doors as the EFCA takes you on Mr. Toad’s Wild Ride into unionization.