"Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing,"


Benjamin I. Sachs. 2010. “ "Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing,"” HARVARD LAW REVIEW, Vol. 123, Pp. 655-727. Publisher's Version
 "Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing,"


The proposed Employee Free Choice Act (EFCA) has led to fierce debate over how best
to ensure employees a choice on the question of unionization. The debate goes to the
core of our federal system of labor law. Each of the potential legislative designs under
consideration — including both “card check” and “rapid elections” — aims to enhance
employee choice by minimizing or eliminating managerial involvement in the
unionization process. The central question raised by EFCA, therefore, is whether
enabling employees to limit or avoid managerial intervention in union campaigns is an
appropriate goal for federal law. This Article answers this foundational question in the
affirmative. It reaches this conclusion by conceptualizing federal labor law in terms of
legal default rules, drawing in particular on the preference-eliciting default theory of
statutory interpretation and the reversible default theory from corporate law. Doing so
leads to the argument that card check, rapid elections, and similar mechanisms are best
understood as “asymmetry-correcting altering rules” — means of mitigating the
impediments that block departure from the nonunion default. Understanding EFCA in
this way also requires that we ask how such an altering rule should be constructed. This
Article addresses this institutional design question by arguing that card check’s open
decisionmaking process is flawed and that rapid elections, while an improvement over
the status quo, are an insufficient method of mitigating the relevant impediments to
employee choice. Accordingly, this Article offers two new designs — alternatives to both
card check and rapid elections — that would accomplish the legitimate function
of minimizing managerial intervention while at the same time preserving secrecy in