The Harvard Law Review published “Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing,” by Professor Benjamin Sachs on January 19, 2010.
By taking up the debate over the proposed Employee Free Choice Act (EFCA), Sachs’s article examines a foundational question for labor law: whether allowing employees to limit or avoid managerial intervention in union campaigns is an appropriate means to advance employee choice. Sachs answers this question in the affirmative. He reaches this conclusion by drawing on the preference-eliciting default theory of statutory interpretation and the reversible default theory from corporate law. Doing so leads to the argument that each of the legislative designs currently under consideration, including both “card check” and rapid elections, are best understood as what the Article names “asymmetry-correcting altering rules”—means of mitigating the impediments that block departure from the nonunion default. Sachs then asks how such an altering rule should be constructed. He addresses the 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, Sachs 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 decisionmaking.
An assistant professor of law at HLS, Sachs joined the faculty in 2008. He was previously a fellow at Yale Law School, where he was awarded the 2007 Yale Law School Teaching Award. His research interests include labor law, the law of the workplace, and immigration law.