Research Handbook on the Economics of Labor and Employment Law
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Research Handbook on the Economics of Labor and Employment Law

Edited by Cynthia L. Estlund and Michael L. Wachter

This Research Handbook assembles the original work of leading legal and economic scholars, working in a variety of traditions and methodologies, on the economic analysis of labor and employment law. In addition to surveying the current state of the art on the economics of labor markets and employment relations, the volume’s 16 chapters assess aspects of traditional labor law and union organizing, the law governing the employment contract and termination of employment, employment discrimination and other employer mandates, restrictions on employee mobility, and the forum and remedies for labor and employment claims.
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Chapter 5: Union organizing and the architecture of employee choice

Benjamin I. Sachs


It is a central aim of our federal labor law to offer employees a choice on the question of unionization. But designing a legal regime that, in fact, protects employees’ ability to choose whether they wish to bargain individually or collectively with their employers has long proven an elusive goal. The question of how to enable employee choice gained renewed attention in the opening months of the Obama Administration. The interest centered around the Employee Free Choice Act (EFCA), a bill that would have changed the process through which workers organize unions and enable employees to form unions through a procedure known as “card check.” Under card check, if a majority of workers in a relevant unit sign authorization cards, the employer would be legally obligated to recognize the union as the employees’ collective representative. Senate negotiators also entertained possible alternatives to card check, including a “rapid elections” regime which would mandate that union elections take place almost immediately after the completion of a union organizing drive (Greenhouse, 2009a). Irrespective of EFCA’s fate, the debate over the legislation allows for reexamination of a set of questions at the conceptual core of labor law. As I will explain in this chapter, card check and rapid elections both aim to advance employee choice by minimizing or eliminating managerial intervention in union organizing efforts. Accordingly, the central substantive question raised by the EFCA debate is whether it is appropriate for federal law to enable employees and unions to minimize, or avoid entirely, managerial intervention in organizing efforts. This issue is foundational for labor law.

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