Edited by Cynthia L. Estlund and Michael L. Wachter
Chapter 5: Union organizing and the architecture of employee choice
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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