Jottings By An Employer's Lawyer

Thursday, March 25, 2010

Tired of Card Check, Rapid Elections? Harv Prof Offers a Different Approach


Benjamin I. Sachs, an Assistant Professor of Law at Harvard has a recent Harvard Law Review article evaluating card check and rapid elections, and suggesting that neither is the optimal approach. Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing.

Before employers get excited that there is yet another potential academic convert to the anti-EFCA movement, it would be helpful to note a couple of items in Professor Sachs' resume -- a clerkship with Judge Reinhardt of the 9th Circuit and a stint in the legal counsel's office of the SEIU.

Given that background it is not surprising that he finds:
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.
His two proposed solutions would keep secret ballots, but would both require a process of continuous voting that would be conducted without the employer explicitly being told that an election was in process.

While, those ideas are radically different from the current method, if you pose and answer the "central question" as Professor Sachs does, they do follow.

And although there could be much interesting discussion about those suggestions, Professor Sachs, may really, intentionally or not, have raised the real elephant in the room:
What is the policy of the United States with respect to unionization of the work place?
Some would argue that the policy is clearly articulated in ยง151(d) of the National Labor Relations Act :
It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. (emphasis added)
In other words, a pro-union position. But, I think many would be surprised to hear that was the official U.S. policy, and would believe, if it were in fact true, that the real question should be:
What should the policy of the United States be with respect to unionization of the workplace?
Is the answer the same as when the Wagner Act was adopted in 1935, or even when it was modified by the Taft-Hartley Act of 1947? 

EFCA, although discussed in terms of procedure, is really just the most recent proxy fight about that basic question.

For me, the next question becomes:  Is it time to address that issue squarely?

In this era when there seems to so little hope of consensus on any controversial issue, it does not seem that it would be particularly helpful.

Still, just because it is a difficult question, does not mean that it does not exist.

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