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• Zev J. Eigen & David Sherwyn, A Moral/Contractual Approach to Labor Law Reform, 63 Hastings L.J. 695 (2012).
•  Brishen Rogers, Passion and Reason in Labor Law, 47 Harv. Civ. Rts.-Civ. Lib. L. Rev. 313 (2012).

The existential dilemma of modern labor law has been the shrinking numbers of employees who vote for union representation.  Last year unions represented only 11.3 percent of U.S. employees—just 6.6 percent in the private sector.  Labor law scholars have long attempted to account for the trend; indeed, rumors about the death of labor law have been around for at least twenty years.  One might think that the academic ground concerning the decision to join or not join a union would be well-plowed—so plowed over, in fact, that the land would no longer be fertile.  But two recent articles not only belie this claim, they also show the continuing importance of the representation decision to our conceptions of workplace justice.

In A Moral/Contractual Approach to Labor Law Reform, Eigen and Sherwyn seek to find middle ground between the union-side story and the management-side story as to those declining percentages.  They reject the notion that a fairer labor law system would be one in which unions enjoyed higher success rates.  Instead, they argue that representation elections should be fair, and they define a fair system as one that “will result in employees believing they had enough information to make an informed decision, that they were respected, and that they were not intimidated, threatened, or coerced.”  (p. 712) Although they acknowledge the well-regarded labor law critique by Paul Weiler and others that workers are insufficiently protected against coercive employer tactics during the representation campaign, they also contend that unions have “failed to adapt with the times.”  (p. 719)  According to Eigen and Sherwyn, under the current system workers are trapped in tug of war in which both unions and employers can lie, manipulate, and coerce their way to victory.  Card check neutrality agreements, in their view, make matters even worse: since the union must collude with the employer to put such an agreement into effect, they argue that such agreements constitute improper employer support to the union in violation of NLRA § 8(a)(2).1  Instead of shortening or eliminating the representation campaign, Eigen and Sherwyn argue that labor organizations and employers should agree to the “Principles for Ethical Conduct During Union Representation Campaigns” as set forth by the Institute for Employee Choice.  The Principles require truthfulness; prohibit discharges, threats, and bribes; and call for equal time and access for both sides.  Eigen and Sherwyn acknowledge some question about how the Principles should be enforced; they reject codifying them as regulatory requirements, but are equivocal between providing legal incentives for compliance and just simply leaving them as a contractual option.  Here, Eigen and Sherwyn rely on past research (including this paper by Eigen) to argue that making the Principles mandatory will undercut the moral norms that might render them more effective in the workplace than legal sanctions.  Ultimately, they hope that joint agreement to the Principles will make all parties, but particularly employees, better off as a result.

With their focus on providing time and information for employee deliberation free from coercion or influence, Eigen and Sherwyn implicitly use a cost-benefit approach in framing the representation decision.  Brishen Rogers takes on this model in Passion and Reason in Labor Law, in which he rejects the notion of cool calculation in favor of a hotter process.  Rather than taking workers’ preferences as exogenously determined and static, Rogers argues that the primary goal of an organizing campaign is to empower workers as a group and thereby change their understandings—and desires—about their role in the workplace.  Although he does not assert that the standard cost-benefit model is directly flawed, he does argue that its (implied) focus on a calm, deliberative process fails to include the powerful emotional and collaborative elements that drive many union campaigns.  Rogers is careful and couched in his suggestions for reform, but his primary point seems to be that a union is less a service to be purchased, and rather a movement to be joined.  Union organizers may spark social cascades and induce group polarization not to make employees buy in irrationally, but rather to overcome fears and norms against unionization that have been entrenched within the law and society.  In fact, Rogers argues that the workers themselves are transformed into a unit that “acts like a union”—meaning that the workers have assumed ownership of their collective relationship.  Thus, instead of an individualized cost-benefit analysis, the choice to join the union is based on joint action that seeks to bond the workers together and create a new process for channeling workplace power dynamics.

The contractual, cost-benefit approach of Eigen and Sherwyn may seem worlds away from the passionate, communitarian approach proffered by Rogers.  But both, in a sense, are looking for the representation election to provide more than simply an up-or-down decision on the union question.  Rogers is looking for workers to transform their relationships not only with their employer but also each other.  And Eigen and Sherwyn are looking to empower workers to make decisions in an environment with sufficient information and free of intimidation.  In fact, they propose using a commissioned study of workers involved in various types of representation election regimes to determine which method works best.  Both articles are imagining a world in which the actual decision seems somewhat secondary—it is the process of getting to that decision that matters.  However, both articles also cast doubt on the end results of that process.  Eigen and Sherwyn assume that voluntary compliance with principles of neutrality, honesty, and lack of coercion will be sufficient to arm employees with the tools they need to make the best representation decision.  But they fail to explain what kinds of truthful information would be useful to make the decision, and whether employees are in a good position to assess that information themselves.  Rogers’ model stems in part from actual organizing experiences (including his own), and it smacks more of the hurly-burly of a typical campaign.  But Rogers seems to assume that the passion and solidarity generated by union organizers can have only salutary effects.  Emotional and social appeals have been used for a lot of purposes, from selling gold coins to evangelizing for converts.  According to Rogers, the very process of union organizing will create workplace democracy, at least in some form.  But others may not be as sanguine that a campaign carried on by experienced operatives will always take its participants to a better place.

Both A Moral/Contractual Approach and Passion and Reason delve more deeply into the process by which employees decide whether to join a union.  While much about this process remains unknown, we are fortunate to have two new frames of observation provided by these talented scholars.

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  1. FN: They do acknowledge that such an assessment is not supported by recent Board or judicial authority.
Cite as: Matt Bodie, Choose or Lose, JOTWELL (May 8, 2013) (reviewing • Zev J. Eigen & David Sherwyn, A Moral/Contractual Approach to Labor Law Reform, 63 Hastings L.J. 695 (2012).•  Brishen Rogers, Passion and Reason in Labor Law, 47 Harv. Civ. Rts.-Civ. Lib. L. Rev. 313 (2012)),