Information and the market for union representation

Virginia Law Review

Volumn 94, Issue 1, 2008, Pages 1-78

  Bodie, Matthew T ^a  

^a SAINT LOUIS UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 42249112058     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (486)

1. Press Release, U.S. Dep't of Labor, Bureau of Labor Statistics, Union Members in 2006 tbl.3 (Jan. 25, 2007), available at http://www.bls.gov/news. release/union2.t03.htm.
2. At their peak in the 1950s, unions represented more than a third of the private and nonagricultural workforce. Michael Goldfield, The Decline of Organized Labor in the United States 10 tbl.1 (1987);
3. Leo Troy & Neil Sheflin, U.S. Union Sourcebook: Membership, Finances, Structure, Directory app. A at A-1 (1985). By 1983, only one-fifth of the total workforce was unionized; today, only twelve percent of all employees are union members. Press Release, U.S. Dep't of Labor, supra note 1, at 1.
4. Marion Crain & Ken Matheney, Labor's Identity Crisis, 89 Cal. L. Rev. 1767, 1784-85 (2001).
5. Id. at 1785 ("Since Sweeney's ascendance to the presidency... the AFL-CIO has made significant progress in revitalizing itself through a renewed commitment to organizing.").
6. George Raine, Dissident Unions Put the Focus on Organizing, S.F. Chron., July 31, 2005, at El;
7. see also Andy Stern, A Country That Works: Getting America Back on Track 86-98 (2006) (discussing his perspective on the founding of the Change to Win Federation).
8. 29 U.S.C. §§ 151-169 (2000).
9. The Act defines a "labor organization" as "any organization of any kind... in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." 29 U.S.C. § 152(5).
10. Id. § 159.
11. Gen. Shoe Corp., 77 N.L.R.B. 124, 127 (1948).
12. See, e.g., Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 495, 497 (1993) (noting that "election rules bear the stamp of an analogy between political representation and labor representation");
13. Derek C. Bok, The Regulation of Campaign Tactics in Representation Elections Under the National Labor Relations Act, 78 Harv. L. Rev. 38, 68 (1964) ("[Representation elections are closely akin to political contests.").
14. See Uyeda v. Brooks, 365 F.2d 326, 329 (6th Cir. 1966)
15. (citing NLRB v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712 (10th Cir. 1964)). A bargaining unit can consist of a small number of employees with a particular job description, or it can be all of an employer's employees.
16. See 29 C.F.R. § 101.18(a) (2006).
17. Id. § 101.20(a). At the end of the hearing, the Board's Regional Director will issue a decision about the appropriateness of the bargaining unit. Id. § 101.21(a)-(b). The parties may ask the Board to review this decision. Id. § 101.21(d). However, the Board has the final say; the pre-election ruling is not reviewable prior to the election. If the employer wishes to challenge the appropriateness of the Board's ruling after the union has won the election, it must refuse to negotiate with the union. The subsequent unfair labor practice proceedings then provide an opportunity for court review.
18. See Boire v. Greyhound Corp., 376 U.S. 473, 476-79 (1964) (holding that Board's orders in election certification proceedings were not final orders subject to judicial review);
19. Am. Fed'n of Labor v. NLRB, 308 U.S. 401, 409 (1940) (same);
20. Michael C. Harper et al., Labor Law: Cases, Materials, and Problems 299-300 (5th ed. 2003) (discussing the process for employer judicial review).
21. 29 C.F.R. § 101.21.
22. See 29 U.S.C. § 159(a) (2000).
23. Id. § 158(a)(3) (permitting employers to require union membership as a condition of employment);
24. NLRB v. Gen. Motors Corp., 373 U.S. 734, 744-45 (1963) (permitting "agency shop" agreements whereby unions charge nonmembers for the costs of collective representation).
25. 29 C.F.R. § 102.69(a).
26. Id. § 102.69(c), (d), (e).
27. 29 U.S.C. § 160(c), (e),(f).
28. The NLRA was created by the Wagner Act and has since been amended, most notably by the 1947 Taft-Hartley Act. Arthur L. Stern, Annotation, The Labor Management Relations (Taft-Hartley) Act, 1947, and its Effect on the National Labor Relations (Wagner) Act, 173 A.L.R. 1401, 1402-03 (1948).
29. See Becker, supra note 10, at 507.
30. Id. (noting that for the Board's first five years roughly a quarter of all unions were certified as representative without an election).
31. Cudahy Packing Co., 13 N.L.R.B. 526, 531-32 (1939).
32. 29 U.S.C. § 159(c).
33. Id. § 158(a)(1).
34. Id. § 158(c).
35. 77 N.L.R.B. 124, 126-27 (1948).
36. Id.
37. Id. at 127.
38. Id. at 126 (quoting P.D. Gwaltney, 74 N.L.R.B. 371 (1947)). This sentiment is probably based on the Act's Findings and Policies Section, which states that one of the declared policies of the Act is to "protect[] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing." 29 U.S.C. § 151 (2000).
39. 29 U.S.C. § 158(a)(1).
40. See E.W. Grobbel Sons, Inc., 322 N.L.R.B. 304, 305 (1996) (holding that a discontinuance of benefits was an unlawful reprisal), enforcement denied on other grounds, 149 F.3d 1183 (6th Cir. 1998).
41. The employer may, however, shut down the plant after the election, if such a decision was reached without union animus. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274 n.20 (1965);
42. cf. First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 686 (1981) (holding that the employer need not bargain with the union over such a decision).
43. 395 U.S. 575 (1969).
44. Id. at 618
45. (quoting 29 U.S.C. § 158(c)).
46. Id.
47. 1 The Developing Labor Law 131 (Patrick Hardin & John E. Higgins, Jr. eds., 4th ed. 2001).
48. Id. at 131-32.
49. 311 N.L.R.B. 833, 833 (1993), enforcement denied, 39 F.3d 106 (6th Cir. 1994).
50. DTR Indus., Inc. v. NLRB, 39 F.3d 106, 114-15 (6th Cir. 1994).
51. See, e.g., American Greetings Corp., 146 N.L.R.B. 1440, 1445 n.4 (1964).
52. See Fern Terrace Lodge of Bowling Green, Inc., 297 N.L.R.B. 8, 8 (1989).
53. See, e.g., Golden Eagle Spotting Co., 319 N.L.R.B. 64, 74-75 (1995);
54. Advo Sys., Inc., 297 N.L.R.B. 926, 927 (1990).
55. Sears, Roebuck & Co., 305 N.L.R.B. 193, 193-94 (1991).
56. NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964).
57. American Sunroof Corp., 248 N.L.R.B. 748, 748 (1980), enforced in part, 667 F.2d 20 (6th Cir. 1981).
58. See, e.g., Bell Halter, Inc., 276 N.L.R.B. 1208, 1215-16 (1985).
59. See Torbitt & Castleman, Inc., 320 N.L.R.B. 907, 909-10 (1996).
60. Smith Co., 192 N.L.R.B. 1098, 1101 (1971).
61. Wagner Elec. Corp., 167 N.L.R.B. 532, 533 (1967).
62. Owens-Illinois, Inc., 271 N.L.R.B. 1235, 1235-36 (1984).
63. NLRB v. Shrader's, Inc., 928 F.2d 194, 196-98 (6th Cir. 1991).
64. NLRB v. Labor Servs., Inc., 721 F.2d 13, 17 (1st Cir. 1983).
65. 54Trencor, Inc. v. NLRB, 110 F.3d 268, 272 (5th Cir. 1997).
66. NLRB v. L&J Equip. Co., 745 F.2d 224, 227 (3d Cir. 1984).
67. See, e.g., Nestle Ice Cream Co. v. NLRB, 46 F.3d 578, 584 (6th Cir. 1995) (holding that union lawsuit on behalf of employees for overtime pay was an impermissible bribe).
68. 414 U.S. 270 (1973).
69. Id. at 277.
70. Id.
71. Id. at 272 n.4.
72. Certain-Teed Prods. Corp. v. NLRB, 562 F.2d 500 (7th Cir. 1977), enforcing 225 N.L.R.B. 971 (1976).
73. Inland Shoe Mfg. Co., 211 N.L.R.B. 724, 725 (1974).
74. Crane Co., 225 N.L.R.B. 657, 659 (1976).
75. See, e.g., Claxton Mfg. Co., 258 N.L.R.B. 417, 417 (1981) (holding that a letter promising no initiation fees "as of this day" was too ambiguous to clarify earlier impermissible waiver offer). An interesting twist on the Savair line of cases involves one union's requirement that a majority of employees prepay a reduced initiation fee and one month's dues in order for the union to file an election petition.
76. See Aladdin Hotel Corp., 229 N.L.R.B. 499 (1977). If the union lost the election, the prepaid amounts were forfeit to the union in order to pay for the costs of the campaign. If the union won the election, it opened up the reduced initiation fees to all employees for a period of time after the election. The Board, in a 3-2 decision, upheld the policy, finding that it offered the reduced initiation fee before and after the election.
77. Id. at 500. In dissent, two members argued that the lock-in and forfeiture provisions would interfere with the employees' freedom of choice.
78. Id. at 501-02 (Penello and Walther, Members, dissenting). The Ninth Circuit declined to enforce the Board's order, holding that the union's letter was ambiguous as to the timing of the waiver offer. NLRB v. Aladdin Hotel Corp., 584 F.2d 891 (9th Cir. 1978).
79. 65138 N.L.R.B. 66 (1962).
80. Id. at 67.
81. Id. at 71-72.
82. See, e.g., Balt. Luggage Co., 162 N.L.R.B. 1230, 1233-34 (1967) (noting that appeals to racial unity may be "directed at undoing disadvantages historically imposed" and may be a way to "unify groups of employees by focusing group attention on common problems").
83. See, e.g., KI (USA) Corp. v. NLRB, 35 F.3d 256, 260 (6th Cir. 1994) (denying enforcement of a bargaining order based on the union's use of a letter by a Japanese businessman that allegedly inflamed racial tensions);
84. Case Farms, Inc. v. NLRB, 128 F.3d 841, 850 (4th Cir. 1991) (Willams, J., concurring in judgment) (expressing "concern with the Board's apparent disregard for the decisions of the Circuit Courts" in matters concerning inflammatory racial appeals);
85. NLRB v. Schapiro & Whitehouse, Inc., 356 F.2d 675, 679 (4th Cir. 1966) (refusing to enforce bargaining order because of appeals to racial pride).
86. See, e.g., M&M Supermarkets, Inc. v. NLRB, 818 F.2d 1567, 1574 (11th Cir. 1987);
87. NLRB v. Eurodrive, Inc., 724 F.2d 556, 560 (6th Cir. 1984);
88. NLRB v. Katz, 701 F.2d 703, 708 (7th Cir. 1983);
89. cf. Clearwater Transport, Inc. v. NLRB, 133 F.3d 1004, 1010 (7th Cir. 1998) (voicing a "strong objection" to the NLRB's "seemingly casual reading" of past precedent in such cases).
90. See, e.g., Shepard Tissue, Inc., 326 N.L.R.B 369, 369-73 (1998) (Gould, Chairman, concurring) (arguing for a new approach to the Sewell doctrine).
91. For example, Senator Wagner stated during congressional hearings, "That is just the very purpose of this legislation, to provide industrial democracy." National Labor Relations Board: Hearings on S. 1958 Before the Subcomm. on Education and Labor, 74th Cong. 642 (1935) (statement of Harvey J. Kelly, American Newspaper Publishers Association),
92. reprinted in 2 National Labor Relations Board, Legislative History of the National Labor Relations Act, 1935, at 1617, 2028 (1985) [hereinafter 1935 NLRA Senate Hearings];
93. see also 79 Cong. Rec. 9691 (1935) (statement of Rep. Withrow),
94. reprinted in 1935 NLRA Senate Hearings, supra, at 3132 (noting that "self-government through fairly chosen representatives" was an "inherent" American right); Senator Robert F. Wagner, Address Before the National Democratic Forum (May 8, 1937),
95. quoted in Leon H. Keyserling, Why the Wagner Act?, in The Wagner Act: After Ten Years 5, 13 (Louis G. Silverberg ed., 1945) ("[T]here can no more be democratic self-government in industry without workers participating therein, than there could be democratic government in politics without workers having the right to vote.").
96. See Becker, supra note 10, at 496.
97. 29 U.S.C. § 151 (2000).
98. Pub. L. No. 74-198, § 9(c), 49 Stat. 449, 453 (1935).
99. 761935 NLRA Senate Hearings, supra note 72, at 642 (statement of Harvey J. Kelly, American Newspaper Publishers Association) ("[A]s to... representation of the workers you cannot have any more genuine democracy than this. We say under Government supervision let the workers themselves... go into a booth and secretly vote, as they do for their political representatives, in a secret ballot, to select their choice." (Senator Wagner speaking)).
100. See 29 U.S.C. § 159(c).
101. See, e.g., NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946) (comparing the process for challenging ineligible voters under Board rules to the process used in political elections); Thomas v. Collins, 323 U.S. 516, 546 (1945) (Jackson, J., concurring) ("The necessity for choosing collective bargaining representatives brings the same nature of problem to groups of organizing workmen that our representative democratic processes bring to the nation.").
102. See, e.g., Bok, supra note 10, at 68 ("[R]epresentation elections are closely akin to political contests.");
103. Shawn J. Larsen-Bright, Note, Free Speech and the NLRB's Laboratory Conditions Doctrine, 77 N.Y.U. L. Rev. 204, 206 n.11 (2002) ("In this way, representation elections mirror political elections.").
104. Becker, supra note 10, at 497 (noting that "election rules bear the stamp of an analogy between political representation and labor representation");
105. Alan Story, Employer Speech, Union Representation Elections, and the First Amendment, 16 Berkeley J. Emp. & Lab. L. 356, 363 (1995) (noting that representation elections have been "reconceptualized as analogous to political elections").
106. 29 U.S.C. § 159(c)(2); 29 C.F.R. § 102.69(a) (2006).
107. See Southern S.S. Co. v. NLRB, 23 N.L.R.B. 26, 31 n.3a (1940), enforced, 120 F.2d 505 (3d Cir. 1941), enforcement denied on other grounds, 316 U.S. 31 (1942).
108. See, e.g., Am. Tube Bending Co., 44 N.L.R.B. 121, 133-34 (1942), enforcement denied, 134 F.2d 993 (2d Cir. 1943).
109. Id. at 132 (quoting Sunbeam Elec. Mfg. Co., 41 N.L.R.B. 469, 488 (1942)).
110. Becker, supra note 10, at 541.
111. Thomas v. Collins, 323 U.S. 516, 537-38 (1945).
112. 29 U.S.C. § 158(c).
113. Commentators have, for example, argued in favor of retaining the election, as opposed to card-check certification, based on the employer's interest in having its views heard during the campaign.
114. See Julius G. Getman et al., Union Representation Elections: Law and Reality 136 (1976) ("The concept that each party should have a roughly equal opportunity to persuade the voters is fundamental to the democratic process.");
115. see also Larsen-Bright, supra note 79, at 242-43 (arguing that the laboratory conditions doctrine unconstitutionally infringes on an employer's right to free speech).
116. See Becker, supra note 10, at 577-601 (arguing the political election analogy is misplaced and allows employer coercion);
117. Story, supra note 80, at 436-55 (arguing that employer speech is inherently coercive and should be regulated in the interest of greater employee freedom);
118. Kate E. Andrias, Note, A Robust Public Debate: Realizing Free Speech in Workplace Representation Elections, 112 Yale L.J. 2415, 2453-62 (2003) (arguing for stronger prohibitions on employer speech to better protect employee freedom of speech).
119. Hollywood Ceramics Co., 140 N.L.R.B. 221, 224 n.6 (1962).
120. " Id. at 223.
121. One example is in the area of corporate proxy fights. See SEC Rule 14a-9, 17 C.F.R. § 240.14a-9(a) (2007).
122. 140 N.L.R.B. at 224.
123. Id. at 224-25.
124. Id. at 224.
125. 228 N.L.R.B. 1311, 1313 (1977).
126. id.
127. Id. One member of the majority, however, did write in concurrence that she would set aside an election if there had been an "egregious mistake of fact."
128. Id. at 1314 (Murphy, Chairman, concurring).
129. 239 N.L.R.B. 619, 620 (1978).
130. 263 N.L.R.B. 127, 132 (1982).
131. Id. at 129-30.
132. Id. at 131. The majority did make clear that the Board still would overturn election in instances "where a party has used forged documents which render the voters unable to recognize propaganda for what it is."
133. Id. at 133.
134. 720 F.2d 726, 729 (1st Cir. 1983).
135. Id. (internal citation and quotations omitted). In concurrence, Judge Bailey Aldrich wrote: "Midland seems to be burning down the barn to get rid of the rats; an abnegation of the Board's recognized duty to ensure a fair and free choice of bargaining." Id. at 730 (Aldrich, J., concurring).
136. Van Dorn Plastic Mach. Co. v. NLRB, 736 F.2d 343, 348 (6th Cir. 1984).
137. See, e.g., NLRB v. St. Francis Healthcare Ctr., 212 F.3d 945, 963-66 (6th Cir. 2000);
138. NLRB v. Hub Plastics, Inc., 52 F.3d 608, 611-13 (6th Cir. 1995).
139. See C.J. Krehbiel Co. v. NLRB, 844 F.2d 880, 883-84 (D.C. Cir. 1988);
140. State Bank of India v. NLRB, 808 F.2d 526, 538-39 (7th Cir. 1986);
141. NLRB v. Semco Printing Qr., Inc., 721 F.2d 886, 892 (2d Cir. 1983);
142. NLRB v. Monark Boat Co., 713 F.2d 355, 360 (8th Cir. 1983);
143. NLRB v. Yellow Transp. Co., 709 F.2d 1342. 1343 (9th Cir. 1983).
144. See Trencor, Inc. v. NLRB, 110 F.3d 268, 275 (5th Cir. 1997) (holding that it was "unnecessary to decide the full scope of this court's support of the Midland doctrine");
145. see also NLRB v. Dave Transp. Servs., Inc., No. 97-71274, 1999 WL 196545, at *1 n.1 (9th Cir. Apr. 1, 1999) (noting that they need not decide whether an exception to Midland is warranted);
146. St. Margaret Mem'l Hosp. v. NLRB, 991 F.2d 1146, 1158 (3d Cir. 1993) (noting in dicta that the Midland rule might not be sufficient in all cases);
147. NLRB v. Affiliated Midwest Hosp., 789 F.2d 524, 528 n.3 (7th Cir. 1986) (noting that it need not reach the issue of whether the circuit should recognize an exception to Midland).
148. Fla. Mining & Materials Corp. v. NLRB, 481 F.2d 65, 69 (5th Cir. 1973), enforcing Fla. Mining & Materials Corp., 198 N.L.R.B. 601, 603 (1972) (ordering the employer to bargain).
149. Id. at 66.
150. Id. at 69.
151. Id. at 69-70.
152. 113156 N.L.R.B. 1236, 1239-40 (1966).
153. Id. at 1239.
154. In their empirical study of thirty-one union representation elections, Getman, Goldberg, and Herman found that employers sent written materials to employees in twenty-six of those elections, while unions sent written materials in twenty-five. Getman et al., supra note 88, at 90. In these elections, ninety-two percent of employees reported receiving employer material, while eighty-five percent reported receiving union material. Id. Addressing changes in communication technology, one commentator has proposed that unions be given private employee email addresses as part of the Excelsior disclosure.
155. See G. Micah Wissinger, Informing Workers of the Right to Workplace Representation: Reasonably Moving from the Middle of the Highway to the Information Superhighway, 78 Chi.-Kent L. Rev. 331, 342-43 (2003).
156. Peerless Plywood Co., 107 N.L.R.B. 427, 428-29 (1953) (allowing required attendance at employer anti-union assembly, as long as such an assembly is not within twenty-four hours of an election).
157. See Story, supra note 80, at 415 (noting the "obvious point that allowing employers to hold such meetings, especially absent an opportunity for the union to do likewise, gives employers a strong advantage over unions"). In their study of thirty-one union representation elections, Getman, Goldberg, and Herman found that employers held captive-audience meetings in twenty-eight of those elections, making such meetings more frequent than the distribution of written materials.
158. Getman et al., supra note 88, at 90-92. Employee attendance at such meetings was high.
159. Id. at 91-92. Although unions held off-site meetings in many of the thirty-one elections, a much smaller percentage of employees reported attending such meetings.
160. Id. at 92. The authors note that those employees who did attend union meetings were much more likely to be union adherents.
161. Id.
162. 502 U.S. 527, 529, 541 (1992).
163. Id. at 533-34.
164. Id. at 535, 539-40. The Board and the courts have permitted union access to employer property for employees working at a remote lumber camp, NLRB v. Lake Superior Lumber Corp., 167 F.2d 147, 148, 152 (6th Cir. 1948);
165. in a company town, NLRB v. Stowe Spinning Co., 336 U.S. 226, 227-33 (1949);
166. and at a fish cannery, Chugach Alaska Fisheries, Inc., 295 N.L.R.B. 44, 44-45 (1989).
167. Farm Fresh, Inc., 326 N.L.R.B. 997, 1000 (1998).
168. For criticism of the Lechmere decision, see Cynthia L. Estlund, Labor, Property, and Sovereignty After Lechmere, 46 Stan. L. Rev. 305 (1994).
169. See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 796, 805 (1945).
170. See Stoddard-Quirk Mfg. Co., 138 N.L.R.B. 615, 616, 621 (1962).
171. Id. at 621. Such a prohibition must apply to all such distributions, and it must be applied neutrally.
172. See Marathon LeTourneau Co. v. NLRB, 699 F.2d 248, 255-56 (5th Cir. 1983).
173. See Honeywell, Inc., 262 N.L.R.B. 1402, 1402 (1982). The nondiscrimination rule for bulletin boards may also apply to computer screen savers.
174. See St. Joseph's Hosp., 337 N.L.R.B. 94, 94 (2001) (reserving judgment on the issue of whether a screen saver is more akin to a bulletin board or a union button).
175. See E.I. du Pont de Nemours & Co., 311 N.L.R.B. 893, 919 (1993).
176. Bok, supra note 10, at 39.
177. Id. at 40.
178. Id. at 43, 45.
179. Id. at 43.
180. Bok described "free choice" as follows: We may assume that one basic purpose of an election is to permit the voters to make as rational, and hence as accurate, a decision as they can concerning the issue before them. In the context of a representation election, a rational decision implies that the employees have access to relevant information, that they use this data to determine the possible consequences of selecting or rejecting the union, and that they appraise these possibilities in light of their own values and desires to determine whether a vote for the union promises to promote or impair their interests.
181. Id. at 46.
182. Id. at 49.
183. Id. (citing Burleigh B. Gardner & David G. Moore, Human Relations in Industry (rev. ed. 1950);
184. F.J. Roethlisberger & William J. Dickson, Management and the Worker (1939)).
185. Id.
186. Id. at 50.
187. Id.
188. Id.
189. Id. at 51.
190. See Bok, Foreword to Getman et al., supra note 88, at xi-xiii.
191. '40 In order to get employees' names and contact information for use in the study, the authors had to file a Freedom of Information Act claim against the Board. Getman et al., supra note 88, at 36-37. The Board refused to provide the information until compelled by a federal court of appeals.
192. Id.;
193. see also Getman v. NLRB, 450 F.2d 670, 680 (D.C. Cir. 1971).
194. Getman et al., supra note 88, at 33.
195. Id.
196. Id.
197. Id.
198. Id.
199. Id. at 62.
200. Id. at 64.
201. Id.
202. However, the authors also admit that nineteen percent of employees were initially undecided (six percent) or voted contrary to their original intent (thirteen percent) and that the votes of this nineteen percent were necessary for victory in nine out of the thirty-one elections.
203. Id. at 103. Of these groups, seventy-six percent of the switchers and sixty-eight percent of the undecided voters ended up voting for the company.
204. Id. at 111.
205. Id. at 140.
206. Id. at 143.
207. Id. at 111-13.
208. Id. at 113.
209. Id. at 115-16.
210. Id. at 125-26.
211. Id. at 150.
212. Id. at 151.
213. Id. at 153-56.
214. Id. at 155-56. This suggestion seems at odds with their earlier dismissal of the effects of such discharges.
215. Id. at 157.
216. Id.
217. See, e.g., Patricia Eames, An Analysis of the Union Voting Study from a Trade-Unionist's Point of View, 28 Stan. L. Rev. 1181, 1182 (1976);
218. Paul Weiler, Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1783 (1983).
219. See Eames, supra note 162, at 1183-87; Weiler, supra note 162, at 1782-86.
220. Weiler, supra note 162, at 1786. In making this assertion, Weiler relied on an unpublished Ph.D. dissertation by William Dickens.
221. See id. (citing William Dickens, Union Representation Elections: Campaign and Vote (Oct. 1980) (unpublished Ph.D. dissertation, Massachusetts Institute of Technology)). Dickens's dissertation was published in edited form as William T. Dickens, The Effects of Company Campaigns on Certification Elections: Law and Reality Once Again, 36 Indus. & Lab. Rel. Rev. 560, 560 (1983). Getman, Goldberg, and Brett responded to Weiler's article and Dickens's analysis in Stephen B. Goldberg, Julius G. Getman & Jeanne M. Brett, The Relationship Between Free Choice and Labor Board Doctrine: Differing Empirical Approaches, 79 Nw. U. L. Rev. 721, 722-23 (1984).
222. See, e.g., Eames, supra note 162, at 1189-90 (arguing that all employer coercion - not just that prohibited by §§ 8(a)(1) and 8(a)(3) of the Act-has an impact on employees).
223. Weiler, supra note 162, at 1772-74.
224. Id. at 1776.
225. Id. at 1780.
226. Id.
227. Id. at 1817. In 1980, the annual increase in union density produced by newly certified units was 0.24% in the United States, compared with 0.72% in Ontario and 0.84% in British Columbia. The ratio of discriminatory discharges to representation campaigns was 2.5 in the United States, but only 0.4 in Ontario and 0.1 in British Columbia. Id.
228. Id. at 1770, 1812.
229. Id. at 1812.
230. Id. at 1808.
231. Id. at 1809.
232. Id. at 1813.
233. Id.
234. Id. at 1814.
235. Id. at 1815.
236. Id.
237. Id. at 1815-16.
238. Id. at 1816.
239. Becker, supra note 10, at 497.
240. Id. at 498.
241. See id. at 500-23.
242. Id. at 535-40 (discussing American Tube Bending Co., 44 N.L.R.B. 121 (1942), enforcement denied, 134 F.2d 993 (2d Cir. 1942)).
243. 29 U.S.C. §§ 158(c), 159(c) (2000); Thomas v. Collins, 323 U.S. 516, 537 (1945).
244. Becker, supra note 10, at 547-48.
245. Getman et al., supra note 88, at 157;
246. Bok, supra note 10, at 68.
247. See Becker, supra note 10, at 523-47.
248. See id. at 577-85.
249. Id. at 500.
250. Id. at 586-87.
251. Id. at 586.
252. Id. at 592.
253. Id.
254. Id. at 593.
255. Id. at 600.
256. In some industries, most notably professional sports, unions negotiate basic framework agreements, and individual players are able to negotiate individual terms and conditions (often through agents).
257. See, e.g., 2007-2011 Basic Agreement Between Major League Baseball and the Major League Baseball Players' Association arts. II, IV, available at http://mlbplayers.mlb.com/pa/pdf/cba_english.pdf (last visited Feb. 18, 2008).
258. The metaphor of "economic warfare" has often been used in discussing the union-employer relationship.
259. See, e.g., N.Y. Tel. Co. v. N.Y. State Dep't of Labor, 440 U.S. 519, 530 (1979) ("Congress intended to forbid state regulation of economic warfare between labor and management, even though it was clear that none of the regulated conduct on either side was covered by the federal statute.").
260. See NLRB v. Gen. Motors Corp., 373 U.S. 734, 744-45 (1963) (permitting "agency shop" agreements whereby unions charge nonmembers for the costs of collective representation). However, states are permitted under § 14(b) of the NLRA to outlaw agency shop agreements. 29 U.S.C. § 164(b) (2000). Twenty-two states currently have "right to work" provisions outlawing such agreements. Harper et al., supra note 13, at 982-83.
261. See 29 U.S.C. § 158(a)(5).
262. Or, put more precisely, "[i]f the expected utility from [the employees'] job becoming a union job is higher than from it not becoming a union job, then they will vote for the union." Henry S. Färber & Daniel H. Saks, Why Workers Want Unions: The Role of Relative Wages and Job Characteristics, 88 J. Pol. Econ. 349, 351 (1980). Of course, different employees will have different perspectives on the potential costs and benefits of unionization.
263. See id. at 367 (noting that individual employees vote for or against unionization "as if the effect of unionization on earnings is to raise average earnings and lower its dispersion").
264. Bok, supra note 10, at 49.
265. Weiler, supra note 162, at 1811 ("Rather than decide on the basis of easily made promises in a representation campaign that takes place months before serious negotiations begin, the employees can see what their employer actually offers at the bargaining table, compare these offers with what their union demands, and then make up their minds whether to take the risks and make the sacrifices necessary to achieve a favorable collective agreement.").
266. Gen. Shoe Corp., 77 N.L.R.B. 124, 127 (1948).
267. See 79 Cong. Rec. 9682 (1935) (remarks of Rep. Griswold),
268. reprinted in 2 NLRA Legislative History, supra note 72, at 3109 (noting that, under the Wagner Act, employees would not "control anything except the selection of [their] representatives"); Becker, supra note 10, at 581 ("The union election vests labor's representative with no sovereignty in the workplace. It is on this point-the legal authority of the union to govern - that the analogy between industrial and political democracy is most tenuous.").
269. See Alan Hyde, Democracy in Collective Bargaining, 93 Yale L.J. 793, 810 (1984).
270. As one economist has noted: "The strike is by far the most important source of union power, and the union is now virtually the sole organizer of strikes." Albert Rees, The Economics of Trade Unions 31 (1962).
271. See supra note 200 and accompanying text.
272. See Radio Officers v. NLRB, 347 U.S. 17, 41 (1954) ("Thus Congress recognized the validity of unions' concern about 'free riders,' i.e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason.").
273. 487 U.S. 735, 762-63 (1988) (holding that the NLRA "authorizes the exaction of only those fees and dues necessary to 'performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues'"
274. (quoting Ellis v. Bhd. of Ry., Airline, & S.S. Clerks, 466 U.S. 435, 447 (1984)).
275. Of course, one might also argue that businesses in service industries are permitted to use their funds for lobbying and political activity, even if individual purchasers of those services may not wish to subsidize such activity. Thus, the "purchase-of-services" model might counsel against the Court's holding in Beck.
276. 29 U.S.C. §152(5) (2000). The Board will also disqualify a union from acting as a labor organization if it suffers from a conflict of interest.
277. See, e.g., St. John's Hosp. & Health Ctr., 264 N.L.R.B. 990, 993 (1982) (disqualifying a union that provided ancillary employment referral services);
278. Sierra Vista Hosp., 241 N.L.R.B. 631, 633 (1979) (discussing how the presence of supervisors in policymaking positions creates a conflict of interest and may disqualify a union).
279. Clayton Act, ch. 323, § 6, 38 Stat. 730, 731 (1914) (codified as amended at 15 U.S.C. § 17 (2000)).
280. I.R.C. § 501(c)(5) (2000).
281. 29 U.S.C. § 411(a)(1) (2000).
282. Id. § 411(a)(3).
283. Id. § 431.
284. Id. § 501 (requiring, inter alia, that union agents "hold [the union's] money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws and any resolutions of the governing bodies adopted thereunder").
285. Id. § 402(i), (j).
286. See Henry Hansmann, The Ownership of Enterprise 234 (1996).
287. Id.
288. Id. at 228.
289. See infra Section III.A.
290. See Hansmann, supra note 221, at 234 (noting customer lock-in as a reason for preferring a nonprofit service provider);
291. infra Section III.E (discussing the difficulty of the union decertification process).
292. See Hansmann, supra note 221, at 149 (discussing customer-owned cooperatives in the areas of wholesale and supply firms, utilities, clubs, and housing cooperatives).
293. Stewart J. Schwab, Union Raids, Union Democracy, and the Market for Union Control, 1992 U. 111. L. Rev. 367, 374-76.
294. See Securities Act of 1933, ch. 38, 48 Stat. 74 (codified as amended at 15 U.S.C. §§ 77a-77aa (2000));
295. Securities Exchange Act of 1934, ch. 404, 48 Stat. 881 (codified as amended at 15 U.S.C. §§ 78a-78mm (2000)).
296. See Samuel Estreicher, Deregulating Union Democracy, 2000 Colum. Bus. L. Rev. 501, 516-17 (arguing that the Clayton Act and the LMRDA should be amended to allow for-profit unions). Henry Hansmann argues more generally that many commercial nonprofits may also be efficiently reorganized as for-profits.
297. Hansmann, supra note 221, at 235 (arguing that "[t]he nonprofit form is a very crude consumer protection device" that may not be sufficient to justify the other inefficiencies of the nonprofit organizational form).
298. Nonprofits are only constrained from distributing their profits to persons who exercise control over the firm. This constraint may explain the types of corruption demonstrated by certain union leadership.
299. See Estreicher, supra note 229, at 512-13 (noting that union leaders may plow profits into excessive amenities, office buildings, perks, and salaries).
300. Cf. Harry G. Hutchison, Reclaiming the Labor Movement Through Union Dues? A Postmodern Perspective in the Mirror of Public Choice Theory, 33 U. Mich. J.L. Reform 447, 481 (2000) (arguing that individuals have preferences that trump the group-solidarity model of unionism).
301. See Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups 88-97 (1971).
302. For example, cable television purchasers can only buy certain packages with a pre-set selection of television channels. As a result, they may end up paying for channels they would otherwise choose not to take. In addition, home purchasers may often have to pay dues to nonprofit neighborhood associations whether they would independently choose to or not.
303. See Sarah Max, Hate Your Homeowners Association?, CNN Money, Apr. 22, 2004, http://money.cnn.com/2004/03/09/pf/yourhome/homeownersassociation/index. htm ("Homeowners are obligated to pay [association] dues - which can be anything from $100 to $10,000 a year, depending on the neighborhood and its amenities.").
304. See Lee Anne Fennell, Revealing Options, 118 Harv. L. Rev. 1399, 1444-46 (2005) (discussing private community associations).
305. Card-check certification agreements, for example, provide that employees may choose the union by submitting a card at any point in time over some extended period.
306. See, e.g., Dana Corp., 351 N.L.R.B. No. 28 (Sept. 29, 2007) (discussing the potential for "misinformation" under a card-check agreement);
307. Shepard Tissue, Inc., 326 N.L.R.B 369, 369-73 (1998).
308. See Eric A. Posner, Contract Law in the Welfare State: A Defense of the Unconscionability Doctrine, Usury Laws, and Related Limitations on the Freedom to Contract, 24 J. Legal Stud. 283,284 (1995) ("In the area of contract law, the efficiency argument concludes that courts should enforce all voluntary contracts that do not produce negative externalities, regardless of their distributive consequences. If a contract is voluntary, then it presumptively improves the well-being of both parties.").
309. See Dennis W. Carlton & Jeffrey M. Perloff, Modern Industrial Organization 87 (1994) (defining perfect information as "all relevant information about the market including the price and quality of the product");
310. Christopher L. Peterson, Truth, Understanding, and High-Cost Consumer Credit: The Historical Context of the Truth in Lending Act, 55 Fla. L. Rev. 807,883 (2003) ("Without accurate information about the quality and especially the price of any good, no person can minimize their opportunity costs, since they cannot compare the value of that product to their next best option. Thus, in a policymaking system of private decision making, where individuals act without accurate cost information, there is no policymaking at all, rather just the random and often tragic outcomes of market anarchy.").
311. 15 U.S. 178, 178 (1817). At issue in Laidlaw was a contract for the sale of tobacco made at the close of the War of 1812. The buyer knew that the war had ceased and that the British blockade that had reduced the value of tobacco had thus ended as well. The Supreme Court ruled that while there was no requirement for the buyer to disclose the information, he had a duty not to "impose upon" the buyer if the failure to answer the question was misleading.
312. Id. at 195.
313. Kimberly D. Krawiec & Kathryn Zeiler, Common-Law Disclosure Duties and the Sin of Omission: Testing the Meta-Theories, 91 Va. L. Rev. 1795,1796 (2005) (noting that "[d]ozens of law review articles and treatises" have dealt with this "vexing question").
314. Id.
315. See Restatement (Second) of Contracts § 161 (2007) (listing four categories of cases in which courts have required disclosure).
316. For example, the federal Magnuson-Moss Warranty Act requires disclosure about warranties on consumer products.
317. See, e.g., Joan Vogel, Squeezing Consumers: Lemon Laws, Consumer Warranties, and a Proposal for Reform, 1985 Ariz. St. L.J. 589, 610 ("The basic goal of the Magnuson-Moss Warranty Act is to improve the warranty information available to consumers by providing for full disclosure of all written warranty terms in a clear and concise manner.").
318. See 21 U.S.C. § 393(b)(2)(A) (2000); 21 C.F.R. § 101.9 (2006); FDA, What FDA Regulates, http://www.fda.gov/comments/regs.html (last visited Sept. 18, 2007).
319. For discussion of a particular change in the regulations concerning trans fatty acids, see generally FDA, Food Labeling: Trans Fatty Acids in Nutrition Labeling, Nutrient Content Claims, and Health Claims, 68 Fed. Reg. 41,434 (July 11, 2003).
320. See Peterson, supra note 238, at 880 ("The most important requirements of the Truth in Lending provisions centered around the disclosure of the cost of credit based on standard uniform requirements set out by the act and by the Federal Reserve Board.");
321. see also Matthew A. Edwards, Empirical and Behavioral Critiques of Mandatory Disclosure: Socio-Economics and the Quest for Truth in Lending, 14 Cornell J.L. & Pub. Pol'y 199, 212-16 (2005) (discussing Truth in Lending Act mandatory disclosures).
322. 15 U.S.C. §§ 77a-77aa (2000).
323. 15 U.S.C. §§ 78a-78mm (2000).
324. See, e.g., Peterson, supra note 238, at 883 ("Unlike interest rate caps and other control devices, disclosure regulation-at least in theory-increases the freedom of consumers through giving the opportunity to open one's own eyes. With a uniform method of learning the costs and characteristics of credit contracts, debtors can determine which credit contracts are in their best interests.").
325. There is a vibrant literature over the degree of knowledge and rationality at work in the American political process, specifically amongst voters. See, e.g., Michael X. Delli Carpini & Scott Keeter, What Americans Know About Politics and Why It Matters (1996);
326. John A. Ferejohn, Information and the Electoral Process, in Information and Democratic Processes 3, 3 (John A. Ferejohn & James Kuklinski eds., 1990);
327. Ilya Somin, Voter Ignorance and the Democratic Idea, 12 Critical Rev. 413 (1998). In making the analogy, I am not speaking to the actual level of information available to voters in an election; rather, I am drawing upon the theoretical role of the election campaign in providing greater information.
328. See, e.g., Hill v. Jones, 725 P.2d 1115, 1119 (Ariz. Ct. App. 1986) (requiring the seller to disclose material facts about a home when such facts are not readily observable and not known to the buyer
329. (citing Johnson v. Davis, 480 So. 625, 629 (Fla. 1985))).
330. Richard A. Posner, Economic Analysis of Law 112 (7th ed. 2007).
331. We may need information to get us interested in contracting in the first place. Of course, advertising is to some extent hype and persuasion, but it is also information.
332. See, e.g., Carlton & Perloff, supra note 238, at 602-04 (discussing the differences between informational advertising and persuasive advertising).
333. See, e.g., Frank H. Easterbrook & Daniel R. Fischel, Mandatory Disclosure and the Protection of Investors, 70 Va. L. Rev. 669, 681 (1984) (noting that information is generally left to the market "because of a conclusion that people who make or use a product (or test it as Consumers' Union does) will obtain enough of the gains from information to make the markets reasonably efficient").
334. George A. Akerlof, The Market for "Lemons": Quality Uncertainty and the Market Mechanism, 84 Q.J. Econ. 488, 488-90 (1970).
335. Id. at 490.
336. Bernard S. Black, The Legal and Institutional Preconditions for Strong Securities Markets, 48 UCLA L. Rev. 781, 786 (2001).
337. Id.
338. Directors are not strictly agents of the corporation; they are, in fact, more akin to elected representatives or trustees.
339. See, e.g., Cont'l Sec. Co. v. Belmont, 99 N.E. 138, 141 (N.Y. 1912) ("The directors are not ordinary agents.... They are trustees clothed with the power of controlling the property... without let or hindrance.");
340. Automatic Self-Cleansing Filter Syndicate Co., Ltd. v. Cuninghame, (1906) 2 Ch. 34, 42-43 (Eng.).
341. See generally Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. Fin. Econ. 305 (1976).
342. Schwab, supra note 227, at 367-68.
343. See id. at 379 (noting that in comparison to shareholders, "[u]nion members have even greater difficulty monitoring and evaluating their leaders"). Products with unobservable qualities are sometimes described as "experience goods"-namely, goods whose "salient characteristics can only be learned after purchase, by actual use." Alan Schwartz & Louis L. Wilde, Intervening in Markets on the Basis of Imperfect Information: A Legal and Economic Analysis, 127 U. Pa. L. Rev. 630, 658-59 (1979);
344. see also Michael R. Darby & Edi Karni, Free Competition and the Optimal Amount of Fraud, 16 J.L. & Econ. 67, 68-69 (1973) (referring to such goods as "credence" goods). Experience goods are contrasted with "search goods," those for which the consumer can establish the product's quality prior to purchase.
345. See, e.g., Carlton & Perloff, supra note 238, at 600-01. Although Schwartz and Wilde generally argue that policymakers have overstated information problems, they concede that their use of search equilibrium models sheds "relatively little light on the question of when intervention in experience goods markets on the basis of imperfect information is justified."
346. Schwartz & Wilde, supra, at 662.
347. See Schwab, supra note 227, at 379-80 ("Was the last wage increase a good one? Did the leaders work hard at the bargaining table, or did they shirk? Could tougher negotiations have produced more? Are the union leaders becoming too cozy-or too confrontational - with management? Is the low return from the pension fund due to improper investments or bad market conditions? Are leaders earning their salaries? In short, could leaders be doing better?").
348. See infra Section III.E.
349. See supra Section I.B.
350. Thus, much of the debate surrounding campaign reform has been whether parties have sufficient funds to get their messages out. Those in favor of campaign finance reforms generally believe that a combination of federal campaign funding and limitations on private donations are necessary to enable a level informational playing field.
351. See, e.g., Dennis F. Thompson, Two Concepts of Corruption: Making Campaigns Safe for Democracy, 73 Geo. Wash. L. Rev. 1036, 1047 (2005) ("[Electoral corruption in a campaign occurs insofar as private power employs influences that are less relevant to the choice between candidates and drives out influences that are more relevant."). However, critics believe that limitations on private campaign spending restrict free speech and curtail the flow of information.
352. See, e.g., Bradley A. Smith, Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform, 105 Yale L.J. 1049, 1061 (1996) (arguing that any limitations on spending reduce communications).
353. See Becker, supra note 10, at 498-500.
354. Under the NLRA, the employer has a duty to bargain collectively with the union over terms and conditions of employment. 29 U.S.C. § 158(a)(5) (2000). 29 U.S.C. § 158(a)(5) requires an employer to bargain "in good faith" and the employer may not implement changes to the terms and conditions unless it has reached agreement with the union or has bargained to impasse.
355. See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198 (1991).
356. See 29 U.S.C. § 158(d) (requiring the employer to both notify the collective bargaining representative of changes to terms and conditions of employment and to offer to meet for the purpose of negotiations).
357. In saying this, I recognize that there could still be a need for negative information about the union, even if the employer has a lot to lose from unionization. The union could still be corrupt or ineffective. My point is that, holding union effectiveness constant, employers have an increasing incentive to defeat the union as employee benefits from unionization (due to employer concessions) increase.
358. 29 U.S.C. § 158(a)(2) (prohibiting employer domination of or interference with a labor organization).
359. Michael J. Goldberg, Cleaning Labor's House: Institutional Reform Litigation in the Labor Movement, 1989 Duke L.J. 903, 910-11 (discussing illegal sweetheart contracts).
360. See infra Section III.E.
361. See 29 U.S.C. § 186 (2000) (outlawing payments from employers to unions or union officials).
362. See Schwartz & Wilde, supra note 261, at 668 (arguing that information regulation is not justified in a competitive market).
363. 69 NLRB Ann. Rep. 16 (2005), available at http://www.NLRB.gov/ publications/ reports/annual_reports.aspx (follow "Sixty-Ninth Annual Report of the NLRB for Fiscal Year Ended September 30, 2004" hyperlink).
364. AFL-CIO Const, art. XX, § 2, available at http://www.afl-cio.org/ aboutus/thisistheaflcio/constitution/art20.cfm.
365. Id. § 5.
366. Labor unions are permitted to monopolize employee representation under the Clayton Act. See Clayton Act §6, 15 U.S.C. §17 (2000) (original version at ch. 323, § 6, 38 Stat. 730,731 (1914)).
367. 15 U.S.C. § 17; cf. 29 U.S.C. § 105 (2000) (prohibiting injunctions against labor unions on the grounds that participants are part of an "unlawful combination or conspiracy"). In addition, some union-employer agreements are given a nonstatutory exemption from antitrust sanctions. Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 689-90 (1965).
368. AFL-CIO Unity Committee, AFL-CIO No-Raiding Agreement, 8 Indus. & Lab. Rel. Rev. 102, 103 (1954) (finding that union raids are "a drain of time and money far disproportionate to the number of employees involved").
369. See Kye D. Pawlenko, Reevaluating Inter-Union Competition: A Proposal to Resurrect Rival Unionism, 8 U. Pa. J. Lab. & Emp. L. 651, 680 (2006) (noting the argument that "rival unionism results in a buyer's auction in which competing unions undercut each other and prevent the establishment of a uniform wage rate in a given product market").
370. For a proposal to amend Article XX and increase union competition, see Brian Petruska, Choosing Competition: A Proposal to Modify Article XX of the AFL-CIO Constitution, 21 Hofstra Lab. & Empl. L.J. 1, 2-4 (2003).
371. For a broader argument in favor of union competition, see generally Pawlenko, supra note 281, at 681-87.
372. Black, supra note 256, at 787.
373. See, e.g., George J. Benston, The Effectiveness and Effects of the SEC's Accounting Disclosure Requirements, in Economic Policy and the Regulation of Corporate Securities 23-25 (Henry G. Manne ed., 1969).
374. See generally Henry G. Manne, Insider Trading and the Stock Market 93-110 (1966) (discussing the effects of different legal rules on non-insider traders).
375. See, e.g., Homer Kripke, The SEC and Corporate Disclosure: Regulation in Search of a Purpose 119 (1979) ("A disclosure will be supplied voluntarily by issuers interested in the capital markets when there is a consensus among suppliers of capital or other transactors in the capital markets that this information is necessary to them for lending and investment decisions. Issuers will supply it because the alternative is to forego access to the capital markets.").
376. Easterbrook & Fischel, supra note 253, at 681, 714.
377. See Nicholas L. Georgakopoulos, Why Should Disclosure Rules Subsidize Informed Traders?, 16 Int'l Rev. L. & Econ. 417, 418-19 (1996) (using the Coase theorem to argue that investors will bargain for the appropriate level of fraudprevention measures).
378. See Easterbrook & Fischel, supra note 253, at 683 ("If the firm simply asked for money without disclosing the project and managers involved... it would get nothing.").
379. See id. at 675 (discussing the use of "outsiders" to verify company financial information).
380. See John C. Coffee, Jr., Understanding Enron: "It's About the Gatekeepers, Stupid," 57 Bus. Law. 1403, 1405 (2002) (defining gatekeepers in the securities regulation context as "reputational intermediaries who provide verification and certification services to investors").
381. See, e.g., Frank Partnoy, Infectious Greed: How Deceit and Risk Corrupted the Financial Markets 347,350 (2003); Coffee, supra note 290, at 1403-05.
382. Lawrence E. Mitchell, The Sarbanes-Oxley Act and the Reinvention of Corporate Governance?, 48 Vill. L. Rev. 1189, 1189 (2003) (noting that Sarbanes-Oxley "brings into the realm of internal governance the gatekeepers that once stood outside the box, including auditors, analysts and lawyers").
383. For example, the Sarbanes-Oxley Act imposed rigorous independence requirements on accountants.
384. See 15 U.S.C. § 78j-1(g) (Supp. V 2005) (creating new independence requirements); id. §§ 7211-7219 (establishing Public Company Accounting Oversight Board ("PCAOB")). The market did not require these standards of accountants prior to Sarbanes-Oxley, yet they are perhaps the least controversial aspects of the new law.
385. But cf. Roberta Romano, The Sarbanes-Oxley Act and the Making of Quack Corporate Governance, 114 Yale L.J. 1521, 1533-37 (2005) (arguing that most of the empirical studies on the subject found that "audit quality-and hence auditor independence-is not jeopardized by the provision of nonaudit services"). Other intermediaries include attorneys and the securities exchanges. Attorneys generally act as intermediaries with respect to legal mandates, including disclosure requirements. In the absence of those mandates, attorneys would only be responsible for ensuring compliance with private contracts. The stock exchanges are given special privileges and responsibilities by the SEC as self-regulating organizations.
386. See, e.g., 15 U.S.C. § 78(f) (2000) (providing for the registration of "national security exchanges");
387. Marianne K. Smythe, Government Supervised Self-Regulation in the Securities Industry and the Antitrust Laws: Suggestions for an Accommodation, 62 N.C. L. Rev. 475, 475-78 (1984) (discussing the scheme of self-regulation).
388. See Black, supra note 256, at 790-99.
389. Id. at 793.
390. Id. at 794. Such laws are necessary because reputation is not always enough. Certainly, over time investors will learn that a particular accounting firm is too superficial in its audits, or that a stock exchange fails to require the proper documentation for acceptance. But just as there can be a "lemons" market for securities, there can be a "lemons" market for those who vouch for securities. Investors cannot know precisely how well their reputational intermediaries are doing their jobs. However, slightly more forgiving accountants will be desirable to issuers, who will be looking for reputational intermediaries to put them in the best light. Thus, market forces will drive accountants to be less strict, leading to less confidence from investors in their results. As Black notes: "The result is ironic: The principal role of reputational intermediaries is to vouch for disclosure quality and thereby reduce information asymmetry in securities markets. But information asymmetry in the market for reputational intermediaries limits their ability to play this role."
391. Id. at 788.
392. 29 U.S.C. §§ 401-531 (2000).
393. See 29 C.F.R. §§ 403.1-403.11,408.1-408.13 (2006).
394. See Labor Organization Annual Financial Reports, 68 Fed. Reg. 58,373, 58,374 (Oct. 9, 2003) (codified at 29 C.F.R. pts. 403, 408).
395. See Recent Regulation: Department of Labor Increases Union Financial Reporting Requirements, 117 Harv. L. Rev. 1734, 1734 (2004).
396. Id. at 1739.
397. See Louis Jackson & Robert Lewis, Winning NLRB Elections: Management's Strategy and Preventive Programs 18-19 (1972) (discussing how employers can use LMRDA disclosures to contrast their plans with those "propagandized" by the union);
398. Roger S. Kaplan & Philip B. Rosen, Responding to Union Organizing Campaigns § 6.06 (2002) (same).
399. For a discussion of the difference between independent agencies and executive branch agencies,
400. see Linda R. Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 S. Cal. L. Rev. 431, 445-51 (1996).
401. In fact, the information is accessible on the Department of Labor's website.
402. See Dep't of Labor, Online Public Disclosure Room: Union Reports and Collective Bargaining Agreements, http://www.dol.gov/esa/regs/compliance/olms/ rrlo/lmrda.htm.
403. See Black, supra note 256, at 798.
404. Id.
405. A search of the Consumer Reports website revealed no information about unions. See Consumer Reports Search Results for "Unions," http://www.consumerreports.org/cro/search.htm?query=unions (last visited Sept. 15, 2007) (finding almost exclusively results about credit unions).
406. See Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law, 89 Geo. L.J. 439, 439-40 (2001) (listing transferable shares as one of the five "core functional features" of the corporate form).
407. 29 U.S.C. § 159(c)(1) (2000).
408. Id. § 159(e)(1).
409. Id. § 159(e)(2).
410. See Brooks v. NLRB, 348 U.S. 96, 104 (1954) ("[T]he Board's view that the one-year period should run from the date of certification rather than the date of election seems within the allowable area of the Board's discretion in carrying out congressional policy.").
411. See Chelsea Indus., 331 N.L.R.B. 1648, 1648 (2000).
412. Since it will take some time between the filing of the petition and the decertification election, the bar is actually longer than a year. Employers are not allowed to withdraw recognition after a year based on a decertification petition presented to the employer before the year's end.
413. Id. at 1649.
414. The contract bar has long been part of Board doctrine.
415. See National Sugar Ref. Co., 10 N.L.R.B. 1410, 1415 (1939) (holding that the Board will "not proceed with an investigation of representatives until such time as the contract is about to expire").
416. Gen. Cable Corp., 139 N.L.R.B. 1123, 1125 (1962).
417. See Appalachian Shale Prods. Co., 121 N.L.R.B. 1160, 1162-63 (1958).
418. See Leonard Wholesale Meats, Inc., 136 N.L.R.B. 1000, 1001 (1962).
419. Deluxe Metal Furniture Co., 121 N.L.R.B. 995, 1001 (1958).
420. See The Developing Labor Law, supra note 37, at 527-29.
421. See id. at 535-37.
422. See G. Robert Blakey & Ronald Goldstock, "On the Waterfront": RICO and Labor Racketeering, 17 Am. Crim. L. Rev. 341, 344 & n.26 (1980) (recognizing that the contract bar rule allows the employer and union to benefit from a "sweetheart" contract).
423. Levitz Furniture Co. of the Pac., Inc., 333 N.L.R.B. 717, 717 (2001).
424. See Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359, 361, 364 (1998) (discussing the Board's prior "good faith reasonable doubt" standard).
425. In order to allow for employers to determine this in the face of questions about union support, the Board allows for the employer to petition for a decertification election based on "good-faith reasonable uncertainty" about the continuing majority status. Levitz, 333 N.L.R.B. at 717, 722-23. The Board did not decide whether an employer is allowed to poll its employees if it has good faith reasonable doubt about continuing majority status. Id. at 723.
426. See Gen. Cable Corp., 139 N.L.R.B. 1123,1125 (1962) (discussing "the necessity to introduce insofar as our contract-bar rules may do so, a greater measure of stability of labor relations into our industrial communities as a whole to help stabilize in turn our present American economy").
427. See supra Subsection I.B.2.
428. Midland Nat'l Life Ins. Co., 263 N.L.R.B. 127, 131 (1982).
429. Id. at 132 (quoting Shopping Kart Food Mkt., Inc., 228 N.L.R.B. 1311, 1313 (1978)).
430. See Evan Richman, Note, Deception in Political Advertising: The Clash Between the First Amendment and Defamation Law, 16 Cardozo Arts & Ent. L.J. 667, 670 (1998) (noting the lack of regulation for misrepresentations in the political arena).
431. In addition to Rule 10b-5, see 17 C.F.R. § 240.10b-5 (2007), which prohibits misrepresentations or omissions in connection with the purchase or sale of a security, § 11(a) of the Securities Act prohibits a false statement of a material fact in a registration statement,
432. see 15 U.S.C. § 77k(a) (2000), and § 12(a)(2) of the Act imposes liability for a false statement of material fact in a prospectus, see id. § 771(a)(2).
433. 17 C.F.R. § 240.10b-5.
434. See Matthew T. Bodie, Aligning Incentives with Equity: Employee Stock Options and Rule 10b-5, 88 Iowa L. Rev. 539, 595-96 (2003).
435. Commentators on both sides of the mandatory disclosure debate agree that securities markets need strong antifraud protection. See Posner, supra note 251, at 480-84 (arguing that many aspects of securities regulation may impede the flow of information to investors, but noting that investors should be protected from fraud); Alan R. Palmiter, Toward Disclosure Choice in Securities Offerings, 1999 Colum. Bus. L. Rev. 1, 130 ("A critical adjunct to my proposal of disclosure choice is that issuers in public offerings would be subject to a mandatory antifraud standard-namely, Rule 10b-5 liability.");
436. cf. Jonathan R. Macey & Geoffrey P. Miller, Origin of the Blue Sky Laws, 70 Tex. L. Rev. 347, 390 (1991) ("The social value of preventing fraud in the sale of securities is too clear to require elaboration.").
437. See Press Release, U.S. Dep't of Labor, supra note 1, at tbl.3.
438. See, e.g., Joseph Carroll, Sixty Percent of Americans Approve of Labor Unions, Gallup News Service, Aug. 31, 2007, http://www.gallup.com/poll/28570/ Sixty-Percent-Americans-Approve-Labor-Unions.aspx (showing that sixty percent, in 2007, approve of labor unions and fifty-three percent, in 2006, believe that unions mostly help the economy); John Zogby et al., Nationwide Attitudes Toward Unions 12 (2004), http://psrf.org/info/Nationwide_Attitudes_Toward_Unions_2004. pdf (finding that sixty-three percent of those polled approve of labor unions).
439. SEIU President Andy Stern recently opined that "unions have an image of being old, not effective, in some cases not looking like the new work force. So we have an image problem."
440. Kris Maher, Are Unions Relevant?, Wall St. J., Jan. 22, 2007, at R5 (interview with Andy Stern).
441. Zogby et al., supra note 336, at 15.
442. Robert F. Kennedy, The Enemy Within (1960); Michael J. Nelson, Comment, Slowing Union Corruption: Reforming the Landrum-Griffin Act to Better Combat Union Embezzlement, 8 Geo. Mason L. Rev. 527, 532-37 (2000).
443. For an in-depth discussion of two such trusteeships, see Clyde W. Summers, Union Trusteeships and Union Democracy, 24 U. Mich. J.L. Reform 689 (1991).
444. Professor Jim Jacobs has extensively discussed the federal government's role in eliminating mob influence from unions. See, e.g., James B. Jacobs, Mobsters, Unions, and Feds: The Mafia and the American Labor Movement 2, 114-60 (2005);
445. James B. Jacobs & Ellen Peters, Labor Racketeering: The Mafia and the Unions, in 30 Crime & Justice 229 (Michael Tonry ed., 2003); James B. Jacobs et al., The RICO Trusteeships After Twenty Years: A Progress Report, 19 Lab. Law. 419, 419-24 (2004).
446. The Sopranos (HBO television broadcast, 1999-2007).
447. Joel Seligman, The Historical Need for a Mandatory Corporate Disclosure System, 9 J. Corp. L. 1, 51 (1983).
448. Easterbrook & Fischel, supra note 253, at 692 ("The justification most commonly offered for mandatory disclosure rules is that they are necessary to 'preserve confidence' in the capital markets.").
449. Troy A. Paredes, Blinded by the Light: Information Overload and Its Consequences for Securities Regulation, 81 Wash. U. L.Q. 417, 470 (2003) (stating that the August 2002 financial statement certifications required under Sarbanes-Oxley helped convince investors that firms as a whole were not dishonest or poorly run).
450. Easterbrook & Fischel, supra note 253, at 693.
451. Id.
452. See Black, supra note 256, at 782-85.
453. See supra Subsection I.B.3.
454. Excelsior Underwear, Inc., 156 N.L.R.B. 1236, 1239-40 (1966).
455. Id. at 1240 (emphasis added) (citation omitted).
456. See supra Section III.D.
457. See Edwards, supra note 245, at 221-23;
458. Paredes, supra note 345, at 444-49.
459. See, e.g., Schwartz & Wilde, supra note 261, at 675-76.
460. See SEC Filings & Forms (EDGAR), http://www.sec.gov/edgar.shtml (last visited Dec. 14, 2007).
461. A focus on information disclosure would also change the Board's approach in less obvious ways. For example, the Board's General Counsel is encouraging the Board to hold that an employer and a union may not agree to terms and conditions of employment prior to the union's certification as representative, even if this agreement is conditional on a showing of majority support.
462. See Jonathan P. Hiatt & Craig Becker, At Age 70, Should the Wagner Act Be Retired? A Response to Professor Dannin, 26 Berkeley J. Empl. & Lab. L. 293, 301 (2005). However, such agreements provide employees with a true sense of the consequences of unionization. As one set of commentators noted, "Such prerecognition bargaining allows an informed choice by both employers and employees." Id. at 303.
463. See James J. Brudney, Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms, 90 Iowa L. Rev. 819, 824, 828-30 (2005).
464. Id.;
465. id. at 824 (asserting that "[a]s a factual matter, Board elections have ceased to be the dominant mechanism for determining whether employees want union representation").
466. Adrienne E. Eaton & Jill Kriesky, Union Organizing Under Neutrality and Card Check Agreements, 55 Indus. & Lab. Rel. Rev. 42, 52 (2001).
467. See Adrienne E. Eaton & Jill Kriesky, Dancing with the Smoke Monster: Employer Motivations for Negotiating Neutrality and Card Check Agreements, in Justice on the Job: Perspectives on the Erosion of Collective Bargaining in the United States 139, 146-47 (Richard N. Block et al. eds., 2006);
468. Roger C. Hartley, Non-Legislative Labor Law Reform and Pre-Recognition Labor Neutrality Agreements: The Newest Civil Rights Movement, 22 Berkeley J. Emp. & Lab. L. 369, 387-89 (2001).
469. See, e.g., Rick Haglund, Union Foes Declare War on Neutrality Agreements, Grand Rapids Press, Feb. 20, 2005, at G5 (discussing neutrality agreement within the automobile industry);
470. Matt Richtel, In Wireless World, Cingular Bucks the Antiunion Trend, N.Y. Times, Feb. 21, 2006, at C1 (discussing neutrality agreements at Cingular and SBC Communications).
471. For a discussion of one such campaign, see Kenneth M. Casebeer, Of Service Workers, Contracting Out, Joint Employment, Legal Consciousness, and the University of Miami 30-32 (Univ. Miami Legal Studies, Working Paper No. 2007-06, 2007), http://ssrn.com/abstract=1020623 (discussing SEIU strike at the University of Miami).
472. See Brudney, supra note 357, at 838 & n.85 (discussing laws, resolutions, or executive orders in California, Massachusetts, Missouri, New Jersey, and Wisconsin); Hartley, supra note 360, at 392-93.
473. Steven Greenhouse, Local 226, 'The Culinary,' Makes Las Vegas the Land of the Living Wage, N.Y. Times, June 3, 2004, at A22; Labor Research Association, Employer Neutrality and Card Check Recognition Get Results (October 1999), http://www.workinglife.org/wiki/Employer+Neutrality+and+Card- Check+Recognition+Get+Results+(October+1999) (last visited Feb. 18, 2008).
474. Employee Free Choice Act of 2007, H.R. 800,110th Cong. § 2 (2007).
475. See U.S. Senate, Roll Call Vote, H.R. 800, June 26, 2007, http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm? congress=110&session=1&vote=00227.
476. Steven Greenhouse, Clash Nears in the Senate on Legislation Helping Unions Organize, N.Y. Times, June 20, 2007, at A16.
477. See, e.g., Steven Greenhouse, Union Claims Texas Victory with Janitors, N.Y. Times, Nov. 28, 2005, at A1.
478. See Secret Ballot Protection Act of 2004, H.R. 4343, 108th Cong. § 3 (2004); Workers' Bill of Rights, H.R. 4636, 107th Cong. § 2 (2002).
479. 351 N.L.R.B. No. 28 (Sept. 29, 2007).
480. See Dana Corp., 341 N.L.R.B. 1283, 1284 (2004) (Liebman & Walsh, Members, dissenting from grant of petition for review) (citing Keller Plastics E., Inc., 157 N.L.R.B. 583, 587 (1966); Sound Contractors Ass'n, 162 N.L.R.B. 364, 365 (1966)).
481. Dana Corp., 351 N.L.R.B. No. 28.
482. However, it may be possible for unions to enforce neutrality agreements through mandatory arbitration, which in turn would be enforced by federal courts under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (2000). See UAW v. Dana Corp., 278 F.3d 548, 550 (6th Cir. 2002); AK Steel Corp. v. United Steelworkers of Am., 163 F.3d 403, 406 (6th Cir. 1998); Hotel & Rest. Employees Union Local 217 v. J.P. Morgan Hotel, 996 F.2d 561, 568 (2d Cir. 1993). Arbitrators generally have flexibility in crafting remedies for neutrality breaches. See AK Steel Corp., 163 F.3d at 410.
483. See, e.g., Emerging Trends in Employment and Labor Law: Labor-Mgmt. Relations in a Global Econ.: Hearing Before the Subcomm. on Employer-Employee Relations of the H. Comm. on Educ. & the Workforce, 107th Cong. 30 (2002)
484. 2002 Hearings, supra note 374, at 30 (statement of Charles I. Cohen).
485. Compulsory Union Dues and Corporate Campaigns: Hearing Before the Subcomm. on Workforce Prots. of the H. Comm. on Educ. & the Workforce, 107th Cong. 9 (2002) (statement of Daniel V. Yager).
486. Dana Corp., 351 N.L.R.B. No. 28. The Board cited to Excelsior Underwear, Inc. to support this point. See id. at 6 n.21 (citing Excelsior Underwear, Inc., 156 N.L.R.B. 1236, 1240 (1966)); see also id. at 2 ("While the voluntary recognition process is founded on a majority card showing, it is a far less reliable indicator of actual employee preference than the results of a Board secret-ballot election.").