Thoughts on Treating Union Representation Processes as a Market in Need of Legally Required Disclosure of Information

Volume 94

94 Va. L. Rev. Online 1
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Imagine a market that looks like this. You’re thinking of buying something—a house, insurance, shares of stock, a prescription drug, or a medical procedure. There is an entity (call it the “anti-seller”) that considers it in its economic interest that you not buy the item. The anti-seller has a great deal of money and all of your working hours to persuade you not to buy. The anti-seller hires lawyers and consultants to run a campaign to block the sale. The consultants require your supervisor at work to meet with you daily in one-on-one meetings to tell you why you shouldn’t buy. The anti-seller makes and screens a movie starring your co-workers in which they explain why it’s a bad idea to buy. Although the law prohibits direct threats, the message underlying anti-seller’s advertising campaign is that your employer may go out of business or be forced to lay you off if you buy the item. Meanwhile, the seller from whom you propose to buy has to work hard even to figure out who you are and where to reach you to speak with you. Unlike the anti-seller, the seller cannot speak with you during your working time, cannot email you at work, and can’t even leave a leaflet on the windshield of your car in the parking lot at work. If union representation is sold in a market, as Professor Bodie suggests, that is what the market looks like.

Is this market a properly functioning one? The one thing that we can say about that market is that it is unlike any other market for the sale of goods or services that exists in America today. The usual problem with information is with sellers who have very good access to consumers and must be forced to provide accurate and material information in the market. In the union market, however, the seller has poor access to the consumer. Moreover, the problem is not just that workers get too little information or that unions as sellers mislead; it is that workers get a huge amount of information, some of it misleading, from an entity who is not the seller but who has an incentive to do everything possible to persuade them not to buy. In addition, unlike in most other markets, the anti-seller has the consumers as a captive audience all day each workday and an unparalleled ability to intimidate the buyer by indirectly threatening his or her job. Unless we accept the dubious contention that only unions are likely to exaggerate or mislead workers about unionization, any genuinely effective regulation the market must deal both with the seller and the anti-seller when it comes to both the quantity and the quality of the information.

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