Employment Law Response 123 Harv. L. Rev. F. 38

“Acting Like a Union”: Protecting Workers’ Free Choice by Promising Workers’ Collective Action

Responding to Benjamin I. Sachs, Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing, 123 Harv. L. Rev. 655 (2010)

Response To:


In his article Enabling Employee Choice, Professor Benjamin Sachs presented a robust exploration of the problems associated with union certification laws and potential “card check” reforms. In this response, Professor Brishen Rogers argues that limiting managerial interference in union organizing drives is only the first step in facilitating the free choice of employees. To do so the law must also encourage workplace solidarity and collective action. Professor Rogers argues that the value of card solicitation is not as a tool to keep organizing efforts secret, but instead as a means to publicize workers’ commitment to their coworkers. Professor Rogers concludes that labor law reform must encourage worker collective action and solidarity, while also protecting employees from union and management coercion, and proposes an alternate system of union certification to achieve those goals.