Catherine L. Fisk, Response: Thoughts on Treating Union Representation Processes as a Market in Need of Legally Required Disclosure of Information, 94 Va. L. Rev. Brief 1 (2008).
In response to Matthew T. Bodie’s article, “Information and the Market for Union Representation,” 94 Va. L. Rev. 1 (2008), this brief article considers the wisdom of treating union representation processes as a market in which disclosure of information should be mandated. This article examines the implication of Bodie’s metaphor that the decision to choose a union is like a decision to purchase services in the market. Via this metaphor, Bodie’s approach requires that we imagine the employer as the “anti-seller,” an entity that considers a consumer not buying an item to be in its economic interest. In most areas of law in which a consumer purchases goods or services, the law obligates the seller to disclose. Labor law, however, involves two components in the provision of information: access and accuracy. Depending on whether one thinks the main problem with the market for union services is inequality of access or misleading information, one might propose different legal reforms. One difficulty in designing appropriate legal rules to address whatever information problems exist in union representation elections is that the reasons for the information problems in union organizing are different than the usual ones. While Professor Bodie does an admirable job of explaining why information matters, the problem will not significantly improve unless the status quo of misleading and one-sided information is rectified.