Labor law is full of parallels with the political process. Its underlying metaphor is “industrial democracy” – the right of employees to have a say in the decisions that govern their working lives through trade union representation and collective bargaining. The typical mechanism by which employees choose whether to join a trade union is a secret ballot election. But democracy is not a single concept, and industrial democracy does not necessarily have to look like political democracy. The question then arises: which norms and concepts from the political sphere apply to the labor sphere? And this question takes on added importance when opponents of unionization and collective bargaining use the parallels with the political sphere to advance their own interests.
My recent article in the Vanderbilt Law Review examines this phenomenon through a case study of gerrymandering, a political concept that has emerged in labor law discussions. Gerrymandering refers to the practice of politicians drawing legislative districts to secure the results they desire. How does this play out in labor law? As early as 1939, employers have accused unions of “gerrymandering” their workplaces by petitioning for bargaining unit representation made up of employees who are likely to favor union representation. Employers typically use the gerrymandering analogy to argue that unions’ proposed units must include additional employees. For example, Starbucks has consistently argued that representation elections in a given city must include all Starbucks stores in the area, and anything less is “gerrymandering.” If these arguments are successful, they reduce the likelihood of a vote in favor of unionization because larger units are more difficult to organize, especially if they include employees the union did not initially intend to represent. This analogy has been adopted in policy, and courts and the NLRB have adopted the concept in their unit determination decisions.
Gerrymandering is a highly maligned practice in politics. The common criticism stems from the self-serving act being perceived as immoral. Gerrymandering is also a form of vote dilution, weakening the validity of certain votes by placing certain voters in one district rather than another. It also entrenches existing power structures, as district line-drawers design safe seats to protect incumbents at the expense of new voices in the halls of power. It also fosters a lack of accountability. Legislators in gerrymandered districts have little incentive to represent the interests of voters who do not support them, since they do not need the support of those voters to win reelection.
Congressional zoning and bargaining unit determinations both involve defining congressional districts. But beyond that, the gerrymandering analogy falls apart upon closer scrutiny. My article identifies three differences between zoning and bargaining unit determinations that demonstrate the inadequacy of the analogy.
First, the influence of self-interest that animates concerns about gerrymandering in the political context is an inherent part of the unit determination process. Gerrymandering is drawing lines based on improper criteria. Although unions and employees who propose bargaining units that increase the odds of a representative vote may be acting out of self-interest, facilitating collective bargaining is not improper. It is the expressed policy of the NLRA. One of the purposes of that statute is to “encourage the practice and procedure of collective bargaining.” Similarly, because the NLRA guarantees employees the right to organize but also the right to “self-organize,” employees’ preferences about who to organize with should have great influence in the unit determination process.
Second, unit decisions are not part of a broader political process, as redistricting is. Although union members elected to a bargaining unit have no power over employees not in that unit, representatives elected from gerrymandered districts sit in Congress, which passes laws that regulate everyone in their jurisdiction. Political gerrymandering is also possible because dividing districts is a zero-sum game: everyone must belong to some district, so residents excluded from one district must belong to another. The composition of one district necessarily affects the composition (and possibly the outcome) of other districts. In contrast, not all employees in a particular workplace are required to belong to a bargaining unit. Thus, unions proposing units do not have the opportunity to manipulate the process across the board, as political gerrymanderers do.
Third, some of the other harms associated with gerrymandering in the political context are less likely to occur in the labor context. Unlike legislators in gerrymandered districts who have little to lose by ignoring non-partisans, unions taking such an approach would violate obligations of fair representation that extend to non-union employees and employees who did not vote for representation. Also, unit decisions do not carry the same risks of entrenchment as political gerrymandering. Unions proposing bargaining units are challengers to the existing power structure (i.e., employers) rather than incumbents seeking to protect their hold on power.
In addition to ignoring these differences between districting and unit determination, the gerrymandering analogy is also analytically misguided. The central question for unit determination under the NLRA is whether the proposed employee unit is “adequate for collective bargaining purposes”; that is, whether meaningful negotiations are possible if the employees in the unit vote for representation. The ultimate goal of this analysis can be achieved by research focused on sifting out arbitrary groups of employees whose working conditions vary so much that the union and employer cannot effectively negotiate terms that cover all. Analyzing whether a petitioned unit is “gerrymandered” does not answer that question; it only looks at whether the union is likely to win, not whether negotiations would be effective if it did win.
Inappropriate analogies aside, bringing the concept of gerrymandering into labor law is one example of how over-reliance on the political model can damage industrial democracy. Gerrymandering is deeply unpopular, with polls showing roughly 90% disapproval. Outlawing unionization as gerrymandering could lead to fewer votes to unionize. This could cause the NLRB or courts to view petitioned units more skeptically and either not hold elections at all or accept the employer’s arguments to expand the proposed units. Or it could discourage otherwise interested employees from supporting unionization. Gerrymandering is not only unpopular, it is a harmful term that erodes trust in the political process. Bringing the concept into the representative election process could do the same to industrial democracy.
This outcome is problematic not only for industrial democracy, but also for political democracy. Unionization and collective bargaining create democracy in the workplace by giving workers a voice in the workplace, but they also have ripple effects that strengthen democracy. They impart democratic norms such as equality in participation and decision-making that extend to the realm of civil society and politics. For example, unionized employees are more likely to vote in elections than non-unionized workers. More broadly, an empowered working class provides a necessary counterweight to powerful interests in times of growing political and economic inequality. All of this can be lost when unionization and collective bargaining are vilified for being associated with the corrupting and highly unpopular concept of gerrymandering. The irony of the gerrymandering analogy in labor law is that it harnesses the pro-democracy idea of fighting gerrymandering to achieve anti-democratic ends.
