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The Labor Gerrymander

Posted by on Wednesday, March 20, 2024 in Articles, Volume 77, Volume 77, Number 2.

Joel Heller | 77 Vand. L. Rev. 401

The foundational metaphor of federal labor law is “industrial democracy.” But like any good metaphor, it is subject to overuse. The National Labor Relations Act (NLRA) grants employees the right to have a say in the decisions that govern their working lives through union representation and collective bargaining. Parties and policymakers often invoke the language of American political democracy when describing and debating that right. Democracy is not a unitary concept, however, and not all norms and concepts from the political sphere can or should translate into the labor sphere.

This Article interrogates the political-model analogy through the lens of one particular political concept that has found its way into labor-law discourse: the gerrymander. From the earliest days of the NLRA to today’s organizing campaign at Starbucks, employers have accused unions of “gerrymandering” the workplace by seeking to represent groups of employees—in labor-law terms, a bargaining unit—who are likely to choose union representation. The gerrymander analogy has not before faced critical evaluation, and it breaks down upon closer inspection. Legislative redistricting and bargaining-unit determinations are distinct exercises with different stakes. Unit determinations treat self-interest as a feature rather than a bug, are not part of a broader political process, and are unlikely to produce harms like entrenchment and excessive partisanship associated with gerrymanders in the political context.

By calling attention to this conceptual mismatch, the Article also identifies how overreliance on the political model is detrimental to the promise of industrial democracy. Delegitimizing union organizing as gerrymandering may lead to fewer votes for unionization. This means less worker voice, which both perpetuates the workplace as an essentially autocratic environment and robs society more broadly of the democracy-enhancing spillover effects of unionization. The irony of the analogy is that it uses the pro-democracy concept of fighting gerrymandering to achieve anti-democratic ends. Importing the gerrymander concept into labor law thus harms democracy, in both its industrial and political manifestations.

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Joel Heller