Industrial democracy, the foundational metaphor invoked to support the National Labor Relations Act, is a helpful analogy for understanding why workers should have workplace representation to bargain collectively over wages, hours and other terms and conditions of employment by placing workers’ voice within the sphere of a national ideal—democratic governance.
But any analogy can be stretched to its breaking point. In The Labor Gerrymander, Joel Heller argues that, although the democracy analogy in broad strokes is instructive in the labor context, the specific concept of political gerrymandering is ill-suited to explain bargaining unit determinations under labor law.
Heller divides the article into four parts. Parts I and II set up the article’s core argument that labor gerrymandering is not a suitable metaphor. In Part I, Heller develops the “historical evolution” of the industrial-democracy metaphor. He highlights the democratic benefits of unionization. In particular, unionized workforces reinforce political democracies by serving as a microcosmic forum that allows workers to practice democracy. In contrast, nonunion workforces undermine political democracies by modeling authoritarian forms of governance.
Heller then shows how the labor democracy model works in practice. Workers typically vote in government-regulated elections to choose representatives who negotiate over employment-related subjects. Labor representatives, just like political representatives, can serve at different levels of government. Shop stewards represent labor bargaining units, and groups of bargaining units are represented by union officers such as presidents. There is even a form of union federalism whereby union officials serve in local or international unions.
In Part II, he describes how gerrymandering functions in the political context and the harms it inflicts on political democracies. Political gerrymandering is, of course, the act of redrawing districts to advantage the incumbent in future elections. Gerrymanders harm democracies by diluting the votes of minorities who are “prevented from full participation in the political process” and entrenching extant political power. Gerrymanders also disregard the democratic principles for creating political subdivisions by “break[ing] up existing communities, such as neighborhoods, cities, or counties, that share social or economic interests.” (Pp. 434–35.)
Part II then shows how the gerrymandering metaphor is invoked to criticize unions. Employers have used it to “challenge petitioned-for bargaining units as inappropriate” as early as 1939. (P. 437.) To this day, employers argue that the petitioned-for units are gerrymanders that remove those employees who do not support the union. In response, unions have sometimes co-opted the metaphor to say that employers’ expanded units are designed to dilute the voice of union workers. The Board and the courts have also applied similar analogies in this context.
In Parts III and IV, Heller’s argument unfolds. In Part III, Heller shows how three harms inflicted by gerrymandering in the political context do not work the same way in the labor context. First, while the problematic nature of political gerrymandering flows from the parties’ self-interest, this is not problematic in the labor context. He writes:
Unlike legislative districts, bargaining units are drawn for a particular purpose—to be appropriate for collective bargaining. And labor law affirmatively promotes that result. Accordingly, when unions propose bargaining units consisting of employees who are likely to vote in favor of collective bargaining, this is not really a “gerrymander” at all because that concept refers to line drawing based on improper criteria. (P. 444.)
Second, distinctions between the workplace and a polity signify that petitioned-for bargaining units do not risk harm to the democratic process like gerrymandered districts do. Heller asserts: “Unlike redistricting union-representation elections are not part of a broader political whole. The workplace is not a polity; there is no broader governmental body apart from the bargaining unit. Elections are simply a more targeted exercise in the labor context than in the political context.” (P. 448.) Significantly, Heller adds that, unlike a gerrymandered political district, “there is no ‘political process as a whole’ that a purportedly gerrymandered unit could harm.” (P. 448.)
Third, Heller explains why other gerrymandering harms are unlikely to occur in the bargaining unit context. For example, there is no risk of power entrenchment because unions are not incumbents seeking to protect their hold on power. While political gerrymanders often make the party primary the determinative election in political races, 95 % of union elections present a single union candidate rather than dueling unions vying for power. Moreover, the union’s duty of fair representation cuts against the possibility that a well-established union will no longer represent its constituents’ interests. (Pp. 450–52.)
Finally, in Part IV, Heller analyzes the harms inflicted by failing to recognize that “not all norms and concepts from the political arena translate into the labor-law sphere.” (P. 453.) It is the policy of the United States to “encourage[e] the practice and procedure of collective bargaining.” Invoking the gerrymandering metaphor to enlarge bargaining units risks discouraging collective bargaining in direct contradiction to national labor policy. Additionally, “the law’s treatment of employers as candidates in representation elections has weakened employees’ right to representation by increasing employers’ ability to interfere with it.” (P. 453.) Likewise, the ability of employers to actively discourage unionization during a union campaign harms employees’ free choice of representation.
Heller’s observations remind us of the insights from nineteenth-century labor theorists such as Sydney and Beatrice Webb. From the beginning, workers organized into unions for mutual aid grounded in internal democratic governing structures. However, they also differ from political democracies, where all polity members vote for representatives. In contrast, workers of the same employer or even within the same industry or trade organize into particular unions that, by definition, have a community of interest.
Unionization, as a concept, evolved to exclude those whose interests are too far afield. In other words, unions work precisely because workers are sufficiently alike to make common cause. For these reasons, the gerrymandering analogy is a false analogy.
In short, although industrial democracy is the foundational ground upon which modern labor law was erected, the norms and concepts that apply to the political realm do not always apply to the work realm. Heller persuasively shows why certain aspects of this imperfect analogy are faulty and how employers misuse some political norms to undermine the goals of a national labor law grounded in democratic principles.
Heller’s article is relevant today because employers are hitting hard against increasingly successful organizing drives to suppress employee free choice in the workplace. Cloaked in pro-democracy language, the employer’s argument (i.e., gerrymanders are bad for political democracies, union petitioned-for bargaining units are gerrymandered, therefore small petitioned-for bargaining units are wrong for industrial democracies) is, in reality, exceedingly anti-democratic. Expressly stating the logical fallacy in the employer’s argument clarifies the dangers to employee free choice inherent in these tactics.
