Even though analogies to the political sphere are everywhere in labor law—with its core promise of ‘industrial democracy’—reliance on those analogies can go too far.
Labor Law Attorney Joel Heller
D.C.-based labor law attorney Joel Heller shared his expertise with the legal academy in his recently published law review article, The Labor Gerrymander.
Heller’s article stems from his involvement as a litigator in cases dealing with the scope of bargaining units in union representation elections and from following the highly contested Starbucks employee unionization drive. One of the many rhetorical tactics Starbucks used in its staunch anti-union campaign was to accuse the union of “gerrymandering the workplace” based on its strategy of filing election petitions on behalf of individual stores rather than regions. Employers like Starbucks have used this tactic for years, and their invocation of this political analogy, ostensibly in the name of workplace democracy, prompted Joel Heller to write The Labor Gerrymander.
Heller argues the gerrymander analogy is fundamentally flawed and has detrimental consequences for workers. In political gerrymandering, leaders redistrict legislative boundaries of all voters without their consent in order to achieve their own political ends. In contrast, unions petition for elections for particular groups of workers based on the expressed preferences of those workers. The resulting elections impose no outcome on other employees outside that group, who remain free to pursue their own union election or continue to deal individually with management. Gerrymandering, a political manipulation tactic, grossly misrepresents the labor union process, which is designed to empower and protect workers.
Heller cautions against the use of democracy rhetoric in opposing unionization efforts. Describing the elective process as a gerrymander not only misuses the term, it conceals the underlying goal of employers’ strategy – diluting the strength of pro-union store employees. By advocating for an expanded bargaining unit, an employer decreases the likelihood of a successful vote in favor of collective bargaining among employees seeking representation. This outcome is inherently anti-democratic.
Heller says he was drawn to law review writing because the format afforded him the time and space to examine gerrymander rhetoric in its broader historical context: “I wanted to show that even though analogies to the political sphere are everywhere in labor law — with its core promise of ‘industrial democracy’ — reliance on those analogies can go too far.” Heller cautions that there are other examples of political rhetoric in labor law that would benefit from reconsideration. He plans to explore these in future articles with the hopes of reaching parties and decision-makers who contribute to the development and understanding of this highly specialized area of workplace law.
More about Joel Heller
Mr. Heller practices labor law in Washington, DC. Since 2012, he has worked at the Appellate and Supreme Court Litigation Branch of the National Labor Relations Board (“NLRB”), where he has briefed and argued over thirty-five cases in ten federal courts of appeals and has participated in cert- and merits-stage proceedings before the Supreme Court. Before joining the NLRB, Joel worked at Bredhoff & Kaiser, PLLC and clerked on the U.S. Court of Appeals for the Sixth Circuit. He is a graduate of Vanderbilt University Law School and also holds a degree in English from Oberlin College. The views expressed in his article and this spotlight are his own, and do not represent the views of the NLRB.