Holding an election on the property of one of the candidates is not a recipe for a healthy democracy. Yet, that is essentially what workers seeking union representation face. Labor law requires employees who want a union to register that choice in a secret-ballot election, and those elections are almost always held at the workplace. But, employer property is a decidedly nonneutral setting; employers have an interest in the outcome and often use the workplace as the site of vigorous anti-union campaigns. It is also a peculiarly undemocratic space, with attendant background norms like control and dependence that undergird the employment relationship but are antithetical to democratic values like equality of decision-making and avoiding arbitrary exercises of power. Nonetheless directing employees to vote there stymies their choice and adds another difficulty for workers who already face significant obstacles to unionization.
This Article offers a long-needed critique of voting at work, at a time when union organizing is both on the rise and still at historic lows. It also situates that practice as symptomatic of a larger conceptual problem in labor law of overreliance on the political model as the baseline for employees’ right to representation. By comparing voting mechanics in the labor and political contexts, this Article demonstrates that the preference for manual elections underlying the voting-at-work paradigm stems from the flawed premise that union-representation elections should look like political elections. It identifies differences in the nature and purpose of the two types of elections that expose the logical fallacies of that approach and warns that failing to recognize those differences when setting labor policy both is intellectually constraining and results in policies that undermine labor law’s promise. Additionally, it proposes an alternative to voting at work where employees considering unionizing are mailed a ballot and can choose whether to vote by mail or in person at a neutral location, shifting the locus of decision-making onto workers’ turf.
By identifying how the political analogy leads to the self-defeating practice of voting at work, this Article invites a rethinking of workplace democracy beyond the political model and offers a concrete example of how that rethinking can better serve employees’ right to representation. Having a voice at work does not have to mean voting at work.
* Assistant Professor of Law, University of Kentucky J. David Rosenberg College of Law. Although this Article was written in part when I worked at the National Labor Relations Board, Appellate & Supreme Court Litigation Branch, all views in this article are my own, and do not represent the views of the NLRB. Thanks to Michael Oswalt, Gali Racabi, Daiquiri Steele, Jeff Hirsch, Naomi Schoenbaum, Grant Hayden, and participants in the 2024 Colloquium on Scholarship in Employment and Labor Law for helpful questions and comments.
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