Voting at Work

Abstract

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. Those elections are almost always held at the workplace, meaning that employees who want a voice at work have to vote at work. Employer property is a decidedly non-neutral 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. Through a historical comparison of 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 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 is both intellectually constraining and results in policies that undermine its promise.

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.  It proposes an alternative approach to voting mechanics 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. Having a voice at work does not have to mean voting at work.

Keywords: unions, elections, voting, democracy, metaphors