The United Auto Workers (UAW) made history by winning its first unionization vote at a Volkswagen factory in Chattanooga, Tennessee. The final tally was 2,628 to 985, a stunning 73% of eligible employees voted in favor of joining the UAW. The employees of Volkswagen’s Chattanooga factory are the first in the Southern United States to vote in favor of unionization since the 1940s. This is especially stunning given that UAW’s efforts at organizing the same factory in 2014 and 2019 failed.
UAW’s Plan
The UAW’s landslide win in Tennessee is expected to provide crucial support to UAW President Shawn Fain’s $40 million campaign to expand the union’s membership outside of Detroit and into the Southern and Western United States by 2026. The UAW has publicly set its sights on 13 non-union auto companies, including Mercedes, Toyota and Tesla. The UAW claims to have majority support for unionization in at a Mercedes Benz factory in Vance, Alabama, where an election will take place on May 13th and 17th. In addition to the Mercedes Benz factory, the UAW claims that more than 30% of employees at a Hyundai plant in Alabama and at a Missouri Toyota auto parts factory have signed cards indicating they want to join the UAW.
Impact of NLRB Rule Changes on Representation Elections
The UAW’s efforts have been praised by President Biden and his Administration, and the new election rules established by the National Labor Relations Board (“NLRB” or the “Board”) in December 26, 2023, have helped pave the way for unions to organize employees quickly.
Prior to the rule changes, union organizing campaigns followed a predictable process. Initially, the union, following an organizing campaign, would claim to have authorization cards signed by a majority of eligible employees authorizing the union to act as their exclusive representative. Next, based on its majority status claim, the union would petition the employer to “recognize” the union represented a majority of its employees and demand bargaining. In response, the employer had three choices: (1) voluntarily recognize the union and commence collective bargaining; (2) request a neutral third party verify the validity of authorization cards; or (3) refuse to recognize the union based on doubt that they actually represented a majority of employees. The third alternative forced the union to petition the NLRB for an election.
The former NLRB rules allowed at least three weeks after a petition was filed for both the union and the employer to campaign before a secret ballot election would be held. In some cases, legal disputes arose concerning the election would be adjudicated prior to an election, which could delay elections by several months or more.
Under the current NRLB rules, all stages of the election process are subject to condensed deadlines. The following is a list of the most significant changes:
- Pre-election hearings must now be scheduled within eight business days following a petition for an election, which is about ten days earlier than before.
- Regional Directors now have limited discretion to extend deadlines, and generally may only do so for “special” or “extraordinary” circumstances.
- Challenges to employees’ eligibility to vote or to their inclusion in a bargaining unit are now held after the election, rather than before.
- Regional Directors are not required to accept post-hearing briefs.
- The mandatory twenty business day waiting period that occurred after the NLRB issued a decision and direction for election is eliminated and elections must now be scheduled “as soon as practicable.”
Furthermore, under the new rules, when a union claims to have a majority representation based on signed authorization cards and demands recognition by an employer, the employer must either:
- recognize the union as majority representative based on the presented authorization cards, and begin collective bargaining with the union, or;
- must promptly file a petition for election with the NLRB to preserve employees’ rights to a fair, secret ballot election.
However, if, during this process, the NLRB determines an employer committed an unfair labor practice, which under previous rules would have generally resulted in a new election, the NLRB can require the employer to recognize and bargain with the union as the employees’ exclusive representative. Therefore, employers must ensure they are aware of all of the NLRB rules when a union is seeking representation. Many believe these rule changes are directly responsible for the UAW’s victory in the Chattanooga Volkswagen election in 2024, when they were previously unsuccessful in 2014 and 2019.
The NLRB’s defense of the rule changes as merely an effort to eliminate delay in elections is questionable because the speed at which the process now occurs only serves to favor unions as employers are faced with minimal time to provide information that is crucial to employees’ right to a fair secret ballot election. Moreover, authorization cards, which employees frequently sign without a full understanding of the process or pursuant to pressure by co-workers, union organizers, or union officers, are poor substitutes for a secret ballot election guaranteed by the National Labor Relations Act. Clearly, employees would benefit from hearing both the pros and cons of unionization before making their choice, especially given the fact that once recognized, the union cannot be decertified, or removed by employees, for at least one year. The bottom line is the practical impact of the NLRB’s rules changes is an easier path for union victories in representation elections.
Impact on Employers
Employers should be aware of the UAW’s plan to continue organizing campaigns throughout the southern and western United States because the UAW is not the only union paying attention to the outcome of the Tennessee Volkswagen election.
Employers who have any questions related to their employment structure under this new rule should contact Butler Snow’s Labor & Employment group for assistance.
