This post was created and published in collaboration with The Roosevelt Institute.
Strictly from a numbers perspective, the UAW’s defeat at Alabama’s Mercedes plants in mid-May should have been unexpected. When the UAW petitioned the National Labor Relations Board (NLRB or Board) in early April requesting an election, a supermajority of Mercedes workers said they wanted a union. Yet, by the time the NLRB conducted the election just six weeks later, things had changed drastically. Fifty-six percent of those same workers voted against unionizing. For the time being, the Alabama Mercedes plants will remain the only nonunion Mercedes plants in the entire world.
Unfortunately, the result in Alabama is not an anomaly. It seems like what happened at Mercedes—that so many workers could change their minds so quickly – should be extraordinary, but it is not. Far too many union representation elections are lost in exactly the way Mercedes was lost. Once a company learns its employees want a union (and have the support and momentum to make it happen), the employer engages in a no-holds-barred anti-union campaign. Weeks of surveillance, interrogation, firings, forced meetings, threats, and illegal inducement leave workers confused, fearful, and—worst of all—pessimistic. And some change their minds about the union, opting to go along with the bully who controls their paycheck.
If you’re wondering why such anti-union tactics are legal—why a labor law intended to ameliorate “the inequality of bargaining power” between workers and employers would allow employers to exploit that same power imbalance to deter workers from unionizing in the first place—the short answer is: Most of them aren’t. Although American labor law has never been as protective of workers’ rights as the laws of most wealthy democracies, it nevertheless recognizes employers’ coercive power over employees and prohibits its worst excesses, particularly when an election is on the horizon. Yet, anti-union employers regularly violate the law during elections. They break the law because their tactics are remarkably effective at defeating unionization and because, in recent decades, the NLRB has struggled to figure out how to stop them. According to the UAW, Mercedes flagrantly violated the law in the run-up to their election, from firing union supporters, including one worker with stage four cancer, to promising $7,000 bonuses to workers, while tacitly suggesting that those bonuses might not be available if the union won.
Although union-busting and violating labor laws occurs all across our country, the politics and culture of the American South contributed to the organizing defeat at Mercedes. Absent effective countervailing laws, norms may prevail, and the prevailing norms in the American South— aggressively enforced by the employer class—are rabidly anti-union and support depriving workers of fundamental rights and protections. Conservative Southern politicians have long insisted that the South is un-organizable, and they have done everything they can to make it so. When the National Labor Relations Act (the NLRA or Act) was enacted in 1935, elite, white Southern politicians fought to preserve Jim Crow by insisting that agricultural and domestic workers be excluded. This ensured that unionization would be unavailable for most workers, particularly Black workers, in the largely agrarian South for decades.
After the enactment of the Taft-Hartley Act’s amendments to the NLRA in 1947, elite, white Southern politicians quickly declared their states “right-to-work,” making unionization much more difficult for Southern workers. When Southern workers nonetheless organized, employers fought them tooth and nail, even during the heyday of American unionism when most employers acquiesced in the idea that workers have a right to organize. Today, the political descendants of those anti-union, anti-worker pacesetters provoke culture wars by portraying unions as socialist tools of coastal elites that are entirely incompatible with Southern traditions. They decry the possibility of shared interests across race, gender, and occupation, and encourage working-class Southerners to treat their poverty as a point of pride. When the governors of six Southern states spoke out against the UAW’s campaign at the Mercedes plants, they drew on this legacy; and by proclaiming it, they continued the process of recreating it.
What Mercedes is alleged to have done to overwhelm the will of its employees should be shocking—we should be shocked, you should be shocked— but no one is shocked. The extraordinary reality is that industrial lawlessness has become entirely ordinary in union elections, especially but not exclusively in the American South. But it was not always this way, and it does not have to stay this way.
In this post, we describe some of what went wrong in the Mercedes election, as a matter of labor law and Southern politics. But this fight is far from over, and so we also discuss remedies, all that still can be done— particularly by the NLRB—to turn these tragedies into triumphs.
The Mercedes Tragedies
The Mercedes losses this May were not inevitable; rather, they were made possible by what politicians, policymakers, and even unions themselves have chosen to do, or not do, over time. Here, we briefly detail the tragedies at the heart of this loss.
Photo from Wikipedia Commons
Tragedy #1 – Private Sector Employers Fight Unionization Tooth and Nail, Legally and Illegally
The South’s anti-unionism and suppression of workers’ rights was powered by a desire to sustain racial and class hierarchies established during the era of slavery. Then, in the 1980s, the modern era of anti-union tactics went national. When President Ronald Reagan fired striking air traffic controllers in 1981, he also legitimized what had previously been seen as largely unacceptable post-NLRA in most of the country: destroying unions and union organizing efforts.
As anti-unionism went mainstream, it became more sophisticated and more effective. A cottage industry of union avoidance consultants and lawyers sprung up, creating a literal playbook for the psychological coercion and intimidation of workers. These tactics have undermined labor law’s promise of industrial democracy. In 1995, researchers with the Economic Policy Institute concluded that the remarkable 36 percent difference in union election win rates in the public and private sectors—unions were winning 85 percent of public sector elections, but only 49 percent in the private sector—was almost entirely attributable to employer opposition. Public employers often stayed neutral when employees sought to unionize, while private-sector employers were “significantly more aggressive.” And this changed the outcome of elections.
As discussed below, many of the tactics employers use in their anti-union campaigns are illegal. But because American labor law is weaker than the labor law of many other wealthy democracies, some remain legal. One of the most pernicious of these legal tactics is the captive audience meeting, so called because workers, if they want to keep their jobs, are truly held captive. As one management-side law firm describes them, “captive audience meetings [are] a first line of defense” for employers fending off union organizing. Essentially, workers are required as a term and condition of their employment to attend meetings designed to convince them not to unionize.
As is all too typical, these meetings were a central component of Mercedes’ anti-union campaign. One worker-organizer in Mercedes’s Vance plant described the meetings for Labor Notes:
Three weeks before our union election, Mercedes . . . brought in a group of professional union-busting lawyers who met with workers in groups for two weeks. . . . Supervisors in the plant had rated workers 1 to 5 by their perceived union support. Workers who were perceived as soft commits or undecided were called into these meetings and told horror stories about unions by these union-busters. Some of these claimed to be former lawyers or National Labor Relations Board agents or past union members. They claimed neutrality, but almost every word was anti-union.
It is hard to adequately describe for those outside the room the coercive atmosphere in these meetings. But for a start, imagine the most aggressive time-share sales pitch, but every day for a month at your place of work. If you leave, you might lose your job. Time-share presentations sell time-shares. Captive audience meetings change the outcomes of elections. Yet, they remain legal.
Tragedy #2 – Employers Violate Existing Labor Law Protections with Impunity
Photo from Pixabay
While some of what employers do to resist unionization is legal, much of it is not. Employers regularly engage in unfair labor practices (ULPs, i.e., violations of federal private sector labor law) to undermine union organizing. In fact, ULPs are so common that the NLRB is forced to triage these violations of federal law, distinguishing the so-called “garden variety” unfair practices from those they have the capacity to try to remedy.
The UAW contends that, consistent with the employer anti-union playbook, Mercedes committed numerous ULPs during its organizing campaign. Like their captive audience meetings, Mercedes’s allegedly illegal conduct has become all too ordinary in American labor relations: appeals to racial prejudice, promises of future benefits if workers voted “no,” firing UAW supporters, and retaliating against pro-UAW employees using drug tests, among others. These violations happen all the time. The only way to change the trajectory of regularized employer illegality during organizing drives is to impose a meaningful remedy.
Unfortunately, under current law, the NLRB’s remedial authority is remarkably weak, and employers take advantage of it. The NLRB cannot award punitive or compensatory damages, or impose statutory fines. For the more egregious violations, all the Board can do is make the individual worker whose rights have been violated whole, and even then, this has often meant only whole as to the harms they suffer within the workplace (the current NLRB has broadened this approach, though). For far too long, there has been no meaningful remedy for the attack on the collective. If an employer fires someone for union activity, the Board may, after years of litigation, order that person reinstated with back pay. But that remedy costs the employer no more than what it would have had to pay if it had not fired that person.
The Board may also order a new election to try to undo the harm to the union, but employer intimidation and coercion are hard bells to un-ring. Since firing a union organizer can stop a union campaign in its tracks, no matter how many times an election is re-run, this kind of remedy is largely ineffective in deterring violations. For the committed anti-union employer, it makes economic sense to violate the law. Then, if they happen to be caught and held to account, they pay the remedy as a cost of doing business.
Meanwhile, for other ULPs deemed less serious as a result of the Board’s limited capacity, the primary remedy is a notice posting. All the employer must do is post a notice saying that it committed an unfair labor practice. Shame, shame. Of course, public shaming can help compel compliance. But when so many employers commit so many ULPs, there is no shame in that game.
This effect is exacerbated in the South. When making its decision about where to site its American facility, Mercedes focused its search on the American South keenly aware of its right-to-work laws and powerful anti-union culture and politics. Mercedes has extensive experience bargaining and working with unions in Germany, cooperating with state-mandated “works councils,” and being managed by a Supervisory Board (i.e., its board of directors) with half its membership guaranteed to worker representatives, largely drawn from the leadership of Mercedes’ works councils and its employees’ unions. Yet, in the United States, Mercedes wanted its facility nestled in the arms of the strictly anti-union, low-wage culture and political climate that the American South offers employers. States’ and the Southern business community’s ferocious opposition to unions, and Mercedes’s projection that production costs would be 30 percent lower in Alabama, are central selling points for foreign companies considering siting facilities in Alabama or other Southern states. Apparently, lack of labor law sanctions is not enough. Mercedes and many other foreign companies want approbation and compliant workers too.
Some Available Remedies
The tragedies cataloged above are the product of human decision-making: economic, political, legal, and social. Each is susceptible to some policy intervention. With Congress evenly divided and unable to legislate in many areas, including labor policy, solutions will have to come from other sources, particularly the NLRB. The following are a few remedies for the Mercedes tragedies that should be possible given our current national political alignment.
Remedy #1 – Set a high floor for private sector labor law in every state and prohibit any state from using union avoidance as a magnet for employers, foreign or domestic.
Photo from Pixabay
The NLRB should raise the floor regarding employer behaviors that are legally permissible during organizing campaigns. Of course, these rules would apply everywhere in the US, but they would take away tools used by employers in the American South to enforce that region’s low-wage, union-avoidance, low-road economic development strategy. In particular, it is long past time to declare captive audience meetings to be illegal.
Under the National Labor Relations Act’s (the Act) section 8(c), employers have a right to express “any views, argument, or opinion . . . if such expression contains no threat of reprisal or force or promise of benefit.” Yet, captive audience meetings are not pure speech. Employer force is their signature characteristic. Employers are allowed to use their inequality of bargaining power to require employees to attend on pain of discipline. Free and open discussion eschews force. Locking workers in a room and berating them for an unlimited period of time with a threat of sanctions for those who try to leave or fail to attend is the very definition of force.
These meetings “interfere with, restrain, or coerce employees in the exercise of [employees’] rights” to organize and bargain collectively in violation of the Act’s section 8(a)(1). As NLRB General Counsel Jennifer Abruzzo explained in a 2022 memorandum, captive audience meetings “inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.” Abruzzo’s memo promised to ask the Board to overturn its past decisions to acknowledge this ULP in two circumstances: “when employees are (1) forced to convene on paid time or (2) cornered by management while performing their job duties.”
The Mercedes election creates an opportunity to turn tragedy into good policy. The UAW has challenged Mercedes’s captive audience meetings, so the General Counsel and the Board could use the Mercedes case as a vehicle for banning them in every workplace. Mercedes’s use of these meetings was utterly ordinary, and yet their harm to the purposes of the law has always been extraordinary. It is the typicality of Mercedes’s tactics that creates a ripe opportunity for overturning bad precedents. The facts of the UAW’s campaign in Vance will not force the Board to dodge or explain away idiosyncratic facts or create a narrow or weak rule. Captive audience meetings are ULPs. Next case.
Raising the floor in every state is a first step. The next step is to limit American South states’ ability to use their low-wage, union-avoidance economic development strategy as an inducement for anti-union employers. This requires that private sector labor law is uniform nationally. Yet, Alabama, Georgia, and Tennessee recently passed laws barring employers that have voluntarily recognized unions from receiving state funds or other incentives. These state laws are clear violations of our national labor law and must be struck down.
The Supreme Court held long ago that the Act preempts any state law regulating conduct arguably prohibited or permitted by the Act. Under the Act’s section 9, employees may “designate or select” their bargaining representative either through an election or by securing authorization cards signed by a majority of employees and the employer’s voluntary recognition. The new laws in Alabama, Georgia, and Tennessee seek to deprive employees of the latter path to a union. Governor Kay Ivey announced Alabama’s new law during the UAW’s organizing campaign for the unmistakable purpose of driving home the message that governments in the American South will use every available tool—legal or not—to deprive employees of their chosen unions and punish employers that dare to collaborate with unions. The courts should slap down Alabama’s illegal law as soon as a relevant case arises and either the Board, a union, or an employer challenges it.
Remedy #2 – Consider whether to impose a bargaining order.
As noted above, the Act is notoriously feckless when it comes to penalizing lawbreaking employers. The few remedies the Board can impose— “make whole” remedies, re-run elections, and notice postings—are narrowly focused on harms to individuals and simply do not deter employer unlawful conduct. The standard story has been that the NLRB cannot do any more consistent with its statutory authority. This is not true. The NLRB has long employed a remedy that, when used consistently, is remarkably effective in deterring employer unfair labor practices: The bargaining order.
Bargaining orders require employers to bargain with a union when an employer’s illegal actions have intimidated and coerced enough workers to cost the union its majority support. Historically, the NLRB imposed these orders as frequently as employers made them necessary, as the best possible mechanism for incentivizing employers to behave lawfully. Today, when an employer commits ULPs that cause a union to lose an election, it ends up—at the absolute worst—exactly where it would have been otherwise, perhaps facing a new election. But with a bargaining order, the lawbreaking employer instead ends up in its worst-case scenario: compelled by the Board to recognize and bargain with a union. This is a remedy, then, that truly deters unlawful behavior. Unfortunately, the bargaining order fell into disuse decades back. It has been reserved only for cases involving the most “egregious” unfair labor practices. That standard became increasingly difficult to meet as employers’ baseline behavior became more and more egregious.
Yet, the Board recently issued a decision that could return the bargaining order to its rightful remedial role. In Cemex Construction Materials Pacific, LLC, the Board held that it may order an employer to bargain with a union even if that union has not won an election among its employees, if the employer commits ULPs that cause workers who support the union to abandon that support and the union loses its majority. Under Cemex, the bargaining order is not reserved for only the worst of the worst ULPs; nor does it require workers to prove the metaphysically unprovable—that is, any new election would necessarily be tainted. Under Cemex, the emphasis is on rational governance: incentivizing everyone to do things right the first time or face meaningful consequences.
Is a Cemex bargaining order appropriate in a case like Mercedes? Again, at Mercedes, the unfair labor practices were both ordinary, as in run-of-the-mill, and extraordinary, as in horribly destructive to the purposes of labor law. In addition to firing UAW supporters and other violations, Mercedes replaced its US CEO and promised workers benefits in a union-free future. While the Board would have to investigate further, it seems quite likely that this kind of intimidation, coercion, and promise of future benefits played an important role in changing some employees’ support for the union into opposition and turned a pro-union supermajority into an election loss.
History suggests that industrial lawlessness will prevail until and unless employers are forced to face consequences for their transgressions. This Board has shown that it wants to take law enforcement seriously. What should taking the law seriously mean at Mercedes?
The UAW has not yet requested a Cemex bargaining order from the Board as a remedy for the multiple ULPs it has alleged. For now, it has only sought a new election. The union’s decision likely reflects how central “the election” has become to union legitimacy in the region. In the run-up to the Mercedes vote, the National Right to Work Foundation peppered the airways with arguments about how the UAW would eventually use its supermajority to avoid the Board’s election process, thereby allegedly denying workers the chance to really have a voice. The UAW refrained and plowed ahead with its campaign even as Mercedes made it clear that it would not play fairly. Labor pundit Jane McAlevey has argued that for a union to be able to win at the bargaining table, it needs to be able to win an NLRB election first, employer ULPs and all. Fears of bad employer bargaining behavior should not let employers off the hook for illegal behaviors during an organizing campaign. The law helped create this world. Effective law enforcement is essential to changing it. If the goal is fair elections, the only way there is to adequately penalize and prevent employer ULPs.
At a bare minimum, the Board should grant the UAW’s request for a new election. But we have seen this movie with an Alabama backdrop before. In Bessemer, the RWDSU lost an election among Amazon warehouse employees in 2021 and succeeded in forcing a new election in 2022. The election is still not resolved more than two years later. Alabama will remain Alabama unless the Board imposes a change.
Remedy #3 – Show some self-respect in our foreign policy by putting pressure on allies to clamp down on their lawbreaking union-busting companies.
You don’t have to be a flag-waving, chest-pounding nationalist to be disgusted by the fact that American laws and workers’ basic rights are being violated by foreign corporations. It should not happen anywhere, but we should be able to agree that it cannot be allowed to happen here. President Biden plainly agrees. US government officials spoke with their German counterparts about the UAW’s ULP allegations against Mercedes before employees in Vance voted. Representatives of the European Commission spoke directly with Mercedes about the allegations on the US’s behalf. However, these conversations apparently failed to change Mercedes’s behavior.
Conversation is not enough. Effective laws and law enforcement are required to turn the tragedy of the American South into a global triumph.
A tool exists for imposing some discipline on German companies: the Act on Corporate Due Diligence Obligations in Supply Chains (Supply Chains Act, or in German, Gesetz über die unternehmerischen Sorgfaltspflichten in Lieferketten). Among other things, it requires German companies to establish a risk management system to identify and prevent or minimize the risks of human rights and environmental violations, including violations of the rights to organize and bargain collectively. The Act is highly prescriptive and includes mandatory complaint mechanisms and regular reporting. Violations can result in penalties up to €8 million or 2 percent of gross revenue. That’s the kind of attention-grabbing, behavior-changing penalties that American labor law lacks.
The UAW has filed a complaint with Germany’s Federal Office for Economic Affairs and Export Control, which supervises and enforces the Supply Chains Act. The US government should lend its full support to that complaint and urge Germany to impose the maximum financial penalties on Mercedes. If Germany urges an effort at remediation before imposing penalties, the obvious solution is a commitment by Mercedes to follow Volkswagen’s example and remain neutral in the next union representation election.
The next step is to build on the Biden-Harris administration’s work in establishing a global corporate minimum wage by negotiating a global, enforceable standard that protects labor rights, perhaps modeled on Germany’s Supply Chains Act. No corporation, regardless of its nominal home, should exploit workers in any other region of the world. But this outcome won’t just happen. Every developed country in the world should agree by treaty to enact laws like the Supply Chains Act and establish and fund enforcement offices like the Federal Office for Economic Affairs and Export Control. The US Department of Labor’s International Labor Affairs Bureau is the logical home in the United States for this function if the law is limited to labor issues. If environmental and other issues are included, the Commerce Department might be a better home.
Remedy #4 – Reclaim union values as Southern values.
Photo from Pixabay
Finally, Southern workers and their unions must challenge the false construction by Southern elites of a Southern identity that is inherently anti-union. According to Governor Ivey, she felt compelled to speak out against the UAW campaign because she saw “special interests looking to come into our state and threaten our jobs and the values we live by.” Says who? The best of Southern working-class values—a commitment to community and being each others’ shepherds; a healthy distrust of outside authority; and a fierce, embodied anti-elitism—are union values. Governor Ivey is not the measure of the values Southerners live by; working-class Southerners get to decide that for themselves. The workers already organizing across the American South have plainly made their decisions.
Conclusion
This remains an extraordinary moment for American workers. A decade of rising public support for unions has grown into an organizing boom, including in industries, companies, and states where it long seemed impossible—from Amazon warehouses to Starbucks coffee shops to Southern automotive plants. The loss at Mercedes should not take away from how much has already been won or from all the opportunities ahead.
That said, the loss at Mercedes is an essential reminder that momentum alone will not carry the day. For decades, American labor law has made a promise to workers that it has not kept. Our law purports to offer “full freedom of association” and “actual liberty of contract” to working people—the ability to have a real voice in their working lives, to lift themselves up, and to lift the rest of us up along with them. But the inequalities of bargaining power that make unions necessary also make it unconscionably difficult to form them, especially when faced with full-fledged employer opposition. There are a host of reasons why labor law has not worked for workers in recent decades. But one of the major ones is the failure to actually enforce the law—whether in letter or in spirit—in the South.
