The United Auto Workers union’s big loss at an Alabama Mercedes plant last week could set the stage for the most high-profile application to date of the NLRB’s new Cemex framework. The potential for a Cemex bargaining order in this case is an example of the new power of the Board to hand unions a victory even after a big election loss.
UAW loses election: After a long and contentious election campaign, workers at a Mercedes plant in Alabama voted against UAW representation by a margin of 2,045 to 2,642. The election loss is a significant setback for UAW after its unprecedented victory at a Tennessee Volkswagen plant last month and its major wins at the bargaining table with the Big Three automakers earlier this year.
Unfair labor practice allegations: The UAW has filed several unfair labor practice charges against Mercedes, arguing that it illegally reduced union support during the campaign in a manner that tainted the results of the election. The charges included allegations that Mercedes forced workers to attend anti-union meetings (captive audience meetings) and unlawfully fired pro-union employees. When it filed for the election, the union claimed it had support of more than 70% of the petitioned-for workers – a stark difference from the 44% who actually voted for representation.
Turning a loss into a win? The presence of the unfair labor practice allegations gives unions a path forward to representation despite their election loss, thanks to the NLRB’s new Cemex framework. The Cemex decision allows the Board to order employers to recognize and bargain with unions even if they already lost an election, as long as the union had majority support amongst employees at one time and the employer is found to have committed unfair labor practices during the campaign.
Major test case: The Cemex framework is still largely untested – Cemex bargaining orders have only been put forth in a handful of cases involving smaller companies and smaller union campaigns, none of which have yet to make it to the full Board, and only one of which has been enforced by a federal judge. Should either the UAW or Board prosecutors pursue a Cemex order here, it would easily be the most high-profile test case to date. A win for the union would be the clearest signal yet of the Board’s new power under Cemex.
What’s next? The Cemex decision itself is already the subject of litigation in the Ninth Circuit Court of Appeals. That court may ultimately decide that Cemex is beyond the Board’s authority and nix it entirely. For that reason, among others, the UAW may decide to avoid pursuing a Cemex bargaining order at Mercedes. Employers should watch the outcome of this case closely, particularly if the Cemex route is pursued.
