Explainer: How Do Workplaces Join Unions?
If employers were hoping that labor activity would calm down after the fall of 2021 was deemed “Striketober,” they were disappointed.
Last fall, for the first time in its history, the United Auto Workers announced a simultaneous strike of all three major U.S. automakers. Six weeks later, the strike ended; but the UAW is now currently looking at expanding their ranks by recruiting U.S. locations of foreign carmakers — like Mercedes-Benz and Volkswagen — as well as stated plans to target the newest home-grown automaker, Tesla Motors.
At press time, the union has filed for an election at two: Volkswagen AG’s Chattanooga, Tennessee, factory, and Mercedes-Benz AG’s plant in Vance, Alabama near Tuscaloosa. The National Labor Relations Board has announced that the Volkswagen election will take place April 17-19 and determine whether or not more than 4,000 VW workers in the U.S. will enter the UAW’s rolls.
And the UAW aren’t the only active union around. Labor activity is up around the country across multiple industries. On April 9, the NLRB announced that union petitions rose by 35% in the six months October 2023 and March 2024. In a related data point, unfair labor practice filings rose by 7% over the same period.
Perhaps ironically, this period is also marked by a historically low union participation rate: In January, the Bureau of Labor Statistics released its annual look at union membership and found that only 10% of U.S. wage and salary workers were part of a union — the lowest rate ever recorded by the Bureau, which started counting the rate in 1983, when union participation was 20.1%.
Given, then, that labor activity is up, and union membership is down, it seems likely that a lot of that interest is going to be in newly unionized workplaces.
How Union Elections Work
The latest wave of union activity comes just as the unionization process underwent a sea change in late 2023, thanks to a new NLRB decision.
Since the 1960s, the process looked largely like this: First, workers at a plant sign union cards to indicate their interest in joining a union. Once those employees or organizers had 30% of a proposed bargaining unit sign their names in support for an election, they could petition the NLRB to set up an election. Once the votes are in, a simple majority — 50% of the bargaining unit, plus one person — is enough to decide the bargaining unit’s fate. If the union wins the election, the NLRB officially orders the employer to bargain with the newly-unionized group.
With as contentious as these elections get, though, there are often complaints from both sides about the integrity of the other. “Unfair labor practices” are a frequent charge made by organizers against companies. In recent years, the NLRB has often ruled that these practices are enough to call new elections.
A new standard set last year, though, has altered the process, including how unfair labor practices are treated. In a phone interview, labor and employment attorney Mekesha Montgomery, explained that a new standard, Cemex, has been “completely turned upside down.”
Under the old system, if companies were found to have improperly violated workers’ rights leading up to or during an election (by unlawfully preventing employees from communicating with union representatives, for example), then the NLRB would simply order a new election. That changed with the Cemex ruling.
All told, it appears the new standard is meant to do two things: Speed the union-election process, and put employers on notice about unfair labor practices around union elections. One of the lesser changes in Cemex is that elections will come sooner once the NLRB deems one necessary: Previous to the Cemex decision, elections would be set about 20 business days after the NLRB’s decision. The Cemex decision eliminated that waiting period in favor of holding the election at the “earliest date practical.” Montgomery noted that quicker elections are generally thought to favor unions, as companies usually only marshal a response once they realize union organizers are active.
Despite the magnitude of the Cemex standard, the core process behind the unionization process will remain the same: the card-check and election will continue to determine unionization for companies that avoid bribing or intimidating employees. Keep an eye on the UAW’s election in Tennessee this week: It may prove a bellwether for if the noted increase in labor activity will be a blip in the record or a historical change.
