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.

How a Union is Formed Under the New Cemex Framework

A majority of workers sign cards, indicating support for a union.
The employer has two choices: Voluntarily recognize the union, or file an RM petition with the NLRB calling for an election. They have two weeks to file.
If the employer files for an election within two weeks, the NLRB will call an election. A simple majority vote determines if a union will represent the workers. If the union fails to gather a majority of votes, the company has no legal responsibility to bargain; If a majority votes in favor of union representation, the NLRB requires the employer to bargain in good faith.
If the NLRB finds the company committed unfair labor practices meant to sabotage the election at any point between or during the other steps, it orders the company to bargain with the new union just as if it had won the election in step 3.

**The Cemex Standard**

In a decision against Cemex Construction Materials Pacific, LLC., the NLRB noted that Cemex had engaged in “extensive unlawful and otherwise coercive conduct” to such an extent that it issued Cemex a “remedial affirmative bargaining order.” This forced Cemex to bargain with the union it had corrupted the election against and changed the standard for how companies must act when faced with a unionization push. In its decision, the Board wrote that “representation delayed is often representation denied.”

The Board’s decision — which infers that, if the company interferes with an election, it is safe to presume the employees want a union — is both a new and an old policy. Though the Cemex decision only came in late 2023, it hearkens back more than 50 years to an older standard called Joy Silk, for a decision against Joy Silk Mills made in 1949.

The decision to reinstate parts of the Joy Silk standard also explains the second change Cemex made in union formation. Under the 1949 standard, if union organizers can show evidence that a majority of a bargaining unit support a union, the burden of calling for an election falls to the company, not the organizing workers.

“Under Cemex, [the NLRB] said that if the Union can show a majority support from employees … the employer, the company then has within 14 days to seek an election, or there’s an automatic bargaining order,” Montgomery explained.

In fact, according to the NLRB’s six-month report, these employer-filed RM petitions drove the spike in union election petitions in early 2024, alongside a smaller increase in employee-filed petitions.

The Cemex standard has only been on the books for a few months, but it’s already impacting manufacturing operations in its second-ever implementation. On April 10, a federal judge found that Brown-Forman Corp, distillers of Woodford Reserve bourbon, was guilty of undermining a union election by giving pay raises and bottles of its whiskey to workers ahead of the vote. At least one union organizer noted that an employee said he would change his vote by taking what the employee called “the bribe.”

The timing of the amenities were “more than sufficient to infer unlawful motivation,” the judge ruled, and ordered Brown-Forman to negotiate with the local Teamsters union that lost the election. (Brown-Forman may appeal the ruling to the NLRB.)

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.