Should Anti-Union Governors Face NLRB Sanctions?
By 
Following the UAW’s election victory at Volkswagen in Chattanooga, TN and its defeat at Mercedes near Tuscaloosa, AL the union has shifted the focus of its organizing efforts to the Hyundai plant in Montgomery. After Hyundai, the union will continue its $40 million drive to organize non-union auto plants across the south, including those owned and operated by Tesla, Toyota, Honda, Nissan, BMW, Subaru, Mazda, and Volvo. As it does so, the UAW can expect to encounter opposition not only from many of these auto manufacturers but also from elected officials across the southern states. Elected officials are, of course, entitled to express their views on unionization. But employees are also entitled to vote in union elections that ensure a free and fair choice. Threats from public officeholders implying that unionization will lead auto plants to close or relocate interfere with that free choice. The Board should thus consider such interventions by elected officials to be objectionable conduct that, when part of a broader anti-union campaign run by the employer, can deprive workers of their right to a free and fair election.
Past is most likely prologue here. In the run-up to the Volkswagen and Mercedes elections, six governors, including Kay Ivey of Alabama and Bill Lee of Tennessee (along with the governors of Georgia, Mississippi, South Carolina, and Texas) penned a joint letter “opposing UAW’s unionization campaign.” As Andy points out, this letter would absolutely be an unfair labor practice and the grounds for setting aside an election if it had come from any of the auto manufacturers. The letter starts by expressing “concern[] about the unionization campaign” and declaring that “[a]s Governors, we have a responsibility to . . . speak up when we see special interests looking to come into our state and threaten our jobs.” The governors then explain that “companies have choices when it comes to where to invest and bring jobs” and that “[u]nionization would certainly put our states’ jobs in jeopardy.” Following the textbook anti-union playbook, the governors assert that every time the UAW organizes a “foreign automaker” the plant goes out of business and they then conclude that “[p]utting businesses in our states in that position is the last thing we want to do.”
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(It is also relevant, in the current context, that several of the signatory governors have taken concrete – and likely unlawful – actions to defeat the UAW organizing drive in conjunction with their anti-union statements. The Governors of Tennessee, Georgia, and Alabama have all signed legislation – since the inception of the UAW organizing drive – that denies state economic development incentives to any employer that voluntarily recognizes a union. And while the legislation does not directly impose job losses on automakers that unionize, it may have that effect: if an automaker recognizes the UAW voluntarily, the loss of development incentives may well have serious employment effects. Moreover, given the rules of NLRA preemption, the legislation is most likely invalid. As such, the enactment of this legislation sends the message to autoworkers that the governors are prepared to back up the anti-union positions expressed in the letter with the force of state law – even if that means running afoul of federal labor protections.)
I do not claim that the governors’ letter, standing alone, is grounds for setting aside election results. For that to be true, the Board would need to determine that the letter “is so aggravated that it creates a general atmosphere of fear and reprisal rendering a free election impossible.” But the letter – and similar statements that likely will come from elected officials as the organizing drive continues – is inconsistent with untrammeled employee decision making. Such statements from public officials should thus be part of the Board’s analysis when it weighs whether an election lives up to its standards for free and fair choice.
Not that it’s particularly relevant here to throwing out an election, but I can’t think of a lot of cases in recent years were elections were thrown out due to illegal employer behavior and then the union came back and won the second election. I might be missing something. So I am not sure this would be a panacea per se. But the Board needs to do what the Board needs to do and at least sending the message that this kind of interference is completely unacceptable would be a serious step in the right direction.