Red State Bills Resisting UAW Growth Risk Labor Law Override

A United Auto Workers organizing campaign at southern plants including Volkswagen AG, Hyundai Motor Co., and Mercedes-Benz has reinvigorated union resistance from Republican state lawmakers and inspired secret-ballot-election bills that set up a clash with federal labor law.

States traditionally lack authority to govern private-sector collective bargaining, as that oversight is reserved in federal labor law and handled by the National Labor Relations Board. But laws recently enacted in Georgia and Tennessee, plus a similar bill moving through Alabama’s legislature, test those limits by requiring employers that receive economic development incentives to demand secret-ballot union elections rather than grant voluntary “card check” recognition.

The measures’ supporters say the secret-ballot election requirement is a fair way to ensure workers can privately vote on unionization, without being pressured to sign cards of support while organizers and coworkers watch. But opponents say by preventing employers from agreeing to card check, the state legislation gives bosses more opportunity to quash labor campaigns through worker intimidation, firing of organizers, and mandatory anti-union meetings.

“Federal preemption is supposed to stop states from doing stuff like this, that is to say, enacting their own labor policies,” said Benjamin I. Sachs, a labor law professor at Harvard Law School. “Chances are that if these laws are challenged, they’ll be struck down as invalid under federal labor law.”

The NLRB under the Biden administration has shifted toward faster union elections and potentially more voluntary recognition, including through the board’s Cemex decision in August 2023.

Alabama’s and Georgia’s Republican-majority legislatures have advanced the union election mandates this year while UAW is trying to unionize more US auto plants, particularly in the South. The UAW has been vocal about its intent to organize 150,000 workers across 13 traditionally non-union automakers after winning new contracts with the Detroit-based Big Three last year. Its targets include companies that have factories or are building them in Alabama and Georgia such as Hyundai, Mercedes, Rivian, and Toyota Motor Corp.

Workers at a Volkswagen plant in Chattanooga, Tenn., voted to join the UAW in an April 19 vote, and Mercedes employees near Tuscaloosa, Ala., are scheduled for a vote in May.

Construction of new manufacturing plants, whether for automobiles or other products, tends to attract large sums of state and local government incentives. Those can include income tax credits based on job creation, property tax breaks, and direct state spending on highway and utility infrastructure to support the new factory. Georgia state and local governments reportedly committed $1.8 billion in incentives in 2022 for a new Hyundai factory being built near Savannah.

State ‘Spending Power’

Tying the union election mandates to state financial incentives is likely to save them from being preempted, said Louis J. Cannon Jr., a labor lawyer with Baker Donelson in Baltimore. “The state is just exercising its spending power,” he said.

While differing on the likelihood of preemption, Cannon and Sachs agreed that if the red state union measures do survive a legal challenge, then the door will be open for other states’ Democratic-majority legislatures to answer with pro-union policies.

“There’s a lot of things blue states might do to encourage union organizing through the grant of economic incentives,” Sachs said.

Though not to the extent of mandating card check, pro-union policies are already common in some cities and states with strong labor influence, such as required project labor agreements on government projects, Cannon said. In major US cities, it’s common for hotels to be required to reach neutrality agreements with service worker unions as a condition of getting certain licenses or government supports, he added.

The attempt to regulate union elections isn’t entirely new to states. Arizona, South Carolina, South Dakota, and Utah passed amendments to their state constitutions in 2010 guaranteeing workers the right to a secret-ballot election before a union representative can be recognized in their workplace.

The NLRB, then under the Obama administration, sued to challenge Arizona’s amendment as preempted by federal law. A federal judge declined to strike down the state mandate, saying the Arizona law might or might not be preempted depending on how the state applies or enforces it.

“The secret ballot was maintained in Arizona,” said Vincent Vernuccio, labor policy senior fellow at Workers for Opportunity, an affiliate of the Mackinac Center for Public Policy. “The one time this has seen a court, the general secret ballot was upheld.”

Although union supporters are reluctant to have secret-ballot elections mandated, unions have won more than 70% of elections in each of the last eight years, reaching a win rate of 78.9% for 2023, according to a Bloomberg Law analysis of NLRB data.

Union Votes

Alabama Rep. Laura Hall (D) criticized her state’s legislation as an attempt to block UAW’s spread into area auto plants such as Mercedes and Hyundai.

“It looks like we’re trying to get in front of that train,” she said during legislative debate April 23, just before the bill won House approval. The state Senate and House need to resolve differences between their versions of the bill before it can go to Gov. Kay Ivey (R).

Ivey was one of six southern GOP governors to publicly oppose the UAW’s organizing efforts in an April 16 statement, claiming the union is using “misinformation and scare tactics” and that unionizing the South’s auto plants would threaten those jobs.

The UAW didn’t respond to requests for comment. The union said in a previous statement from January that the union-election laws like those Georgia and Tennessee enacted are designed to “keep blue collar workers wages low, and corporate profits high.”

Gov. Brian Kemp (R) proposed the Georgia legislation in a January speech to the state’s Chamber of Commerce and signed it into law April 22.

“This is a clash between economically conservative governors and what appears to be growing support for unions among workers,” Cannon said.

The state measures might not change much on the ground for the UAW’s organizing efforts, at least initially. The union succeeded at organizing the Volkswagen plant via secret-ballot election, and Mercedes workers in Alabama are scheduled for a secret-ballot vote.

The UAW announced in February it has signatures of support from more than 30% of workers at Hyundai’s plant in Montgomery, Ala., but plans to wait for at least 70% support before seeking recognition or an election.

The Alabama and Georgia measures also exempt existing economic development deals from the union election mandate, only covering future projects.

Neutrality Agreements

That follows the lead of Tennessee’s 2023 law. State lawmakers revised that measure before finalizing it to exempt Ford Motor Co.’s new factory near Memphis, for which the state had committed $900 million worth of incentives.

Billy Dycus, president of the Tennessee AFL-CIO, said he warned the GOP state house speaker, Cameron Sexton, that he and other labor leaders believed Ford might back out of the Memphis project if the legislature followed through with anti-card check legislation.

“‘I’m telling you now, if y’all don’t stop what you’re doing they’re going to leave,’” Dycus recalled telling Sexton during the 2023 legislative session. “‘They’re going to take half this plant and go just across the border in Kentucky and the other half is going to Michigan.’”

The effects of a union-election mandate in Alabama might be felt more in sectors outside of automotive, said Dev Wakeley, a worker policy advocate at Alabama Arise.

Employers within manufacturing, the service industry, and building trades in Alabama have privately signed neutrality agreements, committing to voluntarily recognizing a union without a fight if workers support it, Wakeley said. If those companies receive incentives for future expansion projects, they might be forced to break those neutrality deals.

“This is really a sort of anti-worker grandstanding,” he said of the Alabama bill, adding that forcing a secret-ballot election sets the stage for a combative relationship between a workplace’s employees and management.

“It’s a lot more sensible to implement a cooperative process such as voluntary recognition,” Wakeley said.