UAW Has Path to Reverse Mercedes Loss Under New Labor Standard

The United Auto Workers can explore a potent new legal strategy to reverse its election defeat at a Mercedes-Benz AG plant and force the German automaker to recognize the union, according to some labor scholars.

The May 17 loss at Mercedes stunned the UAW, which had just landed a major win at a Volkswagen AG plant in Chattanooga, Tenn., where workers voted for the union by a nearly 3 to 1 margin. It disrupted the UAW’s broader push to organize some 150,000 workers at more than a dozen nonunion plants across the nation, many in the South.

In the lead up to the Mercedes vote, the UAW said it had the support from a wide majority of the plant’s roughly 5,200 eligible workers. It also filed charges with the federal labor board accusing the company of illegal union busting.

Those allegations could lay the groundwork for the union to challenge the election results under a 2023 doctrine from the National Labor Relations Board that can thrust mandatory bargaining orders on employers—in essence a default win for the union—in cases where management has violated workers’ rights in the run-up to an election. NLRB General Counsel Jennifer Abruzzo has warned that a Cemex order, as it’s known, is an option even for employers that commit a single violation, regardless of an election outcome.

The Mercedes election poses a monumental test for one of Abruzzo’s most aggressive strategies, even as it’s likely to prompt backlash from business advocates and invite scrutiny from federal courts, legal scholars said. The dramatic drop in support, from more than 70% when the union filed for an election in early April to 44% at the ballot box last week, could bolster the union’s claim that Mercedes illegally eroded support.

ULP Charges

The NLRB standard set in Cemex Construction Materials Pacfic, LLC requires an employer to recognize a union if workers provide evidence of majority support, or, alternatively, quickly file for a secret-ballot election. If they don’t—or if they make attempts to interfere—they can be hit with a mandatory bargaining order, no election required.

According to the UAW, Mercedes required workers to attend anti-union sessions leading up to the vote that began May 13, a common management tactic that has also come under scrutiny by the general counsel. Among the allegations, the union says the company fired a supporter who had advanced cancer for using his cell phone at work, even though he was allowed to have it to receive updates from his doctor.

Some attorneys say those actions can have an irreversible chilling effects, making a fair election impossible.

“It’s not like you clean the slate and start over and everybody unhears what happens, which is the reason for Cemex,” said Catherine Creighton, a director at the Cornell University School of Industrial and Labor Relations who has represented unions before the NLRB.

It’s still unclear whether the UAW plans to pursue that route, however. UAW President Shawn Fain said after the result was announced that Mercedes had engaged in “egregious illegal behavior,” including “intimidation and harassment that they inflicted on their own workers.”

Fain said the union intends “to follow that process through,” referring to unfair labor practice charges it filed with the NLRB and the German government. “It’s a David versus Goliath fight. You know, sometimes Goliath wins a battle, but David will ultimately win the war,” he said in remarks to workers on Facebook Live.

A UAW spokesman didn’t respond to a request for comment on the specific legal strategy going forward. A spokeswoman for Abruzzo declined to comment on whether she believes a Cemex order would be appropriate.

Supporters of the auto companies were skeptical of the odds of success if the NLRB does pursue a Cemex order in the wake of the union loss.

“I wouldn’t put anything past this general counsel, but I don’t think it would be successful,” said former US Rep. Bradley Byrne, a management-side attorney in Alabama. “There’s no basis.”

“It would be better for everybody to move on,” said Byrne, now counsel at Adams and Reese LLP.

Turning to the Courts

Supporters hoped the Volkswagen victory would start a domino effect across the industry. But the Mercedes loss means that momentum is stymied for now, shifting focus back to legal jockeying.

Cemex marked a shift away from Gissel bargaining orders, which held a higher bar for employers’ bad conduct. Elections under Gissel were only set aside for major transgressions— like threatening to close a plant—that could widely affect workers’ psyche going forward.

Under Cemex, a single unfair labor practice charge could prompt a bargaining order. Supporters say the change will discourage employers from violating the law, while business advocates argue it gives unions a loophole to usurp the will of the voting workers.

Yet the standard remains untested. While there are about half a dozen cases where the board is pursuing Cemex orders, they haven’t yet received a ruling in federal court.

“It’s really hard to predict because we’re still at the beginning of the implementation of Cemex,” said Sharon Block, a former NLRB member and professor at Harvard Law School. “I would imagine UAW lawyers and leadership are figuring out whether they can make a strong argument.”

“At the very least, it is a serious question about whether Cemex would apply,” she said.