Are You Prepared for a Union campaign? The Mid-South Has Seen a Recent Uptick in Union Activity

By Frank L. Day Jr.

After years of relative quiet, union activity has become a “hot topic” in the Mid-South as there has been an increase in the number of petitions filed for union representation. Union elections have been sparse for the past several years. However, statistics relating to union organizing activity published by the National Labor Relations Board (NLRB) for Region 15, which includes Arkansas, Louisiana, Mississippi, Southern Alabama, and West Tennessee, confirm that the Mid-South has seen a recent flurry of union election activity. In addition to the widely followed Nissan election in Canton, Mississippi, which was one of the most contentious of modern times, many other elections have taken place in West Tennessee, cities across Arkansas, and throughout the region.

Of all of the recent elections, the stakes were the highest at Nissan where the United Automobile Workers’ (UAW) waged a years-long campaign aimed at gaining a foothold in the South. The voting unit consisted of all 3,718 full-time and regular part time production and maintenance employees. Bernie Sanders, Danny Glover, and other politicians and celebrities supported the UAW, which based its campaign message on the civil rights movement and had racial overtones. Nissan also waged an aggressive campaign of its own that was supported by Mississippi politicians, who championed the message that unions interfere with economic development. Ultimately, the UAW’s efforts came up short. Sixty percent of Nissan’s employees voted against the union, but the UAW has vowed that the fight is not over. The UAW has filed multiple unfair labor practice charges against Nissan based on allegations that Nissan’s campaign against the union violated the National Labor Relations Act. These charges have not yet been resolved by the NLRB.

The NLRB data confirms that unions are not only targeting companies with large potential bargaining units, but the current union strategy also includes focusing on micro-units. Unlike the UAW’s efforts at Nissan which effectively targeted all employees at the plant, a micro-unit is a subset of employees who make up less than the total number of non-supervisory employees at a facility. The members of a micro-unit typically work in one specific department, and unions target these smaller groups of employees with the understanding that it is easier to win a majority vote from a subset of employees than all employees at a plant as a whole.

The NLRB data reflects that many of the recent union elections involved micro-units. A recent union election in Jackson, Mississippi involved a voting unit of only 10 shop employees and a single garage employee, excluding all administrative employees, sales employees, guards, watchmen, office employees, clerical employees, rental representatives, telephone operators, and supervisors as defined by the NLRA. Another election in Memphis included a micro-unit of only 18 employees who work in the quality control department of a company. The smallest micro-unit involved in a recent election involved only 6 employees.

The most success seen by the Unions in elections involve micro-units. In the last four months, unions have prevailed in roughly 50 percent of elections in Region 15, but they have had limited success when attempting to persuade larger bargaining units to accept union representation. The average size of units that recently voted in favor of union representation is just 31 employees, and the largest single unit to vote in favor of a union was a group of 82 production employees, operators, and material handlers in Memphis.

Although the uptick in union activity in the Mid-South has resulted in some union victories, the biggest wins in Region 15 have all gone to management. The NLRB data from the last four months shows that unions lost every election that involved a voting unit larger than 100 employees. Furthermore, the average size of the units that voted with management and against a union for this four month period is 268 employees. While the large Nissan voting unit brought up this average, the calculation also accounts for 10 separate micro-units of less than 15 employees, which also influenced the average the other way.

Why the uptick in union elections? One likely reason could be the Trump administration. After the Trump administration’s nominees to the NLRB are confirmed by the Senate, the board will have a Republican majority. This Republican majority is widely expected to roll back many Obama era rulings that made it easier for unions to organize. One such decision dating back to 2011, known as Specialty Healthcare, made it possible for unions to organize micro-units. The Specialty Healthcare decision abandoned years of precedent and permitted unions to define smaller sub-units of their own choosing, which would help them gain a presence within a company where a majority of workers would reject union representation. With the possibility that the NLRB may soon declare micro-units inconsistent with the NLRA, unions have good reason to move forward with plans to organize micro-units before the Republican majority can overrule Specialty Healthcare.

In 2014, the NLRB also adopted what became known as the “quickie” election rule, which significantly reduced the time period for an employer to prepare and campaign against a union from 42 days to as few as 13 days. In short, the Obama era NLRB made it possible for a union election to occur only 13 days after the date that the union filed a petition. This rule made it possible for unions to “ambush” employers with an election at a time before many employers were prepared to respond. Most labor attorneys expect the Trump administration’s appointees to the NLRB to undo the “quickie” election rule, but such action by the NLRB may be unnecessary because of legislative action. Congressional Republicans recently introduced a bill known as the Employee Rights Act, which would negate the “quickie” election rule if it is adopted. These developments give unions good reason to file petitions for representation while they can still benefit from pro-union Obama administration rules.

What should employers do now? At the very least, employers should ensure that their managers have received training that will enable them to recognize union activity. Also, employers should have a plan of action in place that can be followed in the event that a petition is filed. When faced with a petition for representation, those employers who have taken at least some steps to prepare are in a much better position than those that have not. Although unions have been in decline for decades, they are here to stay, and it is a threat that all employers, large and small, should take seriously.

Frank L. Day Jr., Counsel FordHarrison