Unfair labor practices can result in union win even if employees voted union down

Facing a push for unionization? Be careful! If you aggressively resist efforts to unionize and end up committing an unfair labor practice in the process, you may end up with a union workplace, even if employees vote down the union.

Recent case: Aluminum maker Novelis announced in late 2013 that it was cutting Sunday premium pay. This prompted a union organizing campaign.

Before the election, the company restored Sunday pay, but told workers that unionization could cost it business and force it to close. Workers narrowly voted against unionization.

Immediately afterward, the company demoted a worker who posted a negative comment about it on Facebook.

The defeated union then filed unfair labor practices charges against Novelis. The National Labor Relations Board eventually found in the union’s favor and ordered bargaining despite the lost vote.

The company appealed, arguing that there had been major changes in both management and worker turnover. Fortunately for the employer, the 2nd Circuit Court of Appeals concluded that forcing a union on the workers wasn’t an appropriate remedy, given that so many changes had taken place. (Novelis v. NLRB, 2nd Cir., 2018)

Final note: Always get expert labor relations help when facing a union push.

The employer won in this case, but it wasn’t a slam dunk. The law does allow a forced union—even if employees voted “no”—if the unfair labor practice was egregious enough.