Workers at the Nissan plant in Canton, Mississippi voted “overwhelmingly” against representation by the United Auto Workers last week.  The loss marks a very disappointing outcome to a years-long organizing drive by the UAW and yet another set back for the labor movement’s attempt to bring union representation to manufacturing workers in the South.  It follows on high profile losses by the UAW at Volkswagen’s Chattanooga, Tennessee plant and the International Association of Machinists at Boeing’s North Charleston, South Carolina plant.  The only success in the region has been UAW’s campaign to organize a very small subset of workers in the Volkswagen plant, which is tied up in litigation as Volkswagen seeks to overturn that election victory.

The UAW defeat at the ballot box is not technically the end of the election process.  Even before any workers had voted, the fairness of the vote’s outcome had been put in question.  Nissan subjected workers in the plant to captive audience speeches and slide shows against union representation described by the New York Times as “menacing.”  Governor Phil Bryant also publicly urged workers to reject the union.  Just days before the election, a regional director of the National Labor Relations Board issued a complaint alleging that Nissan had unlawfully coerced employees by threatening to close the Canton plant if the union won the election and threatening to fire the campaign’s leaders.  On the day of the election, the UAW filed additional charges with the Board, alleging that Nissan’s anti-union campaign undermined the integrity of the election.

The truth is, however, that the election outcome is likely the end of the road for the effort to bring to the Canton workers collective representation in the workplace like that enjoyed by almost every other Nissan employee on the planet.  Even if the NLRB eventually finds merit to the UAW’s allegation that employer misconduct tainted the outcome of the election, the efficacy of a re-run election is questionable.  Professor Daniel Pollitt of University of North Carolina Law School first raised questions about the adequacy a re-run election as a remedy for election misconduct in 1963.  Although Board precedent provides for the possibility of a bargaining order as a remedy for egregious election misconduct, such remedies are not common.  With the imminent change in the majority at the Board from Obama to Trump appointees, the likelihood of a so-called Gissel bargaining order is even more remote.

In his statement following the announcement of the election result, UAW President Dennis Williams reiterated the allegations that Nissan’s “vicious campaign” of “scare tactics, misinformation, and intimidation” tilted the outcome of the vote.  While vowing to remain on the frontlines of the fight to bring the benefits of collective bargaining to all workers, Williams did not say what the future of UAW organizing in Canton or in the South more broadly will be.   It is hard to dispute, however, that, absent significant labor law reform, that future seems dimmer than ever.  Whatever the ultimate outcome in Canton, the rancor, politicization, and fear engendered by Nissan’s response to the organizing campaign point to the urgent need to undertake such reform to find a new way to give American workers a fair shot at the voice and empowerment that comes from collective bargaining.