Union Avoidance Strategies: Legal Frameworks, Structural Mechanisms, and Strategic Communication

11
CHAPTER

Introduction: The Philosophy, History, and Evolution of Union Avoidance

The practice of union avoidance variously termed “union substitution,” “positive employee relations,” or “preventive labor relations” constitutes a sophisticated, multi-disciplinary domain at the intersection of law, human resources, organizational psychology, and corporate strategy. It is a field defined by an incessant dialectic between the statutory rights of employees to organize and the managerial prerogative to operate efficiently and profitably. To fully comprehend the modern arsenal of union avoidance strategies, one must first deconstruct the historical and philosophical bedrock upon which these practices rest, tracing their evolution from the crude suppression tactics of the early 20th century to the nuanced, data-driven, and legally fortified strategies of the 2020s.

Video 1:

The Statutory Dialectic: From Wagner to Taft-Hartley

The genesis of modern labor relations in the United States is the National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act. In its original formulation, the Act was explicitly pro-union, predicated on the Congressional finding that the “inequality of bargaining power between employees who do not possess full freedom of association… and employers… tends to aggravate recurrent business depressions”.1 Section 1 of the Act declared it the policy of the United States to encourage the practice and procedure of collective bargaining.1 Under this regime, employer neutrality was the implicit ideal, and active resistance to unionization was viewed with deep suspicion by the newly formed National Labor Relations Board (NLRB).

However, the passage of the Labor Management Relations Act of 1947 (Taft-Hartley) introduced a fundamental pivot that forms the legal basis for all modern union avoidance. Taft-Hartley enshrined the right of employees to refrain from concerted activity (Section 7) and codified the employer’s right to free speech (Section 8(c)), provided such speech contained “no threat of reprisal or force or promise of benefit”.1 This statutory shift legitimized the “anti-union campaign.” It transformed the representation election from a mere administrative verification of employee sentiment into a contested political event, where the employer is a recognized participant with a vested interest in the outcome.

Consequently, modern union avoidance is not an extra-legal activity but a statutory right exercised within a highly regulated framework. The “avoidance” strategies discussed in this report are the mechanisms by which employers navigate this framework to maintain a direct relationship with their workforce, unmediated by a third-party representative.

The Spectrum of Avoidance: Substitution versus Suppression

Academic literature and practitioner guidance often bifurcate union avoidance into two distinct methodologies: substitution and suppression.

Union Substitution is a proactive, strategic approach often described as “making the union irrelevant.” It is predicated on the theory that workers do not organize for ideological reasons but rather to solve specific workplace problems low wages, arbitrary discipline, lack of voice, or safety concerns.3 If management can “substitute” the benefits of unionization competitive pay, robust benefits, fair grievance procedures, and open communication channels without the costs of dues or the rigidities of a contract, the demand for representation naturally withers.5 This approach requires significant investment in human capital and a sophisticated employee relations infrastructure. Research suggests that high-performance work systems (HPWS) that empower employees can effectively inoculate a workforce against organizing drives by satisfying the psychological need for “voice” that unions traditionally fulfill.6

Union Suppression, by contrast, involves the use of tactical maneuvers to defeat an active organizing attempt or to decertify an existing union. This includes legal strategies (such as challenging bargaining unit composition), communication campaigns (the “FOE” rule), and structural adjustments (double-breasting).3 While “suppression” carries a negative connotation, implying coercion, in the professional lexicon it often refers to the vigorous exercise of legal rights to oppose unionization. However, the line between lawful suppression and unlawful interference (Unfair Labor Practices or ULPs) is the most treacherous terrain in labor law, a boundary that shifts with the political composition of the NLRB.8

The Contemporary Landscape: The "Cemex" Era

As we enter the mid-2020s, the strategic landscape for union avoidance has been upended by the NLRB’s decision in Cemex Construction Materials Pacific, LLC (2023).9 This decision has arguably ended the era of “cost-free” anti-union campaigning. Previously, an employer could push the envelope of lawful speech, knowing that the worst-case scenario for a minor violation was a re-run election. Under Cemex, the penalty for committing ULPs during a campaign is a mandatory bargaining order forcing the employer to recognize and bargain with the union without an election.11

This paradigm shift requires a radical re-evaluation of avoidance strategies. The “margin of error” for supervisors and HR professionals has vanished. Strategies must now be executed with surgical precision, as a single ill-advised comment by a frontline manager can now result in the instant unionization of a facility. This report details how these strategies must adapt to this high-stakes environment.

Video 2:

Structural Avoidance Strategies: The Double-Breasted Operation

In industries characterized by fluctuating labor demands and distinct market segments most notably construction employers have developed complex corporate structures to isolate union obligations. The “double-breasted” operation is the preeminent example of structural union avoidance, allowing a single commercial interest to operate simultaneously in the unionized and non-union markets.13

The Economic Logic of Double-Breasting

The construction industry presents a unique set of variables: project-based work, a transient workforce, and a stark bifurcation between public/commercial projects (often subject to prevailing wage laws or Project Labor Agreements requiring union labor) and private/residential projects (often price-sensitive and non-union). A strictly unionized firm is competitively disadvantaged in the private market due to higher labor costs and restrictive work rules. Conversely, a strictly non-union firm is locked out of lucrative government and major commercial contracts.14

Double-breasting resolves this dilemma by establishing two corporate entities:

    1. Entity A (Union): Signatory to Collective Bargaining Agreements (CBAs), capable of bidding on union-only work.
    2. Entity B (Non-Union/Open Shop): Free from CBA restrictions, capable of bidding on open-market work with lower labor costs.14

While economically rational, this structure is viewed by unions as an existential threat a mechanism to divert work from the bargaining unit to the non-union entity, thereby eroding the union’s power and the workers’ standards of living. Consequently, unions aggressively litigate against double-breasted operations, alleging that they are “shams” designed to evade legal obligations.13

The Legal Defense: Single Employer vs. Alter Ego Doctrines

To survive a legal challenge, a double-breasted operation must withstand scrutiny under two distinct but overlapping legal theories: the Single Employer Doctrine and the Alter Ego Doctrine. A failure under either can result in the non-union entity being bound to the union contract, potentially triggering massive back-pay liabilities and pension contributions.13

The Single Employer Doctrine

The Single Employer doctrine determines whether two nominally separate entities should be treated as one integrated enterprise. The Supreme Court and the NLRB utilize a four-factor test to make this determination 14:

  1. Interrelation of Operations: This factor examines the functional entanglement of the two entities.
    • High Risk: Sharing office space, clerical staff, bank accounts, or accounting systems. Using the same telephone lines or website.
    • Best Practice: Distinct physical locations (or clearly separated suites), separate administrative support, independent financial systems, and separate tax filings.
  2. Common Management: This factor looks at the overlap of officers and day-to-day managers.
    • High Risk: The same President and VP oversee both companies. Project managers float between entities.
    • Best Practice: Separate slates of officers. While a holding company may have oversight, the operational management (Presidents/GMs) should be distinct individuals with autonomy.
  3. Centralized Control of Labor Relations: This is widely cited as the critical14
    • High Risk: A single HR Director dictates hiring, firing, and wage policies for both entities. The union-side manager handles grievances for the non-union side.
    • Best Practice: The non-union entity must have its own Labor Relations authority. The decision to hire, fire, or set wages must be made independently, without consultation with the unionized entity’s management.
  4. Common Ownership:
    • Context: In almost all double-breasted cases, common ownership exists (e.g., a parent holding company). Therefore, this factor is rarely dispositive on its own but sets the stage for the analysis of the other three.14

If the Board finds the entities are a Single Employer, the inquiry is not over. The Board must then determine if the employees of both entities constitute a Single Appropriate Bargaining Unit. If the employee groups have distinct skills, supervision, and working conditions, the contract may still not extend to the non-union side, even if a Single Employer finding is made.13

The Alter Ego Doctrine

The Alter Ego doctrine is far more perilous. Unlike the Single Employer test, which assesses operational integration, the Alter Ego test focuses on intent and the evasion of obligations. It asks whether the non-union entity is merely a “disguised continuance” of the union entity.13

An Alter Ego finding results in the automatic application of the CBA to the non-union entity, bypassing the “appropriate bargaining unit” analysis. The factors include substantial identity of 15:

    • Management
    • Business Purpose
    • Operations
    • Equipment
    • Customers
    • Supervision
    • Ownership

Anti-Union Animus: A critical differentiator in Alter Ego cases is the presence of anti-union animus. If evidence suggests the non-union entity was created specifically to avoid the union contract (rather than for a legitimate business purpose like capturing a different market segment), the Board is highly likely to find an Alter Ego relationship.17 For example, if the unionized company bids on a project, withdraws the bid, and the non-union company immediately bids on the same project using the same estimators and supervisors, an Alter Ego finding is probable.16

The "Navillus" Cautionary Tale

The complexity and risk of double-breasting are exemplified by the Navillus litigation (referenced in construction law contexts 17). In this high-profile scenario, a major unionized concrete contractor was found to be the alter ego of a non-union entity. The court pierced the corporate veil, finding that despite nominal separation, the entities shared common supervision, equipment, and operated as a single integrated enterprise to evade pension obligations. The resulting judgment for unpaid union benefits and wages was catastrophic, leading to bankruptcy.

This case serves as a stark warning: “paper” separation is insufficient. The separation must be operational and actual. Shared equipment must be leased at fair market value with written contracts. Shared estimators must bill their time to the respective entity. There can be no casual borrowing of crews or supervisors. The “wall of separation” must be impermeable.14

Table 11.1: Comparative Analysis of Single Employer vs. Alter Ego Doctrines

Feature Single Employer Doctrine Alter Ego Doctrine
Primary Focus Operational integration and control. Intent to evade obligations; “Disguised Continuance.”
Key Factors 1. Interrelation of Operations 2. Common Management 3. Centralized Labor Control 4. Common Ownership Substantial identity of management, business purpose, operations, equipment, customers, supervision, ownership.
Role of Intent Not required; focuses on objective facts of relationship. Critical: Anti-union animus is a major driver of findings.
Result of Finding Entities are treated as one; CBA applies ONLY IF employees form a single appropriate unit. CBA applies AUTOMATICALLY to the non-union entity.
Strategic Risk High, but defensible via “appropriate unit” arguments. Catastrophic: Immediate contract application and retroactive liability.

Procedural Avoidance: Withdrawal of Recognition

While structural avoidance prevents unions from expanding to new operations, Withdrawal of Recognition is the strategic mechanism for terminating an existing collective bargaining relationship. This process is governed by a complex and oscillating body of NLRB case law that balances the goal of “industrial stability” against the goal of “employee free choice.”

Video 3:

The Certification Year and Contract Bar

An employer cannot simply walk away from a union. The relationship is protected by several “bars”:

    • Certification Bar: For one year following NLRB certification, the union’s majority status is irrebuttable. The employer must bargain, even if 100% of employees sign a petition against the union the day after the election.18
    • Contract Bar: During the term of a valid CBA (up to three years), the union’s status cannot be challenged by a decertification petition or employer withdrawal.18

The window of opportunity for avoidance opens only during the “open period” (typically 60-90 days before contract expiration) or after the contract expires.

The Evolution of the Standard: From Levitz to Johnson Controls

For decades, the standard for withdrawing recognition was fraught with legal peril for employers, governed by the decision in Levitz Furniture Co. of the Pacific (2001).19

The Levitz Standard (2001-2019):

Under Levitz, an employer could unilaterally withdraw recognition only if it could prove that the union had actually lost majority support at the time of withdrawal. This created a “peril” rule: if an employer withdrew recognition based on a petition signed by 55% of employees, but the union later produced evidence (e.g., dual-signed cards) showing it retained 51% support, the employer committed a ULP.20 

Crucially, Levitz operated under a “last-in-time” rule. Unions could essentially “outrun” a decertification effort by covertly gathering new authorization cards after the employer received the anti-union petition. This created a chaotic environment where employers were often blind-sided by ULP charges after acting in good faith on employee petitions.22

The Johnson Controls Revolution (2019):

In July 2019, the NLRB issued a landmark decision in Johnson Controls, Inc., fundamentally altering the landscape in favor of employer avoidance strategies.20 The Board declared the Levitz framework unworkable and established a new “Anticipatory Withdrawal” framework:

    1. The 90-Day Window: An employer may notify the union of its intent to withdraw recognition anticipatorily no more than 90 days before CBA expiration.24
    2. Objective Evidence: This notice must be based on objective evidence of majority loss (e.g., a petition signed by >50% of the unit).
    3. The 45-Day Counter-Petition: Once notified, the union has 45 days to file a petition for an NLRB election.24
    4. Election Supremacy: If the union files the petition, its status is determined solely by the secret ballot election. The union cannot block the withdrawal by presenting counter-signed cards. The “last-in-time” rule was abolished.20
    5. Default Withdrawal: If the union fails to file a petition within 45 days, the withdrawal becomes lawful and final upon contract expiration.25

Johnson Controls provided employers with a “safe harbor.” It shifted the dispute from complex ULP litigation (where the employer often loses) to the election arena (where employers can campaign).

The Current Threat: The Abruzzo Doctrine

However, the stability provided by Johnson Controls is currently under siege. NLRB General Counsel Jennifer Abruzzo has explicitly targeted this decision for reversal. In GC Memo 21-04 (and reaffirmed in 2023), she instructed Regional Directors to submit cases involving Johnson Controls to the Division of Advice, arguing that the decision improperly facilitates union ouster.26  

The General Counsel advocates for a return to a standard where an employer can never withdraw recognition without a Board-conducted election, and potentially where the mere presence of ULP charges can “block” such an election indefinitely.19

Strategic Implication: As of 2024-2025, employers utilizing the Johnson Controls framework must be prepared for litigation. While it remains binding Board law until overturned, reliance on it invites a challenge that the current Board may use to reinstate the stricter Levitz or even Joy Silk-era standards.28

Decertification vs. Withdrawal

It is vital to distinguish between Employer Withdrawal of Recognition (initiated by the company) and Decertification (initiated by employees).30

    • Decertification (RD Petition): Employees file Form 502 with the NLRB, supported by a 30% showing of interest. The employer must remain strictly neutral during the signature gathering phase. Any assistance providing wording for the petition, allowing it to circulate on work time, or promising benefits will taint the petition and lead to dismissal.18
    • Employer Role: Once the petition is filed, the employer can campaign for a “No” vote (decertification), subject to the same FOE/TIPS rules as an initial election.

Strategic Avoidance: The Cemex Doctrine and the New Risks

The most significant development in union avoidance strategy in the last 50 years occurred in August 2023 with the NLRB’s decision in Cemex Construction Materials Pacific, LLC.9 This decision has fundamentally rewired the risk calculus for any employer facing an organizing drive.

The Death of Gissel and the Rise of Cemex

Prior to Cemex, the legal framework was governed by NLRB v. Gissel Packing Co. (1969). Under Gissel, if an employer committed ULPs during an election, the standard remedy was a re-run election. The Board would only issue a “bargaining order” (forcing union recognition without an election) in “exceptional” cases where the employer’s conduct was so egregious (e.g., plant closure threats, mass firings) that a fair re-run was impossible.2 These orders were rare.

Cemex obliterated this high threshold. Under the new standard, the Board effectively resurrected the mid-century Joy Silk doctrine.32 The new process is as follows:

    1. Demand for Recognition: A union demands recognition based on majority support (authorization cards).
    2. Employer’s Choice: The employer must either (a) recognize the union immediately, or (b) prompt file an RM Petition (typically within 14 days) to test the union’s majority in an election.10
    3. The “Hair-Trigger” Bargaining Order: If the employer files the petition but then commits ANY unfair labor practice (Section 8(a)(1)) during the “critical period” that would warrant setting aside the election, the Board will dismiss the petition and issue a mandatory bargaining order.9

Strategic Implications of Cemex

The implications for avoidance strategy are profound and terrifying for employers:

    • Zero Tolerance: The threshold for a bargaining order has dropped from “egregious” to “any non-de minimis violation.” A single supervisor making an off-hand comment that creates the “impression of surveillance” or an “implied threat” is now sufficient to trigger automatic unionization.10
    • Retroactivity: The Board has applied this standard retroactively to pending cases. Conduct that was considered a “standard” campaign violation in 2022 could now result in a bargaining order in 2024.33
    • The End of the “Kitchen Sink” Campaign: Traditionally, employers might throw every argument at the wall, knowing that if they crossed the line, they would just face a re-run. That safety net is gone. Campaign messaging must now be vetted by legal counsel with extreme conservatism.

Case Study: Red Rock Casino (2024): In the first major application of Cemex, the Board ordered Red Rock Casino to bargain with the union due to ULPs committed years prior, bypassing the election results entirely. This confirms that the Board intends to wield this new weapon aggressively.11

Table 11.2: The Paradigm Shift: Gissel vs. Cemex

Feature Gissel Standard (Pre-2023) Cemex Standard (Current)
Trigger “Outrageous” and “pervasive” ULPs that make a fair election impossible. ANY ULP that warrants setting aside an election (Section 8(a)(1)).
Employer Action Employer could ignore card check demand; Union had to file for election. Employer MUST file RM petition within 14 days of demand or face ULP.
Remedy Priority Preference for re-run elections; Bargaining Order was a “last resort.” Preference for Bargaining Order if any fault is found; Re-run is secondary.
Risk Level Low/Moderate (Risk of re-run). Extreme (Risk of immediate unionization).

Tactical Avoidance: Campaign Communications (FOE vs. TIPS)

Despite the Cemex threat, Section 8(c) of the NLRA still protects an employer’s right to express “views, argument, or opinion.” The art of union avoidance lies in navigating the razor-thin boundary between lawful persuasion (FOE) and unlawful coercion (TIPS).35

The TIPS Prohibitions: What Supervisors Must NOT Do

Supervisors are the “agents” of the employer. Their actions bind the company. Training them on TIPS is the single most critical component of an avoidance campaign.

    • T – THREATS: Supervisors cannot threaten reprisal.
      • Obvious: “If the union wins, we will close the plant.”
      • Subtle (and Dangerous): “If the union gets in, we will have to bargain from scratch, and you could lose your benefits.” Under current Board law, “bargaining from scratch” statements are highly scrutinized and often found unlawful unless carefully contextualized as a description of the legal process rather than a punitive intent.8
      • Third-Party Threats: Citing a customer who “might not want to work with a union shop” can be a threat unless objectively provable.38
    • I – INTERROGATION: Supervisors cannot question employees about their union activity.
      • The Trap: Even casual questions like “So, what did you think of the union meeting last night?” or “Why do you guys feel you need a union?” are unlawful interrogations because they probe the employee’s sentiments in a context of unequal power.36
      • Polling: Systematic polling of employees (“straw polls”) is strictly prohibited.
    • P – PROMISES: Supervisors cannot promise benefits to buy votes.
      • The “Fist Velvet Glove”: “We know pay is an issue, and we are working on a fix, but we can’t do it with this union hanging over us.” This is an unlawful promise (and a threat).
      • Note: Employers can implement pre-planned raises that were decided before the organizing drive began, but the burden of proof is on the employer.36
    • S – SURVEILLANCE: Supervisors cannot spy on protected activity.
      • Physical: Parking outside a union hall or photographing employees leafleting.
      • Impression of Surveillance: Creating the belief that employees are being watched. Example: “I know who signed cards.” This is a quintessential Section 8(a)(1) violation that could now trigger a Cemex order.36

Video 4:

The FOE Rule: The Employer's Safe Harbor

Employers retain powerful tools to persuade employees under the FOE acronym.1

    • F – FACTS: The employer can state verifiable facts.
      • Economic Facts: “The union cannot guarantee any specific result. The law only requires us to bargain in good faith.”
      • Strike Facts: “In an economic strike, you can be permanently replaced.” (Must be phrased carefully to avoid sounding like a threat of firing).
      • Union Facts: Sharing the union’s LM-2 financial disclosures to show how much member dues go to officer salaries or political causes is a standard and effective tactic.37
    • O – OPINIONS: The employer can share opinions, provided they are not coercive.
      • Cultural Arguments: “I believe a union will create a rigid ‘us versus them’ culture that will destroy our family atmosphere.”
      • Meritocracy: “In my opinion, unions protect the lowest performer at the expense of the highest performer due to seniority rules”.35
    • E – EXPERIENCES: Sharing personal experiences or historical examples.
      • Narratives: “At my last company, we had a union, and we still had layoffs.”
      • Comparators: “Look at the plant down the road that unionized they closed two years later.” (Caution: If the closure was caused by the union, it is a fact. If it was unrelated, implying the union caused it can be a threat).35

The "Captive Audience" Controversy

A staple of avoidance campaigns is the “captive audience meeting” mandatory meetings where management presents its case on company time. While historically lawful ( Babcock & Wilcox), General Counsel Abruzzo has signaled that she considers these meetings inherently coercive and a violation of the Act.39 While the Board has not yet officially banned them as of early 2024, the legal ground is shifting. Prudent employers are increasingly making attendance “voluntary” to avoid providing a test case for the General Counsel, or strictly limiting the content to factual presentations.40

Counter-Avoidance: Neutrality Agreements and Corporate Campaigns

In response to effective employer avoidance, unions have developed strategies to bypass the NLRB election process entirely. The “Corporate Campaign” is designed to inflict reputational and economic damage on an employer until they capitulate to a Neutrality Agreement.41

The Mechanics of Neutrality

A Neutrality Agreement typically includes:

    1. Gag Orders: Restricting the employer’s right to speak against the union (waiving “FOE” rights).
    2. Access: Granting organizers physical access to the workplace.
    3. Card Check: Agreeing to recognize the union based solely on signed cards, bypassing the secret ballot.39

These agreements are powerful. Studies show that win rates for unions under card check neutrality are significantly higher than in contested elections.44 Unions leverage “leverage” points regulatory challenges, customer boycotts, or pressure from political allies to force employers to sign these agreements.

The Legal Battleground: Section 302 and Mulhall

The legality of these agreements is contested under Section 302 of the LMRA, which prohibits employers from giving “any thing of value” to a union.42

    • The Theory: Opponents argue that providing valuable employee lists, access to property, and a “neutrality” pledge (which has economic value to the union) constitutes an illegal bribe or “thing of value.”
    • The Circuit Split:
      • 3rd & 4th Circuits ( Adcock, Sage ): Held that “things of value” refers only to tangible corruption (money), not organizing concessions.
      • 11th Circuit ( Mulhall v. UNITE HERE ): Created a shockwave by ruling that organizing assistance can be a “thing of value” and thus a criminal violation of Section 302.42

Although the Supreme Court dismissed the Mulhall appeal on procedural grounds, the circuit split remains.47 In the 11th Circuit (Alabama, Florida, Georgia), employers face criminal liability for signing expansive neutrality agreements. In other jurisdictions, they remain a lawful, albeit aggressive, union tactic.46

The Trap of "Premature Recognition"

Employers who succumb to pressure and recognize a union without verified majority support (e.g., signing a contract before the cards are counted) commit a Section 8(a)(2) violation: unlawful assistance to a minority union. This renders the contract void. Employers must rigorously verify majority status (usually via a third-party arbitrator) before granting recognition under a neutrality agreement.43

Organizational Impact and Conclusion

The "Voice" Effect and Organizational Health

The decision to pursue union avoidance has profound organizational ripple effects. Academic research, notably by Freeman and Medoff, highlights the “exit-voice” trade-off.7 Unionized workers, possessing a “voice” mechanism (grievance procedures), are less likely to quit, leading to lower turnover and higher retention of institutional knowledge. By avoiding unions, employers retain control but may suffer higher turnover if they fail to provide an alternative “voice” mechanism.6

Conversely, public sector research suggests that unionization can depress engagement among younger workers who feel stymied by seniority-based promotion systems.49 This supports the “union substitution” strategy: high-performing organizations can avoid unions not by suppression, but by creating a meritocratic culture that rewards performance better than a union contract could.50

Conclusion: The Future of Avoidance

The era of “playbook” union avoidance is ending. The convergence of the Cemex bargaining order, the Johnson Controls reversal threat, and the aggressive enforcement posture of the current NLRB means that the legal risks of “suppression” tactics are at an all-time high.

For the modern enterprise, sustainable union avoidance requires a shift toward Structural Integrity (defensible double-breasting) and Strategic Substitution (removing the cause of unionization). The legal maneuvering of the campaign the “FOE” speeches and the captivate audience meetings is now a path fraught with the risk of mandatory bargaining orders. The only safe strategy in the 2020s is to create a workplace where the union is simply unnecessary.

References

    1. National Labor Relations Act, 29 U.S.C. §§ 151-169 1
    2. 29 U.S.C. § 158(c); NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) 2
    3. Carter, M. (2004). “Union Avoidance Practices: Differential Effects of Three Strategies.” Seminar Research Paper Series. Univ. of Rhode Island. 3
    4. Von Bergen, C.W. “Union Avoidance: Rationale, Strategies, and Practices.”
    5. Kochan, T.A., Katz, H.C., & McKersie, R.B. (1986). The Transformation of American Industrial Relations. Basic Books.
    6. Machin, S., & Wood, S. (2005). “Human Resource Management as a Substitute for Trade Unions in British Workplaces.”
    7. Freeman, R.B., & Medoff, J.L. (1984). What Do Unions Do?. 7
    8. “Interfering with employee rights (Section 7 & 8(a)(1)).”
    9. Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023).
    10. “Board Issues Decision Announcing New Framework for Union Representation.” (2023). 9
    11. NLRB General Counsel Memo 24-01. 31
    12. Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (2023). 12
    13. “The Double-Breasted Dilemma.” (2025). 15
    14. “Formation of Double-Breasted Operations.” 13
    15. Troutman Pepper. “Considerations on Dual Shops Following Navillus.” 17
    16. Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489 (5th Cir. 1982). 16
    17. Navillus Tile, Inc. / US District Court Decisions. 17
    18. “Decertification Election: Bars to Election.” 18
    19. Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). 20
    20. Johnson Controls, Inc., 368 NLRB No. 20 (2019). 24
    21. Levitz Furniture Co. (Analysis of “Peril” Rule). 19
    22. Fisher Phillips. “NLRB Streamlines Process for Employers to Withdraw Union Recognition.” 25
    23. Thomson Reuters. “Johnson Controls Overrules Levitz Furniture.” 22
    24. Johnson Controls, Inc. (Anticipatory Withdrawal Framework). 24
    25. “The NLRB Process.” 51
    26. NLRB General Counsel Memo 21-04 (“Mandatory Submissions to Advice”). 26
    27. Jackson Lewis. “Board Decision – CEMEX Construction Materials.” 10
    28. Joy Silk Mills, Inc., 85 NLRB 1263 (1949). 32
    29. Seyfarth Shaw. “NLRB GC Abruzzo Charges Forward with Memos.” 28
    30. “Decertification Election.” 30
    31. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). 2
    32. Missouri Law Review. “Joy Silk Revisited: Gissel, Cemex, and Remedial Bargaining Orders.” 33
    33. “NLRB’s Cemex Rule Lives Up To Its Billing.” 52
    34. “Red Rock and a Hard Place: NLRB Issues First Post-Cemex Bargaining Order.” 11
    35. LRI Online. “Union Avoidance.” 37
    36. “Interfering with employee rights.” 1
    37. “Employer’s Duty to Provide Information.” 53
    38. “Fear at Work: How Employers Scare Workers.” 40
    39. NLRB General Counsel Memo 22-04 (“Captive Audience Meetings”).
    40. Hensel, S. “N.L.R.B. GC Memo 22-04.” DCBA.
    41. Butler Snow. “Union Avoidance and Contract Negotiation.” 41
    42. Mulhall v. UNITE HERE Local 355, 667 F.3d 1211 (11th Cir. 2012). 46
    43. Michigan Bar Journal. “Employees May Challenge Neutrality and Card Check Agreements.” 43
    44. “Private Sector Unions and Corporate Legal Erosion.” 44
    45. Mulhall v. UNITE HERE (Supreme Court Cert. Granted/Dismissed). 47
    46. Hotel Emps. & Rest. Emps. Union, Local 57 v. Sage Hospitality Res., LLC, 390 F.3d 206 (3d Cir. 2004). 45
    47. “US Supreme Court Will Review Neutrality Agreements.” 48
    48. Ogletree Deakins. “Common Neutrality Agreement Provisions.” 54
    49. Mercatus Center. “Do More Powerful Unions Generate Better Pro-Worker Outcomes?” 5
    50. Von Bergen, C.W. “Union Avoidance: Rationale, Strategies, and Practices.”

Works cited

    1. National Labor Relations Act, accessed November 29, 2025, https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act
    2. NLRB v. Gissel Packing Co., Inc. | 395 U.S. 575 (1969) – Justia U.S. Supreme Court Center, accessed November 29, 2025, https://supreme.justia.com/cases/federal/us/395/575/
    3. Union Avoidance Practices: Differential Effects of Three Strategies – DigitalCommons@URI, accessed November 29, 2025, https://digitalcommons.uri.edu/cgi/viewcontent.cgi?article=1001&context=lrc_paper_series
    4. How Unions Target Your Company’s Unsatisfied Employees – LaborSoft, accessed November 29, 2025, https://www.laborsoft.com/blog/how-unions-target-your-employees
    5. Do More Powerful Unions Generate Better Pro-Worker Outcomes? | Mercatus Center, accessed November 29, 2025, https://www.mercatus.org/research/working-papers/do-more-powerful-unions-generate-better-pro-worker-outcomes
    6. Unions are having a moment. Here’s how that can be good for labor and business., accessed November 29, 2025, https://www.ilr.cornell.edu/scheinman-institute/blog/outreach/unions-are-having-moment-heres-how-can-be-good-labor-and-business
    7. Unions, Worker Voice, and Management Practices: Implications for a High-Productivity, High-Wage Economy, accessed November 29, 2025, https://www.rsfjournal.org/content/5/5/88
    8. Basic Guide to the National Labor Relations Act, accessed November 29, 2025, https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3024/basicguide.pdf
    9. Board Issues Decision Announcing New Framework for Union Representation Proceedings, accessed November 29, 2025, https://www.nlrb.gov/news-outreach/news-story/board-issues-decision-announcing-new-framework-for-union-representation
    10. 372 NLRB No. 130 Cemex Construction Materials Pacific, LLC and In- ternational Brotherhood of Teamsters. Cases 28–CA–23011, accessed November 29, 2025, https://www.jacksonlewis.com/sites/default/files/2023-08/Board%20Decision-CEMEX%20Construction%20Materials.pdf
    11. Red Rock and a Hard Place: NLRB Issues First Post-Cemex Bargaining Order – Proskauer, accessed November 29, 2025, https://www.proskauer.com/blog/red-rock-and-a-hard-place-nlrb-issues-first-post-cemex-bargaining-order
    12. New NLRB Rules Favor Mandatory Union Recognition & Limit …, accessed November 29, 2025, https://www.morganlewis.com/pubs/2023/08/new-nlrb-rules-favor-mandatory-union-recognition-limit-employee-voting-in-secret-ballot-elections
    13. Formation of Double-Breasted Operations – AGC, accessed November 29, 2025, https://www.agc.org/sites/default/files/Galleries/labor_member_files/Formation%20of%20Double-Breasted%20Operations.pdf
    14. Defending Union Alter Ego Claims Defense Attorney Las Vegas – The Wright Law Group, accessed November 29, 2025, https://wrightlawgroupnv.com/defending-union-alter-ego-claims/
    15. The Double-Breasted Dilemma – ConsensusDocs, accessed November 29, 2025, https://www.consensusdocs.org/news/the-double-breasted-dilemma/
    16. National Labor Relations Board, Petitioner, v. al Bryant, Inc., Harrisburg Drywall and Constructioncorporation, and al Bryant Associates, Inc., Respondents, 711 F.2d 543 (3d Cir. 1983) – Justia Law, accessed November 29, 2025, https://law.justia.com/cases/federal/appellate-courts/F2/711/543/302276/
    17. Considerations on Dual-Shops Following ‘Navillus’ – Troutman Pepper Locke, accessed November 29, 2025, https://www.troutman.com/insights/considerations-on-dual-shops-following-navillus/
    18. Employer Cannot Withdraw Recognition of Union During Protected Certification Year, accessed November 29, 2025, https://ogletree.com/insights-resources/blog-posts/employer-cannot-withdraw-recognition-of-union-during-protected-certification-year/
    19. NLRB Looks to Make It Harder for Employees to Decertify Unions | Epstein Becker Green, accessed November 29, 2025, https://www.managementmemo.com/nlrb-looks-to-make-it-harder-for-employees-to-decertify-unions
    20. NLRB Adopts New Framework in Cases of Employer Withdrawal of Union Recognition, accessed November 29, 2025, https://www.hunton.com/hunton-employment-labor-perspectives/nlrb-adopts-new-framework-in-cases-of-employer-withdrawal-of-union-recognition
    21. Leggett & Platt, Inc. v. National Labor Relations Board, No. 20-1060 (D.C. Cir. 2021) :: Justia, accessed November 29, 2025, https://law.justia.com/cases/federal/appellate-courts/cadc/20-1060/20-1060-2021-02-19.html
    22. NLRB Revises Standard for Evaluating Anticipatory Withdrawals of Recognition of Unions Losing Majority Support | Practical Law, accessed November 29, 2025, https://anzlaw.thomsonreuters.com/w-021-1613?transitionType=Default&contextData=(sc.Default)
    23. Board Invokes Sensibility When Determining When An Employer Can Withdraw Recognition From A Union Upon Expiration Of A CBA | Management Writes: Practical Labor Law Updates, accessed November 29, 2025, https://www.employerlaborrelations.com/2019/07/25/board-invokes-sensibility-when-determining-when-an-employer-can-withdraw-recognition-from-a-union-upon-expiration-of-a-cba/
    24. Notable Board Decisions – National Labor Relations Board, accessed November 29, 2025, https://www.nlrb.gov/cases-decisions/decisions/notable-board-decisions
    25. NLRB Streamlines Process For Employers To Withdraw Union Recognition – Fisher Phillips, accessed November 29, 2025, https://www.fisherphillips.com/en/news-insights/nlrb-streamlines-process-for-employers-to-withdraw-union-recognition-1.html
    26. OFFICE OF THE GENERAL COUNSEL MEMORANDUM GC 21-04 August 12, 2021 – NLRB Research, accessed November 29, 2025, https://nlrbresearch.com/pdfs/09031d4583506e0c.pdf
    27. NLRB General Counsel Issues Memo Updating Prosecutorial Priorities, accessed November 29, 2025, https://www.laboremploymentlawblog.com/2023/05/articles/national-labor-relations-act/nlrb-general-counsel-issues-memo-updating-prosecutorial-priorities/
    28. NLRB GC Abruzzo Charges Forward With Memos Detailing Controversial Labor Agenda, accessed November 29, 2025, https://www.seyfarth.com/news-insights/nlrb-gc-abruzzo-charges-forward-with-memos-detailing-controversial-labor-agenda.html
    29. NLRB’s Pro-Labor General Counsel Issues Memo, accessed November 29, 2025, https://www.callaborlaw.com/blog/nlrbs-pro-labor-general-counsel-issues-memo-compelling-cases-for-centralized-consideration
    30. Decertification Election – National Right to Work Legal Defense Foundation, accessed November 29, 2025, https://www.nrtw.org/decertification-election/
    31. New GC Memo Providing Guidance on Cemex Decision | Labor Relations Update, accessed November 29, 2025, https://www.laborrelationsupdate.com/2023/11/new-gc-memo-providing-guidance-on-cemex-decision/
    32. One Year In, NLRB’s Cemex Rule Lives Up To Its Billing – Law360 Employment Authority – Saul Ewing LLP, accessed November 29, 2025, https://www.saul.com/sites/default/files/documents/2024-08/One%20Year%20In%20NLRB%27s%20Cemex%20Rule%20Lives%20Up%20To%20Its%20Billing%20-%20Law360%20Employment%20Authority.pdf
    33. Joy Silk Revisited: Gissel, Cemex, and Remedial Bargaining Orders – Missouri Law Review, accessed November 29, 2025, https://lawreview.missouri.edu/joy-silk-revisited-gissel-cemex-and-remedial-bargaining-orders/
    34. Red Rock and a Hard Place: NLRB Issues First Post-Cemex Bargaining Order, accessed November 29, 2025, https://www.laborrelationsupdate.com/2024/06/red-rock-and-a-hard-place-nlrb-issues-first-post-cemex-bargaining-order/
    35. Do’s and Don’ts in Union Organizing Campaigns – Reliant Labor Consultants, accessed November 29, 2025, https://www.laborconsultants.org/dos-donts-union-campaign/
    36. How to Avoid Unsavory Union Campaign? Follow These TIPS – HR Daily Advisor, accessed November 29, 2025, https://hrdailyadvisor.com/2019/11/26/how-to-avoid-unsavory-union-campaign-follow-these-tips/
    37. Talking to Your Employees About Unions: The Dos and Don’ts, accessed November 29, 2025, https://rvpadmin.cce.cornell.edu/uploads/doc_1190.pdf
    38. What are my employees’ rights under the National Labor Relations Act (NLRA)? – DOL, accessed November 29, 2025, https://beta.dol.gov/policy-governance/protections-rights/unions-collective-bargaining/employee-rights-nlra
    39. How Neutrality and Card Check Agreements Harm the American Worker – Coalition for a Democratic Workplace, accessed November 29, 2025, https://myprivateballot.com/wp-content/uploads/2023/05/CDW-White-Paper_Neutrality-and-Card-Check-Agreements_May-2023-FINAL.pdf
    40. Fear at work: An inside account of how employers threaten, intimidate, and harass workers to stop them from exercising their right to collective bargaining, accessed November 29, 2025, https://www.epi.org/publication/fear-at-work-how-employers-scare-workers-out-of-unionizing/
    41. Union Avoidance & Contract Negotiation – Butler Snow, accessed November 29, 2025, https://www.butlersnow.com/services/practice-areas/union-avoidance-and-contract-negotiation
    42. Supreme Court To Decide Whether Neutrality Agreements Are Legal Under 66-Year-Old Anti-Bribery Law | Weinberg, Roger & Rosenfeld, accessed November 29, 2025, https://www.unioncounsel.net/private-sector-news/supreme-court-to-decide-whether-neutrality-agreements-are-legal-under-66-year-old-anti-bribery-law
    43. Keeping Neutrality Agreements Neutral – State Bar of Michigan, accessed November 29, 2025, https://www.michbar.org/file/barjournal/article/documents/pdf4article896.pdf
    44. Explaining the erosion of private-sector unions: How corporate practices and legal changes have undercut the ability of workers to organize and bargain | Economic Policy Institute, accessed November 29, 2025, https://www.epi.org/unequalpower/publications/private-sector-unions-corporate-legal-erosion/
    45. Mulhall v. Unite Here Local 355, et al., No. 11-10594 (11th Cir. 2012) – Justia Law, accessed November 29, 2025, https://law.justia.com/cases/federal/appellate-courts/ca11/11-10594/201110594-2012-01-18.html
    46. Eleventh Circuit Holds That Employer Neutrality Agreement May Be A “Thing Of Value” Under LMRA; Creates Circuit Split – Hunton Andrews Kurth LLP, accessed November 29, 2025, https://www.hunton.com/hunton-employment-labor-perspectives/eleventh-circuit-holds-that-employer-neutrality-agreement-may-be-a-thing-of-value-under-lmra-creates-circuit-split
    47. Unite Here Local 355 v. Mulhall | Supreme Court Bulletin – Cornell Law School, accessed November 29, 2025, https://www.law.cornell.edu/supct/cert/12-99
    48. S. Supreme Court Will Review Neutrality Agreements and Promises Between Employers and Unions | Littler, accessed November 29, 2025, https://www.littler.com/news-analysis/asap/us-supreme-court-will-review-neutrality-agreements-and-promises-between
    49. Union Effect on Employment Engagement in the Public Sector: A Study of Head Start Employees – DigitalCommons@Hamline, accessed November 29, 2025, https://digitalcommons.hamline.edu/cgi/viewcontent.cgi?article=1005&context=hsb_all
    50. CALIFORNIA STATE UNIVERSITY, NORTHRIDGE The Impacts of Unions on Employee Performance A graduate project submitted in partial fu, accessed November 29, 2025, https://scholarworks.calstate.edu/downloads/0v8387098
    51. The NLRB Process | National Labor Relations Board, accessed November 29, 2025, https://www.nlrb.gov/resources/nlrb-process
    52. HR Def: Cemex Construction NLRB Decision – Akerman LLP, accessed November 29, 2025, https://www.akerman.com/en/perspectives/hr-def-cemex-construction-nlrb-decision.html
    53. Employer’s Duty to Provide Information under the National Labor Relations Act Checklist | Proskauer, accessed November 29, 2025, https://www.proskauer.com/uploads/employers-duty-to-provide-information-under-the-national-labor-relations-act-checklist
    54. Common Neutrality Agreement Provisions Between Union and Hotel May Violate the NLRA, accessed November 29, 2025, https://ogletree.com/insights-resources/blog-posts/common-neutrality-agreement-provisions-between-union-and-hotel-may-violate-the-nlra/