On Friday, the United Auto Workers (UAW) lost, by 86 votes, a closely watched election to represent Volkswagen workers in Chattanooga, Tenn. Not since Lyndon Johnson’s 87-vote victory in the 1948 Senate primary race has there been so much attention paid to 80-odd votes in the South, nor so many people crying that a Southern election has been stolen. The UAW and many progressives are blaming the loss on anti-union statements by right-wing politicians in the days leading up to the vote.
Now, a debate is raging on what UAW’s next legal and organizing steps should be in light of very public defeat. According to labor law experts, the UAW has several legal options available.
One is to ask the Nation Labor Relations Board (NLRB) to set aside the election results due to coercive outside interference. For instance, the UAW could point to a not-so-veiled threat by State Senator Bo Watson in a press conference two days before voting began. “Should the workers at Volkswagen choose to be represented by the United Auto Workers, then I believe any additional incentives from the citizens of the state of Tennessee for expansion or otherwise will have a very tough time passing the Tennessee Senate,” Watson said. Three other prominent Republican politicians in the state — Tennessee House Majority Leader Gerald McCormick along with Jack Johnson and Mark Green, the chairman and vice-chairman, respectively, of the state Senate Commerce and Labor Committee—weighed in with warnings of the consequences to the community and state should the workers vote to unionize.
The most egregious comment, however, came from U.S. Sen. Bob Corker on the first day of the election. “I’ve had conversations today and based on those am assured that should the workers vote against the UAW, Volkswagen will announce in the coming weeks that it will manufacture its new mid-size SUV here in Chattanooga,” said Corker. After Frank Fischer, the top executive at Volkswagen Chattanooga, countered that there was no connection between the union vote and VW’s decision about where to build the new SUV Corker maintained that his information came from the real decision-makers and that it was “true and factual.”
This intervention by the state’s U.S. Senator on the first day of the election may be grounds for the NLRB to set aside the results. One approach would be for the UAW to argue that Sen. Corker’s statement constituted an unfair labor practice by the company if it could prove he was an agent of Volkswagen. This could put Corker in an awkward position during an examination by the NLRB, with the choice of either giving up his source and risk implicating Volkswagen, or saying that he fabricated his insider knowledge. If an unfair labor practice was found, then the standard for setting aside the election would be lower because such a finding would show that the election was tainted. If the unfair labor practice were so egregious that it made the possibility of conducting a new fair election unlikely, then the Board could impose an order requiring the company to bargain with the union.
However, given the difficulty of proving Corker was acting as an agent of Volkswagen, it is unlikely that an unfair labor practice attributable to the company will be found here, let alone one that would warrant the relatively extreme measure of issuing a bargaining order.
But Indiana University law professor Kenneth Dau-Schmidt notes that UAW could make a different legal case that the election should be set aside, by arguing that the remarks by outsiders “upset laboratory conditions” for the election. “You don’t need an unfair labor practice to upset laboratory conditions,” Dau-Schmidt explains. “If in fact [Senator Corker] made fraudulent statements with the intent of intimidating workers, that would be a violation of laboratory conditions.”
Though Dau-Schmidt acknowledges that this argument has little legal precedent with regard to third party elected officials, violations of laboratory conditions have been used successfully in the past to redo election. The concept was established in a case called General Shoe which came before the Labor Board over 65 years ago in Tennessee, just a few hours drive from the current Chattanooga plant. In its ruling, the NLRB laid out a vision of what union elections were supposed to be:
In election proceedings, it is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish those conditions; it is also our duty to determine whether they have been fulfilled. When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again.
In order to determine whether the Board should set aside an election based on upset laboratory conditions stemming from third-party threats, the conduct must be “so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.” The Board has stated that conduct by a third-party must be more egregious than by one of the parties to set aside an election, or else there may become an invitation for outside mischief.
Here the Labor Board would apply a five-factor test to Senator Corker’s statements, which would consider “(1) the nature of the threat itself; (2) whether it encompassed the entire [bargaining] unit; (3) the extent of dissemination; (4) whether the person making the threat was capable of carrying it out, and whether it is likely that employees acted in fear of that capability; and (5) whether the threat was made or revived at or near the time of the election.” Certainly, a U.S. Senator’s statement to the entire bargaining unit on the day of the election that he had inside knowledge that a “yes” vote would threaten future jobs would appear to satisfy the NLRB’s test. However, this is largely uncharted terrain.
Ironically, calls to set aside election results due to politicians’ statements have usually been filed by employers when pro-union politicians pass resolutions or make other statements in favor of unionization. In one such case involving UAW from 2008, three state and federal elected officials presented a document at a press event 6 days before an election, stating that they had examined signed authorization cards and concluded that a majority of the bargaining unit at Trump Plaza Hotel and Casino had authorized the UAW to represent them. The Board held that only a few of the employees saw the document, that reasonable employees would recognize the documents as expressions of opinion, and that the union’s margin of victory (324−149) all favored leaving the election results in place.
In another case involving the UAW, Saint-Gobain Abrasives sought to set aside an election after Congressman Jim McGovern sent a letter to all employees in the bargaining unit countering the legal validity of a statement made by the company. The company refused to debate the union over the issue of organizing, and stated that it was barred from doing so under federal labor law. Congressman McGovern responded in a relatively uncontroversial fashion, stating that the law allowed the company to state its opinion, and the company had chosen not to debate the issues. But the company argued that his statement constituted third-party interference on behalf of the union. The NLRB held that there was no evidence that employees would confuse McGovern’s statements for those of the Labor Board, and therefore there was no cause to set aside the election. In dissent, Republican Board Chairman Hurtgen wrote that, “My view is simply that a Congressman should also stay away from that issue in the context of proparty comments in an ongoing organizational campaign. The danger is that employees are likely to view that statement as definitive. After all, it comes from a Federal official. Conversely, an employer response would not carry the same weight. As to matters of law, employees are likely to view the response of a Federal official as more reliable than that of a private party to the election.” The Chairman further added in a footnote, “It goes without saying that I would apply the same standard to pro-employer comments made by a pro-employer Congressman.”
One of the few cases where the Labor Board set aside an election because a third-party elected official intervened in an improper manner was in 1978. In that case, Columbia Tanning Corp, the employer sought to set aside the election after a Massachusetts state labor commissioner wrote a letter in Greek on official stationary to 26 Greek employees 24 hours before the election, praising the union as “strong and honest.” The Board held that many of the Greek employees who received the letter likely did not know the difference between the state and federal labor boards, and there was a high potential for confusion. (Other cases where courts have set aside an election because of third-party speech largely involve the use of racial and ethnic slurs or threats of violence.)
To those who may argue that it would be unfair to Volkswagen to hold a new election if it did nothing wrong, Dau-Schmidt says that when the Labor Board sets aside an election, “It is not to punish the employer, but rather to get a fair statement from the workers on their preferences.”
The UAW has seven days from the date the votes were tallied to file a motion to set aside the election, meaning it must act by this Friday. The Board would act on an expedited manner to investigate and decide if laboratory conditions were violated. If the UAW chooses not to pursue this route, neither it nor any other union could hold another election for that bargaining unit for another year. Furthermore, it is unlikely that under U.S. labor law, VW could get its desired works council without a union in place.
Another option, less discussed and with less immediate effects comes from IIT Chicago-Kent College of Law professor César Rosado Marzán, who argues that the UAW should take an international legal approach by filing a complaint against the United State in the International Labour Organization (ILO) “for permitting government officials in Tennessee to interfere with workers’ freedom of association rights.” The ILO does not have the authority to set aside the election results, but Rosado Marzán argues that it could ” shape a more favorable terrain for unions in the future.”
“The ILO’s opinion can have a shaming effect on our federal government, which could serve as a springboard for future labor reform,” Rosado Marzán says. “I really think that we need to stop these banana republic types of attacks against freedom of association by American government officials.”
As it stands, none of the viable legal options available to the UAW offer a clear path to victory, but there may be strategic long-term benefits to pushing back against the conservative politicians that sought to coerce workers. The UAW currently has a number of ongoing organizing drives in the South. If the intrusion by Senator Corker and other elected officials is allowed to stand uncontested, then we are likely to see this strategy repeated in Mississippi, Alabama, and any other southern state where a union tries to organize.
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Moshe Z. Marvit is an attorney and fellow with The Century Foundation and the co-author (with Richard Kahlenberg) of the book Why Labor Organizing Should be a Civil Right.