What Are the UAW’s Legal Options After the Volkswagen Defeat?

Moshe Z. Marvit

UAW lost its bid to represent Volkswagen workers in Chattanooga, Tennessee, but there may be other legal options. (Mike Continental /Flickr )

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 (324149) 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.

UAW is a web­site spon­sor of In These Times. Spon­sors have no role in edi­to­r­i­al content.

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.

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