The Volkswagen case shows why American labor law is broken

An ill-fated campaign. (Lydia DePillis/Washington Post) An ill-fated campaign. (By Lydia DePillis/The Washington Post)

Ten days after losing a historic union election at Volkswagen's plant in Chattanooga, Tenn., in mid-February -- more than enough time to figure out its chances of actually winning -- the United Auto Workers vowed to seek redress from the National Labor Relations Board, citing "outrageous" interference by politicians and outside groups. In the months since, new revelations surfaced that Tennessee offered Volkswagen a $300 million incentive package allegedly contingent on the outcome of the vote, and the UAW's appeal was seen as a key test for unions' ability to run organizing campaigns in the anti-labor South.

But on Monday morning, hours before the first hearing before an administrative law judge in Chattanooga, the UAW withdrew its case. Multiple outlets noted that even supporters were surprised by the reversal. Why build up the appeal so much only to yank it at the last minute and leave the question unresolved?

The real answer says a lot about the state of the law that governs the relationship between workers and employers in America.

First, though, let's consider the political explanations. The UAW says it made the decision last week, when U.S. Sen. Bob Corker (R.-Tenn.), Gov. Bill Haslam, and Americans for Tax Reform president Grover Norquist refused to testify at the hearing. "It became obvious to us that they were going to become objectionists and not allow the process to go forward in a transparent way," UAW Southern Region organizing director Gary Casteel told Reuters. "When that happens, these things can drag on for years." In a statement, UAW president Bob King said the union was "ready to put February's tainted election in the rearview mirror."

UAW skeptics, on the other hand, say that the union wouldn't have won a new election even if it got the NLRB to order one. Also, as Clark University industrial relations professor Gary Chaison pointed out, a ruling saying that outside interference by politicians was out of bounds might hurt unions in places where politicians are actually more likely to support unions than oppose them.

But there's actually no telling whether there would have been a conclusive outcome at all. That's because the National Labor Relations Act, which hasn't been substantively updated since the 1950s, isn't equipped to handle a changing workplace in which actors outside the traditional employer-worker relationship -- whether meddling politicians or independent contractors -- are starting to matter a whole lot more.

"The fundamental thing here is that the law doesn't address this," said Fred Feinstein, who served as the NLRB's general counsel from 1994 to 1999 and now advises unions. "All the UAW could do is say, 'Look, this really isn't fair.' The notion that this is a law that promotes unionization is no longer the case. By and large, the law doesn't really help them." Realizing that they're unlikely to win, he said, unions will often use board proceedings to elevate their concerns, and then either settle or bail entirely before going to trial. For example, in 2013, fully one-third of election petitions were withdrawn before elections were even held, according to NLRB.

How did that happen? It's a long, complicated story, perhaps best laid out by law professors Catherine Fisk and Deborah Malamud in this 2009 paper on the NLRB's dysfunction. In a nutshell, the board has isolated itself from the social science research capacity of more robust government institutions like the Department of Labor, and successive White Houses have appointed lawyers to the board almost exclusively -- and they are less likely to think holistically about the problems the modern worker faces. Especially under Republican administrations, the board has narrowed the scope of activities protected by the law, making it more difficult for those outside unions -- now the vast majority of workers, after a half-century of labor's decline -- to organize effectively.

"As a result of all this, the NLRB is independent, but it is also ill-informed and without influence in the shaping of national labor policy," Fisk and Malamud wrote. "The qualities that make the NLRB seem most like a specialized labor court and least like a modern administrative agency -- its reactiveness, its lack of reliance on data, and its practice of deciding all issues based on adjudication of individual cases -- have contributed towards its seeming inability to be proactive in responding to massive changes in the economy and labor relations over the course of seventy five years."

(Meanwhile, the NLRB suffered from years of partisan squabbling over nominations that left the agency with a dubiously legal quorum for over a decade, until five nominees were finally confirmed last July).

On the flip side, unions aren't the only ones worried about the fact that an increasing amount of labor activism is happening outside the NLRB's control. Last week, the U.S. Chamber of Commerce hosted a panel to discuss the growth of "worker centers," which are informal groups that organize for employee protections without the rules that would apply to unions. The Coalition of Immokalee Workers, for example, organizes actions at supermarkets to raise awareness of low pay and terrible conditions for immigrant farm workers.

"I think what we're seeing is a real transformation of organized labor into some other way to win the hearts and minds of the work force," said Stefan Marculewicz, an attorney with the management-side law firm Littler Mendelson. "These organizations are trying to skirt being a labor organization, but really that's what they are."

Of course, all that poses a slightly different set of questions from the one the UAW faces in Chattanooga. But the use of the NLRB largely as a platform for press attention, with the full recognition that going through the whole process would likely be a waste of time, is more an indication of the outmoded state of the agency than a statement of who is right or wrong. And even a Congressional inquiry into the Volkswagen vote, which the UAW is banking on to keep the pressure up, is unlikely to fix the larger problem.

Lydia DePillis is a reporter focusing on labor, business, and housing. She previously worked at The New Republic and the Washington City Paper. She's from Seattle.

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