After employees at a Volkswagen plant in Chattanooga, Tenn. narrowly voted against joining the United Auto Workers a couple weeks ago, union officials vowed the fight wasn't over: Outside groups had muddled the results with "threats and intimidation," they said, and the election shouldn't stand. On Friday, they lodged a formal objection with the National Labor Relations Board, asking it to hold the whole thing over again.
It's one of the most important union battles of this young century, given how much the UAW has staked on organizing Volkswagen for its strategy to take back the South, which has lured dozens of foreign automakers over the years by promising freedom from pesky labor unions. And it's one the UAW should have won: In an extremely rare circumstance, Volkswagen actually supported organization as a means to create the kind of collaborative management structure that exists in the rest of its factories. It even jointly filed the objection with the UAW.
So do Volkswagen and the union have a chance? Well, maybe -- but it's going to be a pretty high bar to clear, because politicians typically have wide latitude to say what they want about whether or not a company should go union.
The case isn't clear cut, since there's nothing on the books that matches the circumstances in Chattanooga. Although companies sometimes sign agreements promising to stay neutral, an employer that's actually supporting the union is almost unheard of.
However, the Board has seen the reverse situation, in which politicians endorsed a union. In 2011, for example, the Communications Workers of America won an election at Affiliated Computer Services, which New York State had retained to set up its EZPass system for road tolls. The company objected, saying that a U.S. congressman and a New York State senator had influenced the election by making statements in favor of the union -- and also by pointing out that they sat on committees that oversaw the company's business.
The Board disagreed, ruling that “public officials, even public officials involved in the regulation of the employer’s industry, like other third parties, are not required to remain neutral and may properly seek to persuade employees.”
Normally, says management-side labor attorney Charles Cohen -- a former NLRB member himself -- the Board needs to see that the third party was somehow in cahoots with the company in order to call for a do-over, which is impossible in this situation since the company and the third parties were on different sides.
"Before the NLRB were to find that politicians or groups interfered with the conditions of the election, it would typically have to establish that the politicians or groups were acting as agents of the employer," Cohen says. "Without establishing that an agency relationship existed--which would require evidence--it is highly unlikely that an election would be overturned and rerun.
The UAW, though, is aiming to prove something different: Not simply that politicians made statements about the union drive either way, but that they actively threatened to cause trouble for the company if its employees went union, and had the authority to back it up. That's the substance of the Tennessee GOP's prediction that tax incentives for further expansion at Volkswagen would be jeopardized if the UAW successfully organized it. In addition, the UAW claims, Sen. Bob Corker's (R) "assurance" that Volkswagen would make its new line of SUVs in Chattanooga if the union were rejected created a situation in which voting for the union put future growth at the plant -- and, to a certain degree, a worker's job security -- at risk.
"What makes this case difficult is, the Board doesn't have any jurisdiction over politicians, or anybody outside the plant. So the Board can't order them to not say these things," says Fred Feinstein, who served as the NLRB's general counsel from 1994 to 1999 and now advises unions. "All the Board is focused on is that this is a fair election, and what the UAW is saying here is that it's not that kind of case. What you're looking at here is a question of threats."
There's some precedent for that, too -- in 2000, the Board ruled that politicians in the Northern Mariana Islands had sullied an election by targeting non-residents who voted to join a hotel union. The D.C. Circuit reversed its decision for lack of evidence, but didn't touch the principle that lawmakers had the power to create an untenable environment of fear.
That's why the evidence part will be key here. In order to prove that the threats actually moved the dial, the UAW will likely have to find workers who'll say they felt threatened enough to vote against the union on those grounds. That might prove difficult, considering the whole thing was supposed to be a secret ballot. Also, In These Times reports that workers voted against the union for lots of reasons, including its establishment of a two-tiered wage system for new hires.
Even if the union does get a new election, the question remains: Is it possible to undo the damage anyway? The state's Republican politicians have not retracted statements about how tax incentives might be hard to secure if Volkswagen goes union. Corker, after the objection was filed, only doubled down on his insistence that a new line of SUVs depended on whether the union was successful. With the conditions having been set, the union's going to have to make some great new arguments to get a different result.