Volkswagen vote: Could UAW appeal succeed?

The United Auto Workers (UAW) could succeed in its bid to overturn last week’s union election defeat in Tennessee, experts say.

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Attorneys and former officials with the National Labor Relations Board (NLRB) say there is precedent for federal officials to toss the results on the grounds that workers felt intimated by politicians.

At the heart of the UAW’s appeal are statements made by Sen. Bob CorkerRobert (Bob) Phillips CorkerTrump's GOP impeachment firewall holds strong George Conway hits Republicans for not saying Trump's name while criticizing policy Trump announces, endorses ambassador to Japan's Tennessee Senate bid MORE (R-Tenn.) and state elected officials in Tennessee that the UAW says amounted to “a coordinated and widely-publicized coercive campaign” to stop the unionization of the Volkswagen plant in Chattanooga.

Experts said the case harkens back to a fight involving a resort hotel located in the Commonwealth of the Northern Mariana Islands (CNMI). In 1995, a union sought to include nonresident workers in its ranks, but prominent CNMI lawmakers objected to the union election and began targeting nonresidents with proposed legislation. The union lost the election.

Citing intimidation, the NLRB overturned the first election and authorized a second one, which the union then won.

Yet in 2000, the U.S. Court of Appeals for the D.C. Circuit ruled against the board, saying it did not have sufficient evidence of intimidation by outside parties.

Experts say the Auto Workers would have to provide strong evidence workers felt intimidated in order for its appeal to succeed.

“The standard for third-party misconduct is higher than party misconduct for setting aside a union election,” said Marshall Babson, a partner at Seyfarth Shaw, who represents employers. “You must have demonstrable evidence that the employees were in fear that adverse consequences would flow from supporting the union or not supporting the union depending on what was said.”

The union election in Chattanooga was unusual in that management was not actively campaigning against the UAW. Volkswagen said it was neutral and allowed union organizers to talk to workers on the factory floor.

But outside political groups, fearing the vote could trigger a wave of union organizing across the South, sprung into action, criticizing the UAW on social media and buying up billboard ads around Chattanooga.

In addition, state legislators said they would end tax credits for Volkswagen if the plant went union. Corker, a former Chattanooga mayor who helped bring the German auto company to the city, said he had heard Volkswagen would start a new mid-size SUV production line at the Tennessee plant if workers voted against the UAW.

“You have to nail down who said what and to whom. You are not talking about a union making a threat or an employer making a threat. You are talking about a third party, an outsider,” said Babson, a Democrat who was appointed to the NLRB by President Reagan.

The UAW argues its filings with the NLRB “detail a coordinated and widely publicized coercive campaign conducted by politicians and outside organizations to deprive Volkswagen workers of their federally protected right to join a union.”

Corker, who said he was “thrilled” with the 712-626 vote against the UAW, called the union’s challenge unfortunate and said it “may slow down Volkswagen’s final discussions on the new SUV line.”

“This complaint affirms the point many of us have been making: that the UAW is only interested in its own survival and not the interests of the great employees at Chattanooga’s Volkswagen facility nor the company for which they work,” Corker said.

Members of the NLRB could run the risk of violating Corker and other lawmakers’ free speech rights if they side with the UAW.

In cases involving lawmakers endorsing unions in past elections, the courts have said that public officials are not required to remain neutral and can seek to persuade workers one way or the other.

“The First Amendment guarantees people free speech rights. It sets an extremely high bar if somebody wants to say an elected official can't say something,” said a lawyer who represents employers in labor law disputes.

“This is a big-deal case. If they [the NLRB] find these statements by elected officials interfered with a union election, I think it would be unprecedented. That would be highly unusual.” 

Fred Feinstein, former NLRB general counsel during the Clinton administration, said the labor board has no power over politicians but will weigh their actions on workers instead.

“The UAW has a case for sure. It remains to be seen what way the board will go,” said Feinstein, who also sits on the UAW Public Review Board.

“The NLRB cannot order a politician or anybody outside of the employment relationship to do anything. What they will look at is if workers felt threatened and coerced, at the effects of these statements.”

The NLRB plans to review the UAW’s appeal, otherwise known as its “objections,” and could order a regional hearing on the case and then possibly another union election.

“There is a pretty heavy burden to carry here but all those comments are going to be carefully weighed to see if they had an impact on how the workers voted,” Babson said.

— This story was updated at 5:41 p.m. to more accurately reflect Sen. Corker's statement before the union election.