Volkswagen Union Election Dispute Heads to the NLRB

Megan J. Muoio, February 26, 2014.

On February 21, 2014, the United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) filed objections with the National Labor Relations Board regarding the union representation election at the Volkswagen facility in Chattanooga, Tennessee. The effort to unionize the VW plant was supported by both the UAW and Volkswagen, which wanted to set up a works council at the facility. Ultimately, however, the UAW lost the election by a vote of 712 to 626. In its complaint to the NLRB, the UAW claims that improper interference by third-parties prevented a free and fair election at the VW plant. The UAW asks the NLRB to set aside the election and to order a new election.

The election was held on February 12, 13 and 14, 2014. In advance of the election, Tennessee State Senators and other state officials made public comments regarding the prospect of union representation at the VW plant. The State officials commented in the media in the days immediately before the election that financial incentives provided by Tennessee to VW would not be available if the union was elected. These statements were spread throughout social media and widely quoted by third-party interest groups. In addition, during the election, United States Senator Bob Corker made several public statements that Volkswagen would add a new product line at the Chattanooga plant if the union vote was defeated. Although local VW management disavowed these statements, the UAW believed that Senator Corker’s statements were accurate based on his close ties to VW’s corporate representatives and his influence over VW’s business in Tennessee in the past. Senator Corker even issued a rebuttal statement, in which he stated that his statements were “1,000 percent” accurate and that local VW officials had no decision-making authority over whether a new product line would be added to the Chattanooga plant.

The NLRB has fielded numerous complaints involving union representation elections where labor or management interfered with the free and fair conduct of the election, and these disputes often involve threats of violence, intimidation or coercion. However, the union election at VW plant in Tennessee is unusual because both the union and the employer favored unionization, and all of the alleged interference came from third-parties. When evaluating alleged misconduct by third-parties, the NLRB will consider whether the conduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.

Two previous NLRB decisions have involved complaints that third-parties claimed that the election of the union would cause a plant closure and job losses.  In Frates, Inc., the NLRB considered a 1977 election in which the employer’s plan to shut down the plant in the event of the union election was obtained in an unauthorized manner by employees. The NLRB found that the disclosure of the plan (which was genuine but was not supposed to be disclosed), in the absence of a disavowal by the employer, created an atmosphere that prevented a fair election. In contrast, in U.S. Electrical Motors in 1982, the NLRB found that a newspaper story and an editorial stating that the employer might possibly close if the union was elected did not create an atmosphere of fear and reprisal that prevented a fair election. In that case, the same newspaper published an editorial from the employer expressly disavowing the earlier story and editorial.

The current UAW complaint to the NLRB attempts to fall within the rubric of Frates, Inc. The comments by the State officials were not contradicted by VW, possibly because VW is not in control of whether it receives financial incentives from Tennessee. Regarding the statements by Senator Corker that an additional product line would not be implemented if the union was elected, the UAW claims that the local VW representatives’ disavowal of Senator Corker’s allegation was undercut by Senator Corker’s later statements and the perceived close relationship between VW’s corporate representatives and the Senator.

However, even if the NLRB finds that the third-parties created an atmosphere of fear and reprisal regarding the future of the VW plant and its workers, the UAW will have to prove that  the campaign by the third-parties actually affected the votes of enough workers to have changed the ultimate result of the election. The NLRB is more likely to set aside an election result when the vote is very close and there is actual evidence that workers’ votes were directly influenced by the third-party action.  Here, where there is a difference of 86 votes in the union election, it may be difficult for the UAW to convince the NLRB that the alleged misconduct actually affected the election and that the result should be set aside.