A Rerun at VW: The Free Speech Question

Published April 8th, 2014 -  - 04.08.149


The New York Times has more coverage on the UAW election at Volkswagen’s Chattanooga plant.  The latest developments concern new documents showing that Gov. Bill Haslam proposed about $300 million in incentives to encourage VW to add a second production line in Tennessee but made the incentives contingent on the union efforts.  As the document stated: “The incentives described below are subject to works council discussions between the State of Tennessee and VW being concluded to the satisfaction of the State of Tennessee.”  What would satisfy the State of Tennessee was clear from multiple other statements that Haslam and other elected leaders made publicly.  For example, State Senate Speaker Bo Watson had told VW workers: “I believe the members of the Tennessee Senate will not view unionization as in the best interest of Tennessee.  The Governor, the Department of Economic and Community Development, as well as the members of this delegation, will have a difficult time convincing our colleagues to support any Volkswagen incentive package.”

All of this matters because the UAW has objected to the results of the union election in Chattanooga on the ground that statements by elected officials, and their threats to withhold financial incentives in the event the union won, deprived workers of a free and fair election.

The UAW’s argument has, in turn, prompted discussion about whether a rerun election would amount to a deprivation of the elected officials’ right to speak freely about union matters.  Senator Corker, for example, wrote recently that “[i]f the National Labor Relations Board upholds these objections, it would be an unprecedented assault on free speech.”  The Wall Street Journal argued that a rerun in Chattanooga would “deter politicians from speaking up in the future” and would thus “violate[] the First Amendment.”  In the Times story, law professors noted the “tension” between the First Amendment and restrictions on speech during organizing campaigns.

Allowing elected leaders to speak out on union matters is important.  Any elected official who wishes to argue that unions are good or bad for their constituents or their states must have the right to do that.  Gov. Haslam and Speaker Watson thought the UAW would be a disaster for VW, for Chattanooga, and for Tennessee, and they had a right to say so.

But a very specific and important line was crossed during the UAW election.  Namely, Haslam and Corker (and others) not only voiced their opinion on unionization, they also threatened to engage in illegal activity by conditioning financial incentives on VW’s union status.  As the Supreme Court has repeatedly held, states may not use their spending power to implement labor policy; if they do, their actions are preempted by the National Labor Relations Act.  (See, e.g., Wisconsin Dept. of Indus. v. Gould.)  Conditioning financial incentives on the union status of the recipient would be a glaring example of such preempted state action.  (There is a narrow exception for states operating as market participants; an exception not applicable here.  See, e.g., Chamber of Commerce v. Brown.)

In short, it appears that the new documents reveal – as previous statements already suggested – a public policy that was flatly preempted by federal labor law.  And, when elected officials threaten actions illegal under federal law, their threats should not enjoy the kind of protection that other speech about unions must receive.  This means that if the Board orders a new election because officials linked financial incentives to VW’s union status, the rerun would not pose any threat to the kind of speech we should be protecting.

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