A Rerun Election in Chattanooga?

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

Today is the deadline for the UAW to file objections to the election that was held last week at the Volkswagen plant in Chattanooga, Tennessee.  Moshe Marvit has a helpful analysis of some of the background on this issue, and his piece is worth a read.  But I think there’s another important decision that, in many ways, points the appropriate way forward.  The decision is in a case called Pacific Micronesia Corporation v. NLRB, 219 F.3d 661 (D.C. Cir. 2000).

In Pacific Micronesia (which was called Dai Ichi Hotel when it was before the Board), the union ran an organizing drive at the Dai-Ichi Hotel in the Commonwealth of the Northern Mariana Islands (CNMI).  A majority of the hotel employees were non-residents of the CNMI, and about a week before the election two members of the CNMI House of Representatives announced legislative proposals that targeted nonresident workers.  The majority leader of the CNMI House said that he was going to introduce a bill that would prohibit nonresident workers from spending more than two years in the CNMI.  Another representative declared that he was going to introduce legislation that would prohibit nonresidents from renewing their employment contracts more than twice if they joined labor unions.

The union lost the election and challenged the results.  The Board’s Regional Director found that the legislators’ statements “constitute[d] third party conduct so aggravated that [it] created a general atmosphere of fear, reprisal, and confusion rendering a free election impossible.”  The Board agreed and ordered a second election, which the union won.

When the case went up to the D.C. Circuit, the court of appeals rejected the Board’s conclusion with respect to the election at Dai Ichi.  On the facts of the case before it, the court thought that the Board’s determination that the legislators’ action “rendered impossible the rational, uncoerced selection of a bargaining representative” was not supported by substantial evidence.  But, as a legal matter, the court of appeals left open the possibility that third party statements could constitute grounds for setting aside a union election.

According to the D.C. Circuit, what was needed was “evidence of events from which ‘it reasonably appears that the freedom of choice of the employees could have been interfered with,” and that the “type of evidence required in this [type of] case seems self-evident.”  The court cited a Board case called James Lees & Sons Co., 130 NLRB at 291, for a description of the kind of evidence that would be sufficient: “[N]umerous statements and conduct by various responsible groups and individuals in the community … [that] reasonably convey[] the view to the employees that in the event of unionization the Employer would shut down its plant and other employers would not locate in the community.”

Although the Board would have to weigh the specific evidence in the Chattanooga case, it appears to me that the standard would be met here.  Here’s a summary of that evidence from Marvit’s piece:

State Senator Bo Watson in a press conference two days before voting began [stated:] “Should the workers at Volkswagen choose to be represented by the United Auto Workers, then I believe any additional incentives from the citizens of the state of Tennessee for expansion or otherwise will have a very tough time passing the Tennessee Senate,” Watson said. Three other prominent Republican politicians in the state—Tennessee House Majority Leader Gerald McCormick along with Jack Johnson and Mark Green, the chairman and vice-chairman, respectively, of the state Senate Commerce and Labor Committee—weighed in with warnings of the consequences to the community and state should the workers vote to unionize.

The most egregious comment, however, came from U.S. Sen. Bob Corker on the first day of the election. “I’ve had conversations today and based on those am assured that should the workers vote against the UAW, Volkswagen will announce in the coming weeks that it will manufacture its new mid-size SUV here in Chattanooga,” said Corker. After Frank Fischer, the top executive at Volkswagen Chattanooga, countered that there was no connection between the union vote and VW’s decision about where to build the new SUV Corker maintained that his information came from the real decision-makers and that it was “true and factual.”

Here, then, we have numerous statements from various political leaders in the community conveying the clear message that future employment is tied directly to a no vote on the union question.  That would seem to be provide plausible grounds for setting aside the election.

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