Volkswagen has tried to kill its employees’ union organizing drive in a remarkably brazen fashion, and all too predictably, the Trump Labor Board has acted as its accomplice.

Back in 2015, after a failed attempt to organize all 1,300 production and maintenance workers at the Volkswagen plant in Chattanooga, Tennessee, the United Auto Workers (UAW) filed a petition to represent a unit of 162 skilled maintenance workers.  The NLRB had long recognized the appropriateness of separate skilled maintenance units, but Volkswagen nevertheless insisted that the smallest appropriate unit consisted of all 1,300 workers at the plant.  The NLRB, back in its pre-Trump days, rejected Volkswagen’s argument, and in December 2015, the skilled maintenance workers voted 108 to 44 in favor of representation.  Despite the overwhelming vote in favor of unionization, Volkswagen simply refused to bargain with the UAW.  This meant that the UAW had to file a charge with the NLRB, wait for the Board to rule on the charge, and then wait for a circuit court order enforcing the NLRB’s ruling.  In December 2017, after the case was fully briefed at the D.C. Circuit court, the NLRB issued its decision in PCC Structurals, changing the standard for making bargaining unit determinations.  This led the court to remand the case back to the NLRB.

While the Volkswagen workers were waiting for the legal process to end, they continued their organizing efforts and by April of this year, the workers were ready to seek a plantwide election.  As soon as the UAW filed its petition for the plantwide election, it notified Volkswagen that it was disclaiming interest in representing the skilled maintenance unit.  In other words, the UAW did exactly what Volkswagen had been asking it to do for the previous 3 ½ years.  So, Volkswagen should have been happy to let the election in the plantwide unit forward.  But, instead of letting the workers vote, Volkswagen argued that the petition was barred by the earlier certification of the skilled maintenance unit.  The NLRA provides that no election can take place “in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held.”  When an employer goes to court to challenge a union’s certification, the Board has long held that the twelve months doesn’t start until the employer first sits down to bargain with the union.  Volkswagen argued that because it had (illegally) refused to bargain with the UAW, the one-year period never started, and thus the new petition was barred.

Even leaving aside the brazenness of this argument, the Board should have promptly dismissed it as meritless.  Sixty years ago, in Thiokol Chemical Corp., the Board held that where the prior election was in a smaller unit, it will not bar those employees from participating in an election in a larger unit.  That longstanding interpretation is based on a straightforward analysis of the statutory text – an election is barred for twelve months in a bargaining unit or a subdivision of a bargaining unit where a prior election took place, but not where the prior election only included a subdivision of the bargaining unit.  Of course, in considering Volkswagen’s argument, it’s almost impossible to ignore the sheer chutzpah Volkswagen has displayed in even raising this issue.  The skilled maintenance workers did not vote less than a year ago.  Instead they voted 3 ½ years ago.  The Board has explained that the reason it extends the certification year when an employer refuses to bargain is to “prevent an employer from knowing that if he dillydallies or subtly undermines union strength, he may erode that strength and relieve himself of his duty to bargain.”  There is simply no reason to apply that rule here, particularly where the workers are seeking an election in the unit that Volkswagen has been insisting upon all along.

In its effort to stop an election from going forward in the plantwide unit, Volkswagen filed an “emergency” motion to dismiss the petition.  When the Regional Director (a civil servant) deferred ruling on the motion, Volkswagen filed a request for review with the Trump-dominated NLRB.  Without any explanation, on May 3rd, the Board issued an order staying all proceedings.  Perhaps, when the time comes for the Board to explain itself, it will acknowledge that the election must go forward.  But in the meantime, the Trump appointees have bought Volkswagen more time to engage in tactics like bringing in the Republican Governor to conduct an anti-union captive audience meeting.  The conventional wisdom is that delaying an election is an effective tactic to derail a union organizing drive.  But, maybe the Volkswagen workers will realize that the company must really be scared of the workers’ power if it will resort to such desperate measures to stop the union vote.