By: Jonathan T. Swain

By now, most interested persons are aware that on February 14, 2014, the UAW suffered an unprecedented and largely unforeseen defeat at the hands of a majority of employees at the Volkswagen plant in Chattanooga, Tennessee. The NLRB supervised the secret ballot election which the union lost by a margin of 712 to 626.

What was so surprising about the outcome was that it was VW who had filed for the election and to a very fast turnaround of nine days from petition to vote. Further, VW had agreed to be absolutely neutral and granted the union unprecedented access to its workforce.

But, what was perhaps equally unprecedented, were the comments by local, state and even national politicians that ran the gamut from President Obama’s remarks in support of the union to predictions by state and local politicians of the loss of government financial support for the plant’s future. The coup de grace may have been the assurance by U.S. Senator Bob Corker (R-TN) that Volkswagen would place important new work at the plant if the union bid for representation was rejected, a claim that VW promptly denied.

Did these statements by non-company persons opposing the union influence the outcome of the election? Well, the union certainly thinks so. It has filed objections to the outcome of the election alleging that these comments, admittedly made by persons who were not agents of the employer, destroyed the so-called “laboratory conditions” for an election that the NLRB demands. Notably, several VW workers who opposed the union have moved to intervene in the objection proceedings.

Virtually everyone can agree on two things: One, this loss by the UAW in the opening battle of its current “Southern Strategy” represents a devastating blow to the union if it cannot be reversed; and, two, it has a steep legal hill to climb in achieving a re-vote.

So what can we say about what happened in Chattanooga and how can we analyze the union’s chances? The union seems to have been caught flatfooted by the ferocity of the opposition. The UAW clearly thought that VW’s neutrality, coupled with the union’s nearly unprecedented access to the workforce, would be enough to secure victory. But, town hall style meetings, commercials, websites, and literature warning of unionization all came together virtually overnight and the union seems to have been unprepared and unable to adequately respond. After all, what do you say to billboards near the plant that link the UAW to Detroit’s current economy?

But outside groups opposing the union, and their message of union avoidance, are protected by the First Amendment, and opinion for or against the union is just that, opinion.

Likewise, Senator Corker, as well as the state and local politicians who spoke out, did not check their First Amendment rights at the door when they took office. Don’t workers deserve to know what a given politician thinks about future government policymaking in the face of unionization? After all, in the past, haven’t local politicians eagerly supported unions?

Yet clearly what Senator Corker said, if spoken by the employer, would have been not only objectionable, but unlawful and likely would have resulted in a bargaining order. VW denied the senator’s statements; isn’t that enough?

In the end, what Senator Corker and the other politicians said was not unlawful. It was protected free speech and, for the most part, opinion. But the UAW will argue that Senator Corker’s comments that he had been “assured” by VW of new business if the union was defeated is precisely the type of conduct or interference that the principle of “laboratory conditions” is designed to protect against. How they overcome the fact of the employer’s denials demonstrates what a steep hill the union has to climb. But the vote was close and if 44 more people had voted for the union it would have won!

We also have a very new NLRB, all of whom were appointed by President Obama. They are currently trying to adjust the rules for future elections to more favor unions. I predict that what happened in Chattanooga will not sit well with a majority of the Board. The question is whether they see themselves as having the legal authority to act. Stay tuned!