• VW in Chattanooga, and a New Cartography for Labor Rights

    by  • February 4, 2014 • Faculty Commentary • 3 Comments

    By César F. Rosado Marzán


    The New York Times reported yesterday that 1,600 Volkswagen (VW) workers in Chattanooga, Tennessee will be voting on Feb. 12-14 on whether or not they want to be represented by the United Auto Workers (UAW). This union election promises to be momentous. It also helps us to see more clearly who’s on the side of workers’ freedom of association rights, and who’s not.

    The election is important because it may add new blood to the UAW. With over 1.5 million members in the late 70s, the union has now been reduced to about 350,000 active members. It needs new blood.

    Second, while the UAW has lost members partly because of the decline of the U.S. auto industry, the U.S. has experienced significant growth in auto manufacturing jobs in the South­ due to European and Asian transplants. However, the UAW has had little luck in organizing in the South—a “right-to-work” territory, recognized as a particularly “hostile terrain” for unions.

    Third, VW has pledged not to oppose the union organizing drive in Chattanooga, in clear contradiction of the American practice of corporate “union avoidance.” Moreover, VW has stated that if the union prevails in the elections, it will form with the union a German style-works council, or an employee representation body that helps to co-manage aspects of the plant. It also bargains certain issues with management.

    For months, the UAW had stated that it had proof of majority support in Chattanooga. It declared that the VW management would voluntarily recognize the union. Voluntary recognition has become the preferred method of union organization in the U.S. because NLRB-administered election processes permit the employer to put up an anti-union campaign. Unions claim that employer opposition during elections dissuades workers from exercising their right to join a union and bargain collectively. However, VW did not agree to voluntary recognition. It stated that it would not oppose the union in the days leading to the election, but the workers will have to vote in an NLRB-administered election.

    As I have argued elsewhere, international labor standards ask employers not to interfere with employee associational rights. Unions may prove “representative status,” which in the U.S. has come to mean “majority support,” either through membership numbers—a “card check”—or through representation elections administered by a neutral third party. This said, the preferred method under international labor standards is the secret ballot election coupled by employer non-interference. This is precisely what VW is doing in Chattanooga. It is what all U.S. employers should be doing.

    Unfortunately, Tennessee officials and business leaders have built a political movement against the UAW in Chattanooga. This interference clearly violates workers’ freedom of association rights. It shows just how far the U.S. still has to go to meet basic labor standards, which are considered fundamental human rights by the United Nations. Interference with freedom of association shows the ugly side of otherwise acclaimed “American exceptionalism.”

    Whether the UAW wins or loses this election, there are some clear lessons for those of us who care about labor and human rights. First, there is no consensus regarding “card checks.” While the card checks should be used when management and the workers clearly agree on that method, labor activists must always be ready to show employee support through secret ballot elections. While considered adequate by the International Labor Organization (“ILO”), even that body is skeptical about a “card check’s” optimal capacity to measure employee choice.

    Second, a “name and shame” campaign needs to be mounted against leaders who fail to live up to the U.S.’s international obligations under core labor rights instruments, which are also recognized as human rights. Such a campaign would counteract the past 40 years of union decline, bringing more forces toward the side of labor. Treating state and business leaders that try to influence the vote as “outsiders,” which has been the dominant rhetoric in the press these past few months in Chattanooga, was a bad idea, because community voices in favor of labor could and should also be counted with in other campaigns. Rather, those who intervene with freedom of association rights should be denounced as human rights pariahs. In fact, the UAW could bring a case in the ILO against the U.S. for enabling state officials in Chattanooga, intermingled with business interests, to interfere with freedom of association rights in the state.

    A campaign based on internationally recognized labor standards promises to bring together more forces in favor of workers’ freedom of association rights than we have been used to—high road and compliant employers such as VW, works councils around the world, the ILO, and the always present politically liberal base that is friendly to labor.

    The goal, in my view, is to recalibrate the political asymmetries through a change in framing strategies that re-evaluate what is truly important. Suboptimal “card checks” and depiction of community voices as “outsiders” should give way to more inclusive processes, such as the secret ballot and non-interference with freedom of association rights. Violators of these rights with wide acceptance will be scorned by a more ample base of support than labor has had in decades.

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    The purpose of the C-K Faculty Blog is to provide a forum that brings together all the rich intellectual contributions of the Chicago-Kent faculty and to encourage respectful and scholarly dialogue within the extended Chicago-Kent community, including faculty, students, alumni and colleagues at other law schools and universities. For questions or more information, contact the C-K Faculty Blog Editor by e-mail at facultyscholarship@kentlaw.iit.edu.

    3 Responses to VW in Chattanooga, and a New Cartography for Labor Rights

    1. Cesar Rosado
      February 4, 2014 at 8:01 pm

      The number of employees voting in the election is 1,600, not 3,200.

    2. Michael Fichter
      February 5, 2014 at 10:40 am

      Cesar, while I agree wholeheartedly with your arguments, there seems to me one aspect that you as a legal scholar should also address: the claim by employers to a first amendment right to free speech in order to intimidate employees and influence their decision as to whether to join a union. C87 makes it clear that both employees and employers have a right to form associations without interference from the other. Can you picture what would happen if the UAW tried to prevent an employer from joining the Chamber of Commerce or any other business association?

    3. Cesar Rosado
      February 8, 2014 at 6:23 pm

      Dear Michael: True, more or less. This is the way I would put it: Employers normally argue that they are not intimidating anyone when they are simply voicing their opinion regarding the union. The NLRA forbids employers from threatening employees who try to exercise their right to unionize. But some of us in the social sciences, in the left, or in the union -side, argue that when the employer says something it’s more than just an opinion. Employees, as subordinated individuals to the employer who are also dependent on that employer for their livelihood understand the message is not just an opinion. It’s what the “master” wants. I guess that if the UAW buys air time and billboard space to stop Acme Manufacturing from joining the Chamber of Commerce, the employer would not like it, but neither will it file a complaint with the ILO or try to get change the labor law to silence the union. Why? Because the union can’t fire the employer. The employer does not depend on the union for its livelihood. The union’s opinion likely just flaps in the air. Unions do try to stop certain individuals from joining corporations (as shareholders) or to divest from them through corporate campaigns, and that is generally ok. This can be seen as a campaign to disorganize capital. But the impact is tiny compared to that produced by employer opposition of unions. The point is, I think, that employers’ speech is more, much more than simply speech. Hence, I don’t think that employers deserve to voice anti-union messages during elections because their messages are not simple speech. It’s intimidation in the vast number of cases and it interferes with freedom of association.

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