A majority of Volkswagen (“VW”) employees in Chattanooga, Tennessee, voted against unionization last week. Six hundred and twenty-six (626) employees voted in favor of the union. Seven hundred and twelve voted (712) against. Union supporters took the vote as very bad news. The blogs are now saturated with theories of why the vote went the way it did.
But there is good news! First, the more than six hundred employees that voted in favor of union representation can still bargain collectively with VW as a so-called “minority union.” Second, the UAW and other parties can file a complaint against the United States in the International Labor Organization (“ILO”) for permitting government officials in Tennessee to interfere with workers’ freedom of association rights. The goal of such a complaint would not be to set aside the elections, but to shape a more favorable terrain for unions in the future.
A minority union is a union that represents only its members. As such, it is different from exclusive representation unions, or the unions that are certified by the National Labor Relations Board (“NLRB”). Any collective bargaining agreement entered by the minority union and the employer would cover only the members of the union. Under current law, employers may bargain with a minority union if they want to. There is no legal duty for employers to bargain with a minority union under present interpretations of the National Labor Relations Act.
However, VW, as a model corporate citizen, has pledged to abide by the core labor rights of the ILO. Volkswagen has made such pledges both in its corporate code of conduct and its international framework agreement with Industriall, the global union to which the UAW belongs. One of these core rights is freedom of association. As the IFA states:
The basic right of all employees to establish and join unions and employee representations is acknowledged. Volkswagen, the unions and employee representatives respectively work together openly and in the spirit of constructive and co-operative conflict management.
Under ILO jurisprudence, freedom of association entails the recognition of minority unions if there is no majority representative of the employees in the workplace. As the ILO has clearly established:
Problems may arise when the law stipulates that a trade union must receive the support of 50 per cent of the members of the bargaining unit to be recognized as a bargaining agent: a majority union which fails to secure this absolute majority is thus denied the possibility of bargaining. The Committee considers that under such a system, if no union covers more than 50 per cent of the workers, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of its own members.*
Therefore, as I have described elsewhere, VW workers can still exercise their right to bargain collectively at VW. Their union cannot represent the entire plant, but the union can represent its members.
A minority union can have a significant impact at VW. VW has already expressed that it wants to organize a so-called “works council” at the plant. A works council, under the German model, essentially entails a body of employee representatives who help co-manage part of the business, receive information from management (related to new hires, transfers and restructurings, for example) and bargain over some issues related to employment at the plant. A minority union can engage in all of these activities with management.
A members’ only, minority union should be able to engage with managers to make some managerial decisions, just as supervisory employees normally do in any workplace. The same group of employees should be able to receive important information about the firm from management. Finally, the union should be able to select employee representatives to bargain issues with management, to the extent that the employee representatives only represent the union’s members.
If management then wants to bargain individually with the non-union employees, or unilaterally determine the terms and conditions of employment of the non-union members, that is for management to decide. Management could decide to unilaterally extend the terms agreed with the works council or the union to all employees. Thereafter, perhaps some VW employees may want to join the union in order to have a say at the works council and gain a voice. Or maybe they will want a free ride. Or maybe the non-union employees may just try to bargain individually with management for different terms. None of those options would be barred by the labor laws. But to the extent that a collective voice yields positive results, workers’ collective organization will be strengthened at the plant. Good may come out of a minority union at VW.
Finally, the UAW, other labor groups, and even management and government representatives who are members of the ILO may file a complaint at the ILO against the United States for permitting government officials to interfere with workers’ freedom of association rights. The Tennessee government officials who mounted an anti-union campaign against the UAW, including the Governor and state and federal legislators, incurred in actions condemnable by the international community. The textbook violations of freedom of association rights in Chattanooga should be brought before the ILO to shame the United States and help build a more favorable terrain for freedom of association rights.
While pro-union activists do well by trying to understand last week’s no-union vote at VW, they still have opportunities to seize. Better do so now, while the iron is hot.
* Freedom of Association and Collective Bargaining: International Labour Conference 81st Session, 1994 (Geneva: International Labour Office, 1994) at ¶ 241