Labor law is not workers’ law. That’s the lesson learned by pro-union workers at Volkswagen’s sole U.S. factory in Chattanooga, Tennessee.

Workers filed for an election to join the United Auto Workers (UAW) in early April. This would have been the third union election in the last five years. The UAW narrowly lost a previous plant-wide election in 2014.

In a display of hyper-partisanship, the Republican-dominated National Labor Relations Board (NLRB) has postponed the election indefinitely. In the interim, workers on the factory floor are facing an intense anti-union campaign.

Reports from Volkswagen workers in the plant paint a disturbing picture of a company that is exploiting the broken system of U.S. labor laws to fight the union—violating the rights of workers in ways that would never be acceptable in the company’s home country.

Strategic lawlessness in a broken system

In 2015, the UAW won an election to represent 162 skilled trades employees at Volkswagen. The election was heralded as a “historic victory” for the UAW, providing the union its first opportunity to officially represent a group of workers at a foreign-owned Southern auto plant.

This election was made possible by a 2011 NLRB decision, Specialty Healthcare & Rehabilitation Center of Mobile, that gave unions greater latitude to determine how big or small a group of workers could be that file for an election at a company.

Volkswagen flat-out refused to bargain with the skilled trades unit, claiming that the NLRB’s Specialty Healthcare decision was made in error. The NLRB found that Volkswagen was violating federal labor law and issued a decision against Volkswagen. Still, the company refused to begin negotiating with workers and the case spent years winding its way through the courts—a move that the UAW publicly blasted as “Illegal, unethical and shameful.”

Volkswagen’s strategy—refusing to bargain and appealing to the federal courts—paid off. The years of litigation and delay continued until Trump was elected president and a Republican majority was appointed to the NLRB. The new anti-union majority quickly overturned the 2011 decision that made the UAW election victory possible, and the federal appeals court then remanded the case back to the Trump NLRB, all but guaranteeing that the 162 skilled trades workers would be stripped of their union.

In April, the UAW made the decision to disclaim (essentially abandon) the 162-member skilled trades unit and push for a new election to represent all 1,709 hourly workers in the plant.

Volkswagen appealed to the court to postpone the election, claiming that no new election could be held within one year of the start of bargaining with a newly certified unit. Since the company had never started bargaining with the skilled trades unit, the company reasoned, the one-year embargo on an election was still in effect.

According to Volkswagen’s twisted, self-contradictory logic, the UAW skilled trades unit was not lawful for the purpose of requiring the company to bargain with them, but was lawful for the purpose of preventing the UAW from having another election.

Incredibly, the Board agreed. In a nine-word, no reasoning opinion, the Board’s anti-union majority ruled for Volkswagen and postponed the election indefinitely.

"Workers involved in organizing efforts cannot rely on the Trump NLRB to ensure that the basic right to choose and form a union is guaranteed," said Harris Freeman, a professor at Western New England University School of Law and faculty at the University of Massachusetts Labor Center. "The rapid, rightward trajectory of the NLRB and Supreme Court should lead unions to question whether it is wise to primarily rely on the organizing mechanisms provided in federal labor law."

For the past four years, Volkswagen has retained the services of the notorious union-busting law firm Littler Mendelson. The same firm assisted Nissan in defeating the UAW during a union election in 2017.

“Companies hire these firms to run their anti-union campaign,” said Gay Semel, a retired union lawyer of 30 years.

“They train the supervisors and managers to run the captive audience meetings, they write the anti-union literature and talking points and run the strategy. They do it all,” said Semel. “Then if the union wins, they are behind the company’s strategy to keep the union from ever bargaining a first contract.”

In the lead-up to the NLRB’s decision to stay the election, pro-union workers at Volkswagen faced down a textbook example of the cynical employer tactics at the heart of many anti-union campaigns.

Surveillance scare tactics

For months, pro-union workers have stood in the Volkswagen parking lot to talk with their coworkers coming in and out of the plant without arousing any response from the company.

“We had handed out a few leaflets and even had tables out for folks to sign cards before we filed our petition,” said Matt Sexton, a union supporter who has worked in assembly for over six years. “Once we filed for an election is when they began their security checks.”

Sexton was walking through the parking lot to join three of his coworkers handing out flyers when he saw security approach them. One of those coworkers was David Pinnix, who has worked in assembly for two years.

“I knew something wasn’t right,” said Pinnix, who was a member of the United Steelworkers at a previous manufacturing job. “They wanted our name and employee ID number. I had my hand on my wallet and said, 'May I ask you why?’ Their exact words were, ‘Because the supervisors want to know.’”

Pinnix had handed out flyers on previous occasions and, according to him, “had never even had a security guard look at us.”

“I had been handing out leaflets once a week or every other week for two or three months before we filed the petition, and they had never asked for a badge number or identification or any names or anything before,” said Phillip Holbrook, an assembly line worker who was with Pinnix that morning and also had to show his information to plant security.

“They've only approached night shift workers twice,” said Matt Sexton, an assembly line worker active on the UAW’s organizing committee. “I'm assuming they choose to approach night shift because of the smaller group size.”

“I’ve seen scare tactics before, and that is what this was,” said Pinnix.

These kinds of scare tactics are a common response to union drives. They’re also potentially an unfair labor practice—a violation of federal labor law that could be investigated by the NLRB.

“Employees talking to each other about unionizing in the employer’s parking lot during non-work time is protected by federal law,” said Freeman. “A policy or practice that requires workers give their name to security in order to campaign for the union in the parking lot is a crass attempt to chill concerted activity. This raises the specter that workforce surveillance is underway to identify and intimidate union activists in the plant.”

Corporate censorship

Volkswagen managers also began doing their fair share to intimidate pro-union workers.

Many workers in the plant are afraid to wear pro-union paraphernalia, fearing that publicly expressing support for the UAW will put them in management’s crosshairs, as happened to Bill Quigg and a coworker on April 25.

“I had been a wearing a UAW sticker on my chest for about six hours when I had a meeting with one of my managers and he told me to take it off,” said Quigg, who has worked in the plant for seven years. “I said why and he said it was defacing team wear. I told him he was violating my rights. He said that was fine but I need to take it off.”

A coworker in the meeting with Quigg was also asked to remove his sticker and confirmed Quigg’s account.

“They are not defacing their uniform, it doesn’t interfere with work and isn’t a safety problem,” said professor Freeman. “This is a blatant violation of labor law. It’s hard to imagine a lawful rationale for suppressing such a fundamental labor right – expressing one’s support for the union on hats or uniforms.”

According to Quigg, his managers don’t even bother with reasons, they simply argue that the company can break the law until the courts tell them otherwise.

“Management said that it’s the company’s team-wear policy that we can’t wear UAW branded safety glasses and stickers and, until there is a NLRB ruling or judgment handed down, that is going to be our policy,” said Quigg. “They just want to stifle union talk and public shows of union solidarity and support.”

Fist in the velvet glove

Volkswagen is also deploying an occasional carrot alongside its arsenal of sticks. According to 10 sources inside the plant, management recently surveyed all assembly line workers about changing their work schedule from five days a week to four.

“An assistant manager came to us and said [Volkswagen Chattanooga CEO] Pinto was wanting to know what we individually felt, as far as staying on 8-hour shifts or going back to 10-hour shifts,” said a production worker who asked to remain anonymous out of fear of company retaliation. “We had to mark which one we preferred and sign our names beside it.”

Several workers said they were told that the company would proceed with whatever the majority vote decided. The company’s newsletter to employees stated that the plant-wide poll “was to determine shift start and stop times.”

In essence, the company was both making changes that would please workers while flexing its power. This kind of management tactic is common and is known as the “fist inside the velvet glove”

“In essence, the company is using a poll of the workforce to persuade employees that they don’t need a union to bargain for an improvement in work conditions because Volkswagen management is responsive to complaints raised by the workers,” said professor Freeman. “This type of conduct has been viewed by the NLRB as an unfair labor practice; the boss can’t offer a benefit to workers in the midst of an organizing drive.”

Governor’s captive audience meeting

“When the employer bans the wearing of union insignia in the plant, surveys the workforce implying the company will be responsive to complaints about work schedules, while surveilling union activists, you have all the classic elements of an aggressive anti-union campaign,” said Freeman.

But the company has also taken some unprecedented actions, like requiring all hourly employees on the day shift to attend an anti-union meeting in the plant led by Tennessee Governor Bill Lee. No other politicians were invited and no media was allowed in the plant, but a recording of the event was leaked to Labor Notes.

“Every workplace has challenges, and there are things in your workplace that you wish were different,” said Lee. “My experience is that when I have a direct relationship with you, the worker, and you’re working for me, that’s when the environment works the best.”

Lee’s comments were an echo of the remarks that Volkswagen has made, which stress a preference for “open dialogue” over unionization.

Captive audience meetings are inherently coercive—the employer mandates that workers sit in a meeting and listen to whoever the company wants them to. But this wasn’t just any captive audience meeting. It was an opportunity for the most powerful politician in the state to deliver an anti-union message on behalf of the company, signaling that the power of the state is behind Volkswagen’s fight against the UAW.

But that doesn’t mean any laws were broken.

“Politicians have First Amendment rights and can express their opinions about union elections,” said Wilma Liebman, a former member of the NLRB. Politicians often involve themselves in union election campaigns, both for and against unions, and it’s pretty rare for there to be legal consequences, Liebman explained.

Governor Lee appears to be surpassing the anti-union efforts of his predecessor, Bill Haslam, who was part of a coordinated effort by Republican politicians and anti-union corporate front groups to defeat efforts by Volkswagen workers to win a union election in 2014.

“To actually have a politician, much less a governor, inside a plant is unusual, if not unprecedented,” explained Nelson Lichtenstein, labor history professor at University of California, Santa Barbara.

Tennessee Republicans are hell-bent on ensuring that the power of employers remains undiluted in a state with one of the lowest union density levels in the country.

“The governor’s appearance reflects the near universal politicization of unionism and anti-unionism today,” said Lichtenstein. “It does not matter if the company is making profits or not. Unionism alters the political balance in a state or region and this is true even when lots of white workers are conservative.” 

When in Rome

Volkswagen is far from being a rogue actor. The company’s campaign of intimidation and coercion is standard practice for many employers, who are emboldened to break the law when the consequences for violating it are so weak.

“It’s easy for a firm to advise conduct that pushes the legal limits during an anti-union campaign, because if the board and court eventually find that a company violated the law, the consequences are not great and in the meantime the union was kept out,” said Liebman.

There is also another underlying incentive for employers to break the rules: The union’s chances of winning an election are worse the next time around.

“The statistics on second elections are very bad for unions,” said Semel. “If illegal conduct keeps the union from winning the first time, then the worst thing that can happen is that the NLRB orders a second election where the union is even more likely to lose.”

Democrats have recently introduced the Protecting the Right to Organize Act in the hope of beginning to address some of the most extreme criminal violations that employers commit during a union organizing drive. The law would ban captive audience meetings, provide the NLRB the power to hold companies financially culpable for violations, and force companies to recognize a union if unlawful management actions resulted in the union losing a secret ballot election. The legislation is being co-sponsored by presidential candidates Bernie Sanders, Elizabeth Warren, Kamala Harris, Cory Booker and Kirsten Gillibrand.

Unfortunately, such deeply needed and far reaching legislative reform is unlikely to pass anytime soon. And until it does, employers like Volkswagen will continue to exploit the broken U.S. labor law system and violate worker rights in ways that would be an international scandal on that company’s home continent.

“The big difference is that unions in European countries are recognized as legitimate institutions in society and are at the table. That is not the case here,” said Liebman. “Volkswagen appears to be adopting a ‘When in Rome’ approach.”