Client Bulletin #534

4.22.14

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The United Auto Workers Union yesterday served notice of withdrawal of its objections to the National Labor Relations Board election conducted in February at Volkswagen's plant in Chattanooga, Tennessee, which means that the employees' vote to reject UAW representation will stand. More importantly, the withdrawal means that the NLRB will be able to avoid what promised to be some sticky First Amendment issues.

In a typical case, a party losing an election can file objections, alleging that the other party won through the use of unfair labor practices prohibited by the National Labor Relations Act. This case was different, because Volkswagen had taken a neutral stance on representation, but Tennessee politicians and community groups had expressed vehement opposition to UAW representation. The NLRA does not address political or other speech by third parties, and there is a strong argument that placing limits on this type of speech violates the First Amendment to the U.S. Constitution.

In any event, the UAW's withdrawal of the objections on Monday morning was a surprise, and came as some 24 lawyers were appearing in Chattanooga for a hearing before an NLRB judge. The lawyers, representing a diverse group of individuals and organizations, were there to object to subpoenas served by the UAW in connection with the election challenge.

Following the UAW's announcement yesterday, the Regional Director for NLRB Region 10, Claude Harrell, wasted no time in issuing the Certification of Results of the February vote.

As we have previously reported, the union had filed objections to the election, in which Volkswagen employees rejected UAW representation by a 712 to 626 vote despite the company's neutrality on the issue. The union claimed that U.S. Senator Bob Corker (R-Tenn.), Tennessee Governor Bill Haslam, a group of state legislators, the Chattanooga Regional Manufacturers Association, the Chattanooga Chamber of Commerce, and Americans for Tax Reform engaged in a "coordinated and widely-publicized coercive campaign" to defeat the union's organizing effort. The union then had the NLRB issue subpoenas to all of those individuals and organizations, who promptly filed petitions to revoke the subpoenas. Zan Blue of Constangy, co-author of this bulletin, represented one of the subpoenaed organizations.

The subpoenaed individuals and entities argued that the subpoenas were overbroad, sought irrelevant information, and generally used intimidation and coercion to suppress the free speech of community leaders opposed to the union. Administrative Law Judge Melissa Olivero issued an order directing the UAW to show cause as to why the petitions to revoke should not be granted, and scheduled the hearing to take place yesterday morning.

As the lawyers arrived but before the hearing began, UAW General Counsel Mike Nicholson and Washington D.C. lawyer Arlus Stephens (Mr. Stephens prepared the subpoenas and was expected to argue for the union) appeared at the hearing room and began handing out the formal withdrawal documents. The union attorneys did not supply enough copies, which suggests that the decision to withdraw was made at the last minute. Officials from Volkswagen, who had not received subpoenas but were there for the hearing, also seemed to be surprised by the withdrawal.

UAW President Bob King blamed the NLRB for the Union's withdrawal, saying the Board is "dysfunctional." According to press reports, Mr. King said that the UAW withdrew the objections because of its belief that the NLRB proceedings could have dragged on for months if not years. He asserted that "[t]he UAW is ready to put February's tainted election in the rearview mirror and instead focus on advocating for new jobs and economic investment in Chattanooga." Possibly foreshadowing the UAW's next step, Mr. King said that the UAW would "ask Congress to examine the use of federal funds in the state's legislative threat, in order to protect Tennessee jobs and workers in the future." The UAW has also cried foul about alleged "outside interference" by Tennessee politicians, skirting the fact that the UAW is from Detroit.

By serving these subpoenas after losing an election in which the employer remained neutral, the UAW has undoubtedly further alienated a large group of very prominent community leaders, and may have surprised and annoyed Volkswagen with its last-minute legal maneuver. It's even possible that the UAW has alienated the NLRB by publicly calling it "dysfunctional." For now, it appears that the UAW will be looking to Washington, D.C., for a political solution. It is not clear whether the UAW's tank is empty.

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About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.

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