Since things started to go badly for Detroit’s Big Three automakers (in large part because of unsustainable union contract demands), the United Auto Workers (UAW) has sought to unionize foreign-based “transplant” auto plants. These plants are located in the generally pro-business, individualist, and right-to-work South, making unionizing them difficult. The UAW has tried repeatedly to win secret ballot unionization votes, but the union has failed to win at an assembly plant.
The UAW hopes that this will change through a card-check campaign at the Volkswagen assembly plant in Chattanooga, Tennessee. But rather than face a probable losing outcome by taking their unionization effort directly to the workers (who have expressed considerable resistance to the UAW’s entreaties), the UAW has skirted the fringes of labor law by seeking the aid of Volkswagen itself to create a so-called “works council.”
Works councils are common and legally sanctioned in Volkswagen’s home country of Germany. The purpose of works councils is to give employees — in practice, their union representatives — “co-decision” in management of the company. In Germany, co-decision extends to issues of health and safety, employee assessment, payroll systems, and hours of work. (For a comprehensive list, see pages 5-6 of this document.) Although it was not the initial intent of the works council movement, scholars have found that in practice, works councils have been “the prolonged arm of the union movement”—for this reason, a representative of German industrial union IG Metall sits on VW’s board of directors.
However, there is a wrinkle in American law that may make German-style works councils illegal. Works councils cannot function without the active “support” of the employer (in this case, Volkswagen). Problematically for works council supporters, the National Labor Relations Act reads:
It shall be an unfair labor practice for an employer—
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 156 of this title, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.
This prevents the creation of so-called “company unions,” which compel employees to associate with representatives of the company’s choosing rather than with their own preferred representatives or to choose to represent themselves. That’s a violation of employee rights, and so the NLRA makes it illegal.
It’s entirely possible that the UAW’s proposed Tennessee works council would be illegal and found to be a “company union.” If that were the case, then the card check would be even more deceptive than this method of union formation typically is. Card signatories who wanted something other than a traditional union would find themselves stuck with the same UAW that helped send GM, Chrysler, and Ford into bankruptcy court.
And all Tennessee’s right-to-work law protects is an employee’s right not to pay dues to a union he or she doesn’t support. If the union’s demands take down the VW plant, then all employees (union or not) would go down with the ship.
This kind of backdoor skirting of the emanations and penumbras of labor law shows clearly why our Depression-vintage labor laws need significant reforms. The proposed Employee Rights Act from the previous Congress would require secret ballot unionization votes, which allow employees to decide whether or not to unionize without pressure from employers or aggressive union organizers. And if employees thought that they had been baited-and-switched into unionizing, they would have the opportunity to deselect the union by a secret ballot vote free from union coercion. These reforms would bring labor relations into the dynamic and flexible 21st Century.