Apparently, “democracy” isn’t a satisfying answer to the United Auto Workers.  A week after Volkswagen autoworkers in Chattanooga, Tenn., declined to join the Detroit union by a vote of 712 to 626, the union appealed the election to the National Labor Relations Board.  

The UAW claimed that “interference by politicians and outside special interest groups” skewed the vote. The main problem for the union, aside from the outcome, was that opponents exercised their First Amendment rights and stood up for workers without a voice.

Specifically, Sen. Bob Corker, R-TN, as well as several other elected officials, spoke out against the UAW effort. Other opponents included Americans for Tax Reform and the Competitive Enterprise Institute.

While a person unfamiliar with the intricacies of labor law may find that a union has the ability to stifle anyone’s speech preposterous, the UAW’s argument does have merit for employers. Federal labor law already strictly curtails what an employer can say to their employees when a union is trying to organize their business. An employer is forbidden from threating, interrogating, promising or spying on his employees during this time. These actions are known by the acronym “TIPS.” 

Unions, on the other hand, only violate the law if they verbally threaten or physically assault a worker. In many cases even these actions are not deemed illegal if a third party does the threatening.

Employers are allowed to tell their side of the story as long as the speech does not violate TIPS. Some employers, however, choose to cut deals, known as “neutrality agreements,” with unions before the election. In exchange for benefits or to avoid public relations smear campaigns, an employer will not counter the union’s organizing efforts.

Volkswagen entered into such a neutrality agreement with the UAW on Jan. 27. Because of the agreement, the UAW and Volkswagen were essentially on the same side. Without assistance from the outside, workers who opposed the UAW would have been drowned out by company-sanctioned UAW supporters.

VW went so far as to keep employees who thought joining the UAW was a bad idea out of the plant while letting union organizers in.

Further, VW filed the petition for unionization. This is very rare in labor organizing. They also helped bring a speedy election, not allowing the opposition time to make their case to the workers.

In exchange for VW’s assistance (or official non-opposition), the neutrality agreement included a clause assuring the German car manufacturer “the UAW would delegate to the Works Council many of the functions and responsibilities ordinarily performed by unions as bargaining representative in the United States.”

The agreement went on to state that this Works Council would act in “maintaining and where possible enhancing the cost advantages and other competitive advantages that VWGOA enjoys relative to its competitors in the United States and  North America, including but not limited to legacy automobile manufacturers.”

In saying no, the workers bucked both their company and the UAW.

According to the Associated Press, UAW “annual dues collected were down more than 40 percent to $115 million from 2006 to 2012, as the union’s ranks fell by 30 percent.”

The union’s total membership has dropped to 377,000 down from a high of about 1.5 million in 1979. As UAW President Bob King has bluntly stated, “If we don’t organize these transnationals, I don’t think there’s a long-term future for the UAW — I really don’t.”

Because of this drastic decline of membership and subsequently dues collection, it clearly would have been advantageous to the UAW to unionize the Volkswagen workers, particularly in the less unionized areas like the South.  The outcome of the vote suggests that the UAW felt it needed the VW workers more than the VW workers felt they needed the union.

Volkswagen’s cooperation is less easily explained. It could be the promise of having the union make any painful labor changes, or that Volkswagen’s deputy board chairman is Berthold Huber, the former head of Germany’s IG Metall union. Or it could simply be that VW is worried about the threat of the UAW mounting a negative public relations campaign against companies that oppose them.

In December 2011, the UAW released its “Principles for Fair Union Elections.” If companies resisted and did not sign a neutrality agreement similar to the one with Volkswagen, Bob King threatened the UAW would “launch a global campaign to brand that company a human-rights violator.”

The “Principles” also required a company to take away the secret ballot from workers. Volkswagen resisted that effort, even though they sped up the election process. The UAW originally wanted to organize the Chattanooga plant via a card check election, where all a union needs is a majority of workers to sign cards for the union to be recognized as the representative of the employees. Card check elections can lead to intimidation and coercion of employees because they are done out in the open without the protection of a secret ballot.

The election loss is another example of why card check is a poor organizing method. A majority of VW employees signed cards last year, but the February vote shows that there might have been credence to those opposed to the UAW. Eight employees, represented by the National Right to Work Legal Foundation, charged that “the UAW solicited, enticed, and/or demanded VW employees’ signatures by unlawful means including misrepresentations, coercion, threats, and promises.”

Regardless of the promise of benefit or the removal of a threat, Volkswagen sided with the union over workers who wanted to remain in charge of their own destiny.

As of this writing the UAW’s appeal is before the National Labor Relations Board. Sen. Corker has asked the board to “understand and realize the magnitude of what they are going to be deciding and in no way will try to muzzle public officials who are community leaders from expressing their point of view.”

If the board decides to redo the election it will not just be a blow against worker self-determination, but also against free speech.