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(Reuters) - A bid by the United Auto Workers union to invalidate the results of an election it lost at a Tennessee Volkswagen (VOWG_p.DE) plant may hinge on the novel application of a legal test used by U.S. labor regulators to assess third-party interference.
The five-factor standard has been used to determine whether some previous union elections were tainted, and the UAW has asked the U.S. National Labor Relations Board, or NLRB, to apply it to the contentious mid-February election in Chattanooga.
Known as the Westwood test, it is commonly used in cases of workers intimidating other workers. So it is unclear if the test is suited to assessing whether anti-union statements made by conservative lawmakers and interest groups compromised the Chattanooga election, as the UAW contends, experts told Reuters.
The NLRB has not yet said whether it will apply the test. If it does, it could boost the UAW's push to force another election. If the NLRB chooses not to apply the Westwood criteria, it was unclear how it might handle the case.
Plant workers were bombarded by anti-UAW messages from privately funded anti-union groups and Republican lawmakers, including Tennessee Senator Bob Corker and Governor Bill Haslam.
Germany's VW stayed neutral in the campaign, even granting the UAW access to employees at the plant. But the union on February 14 lost its bid to organize the plant by a 712-626 vote.
A UAW victory would have resulted in the first foreign-owned auto plant to unionize in the South, a historically anti-labor region where the UAW has been trying hard to gain a toehold.
The UAW is arguing that "interference by politicians and outside special interest groups" created "a general atmosphere of fear of reprisal rendering a free election impossible."
The VW plant in Chattanooga, nestled in the mountains of deeply conservative and Republican eastern Tennessee, opened in 2011. It manufactures the Passat four-door sedan.
During the union election campaign, state lawmakers said they would not vote to give VW tax incentives to expand if the plant unionized. Corker, a former mayor of Chattanooga, said he had been "assured" a new SUV production line would come to the plant, bringing more jobs, if the workers rejected the UAW.
In addition, privately funded anti-union groups from inside and outside Tennessee leased billboards, bought radio advertisements and held meetings to campaign against the UAW.
The NLRB has rules about what unions and management can say during union election campaigns. But statements by third parties with no direct connection to either side fall into a gray area.
The UAW argues that third-party messages contaminated the VW election. In February 21 objections filed with the NLRB, which supervised the election, the union cited the Westwood test, which was developed in a case concerning a unionization drive at the Westwood Horizons Hotel in Los Angeles in the early 1980s.
In the Westwood case, a few pro-union workers, with no official union ties, threatened and harassed other workers to try to get them to vote for unionization. The union won the election.
The hotel owner challenged the outcome. The NLRB invalidated the results and ordered a new election.
But the Westwood test "doesn't fit particularly well when you're talking about the statements of elected officials, exercising their First Amendment rights, who aren't immediately involved in the election process itself," said Ronald Meisburg, a former NLRB general counsel and now a Proskauer Rose attorney who represents management.
In its Westwood decision, the NLRB said it would weigh five considerations to determine whether a third party, other than the union or the employer, had influenced workers to such a degree that the election result should be set aside:
- whether the threats would affect all voting workers;
- whether they were widely made;
- whether the person making them could carry them out;
- whether employees acted or voted in fear of the threats;
- whether the threats coincided with the election.
The Westwood criteria have been used historically to assess situations in which workers threatened or intimidated colleagues.
The UAW told the NLRB that third-party statements during the VW campaign met the five Westwood criteria. According to the union, the lawmakers essentially said workers would have less job security if they unionized and employees had every reason to accept those remarks as true.
Taken together, these statements were part of an "extremely high visibility campaign" disseminated by lawmakers' press shops, anti-union groups and the media, the union said.
"Moreover, the threat to eliminate state incentives was made by powerful political leaders who, in fact and in the reasonable perception of employees, were quite capable of putting their threat into effect," the UAW stated.
The UAW has until March 7 to back up its claims with evidence, at which point the NLRB regional director in Atlanta will decide whether to investigate.
Anti-union groups have recently filed objections with the NLRB to the UAW's challenge.
Over the years, the five-member governing board of the NLRB has been friendlier to unions when a majority of its members were Democrats, and less so when Republicans were in control.
President Barack Obama recently got a majority of Democrats appointed to the NLRB board.
Editing by Kevin Drawbaugh, Peter Henderson and Dan Grebler