DETROIT The United Auto Workers still has several options to unionize Volkswagen AG's (VOWG_p.DE) Tennessee car plant, labor law experts said on Wednesday, after it failed to win enough support and last week dropped its challenge to the election results.
The UAW faces a one-year waiting period, under U.S. labor law, before it can hold another official secret ballot election at the Chattanooga facility after workers at the plant voted 712-626 on February 12-14 not to join the union.
The UAW challenged the results, saying the election was poisoned by the anti-union groups. But last week, it unexpectedly abandoned its appeal to the U.S. National Labor Relations Board, minutes before a hearing was scheduled to begin, saying the challenge could drag on for years.
Experts said the UAW could instead try to organize a smaller, specialized unit of workers, work with VW to hold a private election, or gain recognition through a process called card check.
Organizing only some workers, perhaps those in the union-friendly body shop, would be an unusual approach for the UAW, but it could work if the union could show that most workers in the sub-unit wanted union representation.
"I wouldn't be shocked if a scenario like that were to unfold," speculated Larry Drapkin, a labor attorney at Mitchell Silberberg & Knupp in Los Angeles, adding he had no direct knowledge of plans at the UAW or at Volkswagen.
If the UAW tried a sub-unit election, it would still have to wait a year, under NLRB rules.
On Wednesday, union and Volkswagen officials offered no comment on speculation that the UAW might be able to find an alternate route into the VW plant.
The UAW's narrow defeat was a stinging rebuke to the union, setting back its years-long effort to organize workers for the first time in a foreign-owned auto assembly plant in the U.S. South, a traditionally anti-union region.
The loss was even more surprising as VW did not oppose the UAW. But VW's neutrality enhanced the role played in the election campaign by assorted anti-union forces, including Republican politicians and pressure groups from Washington, D.C.
The option of a "private" election that does not involve the NLRB could include all plant workers or just some of them, said Wilma Liebman, former chair of the NLRB.
This approach would not be subject to the year-long waiting period and would be conducted by a neutral third-party, such as the American Arbitration Association. The UAW would have to show that the majority of workers in the proposed bargaining unit favor joining the union.
"Through a private election, the UAW might want to carve out a group of workers among whom it has considerable support. That's a possible strategy," said Gary Chaison, professor of industrial relations at Clark University in Massachusetts.
Under the "card check" option, a union presents an employer with cards signed by workers expressing union support.
Drapkin said VW's desire to make Chattanooga's workers part of the manufacturer's Global Works Council, a German-style management-labor committee, could motivate VW to accept a card check. Most experts agree that U.S. workers would need union representation to join the council.
VW officials have said they would prefer a secret ballot election, however.
Any of these scenarios would require VW and the UAW to void a January agreement that the union would refrain from organizing the plant's workers for a year after the February election, unless another union tried to do so.
"The issue is do you use the government NLRB route, which the employer can insist on, or do you, as an employer and a union, agree to do some other method that legally may be used to determine the wishes of the employees," said Ron Meisburg, a former NLRB member and one-time general counsel.
Meisburg said a secret ballot election, particularly one conducted by the NLRB, has "the highest degree of integrity" in determining workers' desires.
Meisburg declined to comment on the possibility of the UAW seeking to organize a portion of the Chattanooga workers.
(Additional reporting by Amanda Becker in Washington, D.C.; Editing by Kevin Drawbaugh and Richard Chang)