WASHINGTON -- As Tennessee Volkswagen workers were voting last week on whether or not to have the United Auto Workers represent them, Sen. Bob Corker (R-Tenn.) dropped what Reuters aptly called a "bombshell" on the proceedings.
"I've had conversations today and based on those am assured that should the workers vote against the UAW, Volkswagen will announce in the coming weeks that it will manufacture its new mid-size SUV here in Chattanooga," Corker said.
Here's one way a Volkswagen employee may have read that: If you vote for the UAW, the plant will lose business and you and your co-workers will suffer for it. Had a Volkswagen official said as much -- the company flatly disputed Corker's claim -- the statement may have amounted to what's known as an "unfair labor practice," a form of interference or coercion that violates U.S. labor law.
But as Corker surely knew, as a third party he wasn't subject to the National Labor Relations Act the way Volkswagen and the UAW are -- and nor were the other Tennessee politicians who vehemently opposed the UAW and even threatened to cut off future subsidies if workers voted in favor of the union.
The UAW suffered a definitive defeat in the election, raising questions about whether and to what degree Corker's comments may have affected the vote.
Corker's chief of staff told The Huffington Post that the senator didn't interfere in the election; he was simply exercising free speech.
"U.S. labor law in no way prohibits public officials from passing along information and sharing insights as Senator Corker did last week," the chief of staff, Todd Womack, said in an email. "As a former mayor of Chattanooga, a senator from Tennessee, someone intricately involved with Volkswagen from its recruitment to the state through the present, and the lead Republican in the 2008 auto negotiations -- which gave him a deep understanding of the negative impacts the UAW has on the companies and communities in which they are present -- his exercise of free speech was absolutely appropriate."
Rep. George Miller, a California Democrat considered an ally of organized labor, told HuffPost Wednesday that Corker's statements went well beyond free speech.
"Senator Corker's remarks were shocking and irresponsible," Miller said in an email. "Volkswagen had committed to not interfering with workers' freedom of choice. But that did not stop the Senator from interfering. He didn't just issue his views: he issued a promise of benefits if they voted 'no' and a thinly veiled threat if they voted 'yes.' It is regrettable that a foreign corporation respected Tennessee workers' rights more than the workers' own elected senator did."
The National Labor Relations Board, the federal agency that enforces labor law for employers and unions, strives for "laboratory" conditions in an election, meaning that workers should be allowed to decide without any manipulation whether or not they want representation. Of course, a completely pressure-free atmosphere is rarely the case, but this is almost always because of interference run by the company and its "union avoidance" consultants or by the union itself. The outside influence on the Volkswagen vote, by the likes of Grover Norquist and Republican politicians, is what made the Tennessee election fascinating even beyond its implications for organized labor in the right-to-work South.
Although outside groups can't commit unfair labor practices, the NLRB could decide that Corker's statement irreparably tarred the process. Politicians' personal opinions -- say, "unions would be bad for our state" -- are generally fair game. But the board could theoretically make a case that Corker's highly detailed statements created an atmosphere of coercion. (Corker has not disclosed who allegedly told him the SUV production hinged on the union vote.)
"Of course the NLRB has no authority over Sen. Corker and cannot control what he says," Fred Feinstein, a former general counsel at the labor board, said in an email. "What they could do is decide that his comments taint the election and even conceivably order a new one if the UAW lost and pursued a charge.
"The approach the NLRB would take would rely heavily on all the 'facts and circumstances,'" Feinstein went on. "For example, what was the impact of the statements, was there a chance to respond, were the statements true etc., etc. This is why it's difficult to predict exactly what the Board might do."
There's a good chance the board won't do anything. For starters, the UAW would have to ask the board to set aside the election results, which went 712 to 626 against the union. While a do-over in a tight election may sound enticing, said Julius Getman, a labor law scholar at the University of Texas School of Law, why should the union expect things to go differently in a second vote? The only guarantee is further coverage of a loss that's roundly been called devastating. (As Mike Elk reported at In These Times, the union committed its share of strategic missteps in the Chattanooga campaign.)
"They could get the election set aside, but the truth of it is that's such a puny remedy," said Getman, adding that he found Corker's statement "outrageous." "Setting the election aside doesn't do [the UAW] much good. If it's set aside, you still have to win an election before you have bargaining rights."
UAW President Bob King said Monday night that the union was looking into its legal options, saying Corker "entered into the fray just to intimidate workers." Moshe Marvit at In These Times has a detailed look at what those options would be.
But even if the union asked the board to set aside the results, the board probably wouldn't be eager to start a fight with congressional Republicans. The board spent years in the crosshairs of GOP lawmakers after its general counsel brought a controversial complaint against Boeing in April 2011. Republicans tried to strip the independent agency of its funding and even shut it down temporarily by declining to confirm board nominees.
Today, thanks to a deal hashed out by the Senate, the agency has its first fully confirmed board in a decade and is no longer a regular subject of House Republican hearings. Even though the board institutionally prides itself on its independence, a move against Corker would disrupt the relative peace.
"Right now my guess is that they're very fearful of getting involved in another battle with politicians," Getman said. "They were really hurt in Boeing. And if you think about it, Boeing was a very traditional board action. If they're going to take action against a government official you'll hear all kinds of blathering states'-rights stuff. I think they'd be very reluctant to do anything."
As Getman noted, the stakes in the election weren't just high for the UAW, which had hoped a win would open union doors in the previously impenetrable Southern auto industry. The stakes were also high for Corker, who chose to pick a side and would have suffered a deep embarrassment at home had the election gone the other way.
In a brief statement after the votes were tallied, Corker said he was "thrilled for the employees at Volkswagen and for our community and its future."
This post has been updated to include comments from Rep. George Miller.