Labor law is not work­ers’ law. That’s the les­son learned by pro-union work­ers at Volkswagen’s sole U.S. fac­to­ry in Chat­tanooga, Tennessee.

Work­ers filed for an elec­tion to join the Unit­ed Auto Work­ers (UAW) in ear­ly April. This would have been the third union elec­tion in the last five years. The UAW nar­row­ly lost a pre­vi­ous plant-wide elec­tion in 2014.

In a dis­play of hyper-par­ti­san­ship, the Repub­li­can-dom­i­nat­ed Nation­al Labor Rela­tions Board (NLRB) has post­poned the elec­tion indef­i­nite­ly. In the inter­im, work­ers on the fac­to­ry floor are fac­ing an intense anti-union campaign.

Reports from Volk­swa­gen work­ers in the plant paint a dis­turb­ing pic­ture of a com­pa­ny that is exploit­ing the bro­ken sys­tem of U.S. labor laws to fight the union — vio­lat­ing the rights of work­ers in ways that would nev­er be accept­able in the company’s home country.

Strate­gic law­less­ness in a bro­ken system

In 2015, the UAW won an elec­tion to rep­re­sent 162 skilled trades employ­ees at Volk­swa­gen. The elec­tion was her­ald­ed as a ​“his­toric vic­to­ry” for the UAW, pro­vid­ing the union its first oppor­tu­ni­ty to offi­cial­ly rep­re­sent a group of work­ers at a for­eign-owned South­ern auto plant.

This elec­tion was made pos­si­ble by a 2011 NLRB deci­sion, Spe­cial­ty Health­care & Reha­bil­i­ta­tion Cen­ter of Mobile, that gave unions greater lat­i­tude to deter­mine how big or small a group of work­ers could be that file for an elec­tion at a company.

Volk­swa­gen flat-out refused to bar­gain with the skilled trades unit, claim­ing that the NLRB’s Spe­cial­ty Health­care deci­sion was made in error. The NLRB found that Volk­swa­gen was vio­lat­ing fed­er­al labor law and issued a deci­sion against Volk­swa­gen. Still, the com­pa­ny refused to begin nego­ti­at­ing with work­ers and the case spent years wind­ing its way through the courts — a move that the UAW pub­licly blast­ed as ​“Ille­gal, uneth­i­cal and shame­ful.”

Volkswagen’s strat­e­gy — refus­ing to bar­gain and appeal­ing to the fed­er­al courts — paid off. The years of lit­i­ga­tion and delay con­tin­ued until Trump was elect­ed pres­i­dent and a Repub­li­can major­i­ty was appoint­ed to the NLRB. The new anti-union major­i­ty quick­ly over­turned the 2011 deci­sion that made the UAW elec­tion vic­to­ry pos­si­ble, and the fed­er­al appeals court then remand­ed the case back to the Trump NLRB, all but guar­an­tee­ing that the 162 skilled trades work­ers would be stripped of their union.

In April, the UAW made the deci­sion to dis­claim (essen­tial­ly aban­don) the 162-mem­ber skilled trades unit and push for a new elec­tion to rep­re­sent all 1,709 hourly work­ers in the plant.

Volk­swa­gen appealed to the court to post­pone the elec­tion, claim­ing that no new elec­tion could be held with­in one year of the start of bar­gain­ing with a new­ly cer­ti­fied unit. Since the com­pa­ny had nev­er start­ed bar­gain­ing with the skilled trades unit, the com­pa­ny rea­soned, the one-year embar­go on an elec­tion was still in effect.

Accord­ing to Volkswagen’s twist­ed, self-con­tra­dic­to­ry log­ic, the UAW skilled trades unit was not law­ful for the pur­pose of requir­ing the com­pa­ny to bar­gain with them, but was law­ful for the pur­pose of pre­vent­ing the UAW from hav­ing anoth­er election.

Incred­i­bly, the Board agreed. In a nine-word, no rea­son­ing opin­ion, the Board’s anti-union major­i­ty ruled for Volk­swa­gen and post­poned the elec­tion indefinitely.

“Work­ers involved in orga­niz­ing efforts can­not rely on the Trump NLRB to ensure that the basic right to choose and form a union is guar­an­teed,” said Har­ris Free­man, a pro­fes­sor at West­ern New Eng­land Uni­ver­si­ty School of Law and fac­ul­ty at the Uni­ver­si­ty of Mass­a­chu­setts Labor Cen­ter. ​“The rapid, right­ward tra­jec­to­ry of the NLRB and Supreme Court should lead unions to ques­tion whether it is wise to pri­mar­i­ly rely on the orga­niz­ing mech­a­nisms pro­vid­ed in fed­er­al labor law.”

For the past four years, Volk­swa­gen has retained the ser­vices of the noto­ri­ous union-bust­ing law firm Lit­tler Mendel­son. The same firm assist­ed Nis­san in defeat­ing the UAW dur­ing a union elec­tion in 2017.

“Com­pa­nies hire these firms to run their anti-union cam­paign,” said Gay Semel, a retired union lawyer of 30 years.

“They train the super­vi­sors and man­agers to run the cap­tive audi­ence meet­ings, they write the anti-union lit­er­a­ture and talk­ing points and run the strat­e­gy. They do it all,” said Semel. ​“Then if the union wins, they are behind the company’s strat­e­gy to keep the union from ever bar­gain­ing a first contract.”

In the lead-up to the NLRB’s deci­sion to stay the elec­tion, pro-union work­ers at Volk­swa­gen faced down a text­book exam­ple of the cyn­i­cal employ­er tac­tics at the heart of many anti-union campaigns.

Sur­veil­lance scare tactics

For months, pro-union work­ers have stood in the Volk­swa­gen park­ing lot to talk with their cowork­ers com­ing in and out of the plant with­out arous­ing any response from the company.

“We had hand­ed out a few leaflets and even had tables out for folks to sign cards before we filed our peti­tion,” said Matt Sex­ton, a union sup­port­er who has worked in assem­bly for over six years. ​“Once we filed for an elec­tion is when they began their secu­ri­ty checks.”

Sex­ton was walk­ing through the park­ing lot to join three of his cowork­ers hand­ing out fly­ers when he saw secu­ri­ty approach them. One of those cowork­ers was David Pin­nix, who has worked in assem­bly for two years.

“I knew some­thing wasn’t right,” said Pin­nix, who was a mem­ber of the Unit­ed Steel­work­ers at a pre­vi­ous man­u­fac­tur­ing job. ​“They want­ed our name and employ­ee ID num­ber. I had my hand on my wal­let and said, ​‘May I ask you why?’ Their exact words were, ​‘Because the super­vi­sors want to know.’”

Pin­nix had hand­ed out fly­ers on pre­vi­ous occa­sions and, accord­ing to him, ​“had nev­er even had a secu­ri­ty guard look at us.”

“I had been hand­ing out leaflets once a week or every oth­er week for two or three months before we filed the peti­tion, and they had nev­er asked for a badge num­ber or iden­ti­fi­ca­tion or any names or any­thing before,” said Phillip Hol­brook, an assem­bly line work­er who was with Pin­nix that morn­ing and also had to show his infor­ma­tion to plant security.

“They’ve only approached night shift work­ers twice,” said Matt Sex­ton, an assem­bly line work­er active on the UAW’s orga­niz­ing com­mit­tee. ​“I’m assum­ing they choose to approach night shift because of the small­er group size.”

“I’ve seen scare tac­tics before, and that is what this was,” said Pinnix.

These kinds of scare tac­tics are a com­mon response to union dri­ves. They’re also poten­tial­ly an unfair labor prac­tice — a vio­la­tion of fed­er­al labor law that could be inves­ti­gat­ed by the NLRB.

“Employ­ees talk­ing to each oth­er about union­iz­ing in the employer’s park­ing lot dur­ing non-work time is pro­tect­ed by fed­er­al law,” said Free­man. ​“A pol­i­cy or prac­tice that requires work­ers give their name to secu­ri­ty in order to cam­paign for the union in the park­ing lot is a crass attempt to chill con­cert­ed activ­i­ty. This rais­es the specter that work­force sur­veil­lance is under­way to iden­ti­fy and intim­i­date union activists in the plant.”

Cor­po­rate censorship

Volk­swa­gen man­agers also began doing their fair share to intim­i­date pro-union workers.

Many work­ers in the plant are afraid to wear pro-union para­pher­na­lia, fear­ing that pub­licly express­ing sup­port for the UAW will put them in management’s crosshairs, as hap­pened to Bill Quigg and a cowork­er on April 25.

“I had been a wear­ing a UAW stick­er on my chest for about six hours when I had a meet­ing with one of my man­agers and he told me to take it off,” said Quigg, who has worked in the plant for sev­en years. ​“I said why and he said it was defac­ing team wear. I told him he was vio­lat­ing my rights. He said that was fine but I need to take it off.”

A cowork­er in the meet­ing with Quigg was also asked to remove his stick­er and con­firmed Quigg’s account.

“They are not defac­ing their uni­form, it doesn’t inter­fere with work and isn’t a safe­ty prob­lem,” said pro­fes­sor Free­man. ​“This is a bla­tant vio­la­tion of labor law. It’s hard to imag­ine a law­ful ratio­nale for sup­press­ing such a fun­da­men­tal labor right – express­ing one’s sup­port for the union on hats or uniforms.”

Accord­ing to Quigg, his man­agers don’t even both­er with rea­sons, they sim­ply argue that the com­pa­ny can break the law until the courts tell them otherwise.

“Man­age­ment said that it’s the company’s team-wear pol­i­cy that we can’t wear UAW brand­ed safe­ty glass­es and stick­ers and, until there is a NLRB rul­ing or judg­ment hand­ed down, that is going to be our pol­i­cy,” said Quigg. ​“They just want to sti­fle union talk and pub­lic shows of union sol­i­dar­i­ty and support.”

Fist in the vel­vet glove

Volk­swa­gen is also deploy­ing an occa­sion­al car­rot along­side its arse­nal of sticks. Accord­ing to 10 sources inside the plant, man­age­ment recent­ly sur­veyed all assem­bly line work­ers about chang­ing their work sched­ule from five days a week to four.

“An assis­tant man­ag­er came to us and said [Volk­swa­gen Chat­tanooga CEO] Pin­to was want­i­ng to know what we indi­vid­u­al­ly felt, as far as stay­ing on 8‑hour shifts or going back to 10-hour shifts,” said a pro­duc­tion work­er who asked to remain anony­mous out of fear of com­pa­ny retal­i­a­tion. ​“We had to mark which one we pre­ferred and sign our names beside it.”

Sev­er­al work­ers said they were told that the com­pa­ny would pro­ceed with what­ev­er the major­i­ty vote decid­ed. The company’s newslet­ter to employ­ees stat­ed that the plant-wide poll ​“was to deter­mine shift start and stop times.”

In essence, the com­pa­ny was both mak­ing changes that would please work­ers while flex­ing its pow­er. This kind of man­age­ment tac­tic is com­mon and is known as the ​“fist inside the vel­vet glove”

“In essence, the com­pa­ny is using a poll of the work­force to per­suade employ­ees that they don’t need a union to bar­gain for an improve­ment in work con­di­tions because Volk­swa­gen man­age­ment is respon­sive to com­plaints raised by the work­ers,” said pro­fes­sor Free­man. ​“This type of con­duct has been viewed by the NLRB as an unfair labor prac­tice; the boss can’t offer a ben­e­fit to work­ers in the midst of an orga­niz­ing drive.”

Governor’s cap­tive audi­ence meeting

“When the employ­er bans the wear­ing of union insignia in the plant, sur­veys the work­force imply­ing the com­pa­ny will be respon­sive to com­plaints about work sched­ules, while sur­veilling union activists, you have all the clas­sic ele­ments of an aggres­sive anti-union cam­paign,” said Freeman.

But the com­pa­ny has also tak­en some unprece­dent­ed actions, like requir­ing all hourly employ­ees on the day shift to attend an anti-union meet­ing in the plant led by Ten­nessee Gov­er­nor Bill Lee. No oth­er politi­cians were invit­ed and no media was allowed in the plant, but a record­ing of the event was leaked to Labor Notes.

“Every work­place has chal­lenges, and there are things in your work­place that you wish were dif­fer­ent,” said Lee. ​“My expe­ri­ence is that when I have a direct rela­tion­ship with you, the work­er, and you’re work­ing for me, that’s when the envi­ron­ment works the best.”

Lee’s com­ments were an echo of the remarks that Volk­swa­gen has made, which stress a pref­er­ence for ​“open dia­logue” over unionization.

Cap­tive audi­ence meet­ings are inher­ent­ly coer­cive — the employ­er man­dates that work­ers sit in a meet­ing and lis­ten to who­ev­er the com­pa­ny wants them to. But this wasn’t just any cap­tive audi­ence meet­ing. It was an oppor­tu­ni­ty for the most pow­er­ful politi­cian in the state to deliv­er an anti-union mes­sage on behalf of the com­pa­ny, sig­nal­ing that the pow­er of the state is behind Volkswagen’s fight against the UAW.

But that doesn’t mean any laws were broken.

“Politi­cians have First Amend­ment rights and can express their opin­ions about union elec­tions,” said Wilma Lieb­man, a for­mer mem­ber of the NLRB. Politi­cians often involve them­selves in union elec­tion cam­paigns, both for and against unions, and it’s pret­ty rare for there to be legal con­se­quences, Lieb­man explained.

Gov­er­nor Lee appears to be sur­pass­ing the anti-union efforts of his pre­de­ces­sor, Bill Haslam, who was part of a coor­di­nat­ed effort by Repub­li­can politi­cians and anti-union cor­po­rate front groups to defeat efforts by Volk­swa­gen work­ers to win a union elec­tion in 2014.

“To actu­al­ly have a politi­cian, much less a gov­er­nor, inside a plant is unusu­al, if not unprece­dent­ed,” explained Nel­son Licht­en­stein, labor his­to­ry pro­fes­sor at Uni­ver­si­ty of Cal­i­for­nia, San­ta Barbara.

Ten­nessee Repub­li­cans are hell-bent on ensur­ing that the pow­er of employ­ers remains undi­lut­ed in a state with one of the low­est union den­si­ty lev­els in the country.

“The governor’s appear­ance reflects the near uni­ver­sal politi­ciza­tion of union­ism and anti-union­ism today,” said Licht­en­stein. ​“It does not mat­ter if the com­pa­ny is mak­ing prof­its or not. Union­ism alters the polit­i­cal bal­ance in a state or region and this is true even when lots of white work­ers are conservative.”

When in Rome

Volk­swa­gen is far from being a rogue actor. The company’s cam­paign of intim­i­da­tion and coer­cion is stan­dard prac­tice for many employ­ers, who are embold­ened to break the law when the con­se­quences for vio­lat­ing it are so weak.

“It’s easy for a firm to advise con­duct that push­es the legal lim­its dur­ing an anti-union cam­paign, because if the board and court even­tu­al­ly find that a com­pa­ny vio­lat­ed the law, the con­se­quences are not great and in the mean­time the union was kept out,” said Liebman.

There is also anoth­er under­ly­ing incen­tive for employ­ers to break the rules: The union’s chances of win­ning an elec­tion are worse the next time around.

“The sta­tis­tics on sec­ond elec­tions are very bad for unions,” said Semel. ​“If ille­gal con­duct keeps the union from win­ning the first time, then the worst thing that can hap­pen is that the NLRB orders a sec­ond elec­tion where the union is even more like­ly to lose.”

Democ­rats have recent­ly intro­duced the Pro­tect­ing the Right to Orga­nize Act in the hope of begin­ning to address some of the most extreme crim­i­nal vio­la­tions that employ­ers com­mit dur­ing a union orga­niz­ing dri­ve. The law would ban cap­tive audi­ence meet­ings, pro­vide the NLRB the pow­er to hold com­pa­nies finan­cial­ly cul­pa­ble for vio­la­tions, and force com­pa­nies to rec­og­nize a union if unlaw­ful man­age­ment actions result­ed in the union los­ing a secret bal­lot elec­tion. The leg­is­la­tion is being co-spon­sored by pres­i­den­tial can­di­dates Bernie Sanders, Eliz­a­beth War­ren, Kamala Har­ris, Cory Book­er and Kirsten Gillibrand.

Unfor­tu­nate­ly, such deeply need­ed and far reach­ing leg­isla­tive reform is unlike­ly to pass any­time soon. And until it does, employ­ers like Volk­swa­gen will con­tin­ue to exploit the bro­ken U.S. labor law sys­tem and vio­late work­er rights in ways that would be an inter­na­tion­al scan­dal on that company’s home continent.

“The big dif­fer­ence is that unions in Euro­pean coun­tries are rec­og­nized as legit­i­mate insti­tu­tions in soci­ety and are at the table. That is not the case here,” said Lieb­man. ​“Volk­swa­gen appears to be adopt­ing a ​‘When in Rome’ approach.”

In These Times pro­vid­ed Volk­swa­gen with a detailed list of the alle­ga­tions cit­ed in this sto­ry and request­ed com­ment. The com­pa­ny did not respond.