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Legal challenge to VW union election could be 'uncharted territory'

Two Volkswagen employees walk through the axle alignment department at the VW plant in Chattanooga, Tennessee in this December 1, 2011 file
Two Volkswagen employees walk through the axle alignment department at the VW plant in Chattanooga, Tennessee in this December 1, 2011 file

By Amanda Becker

(Reuters) - A vote by workers in Tennessee that could yield the first labor union victory at a foreign-owned auto plant in the U.S. South will be difficult to challenge, no matter the outcome, despite growing controversy over the election.

Volkswagen AG employees at the German company's Chattanooga plant on Friday will complete three days of voting that has seen intense political infighting between anti-union forces and the United Auto Workers (UAW) over unionizing the plant.

Once the result is announced, the parties will have seven days to file an objection with the U.S. National Labor Relations Board (NLRB), the federal agency that oversees union elections and polices unfair labor practices in the private sector.

NLRB Regional Director Claude Harrell Jr., in the agency's Atlanta office, would review any claims from either side that the election result should be set aside.

The fight in Chattanooga has been unusual because of the deep involvement of anti-union political groups from outside Tennessee, and any legal basis that they might have to challenge the election's outcome was uncertain, lawyers said.

"It's uncharted territory," said Lance Compa, a labor relations professor at Cornell University who has prepared reports for the UAW in unrelated labor-relations matters.

UNUSUAL CIRCUMSTANCES

When a union wins a representation election, the employer is typically the party to challenge the result. But in Chattanooga, VW management has remained neutral during the election, even giving the UAW limited access to workers on company property. So VW seems like an unlikely challenger, Compa said.

The most vocal opponents of the UAW have been outside groups, such as the Center for Worker Freedom, an anti-union organization that is backed by a Washington-based group run by Grover Norquist, a Republican activist.

The anti-union National Right to Work Legal Defense Foundation, based in northern Virginia, and the Southern Momentum group have also worked in Chattanooga against the UAW.

It was unclear whether any of these groups would have legal standing to challenge a UAW victory, given that objections are traditionally filed by an employer or a union.

Compa said he was unaware of prior cases of an outside group successfully lodging an objection to an election result. Such a move would be unlikely to "stop the certification process and the parties proceeding into collective bargaining," he said.

SENATOR'S STATEMENTS

Recent statements by U.S. Senator Bob Corker, a Republican from Tennessee, have raised questions about whether the UAW might have grounds to challenge the election result if its bid to represent the VW workers fails.

Corker said he has been "assured" that if Chattanooga workers reject the union, VW will build a new product there, instead of at a plant in Mexico.

Under U.S. labor law, employers are generally prohibited from threatening to move operations or otherwise retaliate against workers during unionization campaigns.

But the NLRB does not have the authority to sanction or punish lawmakers and members of the general public, only employers and unions. If Corker's statements are true, the UAW would have to prove he acted on behalf of VW management to show that he contaminated the election and made it invalid. The company has repudiated Corker's claims.

"It is not uncommon for union campaigns to generate pro and negative comments by public officials and invalidating an election based primarily on a public official's comments seems unlikely under existing NLRB precedent," said Dennis Cuneo, a partner at Fisher & Phillips, a national labor law firm that represents management.

Corker's sources and statements, true or untrue, are likely protected by the U.S. Constitution's "Speech or Debate" clause, which shields lawmakers from litigation or even having to defend themselves, so long as they were engaged in "legislative activity."

"Senators have a constitutional carte blanche to meddle into anything," said U.S. Senate Historian Donald Ritchie. They "have extraordinary protections under the Constitution."

(Additional reporting by Richard Cowan in Washington and Bernie Woodall in Chattanooga, Tenn.; Editing by Kevin Drawbaugh, Peter Henderson and Jonathan Oatis)

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