National Labor Relations Board attorneys have advised the board to dismiss unfair labor practice complaints from eight workers at Volkswagen plant in Chattanooga, Tenn., against the United Auto Workers. The attorneys also called for the labor law enforcement agency to dismiss related charges against the car maker.

The news is a big win for UAW, which has been struggling to organize the plant's workers and make inroads into southern "right to work" states. It has benefitted from aid from the company's German union, IG Metall, which due to European labor law has considerable influence over company decisions.

Nevertheless, the effort has been stymied by claims that UAW has used deceptive practices to claim majority support. VW's US leadership has said it will put the matter up to an employee vote, something UAW officials have actually been resisting.

In an advice memo dated Jan. 17, the NLRB's counsel's office said complaints that UAW falsely claimed majority representation of the VW workers through a deceptive "card check" election did not amount to a violation of the National Labor Relations Act since the union had not actually gotten recognition from the employer.

In other words, it is only violation for a union to falsely claim majority representation if the claim actually succeeds in organizing the workers.

The memo noted:

It is well established that a union which does not have majority support in a bargaining unit violates Section 8(b)(1)(A) of the Act by accepting recognition from an employer as the exclusive bargaining representative of the unit’s employees. ... Where there has been no grant of recognition by the employer, however, but instead only an unrequited demand for recognition by a union, there is no similar restraint or coercion of employees, even if the claim of majority support turns out to be false or the demand for recognition is made without a bona fide showing of majority support. We are aware of no Board or court case suggesting that the mere claim of majority support or demand for recognition is itself unlawful. (Emphasis added.)

The memo also dismissed complaints that the union had refused to return cards demanding recognition obtained through deception since UAW had "assured the employees who revoked their authorizations that it would not represent to the Employer that the individuals supported the Union." There was "no evidence" that it had done otherwise, the memo stated.

In another memo the same day, the counsel's office suggested the board dismiss complaints that Volkswagen had unlawfully aided UAW's efforts to unionize the workers. It stated that the public comments by Volkswagen officials did not pressure employees.

In both cases the complainants were represented by the National Right to Work Legal Defense Foundation. NRTW President Mark Mix said he was "disappointed but hardly shocked" by the general counsel's advice. He argued that the NLRB had become politicized under President Obama.

"As we saw with the union claim against Boeing Company just a few years ago, if VW management was discouraging workers from rejecting UAW representation with threats, there’s little question that an NLRB prosecution would have already begun at the UAW’s behest. It’s becoming very clear that the NLRB holds intimidation aimed at individual workers to a lesser standard. Regardless, we plan to continue to assist VW workers in their fight to choose their own representation without coercion from UAW officials or Volkswagen management," Mix said.

A spokesman for the NLRB declined to comment on the record. A spokesman for UAW could not be reached for comment.

For more background on the case, see my Nov. 11 column on the matter.