By: Bradford L. Livingston

Earlier this month the United Auto Workers (UAW) announced that it had withdrawn its challenges to an NLRB representation election the union lost at a Chattanooga, Tennessee auto manufacturing plant. Despite access to the facility and its hourly employees, the absence of any anti-union campaign from management, and other alleged overt and covert help from company management, the UAW lost in a secret ballot election by a vote of 626 in favor of to 712 against union representation. Following the loss, the union filed a variety of objections to the election process, including claims that Tennessee’s Republican lawmakers unfairly affected the vote. In withdrawing its challenges to the election, the union will now need to wait a year before another vote can be conducted there.

By targeting a European-based company where the legal framework encourages unionization as part of a social contract between an employer and its workers, the UAW openly expected that the Chattanooga plant would be the first in a series of organizing successes among automakers in America’s largely non-union South. But other UAW organizing campaigns have been ongoing in America’s South as well.

At the same time it was targeting the Chattanooga facility, the UAW had been attempting to organize a Mississippi assembly plant operated by the Japanese automaker, Nissan. Unlike the Tennessee plant, however, Nissan had been exercising its “free speech” rights under Section 8(c) of the National Labor Relations Act to tell its employees why the company believes employees do not need union representation. Those communications from management have apparently worked, and despite significant efforts by the UAW, the union reportedly has had little success with Nissan’s employees.

So if the UAW cannot win either with or without any employer resistance, the union has apparently decided not to try the NLRB’s traditional organizing process again. Rather, it is shifting gears and hoping that the U.S. State Department will provide a boost. On April 27, the union — in conjunction with the international labor group IndustriALL — asked the State Department to mediate a dispute with Nissan over the UAW’s attempts to organize Nissan’s employees. In effect, the UAW claims that international guidelines of the Organization for Economic Cooperation and Development (OECD), to which the United States is a signatory, provide rules concerning workers’ organizing rights that trump the processes established under the NLRA.

The American labor relations model is based on employee free choice, and Section 7 of the NLRA guarantees employees the right either to “form, join or assist labor organizations” or to “refrain from any and all such activities.” Under NLRA Section 8(c), organized labor has the opportunity to make its case to employees and management has the legally-protected opportunity to present its counterarguments. The NLRB’s processes are designed to ensure what it calls “laboratory conditions” where employees can in private, somewhat like Shakespeare’s Hamlet, answer the existential labor relations question of whether “to be or not to be” represented by a union. And to date, there are no claims that Nissan isn’t playing by the lawful and well-established NLRB rules in its communications and dealings with its employees.

But if at first you don’t succeed, why try again? Unions only represent about six percent of America’s private sector workforce, yet rather than asking whether they provide a service employees really want,  it’s easier to blame the rules. And when the accepted rules are inconvenient, change them. European labor codes are far more union-friendly. That’s precisely what the UAW hopes Secretary of State Kerry will do in invoking the OECD guidelines. The State Department has three months within which to decide whether or not to take on the dispute, and even if it does so, Nissan has no obligation to agree to the mediation. Whatever the State Department decides, invoking the OECD process shows that organized labor continues to look for the magic bullet. So if at first you don’t succeed, play a different game.