Several Volkswagen employees, represented by the National Right to Work Legal Defense Foundation, have sued VW and the UAW on the theory that the parties’ “Agreement for a Representation Election” is a “thing of value” that violates § 302 of the Taft-Hartley Act, 29 U.S.C. 186. In particular, the plaintiffs claim that Volkswagen agreed to pay, lend, or deliver things of value to the union by: holding meetings at which it conveyed its support for the formation of a works council; granting the UAW access to the employer’s property; and agreeing “not [to] take a position opposed to [union] representation.” This is the theory that was at issue in Mulhall, which we have discussed at length. The provisions of the “Agreement” that plaintiffs challenge are standard in hundreds of similar agreements and are not the sort of “things of value” contemplated by §302. All the problems that undermined this § 302 theory as applied to the facts of Mulhall – both the substantive problems and the procedural ones (including the probable lack of a private right of action that Justice Breyer highlighted in his dissent from the Mulhall DIG) – undermines the theory here.
But there is another, even more fundamental, problem with this suit. The Agreement states that, at the time of its signing, the UAW had the support of a majority of the VW employees. Under clearly established law, this means that VW could have recognized the UAW as the employees’ exclusive bargaining representative and begun full-fledged collective bargaining at the time this Agreement was signed. Because VW could have done that, it plainly was permitted to do things like granting union organizers access to its property.