When a certification election fails, unions often have two choices: keep organizing in hopes of a successful election down the road, or pull up stakes and move on to the next opportunity.

The United Auto Workers found a third way. Less than five months after losing a high-profile election at Volkswagen's Tennessee plant, the newly-elected UAW president, Dennis Williams, announced they were chartering a local and accepting any employee who signed up as a full-blown member of the union, though they would not pay any dues until they signed their first UAW-negotiated collective bargaining agreement.

"We said we would not give up on these workers, and we haven't," Williams said.

UAW's Chattanooga Local 42 will not be like any other UAW local, however. It will not really be like any local in any union for the past 60 years. Local 42 will be a non-majority "members union" that will only represent workers who choose to join. Workers who don't want to join don't have to and will negotiate individual deals with Volkswagen, and the UAW has no duty to represent them in any way.

The upside for the members is that they will have a collective voice without having to go through another certification vote. The downside, said Seattle University School of Law professor Charlotte Garden, is that the company doesn't have to care.

"Under the current interpretation of the National Labor Relations Act, an employer has to negotiate in good faith with a union only if it is recognized as the exclusive bargaining agent for the workers. Member unions, by definition, aren't," Garden said. "The employer is not legally required to bargain in good faith with a members-only union, so most wouldn't."

While member unions are rare now, in the decades around the passage of the National Labor Relations Act in 1935, Garden says they were still able to bring employers to the negotiating table. The celebrated 1937 sit-down strike at General Motors' Flint, Mich., plant ended when the company agreed to negotiate a contract that only applied to UAW members.

"It makes sense to look to the early days of the labor movement for creative ideas on building unions now," said Ricky Oakland, who is Special Assistant to the International President for Membership Development. "Employers are getting away with union busting tactics that have made NLRB elections incredibly hard to win. We do still win, but all too often, judges and regulators are simply ignoring workers' rights."

In recent years, a coalition of unions, including the IBEW, has challenged the common view that only majority unions have a right to good-faith negotiations. No final decisions have been made by the NLRB or the courts and Oakland says the labor movement can't afford to wait for them.

"The way the law works now, it's an all or nothing vision of workers' rights. Either a majority of employees in a bargaining unit must prove they support the union, or none of those employees can have any legal protection. And employers fight who is and is not in that bargaining unit," Oakland said. "Unions are smaller than we used to be, but we still have the power to improve the lives of working men and women if we are creative in what we do. I congratulate the UAW and think we should all keep a close eye on what happens there."