Effort by unions to organize non-union employees across a variety of industries has redoubled as the overall percentage of the unionized American workforce has fallen. These efforts, as we previously reported, are supported by aggressive new rulemaking by the National Labor Relations Board that, many critics believe, is intended to smooth the path for unions.

Against this background, the United Auto Workers (UAW)’s recent failed bid to represent workers at Volkswagen AG’s plant in Chattanooga, Tennessee  was closely watched as an indicator of unions’ viability in the South. What made the loss particularly noteworthy was that Volkswagen’s management actually supported unionization. The UAW appealed its loss on February 14, 2014, primarily on the basis of widely disseminated threats by elected officials that state-financed incentives would be withheld if workers voted to unionize.

Last week, the National Labor Relations Board permitted five Chattanooga workers who were opposed to unionization and Southern Momentum, an anti-union group, to intervene in the post-election dispute to defend the outcome of the vote and counter UAW’s request for a new election. Despite the lack of precedent for such intervenor-status of a non-party, the NLRB based its decision on UAW’s allegations of third-party misconduct involving widely disseminated statements made by at least one of the five intervening employees opposing the union representation and Southern Momentum, centering on a threat to loose state financial incentives for VW expansion in Chattanooga if the workers opted to unionize.