Last year, we reported on Hunton’s Employment & Labor Law Perspectives blog that a confederation of trade associations filed an amicus brief supporting Volkswagen Group’s challenge to a National Labor Relations Board (“NLRB”) Regional Director’s decision allowing a union election in a “micro-unit” of maintenance workers at the company’s Chattanooga, Tennessee, auto manufacturing plant. At the time, the case was on review before the full NLRB. Unsurprisingly, the NLRB upheld the Regional Director’s decision on review. Now, Volkswagen is seeking review of that decision in the U.S. Court of Appeals for the D.C. Circuit.

Earlier this month an even larger coalition of trade groups entered the fray, filing a brief with the D.C. Circuit arguing that the NLRB’s decision in the Volkswagen case should be rejected. The confederation, which includes the Chamber of Commerce of the United States of America, Coalition for a Democratic Workplace, National Retail Federation, National Association of Manufacturers, National Federation of Independent Business and HR Policy Association, urges the D.C. Circuit to reject the union-friendly Specialty Healthcare test as well as the NLRB’s application of that test to Volkswagen. Their brief asserts that the Specialty Healthcare standard violates core principles of the National Labor Relations Act (“NLRA”) by allowing unions to control the creation of collective bargaining units, and allows for the “balkanization” of American businesses by too easily allowing for the creation of multiple bargaining units in the same workplace, which undermines the prospect of effective labor-management relations.

Volkswagen’s appeal is the latest in a line of cases challenging the NLRB’s controversial Specialty Healthcare standard, which has produced union-friendly NLRB rulings allowing micro-units in a variety of industries, including the retail industry. Unfortunately for the employer community, the appellate courts have been slow to correct the NLRB’s activism in this area of the law, upholding the Specialty Healthcare standard in several cases decided last year. Those decisions, however, do acknowledge that the Specialty Healthcare standard can lead to violations of the NLRA if not applied consistently with the longstanding case precedent the NLRB claimed not to have overruled in Specialty (see, Nestle Dreyer’s Ice Cream Co. v. NLRB and Constellation Brands v. NLRB). The Volkswagen case arguably presents the most aggressive NLRB decision yet applying the Specialty Healthcare test. The employer community is hopeful the D.C. Circuit will identify and reject the NLRB’s flawed logic in Volkswagen and, hopefully, in the Specialty Healthcare standard in general.

A copy of the amici’s brief, which was prepared by the Hunton & Williams Labor Team, can be found here.