Page is loading...

NLRB applies Specialty Healthcare "micro-union" standards to retail industry with mixed results

The NLRB recently issued a pair of decisions applying its controversial test for appropriate bargaining units set out in Specialty Healthcare, 357 NLRB No. 83 (2011). Specialty Healthcare, which was affirmed by the Sixth Circuit last year, has been criticized by many as allowing the formation of "micro-units" within facilities instead of the traditional "wall-to-wall" units. The Board did little to assuage those critics with its decisions in Macy's, 361 NLRB No. 4 (July 22, 2014)  and Bergdorf Goodman, 361 NLRB No. 11 (July 28, 2014) released last month.  Instead, the Board signaled its willingness to apply Specialty Healthcare in the retail context, and underscored the intensely factual nature of the Board's test for appropriate units.  In these cases, both involving retail sales employees, the Board came to different conclusions, holding in Macy's that a group of fragrance and cosmetic sales employees were an appropriate unit for bargaining, while finding in Bergdorf Goodman that a group of women’s shoe sales employees were not an appropriate unit.  The apparent difference between the two according to the Board was that the Macy's employees made up a single department within the store, while the petitioned-for shoe sales employees at Bergdorf Goodman were from two different departments with different supervision and little overlap between the two departments.  This was enough for the Board to find Macy's employees to have a "community of interest" while the Bergdorf Goodman employees did not, despite the fact that both groups of sales employees were paid similarly, had the same benefits, were subject to the same employee handbook, and were evaluated the same way as other sales employees in the store at large. Although Bergdorf Goodman is nominally a victory for the employer, showing that in at least some contexts the Board will not approve "micro-units", ultimately these decisions merely highlight the difficulty that employers face when challenging these mini-bargaining units due to the purely fact-dependent nature of the Board's decisions.  And with success like in Macy's, there is no doubt that unions will continue to target small groups of employees within a facility in a "divide and conquer" approach using Specialty Healthcare to their advantage. See our recent Barnes & Thornburg alert analyzing the Macy's decision in more detail here.



Labor Board’s Boeing Handbook Rule Produces Encouraging Results

October 18, 2019 | Labor Relations, National Labor Relations Board

Tight Ship: Labor Board Reports Improvement In Case Handling Statistics

October 14, 2019 | Labor Relations, National Labor Relations Board

Final Exam? NLRB to AGAIN Address Whether Grad Students are Employees

September 23, 2019 | Labor Relations, National Labor Relations Board

Why It's Critical That Employers Choose Words Carefully at the Bargaining Table

September 20, 2019 | Labor Relations, National Labor Relations Board

Uh-Oh: Company’s Social Media Policy Ruled Unlawful

September 18, 2019 | Labor Relations, National Labor Relations Board


Do you want to receive more valuable insights directly in your inbox? Visit our subscription center and let us know what you're interested in learning more about.

View Subscription Center
Trending Connect
We use cookies on this site to enhance your user experience. By clicking any link on this page you are giving your consent for us to use cookies.