When most people think about unions, they think about a single union that represents all of the employees at a single workplace. For example, one may think about the UAW and a car company or the USW and a steel manufacturer. But the NLRA doesn’t require that outcome, and the NLRB’s decisions in the last few years have made it much easier for unions to avoid organizing all employees in a particular workplace.
Instead, it is increasingly easy for unions to select some subset of the employer’s workforce to organize. And, if there are several different possible groups of employees to organize at any one business, then each employer could end up with multiple bargaining relationships. Employers could have more than one union representing different groups of employees.
A significant decision that highlighted this possibility was Specialty Healthcare, which this blog covered a few years ago. That case arose in the non-acute healthcare setting. In a decision released yesterday, however, the NLRB made clear that the principles announced in that case were going to be applied far more broadly. The case involved the Macy’s department store chain. The NLRB applied Specialty Healthcare to permit a union election in a group made up of only cosmetics and fragrance sales employees and counter managers in one of the chain’s stores.
Macy’s had argued that the only appropriate group of employees for purposes of a union election was a group of all employees at the store or, in the alternative, a group of all selling employees at the store. The NLRB, in a lengthy 3-1 decision (pdf), rejected this position. In reaching its conclusion, the majority reasoned that the cosmetics and fragrance counter employees and counter managers were a “readily identifiable group” that matched a “departmental line” that the employer drew.
In addition, the majority found that employees shared a community of interest. Thus, for example, all of the cosmetics and fragrance employees:
- Had the same first level supervisor (even though the Store Manager, the second level supervisor, exercised control over all employees in the store);
- Worked in “two connected [by virtue of an escalator bank], defined work areas” (even though they were on different floors and were adjacent to the areas where other selling employees worked);
- Had limited interaction with other employees (even though they attended daily “rally” meetings with all employees in the store);
- Received training from vendors (even though it was different types of training from different venders); and
- Were paid on commission (even though the amount of that commission varied between them).
Consistent with Specialty Healthcare, the majority went on to find that the employer did not prove that the selling employees in other departments of the store had an “overwhelming” community of interest with the cosmetics and fragrance employees. The majority also rejected the notion that there was a “presumption” in the retail industry for bargaining units that included all of the selling and/or non-selling employees in the store.
Member Miscimarra (R) dissented. He would have found that the only appropriate unit included all selling associates in the store, not just the ones found in the cosmetics and fragrance department. Initially, there were certain working conditions and benefits that were common to all salespeople that justified grouping them together. Next, the cosmetics and fragrance employees had various similarities and differences between them that matched, in a number of different respects, the similarities and differences between selling employees in other departments. Thus, there was no basis to conclude that the cosmetics and fragrance employees should be in a group by themselves. Finally, Member Miscimarra wrote a spirited critique of Specialty Healthcare, a decision that he would not apply in this case, or in any other.
For the labor professional, the Macy’s decision:
- Reinforces the trend to smaller bargaining units;
- Demonstrates that Specialty Healthcare will certainly be applied outside the non-acute healthcare setting;
- Makes more likely the prospect, as we warned when commenting on Specialty Healthcare, of numerous unions representing different groups of employees; and
- Is a warning to employers concerned about union organizing activity to examine critically the structure and operational deployment of their workforces – just how many unions could your workplace support?