In a 2011 decision known as Specialty Healthcare, the National Labor Relations Board (“NLRB”) announced a new standard for determining the appropriate bargaining unit in a non-acute healthcare facility and opened the door for so-called “micro” bargaining units. The NLRB has recently demonstrated its willingness to expand its recognition of micro union organizing to the retail industry.
On July 22, 2014, the Board issued a decision endorsing a bargaining unit of sales associates within the cosmetics and fragrance departments at a Macy’s store in Massachusetts. The bargaining unit consists of 41 sales associates, which represents less than a third of the employees at the store.
Macy’s objected to the bargaining unit as inappropriately small to the extent it excluded other associates performing nearly identical duties, but simply selling different products. The Board disagreed, holding that a unit consisting of only cosmetics and fragrance associates was proper as they are “readily identifiable as a group” and “share a community of interest.” Moreover, the Board held that Macy’s failed to demonstrate that other sales associates excluded from the micro unit shared an “overwhelming community of interest” with the cosmetics and fragrance employees.
In light of the Macy’s decision, retail employers can expect that unions will seek smaller bargaining units, including units consisting of a single department within a larger store. Having micro units makes it easier for unions to “cherry pick” only the most pro-union employee groups, thereby making it easier to petition and win an election. In addition, it leaves employers with the logistical difficulty of having to manage a fragmented workforce governed by multiple contracts.
Employers in the retail industry should consult with labor counsel to discuss strategies for minimizing the effects of the Macy’s decision on their facilities, including taking steps to reduce the likelihood that these micro unions will gain traction.