July 2014

By: Richard H. Wessels, Esq.

In mid-July, the NLRB in Washington ruled that a group of cosmetics and fragrance sales workers at a suburban Boston Macy’s store constitute an appropriate voting unit. Naturally, Macy’s fought this unit all the way as being far too narrow. There was a strong dissent in the opinion calling for the overruling of the Board’s hotly controversial Specialty Healthcare ruling. The NLRB’s 3-1 decision in the case upheld an acting Regional Director’s decision that the cosmetics and fragrance sales staff in the 41 person unit was appropriate as a voting unit. The Macy’s store has a total of 150 employees. 120 of the employees are classified as selling employees. So, the carve-out was for the 41 person micro-unit of cosmetics and fragrance sales employees.

The Specialty Healthcare decision (a 2011 case) raised the bar dramatically for an employer challenging a union’s petition for a voting unit. In that case, the Board found that such a unit was appropriate if the employees of the unit constituted a readily identifiable group which shared a community of interest. But, the problem from an employer’s point of view is that the Board changed the burden of proof that had applied literally for generations. They held that a union’s petition for a voting group can be overcome only if the party arguing for a larger unit demonstrates that it excludes other workers who share “an overwhelming community of interest.” The bottom line here is that the Board has now made crystal clear its intent to approve these micro-units across a broad spectrum of industries. We can look for a flood of small cherry-picked units which will greatly favor a union in an election. This is all part of the pro-union NLRB’s perceived mission of making it easier for unions to organize.

So, why is this case important for employers? Here is the simple explanation for those of you who don’t deal with this stuff on a day-to-day basis. It is absolutely critical in an organizing campaign to determine who is eligible to vote. Unions will routinely try to define a unit where they have the most support, and therefore the best chance of winning an election. Before Specialty Healthcare, the NLRB pretty much said there was a presumption that a wall-to-wall (or plant-wide) unit was presumptively the voting unit. To get a different unit (presumably more favorable) a union had to show that the smaller unit has a separate and identifiable community of interest. Now, the pro-union NRLB has stood that principal on its head. It’s the other way around. Now, the union’s proposed voting unit is presumed appropriate, and to get a different unit, the employer has a huge burden (perhaps an impossible burden) of showing overwhelming community of interest by others. Make no mistake about it – this is a big change!

Experienced management-side labor lawyers know what is likely to happen if a union is able to win an election in one of these micro-units. And, they will win frequently because they will have a huge advantage of cherry-picking the voting unit. It is going to be exceedingly difficult for unions to obtain that first contract. There will be massive resistance on the part of employers in the bargaining process. Because unit employees work so closely with others, management will press for strong management-rights language on work assignments, language regarding other employees performing what might be perceived as bargaining unit work, seniority language, job transfer and job assignment language, right to subcontract, etc. It’s a bit like fitting a square peg into a round hole and unions will eventually learn this when they find that getting that first contract will be a difficult process indeed. Stay tuned!