NLRB OK’s Departmental Bargaining Unit – What’s the Big Deal?

August 11, 2014 by Andrew Baker

The NLRB on July 22 issued its “long awaited” decision in Macy’s, 361 NLRB No. 4, approving an election in a petitioned-for unit limited to employees working in a single department of the store. The decision has received a fair amount of press, and outrage from employers. According to The Wall Street Journal, the decision “raised concerns among business groups that it would lead to fragmented work groups.” The decision follows in the wake of a leading 2011 decision re-affirming traditional Board principles on the composition of appropriate bargaining units, a decision that prompted anti-union advocates to accuse the Board of creating “micro” units. With labor law in the private sector changing rapidly employers are seeing this as a big deal. Our view at Beeson, Tayer and Bodine (BT&B) is much different.

The union in this case petitioned for a unit of all employees employed in the store’s fragrance and cosmetics department. Macy’s itself created this administrative department within its store, separate and apart from other store departments. The department has a separate sales manager, and employs one third of the store’s selling employees (who knew?). These “beauty advisors” sell exclusively specific vendor products, keep their own customer books, and wear distinctive uniforms. Significantly, the Board majority noted, these employees have little or no contact or interchange with other store employees.

So, really, what is all the fuss about? The Board here has simply approved a traditional departmental unit, one consisting of all employees in an employer’s separate administrative department who are separately supervised and have no regular interactions with other employees. Application of traditional Board unit standards going back to at least the 1960’s should have made this a relatively easy and non-controversial decision.

The answer lies in the repeated attempts of anti-union forces to make it more difficult for unions to organize by requiring unions to organize ever larger units. Macy’s, in this case, insisted that the only appropriate unit consisted of a storewide unit, regardless of the distinctive working conditions under which different employees work at the store. This big-unit push has received a sympathetic ear on occasions from Republican Board members, but the “larger is better” movement is fighting the plain language of the law and history. From the inception of the NLRA, the Board has first looked at the bargaining unit sought by the petitioner, and if that unit is “an” appropriate unit, applying traditional “community of interest” standards, that is the end of the process; there is no need to find a “better” unit.

The Board’s decision in Macy’s, rather than representing some “radical” departure from NLRB precedent, is simply an example of the Board sticking to traditional principles in the face of a concerted anti-union backlash. As a law firm that has staunchly supported union rights for over 75 years, BT&B is pleased to support this NLRB ruling. For those interested in more information about protecting union rights contact BT&B at either of our law offices in Sacramento or Oakland.

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