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!
