Vice President, Labor Policy, U.S. Chamber of Commerce
May 03, 2017
In a case involving the department store Macy’s, the U.S. Supreme Court is poised to consider whether the National Labor Relations Board (NLRB) went too far in its multi-year effort to promote so-called micro-unions. The case has been meandering through the NLRB and judicial process since an administrative law judge’s (ALJ) January 2013 decision to permit a bargaining unit consisting of only the cosmetic and fragrance salespersons at a Macy’s department store.
As this blog explained when the NLRB upheld the ALJ’s decision, the Macy’s case was just one of many examples of mischief that ensued following the Board’s errant precedent in its 2011 Specialty Healthcare decision. In that ruling, the NLRB threw out decades of precedent regarding what is an “appropriate” collective bargaining unit and abandoned the long-established preference for units representing all workers in a class or craft. Instead, the NLRB decided it would allow almost any bargaining unit suggested by a union, even “micro unions” made up of just a few workers.
Indeed, that is exactly what happened at a Macy’s store in Saugus, Mass., that employs approximately 150 individuals, including 120 sales associates in various departments throughout the store. In 2011, the United Food & Commercial Workers (UFCW) sought to represent all of the sales associates in a traditional “wall-to-wall” bargaining unit, which at the time was the well-established standard in retail department stores. However, the UFCW lost that election.
Not long thereafter, the NLRB issued the Specialty Healthcaredecision, and the UFCW took advantage of it by seeking to represent the 41 cosmetics and fragrance sales associates at the same Macy’s store where it had lost initially.
Using Specialty Healthcare as the guiding precedent, the NLRB’s regional director certified the newly-proposed bargaining unit and ordered the election to proceed, a decision that Macy’s appealed citing roughly a half century of precedent that wall-to-wall bargaining units in the retail setting are “presumptively…appropriate.” On appeal, the NLRB dismissed that argument, though, and expanded its micro-union push by calling into question the presumptive appropriateness of wall-to-wall units.
After the standard legal machinations, the Macy’s case ended up before the Fifth Circuit Court of Appeals, where the U.S. Chamber argued that the court should grant the petition to set aside the NLRB’s decision. Unfortunately, the court denied that petition for review, and in November 2016, it also denied a subsequent petition for rehearing en banc.
In February, Macy’s filed a petition for certiorari with the Supreme Court, and the UFCW filed its response on April 24. With that process complete, presumably now the court will consider whether to hear the case. If it agrees to do so, it could mean that the Obama-era NLRB’s micro-union push will finally hit a wall of its own.