The Fifth Circuit Court of Appeals, in New Orleans, is the latest circuit court to uphold the National Labor Relations Board’s restrictive “micro-unit” approach to voting units in NLRB elections adopted in Specialty Healthcare, 357 NLRB No. 83 (2011). Macy’s Inc. v. NLRB, No. 15-60022 (5th Cir. June 2, 2016).

In Specialty Healthcare, the NLRB held that if a union petitions to represent a group of employees within a workplace and the employer challenges that voting unit as inappropriate, the employer must show that all employees it seeks to add share “an overwhelming community of interest” with the petitioned-for employees in order to prevail. This rule puts the burden on the employer to prove the appropriateness of the voting unit, setting a significant evidentiary hurdle for employers when opposing small “micro-units.” (A small petitioned-for unit often includes only those employees whom the union believes it has the greatest chance of organizing successfully).

In Macy’s, the United Food and Commercial Workers petitioned to represent a unit of about 30 cosmetic and fragrance employees who work on two separate floors in Macy’s Saugus, Massachusetts store. About 110 other employees work in 10 other departments in the store. Cosmetics and fragrance employees have incidental contact with other store employees, assist in store-wide inventory, attend store meetings and training, receive the same benefits, and are subject to the same personnel and labor relations policies as other store employees. There is little, if any, interchange and transfer of these employees with employees in other departments.

The union had lost an election held several years before in a voting unit that included all store employees. However, this time, the union sought to represent employees in just one department. Macy’s contended that a traditional “retail” voting unit of all store employees, or at least all sales employees, was the appropriate unit for an election and bargaining. The NLRB rejected Macy’s position and approved the smaller unit sought by the UFCW, finding that Macy’s had failed to demonstrate an “overwhelming community of interest” among all store employees which would justify that larger voting unit.

Macy’s appealed to the Fifth Circuit Court of Appeals. However, like the Sixth, Eighth, and Fourth Circuit Courts of Appeals, the Fifth Circuit deferred to the NLRB’s policy, and held that even where there is evidence that an alternative voting unit “might also [be] an appropriate bargaining unit, the unit approved by the NLRB will nevertheless be enforced unless it is ‘clearly not appropriate.’” The Court rejected Macy’s argument that the employees at the Saugus store constitute a “homogenous work force.” It noted that there was “little evidence of temporary interchange between the petitioned-for employees and other selling employees.”

The U.S. Supreme Court and the Courts of Appeals historically have granted substantial deference to the NLRB on issues involving the composition of groups of employees appropriate for an NLRB election and collective bargaining. Employers are on notice that they will bear a heavy burden opposing a union’s petition to represent a small group of employees. Even in the face of substantial facts reflecting a strong “community of interest” among groups of employees such as was present in Macy’s, the NLRB presumably will continue to approve a union’s request to carve out a select group for an election, confident that appeals courts  will defer to the NLRB’s decision.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.