Yesterday, the Retail Litigation Center (RLC) and the Retail Industry Leaders Association (RILA) jointly submitted an amicus curiae brief to the National Labor Relations Board (NLRB) in support of Bergdorf Goodman’s appeal of an NLRB Regional Director’s recognition of a micro-union at a New York store location.
Last month, the NLRB Region 2 Director ruled that the Bergdorf Goodman women’s shoe departments on the second and fifth floor constituted a valid bargaining unit. The ruling relied upon the controversial 2011 NLRB decision in Specialty Healthcare, which redefined the standard for bargaining unit determinations, ostensibly only for a limited sector. Nonetheless, the decision is being broadly applied, contrary to well-settled law and with fantastical results such as the two shoe department unit ratified here.
According to the brief,
“Longstanding Board precedent makes this an easy case. The Regional Director’s decision must be reversed because it does not comport with the well-established rule that created a presumption in favor of the whole-store union in the retail context. This whole-store presumption has been repeatedly applied, across the past half-century, to reject far more inclusive proposed units of retail employees than the two shoe departments in this case.”
The concept of micro-unions emerged from the NLRB’s August 2011 Specialty Healthcare decision. The new definition of a proper bargaining unit allows union organizers to gerrymander a workplace by cherry-picking small groups of employees within a larger workforce that might not otherwise agree to union representation in order to form a micro-union.
The brief further argued,
“The Regional Director’s approval of such an artificial unit is also an open invitation to gerrymandering. The possibilities are endless. A union that believes it has the votes to organize greeters, but not cashiers, need only organize the greeters. A union may limit a proposed unit to labor-enthusiasts in 2nd floor designer men’s socks, or 3rd floor televisions. Or, a union might simply try to organize the entire 3rd floor of a store, merely because that is where it enjoys the strongest support. Unions will face little impediment to organizing by cherry-picking a small subset of employees with little regard for the whether those employees constitute a practical bargaining unit, and with little regard to whether the designated subset of employees has organizational significance within the employer’s business.”
Gibson, Dunn & Crutcher attorneys William J. Kilberg, P.C., Eugene Scalia, Jason C. Schwartz, and Thomas M. Johnson, Jr. authored the brief Mr. Schwartz serves as Secretary to the Retail Litigation Center.
The full brief can be found here.
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry. The RLC, whose members include some of the country’s largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.
RILA is the trade association of the world’s largest and most innovative retail companies. RILA members include more than 200 retailers, product manufacturers, and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad.###