The Retail Industry Leaders
Association (RILA) and the Retail Litigation Center (RLC) have jointly
submitted an amicus curiae brief to the
National Labor Relations Board (NLRB) in support of Macy’s appeal of an NLRB
Regional Director’s recognition of a micro-union at a Massachusetts location.
November, the NLRB Region 1 Director ruled that the cosmetics and fragrances
employees at a Saugus, Massachusetts Macy’s constitute a valid bargaining unit.
concept of micro-unions emerged from the NLRB’s August 2011 Specialty
Healthcare decision. The decision redefines what the NLRB views as a proper
bargaining unit, abandoning the past storewide standard in favor of one that
allows union organizers to gerrymander a workplace by cherry-picking small
groups of employees within a larger workforce to form a micro-union.
to the brief filed Friday,
“Nothing in this case justifies a
departure from the Board’s traditional approach to retail bargaining unit
determinations. To the contrary, a proliferation of similar bargaining
units would hamstring retail operations, while also undermining the policy of
the National Labor Relations Act (“NLRA” or “the Act”) to promote stable labor
relations and the free flow of commerce. Administrative costs would
follows a similar decision to recognize a fragmented unit at a New York
Bergdorf Goodman store made up of the second and fifth floor women’s
contemporary shoe department. Similar micro-units have been recognized
elsewhere, including at a Nestle-Dryer Ice Cream plant, and a DTG Car Rental
brief further argued,
“Such fragmentation is fundamentally at odds with the central
purpose of a retail establishment, which is to provide seamless and effective
customer service throughout the store. A retail employee must be ready
and able to respond to questions outside her particular area of expertise, and
cannot effectively operate within a narrow operational fiefdom. The
workforce in a typical retail store is therefore highly integrated.
Employees work in close proximity under common management, common policies, and
common working conditions. For precisely this reason, a half-century of
Board precedent has consistently recognized a presumption in the retail context
in favor of the whole-store unit.”
The brief was authored by Gibson,
Dunn & Crutcher attorneys Jason C. Schwartz, Thomas M. Johnson, Jr. and
Robert E. Johnson.
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 America’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.