RLC, NRF Denounce NLRB’s Decision to Allow Micro-unions

This week, the Retail Litigation Center (RLC) and the National Retail Federation (NRF) jointly filed an amicus brief in the case of Macy’s Inc. v. National Labor Relations Board (NLRB) currently before the U.S. Court of Appeals for the 5th Circuit. The brief asks the court for a rehearing en banc of an NLRB decision to approve micro-unions within a single store, as the decision neglects years of precedent and introduces “significant and far-reaching implications for the entire retail industry.”  

The RLC and NRF argue that allowing sub-store bargaining units creates a negative ripple effect throughout the entire retail store. In addition to limiting employee opportunities for skill development and advancement by gerrymandering the workplace, “micro-units” decrease the ability of employees to provide seamless customer service across departments and weaken employee relationships throughout the store by establishing little employee “fiefdoms,” each with their own rules and compensation structures. 

“The NLRB has chosen to rewrite the rules in favor of bargaining policies that are harmful and disruptive to both employers and employees,” said Deborah White, president of the RLC. “We whole-heartedly support Macy’s in its petition to the court to reverse this decision and preserve the flexibility and growth opportunities unique to the retail workplace.”  

According to the brief: 

“The tension among workers that would result from the Balkanization of sales teams may not only cripple an employer’s business, but will also significantly weaken employees’ overall bargaining power. Some units within a single store would possess more economic leverage than others simply by virtue of their individual function, and those units would be able to negotiate more favorable terms and conditions of employment. Units without that strong bargaining power, however, could see their benefits sacrificed to make up the difference.”   

 “A unit that threatens conflict between employees, decimates morale, hinders customer service, slashes productivity, and multiplies administrative difficulties is a far cry from the Act’s purpose of advancing the “friendly adjustment of industrial disputes” and the “free flow of commerce.” En banc review is necessary to correct these far-reaching effects of the Board’s atextual and prejudicial decision.” 

The brief, drafted by Jason C. Schwartz, Thomas M. Johnson, Jr., and Lindsay S. See of Gibson, Dunn & Crutcher LLP, can be read here. 

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The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings that 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.  

NRF is the world’s largest retail trade association, representing discount and department stores, home goods and specialty stores, Main Street merchants, grocers, wholesalers, chain restaurants and Internet retailers from the United States and more than 45 countries. Retail is the nation’s largest private sector employer, supporting one in four U.S. jobs – 42 million working Americans. Contributing $2.6 trillion to annual GDP, retail is a daily barometer for the nation’s economy. NRF’s This is Retail campaign highlights the industry’s opportunities for life-long careers, how retailers strengthen communities, and the critical role retail plays in driving innovation.