Defining an Appropriate Bargaining Unit; Guidance after Specialty Healthcare

In Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) enfd. 727 F.3d 552 (6th Cir. 2013), the National Labor Relations Board clarified its long-standing community of interest test used to determine whether a petitioned for unit is “appropriate” under the Act.  In Macy’s, Inc., 361 NLRB No. 4 (July 22, 2014) and The Neiman Marcus Group, Inc., 361 NLRB No. 11 (July 28, 2014) the Board gives guidance on applying Specialty Healthcare and defining an appropriate unit.

In Macy’s, the Board found a unit of the employees in the cosmetics and fragrances department to be appropriate without the inclusion of any other sales employees from the department store.  The finding is based on the departmental lines of the Employer, the supervisory structure, the lack of temporary interchange with employees in other departments, and the common, integrated function and work areas of the employees.  

In comparison, in The Neiman Marcus Group, the Board found a unit of all employees who sell woman’s shoes was inappropriate because the two different departments in which those employees worked did not share a sufficient community of interest.  The petitioned for unit included employees in the high-end shoe department, as well as employees from the more contemporary, less costly sub-department of women’s shoes.  The high-end shoe department was separately managed under a different director and manager and the contemporary shoe sub-department was affiliated with a different department.  Based on these structural differences, the Board found the employees in the petitioned for unit in Neiman Marcus Group lacked a community of interest.  

In The Neiman Marcus Group, the Board did not decide the question of whether, had they petitioned separately, employees selling high-end shoes, by themselves, would be an appropriate unit.

When petitioning for a unit, pay attention to the Employer’s departmental designations, management structure and functional integration of employees; these factors may be more important than the common function of the employees. 

For information, contact your labor law counsel. 

By Caren Sencer | September 10, 2014

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