Department Store Units Decided Under Specialty Healthcare


This week the NLRB decided two cases involving union organizing in large department stores. In each case an NLRB regional director applied the Board’s Specialty Healthcare test to determine whether the bargaining unit requested by the union was appropriate. In Specialty Healthcare, the Board held that a unit will be presumptively appropriate for collective bargaining if it consists of (1) an identifiable group of employees (2) who share a community of interest.

Under Specialty Healthcare, employees are generally deemed identifiable as a group based on the employer’s organizational structure such as shared job titles or departmental organization. Employees are said to share a community of interest based on such factors as common supervision, working conditions, location, hours and the like, so that it makes sense for the employees to be represented in one unit for collective bargaining purposes.

In one of the cases, Macy’s, Inc., 361 NLRB No. 4 (2014), the Board affirmed the regional director and found a group of employees who sold cosmetics and fragrances to constitute an appropriate bargaining unit. In the other case, The Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 NLRB No. 11 (2014), the Board reversed the regional director and found that the employees selling women’s shoes did not constitute an appropriate bargaining unit.

The difference in outcomes lies with significance the Board placed on how the respective employers organized their employees for administrative purposes. The Board found that the unit of cosmetics and fragrances employees in Macy’s conformed to the departmental lines established by the employer, i.e., the cosmetics and fragrances employees were all in the same department, and they also shared other sufficient community of interest factors. By contrast, in Bergdorf Goodman the Board found that the women’s shoe employees were housed in two different departments and did not share other community of interest indicia sufficient to offset that fact.

The takeaway here is not that the Board is retreating from Specialty Healthcare, but that the Board applied Specialty Healthcare with particular emphasis on the way in which each employer grouped its employees for administrative and organizational purposes. This factor will be weighed heavily with other community of interest factors, and may be the key factor in any given case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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