An evaluation of recent NRLB decisions reveals a diversion from its historical favoring of wall-to-wall bargaining units in retail stores.
The first deviation
In the 2011 Specialty Healthcare case, the NRLB reiterated its policy that a petitioned-for unit needs to be an appropriate unit ? but not necessarily the most appropriate unit. It also reaffirmed utilization of the community of interest test when evaluating a proposed unit.
However, when employing the community of interest standard, the Board in Specialty Healthcare concluded that when employees petition for a unit that is “appropriate” (the employees share a “community of interest” based on job classification, departments, functions, location, skills and the employer’s organizational structure), the Board would hold that the unit is appropriate even if the employee group could be placed in the larger unit, which might also be appropriate.
The Board in Specialty Healthcare appeared to be abandoning the “wall-to-wall” presumption by allowing small units comprised of one department or one job classification. However, two decisions issued the following year indicate that Specialty Healthcare requires further clarification, as explained below.
Two conflicting decisions increase uncertainty
In its May 31, 2012 Home Depot decision, the NLRB agreed with the Regional Director’s finding that a petition for a unit which did not seek all of the sales associates at a retail store was inappropriate and that the only appropriate unit in that case was the wall-to-wall. In its appeal, the retail store had argued that the Regional Director had failed to apply the legal standard set forth in Specialty Healthcare. In its one-page decision affirming the Regional Director’s finding, the Board indicated that it found no reason to overrule the Regional Director’s traditional “wall-to-wall” presumption.
That same day, the NLRB granted review of an appeal from an employer in Bergdorf Goodman. In that case, the Regional Director had ruled that a unit consisting of women's shoes associates on different floors in one New York store was appropriate because the sales associates in that unit possess a unique set of skills and are paid differently from other sales associates. The employer appealed. The Board unanimously granted the request stating that the case “raises substantial issues warranting review.” A final decision has not yet been issued.
The final blog of this series of posts on wall-to-wall bargaining units will focus on what an employer may do in light of recent decisions and issues pending with the NLRB.