Before engaging in collective bargaining negotiations, a bargaining unit needs to be formed. The National Labor Relations Board (NLRB) has historically favored the wall-to-wall bargaining unit in retail stores ? the criteria utilized today developed in the early 1950s into what is now known as the traditional “community of interest” test.
The traditional analysis
The NLRB traditionally examined the issue of the appropriate retail store bargaining unit through a community of interest test. The Board analyzed whether the employees in the proposed unit have common interests that are different from employees excluded from the unit. In its analysis, the NLRB reviewed the following factors:
Similarity of employees’ duties, skills and working conditions
Geographic cohesiveness and proximity
Whether the business operations can be functionally integrated
If there is centralized control of supervision, labor relations and overall management
Common collective bargaining history
From the community of interest test emerged the presumption that a wall-to-wall unit is appropriate for retail stores.
In the 1956 case A. Harris & Company, the Board established a three-part test that, when satisfied, would permit the establishment of multiple units rather than a single wall-to-wall unit. This test examined the factors listed below:
Managerial independence – Is the proposed unit under separate management from the rest of the store’s employees (e.g., the employees perform their day-to-day work under the direct authority of one supervisor who possesses the authority to hire and fire employees)?
Geographic remoteness — Do the members of the unit work in an isolated geographic area (e.g., in a different building from the other employees)?
Distinct responsibilities — Do the employees in the proposed unit work separately from other employees, meaning that there no integration of their job responsibilities with that of the other employees?
Until recently, the NLRB investigated each case independently using the traditional analyses. Although exceptions have been made for separate bargaining units where the employees lacked a community of interest, this is usually not the case and the presumption has been that the single, “wall-to-wall” unit is the most appropriate bargaining unit for retail store employees.
In the upcoming third part of our four-part series, we will discuss how recent cases have chipped away at the single bargaining unit presumption.