NLRB Rules Bergdorf Shoe Sellers Are Mismatched for Micro-Bargaining Unit

by Obermayer Rebmann Maxwell & Hippel LLP

In a long-awaited decision, the National Labor Relations Board (NLRB) unanimously held that women’s shoe sales associates from two different departments within Bergdorf Goodman’s New York store could not be combined into a single micro-bargaining unit. Specifically, in Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 N.L.R.B. No. 11 (July 28, 2014), the NLRB dismissed a union’s petition for a representation election among 35 employees in the Salon shoe department and 11 employees in the Contemporary shoe department because the employees lacked a “community of interest.” The NLRB’s decision hinged on the fact that the boundaries of the petitioned-for unit did not resemble any administrative or operational lines drawn by the employer—the employees were in different departments, had different job classifications and did not report to the same supervisors. The decision highlights some important lessons for retail employers in preventing the certification of interdepartmental micro-bargaining units.

The Two Do Not Make a Pair

The NLRB explained that in order for the petitioned-for unit to be an appropriate bargaining unit, the employees in the petitioned-for unit must: (1) be readily identifiable as a group; and (2) share a community of interest. Here, the NLRB found that the petitioned-for employees (Salon shoe employees and Contemporary shoe employees) were readily identifiable as a group by virtue of their function: they comprise all sales associates at the employer’s retail store who are dedicated to selling women’s shoes.

However, the NLRB found that the petitioned-for unit was inappropriate because sales associates in Salon shoes and Contemporary shoes lacked a community of interest. In determining whether a petitioned-for unit is appropriate, the NLRB weighs various community-of-interest factors, including:

  • whether the employees are organized into a separate department;
  • have distinct skills and training;
  • have distinct job functions and perform distinct work;
  • are functionally integrated with the employer’s other employees;
  • have frequent contact with other employees;
  • interchange with other employees;
  • have distinct terms and conditions of employment; and
  • are separately supervised.

As an initial matter, the NLRB acknowledged that the petitioned-for employees shared some community-of-interest factors. Specifically, the NLRB found that the work of sales associates in Salon shoes and Contemporary shoes has a common purpose (selling women’s shoes) and that they are the only employees in the store to be paid on a “draw against commission” basis. Finally, along with all other employees store-wide, they share the same hiring criteria, receive the same employee handbook, and have the same appraisal process.

Despite these similarities, the NLRB explained that the balance of the community-of-interest factors weighed against finding that the petitioned-for unit was appropriate. Specifically, the Salon shoe employees and the Contemporary shoe employees were organized into different departments. There was no interchange between the two departments and the employees had limited contact. Further, the Salon shoe employees did not report to the same supervisors as the Contemporary shoe employees (except at the highest level of store management). Finally, there was no evidence that the Salon shoe employees and Contemporary shoe employees share any distinct skills or received any specialized training beyond the general orientation program that all new hires attend. The NLRB concluded:

"[W]hile some factors favor a finding of community of interest, they are ultimately outweighed, on these facts, by the lack of any relationship between the contours of the proposed unit and any of the administrative or operational lines drawn by the Employer (such as departments, job classifications, or supervision), combined with the complete absence of any related factors that could have mitigated or offset that deficit.

If the Shoe Fits . . . NLRB Contrasts Macy’s, Inc. Decision

The NLRB took care to distinguish its decision from its finding in Macy’s, Inc., 361 NLRB No. 4 (July 22, 2014) just six days earlier, wherein it affirmed an acting regional director’s decision that employees in a Macy’s department store’s cosmetics and fragrance department constituted an appropriate micro-bargaining unit. In Macy’s, Inc., the NLRB determined that the fragrance and cosmetics employees shared a community of interest, allowing for the establishment of their own bargaining unit because: (1) they all work in the same department, (2) they are all directly supervised by the same manager, (3) they all sell cosmetics and/or fragrances, (4) they have limited contact with other selling employees, (5) they all have the same commission-based pay structure and benefits, and (6) there is “limited” transfer of employees between the fragrance and cosmetic department and other store departments.

The NLRB explained that it found it particularly significant in Macy’s Inc. that the unit conformed to the departmental lines established by the employer in comprising all of the sales employees in the cosmetics and fragrances department. In contrast, while the Bergdorf Salon shoe employees constituted the whole of their department, the petition carved the Contemporary shoe employees out of a second department—Contemporary Sportswear—excluding the other sales associates in that department. In other words, although the employees represented all of the employees that sold shoes they were organized into completely different departments.

Points to Step Away With

Retail employers should be mindful that the NLRB will apply the “community of interest” test in determining appropriate micro-units. In its decision, the NLRB explained that the petition’s departure from any aspect of the employer’s organizational structure might be mitigated or outweighed by other community-of-interest factors, such as common supervision, interchange of employees between departments, and shared skills and training. Accordingly, to prevent the certification of micro-bargaining units, employees in different departments should not share direct supervisors (i.e., floor managers and directors of sales) and should not share employees (even on a temporary basis). Further, any training efforts beyond store-wide training should be kept separate. Nonetheless, both of these decisions highlight the NLRB’s willingness to accept micro-units within the workplace—a trend that will likely continue to be on the upswing.

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.

© Obermayer Rebmann Maxwell & Hippel LLP | Attorney Advertising

Written by:

Obermayer Rebmann Maxwell & Hippel LLP

Obermayer Rebmann Maxwell & Hippel LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.