The Creeping Union Part II: Why You Should Start Planning Now

In our last post, we summarized the 2011 Specialty Healthcare decision and the potential for the NLRB to recognize an unduly burdensome number of smaller collective bargaining units. So far, cases interpreting Specialty Healthcare indicate that the NLRB's expanded view has not resulted in a proliferation of arbitrary bargaining units.

Two recent cases decided within a week of each other this July - Macy's, Inc. and The Neiman Marcus Group, Inc. - demonstrate the current boundaries set by the NLRB.

Macy's examined a proposed micro-bargaining unit comprised of cosmetics and fragrances employees at a store in Massachusetts. Using the Specialty Healthcare analysis, the NLRB held that the proposed unit was a "readily identifiable unit who share a community of interest." In doing so, the NLRB noted that the petitioned-for unit of employees worked in mostly the same capacity in the same sales department, and performed their jobs in connected work areas under common supervision where they had only limited interaction with other employees.

By contrast, in Neiman Marcus, the NLRB also applied Specialty Healthcare but declined to find a community of interest among a group of women's shoes sales associates. In reaching that conclusion, the NLRB found it "particularly significant" that the proposed unit spanned separate departments, involved separate management groups, and aggregated groups of people who interacted on only a limited basis while simultaneously excluding others who worked in the same sales department.

What the NLRB "Micro-Unit" Cases Mean for Your Startup or Emerging Business

For most startups with few employees, Specialty Healthcare, and its recent progeny, does not provide an immediate cause for concern. However, it is helpful for the founders and executives to understand how these cases might impact the future growth...

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