NLRB urged to overturn retail micro-union certification

The Retail Litigation Center (RLC) and the Retail Industry Leaders Association (RILA) jointly submitted an amicus curiae brief to the National Labor Relations Board (NLRB) in support of Bergdorf Goodman’s appeal of an NLRB regional director’s recognition of a micro-union at a New York store location.

Last month, the NLRB region 2 director ruled that the Bergdorf Goodman women’s shoe departments on the second and fifth floor constituted a valid bargaining unit. The ruling relied upon the controversial 2011 NLRB decision in Specialty Healthcare, which redefined the standard for bargaining unit determinations, ostensibly only for a limited sector. Nonetheless, the decision is being broadly applied, contrary to well-settled law and with fantastical results such as the two-shoe department unit ratified here.

According to the brief, “Longstanding Board precedent makes this an easy case. The regional director’s decision must be reversed because it does not comport with the well-established rule that created a presumption in favor of the whole-store union in the retail context. This whole-store presumption has been repeatedly applied, across the past half-century, to reject far more inclusive proposed units of retail employees than the two-shoe departments in this case.”

The concept of micro-unions emerged from the NLRB’s August 2011 Specialty Healthcare decision. The new definition of a proper bargaining unit allows union organizers to gerrymander a workplace by cherry-picking small groups of employees within a larger work force that might not otherwise agree to union representation in order to form a micro-union.