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Total Articles: 18

Fifth Circuit Upholds Micro-Bargaining Unit at Retailer, But Dissent Finds Labor Board’s Legal Standard Wanting

The U.S. Court of Appeals for the Fifth Circuit has denied, 9-6, a retailer’s request for a rehearing of the decision of a three-judge panel of the Court upholding the National Labor Relations Board’s decision that the retailer must bargain with a unit limited to employees in its cosmetic and fragrance department. Macy’s, Inc. v. National Labor Relations Board, No. 15-60022 (Nov. 18, 2016).

Overruling Precedent, NLRB Holds Bargaining Units of Jointly and Solely Employed Employees May Elect Union Representative Absent Consent of Their Employers

In a departure from more than a decade-long precedent, the National Labor Relations Board has held that Board-conducted representation elections in bargaining units combining employees who are (a) jointly employed by a user employer and supplier employer and (b) solely employed by the user employer do not require the consent of either employer. Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016).

NLRB Paves the Way for Bargaining Units Composed of Employees of Two Different Employers

In a widely anticipated decision, the National Labor Relations Board has reversed its 2004 decision in Oakwood Care Center,1 and determined a union seeking to represent employees in a bargaining unit composed of employees solely employed by a “user employer” (a company that hires temporary workers) and those jointly employed by the user employer and temporary labor provider is not required to obtain the consent of both employers. In Miller & Anderson, Inc.,2 the Board held that in determining if a combined unit is appropriate, it will apply traditional “community of interest” factors.

The Other Shoe Drops—The NLRB’s “Contingent Workforce” Activism Continues

The National Labor Relations Board (NLRB) will now permit a single bargaining unit to include employees who are solely employed by an employer along with other employees who are jointly employed by that employer and a staffing provider, all without the consent of either employer. The NLRB’s July 11, 2016 decision in Miller & Anderson, Inc. overturns more than a decade of precedent under the NLRB’s 2004 Oakwood Care Center decision, in which the NLRB previously held that jointly-employed employees could not be included in a bargaining unit with solely-employed employees unless both employers consent to the multi-employer bargaining arrangement. In overturning Oakwood Care Center, the NLRB expressly reverted to the NLRB’s rule set forth in its 2000 decision in M.B. Sturgis, Inc.

NLRB Allows Bargaining Units With Temporary, Permanent Employees Without Employer Consent

In Miller & Anderson, Inc., the National Labor Relations Board has ruled that employer consent is not required for bargaining units that combine jointly employed and solely employed employees of a single employer. The Board reasoned that these units are appropriate so long as the contingent and regular employees "share a community of interest."

NLRB Holds Employer Consent Not Required for a Union to Represent a Bargaining Unit Combining both Regular and Temporary Employees

Executive Summary: In a July 11, 2016, decision that will make it easier for unions to organize temporary employees, the National Labor Relations Board (NLRB) overruled existing precedent and held a union may represent a bargaining unit consisting of both regular employees and temporary employees supplied by another employer even if the employers do not consent. See Miller & Anderson, Inc., 364 NLRB No. 39 (2016). Previously, the NLRB would not permit an election in a bargaining unit that combined employees from more than one employer unless all employers agreed. This decision increases the likelihood that employers who use temporary employees will become enmeshed in labor relations disputes involving those temporary employees.

NLRB Drops 30-Year Precedent on Employers’ Right to Unilaterally Oust Unions Representing ‘Mixed-Guard’ Units

A divided National Labor Relations Board has overturned its 30-year-old rule that an employer may withdraw recognition, even without a showing of a loss of majority status, from a voluntarily-recognized union that represents both guards and non-guards (“mixed-guard union”) with respect to a unit of guards.

Another Court of Appeals Upholds NLRB’s ‘Micro-Unit’ Policy for Union Elections

The Fifth Circuit Court of Appeals, in New Orleans, is the latest circuit court to uphold the National Labor Relations Board’s restrictive “micro-unit” approach to voting units in NLRB elections adopted in Specialty Healthcare, 357 NLRB No. 83 (2011). Macy’s Inc. v. NLRB, No. 15-60022 (5th Cir. June 2, 2016).

The Eighth Circuit Upholds Specialty Healthcare

Last week, the U.S. Court of Appeals for the Eighth Circuit upheld the National Labor Relations Board’s Specialty Healthcare framework for determining whether a union’s petitioned-for bargaining unit is appropriate. Under this two-step analysis, the Board evaluates whether the employees in the proposed unit are “readily identifiable” as a group and “share a community of interest.” If the unit is determined to be appropriate, an employer seeking to challenge the proposed unit must show that other workers not identified by the union share an “overwhelming community of interest” with the proposed bargaining unit. As we have previously reported in our November 24, 2015 alert, employers face a high hurdle when challenging a union’s petitioned-for bargaining unit under Specialty Healthcare.

Which of These Things Is Not Like the Other? NLRB Finds Micro-Unit of Shoe Sales Associates Not Appropriate

On Monday, a unanimous National Labor Relations Board dismissed a union petition seeking to represent 46 shoe sales associates at a Bergdorf Goodman store in New York. This decision comes on the heels of the NLRB’s ruling last week where the Board certified a “micro-unit” of Macy’s cosmetic and fragrance sales associates, relying on its controversial decision in Specialty HealthCare, 357 N.L.R.B. No. 83, 191 LRRM 1137 (2011).

NLRB Upholds Petitioned-For “Micro-Unit” at Boston-Area Macy's Store as Appropriate Under Specialty Healthcare

Earlier this week, in a 3-1 decision in Macy's Inc., the NLRB applied its controversial Specialty Healthcare decision in upholding as appropriate a bargaining unit that consists of 41 employees in the cosmetics and fragrances department at a Boston-area Macy’s store, and excludes all other sales employees at the store. This is the first case in which the NLRB has applied the Specialty Healthcare standard to a retail employer. The NLRB’s decision in this highly publicized case is unwelcome news for employers, particularly in the retail industry, as it provides support for unions' increasing efforts in seeking to organize "micro-units" consisting of small, discrete subsets of employees.

Sixth Circuit Enforces NLRB’s Controversial Specialty Healthcare Decision

In its 2011 decision in Specialty Healthcare, the National Labor Relations Board changed the test it uses to determine bargaining unit appropriateness. We reported on Specialty Healthcare and its expansion in an alert earlier this year, for the American Bar Association, and in a June 2012 FR Alert. In this case, the Board explained that where a non-petitioning party challenges a petitioned-for unit that is readily identifiable as a group and shares a community of interest on the grounds that it is inappropriate because it does not include additional employees, it has the burden of demonstrating an “overwhelming” community of interest between the included and excluded employees. Last week, the Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky, and Tennessee) upheld this controversial decision.

Legal Alert: 6th Circuit Affirms NLRB, Requires "Overwhelming Community of Interest" To Challenge Bargaining Units

Executive Summary: The Sixth Circuit Court of Appeals has affirmed the decision of the National Labor Relations Board (NLRB) in Specialty Healthcare, which requires employers to prove employees share an "overwhelming community of interest" to successfully challenge the composition of a bargaining unit. The court held that: (1) the Board may depart from its own precedent if it explains its decision and the departure is not arbitrary and capricious; (2) the Board's clarification and use of its "overwhelming community-of-interest" standard was clearly explained and therefore not an abuse of its discretion: (3) the Board did not violate the National Labor Relations Act (the Act) because it based its decision on factors beyond the extent of the union's organization efforts; and (4) the Board did not abuse its discretion by choosing to follow an already existing principle through adjudication instead of rulemaking. See Kindred Nursing Centers East v. NLRB (Aug. 15, 2013).

NLRB Continues to Expand Specialty Healthcare Bargaining Unit Standard and Upholds Smaller Bargaining Unit Despite Union’s Prior Agreement to Larger Unit

In its 2011 decision in Specialty Healthcare, the National Labor Relations Board changed the test it uses to determine bargaining unit appropriateness. We reported on Specialty Healthcare for the American Bar Association and in a June 2012 FR Alert. In that case, the Board explained that where a non-petitioning party challenges a petitioned-for unit that is readily identifiable as a group and shares a community of interest on the grounds that it is inappropriate because it does not include additional employees, it has the burden of demonstrating an “overwhelming” community of interest between the included and excluded employees. Specialty Healthcare arose in a non-acute healthcare facility, but the Board recently applied it outside the healthcare industry.

Fragmented Workforces: Specialty Healthcare and the Advent of “Micro-Units”

The National Labor Relations Board recently made it easier for unions to win representation elections by allowing unions to fragment workforces and cherry-pick the unit of employees most likely to support unionization. On March 20, 2013, this happened to a plumbing contractor’s workforce in Fraser Engineering Company, 359 NLRB No. 80 (2013), where the Board recognized a smaller unit of plumbers and pipefitters after having approved a larger unit only two years prior (when the union lost the election). Such “micro-units” were made possible by the Board’s decision in Specialty Healthcare, 357 NLRB No. 83 (2011). There, the Board substantially altered its traditional community-of-interest analysis for unit determinations, which considered factors such as:

National Labor Relations Board Signals Possible Expansion of “Micro” Units to Retail Industry

In its 2011 decision in Specialty Healthcare, the National Labor Relations Board paved the way for “micro” units in non-acute healthcare facilities. At the time, we warned that Specialty Healthcare could have an impact outside of the healthcare industry as well. Last week, the Board issued two brief rulings which, taken together, suggest that the Board is now ready to use Specialty Healthcare to eliminate other special industry and occupation unit determination rules, such as the presumption for store-wide units in retail stores.

Another Pro-Union Decision by the NLRB: Unions Now Allowed to Organize Select Employee Groups Instead of Companywide

In the latest move by the National Labor Relations Board (“the Board”) making it easier for unions to organize, the Board ruled on December 30, 2011, that unions may now target select groups of employees instead of organizing larger groups of employees with general common interests company- or facility-wide. In a case involving Northrop Grumman Shipbuilding, Inc., the Board affirmed a Regional Director’s order directing an election for a union-selected unit consisting only of nuclear safety technicians at a shipyard that builds nuclear-powered aircraft carriers and submarines. In other words, the Board allowed the union to carve out only the technicians the union wanted to organize, ignoring the other technicians at the facility even though they shared some community of interests with the nuclear safety technicians.

Retail Industry: Multi-Location Retail Store Not "Appropriate" For Bargaining.

The National Labor Relations Board (NLRB) recently held that a proposed bargaining unit of 32 Connecticut stores of Sleepy's Inc. was not an appropriate multi-location bargaining unit. The decision, by board members Leibman and Schaumber, provides insight into how a retailer's operations can impact the scope of a bargaining unit should organizing efforts take place.