Total Articles: 18
Jackson Lewis P.C. • December 13, 2016
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).
Jackson Lewis P.C. • July 14, 2016
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).
Littler Mendelson, P.C. • July 13, 2016
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.
Ogletree Deakins • July 13, 2016
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.
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."
FordHarrison LLP • July 12, 2016
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.
Jackson Lewis P.C. • June 24, 2016
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.
Jackson Lewis P.C. • June 21, 2016
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).
Franczek Radelet P.C • March 15, 2016
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.
Franczek Radelet P.C • July 31, 2014
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).
Franczek Radelet P.C • July 25, 2014
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.
Franczek Radelet P.C • August 21, 2013
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.
FordHarrison LLP • August 20, 2013
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).
Franczek Radelet P.C • April 09, 2013
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.
Ogletree Deakins • April 04, 2013
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:
Franczek Radelet P.C • June 05, 2012
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.
Jones Walker • January 11, 2012
In the latest move by the National Labor Relations Board (â€œthe Boardâ€) 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 Directorâ€™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.
Fisher Phillips • June 01, 2010
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.