August 14, 2020

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August 14, 2020

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Microunions and the National Labor Relations Board: What is a Valid Bargaining Unit?

The Retail Industry Leaders Association (RILA) and the Retail Litigation Center (RLC) recently filed an amicus brief asking the National Labor Relations Board (NLRB) to reconsider an NLRB Regional Director’s decision to allow a two department bargaining unit at a Bergdorf Goodman in New York. The Regional Director had blessed the union’s request to organize a bargaining unit comprised of only the 2nd floor ladies designer shoe department and the 5th floor women’s contemporary shoe department.

Imagine a customer shopping at a store that was comprised of 50 different bargaining units, with separate employees and work rules in children’s shoes, beauty products, home goods, toys, groceries, lawn and garden, men’s wear, etc. A store with any number of arbitrary units would hinder an employee from helping a customer who is looking for something outside of that employee’s specific department. The Regional Director had applied the NLRB’s new Specialty Healthcare standard, which essentially allows unions to gerrymander bargaining units based on its prior identification of a small number of employees who are predisposed to vote in favor of unionization. The standard contradicts prior NLRB precedent, which mitigated in favor of whole store bargaining units.

Given the legal precedent and strong policy considerations, the Board should conclude that the two-shoe department unit is not a valid bargaining unit. Toward that end, RILA and the RLC asked the NLRB to overturn the Regional Directors decision, reject Specialty Healthcare’s “overwhelming community of interest” test and reaffirm the application of traditional industry presumptions, including the traditional retail whole-store presumption.

A PDF of the Retail Industry Leaders Association's (RILA) and the Retail Litigation Center's  (RLC) amicus brief can be accessed here.

© Copyright 2020 Retail Industry Leaders AssociationNational Law Review, Volume II, Number 290

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About this Author

Deborah White, RILA, Corporate attorney
Executive Vice President & General Counsel

Deborah White oversees RILA’s corporate legal, compliance and litigation responsibilities. Deborah also serves as President of the Retail Litigation Center, which was created in 2010 to serve as the voice of the retail industry in the judicial branch. She is the principal contact for RILA’s General Counsel Committee.

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