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

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June 4, 2012

By Doug Hass and Chris Johlie

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.

In Home Depot U.S.A., Inc., an NLRB Regional Director decided in November 2011 to reject the petitioner’s proposed unit of some, but not all, of the sales associates at a Home Depot retail store. The Regional Director found that, under current Board precedent, the only appropriate unit was the traditional retail wall-to-wall unit.  The petitioner challenged the decision on the grounds that it ignored or departed from Specialty Healthcare. In a one page decision issued on May 31, 2012, the Board unanimously denied the petitioner’s request for review, agreeing with the Regional Director “that the petitioned-for unit is not appropriate,” and noting that the petitioner had not sought any alternative unit. Tellingly, though, the Board did not adopt the Regional Director’s position on the retail industry presumption, finding it “unnecessary to pass on the Regional Director’s further finding that only a wall-to-wall unit is appropriate.

In a separate case, Bergdorf Goodman, the Regional Director had issued a decision finding that the petitioned-for micro-unit at the luxury retail goods store was appropriate. The Regional Director cited some decidedly trivial grounds in support, finding that the women’s shoe associates position:

requires a distinct skill set from other sales associates due to the unique nature of the product they are selling. If a shoe is not sized appropriately for customers, discomfort and possible knee, back and other physical injuries could result.

The Regional Director also found that the store compensated women’s shoe associates differently than other sales associates, and that those associates had little interaction with other store employees. She found that these factors outweighed the common terms and conditions of employment among all employees. The employer argued that because the Board had specifically stated in Specialty Healthcare that its ruling was not meant to disturb special industry and occupation rules for determining an appropriate bargaining unit, the Regional Director therefore had to follow the industry presumption of a wall-to-wall unit in retail settings. In response, the Regional Director held that “though the presumption of a store-wide unit exists, the presumption can and has been rebutted in this case.” The employer requested review of the Regional Director’s decision and, in a brief order late last week, the Board unanimously granted it “as it raises substantial issues warranting review.”

Given the current Board’s Democratic majority, it is quite possible that the Board granted the employer’s request with an eye toward officially eliminating “special industry and occupation rules” like the presumption for wall-to-wall units in a retail setting. Particularly in light of its qualification in Home Depot, it is highly unlikely that the Board’s ultimate decision in Bergdorf Goodman will do anything less than expand Specialty Healthcare’s reach to another critical industry. The Board’s pointed refusal to endorse wall-to-wall units in retail settings in Home Depot and its acceptance of the Bergdorf Goodman review bear careful attention in the coming months. 

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