The Creeping Union Part II: Why You Should Start Planning Now

16 September 2014 Privacy, Cybersecurity & Technology Law Perspectives Blog

In our last post, we summarized the 2011 Specialty Healthcare decision and the potential for the NLRB to recognize an unduly burdensome number of smaller collective bargaining units. So far, cases interpreting Specialty Healthcare indicate that the NLRB’s expanded view has not resulted in a proliferation of arbitrary bargaining units.

Two recent cases decided within a week of each other this July – Macy’s, Inc. and The Neiman Marcus Group, Inc. – demonstrate the current boundaries set by the NLRB.

Macy’s examined a proposed micro-bargaining unit comprised of cosmetics and fragrances employees at a store in Massachusetts. Using the Specialty Healthcare analysis, the NLRB held that the proposed unit was a “readily identifiable unit who share a community of interest.” In doing so, the NLRB noted that the petitioned-for unit of employees worked in mostly the same capacity in the same sales department, and performed their jobs in connected work areas under common supervision where they had only limited interaction with other employees.

By contrast, in Neiman Marcus, the NLRB also applied Specialty Healthcare but declined to find a community of interest among a group of women’s shoes sales associates. In reaching that conclusion, the NLRB found it “particularly significant” that the proposed unit spanned separate departments, involved separate management groups, and aggregated groups of people who interacted on only a limited basis while simultaneously excluding others who worked in the same sales department.

What the NLRB “Micro-Unit” Cases Mean for Your Startup or Emerging Business

For most startups with few employees, Specialty Healthcare, and its recent progeny, does not provide an immediate cause for concern. However, it is helpful for the founders and executives to understand how these cases might impact the future growth of their company. In particular, as a company grows in scale, it can use factors discussed in Specialty Healthcare, Macy’s and Neiman Marcus to identify possible constituencies and anticipate how they might impact its business. For example, a startup should consider the following:

  • Is there a group of employees at the company who all perform the same function?
  • Is that group of employees supervised by the same managers?
  • Within the company hierarchy, does that group of employees constitute a single department or group (as opposed to spanning a number of departments containing other employees not included in the group)?

If the answer to these questions is yes, then there is a possibility that the group could be identified as a community of interest and, therefore, a potential bargaining unit. What should be done to guard against this possibility is up to each individual business. If the goal is to avoid micro-bargaining units, then, at the very minimum, the Specialty Healthcare factors provide a lens through which to examine the possible existence in a business.

A prudent startup hoping to avoid the formation of micro-unions would be well advised to look at all the major factors considered by the NLRB and, to the extent possible, maintain a flexible, integrated and well-rounded work staff with common management when doing so supports its business goals.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

Bad Holiday Season News! Estimates of an increase of Cyberattacks 20%!
13 December 2019
Internet, IT & e-Discovery Blog
Driving the Future of Automotive Technology
12 December 2019
Manufacturing Industry Advisor
Massachusetts Governor Proposes Facility Fee Ban
12 December 2019
Health Care Law Today
American Rule Prevails; PTO May Not Collect In-House Attorneys' Fees as "Expenses"
12 December 2019
IP Litigation Current
ACCC 46th Annual Meeting & Cancer Center Business Summit
04-05 March 2020
Washington, D.C.
Foley/Deloitte Compliance and Privacy Officer Roundtable
27 February 2020
Boston, MA
Let’s Talk Compliance
24 January 2020
Orlando, FL
New England Alliance Annual Meeting
15-17 January 2020
Woodstock, VT