NLRB upholds workers’ right to form minority unions

The National Labor Relations Board on January 7 affirmed that workers have the right to form minority unions as long as the unions meet a long-established criteria for determining what constitutes an appropriate collective bargaining unit.

The ruling resulted from an appeal by Macy’s department store regarding a decision by the NLRB’s general counsel.

The general counsel last summer upheld a ruling by the NLRB’s Region 1 that 41 sales people in the fragrance and cosmetics department of Macy’s store in Saugus, Massachusetts constituted an appropriate bargaining unit even though the employees in the fragrance and cosmetics department were a minority of the store’s sales force.

Macy’s appeal was a response to an organizing campaign at its Saugus store.

United Food and Commercial Local 1445 had tried unsuccessfully to organize the sales staff at the store.

After the union suffered a union representation election defeat, it decided to continue its campaign by seeking bargaining status for a minority union in the store.

The fragrance and cosmetic department in the store was one department where the union thought it had a solid base of support.

The workers in that department subsequently petitioned for a union election.

The company asked the NLRB’s Region 1 to reject the petition because the fragrance and cosmetic department wasn’t an appropriate bargaining unit; the only appropriate bargaining unit, according to Macy’s, was the entire sales force.

Region 1 disagreed. According to Region 1, the sales personnel in the fragrance and cosmetic section were a distinct department within the store managed by a supervisor who didn’t manage other sales departments. As a result, the employees within the department were a readily identifiable group who shared a community of interests, which made them an appropriate bargaining unit.

After Region 1 made its ruling, the union representation election was held, and the workers voted to join Local 1445.

After the victory, the workers thought that Macy’s would sit down with them and bargain for a first contract.

Instead, Macy’s refused to bargain, which led the union to file an unfair labor practices charge with the NLRB.

In its response to the charge, Macy didn’t deny that it refused to bargain with the union, but argued that the minority union wasn’t an appropriate bargaining unit; consequently the company shouldn’t be required to bargain with it.

The NLRB’s General Counsel and the board itself subsequently upheld the ruling of Region 1.

In its ruling handed down on January 7, the board said that Macy’s “has violated Section 8(a)(5) and (1) of the (National Labor Relations) Act” and ordered the company “to bargain on request with the union.”

In making its Macy’s ruling, the NLRB applied the same standard about minority unions that it made in 2011 when it ruled that nursing assistants at Healthcare Specialties in Mobile, Alabama constituted an appropriate bargaining unit even though the nursing assistants were a minority of the workforce at Healthcare Specialties, a company that operates assisted-care living centers.

The NLRB’s Healthcare Specialties decision raised the hackles of business interests and caused them to launch a concerted public relations campaign to overturn the board’s decision on minority unions and to discredit the board.

Among other things, business lobbied successfully to get legislation introduced in the US House of Representatives that would nullify the board’s decision on minority unions.

Business argues that allowing minority unions will lead to a proliferation of fragmented bargaining units that will have to be dealt with separately creating a nightmare management problem that will result in higher administrative costs, which, of course, will have to be passed along to customers.

But there may be another reason that business is so perturbed about the possibility of dealing with minority unions: if minority unions successfully negotiate a fair collective bargaining agreement, other workers in the same company may decide that they want to join a union too.

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