Appeals court upholds NLRB decision that makes it easier to organize a union

A US appeals court on June 2 upheld a National Labor Relations decision that makes it easier for workers to join a union.

The Fifth Circuit Court of Appeals in New Orleans ruled that the NLRB acted appropriately in 2014 when it approved a petition by fragrance and cosmetic staff at a Massachusetts Macy’s department store for a union representation election.

Macy’s challenged the NLRB decision arguing that the appropriate bargaining unit for the union election was all sales employees in the store, not just employees in the fragrance and cosmetics unit.

In addition to arguing that the NLRB erred in this particular case, Macy’s argued that the court should overturn the NLRB’s Specialty Healthcare ruling, a precedent-setting decision that clarified what constitutes an appropriate bargaining unit within the workplace.

According to Specialty Healthcare as long as workers share an identifiable community of interest on the job, they constitute an appropriate bargaining unit and can vote on whether to join a union.

The NLRB made the ruling in 2011 after a group of nursing assistants at Specialty Healthcare, a nursing home in Mobile, Alabama, petitioned the NLRB to form a union among themselves.

Specialty Healthcare management argued that the nursing assistants were too small of a group to constitute a collective bargaining unit and that the appropriate bargaining unit should be all non-management staff because they all shared a community of interest.

The NLRB rejected management’s argument and said that unless all workers at the nursing home share an “overwhelming” community of interest, they do not have to be included in the bargaining unit.

The Fifth Circuit Court in its Macy’s decision allowed Specialty Healthcare to stand. The court’s decision was the fourth time that a US appeals court has upheld the NLRB’s Specialty Healthcare decision.

The case that led to the Fifth Circuit Court’s Macy’s decision began four years ago when United Food and Commercial Workers Local 1445 petitioned the NLRB for a union election among 41 fragrance and cosmetics employees at a Macy’s department store in Saugus, Massachusetts.

Macy’s appealed the decision, and in 2014, the NLRB denied Macy’s appeal and ordered a union election.

A majority of workers voted for the union, but Macy’s refused to bargain with its new union.

The union filed an unfair labor practices charge against Macy’s for not bargaining. When the NLRB agreed with the union, Macy’s appealed the decision to the courts.

Macy’s was joined in its appeal by a number of business associations including the US Chamber of Commerce.

They contended that allowing workers to form what they call micro-unions would result in the formation of a large number of small bargaining units creating chaos in the workplace and an employee relations nightmare for business.

More likely, what they are really concerned about is that as non-union workers see their fellow workers benefit from joining a union, more non-union workers will want to join the union.

Despite the Macy’s ruling and the other appeals courts’ rulings upholding Specialty Healthcare, business have not stopped trying to overturn it.

The most recent example is unfolding at the Volkswagen auto plant in Chattanooga, Tennessee.

In 2015, 152 skilled trades workers at the plant voted to join the United Autoworkers (UAW) in an NLRB union representation election.

The vote came a year after a narrow majority of the 1450 plant’s workers voted not to join UAW. Prior to the vote, state officials and business leaders threatened that a yes vote for the union would result in the loss of jobs at the Chattanooga plant.

In both elections, Volkswagen publicly stated that it would remain neutral.

But after the skilled trades workers voted to unionize, Volkswagen balked at recognizing the union and refused to negotiate a first contract.

In April, the NLRB ruled that Volkswagen had violated US labor law by refusing to bargain with the skilled trades workers’ union. Shortly after the decision, Volkswagen announced that it would challenge the ruling in court.

The UAW has mounted a campaign to put pressure on Volkswagen to bargain with the union.

The union is asking supporters to email Volkswagen and urge the company to “stop dragging its feet and get to work negotiating with Chattanooga skilled trades workers to create a better workplace.”

Back in Massachusetts, UFCW Local 1445 is moving ahead with its plan to negotiate a first contract for the fragrance and cosmetics employees at Macy’s Saugus store.

It is well positioned to do so. It already represents Macy’s workers in six stores in Massachusetts and Rhode Island.

The union has represented fragrance and cosmetic employees as separate bargaining groups in other stores for decades and so far, there has been no chaos or employee relations nightmares envisioned by Macy’s and its supporters.


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