Avoid Making Your Business “Easy-to-Unionize”

Written by Robert G. Brody and Abby M. Warren on September 30, 2014

Last year, the National Labor Relations Board (“Board”) put its stamp of approval on “micro-units,” or small groups of employees who may unionize.  The Board recently decided two cases involving micro-units in Macy’s and Bergdorf Goodman, which should make employers ask themselves, “Does my business model make it easier for a union to organize my employees?” See Bergdorf Goodman & Local 1102 Retail, 2014, NLRB LEXIS 587 (NLRB July 28, 2014) and Macy’s, Inc., 2014 NLRB LEXIS 569 (NLRB July 22, 2014).

It is well-settled Board law that in order to show a bargaining unit is appropriate, two requirements must be met:  1) the employees in the unit must be “readily identifiable” and 2) the employees share a “community-of-interest.”  In order to find a “community-of-interest,” the Board will weigh factors such as whether the employees are organized into a separate department, have distinct skills and training, have distinct job functions and perform distinct work, are functionally integrated with the employer’s other employees, have frequent contact with other employees, interchange with other employees, have distinct terms and conditions of employment, and are separately supervised.  If these two requirements are satisfied, the burden shifts to the other side to prove that additional employees share an “overwhelming” community-of-interest with the petitioned-for employees.

In Macy’s, the petitioned-for bargaining unit was comprised of cosmetics and fragrances employees who worked in two areas of the store.  Macy’s argued the bargaining unit should include all employees and alternatively all selling employees.  The Board disagreed and found both requirements for a micro-unit were met.  Regarding the community-of-interest, the Board found the employees in this department, despite being split between two floors, were part of the same department, shared purpose and functional integration, worked almost exclusively in that department, did not regularly interact with other departments, shared management, and shared policies and compensation practices.

In Bergdorf Goodman, the petitioned-for bargaining unit was comprised of two separate women’s shoe departments, the Salon Shoes and Contemporary Shoes.  Bergdorf argued the bargaining unit should be all selling associates.  The Board found that although the women’s shoes sales associates were readily identifiable, they did not share a community-of-interest.  The Board held the most significant factor, how the employer chose to structure the workplace, did not show integration.  Basically, Bergdorf never intended to combine these two departments into one.  In fact, the Contemporary Shoes employees were part of a totally different department.

In both cases, the Board gave considerable weight to how the employer structured the business.  Employers should review their business model.  If you see the possibility for a micro-unit, consider:

  1. Cross-training employees in several departments;
  2. Interchanging employees among departments;
  3. Ensuring frequent contact between employees at various departments;
  4. Integrating operations where possible;
  5. Using unified policies, practices, terms, and conditions of employment; and/or
  6. Grouping multiple departments under one supervisor.

Of course, these suggestions should not be considered in a vacuum as operational needs may render these suggestions impossible.  Before you make organizational changes based on the future possibility of unionization, you should consult with competent labor counsel.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

THIS ARTICLE WAS FIRST PUBLISHED ON THE LAW.COM CONTRIBUTOR NETWORK ON SEPTEMBER 30, 2014.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More