‘Micro-Unions,’ the NLRB and Bargaining-Unit Gerrymandering

In the (admittedly artificial and arbitrary) world of labor relations law, as of not too long ago, the going premise was that a union election should be held within whatever was the most appropriate bargaining unit considering the similarity of interests among groups of workers at a given enterprise. But in a ruling last year in a case called Specialty Healthcare, and more recently this May in one concerning New York’s Bergdorf Goodman department store, the National Labor Relations Board (NLRB) has ruled in favor of the carving out of so-called “micro-unions,” smaller grouplets of workers which the union has selected in part because it thinks it can assemble a majority within those groups if not necessarily within larger workplace aggregates. In the Bergdorf Goodman case, to quote the National Right to Work Legal Defense Fund,

the Regional Director held that the requested unit of “full-time and regular part-time womens’ shoes associates in the 2nd Floor Designer Shoes Department and in the 5th Floor Contemporary Shoes Department” is an appropriate unit considering traditional “community of interest” factors. The Neiman Marcus Group, Inc., d/b/a Bergdorf Goodman, 02-RC-076954.

The Regional Director noted that, although the employer’s contention that a larger unit of all retail sales associates would also be appropriate or even more appropriate, the test is not the single most appropriate unit. Rather, to defeat a union’s petitioned-for unit, the burden is now on the employer to demonstrate that employees in its counter-proposed, larger unit “share an overwhelming community of interest with those in the [union’s] petitioned-for unit.

Business is up in arms about the change of policy, which it says will engender chaos and unpredictability all for the sake of giving unions a foothold in workplaces where a majority of workers do not welcome them. But a Congressional bid to cut off funding for the policy’s enforcement failed this summer on a party-line Senate committee vote.

Last year, when Overlawyered noted this emerging issue, commenter Chris Hoey wrote that it was not actually all that new:

At one point this tactic was called “extent of organization,” and was considered to be invalid as against the statutory scheme of Section 9 of the NLRA. It was used extensively in the early 60’s by the so called Kennedy and later Johnson Board. As an example of the ridiculous extremes, at one of my clients, a garment maker, the NLRB included the fabric cutters who cut 1” and over strap widths were in the unit, while those who cut 1/2” were excluded, notwithstanding the fact their machines were intermingled on the production floor.

The client closed the plant before the absurdity could be tested in the courts.