One of the most important elements when a union petitions for an election to represent certain employees is the size of the voting unit or voting group. Generally, the smaller the voting unit, the easier it is for a union to organize and win the election. A recent decision by the National Labor Relations Board (NLRB) illustrates the activist tendencies of the current version of the NLRB and its movement in a direction which will allow unions greater opportunities to organize and to win elections.
A Macy’s store in Massachusetts had approximately 150 total employees, 120 of whom were “selling” employees. Approximately 41 of those selling employees worked in cosmetics and fragrances. The union sought to represent only that small group. The employer took the position that the only appropriate unit would include all other employees of the store, or at least all of the selling employees. That position was consistent with bargaining units approved by previous versions of the NLRB. However, in this case, the NLRB found that the smaller voting group was appropriate.
In making its decision, the Board looked at its previous decision in Specialty Healthcare in which it held that where a particular unit of employees the union seeks to represent is “readily identifiable as a group” and has a “community of interest” the unit will be found to be appropriate unless the employer carries the heavy burden of demonstrating that the additional employees it wants to include (1) have such an “overwhelming” community of interest with the employees petitioned for that (2) there is simply no legitimate basis upon which to exclude them. A “community of interest” is simply a generalized statement referring to the fact that similar terms and conditions of employment apply to all members of a particular group.
The NLRB found that the employer did not carry its burden and approved an election in the smaller unit.
The takeaway from this decision is significant. Past versions of the NLRB had stated that they wanted to avoid the “fragmentation of bargaining.” In other words, they did not want to saddle an employer with five or ten different bargaining units with five or ten different unions and the resulting potential of five or ten different contracts. With private sector union membership hovering around seven percent, however, it is clear that this NLRB is trying to make it easier for unions to organize employees. Does this decision mean that a union could come into an office facility and seek to represent only employees in accounts receivable, but not accounts payable? Or, to return to the department store analogy, represent only those employees in the clothing department who sold undergarments but not other types of clothing? Neither of those examples are out of the question in light of this decision. What it means is that employers cannot afford to ignore any segment of their employees, their concerns and their complaints. Unions frequently organize small groups to get into a particular company, and it is important to make sure that toehold is not established.