Labor Law -- 2016



Macy's, Inc. v. NLRB   (5th Circuit)

Fifth Circuit case to reverse micro-unit determination

The NAM and coalition associations filed an amicus brief with the 5th Circuit on April 27, 2015 in Macy’s Inc. v. NLRB. The brief argued that the NLRB’s decision in Specialty Healthcare is erroneous. The new standard, as applied by a majority of the Board in Macy’s, provides that where the employees in the petitioned-for unit are a readily identifiable group who share a community of interest, they constitute a statutorily appropriate unit unless it can be demonstrated that other excluded employees share an “overwhelming community of interest” with the petitioned-for group. This new standard for determining the propriety of initial bargaining units flies in the face of the National Labor Relations Act’s statutory presumption in favor of broader bargaining units and departs from the standard consistently used by the Board for decades. The decision in Macy’s further encourages unions to engage in incremental organizing in the smallest units possible. The Board's new standards mean that unions will organize in units as small as possible and it will be virtually impossible for an employer to oppose the organizing effect either by campaign persuasion or through Board litigation. Because of these reasons, the NAM brief asked the Court to grant the petition for review and deny enforcement of the Board’s Order.

On June 2, 2016, the Fifth Circuit Court of Appeals upheld the NLRB's ruling, affirming the Specialty Healthcare standard for determining appropriate units in representation elections. On June 20, 2017, the Supreme Court denied Macy’s petition for a writ of certiorari after Macy’s asked the Supreme Court to consider whether the NLRB must explain the distinctions between employees when considering what constitutes a unit appropriate for collective bargaining. On June 20, 2017, the Supreme Court denied Macy’s petition for a writ of cert. after Macy’s asked the Supreme Court to consider whether the NLRB must explain the distinctions between employees when considering what constitutes a unit appropriate for collective bargaining.


Related Documents:
NAM brief  (April 27, 2015)

 


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