No. 15-60022 __________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________ MACY’S, INCORPORATED, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. __________________ Petition for Review of a Decision of the National Labor Relations Board __________________ BRIEF OF PETITIONER CROSS-RESPONDENT __________________ Willis J. Goldsmith JONES DAY 222 East 41st Street New York, NY 10017 Tel: (212) 326-3649 Fax: (212) 755-7306 [email protected]Shay Dvoretzky David Raimer JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001 Tel: (202) 379-3939 Fax: (202) 626-1700 [email protected]Counsel for Petitioner Cross- Respondent Macy’s, Inc.
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No. 15-60022 __________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT __________________
MACY’S, INCORPORATED,
Petitioner Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent Cross-Petitioner. __________________
Petition for Review of a Decision of the National Labor Relations Board
__________________
BRIEF OF PETITIONER CROSS-RESPONDENT __________________
Willis J. Goldsmith JONES DAY 222 East 41st Street New York, NY 10017 Tel: (212) 326-3649 Fax: (212) 755-7306 [email protected]
Shay Dvoretzky David Raimer JONES DAY 51 Louisiana Avenue, N.W. Washington, DC 20001 Tel: (202) 379-3939 Fax: (202) 626-1700 [email protected] Counsel for Petitioner Cross-Respondent Macy’s, Inc.
Macy’s, Incorporated v. National Labor Relations Board, No. 15-60022
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 of the Rules of this
Court have an interest in the outcome of this case. These representations are made
so that the judges of this court may evaluate possible disqualification or recusal.
Petitioner Cross-Respondent
1. Macy’s Incorporated. Macy’s, Inc. hereby discloses that it is a
publicly traded corporation. Macy’s, Inc. further discloses that no publicly held
corporation owns 10% or more of its stock, and that it does not have a parent
corporation. Macy’s, Inc. owns 100% of the stock of Macy’s Retail Holdings, Inc.,
which owns the store at issue in this litigation.
Respondent Cross-Petitioner 1. National Labor Relations Board Intervenor
1. Local 1445, United Food and Commercial Workers International Union
Appellate Counsel for Petitioner Cross-Respondent
1. Shay Dvoretzky David Raimer Jones Day 51 Louisiana Avenue, N.W. Washington, DC 20001
ii
2. Willis J. Goldsmith Jones Day 222 East 41st Street New York, NY 10017
Counsel for Petitioner Cross-Respondent in Proceedings Below 1. William F. Joy Morgan, Brown & Joy, LLP 200 State Street Boston, MA 02109
Appellate Counsel for Respondent Cross-Petitioner
1. Linda Dreeben Julie Brock Broido Gregory Paul Lauro National Labor Relations Board 1099 14th Street, N.W. Washington, DC 20570 3. Jonathan Kreisberg National Labor Relations Board 10 Causeway Street Boston, MA 02222-1072
Appellate Counsel for Intervenor
1. Alfred Sebastian Gordon O’Connell Pyle, Rome, Ehrenberg, P.C. 2 Liberty Square Boston, MA 02109 2. James B. Coppess Matthew James Ginsburg AFL-CIO 815 16th Street, N.W. Washington, DC 20006
iii
Counsel for Intervenor in Proceedings Below 1. Warren H. Pyle Pyle, Rome, Ehrenberg, P.C. 2 Liberty Square Boston, MA 02109
STATEMENT OF ISSUES ...................................................................................... 4
STATEMENT OF THE CASE ................................................................................. 4
I. FACTUAL BACKGROUND ........................................................................... 5
A. Macy’s Stores Are Organized to Provide Customers with an Integrated Shopping Experience ................................................................. 5
B. All Sales Employees Operate Under Nearly Identical Terms and Conditions of Employment While Working Together to Provide Customers with Seamless Service .............................................................. 7
II. PROCEDURAL HISTORY ............................................................................ 10
SUMMARY OF ARGUMENT .............................................................................. 14
STANDARD OF REVIEW .................................................................................... 16
I. THE UNIT SANCTIONED BY THE BOARD WAS CLEARLY NOT APPROPRIATE .............................................................................................. 18
A. The Relevant Factors Establish That the Unit Approved by the Board Was Clearly Not Appropriate ........................................................ 21
B. The Board Failed to Adequately Explain Its Decision to Deem the Cosmetics-and-Fragrances Department an Appropriate Unit .................. 24
C. The Board’s Decision to Deem a Single Department of a Single Department Store an “Appropriate” Unit Will Wreak Havoc in the Retail Industry ........................................................................................... 30
TABLE OF CONTENTS (continued)
Page
vi
II. THE NLRB WAS ABLE TO CERTIFY THE PETITIONED-FOR UNIT ONLY THROUGH AN “OVERWHELMING COMMUNITY OF INTEREST” TEST THAT CANNOT BE SQUARED WITH THE NLRA OR PRIOR BOARD PRECEDENT GOVERNING INITIAL UNIT DETERMINATIONS ........................................................................... 35
A. The “Overwhelming Community of Interest” Test Violates the NLRA ........................................................................................................ 37
B. The Board Failed to Provide a Reasoned Explanation for Its Departure from Past Precedent When Adopting the “Overwhelming Community of Interest” Test .................................................................... 45
1. The “Overwhelming Community of Interest” Test Is Inconsistent with the Board’s Past Precedent Governing Initial Unit Determinations ........................................................................... 47
2. The Board Improperly Imported the “Overwhelming Community of Interest” Standard from the Accretion Context ......... 49
3. The “Overwhelming Community of Interest” Test Is Inconsistent with Standards the Board Has Previously Applied to the Retail Industry .......................................................................... 52
C. The Board Violated the Administrative Procedure Act by Using Adjudication to Promulgate a New “Rule” for Determining Appropriate Bargaining Units ................................................................... 55
III. EVEN UNDER THE SPECIALTY HEALTHCARE STANDARD, THE BOARD APPROVED AN INAPPROPRIATE BARGAINING UNIT ........ 60
CERTIFICATE OF SERVICE ............................................................................... 64
CERTIFICATE OF COMPLIANCE ...................................................................... 65
TABLE OF AUTHORITIES
Page(s)
vii
CASES
Allied Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971) ............................................................................................ 18
First Bancorp. v. Bd. of Governors of the Fed. Reserve Sys., 728 F.2d 434 (10th Cir. 1984) .....................................................................passim
Ford Motor Co. v. FTC, 673 F.2d 1008 (9th Cir. 1981) ............................................................................ 56
Haag Drug Co., 169 N.L.R.B. 877 (1968) .................................................................................... 20
Hotel Servs. Grp., Inc., 328 N.L.R.B. 116 (1999) .................................................................................... 28
TABLE OF AUTHORITIES (continued)
Page(s)
viii
I. Magnin & Co., 119 N.L.R.B. 642 (1957) .............................................................................passim
Motor Vehicle Mfrs. Ass’n. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................. 45
United States v. Fla. E. Coast Ry. Co., 410 U.S. 224 (1973) ...................................................................................... 56, 60
Zev J. Eigen & Sandro Garofalo, Less Is More: A Case for Structural Reform of the National Labor Relations Board, 98 Minn. L. Rev. 1879 (2014) ............................................................................ 46
William H. Haller, Tempest in a Bedpan? The Specialty Healthcare Controversy, 29 ABA J. Lab. & Employment L. 465 (2014) ............................ 46
H.R. Rep. No. 80-245 (1947), reprinted in 1 NLRB, Legislative History of the Labor Relations Act (1948) ................................................... 37, 38
H.R. Rep. No. 80-510 (1947), reprinted in 1 NLRB, Legislative History of the Labor Relations Act (1948) ......................................................... 33
Edward Phillips & Steven E. Kramer, The Law at Work: New NLRB ‘Quickie Election’ Procedures, 48 Tenn. B.J. 30 (2012) ................................... 46
Glen O. Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Procedure Reform, 118 U. Pa. L. Rev. 485 (1970) ...................................... 57, 58
TABLE OF AUTHORITIES (continued)
Page(s)
xii
Tanja J. Thompson & Brenda N. Canale, Has Specialty Healthcare Changed the Landscape in Organizing and Representation Proceedings?, 29 ABA J. Lab. & Employment L. 447 (2014) .......................... 46
1
INTRODUCTION
Congress has tasked the National Labor Relations Board (“NLRB” or the
“Board”) with determining “unit[s] appropriate for the purposes of collective
bargaining” under the National Labor Relations Act (“NLRA”). 29 U.S.C.
§ 159(b). The Board may not allow a union’s choice of unit to have a
“controlling” effect on its determination. Id. §159(c)(5). Rather, the Board must
assess “in each case” whether the interests of employees seeking to unionize are
sufficiently distinct from those of their co-workers so that it is appropriate for them
to organize separately. Id. §159(b).
Here, the Board determined that the cosmetics-and-fragrances department of
a single Macy’s store in Saugus, Massachusetts, was an “appropriate” bargaining
unit. It did so even though the interests of cosmetics-and-fragrances sales
employees are virtually indistinguishable from those of sales associates in the
store’s ten other departments. All selling employees function as part of an
integrated store designed to provide customers with a single location at which to
purchase an array of products from knowledgeable salespeople. All are subject to
the same employee handbook, receive the same benefits, participate in the same
dispute resolution program, and are evaluated under the same criteria. Cosmetics-
and-fragrances sales employees staff the same shifts as their colleagues in other
departments, use the same entrances, share the same breakrooms, attend the same
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daily meetings, and punch in and out using the same timecard system. No prior
experience is needed for any position in the store; Macy’s trains all employees in
customer service and selling techniques, and coaches them to encourage customers
to purchase items from different departments.
Because selling employees regularly share these and other interests, the
Board has long favored storewide bargaining units composed of all employees or
all selling employees in a particular retail store. Here, however, the Board swept
these similarities aside, applying a novel test from a completely different area of
labor law to stack the deck in favor of the union’s proposed unit. According to the
Board, if the employees of a proposed unit share even a modicum of common
interests, that unit is “appropriate” unless an objecting employer carries the heavy
burden of showing that the interests of excluded employees “overlap almost
completely” with those in the proposed unit. The manner in which the Board
applied this “overwhelming community of interest” test skews the analysis so
heavily in favor of union-proposed units that they become nearly impervious to
challenge. By impermissibly affording “controlling” weight to the union’s choice
of unit—a subset of the store’s selling employees—the Board dispensed with
decades of prior precedent and abdicated its statutory duty to assess the propriety
of petitioned-for units “in each case.”
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The Board’s decision has far-reaching consequences for Macy’s and other
retailers. As evidenced by existing agreements with employees in other stores in
the region, Macy’s has long negotiated with properly constituted bargaining units.
But units of the sort approved by the Board here make bargaining unmanageable.
In Saugus alone, Macy’s could be forced to bargain with up to eleven unions,
should other sales departments unionize. Nationwide, Macy’s operates over 800
stores, and thus could be compelled to bargain with upwards of 8,000 units across
the country if each department organizes separately. Moreover, Macy’s and other
employers may be forced to address countless obligations within a single store, as
different unions lobby for different hours, wages, or benefits. And successive
strikes by different micro-unions could cripple entire stores—or, at a minimum,
prevent retailers from carrying out their business model of offering a full range of
products to customers.
These untenable results contravene the NLRA and the precedents of this
Court and the Board itself. Accordingly, this Court should grant Macy’s petition
for review and deny the Board’s cross-application for enforcement.
JURISDICTIONAL STATEMENT
The NLRB had jurisdiction under 29 U.S.C. § 160(a). The Board issued its
decision on January 7, 2015, and Macy’s filed a petition for review on January 8,
2015. The NLRB filed a cross-application for enforcement on February 26, 2015.
4
This Court has jurisdiction over the cross-application and petition under 29 U.S.C.
§ 160(e) and (f), respectively, because Macy’s transacts substantial business within
this circuit.
STATEMENT OF ISSUES
1. Whether a unit consisting only of the cosmetics-and-fragrances sales
employees at a single Macy’s store constitutes a “unit appropriate for the purposes
of collective bargaining” under the NLRA.
2. Whether the NLRB’s “overwhelming community of interest” test, as
set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 N.L.R.B.
No. 83, 2011 NLRB LEXIS 489 (Aug. 26, 2011), and as applied in this case, is
improper for three independent reasons:
a. It impermissibly affords controlling weight to the union-
proposed unit in violation of the NLRA.
b. It departs from past Board precedent without a reasoned
explanation.
c. It violates the Administrative Procedure Act because the Board
improperly promulgated it through adjudication rather than rulemaking.
STATEMENT OF THE CASE
Macy’s Inc. owns and operates department stores across the country.
ROA.439. Macy’s stores—“like countless others in the retail industry”—are
5
“enormous[ly] complex[]” operations, involving “an array of products and brands”
and “salespeople who have overlapping relationships with customers and one
another.” ROA.471. This case involves the efforts of Local 1445, United Food
and Commercial Workers Union (the “Union”), to unionize a single department—
cosmetics and fragrances—at a single Macy’s store in Saugus, Massachusetts.
I. FACTUAL BACKGROUND
A. Macy’s Stores Are Organized to Provide Customers with an Integrated Shopping Experience
Macy’s stores are designed to maximize customer convenience. The Saugus
store is divided into eleven primary sales departments, staffed by dedicated
associates: bridal; cosmetics and fragrances; fashion jewelry; fine jewelry;
furniture; handbags; home (housewares); juniors; men’s clothing; ready to wear
(women’s clothing); and women’s shoes. ROA.439. These departments are
arranged contiguously throughout the two floors of the store, allowing customers
and employees to move easily from one department to the next. ROA.15-16, 85-
86, 442. Some primary departments contain smaller “sub-departments” for a
particular vendor’s merchandise. ROA.104-09, 439 n.3. These vendor-specific
sub-departments include, for example, Levi’s, Chanel, Clinique, INC, Guess,
Hilfiger, LaCoste, Lancôme, Lenox, Nautica, North Face, and Polo. ROA.104-09,
441.
6
A single manager oversees the Saugus store. ROA.439. Primary sales
departments are generally supervised by individual managers who report directly
to the store manager. ROA.10-11, 439. Within those departments, vendor-specific
sub-departments are staffed by specialists who focus on that product line.
ROA.54-55, 67, 440-41. These subdivisions also frequently work closely with
vendor representatives—some of whom are employed by Macy’s, others by the
vendor—who offer training, provide product information, and monitor stock.
ROA.440-42.
The cosmetics-and-fragrances department is spread across two floors.
ROA.85-86, 440. The first floor features both cosmetics and women’s fragrances,
while the second-floor area is devoted to men’s fragrances. ROA.440. The
department also contains vendor-specific sub-departments. ROA.440. A single
sales manager oversees the entire department. Sales counters are staffed by sales
specialists (known as beauty advisors) who, at some (but not all) counters, are
assisted by counter managers. ROA.440. The department also employs seven on-
call associates, who are allocated, as needed, among the ten counters in the
department. ROA.440.
Overall, Macy’s employs approximately 120 selling employees and 30 non-
selling employees at the Saugus store. ROA.439. Of the 120 selling employees,
7
41 work in the cosmetics-and-fragrances department: 8 are counter managers, 7 are
on-call employees, and the remainder are beauty advisors. ROA.440.
B. All Sales Employees Operate Under Nearly Identical Terms and Conditions of Employment While Working Together to Provide Customers with Seamless Service
Although they work in different departments, all sales employees at Macy’s
Saugus store work together under common policies towards a common goal.
1. All Sales Employees Perform the Same Kind of Work
All sales employees share similar responsibilities. Their primary duty is to
sell merchandise. ROA.449, 465-66. In addition, all sales employees must comply
with the store’s policy to “help out wherever needed,” ROA.50-51, and to “service
any customer with any product.” ROA.35-35, 104. For example, because “a lot of
customers” prefer “to make one transaction,” ROA.36, sales employees in one
department will not infrequently ring up items from other departments. ROA.36,
441, 442. Moreover, as detailed below, all sales employees are trained to
encourage customers to “complete” their purchases with complementary items
from other departments. Infra p.8.
2. All Sales Employees Operate Under Common Terms and Conditions of Employment
Employees are governed by virtually uniform storewide terms and
conditions of employment. For example, all employees are subject to the same
employee handbook, participate in the same benefits plans, and have access to the
8
same dispute resolution program. ROA.443. All employees staff the same shifts,
enter through the same employee entrances, use the same system for clocking in
and out, and share the same breakrooms. ROA.443.
3. All Sales Employees Receive Similar Training
All sales employees receive training (sponsored either by vendor
representatives or by Macy’s) about customer service, product knowledge, and
selling techniques. ROA.68-69, 140-47, 440-42. In addition, managers in all
departments use Macy’s “My Products Activities” program to coach their sales
employees. ROA.69-70, 443. As part of that training program, sales employees
are “regularly” taught to suggest items from different departments across the store.
ROA.69, Vol. II, Employer Ex. 2, at 3, 6, 12, 14, & Self-Directed Activity: Inspire
to Buy, and Sell More. As just one example, employees are trained to recommend
“jewelry, scarves, handbags, belts, shoes or watches to complete [an] outfit.”
ROA.Vol. II, Employer Ex. 2, at 14.
4. All Sales Employees Are Evaluated on the Same Basis
All sales employees are evaluated using common criteria, i.e., their customer
reviews and “sales scorecard” (which tracks various sales metrics—most
importantly, “actual sales”). ROA.156-59, 443.
9
5. All Sales Employees Have the Same Qualifications
All sales employees are hired pursuant to similar criteria. Prior experience,
while desirable, is not required for any selling position within the store. ROA.77-
78, 442-43.
6. All Sales Employees Have Daily Opportunities for Interaction and Collaboration with Their Colleagues
All sales employees are “expected to help each other out” in their efforts to
“assist customers.” ROA.85-86, 443. The contiguous arrangement of departments
throughout the store facilitates such interaction. ROA.85-86, 442. While sales
employees from one department do not typically staff another department, they
may do so occasionally; if they notice that “a customer is looking for support, they
are expected to go help and support.” ROA.50-51, 443. Sales employees may also
circulate through other departments to recruit customers. ROA.227, 443. For
example, sales employees from the cosmetics department might visit the women’s
shoe department to enlist customers. ROA.39. All sales employees may also
volunteer or be assigned to conduct inventory in other departments. ROA.86, 90-
92, 126-27, 443 n.25. And, as described above, sales employees are trained to
suggest items from other departments to customers. Supra pp.7-8.
Over the past two years, eight employees from other departments
permanently transferred into the cosmetics-and-fragrances department, while one
employee transferred out of that department into a supervisory position. ROA.443.
10
7. All Sales Employees Attend Storewide Meetings
All employees attend daily “rallies.” ROA.86, 442. These storewide
meetings occur before the store opens each morning; they are used to review sales
from the previous day, discuss overall store activities, and alert employees to
promotions. ROA.88-89, 442.
II. PROCEDURAL HISTORY
This is not the first time that the Union has attempted to organize a unit at
the Saugus store. Macy’s and the Union have collective bargaining agreements
covering six other retail locations in the region. ROA.443. On March 24, 2011,
the Union filed a petition for an election to determine whether the employees at the
Saugus store should join an existing five-store unit. ROA.444. Macy’s argued that
such an election would be inappropriate. The NLRB’s Regional Director agreed,
directing instead that the employees be allowed to vote on whether to create a
single-store unit consisting of all employees at the Saugus store. ROA.444. The
Union lost that election. ROA.444.
After its previous strategies failed, the Union filed a second petition on
October 12, 2012, seeking a unit ultimately limited to “all full-time, part-time, and
on-call employees employed in the Saugus store’s cosmetics and fragrances
department, including counter managers, beauty advisors, and all selling
employees in cosmetics, women’s fragrances, and men’s fragrances.” ROA.172,
11
439. Macy’s objected, contending that the smallest appropriate unit would be a
storewide unit of all employees or all selling employees. ROA.165-66, 439. On
November 8, 2012, the Regional Director sided with the Union and directed that an
election be conducted. ROA.221-34. In doing so, the Regional Director applied
the novel test for initial unit determinations that the Board articulated in Specialty
Healthcare. ROA.221-34.
Macy’s asked the full Board to review the Regional Director’s decision.
ROA.235-58, 439. Among other things, Macy’s contended that the Regional
Director’s decision was inconsistent with past Board precedent and that Specialty
Healthcare should be overruled. ROA.263-91, 444. The NLRB disagreed, and on
July 22, 2014, the Board issued a 3–1 decision extending Specialty Healthcare to
the retail context and approving the single-department unit that the Union sought.
ROA.439-71.
The Board stressed that cosmetics-and-fragrances sales employees operate in
a separate department, under separate supervision, and in distinct areas of the store.
ROA.447-48. It also perceived there to be limited interaction or interchange
among sales employees across departments. ROA.448-49.
The Board did, however, conclude that “several of the ‘meaningful
differences’ identified by the Acting Regional Director [we]re not fully supported
by the record, insofar as they do not distinguish all petitioned-for employees from
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all other selling employees.” ROA.449. Contrary to the Regional Director’s
findings, the Board found that:
Macy’s coordinates with vendor representatives both inside and
outside the cosmetics-and-fragrances department for training purposes
and when assessing candidates for openings in vendor-specific sub-
departments. ROA.52-54, 440, 442, 449.
Sales employees receive commissions beyond their base salary both
inside and outside the cosmetics-and-fragrances department.
ROA.55, 74, 102-03, 442, 449. These include sales employees in
cosmetics and fragrances, fine jewelry, furniture, and men’s clothing,
as well as sales specialists for particular brands. ROA.74, 102-03,
441-42.
Sales employees both inside and outside the cosmetics-and-fragrances
department maintain client lists through Macy’s “My Client”
program. ROA.75-76, 441-42, 449. Employees in the cosmetics-and-
fragrances, fine jewelry, men’s clothing, furniture, and bridal
departments use these lists to maintain contact with existing clients,
inform them of promotions, and schedule appointments. ROA.75-76,
441-42, 449.
13
Sales employees both inside and outside the cosmetics-and-fragrances
department are subject to Macy’s “basic black” dress code, though
certain cosmetics vendors require employees selling their product line
to wear brand-specific uniforms. ROA.441, 450.
In dissent, Member Miscimarra argued that the Board “disregard[ed] wide-
ranging similarities that exist among sales employees generally throughout the
store.” ROA.460. He further contended that the Board focused on “distinctions
between [cosmetics-and-fragrances sales] employees and other salespeople,” while
ignoring “the same types of distinctions that exist between sales employees who
work within the [cosmetics-and-fragrances] unit.” ROA.460. The Board thus
recognized a unit that was “irreconcilable with the structure of the work setting”
and that “would give rise to unstable bargaining relationships.” ROA.460.
Moreover, according to Member Miscimarra, applying Specialty Healthcare to the
retail industry “illustrate[d] the frailties associated with” that standard. ROA.460.
Because “Specialty Healthcare affords too much deference to the petitioned-for
unit,” it is “contrary to the [NLRA],” and Member Miscimarra “would refrain from
applying [that decision] in this or any other case.” ROA.460, 471.
At the subsequent election, the cosmetics-and-fragrances sales employees
voted 23–18 to unionize. ROA.472. Macy’s refused to bargain with the unit. On
14
January 7, 2015, a three-member panel of the Board concluded that Macy’s had
thereby engaged in an unfair labor practice. ROA.510-13.
Macy’s filed a petition for review on January 8, 2015. Dkt.1. This Court
granted the Union’s motion to intervene as of right on January 26, 2015. Dkt.7.
On February 26, 2015, the Board filed a cross-application for enforcement.
Dkt.12.
SUMMARY OF ARGUMENT
1. A bargaining unit that consists of only a single department of a single
Macy’s store is clearly inappropriate under the NLRA. A proposed unit is
appropriate only if the unit’s members have interests sufficiently distinct from
those of others employees. In recognizing a unit of cosmetics-and-fragrances sales
employees at Macy’s Saugus location, the Board disregarded the virtually uniform
policies that govern all sales employees throughout the store. All sales employees
perform the same kind of work—selling goods and services in an integrated
department store. All operate under the same terms and conditions of employment,
participate in the same benefits programs, are evaluated using the same criteria,
enjoy the same training opportunities, and attend the same daily meetings. Thus,
the Board did not—and cannot—explain why the interests of the sales employees
in the cosmetics-and-fragrances department are sufficiently distinct from those of
their colleagues in other departments to warrant a separate bargaining unit.
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2. The Board approved this fragmented unit only by extending the
standard articulated in Specialty Healthcare, which places a nearly insurmountable
burden on an objecting employer. That test is legally impermissible for at least
three independent reasons.
First, by forcing an employer to demonstrate that the interests of excluded
employees overlap “almost completely” with those of employees in the petitioned-
for unit, Specialty Healthcare’s “overwhelming community of interest test”
impermissibly affords “controlling” weight to the union’s choice of unit, and thus
violates the NLRA. This is not the first time that the Board has attempted to tip the
scales in favor of a union-proposed unit. Nearly twenty years ago, the Fourth
Circuit rejected the Board’s use of a virtually identical test. See NLRB v. Lundy
Packing Co., 68 F.3d 1577 (4th Cir. 1995). This Court should reach the same
conclusion.
Second, Specialty Healthcare (like the discredited test at issue in Lundy)
radically departs from past Board precedent without a reasoned explanation. It
imports the “overwhelming community of interest” test wholesale from the
accretion context—an entirely different area of labor law, where this high bar is
necessary to protect the rights of employees compelled to join preexisting
bargaining units. At the same time, Specialty Healthcare dispenses with decades
of precedent favoring storewide bargaining units consisting, at the least, of all sales
16
employees in a retail store. The Board has never before recognized a unit
consisting of the sort of fragmented subset of sales employees within a single store
that it approved in this case. Where, as here, an agency breaks from longstanding
precedent without reasoned justification, this Court and others have refused to
enforce the agency’s orders.
Third, the Board’s decision to use Specialty Healthcare—a case ostensibly
about discrete issues relevant to the non-acute health-care industry—to promulgate
a rule applicable to all future unit-determination cases contravenes the
Administrative Procedure Act. Where, as here, the Board purports to issue a
generalized, legislative-type judgment of prospective application, it must proceed
through rulemaking rather than adjudication.
3. Finally, even under the Specialty Healthcare standard, the petitioned-
for unit is clearly inappropriate. In approving the union-proposed unit, the Board
ignored widespread differences among cosmetics-and-fragrances sales employees,
while dismissing overwhelming similarities among all sales employees at Macy’s
Saugus store.
STANDARD OF REVIEW
Employees may unionize only in “‘a unit appropriate . . . for the purposes of
Cir. 1980) (quoting 29 U.S.C. § 159(a)). Congress has given “the Board the
17
authority to decide which group of jobs is to constitute [that] unit.” Id. To make
that determination, the “Board and the courts have developed a ‘community of
interest’ analysis to guide the Board in selecting viable bargaining units.” Id. at
1156. The Board should look to such factors as:
similarity in the scale and manner of determining earnings; similarity in employment benefits, hours of work and other terms and conditions of employment; similarity in the kind of work performed; similarity in the qualifications, skills and training of employees; frequency of contact or interchange among employees; geographic proximity; continuity or integration of production processes; common supervision and determination of labor-relations policy; relationship to the administrative organization of the employer; history of collective bargaining; desires of the affected employees; and extent of union organization.”
NLRB v. Catalytic Indus. Maint. Co., 964 F.2d 513, 518 (5th Cir. 1992). The
“crucial consideration” is not the number of factors on any side of a question, but
rather the “weight or significance” of the factors in each case. Purnell’s Pride, 609
F.2d at 1156-57.
The Board has “broad” discretion to select an appropriate unit, and “an
employer who challenges a Board certified unit has the burden of establishing ‘that
the designated unit is clearly not appropriate.’” Id. at 1155-56 (citation omitted).
Nevertheless, “it was manifestly not the congressional intent that appellate scrutiny
of Board decisions be relegated to a formalistic ritual of stamping an appellate
imprimatur on administrative determinations without having undertaken a careful
18
examination of the basis of the Board’s action.” Amalgamated Clothing Workers
v. NLRB, 491 F.2d 595, 597 (5th Cir. 1974). “[T]he Board’s powers in respect of
unit determinations are not without limits, and if its decision ‘oversteps the law,’ it
must be reversed.” Allied Chem. & Alkali Workers, Local Union No. 1 v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 171-72 (1971).
Accordingly, this Court will scrutinize Board decisions to determine whether
they are “‘arbitrary, capricious, an abuse of discretion, or lacking in substantial
evidentiary support.’” Purnell’s Pride, 609 F.2d at 1155 (citation omitted).
“Where the NLRB applies an incorrect legal standard, [this Court] cannot enforce
its order.” Raven Servs. Corp. v. NLRB, 315 F.3d 499, 504 n.8 (5th Cir. 2002).
Likewise, this Court will “‘deny enforcement’” “‘where the Board makes an
unexplained departure from its established criteria.’” NLRB v. Pioneer Nat. Gas
2011))—it should not carry similar weight where, as here, the employer operates a
single store and the “distinct area” is a department immediately adjacent to several
other departments. Supra pp.5, 9.
1 The failure to explain the significance of these purported distinctions between the petitioned-for unit and other sales employees is all the more striking because the Board minimized the distinctions within the cosmetics-and-fragrances department. See infra Part III.
28
Second, it is true that the cosmetics-and-fragrances department is supervised
by a separate sales manager. But all sales managers in the store report to a single
store manager. ROA.439; supra p.6. In any event, “the Board has long held that a
difference in supervision does not necessarily mandate excluding differently
22 (2d Cir. 1979) (concluding that the Board’s analysis “gave insufficient weight
to the uniformity of treatment of the Company’s personnel” where, inter alia, “[a]ll
employees work the same hours, receive the same sick-pay benefits, are entitled to
promotions, vacations, and life insurance in accordance with their plant-wide
seniority, and share the same locker room and other facilities”).2
The Board’s decision is all the more perplexing because it has previously
found that distinctions similar to those identified here did not justify separate units.
2 The Board also noted that the storewide unit of all selling employees that
Macy’s advocated would be inappropriate because some sales associates—including but not limited to those in the cosmetics-and-fragrances department—are trained and hired in coordination with vendor representatives; receive commissions; maintain client lists; and deviate from the store’s “basic black” dress code. ROA.449-50. But the Board failed to explain why these distinctions among some sales employees are outweighed by the overwhelming similarities among all sales employees discussed in Part I.A. ROA 450. An explanation was particularly warranted because the Board itself has previously said that such distinctions (e.g., compensation disparities) do not necessarily justify the creation of a separate unit. E.g., I. Magnin, 119 N.L.R.B. at 642-643.
30
Cf. Amalgamated Clothing, 491 F.2d at 598 (“The basis for the unit determination
in this case appears even more tenuous upon examining prior [Board] decisions.”).
For example, in Wheeling Island Gaming, the Board concluded that the interests of
poker dealers were not sufficiently distinct from those of other table game dealers,
despite “some factors which would support finding the petitioned-for unit
appropriate, such as separate immediate supervision, absence of daily interchange
and the relatively small number of employees who have moved from one group to
the other.” 355 N.L.R.B. at 642. And in I. Magnin, the Board rejected a
petitioned-for unit that would have consisted solely of shoe salespeople within a
retail department store. “[W]hile a different method of compensation obtain[ed] in
the shoe departments,” all salespeople “[we]re hired through the personnel
department,” “work[ed] the same number of hours and enjoy[ed] the same
benefits,” had skills “of the same general type,” and did not need any “prior
experience” in selling shoes. 119 N.L.R.B at 642-43.
In sum, because the Board failed to provide a reasoned basis for its decision
in this case, that decision should be set aside.
C. The Board’s Decision to Deem a Single Department of a Single Department Store an “Appropriate” Unit Will Wreak Havoc in the Retail Industry
The Board’s decision will also have significant repercussions throughout the
retail industry.
31
As the dissent observed, “if a unit limited to [cosmetics-and-fragrances]
salespeople is deemed appropriate, that will raise the prospect of one or more
additional separate bargaining units for other segments of sales personnel at the
same store.” ROA.471. It simply makes no sense to subdivide Macy’s Saugus
location—or any department store—into a dozen different bargaining units.
Indeed, until this case, the Board had long presumed the propriety of storewide
bargaining units in the retail industry. See infra Part II.B.3.
First, a “multiplicity of bargaining relationships would . . . be at odds with
the Employer’s overriding business objective: to attract and retain customers who
purchase products throughout the store.” ROA.471. A department store is
predicated on providing one-stop shopping for customers to purchase a variety of
products in different departments. But if those different departments are allowed
to unionize separately, the store’s business model quickly becomes unworkable.
Cf. Meyer Label Co., 597 F.2d at 22 (questioning unit determination that
jeopardizes a company’s business model). For example, a customer getting off
work in the evening could swing by the store to pick up a dress, but may not be
able to purchase coordinating accessories, because while the women’s clothing
department is open until 8PM, the fine jewelry department has bargained to go
home at 5PM. Unions could insist upon restrictive staffing and transfer provisions
that could limit an employee’s ability to work anywhere but within his department,
32
and, in turn, preclude an employer from temporarily reassigning employees to
other departments during periods of high-volume sales. Indeed, such provisions
might even prevent an unoccupied sales associate in the cosmetics-and-fragrances
department from serving a customer needing assistance in the immediately
adjacent women’s clothing department.
Second, a small number of employees could cripple an employer’s
operations. Business could grind to a halt if several departmental unions went on
strike consecutively, particularly if they played a significant role in the employer’s
operations. See Cont’l Web, 742 F.2d at 1090 (stating that “any one of the unions
may be able to shut down the plant (or curtail its operations) by a strike, thus
imposing costs on other workers as well as on the employer’s shareholders,
creditors, suppliers and customers”). At a minimum, employers would lose
business from disgruntled customers who, for example, walked into a Macy’s to
buy a mattress only to find the furniture department on strike.
Third, the “cost[s] for an employer to have to negotiate separately with a
number of different unions . . . are not born by the employer alone.” Cont’l Web,
742 F.2d at 1090. For example, the same collectively bargained restrictions that
would make it difficult for an employer to operate an integrated department store
would also likely stunt employees’ opportunities for advancement and professional
development. Employees unable to transfer from one unionized department to
33
another (or from a nonunionized department to a unionized one) could miss out on
opportunities for advancement or the chance to pick up extra shifts to supplement
their income.
Fourth, the Board’s decision undermines an employee’s right under the
NLRA to engage in collective bargaining activities. 29 U.S.C. § 157. “[B]reaking
up a work force into many small units creates a danger that some of them will be
so small and powerless that it will be worth no one’s while to organize them, in
which event the members of these units will be left out of the collective bargaining
process.” Cont’l Web, 742 F.2d at 1090. Moreover, as this Court has explained,
“the designation of . . . small unit[s] that exclude[] employees with common skills,
attitudes, and economic interests may unnecessarily curtail the union’s bargaining
power and may generate destructive factionalization and in-fighting among
employees.” Purnell’s Pride, 609 F.2d at 1156.
Fifth, the Board’s decision would likewise undermine an employee’s right to
“refrain” from collective bargaining activities. 29 U.S.C. § 157; NLRB v. Superior
Prot., Inc., 401 F.3d 282, 288 n.7 (5th Cir. 2005) (stating that the right to organize
and the right to refrain from organizing are to be guarded “‘with equal jealousy’”
(citation omitted)); H.R. Rep. No. 80-510, at 47 (1947) (Conf. Rep.), reprinted in 1
NLRB, Legislative History of the Labor Management Relations Act 551 (1948)
(stating that “one of the principal purposes of the [Act] is to give employees full
34
freedom to choose or not to choose representatives for collective bargaining”).
Specifically, the Board’s decision invites unions to gerrymander. Rather than
being forced to persuade dissenting employees in a broader unit, a union may
simply seek out a targeted group of employees where it knows it has the upper
hand. In practice, this means that “unions [will] engage in incremental organizing
in the smallest units possible.” Specialty Healthcare, 2011 NLRB LEXIS 489, at
*86 (Member Hayes, dissenting); see also Lundy, 68 F.3d at 1579. This effectively
disenfranchises dissenting employees who, though they may be in the majority in
defeating a larger unit, find themselves marginalized within the petitioned-for unit.
This case illustrates these concerns perfectly. After failing in its effort to
unionize the entire Saugus store, the Union hand-picked a unit limited to the
cosmetics-and-fragrances department that ultimately voted for unionization by a
narrow vote of 23-18. ROA.472. While the eighteen dissenting employees were
evidently in the majority with respect to the initial storewide petition, their right to
refrain from collective bargaining was undermined when the Board allowed the
union a second bite at the apple.
35
II. THE NLRB WAS ABLE TO CERTIFY THE PETITIONED-FOR UNIT ONLY THROUGH AN “OVERWHELMING COMMUNITY OF INTEREST” TEST THAT CANNOT BE SQUARED WITH THE NLRA OR PRIOR BOARD PRECEDENT GOVERNING INITIAL UNIT DETERMINATIONS
As detailed above, a unit composed exclusively of members of the
cosmetics-and-fragrances department at a single Macy’s store is not “appropriate”
under the NLRA. The Board was able to reach a contrary conclusion only by
applying the novel “overwhelming community of interest” test set forth in
Specialty Healthcare. ROA.445-51.
Under Specialty Healthcare, if a union petitions for a unit composed of
employees that are “‘readily identifiable as a group’” and “‘share a community of
interest,’” “the Board will find the petitioned for unit to be an appropriate unit.”
ROA.445 (quoting Specialty Healthcare, 2011 NLRB LEXIS 489, at *2). If an
objecting employer contends that such a unit “is nevertheless inappropriate
because it does not contain additional employees, the burden is on the party so
contending to demonstrate that the excluded employees share an overwhelming
community of interest with the included employees.” Specialty Healthcare, 2011
NLRB LEXIS 489, at *2-3 (emphases added). In other words, “the burden is on
the proponent of a larger unit to demonstrate” that the interests of employees
excluded from the proposed unit “‘overlap almost completely’” with the interests
36
of the employees the union has petitioned to represent. ROA.445 (emphasis
added) (quoting Specialty Healthcare, 2011 NLRB LEXIS 489, at *50).
The manner in which the Board applied this standard proved dispositive
here. Rather than assessing the workforce as a whole to determine if the
cosmetics-and-fragrances department shared interests sufficiently distinct from
those of their counterparts in other departments—as this Court and the Board had
previously done, see supra pp.18-21—the Board looked only to the employees of
the proposed unit, concluding that they shared interests in common. ROA.446-47.
Because virtually any group of employees, considered in isolation, shares some
interests, this was hardly a significant obstacle. Only later did the Board ask
whether those interests were distinct from those of other employees—but it did so
with a jaundiced eye, requiring Macy’s to demonstrate that the interests of other
sales employees “overlapped almost completely” with those in the cosmetics-and-
fragrances department. ROA.447-51. This almost-insuperable burden allowed the
Board to seize on insignificant differences between selling employees, while
ignoring or downplaying critical similarities. ROA.447-51.
The resulting decision cannot be squared with federal law or the Board’s
own precedent. The Board improperly afforded “controlling” weight to the extent
of Union organization in violation of Section 9(c)(5) of the NLRA. It ignored its
own prior unit determination precedent, improperly importing the “overwhelming
37
community of interest” interest standard from the accretion context, and discarding
decades of precedent favoring storewide bargaining units. And it violated the
Administrative Procedure Act by promulgating a sweeping rule for unit
determinations through adjudication rather than rulemaking. For all these reasons,
explained further below, the Board’s decision should be set aside.
A. The “Overwhelming Community of Interest” Test Violates the NLRA
By tipping the scales so heavily in favor of the union-proposed unit, the
“overwhelming community of interest” test violates the NLRA.
1. While the “Act offers little guidance to the Board in making unit
determinations,” Purnell’s Pride, 609 F.2d at 1156, Congress entrusted the
Board—not the petitioning union—with the power to make such determinations
“‘in each case,’” id. (quoting 29 U.S.C. § 159(b)). In fact, in response to Board
“decisions where the unit determined could only be supported on the basis of the
extent of organization,” NLRB v. Metro. Life Ins. Co., 380 U.S. 438, 441 (1965),
Congress amended the NLRA to provide that “[i]n determining whether a unit is
appropriate[,] . . . the extent to which the employees have organized shall not be
controlling,” 29 U.S.C. § 159(c)(5). Section 9(c)(5) was thus designed to “strike[]
at a practice of the Board by which it has set up [as] units appropriate for
bargaining whatever group or groups the petitioning union has organized.” H.R.
38
Rep. No. 80-245, at 37 (1947), reprinted in 1 NLRB, Legislative History of the
Labor Management Relations Act 328 (1948).
Congress viewed Section 9(c)(5) as essential to “assure full freedom to
workers to choose, or to refuse, to bargain collectively, as they wish.” Id.; see also
29 U.S.C. § 159(b) (same). Affording too much deference to the petitioned-for
unit undermines that freedom, because the union’s overriding consideration in
selecting a unit is its ability to win a representation election. This jeopardizes both
the right of dissenting employees within that unit to refrain from organizing, and
the right of excluded employees to engage in collective bargaining. See id. § 157.
To safeguard these rights, Section 9(c) “does not merely preclude the Board
from relying ‘only’ on the extent of organization. The statutory language is more
restrictive, prohibiting the Board from assigning this factor either exclusive or
‘controlling’ weight.” Lundy, 68 F.3d at 1580. Thus, though the Board is not
“prohibit[ed] . . . from considering the extent of organization as one factor . . . in its
unit determination,” Metro. Life Ins. Co., 380 U.S. at 442, “this evidence should
have little weight,” H.R. Rep. No. 80-245, at 37.
2. As the Fourth Circuit concluded nearly twenty years ago in Lundy, 68
F.3d 1577, the Board’s “overwhelming community of interest” test contravenes
Section 9(c).
39
In Lundy, the Board recognized a unit composed solely of production and
maintenance workers at an employer’s pork processing facility. 68 F.3d at 1579.
In doing so, the Board found that other plant workers did “‘not share such an
overwhelming community of interest with the petitioned-for production and
maintenance employees as to mandate their inclusion in the unit.’” Id. at 1581
Co., 314 N.L.R.B. 1042, 1043 (1994)). Despite this acknowledgement, the Board
later purports to distinguish its standard from that applied in Lundy. The Board
reads the Fourth Circuit’s decision in Lundy to reject not the “overwhelming-
community-of-interest standard,” but a categorical “presum[ption]” in favor of the
petitioned-for unit. Specialty Healthcare, 2011 NLRB LEXIS 489, at *51 n.25
(citing Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008)).
That reading of the Fourth Circuit’s decision (and of the underlying Board
decision in Lundy) is simply wrong. There was no dispute that the petitioned-for
unit in Lundy was readily identifiable as a group and possessed a community of
interest. See Lundy, 314 N.L.R.B. at 1043, 1045. As the Fourth Circuit explained
at length, the problem with the test imposed by the Board was that, by requiring the
41
employer to show that other employees share an overwhelming community of
interest with the petitioned-for unit, the test relied too heavily on the union’s
choice of unit and created too high a burden for an objecting employer. See 68
F.3d at 1580-81; supra p.39. In this way, the Board’s overwhelming community of
interest test effectively precluded the employer from challenging the petitioned-for
unit even where “it [wa]s impossible to escape the conclusion that” the only reason
certain employees “were excluded” was that the union “‘d[id] not seek to represent
them.’” Id. at 1581. This near-total deference to the union’s proposed unit—the
same flaw from which Specialty Healthcare suffers—amounts to a virtually
insuperable presumption, and thus violates the NLRA.
4. To be sure, the D.C. Circuit and the Sixth Circuit have approved some
iteration of the overwhelming community of interest test in recent years. See
Kindred Nursing Ctrs. E., LLC v. NRLB, 727 F.3d 552, 565 (6th Cir. 2013); Blue
Man, 529 F.3d 417. In Specialty Healthcare, the Board relied on the D.C.
Circuit’s decision in Blue Man to revive the “overwhelming community of
interest” test. E.g., 2011 NLRB LEXIS 489, at 47-50 (citing Blue Man, 529 F.3d
417). The Sixth Circuit then endorsed Specialty Healthcare, again relying heavily
on the D.C. Circuit’s reasoning. Kindred, 727 F.3d at 561-65. But Blue Man and
Kindred are not persuasive.
42
First, as to Blue Man, the D.C. Circuit principally justified the
overwhelming community of interest test based on cases setting forth the standard
for appellate review of unit determinations already made by the Board. See 529
F.3d at 421 (citing County Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C.
Cir. 2000) and Dunbar Armored, Inc. v. NLRB, 186 F.3d 844, 847 (7th Cir. 1999));
see also Specialty Healthcare, 2011 NLRB LEXIS 489, at *46 (citing Dunbar, 186
F.3d at 847).3 In light of the discretion Congress has afforded the Board in
identifying units appropriate for collective bargaining, supra pp.17-18, an
appellate court will invalidate a unit certified by the Board only if the employer
can demonstrate that the unit is “truly inappropriate.” Blue Man, 529 F.3d at 421;
see also Purnell’s Pride, 609 F.2d at 1155-56; Dunbar, 186 F.3d at 847. But
Section 9(c) prohibits the Board from giving comparable deference to the union’s
3 The Board cases cited by the D.C. Circuit do not support the
“overwhelming community of interest” standard either. Jewish Hospital Association, 223 N.L.R.B. 614, 617 (1976), recounted that “the employer argued” that two groups of employees shared “an overwhelming community of interest.” And Logidan, Inc., 332 N.L.R.B. 1246 (2000), is a one-paragraph denial of a request to review a decision of a Regional Director. The phrase “overwhelming community of interest” appears in the opinion sought to be reviewed, which the Board attached as an appendix. In neither case did the Board endorse an “overwhelming community of interest” standard.
The D.C. Circuit also analogized initial unit determinations to the accretion context—an analogy that, for the reasons explained below, is inapt. See infra Part II.B.2.
43
proposed unit—and the Fourth Circuit rejected the “overwhelming community of
interest” test for precisely that reason.
Second, as to Kindred, the Sixth Circuit—relying on Blue Man—opined that
Specialty Healthcare solves the problem identified by Lundy because it first
requires the Board to determine whether the unit is “‘prima facie appropriate.’”
727 F.3d at 565 (citation omitted). In other words, before asking whether the
employer has met its burden to show that excluded employees share an
“overwhelming community of interest” with those in the petitioned-for unit, the
Board will first assess whether the petitioned-for unit is “readily identifiable as a
group” and shares “a community of interest.” Specialty Healthcare, 2011 NLRB
LEXIS 489, at *51 n.25.
Far from solving the problem, this inquiry almost ensures controlling weight
for the union’s choice of unit. After all, a finding that a group of employees shares
a “community of interest” has never been enough, in and of itself, to make a unit
“appropriate” for bargaining. Indeed, many groups of employees, considered in
isolation, may share interests in common. See Newton-Wellesley, 250 N.L.R.B at
411-12; supra Part II.B.1. Accordingly, courts and the Board have traditionally
asked not if the employees in the petitioned-for unit share some interests in
common, but if their interests are “sufficiently distinct” from those of other
employees. Supra Part I; infra Part II.B.1.
44
Specialty Healthcare short-circuits this analysis. If the proposed unit is
“readily identifiable as a group” and shares “a community of interest,” the “Board
will find the petitioned-for unit to be an appropriate unit”—without any
consideration of whether those interests are sufficiently distinct from those of other
employees. 2011 NLRB LEXIS 489, at *54. To be sure, the Board will then
proceed to determine whether the employer has shown that the interests of
excluded employees “overlap almost completely” with those of the petitioned-for
unit. See id. at *52-55. But that is too little too late. At that point, the deck has
already been stacked in favor of the union-proposed unit; it will receive the same
level of deference as would be afforded by an appellate court to a unit certified by
the Board. It is this thumb on the scale in favor of the petitioned-for unit that
“effectively accord[s] controlling weight to the extent of union organization”—“a
classic § 9(c)(5) violation.” Lundy, 68 F.3d at 1581.
Accordingly, this Court should follow the Fourth Circuit’s decision in Lundy
and reject the NLRB’s attempt to resurrect the discredited “overwhelming
community of interest” standard. Just as in Lundy, the Specialty Healthcare test
allows even “meager differences” in employee interests to justify the creation of
separate bargaining units. Lundy, 68 F.3d at 1581. Just as in Lundy, the union-
proposed unit will be deemed appropriate unless the employer shows that it shares
an “overwhelming community of interest” with excluded employees. Id. And just
45
as in Lundy, this “effectively accord[s] controlling weight to the extent of union
organization” in violation of § 9(c)(5) of the NLRA. Id.
B. The Board Failed to Provide a Reasoned Explanation for Its Departure from Past Precedent When Adopting the “Overwhelming Community of Interest” Test
The Board’s extension of Specialty Healthcare to this case requires this
Court to set aside the Board’s decision for another reason: Specialty Healthcare
(like the discredited test at issue in Lundy) radically departs from past Board
precedent without a reasoned explanation.
“[T]here is clearly an obligation on the Board to maintain a consistent
approach in [its] unit determinations.” NLRB v. WKRG-TV, Inc., 470 F.2d 1302,
1311 (5th Cir. 1973). “This is not to say that the Board may not change its view of
what test is to be applied in unit determination cases and what factors are to be
considered in its application.” Rayonier, Inc. v. NLRB, 380 F.2d 187, 189 (5th Cir.
1967). But if the Board changes course, it must “supply a reasoned analysis for the
change.” Motor Vehicle Mfrs. Ass’n. of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 42 (1983); see also 5 U.S.C. § 557; Lundy, 68 F.3d at 1583;
Rayonier, 380 F.2d at 189. Thus, this Court will refuse to enforce the Board’s
orders where the Board has made “an unexplained departure from its established
criteria for unit determination.” Pioneer Nat. Gas Co., 397 F.2d at 576; Rayonier,
380 F.2d at 189, 194-95 (same); WGOK, 384 F.2d at 504 (same).
46
As the dissent in Specialty Healthcare explained, that decision
“fundamentally change[d] the standard for determining whether a petitioned-for
unit is appropriate in any industry subject to the Board’s jurisdiction.” 2011
NLRB LEXIS 489, at *65 (Member Hayes, dissenting).4 But the Board did not
acknowledge this departure from decades of precedent, much less provide a
reasoned explanation for it. Indeed, the Board claimed to be doing nothing more
than “clarify[ing]” existing law. Id. at *2, *58 (majority opinion). For the reasons
discussed below, however, Specialty Healthcare is flatly inconsistent with prior
precedent, improperly imports a heightened standard from an inapposite area of
law, and is at odds with presumptions that the Board has long applied to the retail
industry.
4 See also, e.g., Zev J. Eigen & Sandro Garofalo, Less Is More: A Case for
Structural Reform of the National Labor Relations Board, 98 Minn. L. Rev. 1879, 1890 (2014) (“[I]n the highly controversial Specialty Healthcare & Rehabilitation Center decision, the Board radically changed its historical ‘community of interest’ standard for determining the scope of appropriate bargaining units.”); Tanja J. Thompson & Brenda N. Canale, Has Specialty Healthcare Changed the Landscape in Organizing and Representation Proceedings?, 29 ABA J. Lab. & Employment L. 447, 450 (2014) (“In truth, however, Specialty Healthcare did not ‘clarify’ an old standard for election cases; rather, it created a new standard—one that establishes a virtually impossible hurdle for employers to overcome.”); Edward Phillips & Steven E. Kramer, The Law at Work: New NLRB ‘Quickie Election’ Procedures, 48 Tenn. B.J. 30, 31 (2012) (“In Specialty Healthcare, the NLRB reversed two decades of board law, changing the standard for determining the appropriateness of a bargaining unit.”). But see William H. Haller, Tempest in a Bedpan? The Specialty Healthcare Controversy, 29 ABA J. Lab. & Employment L. 465 (2014).
47
1. The “Overwhelming Community of Interest” Test Is Inconsistent with the Board’s Past Precedent Governing Initial Unit Determinations
Specialty Healthcare transformed the multi-factor balancing test that courts
and the Board had traditionally applied into a rigid, two-step formula that places an
almost-insuperable burden on an employer challenging the propriety of a
petitioned-for unit.
Before Specialty Healthcare, to determine the propriety of a petitioned-for
unit, the Board applied the multi-factor community of interest test to ascertain
“whether the interests of the group sought are sufficiently distinct from those of
other employees to warrant the establishment of a separate unit.” Newton-
Wellesley Hosp., 250 N.L.R.B. at 411-12; supra Part I. In other words, the Board
engaged in “a careful examination” and comparison “of what interests are shared
within and outside the proposed unit” to determine whether the petitioned-for unit
was appropriate. ROA.469.
As noted above, this Court and the Board reaffirmed this test repeatedly.
See supra pp.18-21. Significantly, under the multi-factor test, the Board “never
addresse[d], solely and in isolation, the question whether the employees in the unit
sought have interests in common with one another.” Newton-Wellesley Hosp., 250
N.L.R.B. at 411-12. And for good reason: as the Board explained, “numerous
groups of employees”—when viewed in isolation—“fairly can be said to possess
48
employment conditions or interests ‘in common.’” Id. But that does not mean
those groups are necessarily appropriate units: before that determination can be
made, the Board has always analyzed whether the interests of employees in the
petitioned-for unit are “sufficiently distinct” from those of other employees. Id.
Specialty Healthcare broke with this standard, holding that the Board will
“examine[] the petitioned-for unit first.” Specialty Healthcare, 2011 NLRB
LEXIS 489, at *36. If the employees in the proposed unit are “readily identifiable
as a group” and share “a community of interest” the “Board will find the
petitioned-for unit to be an appropriate unit.” Id. at *54. “[N]ever” before has the
Board been willing to conclude a unit is appropriate solely on this basis. Newton-
Wellesley, 250 N.L.R.B. at 411-12. And rather than assessing whether the interests
of the petitioned-for unit were “sufficiently distinct” from those of excluded
employees, the Board placed the burden on the employer to affirmatively
demonstrate that excluded employees share an “‘overwhelming community of
interest’” with those in the proposed unit such that their interests “‘overlap[]
almost completely.’” 2011 NLRB LEXIS 489, at *50 (quoting Blue Man, 529
F.3d at 422).
Indeed, in this very case, the Board all but confirmed that it was applying a
new and different standard. The Board attempted to distinguish Wheeling Island
Gaming—a case that applied traditional community of interest factors—by stating
49
that it was “decided before Specialty Healthcare, did not apply the Specialty
Healthcare framework, and Specialty Healthcare gave no indication how the
overwhelming community of interest framework might have been applied in
Wheeling Island Gaming.” ROA.451. But if the “overwhelming community of
interest” test does nothing more than “clarif[y]” existing unit determination
standards, there is no reason to think that outcome of a case would turn on whether
it arose before or after Specialty Healthcare.5
2. The Board Improperly Imported the “Overwhelming Community of Interest” Standard from the Accretion Context
While the Fourth Circuit correctly described the application of the
“overwhelming community of interest” test to initial unit determinations as
“novel,” the Board had previously applied that standard in “an entirely different”
context, namely, so-called “accretion cases.” Lundy, 68 F.3d at 1581. The Board’s
transposition of the “overwhelming community of interest” standard from an
5 In Specialty Healthcare, the Board mustered only two cases in which the
NLRB had used the phrase “overwhelming community of interest” in the initial unit determination context. 2011 NLRB LEXIS 489, at *50 (citing cases). Those cases do not support the standard articulated by the Board. The Board cited its decision in Lundy Packing Co., 314 N.L.R.B. 1042 (1994), the very decision that the Fourth Circuit rejected for the reasons explained above, supra Part II.A. And the Board’s citation of Laneco Construction Systems, 339 N.L.R.B. 1048, 1050 (2003), fares no better, because in that case, the Board was simply recounting a party’s arguments, not adopting the overwhelming community of interest test as the standard for unit determinations. Id.
50
inapposite area of labor law further demonstrates that the Specialty Healthcare test
distorts, rather than follows, prior precedent.
“Simply stated, an accretion is the incorporation of employees into an
already existing larger unit when such a community of interests exists among the
entire group that the additional employees have no separate unit identity.” NLRB
those employees “are added to [the] existing bargaining unit without being
afforded an opportunity to vote in a union election.” Superior Prot., 401 F.3d at
287 (emphasis added). For this reason, this Court has observed that “the accretion
doctrine sits in substantial tension with the guarantee of employee self
determination reflected in § 7 of the [National Labor Relations Act].” Id. 6
“Recognizing this conflict, the Board’s jurisprudence has historically favored
employee elections, reserving accretion orders for those rare cases” in which the
accreted employees have no identity of their own, but instead “‘share an
6 Section 7 provides that:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . . .
29 U.S.C. § 157.
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overwhelming community of interest with the preexisting unit.’” Id. at 288
see also NLRB v. DMR Corp., 795 F.2d 472, 475-76 (5th Cir. 1986). This is hardly
surprising, as the demanding nature of the accretion test reflects the Board’s
“heightened concern” for employees’ Section 7 rights, Superior Prot., 401 F.3d at
287 n.6 (citation omitted), which are “to be restricted only under compelling
conditions” and in “extraordinary cases,” Pix Mfg. Co., 181 N.L.R.B. 88, 91
(1970); Superior Prot., 401 F.3d at 288 n.9 (citation omitted).7
Yet with no explanation whatsoever, the Board has now taken a test
designed for the “extraordinary” context of accretion and applied it to initial unit
7 Without acknowledging the different rights implicated by an accretion, the D.C. Circuit cited the use of the “overwhelming community of interest test” in that context as support for its holding in Blue Man. See 529 F.3d at 422 n.*; see also Specialty Healthcare, 2011 NLRB LEXIS 489, at *85 n.17 (Member Hayes, dissenting) (stating that Blue Man was “wrongly decided” based on “an inapt analogy to accretion law”).
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determinations. Consequently, according to the Board, the showing necessary to
challenge the propriety of a union-proposed initial unit is the same showing
necessary for the “rare case” in which it is permissible to forcibly compel an
employee to join a union. Compare Specialty Healthcare, 2011 NLRB LEXIS
489, at *50 (interests of excluded employees must “overlap almost completely”
with those in the petitioned-for unit), with DMR Corp., 795 F.2d at 476 (employees
must “have no true identity distinct from” the unit to which they will be accreted).
This is not a “clarif[ication]” of existing law, but a wholesale rewriting of the
manner in which the Board determines whether a petitioned-for unit is appropriate.
3. The “Overwhelming Community of Interest” Test Is Inconsistent with Standards the Board Has Previously Applied to the Retail Industry
The “overwhelming community of interest” test is also inconsistent with a
line of Board decisions that presumed the appropriateness of storewide bargaining
units—consisting of all employees or, at the least, all selling or non-selling
employees—in the retail context.
As noted above, the Board has long recognized the propriety of storewide
bargaining units in the retail industry. E.g., I. Magnin, 119 N.L.R.B. at 643; see
also, e.g., Sears, Roebuck & Co., 191 N.L.R.B. 398, 404 (1971) (agreeing with the
employer that, “to make this kind of retail operation viable a high degree of
compartmentalization cannot be utilized,” and thus concluding that “the only
53
appropriate unit should consist of all employees of the service station, warehouse,
Thus, the Board has consistently rejected petitioned-for units consisting
solely of the employees of a particular department within a retail store. For
example, as explained above, see supra p.30, in I. Magnin, the Board rejected a
petitioned-for unit that would have consisted solely of shoe salespeople within a
retail department store. The Board noted that “all employees [we]re hired through
the personnel department,” “work[ed] the same number of hours,” received “the
same benefits, and had skills “of the same general type.” 119 N.L.R.B. at 642-43.
Moreover, “[t]he employer d[id] not require prior experience of all shoe
department personnel, and employees from other departments ha[d] been assigned
to work as shoe salesmen.” Id.
Likewise, in Kushins & Papagallo Divisions of U.S. Shoe Retail, Inc., 199
N.L.R.B. 631 (1972), the Board rejected a petitioned-for unit “limited to one
division of sales employees in a multidepartment retail store that sold shoes,
dresses, and accessories.” ROA.468. “[C]onsistent with [its] unit policy in
department store cases,” the Board held that “the unit must be broadened in scope
to encompass all store employees.” U.S. Shoe, 199 N.L.R.B. at 631-32.8
8 The Board tried to distinguish such cases because they note that “smaller
units of retail clothing store employees are appropriate . . . where departments composed of employees having a mutuality of interest not shared by other store
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Even when the Board has deviated from the presumption favoring units of
all storewide employees, it has favored storewide units of selling or nonselling
employees. In a series of cases known as the “Stern’s Trilogy,” the Board
recognized that “differences in work tasks and interests between selling and
nonselling employees in department stores” could warrant the creation of separate
units. Stern’s Paramus, 150 N.L.R.B. 799, 806 (1965) (approving units of selling
employees, nonselling employees, and restaurant employees); Arnold Constable
Corp., 150 N.L.R.B. 788 (1965) (approving units of selling employees, office
employees, and cafeteria employees); Lord & Taylor, 150 N.L.R.B. 812 (1965)
(approving a unit of all nonselling employees at a department store). At the same
time, the Board has recognized that separate units could be created for certain
employees with special skills or duties, like those of craftspeople, that make them
“singularly different” from selling or nonselling employees. E.g., Arnold
N.L.R.B. at 806 (restaurant employees); Big Y Food, Inc., 238 N.L.R.B. 855 (1978)
(meat department). For fifty years, until this case, the Board made unit
determinations consistent with these standards.
employees are involved.” Decision 14 (quoting I. Magnin, 119 N.L.R.B.at 643). But as discussed supra Part I, the Board failed to explain how the interests of the cosmetics-and-fragrances sales associates are sufficiently distinct from those of the remainder of the store’s selling employees. I. Magnin, 119 N.L.R.B.at 643.
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Here, however, the Board sanctioned a unit unlike any it has previously
approved in the retail context. The Union did not ask the Board to certify a unit of
selling or nonselling employees. Nor did it seek a carve-out for employees with
craft-like skills. Rather, it requested—and the Board approved—a unit consisting
of a particular subset of selling employees within a particular store. Courts have
not hesitated to set aside agency action reflecting such breaks from prior precedent.
Without any prompting from the parties, the Board issued an order inviting
amicus briefs addressing “the procedures and standards for determining whether
proposed units are appropriate in all industries.” Id. at *5 (majority op.) (emphasis
9 To be sure, the Court also faulted the Excelsior Board because the rule that the Board set forth was solely prospective in nature and was not applied to the parties in Excelsior itself. The “real trouble” with Excelsior and Specialty Healthcare, however, is that they were both “manipulated or at least distorted for the ulterior ends of rulemaking.” Robinson, supra, at 512. While Specialty Healthcare adjudicated the rights of the parties to the proceeding, it also purported to set rules that would prospectively govern all unit determination standards “in all industries.” 2010 NLRB LEXIS 514, at *5 (emphasis added).
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added).10 These unprompted questions foreshadowed the Board’s “broad revision
of a test for determination of appropriate units in all industries under [the NLRB’s]
jurisdiction—a test that has stood for at least 50 years.” Id. at *24 (Member
Hayes, dissenting).
Indeed, the Board “seize[d] upon [Specialty Healthcare] as an occasion for
reviewing not only Park Manor and the standard for unit determinations in
nonacute health care facilities, but also for reviewing ‘the procedures and standards
for determining whether proposed units are appropriate in all industries.’” Id. at
*15-16. Thus, in addition to overruling Park Manor, Specialty Healthcare
declared (1) “that the traditional community of interest test . . . will apply as the
starting point for unit determinations in all cases not governed by the Board’s
Health Care Rule” and (2) that “for those cases in which an employer contends that
a proposed bargaining unit is inappropriate because it excludes certain employees .
10 The Board asked potential amici to address, among other things:
(7) Where there is no history of collective bargaining, should the Board hold that a unit of all employees performing the same job at a single facility is presumptively appropriate in nonacute health care facilities. Should such a unit be presumptively appropriate as a general matter. (8) Should the Board find a proposed unit appropriate if, as found in American Cyanamid Co., 131 NLRB 909, 910 (1961), the employees in the proposed unit are “readily identifiable as a group whose similarity of function and skills create a community of interest.”
Id. at *6 (majority op.) (emphases added).
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. . the employer must show that the excluded employees share an ‘overwhelming
community of interest’ with the petitioned-for employees.” Specialty Healthcare,
2011 NLRB LEXIS 489, at *64 (emphases added). These sweeping
pronouncements amount to “an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or
policy”—in other words, a “rule.” 5 U.S.C. § 551(4).
The Board used Specialty Healthcare as a vehicle to promulgate “policy-
type rules or standards” to be applied in all future unit determination cases. Fla. E.
Coast Ry. Co., 410 U.S. at 245. Because the Board failed to comply with the
APA’s rulemaking provisions, the rule it announced in Specialty Healthcare
should be set aside. E.g., First Bancorp., 728 F.2d at 438 (setting aside ruling
when agency promulgated a rule through adjudication rather than rulemaking);
Pfaff, 88 F.3d at 748 (same); Patel v. INS, 638 F.2d 1199 (9th Cir. 1980) (same).
III. EVEN UNDER THE SPECIALTY HEALTHCARE STANDARD, THE BOARD APPROVED AN INAPPROPRIATE BARGAINING UNIT
For all the reasons stated above, the Specialty Healthcare test is contrary to
law and should be set aside by this Court. But even under that test—properly
applied—the unit approved by the Board is not appropriate for collective
bargaining.
First, as Member Miscimarra explained in dissent, the Board erred in
concluding that the cosmetics-and-fragrances sales employees shared a community
61
of interest despite widespread differences among the employees within that
department. ROA.461-67. After all, the unit approved by the Board includes three
different classifications of employees (beauty advisors, on-call employees, and
counter managers) who sell eight different product lines while wearing seven
different uniforms at ten different counters located on two different floors within
the store. ROA.440-41, 446-47. And although all cosmetics-and-fragrances sales
employees receive commissions, the percentages vary based on job title. ROA.441.
Second, in any event, Macy’s carried its burden under Specialty Healthcare
of showing that all selling employees within the store share an overwhelming
community of interest. As detailed in Part I.A, all sales employees perform the
same kind of work, operate under the same terms and conditions of employment,
participate in the same benefit programs, enjoy the same training opportunities, are
evaluated using the same criteria, collaborate in the same integrated workplace,
and attend the same daily meetings. Accordingly, the Board committed legal error
by carving out a unit consisting exclusively of cosmetics-and-fragrances sales
employees.
CONCLUSION
For the reasons articulated above, the Board’s unit determination can be
explained only by affording “controlling” weight to the extent of employee
organization in violation of the express terms of the NLRA. Accordingly, Macy’s
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respectfully requests that the Court grant the petition for review and deny the
Board’s cross-application for enforcement. E.g., NLRB v. Lundy Packing Co., 81
F.3d 25, 27 (4th Cir. 1996) (clarifying that after “enforcement of the Board’s
bargaining order [wa]s denied,” the case was “closed in all respects). At a
minimum, the matter should be remanded to the Board with instructions to apply
the appropriate legal standard or to provide “the reasons or basis” for its decision.
5 U.S.C. § 557; e.g., Purnell’s Pride, Inc., 609 F.2d at 1161-62; NLRB v.