By  on July 23, 2014

WASHINGTON — Macy’s Inc. said Wednesday it is “disappointed” by a National Labor Relations Board decision that will allow a union to move forward with an organizing election involving employees in a cosmetics and fragrance department at one of its stores.

The NLRB decision has put retailers on edge and raised concerns that the ruling could pave the way for separate union bargaining units within stores, potentially fragmenting their business and hurting their ability to serve customers.

“Macy’s is disappointed with the NLRB ruling and believes that organizing a selected portion of a store’s selling associates into multiple collective bargaining units is impractical and an impediment to providing a consistent level of customer service,” a Macy’s spokesman said in an e-mail. “Our company is considering its options, including a potential appeal of the  NLRB decision.”

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Bergdorf Goodman has a similar appeal before the NLRB in a case where one of the board’s regional directors reportedly issued a decision determining that its flagship’s second-floor designer shoes department and fifth-floor contemporary shoes department would represent an appropriate bargaining unit. The NLRB has not made a final decision in that case.

In the Macy’s case, the NLRB issued a decision Tuesday in favor of the United Food and Commercial Workers International Union, which filed a petition with the board in March 2011, seeking to hold an election in an attempt to organize a bargaining unit within the cosmetics and fragrance department of a Macy’s store in Saugus, Mass.

The UFCW is seeking to represent 41 full-time, part-time and on-call employees employed at the Saugus store’s cosmetics and fragrance department, including counter managers, beauty advisers and all selling employees in cosmetics and women’s and men’s fragrances, according to the petition.

In its decision, the NLRB ruled that “the employees in the [UFCW’s] petitioned-for unit are a readily identifiable group who share a community of interests,” thereby allowing the UFCW to hold an election.

The NLRB also argued that Macy’s did not meet its “burden of demonstrating that the other selling and non-selling employees it seeks to include [in any election] share an overwhelming community of interest with the petitioned-for employees so as to require their inclusion in the unit.”

Retailers have grown increasingly concerned by the NLRB’s recent decisions, stemming from a case known as Specialty Healthcare and Rehabilitation Center in 2011, in which the board decided to allow a union to seek to organize a group of nursing assistants within the center.

“The decision redefined what the NLRB considered a proper bargaining unit, abandoning the past, business-wide standard in favor of one that allows union organizers to gerrymander a workplace by cherry-picking small groups of employees within a larger workforce to form a bargaining unit,” the Retail Industry Leaders Association said.

“Micro unions are incompatible with the operational structure of the retail industry and the needs of American consumers,” said Kelly Kolb, vice president of government affairs at RILA. “The conflict and complexity brought to workplaces by micro unions jeopardizes the flexibility and opportunity that make retail jobs attractive to millions of Americans, while eroding the high level of customer service consumers have come to expect from retailers.”

The National Retail Federation argued in an amicus brief it filed in the case that a decision by the NLRB to allow bargaining units within stores “would do nothing more than serve to fracture and balkanize the structure of the retail employer’s business, and will adversely affect NRF’s members and their businesses, complicate labor relations and collective bargaining, completely frustrate and destroy the basic concepts of customer service, threaten to embroil customers and other members of the public in labor disputes, and create delay and increased costs in the board’s currently fair and efficient representation process.”

David French, senior vice president of government relations at the NRF, said: “Macy’s has a lot of different departments and a lot of different folks with different jobs within its stores. If folks in different jobs are organized by different unions, at some point that is going to impact the operations of the store in a way that the NLRB is not supposed [to allow].”

“What happens when the shoe department goes on strike? Do other departments walk out?” French asked rhetorically. “This is the kind of arbitrary unit construction that hasn’t happened in the real world.”

Retail groups are also trying to fight the NLRB’s new decisions on Capitol Hill, although a bill aimed at overturning the Specialty Healthcare decision stalled last year.

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