Macy’s, Inc. v. National Labor Relations Board

The NLRB announced its new “micro-unit standard” in 2011, to recognize the right of small groups of employees to organize. In April 2016, we filed an amicus brief with the U.S. Court of Appeals for the Fifth Circuit supporting Macy’s challenge of an NLRB decision to allow a group of employees within the cosmetics department of a Macy’s location to form their own “micro union.” The court ruled that the NLRB properly determined that this “micro-unit” was an appropriate bargaining unit because the employees in question had “distinct interests” that they did not share with other workers. We believe this violates the National Labor Relations Act, gives unions a much easier way to get a foothold in a workplace, and subjects employers to the possibility of having to negotiate and manage multiple bargaining contracts within a single location.

In July 2016, the Chamber, NFIB, and the Association filed an amicus in support of Macy’s petition for a rehearing en banc by the Fifth Circuit in its “micro-unions” case. RILA, through its Retail Litigation Center, filed a separate amicus. Our amicus focused on the practical problems caused by the NLRB’s unit finding in contravention of the statute.

The Fifth Circuit declined to rehear the case on November 18, 2016, but its decision was split. Nine judges voted to deny Macy’s en banc review request and six judges dissented. The dissenting judges issued an opinion stating that the case is part of a broader push by the NLRB to dismiss established labor law principles by allowing a smaller unit of fragrance and cosmetics employees to be isolated from a presumed bargaining unit of all sales force workers. Given the dissent opinion and the appointment to the U.S. Supreme Court of Justice Gorsuch, Macy’s filed a Petition for Certiorari on February 16, 2017.

Resolution

We will consider filing an amicus, if the case is accepted for review by the U.S. Supreme Court.