As appeared in the Human Resource Association of Central Ohio (HRACO) monthly newsletter
Micro Bargaining Units: Prepare to Manage Multiple Union Contracts
Women’s shoes, long the topic of conversation in break rooms, are now being discussed in board rooms. Corporate executives and human resource personnel alike are holding meetings to talk about high-end shoes for ladies. Specifically, discussions about ladies shoes sold at Bergdorf Goodman on 5th Avenue in New York City have passed through the mouths of management from Savannah to Seattle because employees of that store’s shoe department started a new era: micro-sized bargaining units will likely become de rigueur.
The law had been the same since 1957. An appropriate bargaining unit for retail stores was presumed to consist of a “wall-to-wall” unit, which means everyone in the store should be in one bargaining unit. This wall-to-wall unit arose out of the extreme crossover that employees have in the retail setting. One minute employees are stocking shelves, the next they are running a cash register, and after that they are sweeping the floor and taking out the trash. Last month, though, the presumption of a wall-to-wall bargaining unit was erased.
Now, retail store employees can be divided into multiple collective bargaining units as small as two employees based on nothing more than the nature of the product they handle. In essence, particular employees in a particular department on a particular floor of a business can now unionize. A union can organize bits and pieces of a company at different times knowing that it would be unsuccessful in obtaining a majority vote for a traditional wall-to-wall unit. This precedent will probably lead to a multiplicity of small bargaining units that operate under myriad collective bargaining agreements.
To put this in perspective, Bergdorf Goodman has 372 salespeople working in 18 departments and could theoretically have at least 18 different collective bargaining agreements with 18 different unions. If this happened, salespeople would likely be prohibited from working in departments outside their union’s jurisdiction. So the men’s suit salesman could not help customers in the men’s casual wear department and the ladies who sell perfume could not cover for the ladies who sell handbags when they are busy or on break.
So how did this new law come to be? The NLRB found that the 42 salespeople in the women’s shoe department – located on the 2nd and 5th floor of the store – were an appropriate bargaining unit because although “all sales associates work toward a common goal of selling merchandise, the women’s shoe department has the unique goal of selling shoes in particular.” Specifically, “if a shoe is not sized appropriately for a customer, discomfort and possible knee, back, and other physical injuries could result.” There were a few other differences between the women’s shoe associates and the sales associates in other departments, but they were minor when compared to the community of interest all sales people shared such as the same hiring criteria, common supervision, same hours, same working conditions, same health care, same vacation policy, same holiday pay practice, same evaluation criteria, and same employee cafeteria.
What Does This Mean to HRACO Members?
Statistics show that unions win more elections in smaller units; it is easier to convince 3 out of 5 people to vote in favor of a union that it is to convince 187 out of 372 employees to do the same. The prevalence of micro-units allows unions to start small and expand their presence from within your organization. Here is an example that I frequently use with my clients – especially when representing small businesses:
Imagine a small diner with just six employees – two waitresses, two cooks, and two dishwashers. Each job classification can become unionized separately. The waitresses could be members of the Teamsters, the cooks could be UFCW, and the dishwashers could belong to the Steelworkers union. Each group of two employees can have their own collective bargaining agreement, their own grievance and arbitration procedures, and can go on strike at different times, etc. The administrative costs of bargaining and managing these three separate contracts could quickly become cost-prohibitive for the small diner.
Although my example highlights a small company, the same analogy applies to larger organizations, like Bergdorf Goodman, where 42 out of 372 may be represented by the Retail Wholesale Department Store Union, and speculatively, 23 by the United Autoworkers Union, 18 by the Machinists Union, 51 by the Laborers, and the list goes on and on….
What Should HRACO Members Do?
Human resource personnel of non-union workplaces should identify groups of employees who are susceptible to being isolated into small bargaining units. Once identified, determine whether it makes business sense to ensure that those groups share an overwhelming community of interest with other groups of employees so as to protect the company from micro-units developing in the future. If unclear as to what factors are examined when determining a community of interest, please consult with your company’s labor attorney or labor relations advisor.
Human resource professionals whose employers already have a union should evaluate whether other groups of employees could be “tacked onto” the pre-existing bargaining unit now that the community of interest standard has been lowered. These HR professionals should also evaluate the susceptibility of employees being grouped into micro bargaining units, just like the personnel at non-union facilities.
Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.