NLRB: Dividing The Workplace For Unions


Fred Wszolek
May 22, 2012
Real Clear Policy

The National Labor Relations Board (NLRB), fixated by the decline of union density in the private sector to just under seven percent, is dividing the workforce at the behest of Big Labor into multiple small collective bargaining units to stack the deck in favor of a union outcome. The Board’s policy: divide and conquer.

In a recent elections case, the Retail, Wholesale and Department Store Union petitioned to represent 42 of Bergdorf Goodman’s 372 sales associates working in the company’s Fifth Avenue store, that is, only those associates who sell women’s shoes. The employer sought a larger unit, either a store-wide unit or a unit of all its sales associates. The Board’s Regional Director (RD) sided with the union. Why? Because the employer’s other sales associates sell merchandise other than shoes.

According to the RD, 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.” She explained that sales associates in the other departments do not have prior shoe sales experience and “[i]f a shoe is not sized appropriately for a customer, discomfort and possible knee, back and other physical could result.” Although the RD cited a few additional differences between the 42 sales associates and the store’s remaining sales force, they were minor when compared with the community of interest all the sales associates shared —including the same hiring criteria, common supervision, the same hours and working conditions, the same benefits (health care, vacation and holiday pay), the same evaluation criteria and even a common cafeteria. The RD conceded as much. She said that “an over-all unit including all the Employer’s sales associates might be an appropriate unit.” Might be? It would be an appropriate unit under long-standing Board law, it simply was not the unit sought by the union.

The Board has dismantled a half-century of labor law.

The RD relied on a controversial decision issued by the Board at the end of last year – Specialty Healthcare – that essentially enables organized labor to determine the size and scope of collective bargaining units. The decision changed Board law that had been developed and applied for over half a century by Republican and Democrat-controlled Boards alike. Before Specialty and mindful of the dangers posed by undue unit proliferation, the Board generally favored larger units. Its standard for determining the size and scope of a unit was whether the employees in the petitioned-for unit had a community of interest sufficiently distinct “to warrant separate group identity.”

Specialty [or the micro union decision] fundamentally changed this Board law to favor whatever unit is petitioned-for by the union. Under Specialty, an employer can secure a unit larger than the unit the union petitions for only if it can demonstrate that there were some employees excluded from the unit who share an “overwhelming” community of interest with the petitioned-for employees. As this RD’s decision amply demonstrates, “overwhelming” can be a difficult standard for an employer to meet.

The new standard benefits only the unions.

Before the ink was dry on [the micro union decision known as] Specialty Healthcare, critics correctly warned that the decision would result in an undue proliferation of units to the detriment of employers, their employees, and the collective bargaining process. Undue unit proliferation dramatically increases an employer’s labor relations costs as the business owner will be required to negotiate and apply multiple collective bargaining agreements. It also increases the likelihood of industrial unrest and workplace disputes as different unions with differing goals represent different employees. And it prolongs the collective bargaining process and makes it more difficult as one union seeks to leap-frog over an agreement reached by another.

The Regional Director’s decision – if sustained by the Board, as it undoubtedly will be – demonstrates the threat posed to the nation’s retail industry by Specialty Healthcare and the micro-unions it authorizes. Under prior law, there was an industry presumption in favor of a single bargaining unit of selling and non-selling employees. That presumption has been replaced with one favoring any group of two or more employees petitioned-for by the union doing the same job in the same location. Retail stores throughout the nation are apt to see their workforces divvied-up into multiple small collective bargaining units based on nothing more than the nature of the product their employees handle. For Bergdorf Goodman there may be one unit for employees selling women’s shoes, another for woman’s handbags, a third for men’s suits, and so on and so forth.

The beneficiary of the Board’s Specialty Healthcare [or micro-union] decision is organized labor. Unions generally favor smaller units because it is easier to convince four or 40 employees to vote for a union than to convince 300. And smaller units give a union easy access to an employer, enabling it to more speedily organize the other employees. But the cost to the nation of this divide-and-conquer strategy will be enormous. This RD’s decision and the case upon which it relies unquestionably demonstrate that the NLRB under the Obama Administration is fully prepared to replace balanced even-handed policy with partisan approaches that reward Big Labor at the expense of the rest of us.

It is time for change.

Fred Wszolek is a spokesperson for the Workforce Fairness Institute.


Tell Congress: Stop the PRO Act

WFI is working to prevent passage of the so-called Protecting the Right to Organize Act (PRO Act)—a wholesale labor reform package that takes the current careful balance of labor rules and tips it greatly in the favor of labor bosses and forced collective bargaining.

The PRO Act robs workers of the right to a secret ballot to form a union, forces union contracts on workers without a vote of approval, and expose workers’ personal contact information to union bosses seeking to organize a workplace. And that’s just the start.

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WFI Key Vote Letter: Opposition to PRO Act

— 02.10.2020 —
Dear Speaker Pelosi and Minority Leader McCarthy: On behalf of the Workforce Fairness Institute (WFI), I am writing to share our organization’s vehement opposition to H.R. 2474, the Protecting the Right to Organize Act (PRO Act). WFI has serious concerns with the broad, overreaching nature of this legislation and the many ways in which it would undermine worker freedom and privacy, while simultaneously threatening businesses and entire industries that keep America’s economy thriving. Please note that WFI will include votes on the PRO Act and its amendments on our Congressional Labor Scorecard, which scores and ranks legislators based on their activity associated with workplace issues. WFI was established to fight for American employees and employers as well as our entire economy. We believe in worker empowerment, the right of workers to be fully informed of the options available for worker-involvement in the workplace, and the right to freely choose whether to organize or not. No individual or group – government, a union or an employer – should be able to intimidate or restrict workers’ in exercising these rights. In an attempt to boost flailing union membership at the expense of workers’ rights, the PRO Act would upend decades of established U.S. labor law and institute myriad anti-employee and anti-employer policies that have already been soundly rejected—by Congress, various federal agencies, or the courts. Among its most blatant affronts to workers’ rights, the PRO Act would eliminate the right to a secret ballot when determining whether to unionize and enforce a “card check” system, exposing workers to the potential for harassment, intimidation, and coercion. The PRO Act would also enforce binding arbitration in union negotiations by a government- appointed bureaucrat; repeal and eliminate right-to-work laws in 27 states, force workers to fund union activities regardless of whether they support them; and threaten the ability of individuals to operate as independent contractors, eliminating traditional economic and employment opportunities and threatening the independence and flexibility of the emerging gig economy. On top of all that, the PRO Act would force all workers’ personal and home contact information to be provided to a union during organizing campaigns – in an electronic, searchable format no less, with no limit on what a union can do with that information. WFI believes in advancing sensible policies that protect and preserve the rights of both employees and employers, and we welcome the opportunity to work with legislators who also support these efforts. However, the PRO Act does not achieve these goals and would instead threaten the rights of both while jeopardizing our entire economy. WFI urges members of the House to strongly oppose the PRO Act. Sincerely, Heather Greenaway Executive Director Workforce Fairness Institute See the letter here.
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