MacY's, Inc. v. National Labor Relations Board
2016 U.S. App. LEXIS 10068
5th Cir.2016Background
- Macy’s Saugus store petition concerned certification of a bargaining unit limited to cosmetics and fragrances selling employees (full-time, part-time, on-call, counter managers, beauty advisors).
- Cosmetics and fragrances staff worked in two distinct, connected areas, had separate supervision, department-specific training, vendor-specific counters, and limited interchange with other store selling employees.
- Other store selling employees worked across ten other primary departments; some had analogous roles but little evidence of regular shift-sharing or selling crossover with cosmetics staff.
- The NLRB’s Regional Director certified the cosmetics/fragrances unit; Macy’s sought review arguing the smallest appropriate unit must be storewide or include all selling employees.
- The Board applied the Specialty Healthcare “overwhelming community of interest” framework and found the cosmetics/fragrances unit appropriate; Macy’s refused to bargain, prompting the Board’s unfair labor practice order and Macy’s petition for review in the Fifth Circuit.
Issues
| Issue | Plaintiff's Argument (Macy’s) | Defendant's Argument (NLRB/Union) | Held |
|---|---|---|---|
| Whether the cosmetics/fragrances unit is appropriate under NLRA unit-determination principles | Unit is inappropriate because all selling employees form a homogeneous workforce; the smallest appropriate unit must be storewide or include all sellers | The cosmetics/fragrances employees form a readily identifiable unit with distinct supervision, duties, locations, and limited interchange | Held: Unit is appropriate; Macy’s failed to show it was "clearly not appropriate." |
| Validity/applicability of Specialty Healthcare’s "overwhelming community of interest" test | Test conflicts with NLRA, prior precedent, and unlawfully privileges union-proposed units; APA requires rulemaking | Specialty Healthcare clarifies existing law; test is consistent with Board precedent, permissible under Chevron, and may be adopted via adjudication | Held: Test is permissible and not an abuse of discretion; Board reasonably applied it. |
| Whether the Board gave improper weight to extent of union organization (§9(c)(5)) | Specialty Healthcare makes extent of organization controlling, violating §9(c)(5) | Board may consider organization as one factor; Specialty Healthcare requires rigorous community-of-interest analysis first | Held: No §9(c)(5) violation where Board rigorously applied traditional factors. |
| Whether the excluded selling employees share an "overwhelming" community of interest with the unit | All selling employees share overwhelming common interests, so exclusion is unjustified | Record shows multiple distinctions (location, supervision, functions, training, little interchange) supporting exclusion | Held: Excluded employees do not share an overwhelming community of interest; exclusion was justified. |
Key Cases Cited
- NLRB v. Curtin Matheson Scien., Inc., 494 U.S. 775 (Board rules entitled to deference)
- Am. Hosp. Ass’n v. NLRB, 499 U.S. 606 (Board need find an appropriate, not most appropriate, unit)
- NLRB v. Metro. Life Ins. Co., 380 U.S. 438 (extent of organization not controlling but may be considered)
- SEC v. Chenery Corp., 332 U.S. 194 (agency may announce standards in adjudication)
- Elec. Data Sys. Corp. v. NLRB, 938 F.2d 570 (5th Cir.) (narrow review: unit upheld unless clearly not appropriate)
- NLRB v. Purnell’s Pride, Inc., 609 F.2d 1153 (5th Cir.) (Board must explain weighing of factors)
- Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir.) (discussion of overwhelming community-of-interest burden)
- Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir.) (treating Specialty Healthcare as clarification)