MacY's, Inc. v. National Labor Relations Board
2016 U.S. App. LEXIS 20682
| 5th Cir. | 2016Background
- Union sought representation at Macy’s Saugus store; after two failed broader organizing efforts, it petitioned for a smaller unit consisting only of cosmetics and fragrances sales employees and won.
- The NLRB certified the cosmetics/fragrances micro-unit and ordered Macy’s to bargain with the Union.
- Macy’s petitioned for judicial review in the Fifth Circuit; a panel denied the petition and enforced the NLRB order.
- Judge Jolly wrote a dissent from the denial of rehearing en banc, joined by six judges, arguing the panel and NLRB misapplied NLRA principles.
- Central legal dispute: whether the NLRB properly applied the Specialty Healthcare two-step community-of-interest test and § 9(c)(5)’s prohibition on giving controlling weight to the extent of employee organization.
Issues
| Issue | Plaintiff's Argument (Macy’s) | Defendant's Argument (NLRB/Union) | Held |
|---|---|---|---|
| Whether the petitioned-for cosmetics/fragrances micro-unit is a prima facie appropriate community-of-interest under Specialty Healthcare | NLRB failed to compare included employees to excluded selling employees and identified only a meaningless distinction; the board’s analysis was deficient | The board properly found the unit readily identifiable and sharing a community of interest and proceeded correctly under Specialty Healthcare | Panel upheld NLRB; dissent contends the NLRB applied wrong standard and failed required comparison |
| Whether the NLRB gave controlling weight to the extent of union organization in violation of NLRA § 9(c)(5) | The certified unit reflects the apex of union strength after failed larger petitions, so the board effectively rewarded union gerrymandering | The board’s use of Specialty Healthcare avoided giving controlling weight to organization; the result reflected proper application of the two-step test | Panel enforced order; dissent finds § 9(c)(5) violated because NLRB rubber-stamped petitioned-for unit |
| Whether the NLRB adequately articulated and weighed community-of-interest factors per circuit precedent (Purnell’s Pride / Metro. Life) | NLRB did not assign relative weight to factors or explain why differences outweighed similarities, frustrating judicial review | Board explained factors and cited precedent to justify why objections did not render the unit inappropriate | Panel concluded articulation was adequate; dissent says explanation was insufficient under Purnell’s Pride |
| Whether panel’s review was arbitrary, capricious, or an abuse of discretion given evidentiary record and precedent | The decision lacks a reasonable legal basis, fails to follow precedent, and undermines labor peace by permitting micro-units without limiting principle | The enforcement is within deferential review; board’s expertise and application justify affirmance | Panel denied rehearing en banc and enforced; dissent urges en banc review to correct legal error |
Key Cases Cited
- Macy’s, Inc. v. NLRB, 824 F.3d 557 (5th Cir. 2016) (panel enforcement of NLRB order upholding cosmetics/fragrances unit)
- NLRB v. Purnell’s Pride, Inc., 609 F.2d 1153 (5th Cir. 1980) (requirement that NLRB weigh and articulate the relative significance of community-of-interest factors)
- Metropolitan Life Ins. Co. v. NLRB, 380 U.S. 438 (1965) (§ 9(c)(5) limits giving controlling weight to the extent of employee organization and mandates disclosure of basis for board action)
- Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016) (describing community-of-interest comparison requirement and guarding against arbitrary exclusions)
- Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008) (extent of organization may be considered but not controlling; unit appropriateness requires broader analysis)
- NLRB v. Magna Corp., 734 F.2d 1057 (5th Cir. 1984) (review standard: set aside board orders lacking reasonable basis in law)
- NLRB v. R. C. Can Co., 328 F.2d 974 (5th Cir. 1964) (policy favoring labor peace and cautioning against balkanization of bargaining units)