Nonmajority union organizing can continue; Supreme Court rejects Macy’s complaint
In a case involving a Macy's department store cosmetics counter, the National Labor Relations Board on Tuesday further expanded its recent precedents allowing for so-called "micro-unions." | Stephan Savoia/AP

SAUGUS, Mass. (PAI) — The U.S. Supreme Court has, for the first time, waded into the controversial issue of organizing so-called “microunions” – unions’ right to organize segments of workers at companies, not the whole companies—and it came down on the unions’ side.

The justices did so in an unsigned rejection of Macy’s challenge to successful union organizing among fragrances and cosmetics workers at its Saugus, Mass., store. The High Court’s vote not to hear the case upheld last year’s pro-union decision by the Fifth U.S. Circuit Court of Appeals in New Orleans, where Macy’s took the case, Macy’s v NLRB, for a ruling.

That appeals court decision backed both the National Labor Relations Board, which, six years ago, legalized the organizing of segments of workers at a company, and United Food and Commercial Workers Local 1445, which organized the Macy’s workers.

The high court’s ruling is important because congressional Republicans have been screaming about the NLRB’s ruling for what they derisively call “microunions” ever since the board handed it down. They’ve also tried to overturn it legislatively, while Macy’s tried to get courts to rule microunions are illegal. It lost. UFCW Local 1445 President Jeff Bollen was elated.

“It’s been several years since we won our initial election” among the cosmetics and fragrances salespeople at Macy’s, Bollen said in a telephone interview. “They were the most-militant” among all the Macy’s workers, “and the company has been trying to get them out ever since,” he added.

After an anti-union campaign that failed, Macy’s delayed the local’s ultimate win by appealing the election result – 23-18 for Local 1445 – first to the NLRB and then through the courts. It hoped to wear down the union and discourage the workers, but it hasn’t, Bollen said.

But now Local 1445 must undertake a new education campaign with the current cosmetics and fragrances workers, because only one quarter of the original 45 are still there. “The important thing is that we have to get the workers together and let them know what they’ve won,” he added.

The NLRB decision has helped unions organize drives. For example, when Macy’s tried to get all the Fifth Circuit judges to take the case last year – it lost there, too – the dissenting judges noted Local 1445 succeeded in organizing the cosmetics and fragrances workers after falling short in 2011 when it tried to organize all the Saugus store’s salespeople.

When the local won, Macy’s took the NLRB, which certified the local’s win, to court to try to dump the union judicially. Macy’s wanted a vote among either all Saugus store workers, or all of its sales workers, including those in other departments. That’s in line with prior corporate tactics to try to enlarge proposed bargaining units by adding in potentially anti-union workers.

The judges in New Orleans turned Macy’s demands down, backing Local 1445’s successful organizing only of the cosmetics and fragrances workers. The justices agreed.

“The board may certify ‘a unit’ that is ‘appropriate’—not necessarily the single most appropriate unit,” Fifth Circuit Judge James Dennis wrote in the NLRB pro-small-unit ruling that his three-judge panel, the full circuit court (by a 9-6 vote) and the justices upheld.

In rejecting Macy’s demands, “The board explained that Specialty Healthcare´– the controversial 2011 NLRB decision that allows specialized subsets of workers within a company to unionize and bargain collectively – “requires an employer to demonstrate the excluded employees share an ‘overwhelming community of interest’ with the employees in the petitioned-for unit, such that their community of interest factors ‘overlap almost completely,’” Dennis explained.

“While acknowledging the petitioned-for unit” – the cosmetics and fragrances workers – “shared some factors with certain other selling employees, the board concluded a storewide unit was not required,” he stated. The higher courts, including the Supreme Court, agreed.

Local 1445 still has its work cut out for it as a result of the delays and roadblocks Macy’s erected after the initial win. Bollen said that within the next week or two, the local would send out letters and leaflets to the Macy’s workers “to let them know what they’ve won, what their rights are” and that Macy’s must now bargain with the local for a contract for the 45 fragrance and cosmetics salespeople.

And it won’t stop there. “We’ll go for (organizing) the whole store,” Bollen says.


Mark Gruenberg
Mark Gruenberg

Award-winning journalist Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of the union news service Press Associates Inc. (PAI). Known for his reporting skills, sharp wit, and voluminous knowledge of history, Mark is a compassionate interviewer but tough when going after big corporations and their billionaire owners.