After reviewing the most recent decisions by the NLRB with respect to the retail industry and the application of Specialty Healthcare to that industry, all I can say is – thank you Harry. Specialty Healthcare reversed many long standing principles of what is an appropriate bargaining unit. Fundamentally, the decision should turn on what is best in the public interest, not what is best for the union or the employer. Specialty Healthcare simply voids that approach. The emphasis is now on the scope of the union’s organizing attempts versus what is an appropriate unit from an objective standpoint. This is clearly contrary to the specific provision of the NLRA, in particular, Section 9(c)(5). The Board’s recent decisions in Macy’s and Nieman Marcus make it even clearer that the NLRB is fumbling as to how to apply this standard. Indeed, the only real difference between these cases is the fact that Harry Johnson was a member of the Nieman Marcus panel but not the Macy’s panel. Frankly, there is no other rational basis to distinguish the two cases. And unfortunately for Macy’s, the appeal process will drag them through an election, a technical 8(a)(5), and a Court of Appeals proceeding. To put it bluntly, this entire area of the law is now chaotic. No one has any idea what the true criteria is for determining an appropriate unit. As the old adage goes, “if it’s not broken, don’t fix it.” The NLRB would be wise to follow such advice in the future.
