The NLRB finds that the women’s shoe sales employees at Bergdorf Goodman’s New York Store are not an appropriate unit for bargaining. The Board’s unanimous decision to reverse the Regional Director’s finding that the shoe sales team did constitute an appropriate unit and could have their own vote on union representation comes one week after its decision finding that a unit limited to the cosmetics and fragrance sales employees at a Macy’s in Saugus were an appropriate unit for bargaining. The Regional Directors who issued the Decisions and Directions of Election in Macy’s and Bergdorf Goodman each had relied on the Board’s Specialty Health Care decision, which is now often referred to as the “Micro Unit” decision.

The Bergdorf Goodman decision and the Board’s explanation of why a different outcome than the one in Macy’s relies heavily on the record of facts developed by the employer in the representation hearing that took place when the union filed its petition for an election among the women’s shoe sales persons at the Bergdorf Goodman store.  In what is almost certain to create further confusion in both management and labor, the decision in Bergdorf (which was four pages in length in contrast to the 33 page Macy’s decision) reached their decision that the women’s shoe sales persons at Bergdorf Goodman “lack a community of interest,” the Board first acknowledged that the women’s shoes salespersons “share some community-of-interest factors,” their work, a draw against commission pay plan unique in the store and the highest commission rates of any of the store’s employees.

In finding that they did not however share a community-of-interest” under Specialty Healthcare, the Board stated in conclusory fashion that the “boundaries of the petitioned-for unit do not resemble any administrative or operational lines drawn by the Employer.”  It was apparently significant to the Board that the Bergdorf Goodman shoes sales employees were assigned to two different selling areas, Salon shoes and Contemporary shoes, located on different floors of the store and that Contemporary shoes was in part of Contemporary Sportswear, another department.

Reading the decision, which contains summaries of the facts that support a finding that the shoe salespersons share a community-of-interest and those that lead the Board to its conclusion to reverse the Regional Director’s conclusions makes clear how critical a well- developed factual record is in representation proceedings such as this.  However, under the Board’s proposed new election rules, which remain pending and are likely to be adopted in some form before the end of the year, one of the critical changes that the Board is proposing is the elimination of the right to a hearing when a petition is filed to resolve precisely the type of factual questions that the Board says distinguish its decisions in Macy’s and Bergdorf Goodman.

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