Macy’s Inc. v. National Labor Relations Board

In October 2012, Local 1445 of the United Food and Commercial Workers Union (the union) filed a petition for election with the National Labor Relations Board (NLRB) (defendant). The union sought to represent only the cosmetics and fragrances workers at the Saugus, Massachusetts Macy’s. In November 2012, the NLRB issued a decision finding that the petitioned-for bargaining unit was appropriate. Macy’s (plaintiff) filed a request for review with the NLRB, arguing that a larger unit of employees at the Saugus store was appropriate under the “overwhelming community of interest” test from Specialty Healthcare, a 2011 NLRB decision. Under the test, an employer requesting a more inclusive bargaining unit must show that excluded employees share an overwhelming community of interest with the employees in the unit. Additionally, Macy’s argued in its petition that the Specialty Healthcare test departed from NLRB precedent. The NLRB upheld its prior determination that the petitioned-for unit was appropriate. In its review, the NLRB first determined that the cosmetics and fragrances employees shared a community of interest. Next, the NLRB concluded that the excluded employees at the Saugus Macy’s did not share an overwhelming community of interest with the cosmetics and fragrances employees such that a storewide unit was necessary. Finally, the NLRB concluded that the overwhelming-community-of-interest test was in line with prior NLRB precedent. Macy’s refused to bargain with the union, and the NLRB filed an unfair-labor-practices order. Macy’s filed a petition for review with the United States Court of Appeals for the Fifth Circuit, arguing that (1) the Specialty Healthcare test violated § 9(c) of the National Labor Relations Act (NLRA), which prohibits the NLRB from giving controlling weight to the extent of union organization in making bargaining unit determinations, and (2) the Specialty Healthcare test departed from NLRB precedent—under which the appropriate bargaining unit would include all salespeople at the Saugus Macy’s—by considering only commonalities among the proposed unit and not evaluating whether the proposed unit’s interests differed from those of other employees. The NLRB filed a cross-petition for enforcement of its order.