A decision this week by the National Labor Relations Board could make it much easier for unions to get a foothold in large retailers include Walmart, which has thwarted eorganization efforts by the United Food and Commercial Workers for years.
The board, in a case involving Macy's, ruled that the UFCW can organize a subgroup of workers within a single Massachusetts store. By targeting just 41 cosmetics workers at the 150-employee store in Saugus, the union stands a better chance of winning the required election and establishing a position within the store to try and recruit more workers. It was based upon a 2011 decision involving a nursing home, Specialty Healthcare, that retailers hoped to contain within the healthcare industry.
"These are significant decisions, and put employers in a position where it's much easier to organize" segments of the workplace, said Gerard Golden, a partner with Neal Gerber Eisenberg in Chicago who frequently represents employers in union negotiations. "Typically a union had to organize all the employees in a related sales position in order to hold an election."
Walmart is the largest U.S. private employer with 1 million workers and thus is a big target for the UFCW, not only because of the dues it would collect from unionized employees but because it could eventually put Walmart on the hook for its critically underfunded pension fund. Kroger Kroger agreed to pay almost $1 billion to shore up several UFCW pension plans in 2011, in an agreement that also allowed it to take over financial management of the troubled funds.
Would a union fix this? (Photo credit: Wikipedia)
The union has tried to organize Walmart before, losing a 17-0 vote on unionizing an automotive department of a Pennsylvania store in 2005. Since then the union has mostly engaged in a cat-and-mouse game with Walmart, using front groups like OUR Walmart to snipe at the company with news releases like this one hailing the resignation of former U.S. chief executive Bill Simon, and this union-issued report deriding the billions of dollars Walmart heirs have given to charity.
The union aggressively supported walkouts and protests on Black Friday in 2012, then urged the NLRB to discipline Walmart for threatening workers who left their jobs. The NLRB filed a complaint against Wal-Mart earlier this year accusing it of unlawfully threatening workers who engaged in strikes and protests.
Walmart has fired back, accusing the UFCW and OUR Walmart of illegally picketing the company. After the labor board threatened to take action, OUR Walmart agreed to stop picketing for 60 days and the UFCW said it "has no intent to have Walmart recognize or bargain with it as the representatives of Walmart employees." Undeterred, OUR Walmart called for "one of the largest mobilizations of working families in American history" on Black Friday last year. Neither Walmart nor the union responded to requests for comment.
Under the previous understanding of labor law, Golden said, Walmart could present the union with a tough strategic choice: Shoot the moon and try to organize entire stores or even entire regions, or hang back and wait for its efforts through groups like OUR Walmart to convince enough workers to side with the union. If a union holds an election and fails, it can't make another attempt for a year.
Until the Macy's Macy's decision there was only one precedent for allowing piecemeal organization of a retailer, and that involved the automotive department of a Sears store. The previous understanding of the law gave Walmart "a potential argument that one store standing alone isn't a sufficient bargaining unit," Golden said, because multiple stores in a state or region might be under one management, with identical pay and incentive programs.
The board rejected that theory in the Macy's decision, however, saying that under the Specialty Healthcare ruling, which was upheld by the Sixth Circuit Court of Appeals, the employer has the burden of showing that a bargaining unit is too small and that a larger group shares the "community of interests" labor laws require. That removes much of the discretion the NLRB had to reject small bargaining units and makes it harder for employers to argue against unionizing subgroups of the work force.
The decision represents the power of Democratic appointees who took charge at the board after the President's recess appointments were rejected. The chairman Mark Gaston Pierce wrote the opinion and was joined by Nancy Schiffer, a former AFL-CIO assistant general counsel, and Kent Y. Hirozawa. Philip Miscimarra, a Republican appointee, wrote a dissent urging the board not only to refuse to recognize a subgroup of retail employees but not to follow the reasoning in Specialty Healthcare in future rulings.
"Specialty Healthcare constitutes an unwarranted departure from standards developed over the course of decades," he said.
Among other things, the ruling might make it hard for retailers to move employees around within a store and cause workplace strife by forcing the employer to adopt different pay practices for workers doing essentially identical jobs.
No comments:
Post a Comment