The National Labor Relations Board ruled yesterday on requests for review in two separate representation cases involving retail stores. The two rulings, when read together, may suggest that the Board is primed to eliminate special industry and occupation rules, such as the long-standing presumption for store-wide bargaining units in retail stores, used to determine appropriate bargaining units.

In Home Depot U.S.A., Inc., Case No. 20-RC-067144, the Regional Director issued a decision finding that the petitioner’s requested unit, which sought some, but not all, of the sales associates at the employer’s retail store, was inappropriate, and that the only appropriate unit was a traditional retail wall-to-wall unit given the functional integration, interchange, and common sales duties performed by the employees at the store.

The petitioner challenged the Regional Director’s decision by claiming that the Regional Director either “ignored the legal standard” set forth in Specialty Healthcare, 357 NLRB No. 83 (2011), or that the decision departed from that standard. In Specialty Healthcare, the Board overruled 20 years of practice regarding how it determines the “appropriate unit” in non-acute health care facilities.  More importantly, however, the Board signaled that it now believes that smaller units — such as units that consist of only one department, or perhaps even one job classification — should be permitted, rather than the current NLRB preference of favoring “wall to wall” units.

In a one page decision, the Board unanimously denied the petitioner’s request for review:

Petitioner’s Request for Review of the Regional Director’s Decision and Direction of Election is denied as it raises no substantial issues warranting review. We agree with the Regional Director’s finding that the petitioned-for unit is not appropriate, and we note that Petitioner’s Request for Review does not seek any alternative unit. In those circumstances, we find it unnecessary to pass on the Regional Director’s further finding that only a wall-to-wall unit is appropriate.

(emphasis added).

Meanwhile, the Board granted the employer’s request for review in Bergdorf Goodman, Case No. 2-RC-076954, in which the Regional Director found that the petitioner’s requested unit was appropriate. The petitioned-for unit was the:

women’s shoes associates in the 2nd Floor Designer Shoes Department and in the 5th Floor Contemporary Shoes Department employed in the Employer’s retail store located at 754 Fifth Avenue, New York, NY.

Similar to Home Depot, the employer asserted that the only appropriate unit is a store-wide unit.

On May 4, 2012, the Regional Director issued a decision finding that the petitioned-for unit is appropriate because the women’s shoe associates position:

requires a distinct skill set from other sales associates due to the unique nature of the product they are selling. If a shoe is not sized appropriately for a customers, discomfort and possible knee, back and other physical injuries could result.

The Regional Director also found that the women’s shoes associates were compensated differently than the other sales associates and that there was little interchange and interaction with other employees, which outweighed the common terms and conditions of employment among all employees.

In support of a wall-to-wall unit, the employer asserted that the Board noted in Specialty Healthcare that its ruling was not meant to disturb special industry and occupation rules for determining an appropriate bargaining unit; therefore, the Regional Director had to follow the industry presumption of a wall-to-wall unit in retail settings. In response, the Regional Director noted that:

though the presumption of a store-wide unit exists, the presumption can and has been rebutted in this case.

(emphasis added). The employer requested review of the Regional Director’s decision, and the Board unanimously granted it “as it raises substantial issues warranting review.”

Given that Specialty Healthcare is a relatively recent decision supported by the current Board, it is unlikely that the majority granted the employer’s request with a view towards finding the petitioned-for unit inappropriate. Rather, the Board may wish to clarify the effect of Specialty Healthcare by eliminating the “special industry and occupation rules” — such as the presumption for wall-to-wall units — in a retail setting.

Thus, retailers may take some comfort that Home Depot confirms that Specialty Healthcare does not grant petitioners unlimited discretion in crafting bargaining units. They must pay close attention to the Bergdorf Goodman case, however, to see exactly where the Board draws the line on historic special retail industry and occupational rules used to determine appropriate bargaining units.