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The National Labor ReLations Board concluded
that a group of cosmetics-and-fragrances sales em-
ployees at a single Macy's store rwas "unit appropri-
ate for collective bargaining." 29 U.S.C. $ 159(b). It
did so by considering those employees in isolation,
and without explaining why meager differences be-
tween their interests and those of other Macy's sales
staff were significant in the context of collective bar-
gaining. IVhile the Fifth Circuit approved the Board's
action, the Second Circuit recently rejected exactly
this approach to unit determinations by the Board.
The question presented is:
Whether the National Labor Relations Board must
explain the legal significance of factual distinctions
between included and excluded employees when de-
ciding if a petitioned-for "unit [is] appropriate for col-
lective bargaining." 29 U.S.C. 5159@).


Petitioner Macy's, Inc., was the Petitioner Cross- QUESTION PRESBNTED ..........i
Respondent in the U.S. Court of Appeals for the Fifth
Circuit. Macy's, Inc. is a publically traded corpora- PARTIES TO THE PROCEEDING AND
tion. No publicly held corporation owns t)%o or more RULE 29.6 STATEMENT
of its stock, and it does not have a parent corporation. PETITION FOR A WRIT OF CERTIORARI............. 1
Macy's, Inc. owns I0O% of the stock of Macy's Retail
Holdings, Inc., which owns the store at issue in this

litigation. JURISDICTION 4
Respondent National Labor Relations Board was LEGAL PROVISIONS INVOLVED. 4
the Respondent Cross-Petitioner below.
Intervenor Local 1445, United Food and Commer-
cial Workers International Union intervened before A. LegalBackground............. 4

the U.S. Court of Appeals for the Fifth Circuit after B. FactualBackground.......... 7
organizing the unit at issue before the agency. C. The Proceedings Below 8


PROPOSED UNITS.............. .........14
PORTANT.......... 26
APPENDIX A: Opinion of the U.S. Court of
Appeals for the Fifth Circuit (June 2,
20t6) .. 1a
IV v


(continued) Page(s)
Page Crsns
APPENDIX B: Decision of the National Labor Alled Chem. & Alkali Workers, Loca'l
Relations Board (July 22,2014) 25a Union No. 1 u. Pittsburgh Plate Glass
APPENDIX C: Decision of the NationaL Labor Co.,
Relations Board (Jan. 7,2015) 135a 404 u.s. r57 (Le7t) 6

APPENDIX D: Order of the U.S. Court of Ap- Am. Hosp. Ass'n u. NLRB,
peals for the Fifth Circuit Denying Stay.. L46a 499 U.S. 606 (1991) 6

APPENDIX E: Order of the U.S. Court of Ap- Amalgamated Clothing Worlzers u.

peals for the Fifth Circuit Denying Peti- NLRB,
tion for Rehearing En Banc 49LF.zd 595 (5th Ctr.1974) 5
(November 18, 2016) l47a Constelltion Brnd.s, U.S. Operations,
APPENDIX F: Judgment of the U.S. Court of Inc. u. NLRB,
Appeals for the Fifth Circuit (June 2, 842 F.3d 784 (2d Cir. 2016) ...........passim
2016) 166a
Cont'l Web Press, Inc. u. NLRB,
APPENDIX G: Legal Provisions InvoLved 168a 742F.zd 1087 (7th Cir. 1984) .pa,sslm
29 U.S.C. $ 157 168a
DPI Secuprnt, Inc.,
29 U.S.C. $ 15e 168a 362 N.L.R.B. No. 172,
2015 WL 5001021 (Aug. 20,2OI5) 28

Encino Motorcars, LLC u. Nauz,rro,

136 s. ct.2LL7 (2016) 25

Fed&x Freight, Inc. u. NLRB,

839 F.3d 636 (7th cir. 2016) ................ 17
Fedx Freght, Inc. u. NLRB,
816 F.3d 515 (8th Cir. 2016) ................ 18
Hotel Serus. Grp., Inc.,
328 N.L.R.B. 116 (1999) .......22
vt vlr


(continued) (continued)
Page(s) Page(s)
LeMoyne-Owen Coll. u. NLRB, Rochelle Waste Disposal, LLC u.
357 F.3d 55 (D.C. Cir.2004) 20 N.L.R.B.,
Motor Vehicle Mfrs. Ass'n of U.5., Inc. u 673 F.3d 587 (7th Ctr.2OL2) ................ 16
State Farrn Mut. Auto. Ins. Co., Specialty Healthcare & Rehabilitation
463 U.S. 2e (1e83) 6,25 Center of Mobile,
Nestle Dreyer's lce Cream Co. u. NLRB, 357 l.t.L.R.B. 934 (2011) ................passim
821 F.3d 489 (4th Cir. 2016) 17, 18,26 United Operations, Inc.,
Newton-Wellesley Hosp., 338 N.L.R.B. L23 (2002) ......... 5
250 N.L.R.B. 409 (1980) 5,24,26 Srerurns
NLRB Action Automotue, Inc.,
u. 5 u.s.c. $ 557 4, 6,20
46e U.S. 490 (1e85) 5
28 U.S.C. S L254 4
NLRB u. Fed&x Freght, Inc.,
832 F.3d 432 (3d Cir. 2016) ......17,24,26
2e u.s.c. $ 157 . 4,23,30

NLRB u.Ky.Riuer Cm,ty. Care, Inc., 29 U.S.C. $ 159 ...passim

532 U.S. 706 (2001) 10 Ornpn Aurrronrrrns
NLRB u. Lundy Packing Co., 29 c.F.R. $ 102.67 16
68 F.3d 1577 (4th Cir. 1995) 2T Decision & Direction of Election, YaIe
NLRB u. Metro. Life Ins. Co., Uniu., Nos. 01-RC-183014 (N.L.R.B
380 U.S. 438 (1e65) 6,20,23 Region 1, Jan. 25,20tT) 27
NLRB u. Meyer Label Co., H.R. Rep. No. 80-245 (7947), reprnted
597 F.2d 18 (2d Cir. 1979). 29 in 1 NLRB, Legislative History of the
Labor Management Relations Act
NLRB u. Purnell's Pride, Inc., o
2e2 (re48) z,)
609 F.2d 1153 (5th Cir. 1980) 6,2I,22,23
NLRB u. Superor Prot., Inc.,
401 F.3d 282 (1th Cir. 2005) ................30


(continued) The National Labor Relations Board ("NLRB" or
Page(s) the "Board') concluded that a subset of the sales em-
H.R. Rep. No. 80-510 (1947) (Conf. ployees at a single Macy's department store-the
Rep.), reprinted in 1 NLRB, employees who sell cosmetics and fragrances-
Legislative HistorY of the Labor constituted a "a unit appropriate for . . . purposes of
Management Relations Act 505 collective bargaining." 29 U.S.C. $ 159@). The Board
(1e48) 30 singled out this subset as a bargaining unit despite
acknowledging that all sales employees at Macy's
Saugus, Massachusetts, location perform the same
kind of work-selling merchandise. They also aII op-
erate under the same terms and conditions of em-
ployment, participate in the same benefrt programs,
enjoy the same training opportunities, are evaluated
using the same criteria, and attend the same daily
meetings. Nevertheless, a Fifth Circuit panel denied
Macy's petition for review, with a "breezy analysis"
that belied the errors infecting the Board's opinion.
Pet.App. I52a (Jolly, J., dissenting from denial of re-
hearing en banc).
The notion that a single department of a single
etore constitutes an appropriate bargaining unit is
wrong as a matter of law and common sense. The
Board's discretion in making these so-called "unit
determinations" is not unlimited. As the Second Cir-
cuit explained in Constellation Brands, U.S. Opera-
tbns, Inc. u. NLRB, 842 F.3d 78.4 (2d Cir. 2016)-a
involving materially identical legal issues-the
may not create bargaining units simply by
to similarities among employees that a un-
would like to represent. See id. at 794. Rather, it
compe,re the interests of those employees with
interests of others excluded from the proposed
Id.If must also explain why any factul distinc-

tions between included and excluded employees have endorsed by the Fifth Circuit contravenes basic prin-
legal significance in the context of collective bargain- ciples of administrative law and the National Labor
ing, and why they outweigh interests shared among Relations Act ("NLRA"). A test that allows the Board
those employees. Id. Thus, it was not enough that all to approve bargaining units without explaining \Mhy
employees in one subgroup at a Constellation winery the interests of incl,uded and excluded emp.oyees are
shared similar interests. The Board could not deem distinct-and why those distinctions are significant
them an appropriate bargaining unit without first in the context of collective bargaining-leaves courts
comparing their interests to those of other employees with no way to assess whether the NLRB's action
at the winery, and then explaining why any differ- was arbitrary and capricious, or whether the Board
ences-e.g., physically separate work areas and sepa- fulfilled its obligation to exercise independent judg-
rate sup ervisors-were le gally signific a nt. I d. ment in recognizing an appropriate bargaining unit.
Here, a panel of the Fifth Circuit allowed the Finally, the approach approved by the Fifth Circuit
Board to do exactly what the Second Circuit prohibit- "contains no real limiting principle" and has far-
ed. After the court denied Macy's petition for rehear- reaching consequences. Pet.App. 151a (Jolly, J., dis-
ing en banc by a 9-6 vote, the six dissenting judges senting). For Macy's and other retailers, the Fifth
explained that "the NLRB articulated and applied Circuit's decision creates the real prospect of a multi-
the wrong standard' for unit determinations. plicity of conflicting bargaining obligations. After all,
Pet.App. 159a (JoIIy, J., dissenting). Rather than the factual distinctions on which the panel and the
comparing the interests of included employees with Board relied to create a cosmetics-and-fragrances
excluded employees, the Board first considered the unit-separate department, separate supervision,
cosmetics-and-fragrances sales employees in isola- separate workspace, and limited interaction-
tion, finding similarities among them. Id. at I57a- describe euery department of euery department store
61a. To be sure, the Board eventually listed some dis- in the country. "[N]othing in the NLRB's rationale
tinctions between cosmetics-and-fragrances sales prevents a dozen micro-units within a retail store's
employees and the rest of Macy's sales staff. But it salesforce-all fraught with mini-bargaining at mul-
never explained why lhose distinctions were relevant tiple times and the possibility of disputes and mini-
in the context of collective bargaining, much less why strikes occurring continually over the working year."
they outweighed interests shared by all employees in /d. Such arrangements are hardly conducive to "pro-
a single, integrated department store. Id. at 161a-65a. moting labor peace and stabilty." Id.
This divide among the circuits reflects fundamen- This Court's immediate review is warranted.
tally different understandings of how to apply the OPINIONS BELOW
framework for unit determinations articulated by the
The opinion of the National Labor Relations Board
Board rn Specialty HeIthcare & Rehabilitation Cen-
approving the petitioned-for unit is reported at 361
ter of Mobile,357 N.L.R.B. 934 (2011). The standard
4 5

l.tLRB No. 4, 2014 WL 3613065. Pet.App. 25a. Its whether the employees share a 'community of inter-
subsequent decision finding that Macy's refusal to est."' NZ-RB u. Action Automotiue, Lnc.,469 U.S. 490,
bargain with that unit was an unfair labor practice is 494 (7985). To that end, the Board has historically
reported at 361 NLRB No. 163, 2074 WL 7723306. used a multi-factor test that looks to whether em-
Pet.App. 135a. The opinion of the Fifth Circuit is re- ployees:
ported at 824 F.3d 557, Pet.App. 1a, and its order are organized into a separate department; have
denying rehearing en banc is reported at 844 F.3d distinct skills and training; have distinct job
188, Pet.App.747a. functions and perform distinct work, including
JURISDICTION inquiry into the amount and type of job overlap
The judgment of the Fifth Circuit was entered on between classifications; are functionally inte-
June 2, 2076. Pet.App. I67a. That court denied re- grated with the Employer's other employees;
hearing en banc on November 18, 2076. Pet.App. have frequent contact with other employees; in-
I47a. This Court has jurisdiction under 28 U.S.C. terchange with other employees; have distinct
s 1254(1). terms and conditions of employment; and are
separately supervised.
The following provisions are reproduced in Appen-
United Operations, Inc., 338 N.L.R.B. I23, I23
dix G (Pet.App. 168a): 29 U.S.C. $ 157; 29 U.S.C.
$ 159; and 5 U.S.C. S 557. Significantly, under this analysis, the Board "never
addresses, solely and in isolation, the question
whether the employees in the unit sought have inter-
A. Legal Background ests in common with one another." Newton-Wellesley
1. Congress tasked the NLRB with identifying Hosp.,250 N.L.R.B. 409, 4II-72 (1980). Rather, the
"appropriate" bargaining units. 29 U.S.C. $ i59(b). Board must assess "whether the interests of the
The Board must assess "in each case" whether a group sought are sufficiently distinct from those of
group of employees is "appropriate for the purposes of other employees to warrant the establishment of a
collective bargaining" and wiII "assure to employees separate unit." Id. (emphasis added); see also Amal-
the fullest freedom in exercising the rights guaran- gamated Clothing Worlzers u. N'LRB, 491 F.2d 595,
teed by th[e NLRA]." Id. Those rights include the 598 n.3 (5th Cir. 7974) (stating that the "touchstone
right to bargain collectively through "representatives of appropriate unit determinations is whether the
of their own choosing" and "the right to refrain from" unit's members have a 'recognizable community of
collective bargaining. Id.S 157. interest sufficiently distinct from others"').
"The Board does not exercise this authority aim- Properly applying this community-of-interest test
lessly; in defining bargaining units, its focus is on is an essential element of the Board's gatekeeping
6 7

function. Once the Board deems a unit appropriate' it choice of unit to have a "controlling" effect on its de-
is difficult to challenge. The Board's decisions are termination. 29 U.S.C. $ 159(c)(5).
reviewed to determine whether they are "'arbittaty, 2. Recently, the Board adopted a new two-step
capricious, an abuse of discretion, or lacking in sub- test for unit determinations in cases where an em-
stantial evidentiary support'"' NLRB u' Purnell's ployer challenges the propriety of a union-proposed
Prid.e, Inc.,609 F.2d 1153, 1155 (5th Cir' 1980) unit. Specialty Healthcare,3ST N.L.R.B. 934. At step
tion omitted). Moreover, because "employees may one, the Board assesses whether the requested unit is
seek to organize'a unit' that it is 'appropriate'-not prima facie appropriate. To make that determination,
necessarily the single most appropriate :unt"' Am' the Board first asks whether the employees in the
Hosp. Asi'n u. NLRB,499 U'S' 606, 610 (1991)' the petitioned-for unit are "readily identifiable as a
.orrt, of appeals have generally required employers group." Id. at 945.If so, the Board proceeds to "apply
to show the Board's unit determination "'is clearly [the] traditional community of interest factors" (de-
not appropriate,, Purnell's Pride,609 F'2d at 1155- scribed above) to determine whether the employees
56 (citation omitted). "share a community of interest." Id. at 947-43. Pro-
Nevertheless, the Board's "powers [with] respect vided these preliminary inquiries are satisfied, the
limits'" Al- Board wilL "find the petitioned-for unit to be an ap-
[to] unit determinations are not without
iird Ch"*. & Atkati Workers, Local Unon No' I u' propriate unit." Id. at 945. At that point, if an object-
Pittsburgh Ptate Glass Co', 404 U'S' 157, 171 (1971)' ing employer contends that the unit "is nevertheless
If the Bard.'s "decision 'oversteps the law,' it must be inappropriate because it does not contain additional
reversed." Id'. Among other things, "[w]hen the Board employees:' id. at 944, the Board proceeds to step
. . exercises the discretion given to it by congress," two. There, "the burden is on the [employer] to
itmustad.heretobasicprincip.esofadministrative demonstrate that the excluded employees share an
law. NL-R B u. Metro. Life Ins' Co', 3S0 U'S' 438' 443 ouerwhelming community of interest with the includ-
(1965).Inotherwords,..itmust.disclosethebasisof ed employees." Id. at 934 (emphasis added). To make
its,"' "'gYe cLear ind-ication that it has exercised this showing, the employer must prove that the in-
the discretion with which Congress has empowered terests of employees excluded from the proposed unit
1t,"' id. (citation omitted), and "supply a reasoned "overlap almost completely" with the interests of the
analysis for [any] change" from prior precedent '' Mo- employees the union has petitioned to represent. Id-
tor Vehicte Mfrs- Ass'n of U'S', Inc' u' State Farm at 944.
Mut.Auto.Ins.Co.,463U.S'29,42(1983);seealsoS B. Factual Background
U.S.C. S 557(c) (requiring agencies to provide "the This case involves the efforts of Local L445, United
reasons or basis" for their d.ecisions). congress has Food and Commercial Workers lJnion (the "IJnion"),
also forbidd.en the Board from a.Lowing a union's to unionize a single department----cosmetics and fra-
I 9

grances-at a single Macy's store in Saugus, Massa- gued that such an election would be inappropriate. Id.
chusetts. That store is divided into eleven sales de- The NLRB's Regional Director agreed, directing in-
partments across two floors, with each department stead that the employees be allowed to vote on
directly adjacent to the next. Pet.App. 29a. The store whether to create a single-store unit consisting of all
employs 120 selling employees and 30 non-selling employees at the Saugus store. Id. The Union lost
employees; 47 of those sales employees work in cos- that eLection. Id.
metics and fragrances. Id. at 28a. 2. Undeterred, the Union filed a second petition.
The interests of cosmetics-and-fragrances sales This time, it sought a unit ultimately limited to "all
employees are virtually indistinguishable from those full-time, part-time, and on-call employees employed
of sales associates in aII other departments. All sell- in the Saugus store's cosmetics and fragrances de-
ing employees function as part of an integrated store partment, including counter managers, beauty advi-
designed to provide customers with a single location sors, and all selling employees in cosmetics, women's
at which to purchase an array of products from fragrances, and men's fragrances." Id. at 28a. Macy's
knowledgeable salespeople. All are subject to the objected, contending that the smallest appropriate
same employee handbook, receive the same benefits, unit would be a storewide unit of all selling employ-
participate in the same dispute resolution program, ees. Id. at 44a-45a. The Regional Director sided with
and are evaluated under the same criteria. Id. at 40a. the Union. Id. at 42a.
All staff the same shifts, use the same entrances, Applying the Specalty Healthcare standard, the
share the same breakrooms, attend the same daily Board affirmed in a 3-1 decision. Id. at 25a-26a,95a.
meetings, and punch in and out using the same time- At step one, the majority assessed "whether [the]
card system. Id. No prior experience is needed for any employees in [the] proposed unit share[d] a communi-
position in the store; Macy's trains all employees in ty of interest." Id. at 49a. In doing so, it focused on
customer service and selling techniques, and coaches similarities among employees within the cosmetics-
them to encourage customers to purchase items from and-fragrances department, id. at 48a-52a; it did not
different departments. See d. at 40a-4la. consider excluded employees until it moved on to step
C. The Proceedings Below two, id. at 52a-67a. There, the Board stressed that
1. Despite the commonalities among all sales cosmetics-and-fragrances sales employees operate in
employees, the Union sought a unit limited to cos- a separate department, under separate supervision,
metics-and-fragrances sales employees. Id- at 28a, and in distinct areas of the store. Id. at 53a-54a. It
41a. But that was not its original goal. Initially, the also relied on what it perceived to be limited interac-
Union filed a petition for an election to determine tion or interchange among sales employees across
whether all employees at the Saugus store should departments. Id. at 55a-57a.
join an existing five-store unit. Id. at 42a. Macy's ar-
10 11

Member Miscimarra dissented. He argued that the In an opinion by Judge Dennis, a panel of the Fifth
Board "disregard[ed] wide-rangng similarities thal Circuit denied the petition for review and upheld the
exist among [all] sales employees." Id. at 96a (Mem- Board's unit determination. Reciting the traditional
ber Miscimarra, dissenting). He argued that a cos- community-of-interest factors, the panel concluded
metics-and-fragrances unit \Mas "irreconcilable with that because the Board had likewise pointed to those
the structure of the work setting" and "would give considerations, its step-one analysis did "not look on-
rise to unstable bargaining relationships." /d. And he ly at the commonalities within the petitioned-for
explained that the "majority's application of Specilty unit." Id. at I9a-2Oa. As for Macy's claim that the
Healthcare" illustrated that the test "affords too Board failed to articulate a reasoned basis for its de-
much deference to the petitioned for unit in deroga- cision, the panel asserted (without analysis) that the
tion of the mandatory role that Congress requires the Board "identified some factors that could weigh
Board to play 'in each case,"' and in violation of the against the petitioned-for unit and explained-with
command that the extent of union organization citation to Board precedent-why these factors did
should not be "'controlling."' Id. at 96a-97a, 130a (ci- not render the petitioned-for unit inappropriate." Id.
tation omitted). atI2a-I}a.
The cosmetics-and-fragrances sales employees vot- The paneL also endorsed t},:'e Specialty Healthcare
ed 23-18 to unionize. Record on Appeal 472 (TaIIey of standard, finding it consistent with the NLRA and
Ballots). Consistent with the regular procedure for Board precedent. "'Where the Board 'rigorously
challenging the appropriateness of a bargaining unit, weighs the traditional community-of-interest factors"'
e.9., NLRB u.Ky.Riuer Cmty. Care, lnc.,532 U.S. 706, at step one, application of the "'overwhelming com-
709 (2001), Macy's refused to bargain with the Union. munity of interest' [test at step two] does not conflict
The Board then held that Macy's had thereby en- with" 29 U.S.C. S 159(c)(5)'s prohibition on "'ac-
gaged in an unfair labor practice. Pet.App. 135a. cord[ing] controlling weight to the extent of union
3. Macy's filed a petition for review in the Fifth organization"' or prior precedent. Pet.App. 19a (cita-
Circuit, contending that the Board erroneously ana- tion omitted). "That," according to the panel, "is pre-
Iyzed the petitioned-for unit in isolation and failed to cisely what the Board did in the instant case." Id.
explain why the purported distinctions discussed 4. Macy's filed a petition for rehearing en banc,
above (separate department, separate supervision, which the court denied by a 9-6 vote. Id. at I47a-48a.
separate workspace, and limited interaction) out- Judge JoIIy dissented, joined by Judges Jones, Smith,
weighed the similarities among all sales employees. Clement, Owen, and Elrod. Id. at I48a (Jolly, J., dis-
Id. at l2a-13a, 19a. Among other things, Macy's also senting). According to the dissent, this case "presents
maintained that t}re Specialty Healthcare standard another example of the current National Labor Rela-
itself violated the NLRA and was inconsistent with tions Board's determination to disregard established
prior Board precedent. Id. at I7a. principles of labor law." Id.
12 13

As an initial matter, the dissent maintained that weight to each of the competing factors it considers'
"the NLRB articulated and' applied the wrong stand- in order 'to permit proper judicial review."' Id. at
ard" "und et Specialty Heatthco're's frst prong'" Id' at I62a (citation omitted). Therefore, "the NLRB com-
159a. The "NiRB itself has more than a
perfunctory mitted a'f.atal' error by not weighing the community
of interest factors and explaining why the differences
obligation when analyzing the community of interest
between the cosmetics and fragrances employees and
factors [at step one]: the NLRB must compare and
contrast the employes in the group with each
other other selling employees outweighed the similarities."
and, with employees outsid'e of the group'" Id' 7t 1?^5"' Id. at 163a. Despite these failings by the Board, "[t]he
why purported differ- panel summarily dismissed Macy's argument in three
It must als "explain [any]
Id. at 764a.
ence[s] ha[ve] coniextual substance" or are
otherwise sentences."
..meaningful."Id.atlSSa...Ifitdoesnotcompareem- The dissent explained that the consequence of this
ployees in tft" petitioned' for group with excluded
em- toothless community-of-interest analysis was a deci-
ito""t in the iirst step or if it onlv identifies sion that lacks reasons "sufficiently articulated to
ifi"."n""r' between these employees' the NLRB permit proper judicial revie\M," id. at 1-67a-62a, 765a,
ucts a d.eficient community-of-interest analysis."' and a test that violates 29 U.S.C. $ 159(c)(5), Pet.App.
Id. aL I57a. 161a. Indeed, the dissent described this case as "a
Here,the..NLRBd.iscussedsimilaritiesbetween picture perfect example of the NLRB violating the
but it NLRA by approving a bargaining unit defined by the
empl,oyees within the petitioned-for group' -did
limited success of a union's organizational efforts in
,rof di.rrrs similarities between the included employ-
explain the larger and appropriate unit." Id. at 159a-60a. The
ees and the excluded employees," much less
*how Id' at 'IJnion failed in two efforts to organize larger bar-
[any] distinction[s] w[ere] meaningful'" the gaining units at this store." Id. at 150a. "[It] was only
I57a-59a. Because the panet did not "require
successful on its third try: this time with a micro-unit
NLRB actually to engage [in] th[is] crucial [analysis]"'
of cosmetics and fragrances employees that evidently
the dissent concluded that it "failed to properly
and to apply the that guide step one
of the reflected" the "apex of the lJnion's organzational
Specialty Healthcare analysis '" Id' at 159a' etrength." Id. "The NLRB rubber-stamped fthis] prof-
fered unit by engaging in [the] callow community of
Moreover, the NLRB "inad'equately explained the interest analysis [described above]," and then
reasons for its d'ecision'" Id" at 161a' When conduct' Torc[ing] Macy's to satisfy an overwhelming commu-
ing the community-of-interest analysis "the NLRB nity of interest standard [at step two]." Id. at 160a.
must 'do more than simply ta1ly the factors on either tfhus, the NLRB gave excessive deference to the
side of a proposition."' Id" at l6ta-62a (citation
tion of the requested unit," "'effectively ac-
ted). "Because '[t]he crucial consid'eration is the rd[ing] controlling weight to the extent of union
weight or signifi'cance ' ' ' of factors relevant to a
"' Id. at,160a-61a (citation omitted).
ticutar case,' the NLRB 'must assign a relative
I4 15

5. The Fifth Circuit issued its mandate immedi- the NLRB a pass" in materially identical circum-
ately upon the denial of rehearing en banc' Macy's stances. Pet.App. l52a (JoIIy, J., dissenting). These
thereafter asked the court to recaLL and stay its man' fundamentally different results stem from fundamen-
date pending certiorari, but that motion \/as denied. tally different understandings of the analysis re-
Id. at 146a. quired of the Board under t}i'e Specialty Healthcare
This Court should grant certiorari for three rea- 1. Days after the Fifth Circuit denied Macy's pe-
sons. First, the circuits have divided on the proper tition for rehearing en banc, the Second Circuit is-
application of the Board's unit determination stand- sued a unanimous opinion in a case raising virtually
ard. The Second Circuit's call for a robust weighing of identicaL legal issues (presented, even, by the same
the community-of-interest factors at step one of the lawyers). See Constelltion,842 F.3d 784. Llke Ma-
Speciatty Healthcare framework stark-y conflicts cy's, Constellaton involved an effort to unionize a
with the Fifth Circuit's wil.ingness to rubber-stamp limited group of employees within a larger whole-a
the Board,'s determination. Second, the decision be- subgroup of employees within a Constellation win-
Iow is rwrong. It approved the Board's unit determina- ery's cellar operations department. See id. at 788.
tion even though the Board failed to articulate a rea- Ltke Macy's, the interests of employees within the
soned. basis for its decision, allowed the lJnion's petitioned-for unit overlapped almost completely with
choice of unit to have controlling weight, and depart- the interests of employees outside the unit. Among
ed from prior Board precedent without an explana' other things, they all had "similar Job functions and
lion. Third, this issue is important because the posi- duties,"' "'identical skills and training requirements,"'
tion espoused by the Fifth Circuit creates enormous and interchangeable terms and conditions of em-
practical problems for employers and frustrates the ployment. See id. at 794. And as n Macy's, the NLRB
policies under.ying the NLRA. created a separate bargaining unit without explain-
ing the significance of the factual distinctions on
which it relied-e.g., separate supervisors, separate
work areas, and limited interaction among employ-
Unlike Macy's, however, the Second Circuit grnt-
Certiorari should be granted because the circuits edthe employer's petition for review. See id. at 787.
are divid.ed about the approach the Board should use In doing so, the court held that step one of the Spe-
to make unit determinations. The Second Circuit has aialty Healthcare framework has teeth: at step one,
rejected, the Board's unexplained recognition of a
the Board "must analyze . . . the facts presented to:
subset of an employer's integrated work force as a identify shared interests among members of the
bargaining unit. By contrast, the Fifth Circuit "gave d-for unit, and (b) explain why excluded em-
16 T7

ployees have meaningfully distinct interests in the 'he never explained the weight or relevance of those
context of collective bargaining that outweigh simi- findings" or why they "should have outweighed other
larities with unit members." Id. at 794. In other frndings of similarities." Id. at 794. "To the extent
words, the Second Circuit concluded that "fm]erely that the RD did provide such exp.anations, el did so
recording similarities or differences between employ- only at step two, i.e., only to rebut a heightened
ees does not substitute for an exp.anation of how and showing that the excluded emp.oyees share an 'over-
why these collective-bargaining interests are relevant whelming community of interest' with the presump-
and support the conclusion." Id. at 794-95. "Explain- tively appropriate petitioned-for unit." Id. That "mis-
tng why the excluded employees have distinct inter- application of Specialty Healthcare" required the
ests in the context of collectiue bargaining is neces- court to "deny the Board's petition for enforcement."
sary to avoid arbitrary lines of demarcation and to Id.
avoid making step one of the Specialty Healthcare 2. In support of its conclusion, the Second Circuit
framework a mere rubber stamp." Id. at 795 (empha- also noted that its "sister circuits have accepted the
ses added). Specialty Healthcare framework based on the under-
Applying this standard, the Second Circuit held standing" that step one is more than "a mere rubber
that the Regional Director ("RD") "did not make the Btamp" of a union-proposed unit. Id. at 794-95.
step-one determination required by Specialty Specifically, circuit courts have emphasized that
Hea\thcare." Id. at 793.r "Although he appropriately the community-of-interest analysis at step one of
recited the community of interest standard, and de- Specialty Healthcare requires both an explanation of
clared that 'employees in the petitioned-for unit the interests shared by employees within the peti-
share distinct characteristics,'the RD did not explain tioned-for unit and a discussion of why those inter-
why those employees had interests 'suffrciently dis- osts are distinct from those of excluded employees.
tinct from those of other employees to warrant the Nestle Dreyer's Ice Cream Co. u. NLRB,821 F.3d
establishment of a separate unit."' Id. "ReciLing the 499-501 (4th Cir. 2O16); see also NLRB u. FedUx
Iegal framework does not substitute for analysis," , lnc.,832 F.3d 432, 442-43, 446 (3d Cir. 2016)
and while the "RD made a number of factual frndings that the test requires the NLRB to "Iookfl
that tend to show that [employees in the petitioned- only at whether the employees in the petitioned-
for unit] had interests distinct from other employees," unit [a]re similar and comprise[] a readily identi-
goup, but also at whether th[o]se employees
l Where, as here, the Board denied an employer's request for
sufficiently distinct from other employees");
review, the courts of appeals review the decision of the Regional
Freight, Inc. u. NLRB,839 F.3d 636, 637 (7th
Director. See Rochelle Waste Disposa| LLC u. N.L.R.B., 673
F.3d 587, 590 n.1 (7th Cir. 2012); see also 29 C.F.R. $ 102.67(9) . 2016) (stating that the "focus of [the] analysis
("Denial of a request for review shail constitute an affrrmance of be on the similarity or dissimilarity in work-
the regional director's action . . . ."). conditions across different groups of workers
18 19

of the termination in Macy's: as the six dissenters observed,

rather than on the similarity or d'issimilarity and
cond'itions of just one of the groups" the NLRB applied "an incorrect standard for analyz-
that the term "'community of interest"' is
"unhelpful ing the first prong of the Specalty Healthcare
'distinct"'); framework" by failing "to compare employees in the
except when modified Uy ttre ad'jective
u' NLRB,816 F'3d 515' 523 (8th petitioned-for group with excluded employees."
-Cir. Freight, Inc.
i"h* look at Pet.App. 153a, L57a (Jolly, J., dissenting). While pay-
2Of6) (shting that "the Board does not
the ing lip-service to the Board's obligation to avoid con-
the proposed unii in isolatiort'' when applying
"communitY of interest test")'
sidering a union's choice of unit in isolation, id. at
the 20a-2Ia (panel opinion), the panel did nothing to ac-
For example, while ultimately finding -that count for the reality-plain "to any reasonable read-
Board had apptied the correct approach
in the specif-
rejected s1"- the Board's actual analysis ignored this
ic case before it, the Fourth circuit explicitly command. Id. at 159a (Jolly, J., dissenting). In fact,
the suggestion that the Board' should consider
from "the NLRB barely noticed how the employees in the
"whethJr employees are approprlately exclud'ed petitioned-for group differed from excluded employ-
the petitiott"-f" unit ' ' ' only in step two'
-over- ees and made no effort to exp.ain how [any] admit-
whelming-community-of-interest analysis'" take
tedly questionable difference[s] it identified w[ere]
s21 F.3d at 500. Rther, that analysis must not, in fact, 'meager."' Id. at L57a.Indeed, it was only
singl the traditional communitY-
afber "advanc[ing] to step two" that the Board even
Id. To do otherwise would "con-
"acknowledged Macy's contention that the cosmetics
change" in Board PoIicY and af-
and fragrances employees' interests did not meaning-
ight to the union's choice of unit
fully differ from those of other sales employees." Id.
because "it would' t"" that the Board
no l'onger de-
arbit-rarily at 158a. And in any event, at no point did the Board
termines for itself whether employees are uassign a weight to each community of interest factor
"[A]t the
excluded' from the petitioned'-for unit'" 'Id' and weigh the factors," explaining "*hy the differ-
very least," step one require lhe Board
to "ensure
of 'mea- ences between the cosmetics and fragrances employ-
that employees re not excluded on the basis ees and other selling employees outweighed the simi-
ger differe r:rces -"' Id' larities." Id. at I64a.
3. The Fifth Circuit's d'ecision conflicts with the + *

Second. Circuit's reversal of the

Board's action on ma'
The Fifth Circuit's approach to unit determinations
i"ri"ffy id'entical facts, and' contravenes the standard
cannot be reconciled with those of other circuits. That
articulated by the Third'' Fourth' Seventh'
split of authority warrants this Court's review.
Eighth Circuits.
In short, the same error that the Second
condemned' in Cons tellation infects
the NLRB's de'
20 2t

il. THE DECISION BELOW IS WRONG sires incLusion." See NLRB u. Lundy Paclzing Co., 68
F.3d 1577, 1583 (ath Cir. 1995).
This Court should also grant certiorari because the
decision below is wrong for several reasons. The pan- For that reason, courts have required "the Board
el failed to require the Board to provide a reasoned [to] do more than simply tally the [community-of-
explanation for its unit determination; it contravened interest] factors on either side of a proposition" when
Congress' command that the extent of union organi- ruling on the propriety of a union-proposed unit.
zaton not be given controlling weight; and it allowed Purnell's Pride, 609 F.2d at 1156, 1160. The Board
the Board to d.epart from its own precedent without must "assign a rel,ative weight to each of the compet-
offering any justification. ing factors it considers" and "sufficiently justify" arty
conclusion that the "factors suggesting community of
1. Arr agency exercising delegated authority interest preponderates over the opposing criteria." Id.
"must 'disclose the basis of its order' and 'give clear
indication that it has exercised the discretion with Indeed, a "unit determination will be upheld only if
which Congress has empowered lt."' Metro. Life Ins', the Board has indicated clearly how the facts of the
case, analyzed n light of the policies underlying the
380 U.S. at, 442-43 (citation omitted); see also 5
U.S.C. 5 557(c). Such explanations are necessary to community of interest test, support its appraisal of
ensure meaningfut judicial review, particularly the significance of each factor." Id. at IL56-57; see
where "an agency is applying a multi-factor test also Cont'l Web, 742 F.zd at IO92 (stating that the
Board cannot simply "recite the differences in work-
through case-by-case adjudication," LeMoyne-Owen
CoII. u. NLRB,357 F.3d 55, 61 (D.C' Ctt. 2O04) (Rob' ing conditions," "and then," without explanation,
erts, J.). "tack on a conclusion that therefore the etitioned-
for group of employees] have a sufficient community
"This general principle of administrative law is ful- of interest to be a separate unit"); supra pp. 12-13,
ly applicable to unit determinations." Cont'l Web l5-L7.
Press, Inc. u. NLRB, 742 F.2d 1087, 1093 (7th Cir.
1934). Indeed, multi-factor tests such as the commu'
Here, the Board failed to provide this essential
nity-of-interest analysis can "lead to predictability analysis. While the Board ultimately identified cer-
and intelligibility only to the extent the Board ex- tin factual distinctions between cosmetics-and-
plains, in applying the test to varied fact situations, fragrances sales employees and. employees in other
which factors are signifrcant and which less so, and ts, it
failed to explain why those distinc-
have legal significance in the context of collec-
why." LeMoyne-Owen,357 F-3d at 61. Otherwise, "the
'totality of the circumstances' can become simply a bargaining. For example, the "distinct areafl" in
cosmetics-and-fragrance sales employees work
cloak for agency whim," id-, allowing the Board to
recite "differences when the union desires exclusion a patch of fLoorspace immediately adjacent to sev-
of employees" and "similarities when the union de' other departments-not a "separate" buiLding, as
the case cited by the Board. Compare Pet.App. 54a
22 23

(citing DTG Operations, Lnc.,3357 NLRB 2122,2126 es of collective bargaining," 29 U.S.C. $ 159@), the
(2011)), with Purnell's Pride, 609 F.2d at 1160 (criti- Board incanted them repeatedly as though their
cizing the Board for failing to explain "why the sepa- "weight or significance" were self-evident. Purnell's
rate location of the processing plant has such signifi- Pride,609 F.2d at 1156. The result was a Board deci-
cance when all of the facilities are in the same gen- sion that reads like "'a bad law school exam "'
eral area"). Likewise, though cosmetics-and- Pet.App. L52a (Jolly, J., dissenting), and that tr.t ,
fragrances employees have their own supervisor, reasoning "'sufficiently articulated to permit proper
Pet.App. 54a, t},e Board has "long held that a differ- judicial review."' -Id. (quoting Purnell's Pride, 609
ence in supervision does not necessarily mandate ex- F.2d at IL62). This failure, in and of itself, warrants
cluding different.y supervised employees," Hotel reversal. See Metro. Life,380 U.S. at 442-43.
Serus. Grp., Inc., 328 N.L.R.B. 116, tI7 (1999). The 2. The manner in which the Fifth Circuit applied
Board offered no explanation for why that distinction step one of the Specalty Healthcare analysis also vio-
was relevant here, in the face of uniform benefits, job lated $ 159(cX5). As noted above, Congress tasked the
responsibilities, and hiring and performance stand- Board with making unit determinations "in each
ards. See Purruell's Pride,609 F.2d at 1160 (question- case," 29 U.S.C. S 159@), without allowing "the ex-
ing "why the degree of departmental supervision tent to which the employees have organized" to be
outweighs central determination of labor policies and 'tontrolling," id. $ 159(c)(5). The Board may consider
plant-wide hire, dismissal, and compensation"). Simi- the extent of organizaton, but "this evidence should
Iarly, the Board offered no explanation for why the have little weight," H.R. Rep. No. 80-245, at 37 (L947),
transfer of nine emp.oyees into and out of the cosmet- reprinted in 1 NLRB, Legislative History of the Labor
ics-and-fragrances department-nearly a quarter of Management Relations Act 292,328 (1948).
its employees-falls short of showing significant in-
terchange among all sales employees. Compare Congress viewed $ 159(c)(5) as essential to "assure
Pet.App. 56a, with Purnell's Pride,609 F.2d at 1160 full freedom to workers to choose, or to refuse, to bar-
("[T]he decision does not articulate why, in the con- gain collectively, as they wish." Id. Alfording control-
text of the particuLar business, the transfer of twenty ling weight to the union's choice of unit undermines
employees from one department to another is so in- that freedom, because the union's overriding consid-
substantial as to teII in favor of the unit."). And final- eration is selecting a unit in which it can win a repre-
ly, a departmental label may carry some weight if it sentation election. Such deference to the union's
reflects unique skills or qualifi.cations-but it is un- hand-picked unit undermines both the right of dis-
disputed that Macy's has no such requirements for senting employees within that unit to refrain from
empJ.oyees in any department. Pet.App. 4Oa,53a-54a.
organizing, and the right of excluded employees to
engage in collective bargaining. See 29 U.S.C. S 157.
In short, rather than explaining \Mhy or how these
purported factual distinctions pertain to "the purpos-
24 25

The application of Specialty Healthcre endorsed cy's to satisfy an overwhelming community of interest
by the Fifth Circuit ensures that a union's choice of standard [at step two]" after a "callow community of
unit will have controlling weight. Rather than as- interest analysis" at step one, "'effectively accords
sessing the workforce as a whole, the Board looked controlling weight to the extent of union organiza-
first to the employees of the proposed unit in isolation, tion"').
concluding that they shared common interests. As noted by the dissenting judges, this case is "a
Pet.App. 48a-52a. This, however, amounts to little picture perfect example" of how a misappLication of
more than a "rubber-stamp[,]" Pet.App. I57a (Jolly, step one undermines an employee's right to "refrain"
J., dissenting), because virtually any gtotrp of em' from collective bargaining. Pet.App. 159a-60a (JoIIy,
ployees-when viewed in isolation-has "employment J., dissenting). 'After the Union was stymied from
conditions or interests 'in common,"' Newton- organizing a storewide unit to join a multi-store unit
Wellesley Hosp., 250 N.L.R.B. at 4lL-I2.2 For this and lost an election for a stand-alone storewide unit,
reason, courts upholding the Specialty Healthcare the Union cherry-picked a unit of only cosmetics-and-
standard have done so on the understanding that fragrances employees-the group apparently most
step one requires the Board to "look[] not only at favorable to the lJnion's organzation efforts." Id. at
whether the employees in the petitioned-for unit 160a. That hand-picked unit voted 23-L8 for repre-
were similar and comprised a readily identifiable sentation. Record on Appeal 472 (Talley of Ballots).
group, but also at whether these employees were suf' For the 18 employees who voted against the proposed
frciently distinct from other employees." FedEx, 832 unit (and who likely also voted against a storewide
F.3d at 446; supr pp. 17-18. unit), the right to refrain from coLlective bargaining
To be sure, after applying this de facto presump- was rendered illusory when the Board allowed the
tion in favor of the proposed unit, the Board consid' Union another bite at the apple.
ered whether Macy's had shown that the interests of 3. The panel also improperly allowed the Board
excluded employees "overlap aLmost completely'' with to depart from its own precedent without explanation.
those of the petitioned-for unit. 357 N.L.R.B. at 943' lVhile "[a]gencies re free to change their existing
45. But that is too little too Late. At that point, the nlicies," when they do so, they must "provide a rea-
d.eck has already been impermissibly stacked in favor eoned explanation for the change.." Encino Motorcars,
of the union-proposed unit. See Pet.App. 160a-61a LLC u. Nauarro, 136 S. Ct. 2rr7, 2125 (2016); Motor
(Jolly, J., dissenting) (explaining that "forc[ing] Ma- Vehcle Mfrs. Ass'n, 463 U.S. at 42 (same). At the
very least, "Lhe agency must . . . 'display avareness
that it is changing position' and 'show that there are
2 For example, half the butchers at a grocery store share
third of the shoe salespeople in Ma- good reasons for the new policy."' Encno, 136 S. Ct.
common interests, as do a
cy's shoe department. Crucially, however, those interests are at 2L25 -26 (citation omitted).
also shared by the remainder of their colleagues.
26 27

Here, however, the Board did not even 1. In the retail industry alone, the impact of the
acknowledge that itwas changing course, Iet alone panel's decision is significant. As noted above, the
explain the change. Though purporting to apply the factual distinctions found sufficient to create a cos-
"traditional" community-of-interest test at step one of metics-and-fragrances unit describe euery depart-
t}ne Specialty Healthcare framework, Pet.App. 48a' ment of euery department store in the country. In-
51a, the analysis conducted by the Board omitted a deed, "[o]ne is led to assume . . . that three bowtie
key element of that standard. Namely, and as noted salesm[e]n would be an appropriate bargaining unit
above, it did, not "proceedfl to [the] further determi' if they sold bowties at a separate counter from other
nation [ofl whether the interests of the group sought merchandise." Pet.App. 151a (Jolly, J., dissenting). In
[we]re sufficiently distinct from those of other em' 2016, Macy's had over 800 stores nationwide, and-
ployees to warrant the establishment of a separate assuming approximately ten departments per store-
unit." Newton-Wellesley, 250 N.L.R.B. at 4lI; supra could thus have been compelled to bargain with up-
pp. 77-20. Consequently, the Board ran afoul of its wards of 8,000 units across the country if each de-
own prohibition on addressing "solely and in isolation, partment organized separately. Arrd the Fifth Cir-
the question whether the employees in the unit cuit's endorsement of the Board's flawed approach
sought have interests in common with one another." affects more than just retailers. For example, citing
Neutton-Wellesley,250 N.L-R.8. at 4tL; see also Nes- Mcy's (and applying a strikingly similar analysis at
tle, 82I F.3d at 500 (explaining that such an applica- step one), a Regional Director recently approved nine
tion of the community-of-interest test wouLd "consti- separate bargaining units for teaching fellows in nine
tute a significant change" in Board policy); Fed&x academic departments at Yale University-English,
Freight,832 F.3d at 442-32 (same). East Asian Languages and Literature, History, His-
ilI. THE QUESTION PRESENTED IS IM- tory of Art, Political Science, Sociology, Physics, Ge-
PORTANT ology and Geophysics, and Mathematics. See Decision
& Direction of Election at 1, 30-33, YaIe Uniu., Nos.
Certiorari should also be granted because the ques-
01-RC-1830I4 et seq. (N.L.R.B. Region I, Jan. 25,
tion presented is important to employers 7). Indeed, workforces can always be divided
and employees alike. As the dissent in Specalty on factual distinctions of one form or another
Healthcare noted, the proper application of the com- the Board is required to explain why such dis-
munity-of-interest analysis "is not an abstract debate have legal significance in the context of col-
over legal hokum." 357 N.L.R.B. at 952 (Member bargaining-and why they outweigh interests
Hayes, dissenting). The Board makes countless unit to all employees-the end result will be an
determinations annually, and the question of wheth- fragmentation of the work force," "a
er step one calls for a rubber stamp or a careful anal- tion that cannot lend itself to . . . labor relations
ysis has real-world implications.
28 29

stability." Specialty Healthcare, 357 N.L.R.B. at 952 as on the employer's shareholders, creditors, suppli-
(Member Hayes, dissenting). ers and customers." Cont'l Web,742 F.2d at 1090
2. The piecemeal unionization of an employer's This problem is particularly acute in the retail con-
workforce is in no one's interest. Subdividing Macy's text, where a "multiplicity of bargaining relationships
Saugus location-or any workplace-into a dozen dif- would . . . be at odds with the Employer's overriding
ferent bargaining units does not advance "the pur- business objective: to attract and retain customers
poses of collective bargaining" or "assure" employees who purchase products throughout the store."
"the rights guaranteed by th[e NLRA]." 29 U.S.C. Pet.App. I34a (Member Miscimarra, dissenting). In-
$159(b); DPI Secuprint, Inc., 362 N.L.R.B. No. 172, deed, a department store is predicated on the ability
2015 WL 5001021, at *L2 (Aug. 20, 2OL5) (Member to provide one-stop shopping for customers to pur-
Johnson, dissenting) ("The trend toward smaller chase a variety of products in different departments.
units--or units comprised of employees not signifi- But if those departments are allowed to unionize
cantly distinguishable from their coworkers except by separately, that business model quickly becomes un-
the extent of organizng----cannot foster labor peace."). workable. Cf. NLRB u. Meyer Label Co.,597 F.2d 18,
In such a situation, employers could be forced to 22 (2d Cir. 1979) (questioning unit determination
address numerous-and potentially competing- that jeopardizes a company's business model). For
collectively bargained obligations at a single location example, a customer swinging by the store after work
(much Less among hundreds of locations nationwide). to pick up a dress may find that she is not able to
See Cont'l Web,742 F.2d at 1090 ('It is costly for an purchase coordinating accessories: while the women's
employer to have to negotiate separately with a clothing department is open until 8PM, the jew-
number of different unions ."). Among other eJry department has bargained to go home at 5PM.
things, the proliferation of bargaining units "can only Moreover, the "cost[s ofl . . . negotiat[ing] separate-
create instability from internal jurisdictional dis' ly with a number of different unions . . . are not born
putes, from the costs and burdens of multiunit bar- by the employer alone." Cont'l Web,742 F.2d at 1090.
gaining and the administration of multiple separate "[B]reaking up a work force into many sma.I units
contracts (including, for example, separate benefit creates a danger that some of them will be so small
plans), from conflicting or irreconcilable demands and powerless that it will be worth no one's while to
from separate units, and from the potential that one otganize them, in which event the members of these
unit wiII disrupt production with unique demands units will be left out of the collective bargaining pro-
that burden all employees." DPI Secuprint, 2015 rWl-, cess." Id. Tli,e same collectively bargained restrictions
5001021, at *I2 (Member Johnson, dissenting). that would make it difficult for an employer to oper-
"[fny one of the unions may be able to shut down ate an integrated department store could also stunt
[an empJ.oyer's facility] (or curtail its operations) by a employees' opportunities for advancement and pro-
strike, thus imposing costs on other workers as well fessional development-for example, by limiting their
30 31

ability to transfer from one unionized department to CONCLUSION

another. See Cont'l Web,742 F.2d at 1090. For these reasons, the petition for a writ of certio-
Finally, a standard that allows for the fragmenta- rari should be granted.
tion of an employer's work force could encourage un- Respectfully submitted,
ion gerrymanders and thereby undermine an em-
ployee's right to "refrain" from collective bargaining Shay Dvoretzky
activities. 29 U.S.C. $ 157; NLRB u. Superior Prot., Counsel of Record
Inc., 40I F.3d 282, 288 n.7 (5th Cir. 2005) (stating David Raimer
that the right to organize and the right to refrain JONES DAY
from organizing are to be guarded "'with equal jeal- 51 Louisiana Avenue, N.W.
ousy"' (citation omitted)); H.R. Rep. No. 80-51O, at 47 Washington, DC 20001
(L947) (Conf. Rep.), reprnted in 1 NLRB, Legislative (2O2) 379-393e
History of the Labor Management Relations Act 505, sdvoretzky@j onesday. com
551 (1948) (stating that "one of the principal purpos-
es of the [Act] is to give empJ.oyees full freedom to Willis J. Goldsmith
choose or not to choose representatives for collective JONES DAY
bargaining"). Rather than being forced to persuade 250 Vesey Street
dissenting employees in a broader unit, a union may New York, NY 10281
simply seek out a targeted group of employees where
it knows it has the upper hand. In practice, this
means that "unions [will] engage in incremental or-
ganizing in the smallest units possible." Specialty
Healthcare, 357 N.L.R.B. at 952 (lVlember Hayes, dis-
FpsnuARv L6,20L6
senting). This effectively disenfranchises dissenting
employees who, though they may be in the majority
in defeating a larger unit, find themselves marginal-
ized within the petitioned-for unit. As noted by Judge
Jolly, this case-where the Union organized the cos-
metics-and-fragrances department only after failing
to unionize t],e entire store-ilLustrates these con-
cerns perfectly. Pet.App. 159a-60a (JoIIy, J., dissent-