Macy's

National Labor Relations Board - Board Decisions

Jul 22, 2014

361 N.L.R.B. 12 (N.L.R.B. 2014)

12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Macy’s, Inc. and Local 1445, United Food and Com-
mercial Workers Union. Case 01–RC–091163
July 22, 2014
DECISION ON REVIEW AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA,
MISCIMARRA, AND SCHIFFER
On November 8, 2012, the Acting Regional Director
for Region 1 issued a Decision and Direction of Election
in which he found that a petitioned-for departmental unit
of cosmetics and fragrances employees, including coun-
ter managers, employed by the Employer at its Saugus,
Massachusetts store, was appropriate. Thereafter, in ac-
cordance with Section 102.67 of the Board’s Rules and
Regulations, the Employer filed a timely request for re-
view. The Employer contends that the smallest appro-
priate unit must include all employees at the Saugus store
or, in the alternative, all selling employees at the store.
The Petitioner filed an opposition. On December 4,
2012, the Board granted the Employer’s request for re-
view. Thereafter, the Employer and Petitioner filed
briefs on review. Several amici curiae were also granted
special permission to file briefs.1
The Board has carefully considered the entire record in
this proceeding, including the briefs on review and ami-
cus briefs.2 For the reasons set forth below, we affirm
the Acting Regional Director’s finding that, under Spe-
cialty Healthcare & Rehabilitation Center of Mobile, 357
NLRB 934 (2011), enfd. sub nom. Kindred Nursing Cen-
ters East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013),
the employees in the petitioned-for unit are a readily
identifiable group who share a community of interest,
and that the Employer has not met its burden of demon-
strating that the other selling and nonselling employees it
seeks to include share an overwhelming community of
interest with the petitioned-for employees so as to require
their inclusion in the unit. Our decision today is based
solely on the facts before us in this case, and we do not
1 The National Retail Federation (NRF) filed an amicus brief. A
joint amicus brief was filed by Retail Industry Leaders Association and
Retail Litigation Center (RILA-RLC). A joint amicus brief was also
filed by the Chamber of Commerce of the United States of America,
Coalition for a Democratic Workplace, American Hotel & Lodging
Association, HR Policy Association, International Council of Shopping
Centers, International Foodservice Distributors Association, Interna-
tional Franchise Association, National Association of Manufacturers,
National Association of Wholesale-Distributors, National Council of
Chain Restaurants, National Federation of Independent Business, and
Society for Human Resource Management (Chamber of Commerce et
al.). Pursuant to Reliant Energy, 339 NLRB 66 (2003), the Petitioner
filed a postbrief letter calling the Board’s attention to recent case au-
thority.
2 Member Johnson is recused from participating in this case, and he
took no part in the consideration or disposition of this case.
reach the question of whether other subsets of selling
employees at this, or any other, retail department store
may also constitute appropriate units.
Facts
The Employer operates a national chain of department
stores, including one in Saugus. Store Manager Danielle
McKay is the highest executive at the Saugus store, and
she oversees 7 sales managers who oversee 11 primary
sales departments:3 juniors, ready-to-wear, women’s
shoes, handbags, furniture (also known as big ticket),
home (also referred to as housewares), men’s clothing,
bridal, fine jewelry, fashion jewelry, and cosmetics and
fragrances.4 Kelly Quince is the sales manager for cos-
metics and fragrances.5 Quince has no regular responsi-
bilities for the other primary sales departments, nor do
the other sales managers have any regular responsibilities
for the cosmetics and fragrances department.6 Of 150
total employees at the store, 120 are selling employees,
and of these, 41 work in cosmetics and fragrances.
The Petitioned-For Unit: Cosmetics and
Fragrances Employees
The Petitioner seeks to represent all full-time, part-
time, and on-call employees employed in the Saugus
store’s cosmetics and fragrances department, including
counter managers, beauty advisors, and all selling em-
ployees in cosmetics, women’s fragrances, and men’s
fragrances. The parties agree that these employees
should be included in the unit.7 Of the 41 employees in
3 These primary sales departments are subdivided into other “de-
partments,” but these sub-departments are not separately supervised.
Instead, employees in these subdepartments report to their primary
sales department’s sales manager. For the purposes of this decision, we
use “department” to refer to the 11 primary sales departments.
4 The ready-to-wear, home/housewares, men’s, big ticket, and cos-
metics and fragrances departments have their own individual sales
manager. A sixth sales manager oversees women’s shoes and hand-
bags, and a seventh sales manager oversees juniors and fine jewelry.
The record does not indicate which, if any, sales managers oversee
fashion jewelry and bridal. In addition to the sales managers, the rec-
ord refers to a selling floor supervisor “whose responsibility is also fine
jewelry,” but there is no additional information about how this position
fits within the store’s management structure.
5 The dissent states that Quince oversees “more than one functional
area” and at several points refers to the petitioned-for employees as a
“combined cosmetics and fragrances group.” We emphasize that the
Employer treats cosmetics and fragrances as a single primary selling
department with its own sales manager.
6 Sales managers may cover for each other due to absences, but the
record does not indicate whether this happens with any frequency.
7 The parties also agreed that the unit should exclude MAC employ-
ees, sprayers, the cosmetics fragrances manager, the store manager and
assistant store managers, department managers, account coordinators,
selling floor supervisor, merchandise team managers, receiving team
manager, visual manager, administrative team manager, human re-
361 NLRB No. 4

MACY’S, INC. 13
the petitioned-for unit, 8 are counter managers, 7 are on-
call employees, and the remaining employees are cos-
metics or fragrances beauty advisors.8
The cosmetics and fragrances department is situated in
two areas. The first, which consists of cosmetics and
women’s fragrances, is located on the first floor. It is
framed on one side by the store entrance, which it faces,
and on the other by escalators that lead up to the second
floor. Surrounding the escalator bank on the second
floor is the second area, which consists of men’s fra-
grances. In addition to the women’s fragrances counter,
the first floor cosmetics area is divided into eight coun-
ters, each of which is dedicated to selling products from
one of the eight primary cosmetics vendors: Shiseido,
Elizabeth Arden, Chanel, Clarins, Lancôme, Clinique,
Estée Lauder, and Origins.9 As shown on the store’s
floor plan, each of these two selling areas is spatially
distinct from—although adjacent to several of—the other
primary sales departments.10
Cosmetics beauty advisors are specifically assigned to
one of the eight cosmetics vendor counters. They typi-
cally sell only that vendor’s products, although from time
to time they may sell other cosmetics vendors’ products
(for example, an Estée Lauder beauty advisor might as-
sist customers at the Clinique counter when the Clinique
beauty advisor is on break). Cosmetics beauty advisors
demonstrate products by giving customers makeovers
and by otherwise applying products to a customer’s skin.
Fragrances beauty advisors are assigned to either the
men’s or women’s fragrances counter, and sell all availa-
ble men’s or women’s products, regardless of the vendor.
The Shiseido, Chanel, Lancôme, Clinique, Estée Lauder,
Origins, women’s fragrances, and men’s fragrances
counters each have a counter manager who, in addition to
selling products, helps organize promotional events,
monitor the counter’s stock, coach beauty advisors on
customer service and selling technique, ensure that their
counter is properly covered by beauty advisors, and
schedule visits by vendor employees (such as sprayers
source manager, operations manager, loss prevention manager, clerical
employees, guards, and supervisors as defined in the Act.
8 The record does not break down how many beauty advisors work
in cosmetics and how many work in fragrances. It appears that there are
more cosmetics beauty advisors, as there are eight total cosmetics coun-
ters and two fragrances counters.
9 There is also a cosmetics counter for MAC in this area, but that
counter is staffed entirely by individuals employed directly by Estée
Lauder.
10 Although the map is not clear, it appears that the first floor cos-
metics and fragrances area is adjacent to the juniors, fine jewelry,
women’s shoes, and ready-to-wear departments. The second floor
men’s fragrances counter is adjacent to men’s clothing.
and makeup artists).11 Counter managers also assist
Quince in evaluating beauty advisors. Although cosmet-
ics and fragrances beauty advisors do not usually work at
each others’ counters, the seven on-call employees may
work at any of the ten counters.
Besides the petitioned-for employees, two types of
vendor representatives—account coordinators and ac-
count executives—are frequently present in the cosmet-
ics and fragrances department. Most of the primary
cosmetics vendors have account coordinators, who are
employed by Macy’s.12 Account coordinators coach
beauty advisors on selling and customer service, provide
in-store training for beauty advisors who work at that
vendor’s counter, and forward product-related training
materials to their beauty advisors. The highest volume
cosmetics vendors also have account executives—
employed directly by the vendors—who visit the Saugus
store to ensure that their beauty advisors have what they
need; they also organize off-site training for beauty advi-
sors who sell that vendor’s products.13 Fragrances ven-
dors also have vendor representatives, but it appears that
they do not visit the store as frequently as the cosmetics
vendor representatives.
Account coordinators and executives are also involved
in hiring cosmetics beauty advisors. Typically, a vendor
representative will interview an applicant along with the
Employer, and the Employer will consult the vendor rep-
resentative to ensure that mutually acceptable applicants
are hired. Vendor representatives are not, however, in-
volved in hiring fragrances beauty advisors or on-call
employees. With respect to the petitioned-for employ-
ees, prior experience in selling cosmetics or fragrances is
desirable, but not required.
The in-store and offsite training provided to beauty
advisors covers selling techniques and product
knowledge. For fragrances beauty advisors, product
knowledge training involves topics such as ingredients,
scents, and notes.14 For cosmetics beauty advisors,
product knowledge training mainly involves products in
their vendor’s line, but they also receive training in in-
11 Sprayers, who are employed directly by fragrances vendors, dis-
pense fragrance samples to customers. Makeup artists, who are em-
ployed directly by cosmetics vendors, train cosmetics beauty advisors
and give customers makeovers at special events.
12 Elizabeth Arden apparently does not have an account coordinator
for the Saugus store.
13 It is not clear in the record exactly which vendors have account
executives, but the record shows that Clinique, Estée Lauder, and
Lancôme do.
14 The Employer’s Brief on Review states that fragrances beauty ad-
visors do not receive offsite training. Store Manager McKay, however,
expressly testified that fragrances beauty advisors may receive onsite or
offsite training from vendor representatives.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14
terselling so that they can assist customers at another
vendor’s counter. Cosmetics beauty advisors are also
trained in skin tones, skin types, skin conditions, and use
of color. Unlike the beauty advisors, on-call employees
receive no training beyond what they learn on the selling
floor.
Beauty advisors are paid an hourly wage, plus a 3 per-
cent commission on products sold from their own coun-
ter. Cosmetics beauty advisors receive a 2-percent com-
mission when they sell cosmetics from other counters.
Counter managers also receive an hourly wage plus a 3-
percent commission, as well as a .5 percent commission
on all sales made at their counter. On-call employees
receive a 2-percent commission regardless of what they
sell. The exact mechanism by which the commission is
paid depends on the vendors and is negotiated between
the store and the vendor. The record does not contain
any details of specific commission arrangements differ-
ent vendors have with the store. Petitioned-for employ-
ees may, on occasion, ring up items from other sales de-
partments, but they receive no commission on these
items.
Cosmetics beauty advisors keep lists of their regular
customers.15 These lists are used to book appointments
to give customers makeovers, to invite them to try new
products, to presell products, and to notify them of spe-
cial promotions or events. Customers may also contact
their cosmetics beauty advisor to ask for product refills
or to schedule a makeover. One cosmetics beauty advi-
sor specified that she calls her regular customers about
five times a year to tell them about new products, to ask
if they need any products replenished, and to offer them
free gifts. Fragrances beauty advisors also keep client
lists, which they use to invite customers to new fragrance
launches. The record does not indicate whether on-call
employees maintain client lists.
Most of the cosmetics vendors provide distinctive uni-
forms for the beauty advisors who staff their counters.
Clinique, Origins, Estée Lauder, Lancôme, Clarins, and
Elizabeth Arden beauty advisors all have their own uni-
forms. The remaining (Shiseido and Chanel) cosmetics
beauty advisors and the fragrances beauty advisors, how-
ever, simply follow the Employer’s “basic black” dress
requirement.
Other Employees
The Employer argues that the only appropriate unit
must include all other employees of the Saugus store, or
15 The two cosmetics beauty advisors who testified estimated that
they had lists of 200 and 400 clients, respectively.
at least all of the selling employees at the Saugus store.16
The record contains scant evidence regarding the 30 non-
selling employees employed at the store: there is a re-
ceiving team (with its own manager) and a merchandis-
ing team (with two managers), who are collectively re-
ferred to as stock employees, and there are also staffing
employees.
The evidence concerning selling employees in other
primary sales departments is also generally less specific
than the evidence concerning the petitioned-for employ-
ees. There is, for example, no indication of how the 80
remaining selling employees are distributed across the 10
primary sales departments. Similarly, there is far less
information on how these other selling departments are
structured. In this regard, the record reveals only that
most (but not all) primary sales departments have their
own sales manager, and that at least some of them are
divided into subdepartments, which do not have supervi-
sion separate from the sales manager. There is no indica-
tion that the other primary sales departments have the
equivalent of counter managers, and the record is unclear
as to whether the other primary sales departments utilize
the equivalent of on-call employees.17
Certain other primary sales departments do, however,
have some specialist sales employees who, like the cos-
metics beauty advisors, specialize in selling a particular
vendor’s products. For instance, specialists sell Guess
products in shoes and men’s clothing, North Bay in
shoes, and Polo in men’s clothing. Levi’s, Lacoste, Buf-
falo, and INC (the Employer’s private brand) also have
specialists who sell their products. Likewise, vendor
representatives operate in certain other sales departments,
monitoring stock and training selling employees on sell-
ing technique and product knowledge. Guess, Polo, Buf-
falo, North Face, Nautica, Lacoste, and Hilfiger all have
vendor representatives operating in sales departments
that sell their products, and Lenox has representatives
who operate in the home/housewares department. Ven-
dors including Polo, North Face, and Levi’s have con-
ducted both in-store and offsite training for those special-
ists who sell their products.18
16 The Petitioner is unwilling to proceed in an election in any unit
other than the petitioned-for unit.
17 The record is clear that the cosmetics and fragrances on-call em-
ployees do not work in other departments. The only other testimony
about the use of on-call employees (or their equivalent) in other de-
partments consists of Human Resources Director Gina DiCarlo’s state-
ment that there are no on-call employees “specifically assigned to those
departments” that sell North Face products (which apparently include
the juniors, men’s clothing, and ready-to-wear departments).
18 Although there are specialist selling employees scattered across
some other primary selling departments, the record does not establish
how many other primary selling departments have specialist sales em-

MACY’S, INC. 15
Aside from specialists, employees in other sales de-
partments receive training through product information
sheets, conversations with management, and offsite ven-
dor training. Selling employees are also trained in rele-
vant product-related matters. For example, employees
who sell shoes are trained on fit, type, fabric, and color,
and employees who sell dresses are trained on silhouette,
fabrics, and fit. Further, other sales departments hold
various seminars during the year that train employees in
their departments in selling technique, product
knowledge, and related topics. For example, juniors
conduct back-to-school and newborn training seminars;
big ticket has biannual training seminars where vendor
representatives instruct employees on product
knowledge, selling technique, clientelling, and selling
protection plans; and fine jewelry conducts at least three
annual seminars on product knowledge, clarity, cut, col-
or, and weight.
In hiring, there are situations in which other sales de-
partments consult with vendor representatives in select-
ing an applicant. Specifically, the Employer consults
Levi’s, Polo, Buffalo, and Guess vendor representatives
when hiring sales specialists in those brands, and these
representatives also interview applicants for specialist
positions. As in cosmetics and fragrances, prior selling
experience in the department’s product is desirable, but
not required.
Not all selling employees are paid on the base-plus-
commission formula used in cosmetics and fragrances,
but selling employees in the fine jewelry, men’s clothing,
men’s shoes, and big ticket departments are paid on that
basis.19 At least some specialists in other departments
also receive a base wage plus commission, but specific
arrangements vary. For instance, the record suggests that
Guess and Buffalo specialists are paid a base wage plus
commission, but Levi’s specialists receive a bonus rather
than a commission, and Polo specialists receive no com-
mission at all. As with the cosmetics beauty advisors,
the precise mechanism by which a commission is paid to
specialist selling employees varies by vendor.
Some selling employees outside of cosmetics and fra-
grances also keep customer lists. Selling employees in
the fine jewelry, men’s clothing, big ticket, and bridal
ployees; further, there is no indication as to how many selling employ-
ees in any of those departments are specialists. Additionally, although
there is evidence that selling employees (specialist and otherwise)
outside of cosmetics and fragrances interact with vendor representa-
tives, the record does not establish that a significant number of these
other selling employees do so, insofar as it does not reveal the number
of other specialist employees or the number of employees who interact
with vendor representatives.
19 Not all of these employees specialize in selling a particular ven-
dor’s products.
departments all maintain such lists,20 which are apparent-
ly used to invite customers to special events, such as a
particular vendor event in the jewelry or bridal depart-
ment.
Shared Community of Interest Factors and
Bargaining History
There is some degree of contact between the cosmetics
and fragrances department and other sales departments.
As noted above, from time to time merchandise from
other sales departments may be rung up in cosmetics and
fragrances. But because various employees earn com-
mission, the Employer does not “like to make a habit” of
merchandise from one department being rung up in an-
other; there is no evidence as to how frequently it oc-
curs.21 Although various witnesses indicated that they
had seen merchandise from other departments occasion-
ally being rung up in cosmetics and fragrances (usually
due to long lines in adjacent departments), two cosmetics
beauty advisors stated that they had never seen cosmetics
or fragrances rung up in a different department.22
There is some incidental contact between cosmetics
and fragrances employees and other selling employees,
given the proximity of the cosmetics and fragrances
counters to other departments,23 as well as daily morning
rallies attended by all employees whose shifts correspond
with the store’s opening. These rallies—which review
the previous day’s sales figures and any in-store events
taking place that day—are no longer than 15 minutes,
and at times individual departments will have their own
meetings in place of the rally. The record indicates that
selling employees are expected to help each other out and
to assist customers, and that this may lead to contact be-
tween the petitioned-for and other selling employees, but
there is no indication of how often this happens or how
extensive these interactions may be. Similarly, the rec-
ord refers to cosmetics and fragrances personnel recruit-
20 The dissent states that these four departments have “already” used
client lists to invite customers to special events. The record does not
suggest that these four departments use these lists to the degree the
cosmetics beauty advisors do (i.e., these other departments apparently
do not use their client lists to book appointments, replenish products, or
presell items). Contrary to the dissent, we do not think that Store Man-
ager McKay’s testimony suggests that there is any imminent plan to use
client lists in the remaining primary sales departments
21 In this regard, McKay testified that nobody receives commission if
a cosmetics item is rung up in the shoe department. The Employer
accordingly prefers to have each department ring up its own products
so that commission is properly allocated.
22 One beauty advisor commented that if customers want to purchase
products, but also want to look in other departments, the beauty advi-
sors will hold the cosmetics products for the customers until they are
ready to check out.
23 As noted above, the cosmetics and fragrances selling areas are ad-
jacent to several other departments.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16
ing customers in other areas of the store (such as wom-
en’s shoes), but the testimony on this count was vague
and limited, so it is not clear how regularly this takes
place, nor is it clear how much actual contact between
petitioned-for and other selling employees results from
these customer recruitment efforts.24
There is little evidence of temporary interchange be-
tween the petitioned-for employees and other selling
employees. Petitioned-for employees are neither asked
nor required to work in other departments, aside from
assisting in periodic inventory.25 Other selling employ-
ees are “not regularly” asked to work in cosmetics and
fragrances, and although one witness stated that other
selling employees might occasionally do so, her subse-
quent testimony limits such interchange to other selling
employees helping out from a “recovery standpoint” or
to assist a customer when a cosmetics or fragrances
counter is temporarily unattended. There are no exam-
ples of (1) other selling employees actually assisting the
cosmetics and fragrances department, (2) cosmetics and
fragrances employees actually assisting other depart-
ments, or (3) a selling employee from one department
picking up shifts in another department. In the last 2
years, there have been eight permanent transfers from
other areas of the store into the cosmetics and fragrances
department,26 and one permanent transfer out of the de-
partment to a supervisory position.
The petitioned-for employees as well as the other sell-
ing employees work shifts during the same time periods,
use the same entrance, have the same clocking system,
and use the same break room. As noted above, there is
no prior experience required for any selling position. All
selling employees who are present at the start of the day
attend the morning rallies. All selling employees enjoy
the same benefits, are subject to the same employee
24 It is not even clear that such activity involves petitioned-for em-
ployees. The relevant testimony begins with a discussion of sprayers—
who are not among the petitioned-for employees—recruiting customers
in other areas of the store, followed by the unelaborated statement that
“cosmetics associates go into the shoe department to recruit.”
25 All employees participate in inventory, which consists of count-
ing, scanning, and organizing products. Cosmetics and fragrances
employees may be assigned to inventory work in other departments, or
may end up conducting inventory in other departments if they finish
their own inventory work early. Cosmetics and fragrances employees
may, and have, requested inventory work in other departments as well.
As inventory work involves no selling, cosmetics and fragrances em-
ployees receive only their base wage when performing such work. The
record does not indicate the frequency of inventory work, which in any
event is clearly incidental to the primary function of both the peti-
tioned-for and other selling employees.
26 Seven of these transfers involved an employee from another sales
department transferring into cosmetics and fragrances; the eighth in-
volved a staffing, i.e., nonselling, employee transferring to the
Lancôme counter.
handbook, and have access to the same in-store dispute
resolution program. All selling employees are evaluated
based on the same criteria (their “sales scorecard,” cus-
tomer service, and teamwork).27 And all selling employ-
ees are coached through My Products Activities, a pro-
gram consisting of exercises designed to improve selling
techniques and product knowledge.
There is no bargaining history at the Saugus store. The
Employer and Petitioner have two collective-bargaining
agreements covering employees at six other stores. One
agreement covers selling, support, and alterations em-
ployees at a store in Boston, but does not cover that
store’s cosmetics and fragrances department. The Peti-
tioner organized the Boston store sometime before 1970,
when it was a Jordan Marsh store, but the record contains
no further evidence as to how that unit came into exist-
ence. The second agreement covers employees at the
Employer’s stores in Braintree, Natick, Peabody, and
Belmont, Massachusetts, as well as one in Warwick,
Rhode Island. That unit apparently has existed for dec-
ades, but was organized under Filene’s, whose parent
company the Employer acquired through a stock acquisi-
tion in 2005, and there is also no indication how this unit
came into existence. This unit appears to include selling
and support employees at the five stores, but does not
cover cosmetics and fragrances employees at any of the
stores,28 with the exception of the Warwick cosmetics
and fragrances employees, who had been historically
excluded and voted to unionize and join the existing five-
store unit in 2005 (when the store was still a Filene’s
location). The Warwick cosmetics and fragrances em-
ployees are now covered by the five-store contract, alt-
hough the contract sets forth a number of provisions ap-
plicable only to the Warwick cosmetics and fragrances
employees.
On March 24, 2011, the Petitioner filed a petition seek-
ing a self-determination election to determine whether
Saugus employees wished to join the existing five-store
unit; the petition covered all full-time and regular part-
time employees at the Saugus store. See Macy’s, Inc.,
Case 01–RC–022530 (2011) (not reported in Board vol-
umes).29 The Employer, however, argued that adding the
27 The precise evaluation forms differ from department to depart-
ment, and each department has its own sales goals (which are factored
into the “sales scorecard”). Within the cosmetics and fragrances de-
partment, cosmetics beauty advisors and counter managers have their
own evaluation forms. The “scorecard” is less heavily weighted for
counter managers (55 percent) than for other employees (70–80 per-
cent).
28 Unlike the other four stores, there apparently are no cosmetics and
fragrances employees at the Belmont store.
29 Although not part of the record in this case, we take administrative
notice of the Decision and Direction of Election in Case 01–RC–

MACY’S, INC. 17
Saugus employees to the existing five-store unit would
be inappropriate. The Regional Director agreed with the
Employer, and instead directed an election to determine
whether the Saugus employees wished to be represented
in a single-store unit. The Petitioner agreed to move
forward with the election, but lost.30
THE ACTING REGIONAL DIRECTOR’S
DECISION
Applying Specialty Healthcare, supra, the Acting Re-
gional Director first found that the employees in the peti-
tioned-for unit are readily identifiable as a group and that
they share a community of interest because the peti-
tioned-for employees work in one of two distinct areas of
the store, they work in one of two job classifications
(beauty advisor and counter manager), and cosmetics
beauty advisors can substitute for one another. Further,
the Acting Regional Director found that the unit was not
a “fractured” unit because it tracks a departmental line
drawn by the Employer. The Acting Regional Director
also found that this departmental line was further reflect-
ed by differences between the petitioned-for and other
selling employees.
The Acting Regional Director then found that although
the petitioned-for employees share some common inter-
ests with other selling employees, the Employer had not
established that they share an overwhelming community
of interest because there are “meaningful differences”
between the petitioned-for employees and other selling
employees. The Acting Regional Director found that the
petitioned-for employees are paid differently, hired dif-
ferently, trained differently, make heavier use of client
lists, constitute their own department, are not functional-
ly integrated with other selling employees, are subject to
a different supervisory structure because they answer to
counter managers, have little contact or interchange with
other selling employees, and for the most part wear dis-
tinctive uniforms. The Acting Regional Director found
that these differences distinguished this case from Wheel-
ing Island Gaming, 355 NLRB 637 (2010), cited by the
Employer. The Acting Regional Director also distin-
guished this case from a line of retail industry cases the
Employer contends are relevant, stating that those cases
predated Specialty Healthcare, applied a different stand-
ard from that in Specialty Healthcare, and that even be-
fore Specialty Healthcare the petitioned-for unit would
have been appropriate as it is a departmental unit. Final-
022530, which fully explains the nature of the unit sought in that case
and the unit the Regional Director found appropriate.
30 The Petitioner’s willingness to proceed to an election in that case
does not suggest that it did not believe that a separate unit of cosmetics
and fragrances employees would also be an appropriate unit.
ly, the Acting Regional Director stated that because any
relevant bargaining history was imprecise and nonbind-
ing, he was not basing his decision on that factor.31
Position of the Parties and Amici
The Employer contends that the petitioned-for em-
ployees do not constitute an appropriate unit. Regarding
Specialty Healthcare, the Employer argues that the peti-
tioned-for employees are not “readily identifiable as a
group” and do not share a community of interest. The
Employer further argues that even if the petitioned-for
employees are readily identifiable as a group and share a
community of interest, they share an overwhelming
community of interest with selling employees in other
sales departments because they are otherwise a “frac-
tured” unit. The Employer acknowledges that there are
differences between the petitioned-for employees and
other selling employees, but the Employer asserts that,
under Wheeling Island Gaming, supra, these differences
are too minor to render the petitioned-for unit appropri-
ate. Aside from Specialty Healthcare, the Employer con-
tends that in the retail industry, a storewide unit is pre-
sumptively appropriate, and that although the Board has
deviated from this standard to allow units of selling em-
ployees, it has never “approved a unit which departs
from the storewide presumption as dramatically as the
unit sought here.” The Employer also suggests that by
deviating from the storewide presumption, the Acting
Regional Director essentially allowed the extent of or-
ganization to control his decision, in violation of Section
9(c)(5) of the National Labor Relations Act. Finally, for
the first time in its brief on review, the Employer argues
that the Board should overrule Specialty Healthcare, or
at least should not apply it to the retail industry, because
applying it here will allow “a proliferation of micro-
units” based solely on the product sold by employees,
which will in turn lead to “competitive” bargaining
among these small units, potentially leading to “chaos
and disruption of business.” The Employer therefore
contends that the only appropriate unit would be a store-
wide unit, or else a unit of all selling employees.
The Petitioner argues that the Acting Regional Direc-
tor’s decision should be affirmed because the parties
have treated cosmetics employees separately from other
selling employees at other unionized stores, because the
31 The Acting Regional Director also found that the facts of this case
are “indistinguishable” from those of Neiman Marcus Group, Inc. d/b/a
Bergdorf Goodman, Case 02–RC–076954 (May 4, 2012), a case that
involved a petitioned-for unit of employees who sold shoes. As the
Board granted review in that case on May 30, 2012, and the case re-
mains pending before the Board, neither the Acting Regional Director’s
discussion of Bergdorf Goodman nor the Employer’s attempts to dis-
tinguish it play any role in our analysis and conclusions in this case.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 18
petitioned-for employees are readily identifiable as a
group and share a community of interest, and because the
petitioned-for employees share no “significant” commu-
nity of interest with employees in other departments.
The Petitioner contends that because the petitioned-for
unit tracks an employer-created departmental line, find-
ing it appropriate would not be out of step with pre-
Specialty Healthcare cases involving retail department
stores. Finally, the Petitioner states that decisions since
Specialty Healthcare “have followed the historic trend of
Board decisions finding less than a wall to wall unit ap-
propriate.”
Amici curiae Chamber of Commerce et al. argue that
the Board should overrule Specialty Healthcare.32 In
particular, they assert that applying Specialty Healthcare
to this case will depart from Board precedent holding
that a storewide unit is presumptively appropriate in the
retail industry, and that applying Specialty Healthcare to
the retail industry will result in proliferation that will in
turn cause administrative burdens, allow “gerrymander-
ing,” negatively impact employee skill development and
customer service, and create employee dissatisfaction
that will lead to work stoppages that could “cripple” re-
tail establishments.
Amicus curiae NRF also joins the Employer in arguing
that Specialty Healthcare should be overruled and that
the Acting Regional Director’s decision is contrary to
retail industry precedent. NRF concedes that the peti-
tioned-for unit is readily identifiable as a group within
the meaning of Specialty Healthcare, but asserts that the
overwhelming community of interest standard, as applied
here, shows that Specialty Healthcare should not be ap-
plied to the retail industry because it contradicts the pre-
sumptive appropriateness of storewide units and will lead
to “destructive factionalization” of the retail work force.
Amici curiae RILA-RLC similarly argue that Specialty
Healthcare should be reversed or limited to the nonacute
healthcare context. RILA-RLC also suggest that the pe-
titioned-for unit is not readily identifiable as a group, and
expressly contend that the petitioned-for employees share
an overwhelming community of interest with other sell-
32 All amici, as well as our dissenting colleague, contend that the
standard articulated in Specialty Healthcare (1) runs counter to Sec.
9(b)’s requirement that the Board determine the appropriate unit “in
each case”; (2) is at odds with Sec. 9(b)’s statement that unit determina-
tions must “assure to employees the fullest freedom in exercising the
rights guaranteed” by the Act because it disregards the right of employ-
ees to refrain from organizing; and (3) is contrary to Sec. 9(c)(5)’s
requirement that “the extent to which the employees have organized
shall not be controlling.” Amici Chamber of Commerce et al. and NRF
also contend that Specialty Healthcare represents an abuse of discretion
because the standard articulated therein should have been adopted
through rulemaking instead of adjudication.
ing employees. Finally, RILA-RLC argue that the Act-
ing Regional Director improperly disregarded retail in-
dustry precedent, and predict that approving units like
the petitioned-for unit will have a harmful effect on the
retail industry by decreasing employee flexibility, in-
creasing tension among employees, and permitting
“harmful gerrymandering.”
Analysis
The Board’s decision in Specialty Healthcare sets
forth the principles that apply in cases like this one, in
which a party contends that the smallest appropriate bar-
gaining unit must include additional employees beyond
those in the petitioned-for unit. As explained in that de-
cision, when a union seeks to represent a unit of employ-
ees, “who are readily identifiable as a group (based on
job classifications, departments, functions, work loca-
tions, skills, or similar factors), and the Board finds that
the employees in the group share a community of interest
after considering the traditional criteria, the Board will
find the petitioned-for unit to be an appropriate unit ….”
357 NLRB 934, supra at 945. If the petitioned-for unit
satisfies that standard, the burden is on the proponent of
a larger unit to demonstrate that the additional employees
it seeks to include share an “overwhelming” community
of interest with the petitioned-for employees, such that
there “is no legitimate basis upon which to exclude cer-
tain employees from” the larger unit because the tradi-
tional community of interest factors “overlap almost
completely.” Id., slip op. at 11–13, fn. 28 (quoting Blue
Man Vegas, LLC v. NLRB, 529 F.3d 417, 422 (D.C. Cir.
2008)). Applying this framework to the particular facts
of this case,33 we find that the petitioned-for unit is an
appropriate unit.
A. Cosmetics and Fragrances Employees are a Readily
Identifiable Group and Share a
Community of Interest
The cosmetics and fragrances employees are “readily
identifiable as a group.” They are all the employees in
the three nonsupervisory classifications in the cosmetics
and fragrances department—beauty advisors, counter
managers, and on-call employees—who perform the
function of selling cosmetics and fragrances at the Sau-
33 This is in contrast to our dissenting colleague, who states that he
“would refrain from applying Specialty Healthcare in this or any other
case,” although he acknowledges that (1) Specialty Healthcare was
enforced by the U.S. Court of Appeals for the Sixth Circuit, see Kin-
dred Nursing Centers East, supra, and (2) the D.C. Circuit has also
upheld the “overwhelming community of interest” standard. See Blue
Man Vegas, supra. In its decision, the Sixth Circuit considered argu-
ments, similar to those presented by our dissenting colleague, that the
Specialty Healthcare test constituted a material change in the law, and
concluded that “this is just not so.” 727 F.3d at 561.

MACY’S, INC. 19
gus store. Thus, the petitioned-for employees are readily
identifiable based on classifications and function. More-
over, the petitioned-for unit is coextensive with a de-
partmental line that the Employer has drawn. Cf.
Northrop Grumman Shipbuilding, Inc., 357 NLRB 2015,
2017 (2011) (finding petitioned-for employees “readily
identifiable as a group” because they belonged to the
same department and performed a unique function), enf.
denied on other grounds sub nom. NLRB v. Enterprise
Leasing Co. Southeast, LLC, 722 F.3d 609 (4th Cir.
2013), petition for writ of cert. filed, No. 13–671 (2013).
Significantly, this is a primary selling department, not a
sub-department within a primary selling department.
The petitioned-for employees also share a community
of interest. In determining whether employees in a pro-
posed unit share a community of interest, the Board ex-
amines:

whether the employees are organized into a separate
department; have distinct skills and training; have dis-
tinct job functions and perform distinct work, including
inquiry into the amount and type of job overlap be-
tween classification; are functionally integrated with
the Employer’s other employees; have frequent contact
with other employees; interchange with other employ-
ees; have distinct terms and conditions of employment;
and are separately supervised.

Specialty Healthcare, supra, at 942 (quoting United Opera-
tions, 338 NLRB 123, 123 (2002)).
Here, all of the petitioned-for employees work in the
same selling department and perform their functions in
two connected, defined work areas. They have common
supervision, as they are all directly supervised by Sales
Manager Kelly Quince. Their work also has a shared
purpose and functional integration, as they all sell cos-
metics and fragrances products to customers. This func-
tional integration is exemplified by the on-call employ-
ees, who sell both cosmetics and fragrances products
throughout the department, depending on staffing needs.
Further, the petitioned-for employees are the only em-
ployees who sell cosmetics and fragrances. The only
regular contact the petitioned-for employees have with
other employees appears to be limited to the brief morn-
ing “rallies.” What other daily contact they have is inci-
dental, as they are not expected to work in other depart-
ments, apart from periodic inventory assistance. As the
Employer does not “like to make a habit” of merchandise
from one department being rung up in another, it does
not appear that the petitioned-for employees come into
frequent contact with the products sold in other depart-
ments. Additionally, there are only nine examples of
permanent transfers into, or out of, the cosmetics and
fragrances department over the last 2 years. And all of
the petitioned-for employees are paid on a base-plus-
commission basis, receive the same benefits, and are
subject to the same Employer policies.
The Employer and amici RILA-RLC contend that the
petitioned-for employees are not readily identifiable as a
group and do not share a community of interest, but the
Employer and amici offer no support for this argument
aside from pointing to the fact that the cosmetics and
fragrances department is split between two separate
floors and that there are certain differences among the
petitioned-for employees. It is true that the cosmetics
and fragrances department is split between two floors,
but the two areas that house the department are neverthe-
less connected by a bank of escalators. More important-
ly, a petitioned-for unit is not rendered inappropriate
simply because the petitioned-for employees work on
different floors of the same facility. See D.V. Displays
Corp., 134 NLRB 568, 569 (1961).34
Although there are some differences among the peti-
tioned-for employees, we find, in contrast to our dissent-
ing colleague, that they are insignificant compared to the
strong evidence of community of interest that they share.
On-call employees earn a slightly smaller commission
than beauty advisors and counter managers, but minor
differences in compensation among petitioned-for em-
ployees do not render a petitioned-for unit inappropriate.
Cf. Hotel Service Group, 328 NLRB 116 (1999) (peti-
tioned-for unit did not possess separate community of
interest from other employees despite difference in hour-
ly pay rates, commissions, gratuities). Beyond this in-
significant difference, cosmetics beauty advisors sell one
vendor’s products and give makeovers whereas fragranc-
es beauty advisors sell all vendors’ products and do not
give makeovers; on-call employees do not attend training
events that other beauty advisors attend; most cosmetics
beauty advisors wear distinct uniforms; and vendor rep-
resentatives are consulted in hiring cosmetics beauty
advisors, but not fragrances or on-call employees. In
most other respects, however, the interests of the peti-
tioned-for employees are identical.35 See DTG Opera-
tions, Inc., 357 NLRB 2122, (2011); see also Guide Dogs
for the Blind, Inc., 359 NLRB 1412, 1416 (2013) (peti-
tioned-for employees readily identifiable as a group and
34 The fact that the petitioned-for employees also work at different
counters is therefore also analytically insignificant.
35 Unlike our dissenting colleague, we do not regard the fact that the
two selling areas are adjacent to different departments as a “substantial”
dissimilarity in working conditions among the petitioned-for employ-
ees. They share common supervision and function and constitute all of
the selling employees within the Employer’s separately-defined de-
partment.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 20
shared a community of interest where unit consisted of
all employees in two classifications of same administra-
tive department).36
B. Other Employees do not Share an Overwhelming
Community of Interest with Cosmetics and
Fragrances Employees
In Specialty Healthcare, the Board held that two
groups share an overwhelming community of interest
when their community-of-interest factors “overlap al-
most completely.” Specialty Healthcare, supra at 944.
The Employer has failed to establish that the petitioned-
for employees and the nonselling employees share an
overwhelming community of interest; in fact, there is
virtually no record evidence concerning the nonselling
employees. The Employer alternatively argues that the
smallest appropriate unit must include all selling em-
ployees. Accordingly, we consider next whether the
Employer has met its burden to establish that the peti-
tioned-for employees share an overwhelming community
of interest with the other selling employees. Contrary to
our dissenting colleague, we find that the Employer has
not done so.
It is readily apparent that there are clear distinctions
between the petitioned-for employees and other selling
employees. First and foremost, there is no dispute that
the petitioned-for employees work in a separate depart-
ment from all other selling employees and that the peti-
tioned-for unit consists of all nonsupervisory employees
in that department. The fact that the petitioned-for unit
tracks a dividing line drawn by the Employer is particu-
larly significant. See Fraser Engineering Co., 359
NLRB 681, 681 (2013); Specialty Healthcare, supra, at
942 fn. 19 (quoting International Paper Co., 96 NLRB
295, 298 fn. 7 (1951)). In the context of this case, it is
also significant that the cosmetics and fragrances de-
partment is structured differently than other primary
sales departments, as there is no evidence that other de-
partments have the equivalent of counter managers.37
36 Amici RILA-RLC argue, and our dissenting colleague appears to
agree, that the fact that different petitioned-for employees work under
different counter managers is a “significant” difference among the
petitioned-for employees. As the counter managers are included in the
petitioned-for unit, that argument is meritless. Further, it is undisputed
that counter managers are not supervisors, and it is also undisputed that
all petitioned-for employees report directly to Sales Manager Quince.
Thus, the counter managers provide no evidence of separate supervi-
sion among the petitioned-for employees. As stated above, the shared
community-of-interest factors outweigh any other distinction among
the petitioned-for employees that could be based on the counter manag-
ers.
37 To be clear, and in contrast to the Acting Regional Director, we do
not find that counter managers constitute a separate level of supervi-
sion.
Likewise, there is no evidence that other departments
have the equivalent of on-call employees. Second, there
is no dispute that the petitioned-for employees are sepa-
rately supervised by Sales Manager Quince. Although
the petitioned-for employees and the other selling em-
ployees are commonly supervised at the second (and
highest) level by Store Manager McKay, such common
upper-level supervision can be—and in this case is—
outweighed by other factors favoring a separate unit.
See, e.g., Grace Industries, 358 NLRB 502, 507
(2012).38 Third, there is no dispute that the petitioned-
for employees work in their own distinct selling areas.
Cf. DTG Operations, supra at 2126 (finding no over-
whelming community of interest where, inter alia, peti-
tioned-for employees worked behind sales counters in
rental buildings “separate from virtually all of the other
hourly employees”).39 Taken together, the fact that the
petitioned-for employees work in a separate department,
report to a different supervisor, and work in separate
physical spaces supports our finding that the petitioned-
for employees do not share an overwhelming community
of interest with other selling employees. Cf. Guide Dogs
for the Blind, supra at 1417 (finding factors did not
“overlap almost completely” where employees sought to
be added to petitioned-for unit worked in separate admin-
istrative departments, reported to different managerial
chains, and worked in separate physical spaces).
Further, the record before us does not show any signif-
icant contact between the petitioned-for employees and
other selling employees. The Employer claims that there
is “regular” contact because the petitioned-for employees
recruit customers in other sales departments, work in
close proximity to other departments, and all store em-
ployees attend daily morning rallies. The testimony re-
garding customer recruitment, however, is exceptionally
vague and consists of a single statement, never elaborat-
ed upon, that “cosmetics associates go into the shoe de-
partment to recruit.”40 Further, there is no indication
how frequently petitioned-for employees engage in such
recruitment, nor is there any indication that this leads to
anything more than incidental contact with other selling
38 Although the dissent states that Store Manager McKay “exercises
control over and oversees all salespeople across the store, both directly
. . . and indirectly,” aside from her role in leading the morning “rallies,”
the record is almost entirely silent as to McKay’s day-to-day interac-
tions with cosmetics and fragrances or any other selling employees.
39 The fact that the cosmetics and fragrances selling areas are adja-
cent to other selling areas does not, in our view, reduce the significance
of the fact that the petitioned-for employees have their own distinct
selling areas.
40 As noted above, this statement also appears in the context of a dis-
cussion about how fragrance vendor-employed sprayers recruit custom-
ers in other departments.

MACY’S, INC. 21
employees. Likewise, notwithstanding the possibility of
some informal contact with selling employees in neigh-
boring departments, there is no record evidence as to the
frequency or extent of any such interactions. As for the
15-minute rallies at the start of the day, there is no indi-
cation of any employee interaction beyond simply being
in attendance, and the rallies do not involve the employ-
ees performing their main selling function. Thus, the
record simply does not support a finding of regular, sig-
nificant contact between the petitioned-for employees
and other selling employees.
Likewise, the record does not show significant inter-
change between the petitioned-for employees and other
selling employees. The Employer asserts that there is
significant interchange based on nine permanent transfers
into and out of the cosmetics and fragrances department
over the last 2 years, and also claims that the petitioned-
for employees assist other departments. We do not
agree. Nine permanent transfers over a 2-year period do
not establish significant interchange between petitioned-
for and nonpetitioned-for employees, particularly in this
relatively large unit of 41 employees, as all but one of
those transfers was into the petitioned for unit, and the
sole transfer out was to a supervisory position. Further,
evidence of permanent interchange is a less significant
indicator of whether a community of interest exists than
is evidence of temporary interchange. See, e.g., Bashas’,
Inc., 337 NLRB 710, 711 fn. 7 (2002). As for temporary
interchange, the record is clear that cosmetics and fra-
grances employees are never asked to sell in other de-
partments, nor are other selling employees asked to sell
in the cosmetics and fragrances department. The peti-
tioned-for employees do assist other departments with
inventory, but there is no indication that this involves a
significant portion of the petitioned-for employees’ time,
and in any event inventory work is incidental to the peti-
tioned-for employees’ selling function. Further, there is
no evidence that other selling employees assist the cos-
metics and fragrances department with inventory. Alt-
hough there was, as the dissent points out, testimony that
other selling employees might be expected to assist cus-
tomers at a temporarily unattended cosmetics or fra-
grances counter, there was no indication that this occurs
more than sporadically.41 Accordingly, the available
evidence shows that any temporary interchange is infre-
quent, limited, and one-way. Such “interchange” does
41 Similarly, the evidence regarding cosmetics and fragrances prod-
ucts being rung up in other departments, and other products being rung
up in cosmetics and fragrances, is at best inconclusive. McKay testi-
fied that this happens from “time to time,” but two beauty advisors
claimed that they were not aware of cosmetics ever being rung up in
other departments.
not require including the other selling employees in the
petitioned-for unit. See DTG Operations, supra, at 2128.
Regarding functional integration, the Employer and
our dissenting colleague are correct that in Wheeling Is-
land Gaming, the Board found significant functional in-
tegration between poker dealers and other table games
dealers because they were “integral elements of the Em-
ployer’s gaming operation,” as reflected in common se-
cond-level supervision. 355 NLRB at 642. But the sig-
nificance of functional integration is reduced where, as
here, there is limited interaction between the petitioned-
for employees and those that the employer seeks to add.
The Board has emphasized this point in two recent cases
applying Specialty Healthcare.42 In DTG Operations,
the Board stated that the employer’s facility was func-
tionally integrated as “all employees work[ed] toward
renting vehicles to customers,” but that because each
classification had a separate role in the process, the clas-
sifications had only limited interaction with each other,
thus reducing the significance of the functional integra-
tion. DTG Operations, supra at 2128. Similarly, in
Guide Dogs for the Blind, the Board specified that func-
tional integration does not establish an overwhelming
community of interest where each classification has a
separate role in the process and only limited interaction
and interchange with each other. See Guide Dogs for the
Blind, supra at 1417–1418. Accordingly, even if the pe-
titioned-for employees are functionally integrated with
the other selling employees, the petitioned-for employees
have a separate role in the process, as they sell products
no other employees sell, and they have limited interac-
tion and interchange with other selling employees. Thus,
in this case, the Employer “has failed to demonstrate”
that the petitioned-for employees and all other selling
employees “are so functionally integrated as to blur” the
differences between the two groups. Id. at 1418.
Nor does the fact that the petitioned-for employees
perform tasks similar to those performed by other selling
employees—i.e., selling merchandise—establish an
overwhelming community of interest. In Guide Dogs for
the Blind, the Board observed that certain petitioned-for
employees provided physical care to dogs in a manner
that resembled dog care provided by excluded kennel
employees, but the Board found that the similarity of
function was offset by the fact that these two groups of
employees worked in different departments under differ-
ent managers, dealt with different dog populations, and
had little formal contact or interchange. See id. at 1417.
The Board also found that other petitioned-for employees
42 Wheeling Island Gaming predated Specialty Healthcare, and did
not apply the framework of that decision.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 22
performed training duties similar to those performed by
excluded field service managers, but found that this func-
tional similarity was also offset because the two groups
of employees worked toward distinct goals in disparate
locations, and worked in distinct departments under dif-
ferent managers. See id. Here, too, we find that alt-
hough the petitioned-for employees and the other selling
employees perform similar, related duties, this overlap is
offset by the fact that the petitioned-for employees work
in different departments, report to different immediate
supervisors, have their own distinct work areas, and have
little formal contact or interchange with the other selling
employees.
The factors we have discussed to this point demon-
strate that, contrary to the Employer and amici, the peti-
tioned-for unit is not a “fractured” unit. A unit is “frac-
tured” when it is an “arbitrary segment” of what would
be an appropriate unit, or is a combination of employees
for which there is “no rational basis.” Specialty
Healthcare, supra at 946. In Odwalla, Inc., 357 NLRB
1608, 1611–1613 (2011), the Board applied Specialty
Healthcare and found the petitioned-for unit was frac-
tured because it did not track any lines drawn by the em-
ployer, such as classification, departmental, or functional
lines, and also was not drawn according to any other
community-of-interest factor. Here, by contrast, the peti-
tioned-for unit tracks a departmental line drawn by the
Employer itself. See, e.g., Fraser Engineering, supra at
688. Similarly, the petitioned-for unit contains all beauty
advisors and counter managers, rather than a subset of
these classifications. Cf. Specialty Healthcare, supra at
946 (unit might be fractured if it included only a select
group of a given classification, such as CNAs who work
on the first floor). The Employer and amici argue that
the petitioned-for unit is fractured because it is smaller
than the “presumptively appropriate” storewide unit; we
address this alleged presumption below, but for now it is
sufficient to reiterate that a unit is not fractured simply
because a larger unit might also be appropriate, or even
more appropriate. See id.
To be sure, there are—as the dissent emphasizes—
similarities between the petitioned-for employees and
other selling employees. The petitioned-for employees
and all other selling employees work shifts during the
same store hours, are subject to the same handbook, are
evaluated based on the same criteria, are subject to the
same dispute-resolution procedure, receive the same ben-
efits, use the same entrance and break room, attend brief
morning rallies (although some are departmental), and
use the same clocking system. It is also true that no prior
experience is required for any selling position. But the
fact that two groups share some community of interest
factors does not, by itself, render a separate unit inappro-
priate. Cf. Specialty Healthcare, supra at 943 (once
Board has determined petitioned-for employees share a
community of interest, “it cannot be that the mere fact
that they also share a community of interest with addi-
tional employees renders the smaller unit inappropri-
ate”). Given the distinctions we have noted above, we do
not find that these similarities establish an “almost com-
plet[e]” overlap, and thus they do not establish an over-
whelming community of interest. Id. at 944.
We agree with the Employer that several of the “mean-
ingful differences” identified by the Acting Regional
Director are not fully supported by the record, insofar as
they do not distinguish all petitioned-for employees from
all other selling employees. In this regard: (1) vendor
representatives play a role in hiring some specialist sell-
ing employees, just as they play a role in hiring (most,
but not all) cosmetics beauty advisors; (2) vendor repre-
sentatives provide training to some (but not all) other
selling employees (including specialist selling employ-
ees), just as they provide training to cosmetics beauty
advisors, and all such training involves selling technique
and product knowledge; (3) some (but not most) of the
other sales departments and certain specialist selling em-
ployees are paid a base wage plus commission, as are all
of the petitioned-for employees; (4) some other selling
employees maintain client lists, just as most of the peti-
tioned-for employees, and the record does not support a
finding that petitioned-for employees’ use of these lists
differs from those kept by other selling employees;43 and
(5) some (but not necessarily most) of the petitioned-for
employees are subject to the same dress code as the other
selling employees.44
These circumstances do not, however, assist the argu-
ment that the selling employees share an overwhelming
community of interest with the cosmetics employees. In
this regard, we emphasize that the Employer does not
argue that some, but not all, of the other selling employ-
ees share an overwhelming community of interest with
the cosmetics and fragrances employees; rather, the Em-
43 That said, as described above, it appears that the cosmetics beauty
advisors make heavier use of these lists than do other selling employ-
ees, insofar as they use them not just to inform clients of special events,
but also to presell products, offer them free gifts, and book makeover
appointments.
44 The Acting Regional Director also found that the petitioned-for
employees differ from other selling employees because counter manag-
ers provide an extra level of supervision. As the counter managers are
not supervisors, but are instead part of the petitioned-for unit, the rec-
ord does not support a finding that they provide an extra level of super-
vision. But as we have explained above, the presence of counter man-
agers in the cosmetics and fragrances department is by itself a factor
that distinguishes the petitioned-for employees from other selling em-
ployees, even if the counter managers are not supervisors.

MACY’S, INC. 23
ployer argues that the smallest appropriate unit includes
all selling employees—i.e., that all selling employees
share an overwhelming community of interest with all of
the petitioned-for employees. See DTG Operations, su-
pra, at 2126. The factors just enumerated, however,
show only that some petitioned-for employees share sim-
ilarities with some other selling employees. Thus, it is
not the case that all selling employees have vendor input
in hiring, or receive training from vendor representatives.
Similarly, although some employees are, like the peti-
tioned-for employees, paid on a base-plus-commission
basis, it is undisputed that other selling employees are
compensated by other methods.45 Likewise, not all other
selling employees maintain client lists. And although
some petitioned-for employees are subject to the same
dress code as all other selling employees, it remains the
case that many petitioned-for employees do wear distinc-
tive uniforms. In sum, the mere fact that all petitioned-
for employees share certain community of interest factors
with some (but not all) other selling employees, or that
some (but not all) petitioned-for employees share simi-
larities with some (but not all) other selling employees,
does not demonstrate the “almost complet[e]” overlap of
factors required to establish an overwhelming communi-
ty of interest between all the petitioned-for employees
and all the other selling employees. Specialty
Healthcare, supra at 944.46 In any event, even if we
were to find that all of the foregoing considerations do
support the Employer’s argument, we would nevertheless
find that they are outweighed by the separate department,
the structure of the department that includes counter
managers, separate supervision, separate work areas, and
lack of significant contact and meaningful interchange.
These considerations alone clearly show that the com-
munity of interest factors do not “overlap almost com-
pletely,” and therefore the Employer has not established
that the petitioned-for employees and other selling em-
ployees share an overwhelming community of interest.
Id.
45 Even if all employees were paid in the same manner, similarity of
wages does not render a separate petitioned-for unit inappropriate. See
id. at 7.
46 This is especially so where, as here, the record contains no break-
down of the number of other selling employees who, for instance, are
compensated on a base-plus-commission basis. That is, because we do
not know how many other selling employees are paid base-plus-
commission, or are subject to vendor input in hiring, or maintain client
lists, we cannot draw firm conclusions as to whether these circumstanc-
es establish the requisite overwhelming community of interest. This
state of affairs must be construed against the Employer, as the party
arguing that an overwhelming community of interest exists. See id. at
12–13.
Finally, Wheeling Island Gaming, supra, does not war-
rant a different result.47 In that case, the majority found
that a unit limited to poker dealers was inappropriate
because the poker dealers were not sufficiently distinct
from other table games dealers. See id. at 637. More
specifically, the Wheeling Island Gaming Board found
that although poker dealers and other table games dealers
had separate immediate supervision, an absence of daily
interchange, and little permanent interchange, these dis-
tinctions were outweighed by other factors showing the
two groups shared a community of interest. See id. at
641–642. Wheeling Island Gaming is relevant here in-
asmuch as the Specialty Healthcare Board adopted, as an
“integral part of [its] analysis,” Specialty Healthcare,
supra at 946 fn. 32, several well-established legal princi-
ples articulated in Wheeling Island Gaming: (1) “the
Board looks first to the unit sought by the petitioner, and
if it is an appropriate unit, the Board’s inquiry ends;” (2)
“[t]he issue . . . is not whether there are too few or too
many employees in the unit;” (3) the Board “never ad-
dresses, solely and in isolation, the question whether the
employees in the unit sought have interests in common
with one another” but also determines “whether the in-
terests of the group sought are sufficiently distinct from
those of other employees;” and (4) a unit might be frac-
tured if it is limited to the members of a classification
working on a particular floor or shift. Id. at 945, fn. 28;
11; 8; 13.
These legal principles, articulated in Wheeling Island
Gaming and reaffirmed in Specialty Healthcare, are con-
sistent with our decision today. Moreover, the applica-
tion of those principles to the particular facts of Wheeling
Island Gaming is also consistent with our conclusion in
this case. The Employer and our dissenting colleague
contend that the distinctions between the petitioned-for
employees and the other selling employees in this case
are no greater than those between the poker dealers and
other table games dealers in Wheeling Island Gaming.
We do not agree. Wheeling Island Gaming, decided be-
fore Specialty Healthcare, did not apply the Specialty
Healthcare framework, and Specialty Healthcare gave
47 The Employer has also cited two unpublished, and therefore non-
precedential, Regional decisions that the Employer claims show that the
petitioned-for employees cannot be separate from other selling employ-
ees. Both of these cases are clearly factually distinguishable from this
case, as they indicate evidence of interchange and/or common supervi-
sion of the cosmeticians and other selling employees, and both cases
involved a different issue (whether cosmeticians should be excluded
from a petitioned-for unit) than the current case (whether cosmetics and
fragrances employees constitute an appropriate unit. See Jordan Marsh
Co., Case 01–RC–019262 (1989) (not reported in Board volumes);
Jordan Marsh Co., Case 01–RC–015563 (1978) (not reported in Board
volumes).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 24
no indication how the overwhelming community of in-
terest framework might have been applied in Wheeling
Island Gaming. More important, Wheeling Island Gam-
ing is distinguishable on its facts from this case – unsur-
prisingly, perhaps, given the differences between a gam-
ing operation and a retail store.48
In Wheeling Island Gaming, the only significant dis-
tinctions between the poker dealers and the other table
games dealers were separate immediate supervision, sep-
arate work locations, and an absence of significant inter-
change. See id at 640, 642. Here, however, there are
two further important distinctions. First, the petitioned-
for unit in this case is not simply separately supervised,
but also conforms to a separate, Employer-drawn de-
partment. By contrast, there is no indication that the
poker dealers in Wheeling Island Gaming constituted a
separate administrative department. Although the poker
dealers were separately supervised, there was according-
ly a much less defined demarcation between the poker
dealers and other dealers than is the case between the
petitioned-for employees and the other selling employees
here. Second, the cosmetics and fragrances department
is itself structured differently from other departments, in
that there is no evidence that other selling departments
have the equivalent of a counter manager. Accordingly,
Wheeling Island Gaming does not require finding that an
overwhelming community of interest exists in this case.49
For all the foregoing reasons, we find that the Employ-
er has failed to establish that the petitioned-for employ-
ees share an overwhelming community of interest with
the other selling employees. Due to the fact that the peti-
tioned-for employees work in a separate department un-
der separate supervision, have only limited interchange
and contact with other selling employees, have distinct
work areas, and work in a differently-structured depart-
ment, it simply cannot be said that their community of
interest factors “overlap almost completely” with those
of the other selling employees.50
48 Unlike the Acting Regional Director, we do not distinguish Wheel-
ing Island Gaming merely on the ground that it predated Specialty
Healthcare. See Fraser Engineering, supra, slip op. at 2 fn. 4.
49 The Acting Regional Director distinguished Wheeling Island
Gaming on several other factual grounds, but not all of his distinctions
(method of compensation, vendor input in hiring and training, different
uniforms) are, as discussed above, fully supported by the record.
50 In addition to the foregoing, the Petitioner argues that bargaining
history favors finding the petitioned-for unit appropriate. The relevant
bargaining history does not involve the employees at the Saugus store
and does not necessarily implicate the Employer as it is currently con-
stituted, so it is not binding. Even so, this bargaining history may be
regarded as evidence of area practice and the history of bargaining in
the industry, which are relevant considerations. See Grace Industries,
supra, at 508. As noted above, the cosmetics employees are excluded
from agreements covering other selling employees at the Employer’s
C. Board Precedent Concerning the Retail Industry
does not Require a Unit of all Employees,
or of all Selling Employees
Our inquiry, however, does not end here. In Specialty
Healthcare, supra at 946 fn. 29, the Board noted that
there are “various presumptions and special industry and
occupational rules,” and stated that its holding “is not
intended to disturb any rules applicable only in specific
industries.” The Employer contends—and amici, as well
as our dissenting colleague, argue at length—that there is
a line of precedent setting forth unit determination con-
siderations specific to the retail industry. More specifi-
cally, the Employer, amici, and our dissenting colleague
argue that in the retail industry, a storewide unit is pre-
sumptively appropriate and that finding the petitioned-for
unit appropriate would be an unprecedented departure
from the Board’s approach to this industry. We agree
that there is a line of cases dealing with unit determina-
tions in retail department stores. Under Specialty
Healthcare, this line of cases remains relevant. That
said, we find that the retail industry precedent does not
mandate finding the petitioned-for unit inappropriate.
Instead, the “presumption” the Employer, amici, and our
dissenting colleague refer to has evolved into a standard
for retail unit determinations that, in this case, comple-
ments the Specialty Healthcare analysis set forth above.
To begin, the Board has referred to a “presumptively
appropriate” storewide unit in two retail industry con-
texts. The first involves situations where a petitioner
seeks a unit consisting of all employees at one store in a
retail chain and another party argues that the unit must
include other stores. In such cases, the petitioned-for
storewide unit is presumptively appropriate, although
this presumption can be rebutted by a showing that the
day-to-day interests of the employees in a particular store
have merged with those of employees of other stores.
Haag Drug, 169 NLRB 877 (1968); Sav-On Drugs, 138
NLRB 1032 (1962).51 This line of cases, which refer-
ences a “presumptively appropriate” storewide unit, does
not apply here, however, because the Petitioner is not
requesting a storewide unit, nor is there any contention
Boston, Natick, Belmont, Braintree, and Peabody stores, and the cos-
metics and fragrances employees at the Warwick store were organized
separately from the other employees at that location. As the evidence
shows that cosmetics and fragrances employees have been treated as a
distinct group at other area retail department stores, we find that the
bargaining history provides limited additional support for the Petition-
er’s position. We would find the petitioned-for unit appropriate with-
out that evidence.
51 Of course, the single-facility presumption is applied outside the re-
tail store context. See, e.g., Rental Uniform Service, 330 NLRB 334,
335 (1999).

MACY’S, INC. 25
that employees at other stores must be included in the
petitioned-for unit.52
There are also cases in which the Board has referred to
a “presumptively appropriate” storewide unit when a
petitioner seeks a unit limited to only certain employees
at a retail department store. See Sears, Roebuck & Co.,
184 NLRB 343, 346 (1970); G. Fox & Co., 155 NLRB
1080, 1081 (1965); Bamberger’s Paramus, supra at 751;
Montgomery Ward, supra at 600. Even in these cases,
however, the Board has emphasized that a storewide unit
is not the only appropriate unit.53 And subsequent to all
52 The dissent’s reliance on Haag Drug and related cases is mis-
placed. None of those cases addressed whether a subset of employees
at a single store could be an appropriate unit. The issue, rather, was
whether a single store, apart from other stores, was an appropriate unit.
See NLRB v. J. W. Mays, Inc., 675 F.2d 442 (2d Cir. 1982), enfg. 253
NLRB 717 (1980); Gimbels Midwest, Inc., 226 NLRB 891 (1976);
Davison-Paxon Co., 185 NLRB 21 (1970); Hochschild, Kohn & Co.,
184 NLRB 636 (1970); Allied Stores of Ohio, Inc., 175 NLRB 966
(1969); M. O’Neil Co., 175 NLRB 514 (1969). Although the dissent
properly acknowledges that Haag Drug and related cases involve an
issue not present in this case, he nevertheless argues that these cases
“remain relevant in the instant case because they recognize that em-
ployees in a storewide unit are likely to share a community of interests
that renders such a unit presumptively appropriate.” As we explain
below, under Board law, the rule that a certain unit is presumptively
appropriate in a single store does not entail that a different unit is not
also appropriate. Tellingly, none of the cases involving a petitioned-for
unit consisting of a subset of employees at a single department store
discussed below—or cited by the dissent—rely on the Haag Drug
passage that the dissent quotes. For example, as further explained
below, Charrette Drafting Supplies, 275 NLRB 1294 (1985), cited by
the dissent, like Haag Drug, involved the issue of whether employees
at a second location had to be included in the single-location petitioned-
for unit. Although several cases we discuss below cite Sav-On Drugs,
they do so either in the context of a party arguing that a single-location
unit is inappropriate, see J. W. Mays, Inc., 147 NLRB 968, 970 fn. 3
(1964), or for reasons unrelated to any retail industry presumptions.
See John’s Bargain Stores Corp., 160 NLRB 1519, 1522 fn. 6 (1966)
(Board considers “all relevant factors” for unit determinations “in a
variety of industries”); Bamberger’s Paramus, 151 NLRB 748, 751 fn.
9 (1965) (labor organization not compelled to seek representation in
most comprehensive grouping of employees unless that is only appro-
priate unit); Montgomery Ward & Co., Inc., 150 NLRB 598, 601 fn. 9
(1964) (same).
53 For example, in Montgomery Ward, supra at 600, the Board ob-
served that because Sec. 9(b) of the Act empowers the Board to decide
the appropriate unit in each case and directs it to make unit determina-
tions that will “assure to employees the fullest freedom” in exercising
their rights, the Act accordingly “does not compel labor organizations
to seek representation in the most comprehensive grouping of employ-
ees”—that is, just because a storewide unit might be appropriate does
not mean that other, smaller units might not also be appropriate. Fur-
ther, the precedent these cases cite for the “presumptive appropriate-
ness” of a storewide unit does not use that phrase, but instead refers to
the storewide unit as “basically appropriate” or the “optimum unit.”
See, e.g., Stern’s, Paramus, 150 NLRB 799, 803 (1965); Polk Brothers,
Inc., 128 NLRB 330, 331 (1960); I. Magnin & Co., 119 NLRB 642,
643 (1957); May Department Stores Co., 97 NLRB 1007, 1008 (1952);
see also Sears, Roebuck & Co., 227 NLRB 1403, 1404 (1977); Sears,
Roebuck & Co., 178 NLRB 577, 577 (1969).
these cases, the Board has made clear that if there ever
was a presumption that “only a unit of all employees” is
appropriate, it is “no longer applicable to department
stores.” Saks Fifth Avenue, 247 NLRB 1047, 1051
(1980). Indeed, the Board has not applied a presumption
of appropriateness to storewide units in department
stores since Saks Fifth Avenue.54
Even during the period when the Board expressed a
policy or preference favoring storewide units in retail
department stores, it nevertheless always permitted less-
than-storewide units. And over time, the overall trend
has been an unmistakable relaxation of a presumption in
favor of a storewide unit. In older cases, the Board stat-
ed that in the absence of storewide bargaining history or
a labor organization seeking to represent employees on a
storewide basis, a less-than-storewide unit was appropri-
ate if the employees shared “a mutuality of employment
interests not shared by other department store employees,
which existed by reason of their singularly different work
and training skills” or if the employees constituted a
“homogenous group” possessing “sufficiently distinctive
skills.” May Department Stores, supra at 1008. This
focus on skills was soon softened: In I. Magnin, supra at
643, the Board stated that a smaller unit was appropriate
“when comprised of craft or professional employees or
where departments composed of employees having a
mutuality of interests not shared by other store employ-
ees are involved” (emphasis added). In other words, a
smaller unit, not limited to a craft or professional unit,
was appropriate so long as the interests of the employees
in that unit were “sufficiently different” from those of
other employees. Id. The Board employed similar for-
mulations for several years,55 but also emphasized that in
determining whether a less-than-storewide petitioned-for
unit was appropriate, the issue was whether such a unit
“is appropriate in the circumstances of this case and not
whether another unit consisting of all employees . . .
would also be appropriate, more appropriate, or most
54 In one case, the Board adopted an administrative law judge’s deci-
sion that mentioned the presumptive appropriateness of storewide units
in a case involving meatcutters in a grocery store context. Wal-Mart
Stores, Inc., 348 NLRB 274, 287 (2006), enfd. 519 F.3d 490 (D.C. Cir.
2008). Even if the dissent is correct in inferring that the Board there
“reaffirmed the presumptive appropriateness of storewide units in the
retail industry”—a view we do not share—the case in no way suggests
that a less-than-storewide unit is presumptively inappropriate.
55 See, e.g., J. W. Mays, Inc., 147 NLRB at 972 (unit must “comprise
a homogenous group which can justifiably be established as a separate
appropriate unit”); Lord & Taylor, 150 NLRB 812, 816 (1965) (unit
must be “sufficiently distinct, homogenous, and identifiable”); Stern’s,
Paramus, supra at 802 (employees in less-than-storewide units must be
“sufficiently different from each other as to warrant establishing sepa-
rate units”).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 26
appropriate.” Bamberger’s Paramus, supra at 751 (cit-
ing Montgomery Ward, supra at 601).
Then, in John’s Bargain Stores, supra at 1522, the
Board clarified that it had “reexamined and revised” the
“previous policy favoring” storewide units in the retail
industry, and the “new policy,” articulated in cases such
as Stern’s, Paramus, supra, “calls for a careful evaluation
of all relevant factors in each case.” Shortly thereafter,
in Sears, Roebuck & Co., 160 NLRB 1435, 1436 (1966),
the Board further commented that cases such as Lord &
Taylor, supra:

have applied the long-established principles that the
appropriate unit for self-organization among the em-
ployees of a given employer is generally based upon a
community of interest . . . as manifested, inter alia, by
their common experiences, duties, organization, super-
vision, and conditions of employment.

In other words, by 1966 the Board had essentially stated that
less-than-storewide units were appropriate so long as such
units were based on the usual community-of-interest con-
siderations and sufficiently distinct from other employees.
The Board went still further in Sears, Roebuck & Co., 261
NLRB 245, 246 (1982), stating, when confronted with a
petitioned-for unit limited to automotive center employees
at a retail department store, that “the sole inquiry here is
whether” the petitioned-for unit “is appropriate in the cir-
cumstances of this case.” After reiterating that “it is irrele-
vant whether another unit would also be appropriate, more
appropriate, or most appropriate,” the Board went on to find
that the petitioned-for unit was appropriate because the peti-
tioned-for employees had limited contact with other em-
ployees and constituted a “functionally integrated group
working in a recognized product line under separate super-
vision who share a community of interest that sufficiently
differentiates them from other store employees and func-
tions.” Id. at 246-247. Aside from a few cases dealing with
separate units of warehouse employees, which are governed
by a standard not applicable here,56 this is the Board’s latest
word on the standard for finding a less-than-storewide unit
appropriate in the retail department store setting.57
56 See A. Harris & Co., 116 NLRB 1628, 1631-1632 (1956). Con-
trary to amici RILA-RLC, the Board has never held that A. Harris
articulates an overall test for deviating from a storewide unit. That case
applies to “the establishment of warehouse units in retail department
stores only.” See Lily-Tulip Cup Corp., 124 NLRB 982, 984 fn. 2
(1959) (emphasis omitted).
57 Our dissenting colleague suggests that the “competitive challeng-
es” retail establishments face “should render inappropriate any bargain-
ing unit consisting of less than a storewide selling unit, especially
where the record does not contain compelling evidence of distinctions
unique to a particular subset of retail store salespeople.” The Board has
never articulated such a restrictive standard applicable to retail estab-
Considering these unit determination cases as a whole,
it is evident that the Board has moved away from any
presumption favoring storewide units in retail department
stores. Similarly, if the standard for deviating from a
storewide unit was ever, as amicus NRF suggests, “fairly
strenuous,” that is clearly no longer the case. Rather, the
Board has, over time, developed and applied a standard
that allows a less-than-storewide unit so long as that unit
is identifiable, the unit employees share a community of
interest, and those employees are sufficiently distinct
from other store employees. That, of course, is almost
precisely the standard articulated in Specialty
Healthcare.58 As we have explained above, the peti-
tioned-for employees in this case are identifiable as a
separate group, they share a community of interest, and
because they do not share an overwhelming community
of interest with other selling employees, they are also
sufficiently distinct from other selling employees to con-
stitute an appropriate unit. See Specialty Healthcare,
supra, slip op. at 13 (explaining “overwhelming commu-
nity of interest” standard clarifies “what degree of differ-
ence renders the groups’ interests ‘sufficiently dis-
tinct’”).
Further, our foregoing analysis shows that the peti-
tioned-for unit is appropriate under retail department
store precedent even without reference to Specialty
Healthcare. The petitioned-for unit appears to meet the
standard articulated in I. Magnin, supra at 643, as the
petitioned-for employees have a “mutuality of interests”
not shared by all other selling employees (they share
most community-of-interest factors, work in their own
department, the department is structured unlike other
departments due to the presence of counter managers,
and have separate supervision), and are “sufficiently dif-
ferent” from the other selling employees so as to justify
representation on a separate basis (in addition to the
foregoing, they work in distinct areas and also have little
contact or interchange with the other employees). Fur-
ther, our analysis comports with John’s Bargain Stores,
supra at 1522, as we have found that the petitioned-for
unit is appropriate based on a careful evaluation of all the
relevant factors of this case. And as in Sears, Roebuck,
261 NLRB at 246–247, the petitioned-for unit in this
case is a “functionally integrated group working in a rec-
ognized product line under separate supervision who
lishments, and we decline our colleague’s invitation to impose such a
standard here.
58 Furthermore, Specialty Healthcare clarified that—contrary to the
position argued by NRF—“[a] party petitioning for a unit other than a
presumptively appropriate unit . . . bears no heightened burden to show
that the petitioned-for unit is also an appropriate unit.” Supra, slip op at
7.

MACY’S, INC. 27
share a community of interest that sufficiently differenti-
ates them” from other selling employees.
To summarize, Board precedent regarding retail de-
partment stores has evolved away from any presumptions
favoring storewide units, and the current standard for
determining whether a less-than-storewide unit comports
with, and is in fact complementary to, the framework
articulated in Specialty Healthcare. Both the retail in-
dustry standard and Specialty Healthcare are concerned
with ensuring that petitioned-for employees are separate-
ly identifiable and share a community of interest, and
that they are also sufficiently distinct from other employ-
ees. We therefore do not agree with the claims of amici
and our dissenting colleague that applying Specialty
Healthcare to find this petitioned-for unit appropriate is
directly contrary to retail industry precedent, undermines
that body of precedent, or is otherwise inconsistent with
it.59
In discussing the storewide “presumption,” the Em-
ployer, amici, and our dissenting colleague argue that the
Board has never deviated from a storewide unit to the
extent it is being asked to do here. But as in Sears, Roe-
buck, 261 NLRB at 247, the sole question here is wheth-
er the petitioned-for unit is appropriate in the circum-
stances of this case. So long as the petitioned-for unit is
appropriate—as we have found that it is—it is not signif-
icant that in other cases, based on different facts, the
Board has previously approved units of all selling or
nonselling employees,60 or that other less-than-storewide
units have involved groups of employees not involved in
selling merchandise.61 See Specialty Healthcare, supra
at 939 fn. 11. Further, the various cases cited by the
Employer, amici, and our dissenting colleague do not
demonstrate that the Board has rejected a petitioned-for
unit similar to the one at issue here. Indeed, there are no
published decisions involving a petitioned-for unit lim-
59 We also reject NRF’s argument that Specialty Healthcare should
not be applied to the retail industry because tests for unit determination
should not be applied outside the specific industry at issue. As Special-
ty Healthcare made clear, it was articulating generally applicable unit
determination principles, not principles limited to a particular industry.
357 NLRB 934, 941.
60 See, e.g., Wickes Furniture, 231 NLRB 154, 154–155 (1977) (ap-
proving unit of selling employees); Lord & Taylor, supra at 816 (direct-
ing election in unit of nonselling employees); Stern’s, Paramus, supra
at 808 (approving separate units of selling, nonselling, and restaurant
employees).
61 See, e.g., Super K Mart Center, 323 NLRB 582, 586–589 (1997)
(approving separate meat department unit); W & J Sloane, Inc., 173
NLRB 1387, 1389 (1968) (finding display employees need not be in-
cluded in nonselling unit due to distinct community of interest); Arnold
Constable Corp., 150 NLRB 788, 795 (1965) (approving separate units
of office, cafeteria, and selling employees); Foreman & Clark, Inc., 97
NLRB 1080 (1952) (approving unit of tailor shop/alterations employ-
ees).
ited to a cosmetics and fragrances department. Amici
RILA-RLC cite a case in which cosmetics demonstrators
were included in a larger unit, but in that case, the peti-
tioned-for unit was a storewide unit and the issue was
whether cosmetics demonstrators were employees of the
employer, which the Board found they were. Burrows &
Sanborn, Inc., 81 NLRB 1308, 1309 (1949).62 Similarly,
the Employer, amici, and our dissenting colleague have
not cited a case that rejects a departmental unit like the
one sought here. In I. Magnin, supra at 643, the store in
question was a clothing store with 105 departments, four
of which were shoe selling departments scattered through
the store.63 The petitioner sought a unit covering the 23
employees in the four shoe selling departments. See id.
In finding the petitioned-for unit inappropriate, the Board
particularly emphasized that employees from other de-
partments had been assigned to work as shoe sellers and
that shoe sellers were actively encouraged to sell items
throughout the store. See id. Thus, I. Magnin is distin-
guishable based on the contours of the unit, which was
not defined as a single primary selling department, as
well as the significant interchange between petitioned-for
and other selling employees, which is absent in this
case.64 Further, it is telling that even in I. Magnin, the
Board did not dismiss the petitioned-for unit out of hand,
but instead proceeded to consider the usual community-
of-interest factors.65
62 RILA-RLC also cite R. H. Macy & Co., 81 NLRB 186 (1949),
claiming that here, too, cosmetic demonstrators were included in a
broader unit. In that case, however, the Board found—in “substantial
agreement” with the parties—that the appropriate unit included “all
staff employees,” but excluded a variety of other classifications, one of
which was “demonstrators (except those who demonstrate cosmetics
and beauty preparations).” See id. at 186–187.
63 I. Magnin does not reveal whether these four departments were
each separately supervised.
64 I. Magnin overruled May Department Stores Co., 39 NLRB 471
(1942), in which the Board found appropriate a unit limited to the shoe
department. The Board’s factual findings in May Department Stores
are vague and limited to stating that (1) “the shoe department is distinct
from the other departments;” (2) “the retail sale of shoes is often oper-
ated as a separate business by many companies”; (3) the duties and
skills of shoe sellers are different from other employees; and (4) the
“self-organization of the employees” favored a separate unit of shoe
sellers. Id. at 477. As the foregoing discussion makes clear, our hold-
ing in this case is based on a more specific discussion of the communi-
ty-of-interest factors than, and relies on many community-of-interest
considerations not present in, May Department Stores.
65 Indeed, the analysis in I. Magnin generally comports with the con-
temporary use of presumptions in Board representation case law. That
a unit is presumptively appropriate in a particular setting does not mean
that a different unit is presumptively inappropriate. Specifically, when
a petition is filed in a “presumptively appropriate” unit, the burden is
on the party contesting the unit to show why it is not appropriate. In
contrast, when a petitioned-for unit does not fit within an existing pre-
sumption, the petitioner must demonstrate why the unit is appropriate,
but does not bear a heightened burden to do so because of the presump-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 28
Our dissenting colleague cites, and several amici dis-
cuss at length, the Board’s decision in Kushins and Pa-
pagallo Divisions of U.S. Shoe Retail, Inc., 199 NLRB
631 (1972) (U.S. Shoe). However, that decision does not
warrant a different result here. U.S. Shoe involved a
store that mainly sold shoes, rather than a variety of
products such as the Employer’s Saugus store. See id. at
631. Further, in U.S. Shoe, the store was divided into
four selling areas, three operated by the Kushins division,
one by the Papagallo division. All four areas primarily
sold shoes and related accessories, although the Papagal-
lo division also sold dresses. The Kushins and Papagallo
divisions had separate sales managers, different compen-
sation, slightly different benefits, and minimal inter-
change. See id. Although Papagallo employees had a
separate sales manager, a Kushins manager set the hours,
holidays, and regulations for all store employees and
could require the discharge of Papagallo employees. See
id. At the time the store opened (February 1971),
Kushins and Papagallo were separate corporate entities,
but by the time the petition was filed (sometime before
May 12, 1972), this was no longer the case. See id. at
631 fn. 2. In rejecting a unit limited to the Kushins divi-
sion employees, the Board acknowledged the foregoing
differences but found that there was no basis to exclude
the Papagallo employees because “consistent with our
unit policy in department store cases, the unit must be
broadened in scope to include all store employees.” Id.
at 631–632. This statement is, of course, out of step with
the Board’s earlier statement in John’s Bargain Stores,
and is also at odds with the Board’s subsequent statement
that the presumption that “only a unit of all employees”
is appropriate is “no longer applicable to department
stores.” Saks Fifth Avenue, supra at 1051. Accordingly,
U.S. Shoe appears to have misarticulated the relevant
policy.66 But in any event, although not explicitly stated,
the Board’s rationale in U.S. Shoe appears to have turned
on the fact that most of the differences between the
Kushins and Papagallo employees were based on histori-
cal accident. That is, the differences existed only be-
tion. See, e.g., Capital Coors Co., 309 NLRB 322 fn. 1 (1992), citing
NLRB v. Carson Cable TV, 795 F.2d 879, 886–887 (9th Cir. 1986).
66 We note that U. S. Shoe has never been cited by another Board de-
cision. One of the cases it cites for the “unit policy in department store
cases” does not even involve the issue of whether a less-than-storewide
unit is appropriate. See Zayre Corp., 170 NLRB 1751 (1968) (finding
respondent violated Section 8(a)(5) by refusing to bargain with the
union and clarifying the unit to include several formerly leased depart-
ments). The other case it cites merely states that a less-than-storewide
unit is appropriate so long as the excluded employees have a separate
and distinct community of interest. See Bargain Town U.S.A. of Puerto
Rico, Inc., 162 NLRB 1145, 1147 (1967). And Member Jenkins con-
curred in the result, but did not rely on either of these cases. 199
NLRB at 632 fn.3.
cause the two divisions had once been, but no longer
were, separate corporate entities. Setting aside the dif-
ferences in compensation and benefits, and considering
the fact that the Kushins sales manager dictated certain
terms and conditions for the Papagallo employees, the
only distinction between the two groups was that they
had different sales areas and some sold dresses in addi-
tion to shoes. On a fundamental level, however, all of
the employees were shoe sellers. This is clearly distin-
guishable from the situation in this case, where there are
various differences between the petitioned-for employees
and other selling employees, who may all be engaged in
sales, but are nevertheless selling different types of prod-
ucts in different departments.
The remaining cases cited by the Employer and amici
are easily reconcilable with our decision today. In Sears,
191 NLRB 398, 399–400 (1971), the Board refused to
divide a store into three separate units, in part because all
employees worked in close proximity to each other and
attended regular storewide meetings. But unlike this
case, there was also substantial integration and overlap
between the three petitioned-for groups; further, the
Board found that the Sears store at issue was smaller and
more highly integrated than a typical Sears location, and
there is no basis for making a similar finding about the
Macy’s store at issue here. See id. at 404–406.67 In
Levitz Furniture Co., 192 NLRB 61, 62 (1971), the
Board found petitioned-for units68 limited to certain non-
selling employees at a retail furniture store inappropriate,
in part because all store employees shared the same bene-
fits and participated in inventory. But unlike this case,
there was frequent regular and temporary interchange
between the petitioned-for employees and the store’s
other employees, such that nonselling employees would
occasionally perform selling functions and selling em-
ployees would perform nonselling functions. See id. at
62–63. And in Saks & Co., 204 NLRB 24, 25 (1973),
there was similarly evidence of close integration between
67 Contrary to amici RILA-RLC, the Board in Sears did not simply
accept the conclusory statement that the store should not be divided
into separate units because a high degree of compartmentalization
could not be utilized in “this kind of retail operation.” Id. at 403. Alt-
hough the Board agreed with the employer’s position, it also examined
the interchange and overlap of employees in the three proposed units in
detail (finding, for example, that the selling employees also performed
warehouse functions and regularly relieved nonselling employees). See
id. at 404–406.
68 One petitioner sought what amounted to a warehouse unit, which
the Board found inappropriate based on an application of the A. Harris
test. See id. at 62–63. A second petitioner sought a unit limited to
truckdrivers and helpers, and both petitioners argued that a combined
“nonselling” unit of both petitioned-for units would also be appropriate.
See id. at 61.

MACY’S, INC. 29
the petitioned-for nonselling employees69 and the store’s
selling employees, as transfers between the two groups
were common.70
We need only briefly address the remaining arguments
advanced by the Employer and amici. First, we decline
the invitation to revisit or overrule Specialty Healthcare.
The Employer did not raise this argument in its request
for review. Moreover, the Employer does not articulate
any persuasive grounds for overruling Specialty
Healthcare, and the arguments advanced by amici and
the dissent were recently rejected by the Sixth Circuit in
Kindred Nursing Centers, 727 F.3d at 559–565.71 In any
event, as our analysis makes clear, our decision in this
case fully complies with Section 9(b)’s requirement that
the Board decide the appropriate unit “in each case,” as
well as Section 9(c)(5)’s command that a unit determina-
tion not be controlled by “the extent to which the em-
ployees have organized.”72 Additionally, the fact that the
69 In addition, the Board also found that the petitioned-for unit in
Saks & Co. was inappropriate because although it was claimed to be a
unit of nonselling employees, it in fact excluded a number of nonselling
employees. See id. at 25. The petitioner also contended that the peti-
tioned-for employees shared a common function, but the Board found
this was not so because the petitioned-for employees had disparate
interests and were not even commonly supervised. See id. at 24–25.
Saks & Co. is therefore also distinguishable on these grounds.
70 Amici RILA-RLC also contend that Charrette Drafting Supplies,
275 NLRB 1294, shows that the petitioned-for unit is inappropriate,
and the dissent also mentions that case. Charrette Drafting Supplies,
however, involved a petitioned-for warehouse unit, and the Board ac-
cordingly analyzed the unit under the A. Harris standard, which is not
applicable here. See id. at 1295–1296. Further, Charrette Drafting
Supplies also implicated Haag Drug, because the employer contended
that employees at a second location should be included in the peti-
tioned-for unit. See id. at 1296–1297. And even if Charrette Drafting
Supplies applied to this case, there too the petitioned-for employees and
the employees the employer sought to add performed each other’s
functions, unlike in this case. See id. at 1297.
71 The Sixth Circuit explicitly rejected arguments that Specialty
Healthcare violates Sec. 9(c)(5) and that the Board abused its discre-
tion by making policy through adjudication rather than rulemaking.
See id. at 563–565. Further, the Sixth Circuit rejected the argument
that Specialty Healthcare represented a material change to the Board’s
jurisprudence and was therefore an abuse of discretion. In rejecting this
argument, the court cited with approval the same statement by the
Board that amici here mistakenly invoke to argue that Specialty
Healthcare ignored the right of employees to refrain from organizing.
See id. at 560–561 (quoting Specialty Healthcare, supra, slip op. at 12
(the “first and central right set forth in Section 7 of the Act is the em-
ployees’ ‘right to self-organization’”)). Finally, the Sixth Circuit ob-
served that the Board must decide the appropriate unit “in each case,”
id. at 559, but at no point suggested that the standard in Specialty
Healthcare runs afoul of this statutory command, as argued by the
employer in Kindred Nursing Centers. See Br. of Petitioner Cross-
Respondent at 55–56, Kindred Nursing Centers, 727 F.3d 552.
72 The dissent likewise asserts that Specialty Healthcare is “irrecon-
cilable” with the requirement that the Board decide the appropriate unit
“in each case” and that, in doing so, the Board assure employees the
“fullest freedom” in exercising their statutory rights. The framework
Petitioner was previously a party to an election involving
a storewide unit, but in this case has petitioned for a
smaller unit, in no way runs afoul of Section 9(c)(5) or
any other statutory requirement. Indeed, this situation
was also present in Stern’s, Paramus, a case cited by the
Employer, our dissenting colleague, and all amici. 150
NLRB at 808–809 (Member Jenkins, dissenting) (noting
that petitioner lost a 1960 election in a storewide unit
before filing petitions for separate units of selling, non-
selling, and restaurant employees sometime between
mid-1962 and 1964); see also Fraser Engineering, supra
at 681 (stipulation for larger unit in previous election
union lost does not invalidate appropriateness of smaller
unit subsequently sought) (citing Macy’s San Francisco,
120 NLRB 69, 71–72 (1958)).73 See generally Overnite
Transportation Co., 322 NLRB 723 (1996) and 325
NLRB 612 (1998) (finding of different units in the same
factual setting does not mean that the decision is based
on extent of organization); Specialty Healthcare, supra,
slip op. at 6 fn. 11 (“prior precedent holding a different
unit to be appropriate in a similar setting is not persua-
sive”).
We are not persuaded that applying Specialty
Healthcare to retail department stores, or finding the
petitioned-for unit appropriate, will, as the Employer and
for unit determinations in Specialty Healthcare is fully consistent with
these requirements, and we have, consistent with Sec. 9(b), applied the
Specialty Healthcare framework to the particular facts of this case.
See generally American Hospital Assn. v. NLRB, 499 U.S. 606, 610–
614 (1991) (“in each case” simply means that whenever parties disa-
gree over unit appropriateness, Board shall resolve the dispute, and
imposition of rule defining appropriate units in acute care hospitals
does not run afoul of “in each case” command so long as Board applies
the rule “in each case”). We also reject the dissent’s view that by ac-
cording the petitioned-for employees their fullest freedom to organize,
we have somehow denied the excluded employees (who have not
sought representation) their fullest freedom. The proper understanding
of the statutory language on which the dissent relies has been explained
in detail by the Board in Specialty Healthcare and by the U.S. Court of
Appeals for the Sixth Circuit in its decision enforcing the Board’s or-
der. See Specialty Healthcare, supra, slip op. at 8 and fn. 18; Kindred
Nursing Centers East, supra, 727 F.3d at 563–565. Those discussions
are reprinted in full in Member Hirozawa’s concurring opinion, with
which we agree.
73 May Department Stores Co. v. NLRB, 454 F.2d 148, 150 (9th Cir.
1972), cert denied 409 U.S. 888 (1972), cited by the Employer, in-
volved refusal-to-bargain charges. In the underlying representation
case (May Department Stores Co., 186 NLRB 86 (1970)), the Board
had approved a unit of warehouse employees, but three years earlier the
union had lost an election in a larger unit. 454 F.2d at 149–150. The
Ninth Circuit criticized the Board for failing to provide any explanation
for why both units were appropriate, rejected the Board’s “after-the-fact
attempts to explain the record,” and held that the Board had allowed the
extent of organization to control its decision. Id. at 150–151. Here, of
course, we have explained why this smaller unit is appropriate. Thus,
contrary to the Employer, there is no “compelling inference” that we
have allowed the extent of unionization to control our decision.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 30
amici predict, harm the retail industry through “destruc-
tive factionalization.” First, our only finding today is
that, based on the particular facts of this case, this peti-
tioned-for unit is appropriate. Whether any other subset
of selling employees at this store, or any other retail de-
partment store, constitutes an appropriate unit is a ques-
tion we need not and do not address.74 As always, such
determinations will depend on the individual circum-
stances of individual cases. Second, we find it signifi-
cant that this petitioned-for unit consists of 41 employ-
ees, more than one-third of all selling employees, and
nearly one-third of all employees, at the Saugus store.
This unit is also significantly larger than the median unit
size from 2001 to 2010, which was 23 to 26 employees.
See Specialty Healthcare, supra, slip op. at 10 fn. 23 (cit-
ing 76 Fed. Reg. 36821 (2011)). These statistics belie
amicus NRF’s description of the petitioned-for unit as a
“micro-union,” and refute the Employer’s and amici’s
assertion that finding this unit appropriate will result in
“dozens” of units within a single store. Third, neither the
Employer nor amici have offered any evidence in support
of their claims that finding the petitioned-for unit appro-
priate will result in administrative burdens, “competitive
bargaining,” destructive work stoppages, or reduced em-
ployee productivity, opportunity, and flexibility. All of
these arguments are pure speculation and many of them
rely on characterizations of the retail industry that are not
supported by the record here, such as frequent employee
interchange. Finally, we note that the Board has long
approved multiple units in a single department store,
apparently without the harmful effects forecast by the
Employer and amici. See, e.g., Stern’s, Paramus, supra
(approving separate units of selling, nonselling, and res-
taurant employees).
CONCLUSION
For the reasons explained above, we find that the cos-
metics and fragrances employees are a readily identifia-
ble group who share a community of interest among
themselves. We further find that the Employer has not
demonstrated that its other selling employees share an
overwhelming community of interest with the cosmetics
and fragrances employees. Under Specialty Healthcare,
the petitioned-for unit thus constitutes an appropriate unit
for bargaining. This result is consistent with Board prec-
edent concerning retail department stores.
74 We note, however, that many of the scenarios predicted by RILA-
RLC—such as units of “second floor designer men’s socks” or “third
floor TVs”—might well involve fractured units, which the Board has
always rejected.
ORDER
The Acting Regional Director’s Decision and Direc-
tion of Election is affirmed. This proceeding is remand-
ed to the Regional Director for appropriate action con-
sistent with the Decision and Order.

MEMBER HIROZAWA, concurring.
In this decision, the Board correctly applies the analyt-
ical framework set forth in Specialty Healthcare & Re-
habilitation Center, 357 NLRB 934 (2011), enfd. sub
nom. Kindred Nursing Centers East, LLC, v. NLRB, 727
F.3d 552 (6th Cir. 2013), to the question whether the
petitioned-for unit is appropriate. I concur in the Board’s
decision in all respects. I write separately to offer a brief
observation apropos of the dissent.
It might surprise a reader of the dissent to learn that the
provisions of the Act for unit determinations in represen-
tation cases are short and simple. The Act’s direction to
the Board concerning unit determinations for most em-
ployees covered by the Board’s jurisdiction, unchanged
since 1947, consists of a single sentence: “The Board
shall decide in each case whether, in order to assure to
employees the fullest freedom in exercising the rights
guaranteed by this Act, the unit appropriate for the pur-
poses of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof.”1 The in-
1 NLRA, § 9(b), 29 U.S.C. § 159(b). In 1947, Congress added to
Sec. 9(b) provisos applicable to professional employees, guards, and
craft units that include employees covered by a prior unit determina-
tion, along with a new subdivision, Sec. 9(c)(5), discussed below, limit-
ing the weight to be given to the extent of organization in making unit
determinations. These two subdivisions of section 9, reprinted here in
full, constitute the entirety of the Act’s provisions concerning unit
determinations:
(b) [Determination of bargaining unit by Board] The Board shall de-
cide in each case whether, in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this Act [subchapter],
the unit appropriate for the purposes of collective bargaining shall be
the employer unit, craft unit, plant unit, or subdivision thereof: Provid-
ed, That the Board shall not (1) decide that any unit is appropriate for
such purposes if such unit includes both professional employees and
employees who are not professional employees unless a majority of
such professional employees vote for inclusion in such unit; or (2) de-
cide that any craft unit is inappropriate for such purposes on the
ground that a different unit has been established by a prior Board de-
termination, unless a majority of the employees in the proposed craft
unit votes against separate representation or (3) decide that any unit is
appropriate for such purposes if it includes, together with other em-
ployees, any individual employed as a guard to enforce against em-
ployees and other persons rules to protect property of the employer or
to protect the safety of persons on the employer’s premises; but no la-
bor organization shall be certified as the representative of employees
in a bargaining unit of guards if such organization admits to member-
ship, or is affiliated directly or indirectly with an organization which
admits to membership, employees other than guards.

MACY’S, INC. 31
quiry mandated by this sentence, whether a proposed unit
is “appropriate for the purposes of collective bargaining,”
is aptly framed in the Board’s community-of-interest test,
applied in Specialty Healthcare and innumerable deci-
sions going back over 60 years, which essentially asks
whether the employees in the proposed unit have enough
in common for it to make sense for them to bargain to-
gether as a group. To the extent that the dissent’s objec-
tions are based on the text of the Act, they rely on the
requirement, contained in the Act’s directive sentence,
that the Board designate a unit that will “assure to em-
ployees the fullest freedom in exercising the rights guar-
anteed by this Act,” or on Section 9(c)(5). In both in-
stances, the dissent misconstrues the statutory language.
The Board’s decision does not address this language in
detail, appropriately since it has already been explicated
authoritatively in Specialty Healthcare and elsewhere
and is fully accounted for in the Specialty Healthcare
standard that the Board has applied in this decision. For
the convenience of the reader, the Board’s explanation
from Specialty Healthcare follows:

The Act . . . declares in Section 9(b) that “[t]he
Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercising
the rights guaranteed by this Act, the unit appropri-
ate for the purposes of collective bargaining shall be
the employer unit, craft unit, plant unit, or subdivi-
sion thereof.” The first and central right set forth in
Section 7 of the Act is employees’ “right to self-
organization.” As the Board has observed, “Section
9(b) of the Act directs the Board to make appropriate
unit determinations which will ‘assure to employees
the fullest freedom in exercising rights guaranteed
by this Act.’ i.e., the rights of self-organization and
collective bargaining.” Federal Electric Corp., 157
NLRB 1130, 1132 (1966).
The Board has historically honored this statutory
command by holding that the petitioner’s desire
concerning the unit “is always a relevant considera-
tion.” Marks Oxygen Co., 147 NLRB 228, 229
(1964). See also, e.g., Mc-Mor-Han Trucking Co.,
166 NLRB 700, 701 (1967) (reaffirming “polic[y] . .
. of recognizing the desires of petitioners as being a
relevant consideration in the making of unit deter-
minations”); E. H. Koester Bakery Co., 136 NLRB
1006, 1012 (1962). Section 9(c)(5) of the Act pro-
vides that “the extent to which the employees have
organized shall not be controlling.” But the Su-
(c)(5) In determining whether a unit is appropriate for the purposes
specified in subsection (b) the extent to which the employees have or-
ganized shall not be controlling.
preme Court has made clear that the extent of organ-
ization may be “consider[ed] . . . as one factor” in
determining if the proposed unit is an appropriate
unit. NLRB v. Metropolitan Life Insurance Co., 380
U.S. 438, 442 (1965). In Metropolitan Life, the
Court made clear that “Congress intended to over-
rule Board decisions where the unit determined
could only be supported on the basis of the extent of
organization.” Id. at 441 (emphasis added). In other
words, the Board cannot stop with the observation
that the petitioner proposed the unit, but must pro-
ceed to determine, based on additional grounds
(while still taking into account the petitioner’s pref-
erence), that the proposed unit is an appropriate unit.
Thus, both before and after the adoption of the
9(c)(5) language in 1947, the Supreme Court had
held, “[n]aturally the wishes of employees are a fac-
tor in a Board conclusion upon a unit.” Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 156 (1941).
We thus consider the employees’ wishes, as ex-
pressed in the petition, a factor, although not a de-
terminative factor here.2
2 357 NLRB 934, 941–942 (fn. omitted). In enforcing the Board’s
Specialty Healthcare decision, to which it referred as “Specialty
Healthcare II,” the United States Court of Appeals for the Sixth Circuit
further discussed Sec. 9(c)(5):
We now turn to [the employer]’s argument that Specialty
Healthcare II’s application of either the American Cyanamid
community-of-interest test, or of the overwhelming-community-
of interest test, violates section 9(c)(5) of the Act by making it
impossible for an employer to challenge the petitioned-for unit.
In section 9(c)(5), Congress provided a statutory limit on the
Board’s discretion to define collective-bargaining units. Section
9(c)(5) states that “the extent to which the employees have orga-
nized shall not be controlling” in determining whether a unit is
appropriate. 29 U.S.C. § 159(c)(5). The Supreme Court has in-
terpreted section 9(c)(5) as showing Congress’ intent to prevent
the Board from determining bargaining units based solely upon
the extent of organization, while at the same time allowing the
Board to consider “the extent of organization as one factor,
though not the controlling factor, in its unit determination.”
N.L.R.B. v. Metro. Life Ins. Co., 380 U.S. 438, 441–42, 85 S.Ct.
1061, 13 L.Ed.2d 951 (1965) (footnote omitted; emphasis added).
But courts have struggled with what Congress meant by this
provision; one court even famously commented that “[s]ection
9(c)(5), with its ambiguous word ‘controlling,’ contains a warning
to the Board almost too Delphic to be characterized as a stand-
ard.” Local 1325, Retail Clerks Int’l Ass’n, AFL–CIO v. N.L.R.B.,
414 F.2d 1194, 1199 (D.C.Cir.1969). Nevertheless, the court add-
ed, section 9(c)(5) “has generally been thought to mean that there
must be substantial factors, apart from the extent of union organi-
zation, which support the appropriateness of a unit, although ex-
tent of organization may be considered by the Board and, in a
close case, presumably may make the difference in the outcome.”
Id. at 1199–[1200].
Section 9(c)(5) appears to have been added to prevent the
Board from deciding cases like Botany Worsted Mills, 27 NLRB
687 (1940), in which the Board deemed a bargaining unit appro-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 32
priate without applying any kind of community-of-interest analy-
sis, but solely on the basis that the workers wanted to organize a
union. The Board at that time acted as a union partisan, encour-
aging organizing. In Botany Worsted Mills, the Board explained,
in the course of deeming that a bargaining unit of workers in two
job classifications (wool sorters and trappers) constituted an ap-
propriate bargaining unit, that “[w]herever possible, it is obvious-
ly desirable that, in a determination of the appropriate unit, [it]
render collective bargaining of the [c]ompany’s employees an
immediate possibility.” Botany Worsted Mills, 27 NLRB at 690.
The Board thus made clear that it based its determination that the
bargaining unit was appropriate on the mere fact that the employ-
ees wanted to engage in collective bargaining. The Board ob-
served that there was “no evidence that the majority of the other
employees of the [c]ompany belong[ed] to any union whatsoever;
nor has any other labor organization petitioned the Board for cer-
tification as representative of the [c]ompany’s employees on a
plant-wide basis.” Id. The Board said that “[c]onsequently, even
if, under other circumstances, the wool sorters or trappers would
not constitute the most effective bargaining unit, nevertheless, in
the existing circumstances, unless they are recognized as a sepa-
rate unit, there will be no collective bargaining agent whatsoever
for these workers.” Id. The Board concluded by stating that “in
view of the existing state of labor organization among the em-
ployees of the [c]ompany, in order to insure to the sorters or trap-
pers the full benefit of their right to self-organization and collec-
tive bargaining and otherwise to effectuate the policies of the
Act,” it found that the wool sorters or trappers of the company
“constituted an appropriate bargaining unit.” Id. [The employer]
characterizes Specialty Healthcare II‘s certification of a CNA-
only unit as “a throw-back to the discredited Botany Worsted
Mills analysis.”
But [the employer]’s argument misses the mark, because
here, in Specialty Healthcare II, the Board did not assume that the
CNA-only unit was appropriate. Instead, it applied the communi-
ty-of-interest test from American Cyanamid to find that there
were substantial factors establishing that the CNAs shared a
community of interest and therefore constituted an appropriate
unit—aside from the fact that the union had organized it. Indeed,
nowhere in its briefs, nor before the Board, did [the employer]
dispute that the CNAs shared a community of interest. Therefore,
the Board’s approach in Specialty Healthcare II did not violate
section 9(c)(5).
Nor does the overwhelming-community-of-interest test vio-
late section 9(c)(5). In this regard, we find persuasive the District
of Columbia Circuit’s analysis in Blue Man, which Specialty
Healthcare II relied upon and quoted as holding that “ ‘[a]s long
as the Board applies the overwhelming community of interest
standard only after the proposed unit has been shown to be prima
facie appropriate, the Board does not run afoul of the statutory in-
junction that the extent of the union’s organization not be given
controlling weight.’ ” Specialty Healthcare II, 357 NLRB No.
83, 2011 WL 3916077 at *20 n. 25 (quoting Blue Man, 529 F.3d
at 423) (emphasis added).
Here, in Specialty Healthcare II, the Board followed the Blue
Man approach, conducting its community-of-interest inquiry be-
fore requiring [the employer] to show that the other employees
shared an overwhelming community of interest with the CNAs. It
would appear, then, that Specialty Healthcare II does not violate
section 9(c)(5) of the Act.
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552, 563–565
(6th Cir. 2013).
The dissent regards with suspicion the approval of any
unit requested by a petitioner, discerning therein a dere-
liction of the Board’s imagined duty to find fault with
any grouping that a petitioner might choose, simply be-
cause the petitioner chose it. I take a different view. The
commands of the Act in this area are short and simple.
While they are general, and meant to be elaborated, the
Board ought to be able to do that in a manner simple
enough to permit a reasonably intelligent lay person to
identify a grouping of workers that makes sense for col-
lective bargaining. I believe Specialty Healthcare does
that by clearing away needlessly confusing variations in
the standard for answering a common question, and set-
tling on a formulation that is relatively easy to under-
stand and apply. If the result is that parties are better
able to predict which potential units will be found appro-
priate, and consequently more petitioned-for units are
approved, we should view that not as suspicious, but as a
success.

MEMBER MISCIMARRA, dissenting.
My colleagues find that a petitioned-for bargaining
unit limited to department-store salespeople who sell
cosmetics and fragrances, and excluding all other sales-
people in a Macy’s full-service department store, consti-
tutes an “appropriate” bargaining unit.1 I dissent be-
cause, in my view, the facts establish that such a bargain-
ing unit is not appropriate under any standard. More
generally, I believe this case illustrates the frailties asso-
ciated with the Specialty Healthcare2 standard regarding
what constitutes an appropriate bargaining unit. Accord-
ingly, for the reasons expressed below, I would refrain
from applying Specialty Healthcare in this or any other
case.
Unlike the majority, I believe the smallest “appropri-
ate” unit here consists of all salespeople in the Employ-
er’s Saugus, Massachusetts department store. In my
view, finding a combined cosmetics and fragrances unit
excluding all other salespeople (a “C&F unit”) to be an
appropriate unit has a triple infirmity: (a) such a unit
disregards wide-ranging similarities that exist among
sales employees generally throughout the store; (b) the
unit focuses on distinctions between C&F unit employ-
ees and other salespeople while disregarding the same
types of distinctions that exist between sales employees
who work within the C&F unit; and (c) the unit would be
irreconcilable with the structure of the work setting
where all salespeople are employed and would give rise
to unstable bargaining relationships. In my opinion, the
1 NLRA Sec. 9(a), 29 U.S.C. § 159(a).
2 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers
East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).

MACY’S, INC. 33
outcome here departs from the Board’s long-held retail
industry standards that ostensibly were left undisturbed
by Specialty Healthcare. More generally, as demonstrat-
ed by the majority’s application of Specialty Healthcare
in the instant case, I believe Specialty Healthcare affords
too much deference to the petitioned-for unit in deroga-
tion of the mandatory role that Congress requires the
Board to play “in each case” when making bargaining-
unit determinations.
FACTS
The Employer’s full-service, two-story department
store in Saugus, Massachusetts, is an extremely complex
operation. While broadly sharing many common work-
ing conditions throughout the store, there are also many
differences between and among salespeople in many
different departments, including substantial differences
between and among salespeople in the C&F unit. The
differences are driven by the wide variety of products,
customers, and types of information needed to address
customer needs and questions.
In 2011, the Petitioner Union and the Board took the
position that a bargaining unit consisting of all salespeo-
ple in the Saugus store was appropriate (there was a 2011
election among these employees, and the Union lost).3
There are 11 sales departments in the Saugus store,
collectively overseen by 7 sales managers who report to
a single store manager. The 11 sales departments consist
of (1) juniors, (2) ready-to-wear, (3) women’s shoes, (4)
handbags, (5) furniture (also known as big ticket), (6)
home (also referred to as housewares), (7) men’s cloth-
ing, (8) bridal, (9) fine jewelry, (10) fashion jewelry, and
(11) cosmetics and fragrances. The store has a total of
120 salespeople, of whom 41 work in the cosmetics and
fragrances department.4
A. Shared Working Conditions and Benefits
Common to all Salespeople
All salespeople at the store are subject to the same pol-
icies set forth in the same employee handbook, they par-
ticipate in the same benefit plans, they staff shifts that
occur during the same time periods, they use the same
employee entrance(s), they use the same timeclock sys-
tem, they share the same breakroom(s), and they are sub-
ject to the same in-store dispute resolution program.
3 The Union represents sales employees at other Macy’s stores in
Massachusetts. At the Belmont store, the Union represents a bargain-
ing unit consisting of all salespersons, although there are no cosmetics
employees at that store. At the Braintree, Natick, and Peabody stores,
the Union represents salespersons, except cosmetics sales employees
are excluded from the units.
4 Employees in the petitioned-for unit are primarily known as “beau-
ty advisors.”
All selling employees, including sales managers, at-
tend daily rallies typically conducted by Store Manager
Danielle McKay, the purpose of which is to motivate
employees and to inform them of the previous day’s
sales totals, special events, and any other pertinent news.
All salespersons throughout the store receive perfor-
mance evaluations under the same storewide evaluation
system, based on the same criteria (sales, customer feed-
back, and teamwork). Each department utilizes the same
“sales scorecard” to rate employees’ overall sales per-
formance. These scorecards measure four criteria: the
number of items sold per customer transaction, average
sale amount per customer transaction, overall sales per
hour, and the number of store credit cards opened. The
most heavily weighted criterion is actual sales (i.e., their
“sales scorecard” performance).5
Although non-C&F salespeople do not regularly work
in the cosmetics and fragrances department, and vice
versa, McKay testified that there are “opportunities” for
selling employees to “help out” in other departments.
More generally, the record reveals that the Employer
expects selling employees to assist all customers regard-
less of the customer’s needs, even if the customer’s re-
quest does not pertain to the particular employee’s as-
signed department.6 McKay testified that there are occa-
sions where C&F employees conduct inventory for non-
C&F departments.7
During the past 2 years, the Employer has permanently
transferred nine employees from other sales positions
into C&F sales positions, and one C&F employee (who
worked in cosmetics) was promoted to a supervisory
position in a different department.
B. Similarities and Differences Between and Among
C&F Employees
As my colleagues note, the Employer maintains a
cosmetics and fragrances “department,” but the record
also demonstrates that substantial dissimilarities in com-
5 The Employer’s 2012 performance reviews reveal that 70–80 per-
cent of an employee’s overall appraisal is based on their “sales score-
card.” Scorecard performance carries less weight (55 percent) for
counter managers, who account for only 9 of the 140 selling employ-
ees.
6 McKay further testified that all selling departments, including the
cosmetics and fragrances department, had rung up products from other
departments. McKay explained, however, that the Employer’s policy
provided that departments should ring up only their own products so
that the Employer could properly track sales for commission purposes.
7 For example, McKay explained that the Employer granted a beauty
counter employee’s request to perform inventory in a noncosmetics
area, and cosmetics beauty advisor Maria Francisco testified that, dur-
ing the past year, a manager in the jewelry department asked that a few
cosmetics employees assist with that department’s inventory.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 34
pensation and working conditions exist among and be-
tween these employees.
(a) Physical Locations. For starters, the C&F sales-
people work in the same store, but they are separated into
two different areas located on two different floors. Cos-
metics and women’s fragrances are located on the first
floor. Men’s fragrances are located on the second floor.
(b) Layout/Organization. The first floor cosmetics area
is divided into eight counters, each of which is dedicated
to selling products from a specific vendor. Cosmetics
“beauty advisors” work at specific counters and typically
only sell products associated with their assigned vendor.
Fragrances “beauty advisors” sell all products, regardless
of vendor. Seven of the cosmetics counters and the two
fragrance areas (women’s and men’s fragrances, respec-
tively) also have “counter managers” who, in addition to
selling, coach beauty advisors on service and selling
techniques. The Employer utilizes seven “on-call” em-
ployees who are assigned as needed to any of the cosmet-
ics counters or fragrance areas.
(c) Proximity to Different Salespeople/Departments.
The first-floor cosmetics and women’s fragrances area is
surrounded by several other departments: women’s and
juniors’ clothing, fine jewelry, and fine watches. The
second-floor men’s fragrances area is surrounded by the
men’s clothing department.
(d) Complex On-Site “Vendor” Relationships and
Training. Cosmetics “beauty advisors” have frequent
contact with two types of “vendor” representatives: ven-
dor account executives (who are employed by vendors)
and vendor account coordinators (who are employed by
the Employer). These vendor representatives provide in-
store and offsite training for beauty advisors assigned to
their brands. Training sessions cover product knowledge
and selling techniques, and may deal with topics such as
skin tones, skin types, use of color, and for fragrances,
ingredients, scents, and notes. Because each cosmetics
“beauty advisor” typically sells only one vendor’s prod-
ucts, the advisor has significant interaction with that
vendor’s representatives while other cosmetics “beauty
advisors” have significant interaction with others, creat-
ing further differences in working conditions within the
C&F unit.
(e) Hiring. Significantly, vendor account coordinators
and executives participate in hiring cosmetics beauty
advisors. They typically interview job candidates along
with the Employer. The Employer and these vendor rep-
resentatives then consult with each other to ensure that
mutually acceptable applicants are hired. There are also
vendor representatives associated with fragrances, but
the record suggests they do not visit the store as consist-
ently as cosmetics vendor representatives. Unlike the
hiring process applicable to “cosmetics” beauty advisors,
vendor representatives do not participate in the hiring of
“fragrances” beauty advisors or on-call employees. For
all beauty advisor applicants, however, prior experience
in selling relevant products is desirable, but not required.
(f) Attire. Several of the cosmetics vendors provide
distinctive uniforms for their beauty advisors. All other
beauty advisors adhere to the Employer’s storewide
“basic black” uniform policy.
(g) Compensation. Beauty advisors receive an hourly
wage, plus a 3 percent commission on all sales. “Cos-
metics” beauty advisors (but not “fragrances” beauty
advisors) receive a 2 percent commission when they sell
cosmetics outside of their assigned product line, which
happens on occasion. “Counter managers” also receive
an hourly wage, a 3 percent commission on their own
sales, and a .5 percent commission on all sales made at
their counter. “On-call” employees receive a 2 percent
commission regardless of what they sell. The Employer
negotiates with vendors to determine the exact mecha-
nism by which beauty advisors receive commissions.
The record does not reveal specific information about the
details of these arrangements, save that vendors generally
pay these commissions.
(h) Importance of Customer Relationships. Cosmetics
beauty advisors maintain lists of their regular customers,
which they use to track customer purchases and to call
customers to book appointments for makeovers, invite
them to try new products, or notify them of special pro-
motions or events. Fragrances beauty advisors also
maintain customer lists, which they utilize to invite cus-
tomers to new fragrance launches.
C. Comparable Similarities and Distinctions
Among Non-C&F Sales Employees
The remaining selling employees work in ten other de-
partments: women’s shoes, handbags, women’s cloth-
ing, men’s clothing and shoes, juniors, fine jewelry, fash-
ion jewelry, home, furniture, and bridal. The record re-
veals that these other sales employees (non-C&F sales-
people) have responsibilities, working conditions, hiring
procedures, and compensation arrangements that are
comparable and dissimilar in varying degrees, in line
with the similarities and distinctions that exist among
C&F sales employees.
(a) Physical location. The non-C&F salespeople are
located on the first or second floor of the Saugus store.
(b) Layout/Organization. The 10 non-C&F depart-
ments feature products made by a variety of vendors or
manufacturers, including both “vendor specific” and
“Macy’s private brand” products such as “Levi’s; INC.;
MACY’S, INC. 35
Buffalo; Polo; LaCoste; Guess shoes; [and] North Bay
shoes.”8 As noted above, the salespeople are managed
by at least six managers who, like the C&F department
manager, report to the single store manager; and also like
the C&F department manager, it appears that at least two
of the six other managers oversee more than one func-
tional area.9
(c) Proximity to Other Salespeople/Departments. Like
the C&F salespeople, the non-C&F sales employees
work in designated locations on the first and second
floors. As one would expect in any full-service depart-
ment store, the different sales areas are adjacent to one
another. The record reveals that four or five of the non-
C&F product areas are physically adjacent either to the
first floor cosmetics and women’s fragrances area or the
second floor men’s fragrances area.
(d) Complex On-Site “Vendor” Relationships and
Training. As the Regional Director found, “like cosmet-
ics employees,” selling employees in other departments
(referred to as specialists) are also assigned to sell a spe-
cific vendor’s products, which requires specialized famil-
iarity with that vendor’s product lines. These specialists
sell Guess shoes and men’s clothing, North Bay shoes,
and Polo men’s clothing. Levi’s, Lacoste, Buffalo, INC,
the North Face, Lenox, and Hilfiger also have specialists
at the Saugus store. As the Regional Director further
found, “like their colleagues in Cosmetics/Fragrances,”
selling employees in other departments also have contact
with vendor representatives. These representatives
monitor stock and conduct onsite and offsite training for
both specialists and nonspecialist employees who sell
their products. Selling employees also receive training
through product information sheets and conversations
with management. District Human Resources Director
Gina DiCarlo testified that the Employer and its many
vendors organize this training for “virtually . . . every
category of associates within our organization.” De-
partments also hold special seminars during the year
concerning product knowledge, selling techniques, and
other related topics.10
8 Employer Macy’s, Inc.’s Brief on Review, at 3 (citing Hearing
Transcript at 104–109).
9 A single manager is responsible for the juniors and fine jewelry
salespeople, and a single manager is responsible for women’s shoes and
handbags salespeople.
10 DiCarlo testified that the Employer and its vendors, during the
first 10 months of 2012, held 47 of these training seminars. And, much
like cosmetics beauty advisors are trained on skin types and fragrance
scents, selling employees who deal with dresses are trained on silhou-
ette, fabrics, and fit; selling employees in shoes are trained on fit, type,
fabric, and color; and fine jewelry employees are trained on clarity, cut,
color, and weight of gemstones. McKay testified that the Employer
regularly utilizes a storewide coaching program (My Product Activi-
(e) Hiring. Like cosmetics vendors, multiple non-C&F
vendors are involved in hiring the sales specialists as-
signed to their particular products. Store Manager
McKay testified that the Employer and these vendors
jointly interview applicants to ensure that they hire the
best specialists. Again, prior experience in selling a giv-
en department’s products is desirable, but not required.
(f) Attire. As noted above, the Employer maintains a
storewide “basic black” uniform policy, and there were
no other required uniforms for C&F or non-C&F em-
ployees, with the exception of some (but not all) cosmet-
ics salespeople who were required, by certain vendors, to
wear a vendor-specific uniform.
(g) Compensation. Selling employees outside the
cosmetics and fragrances department also receive sales-
based incentives. Selling employees in fine jewelry,
men’s clothing and shoes, furniture, and bridal receive
commissions. Specialists selling products for Levi’s,
Guess, Buffalo, and Polo receive bonuses from their as-
signed vendors. The record does not reveal the precise
details of these arrangements.
(h) Importance of Customer Relationships. Non-C&F
salespeople also maintained customer lists. McKay testi-
fied that the Employer has developed a program called
“My Client” to facilitate such lists because they have
“become much more of a focus to the company.” Selling
employees in fine jewelry, men’s clothing, big ticket,11
and bridal have already utilized these lists to invite cus-
tomers to special events.12
Analysis
The starting point for evaluating the Board’s role in
bargaining-unit determinations is the Act itself. Here,
three points are clear from the statute and its legislative
history.
First, Section 9(a) provides that employees have a right
to representation by a labor organization “designated or
selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such
purposes.”13 Thus, questions about unit appropriateness
ties) to ensure that all selling employees maintain the highest level of
product knowledge and sales techniques.
11 The record reveals that big ticket items are sold in the furniture
department.
12 My colleagues state that the Employer has no “imminent plan to
use client lists in the remaining primary sales departments,” but
McKay’s testimony suggests otherwise. McKay testified that it was
important to have client lists “throughout the store” (emphasis added).
13 29 U.S.C. § 159(a) (emphasis added). The Supreme Court has in-
dicated that Section 9(a) “suggests that employees may seek to organize
‘a unit’ that is ‘appropriate’—not necessarily the single most appropri-
ate unit.” American Hospital Assn. v. NLRB, 499 U.S. 606, 610 (1991)
(emphasis in original; citations omitted). See also Serramonte Oldsmo-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36
are to be resolved by reference to the “purposes” of rep-
resentation, should a unit majority so choose—namely,
“collective bargaining.”
Second, Congress contemplated that whenever unit
appropriateness is questioned, the Board would conduct a
meaningful evaluation. Section 9(b) states: “The Board
shall decide in each case whether, in order to assure to
employees the fullest freedom in exercising the rights
guaranteed by this Act, the unit appropriate for the pur-
poses of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof.”14 Referring
to the “natural reading” of the phrase “in each case,” the
Supreme Court has stated that

whenever there is a disagreement about the appropri-
ateness of a unit, the Board shall resolve the dispute.
Under this reading, the words “in each case” are syn-
onymous with “whenever necessary” or “in any case in
which there is a dispute.” Congress chose not to enact a
general rule that would require plant unions, craft un-
ions, or industry-wide unions for every employer in
every line of commerce, but also chose not to leave the
decision up to employees or employers alone. Instead,
the decision “in each case” in which a dispute arises is
to be made by the Board.15

Third, the language in Section 9(b) resulted from in-
tentional legislative choices made by Congress over time.
Regarding unit determinations, earliest versions of the
Wagner Act legislation, introduced in 1934, did not con-
tain the phrase “in each case,” nor did they state that the
Board must “assure to employees the fullest freedom in
exercising the rights guaranteed by this Act.” The initial
wording simply stated: “The Board shall determine
whether eligibility to participate in elections shall be de-
termined on the basis of the employer unit, craft unit,
plant unit, or other appropriate grouping.”16
When reintroduced in 1935, the legislation added a
statement that unit determinations were “to effectuate the
policies of this Act.”17 When reported out of the Senate
bile, Inc. v. NLRB, 86 F.3d 227, 236 (D.C. Cir. 1996) (the NLRB “need
only select an appropriate unit, not the most appropriate unit”).
14 29 U.S.C. § 159(b) (emphasis added).
15 American Hospital Assn. v. NLRB, 499 U.S. at 611 (emphasis
added). See also id. at 614 (Section 9(b) requires “that the Board de-
cide the appropriate unit in every case in which there is a dispute”).
16 See, e.g., S. 2926, 73d Cong. § 207 (1934), reprinted in 1 NLRB,
Legislative History of the National Labor Relations Act, 1935 (herein-
after “NLRA Hist.”) 11 (1949). See also S. 2926, 73d Cong. § 10(a)
(1934), reprinted in 1 NLRA Hist. 1095 (“The Board shall decide
whether eligibility to participate in a choice of representatives shall be
determined on the basis of employer unit, craft unit, plant unit, or other
appropriate unit.”).
17 See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 1 NLRA Hist.
1300 (“The Board shall decide whether, in order to effectuate the poli-
Labor Committee, the legislation stated that the Board
“shall decide in each case” the appropriateness of the
unit.18 Regarding this language, a House report stated:

Section 9(b) provides that the Board shall determine
whether, in order to effectuate the policy of the bill . . . ,
the unit appropriate for the purposes of collective bar-
gaining shall be the craft unit, plant unit, employer unit,
or other unit. This matter is obviously one for determi-
nation in each individual case, and the only possible
workable arrangement is to authorize the impartial
governmental agency, the Board, to make that determi-
nation.19

Section 9(b) in the final enacted version of the Wagner Act
stated that the Board’s unit determinations “in each case”
were “to insure to employees the full benefit of their right to
self-organization, and to collective bargaining, and other-
wise to effectuate the policies of this Act.”20
In 1947, as part of the Labor Management Relations
Act,21 Congress devoted more attention to the Board’s
unit determinations. The LMRA amended Section 7 so
that, in addition to protecting the right of employees to
engage in protected activities, the Act protected “the
cies of this Act, the unit appropriate for the purposes of collective bar-
gaining shall be the employer unit, craft unit, plant unit, or other unit.”).
18 See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist.
2291 (emphasis added). The full provision stated: “The Board shall
decide in each case whether, in order to effectuate the policies of this
Act, the unit appropriate for the purposes of collective bargaining shall
be the employer unit, craft unit, plant unit, or other unit.” Id. See also
H.R. 7937, 74th Cong. § 9(b), reprinted in 2 NLRA Hist. 2850 (same);
H.R. 7978, 74th Cong. § 9(b), reprinted in 2 NLRA Hist. 2862 (same).
The Senate report accompanying S. 1958 explained: “Obviously, there
can be no choice of representatives and no bargaining unless units for
such purposes are first determined. And employees themselves cannot
choose these units, because the units must be determined before it can
be known what employees are eligible to participate in a choice of any
kind.” S. Rep. 74–573, at 14 (1935), reprinted in 2 NLRA Hist. 2313
(emphasis added). The language remained unchanged when adopted by
the Senate. See S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2
NLRA Hist. 2891 (version of S. 1958 passed by the Senate and referred
to the House Committee of Labor). The same language was contained
in H.R. 7978, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist.
2903 (version of Wagner Act legislation reported by the House Com-
mittee on Education and Labor).
19 H.R. Rep. 74–969, at 20 (1935), reprinted in 2 NLRA Hist. 2930
(emphasis added).
20 S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist.
3039 (emphasis added) (Senate-passed bill reported by the House
Committee on Education and Labor). The same language was con-
tained in the version adopted by the House, see S. 1958, 74th Cong. §
9(b) (1935), reprinted in 2 NLRA Hist. 3244, in the version adopted by
the Conference Committee, see H.R. Rep. 74–1371, at 2, reprinted in 2
NLRA Hist. 3253–3254, and in the version that was enacted. See 49
Stat. 449, S. 1958, 74th Cong. § 9(b) (1935), reprinted in 2 NLRA Hist.
3274.
21 Labor Management Relations Act (Taft-Hartley Act or LMRA),
61 Stat. 136 (1947), 29 U.S.C. §§ 141 et seq.

MACY’S, INC. 37
right to refrain from any or all of such activities.”22 The
LMRA added Section 9(c)(5) to the Act, which states:
“In determining whether a unit is appropriate . . . the ex-
tent to which the employees have organized shall not be
controlling.”23 A House report—though recognizing the
Board had “wide discretion in setting up bargaining
units”—explained that this language

strikes at a practice of the Board by which it has set up
as units appropriate for bargaining whatever group or
groups the petitioning union has organized at the time.
Sometimes, but not always, the Board pretends to find
reasons other than the extent to which the employees
have organized as ground for holding such units to be
appropriate. . . . While the Board may take into consid-
eration the extent to which employees have organized,
this evidence should have little weight, and . . . is not to
be controlling.24

Finally, the LMRA also amended Section 9(b) to state—as
it presently does—that the Board shall make bargaining-unit
decisions “in each case” in “order to assure to employees
the fullest freedom in exercising the rights guaranteed by
[the] Act.”25
This legislative history demonstrates that Congress in-
tended that the Board’s review of unit appropriateness
would not be perfunctory. In the language quoted above,
Section 9(b) mandates that the Board determine what
constitutes an appropriate unit “in each case,” with the
additional mandate that the Board only approve a unit
configuration that “assures” employees their “fullest
freedom” in exercising protected rights. Although more
than one “appropriate” unit might exist, the statutory
language plainly requires that the Board “in each case”
consider multiple potential configurations—i.e., a possi-
ble “employer unit,” “craft unit,” “plant unit” or “subdi-
vision thereof.”
22 NLRA Sec. 7, 29 U.S.C. § 157 (emphasis added). See also H.R.
Rep. 80–245, at 27 (1947), reprinted in 1 NLRB, Legislative History of
the Labor Management Relations Act, 1947 (hereinafter LMRA Hist.)
318 (1948) (“A committee amendment assures that when the law states
that employees are to have the rights guaranteed in section 7, the Board
will be prevented from compelling employees to exercise such rights
against their will . . . . In other words, when Congress grants to em-
ployees the right to engage in specified activities, it also means to grant
them the right to refrain from engaging therein if they do not wish to do
so.”).
23 29 U.S.C. § 159(c)(5).
24 H.R. Rep. 80–245, at 37 (1947), reprinted in 1 LMRA Hist. 328
(emphasis added), citing Matter of New England Spun Silk Co., 11
NLRB 852 (1939); Matter of Botany Worsted Mills, 27 NLRB 687
(1940).
25 29 U.S.C. § 159(b) (emphasis added). See, e.g., S. 1126, 80th
Cong. § 9(b), reprinted in 1 LMRA Hist. 117; H.R. 3020, 80th Cong. §
9(b), reprinted in 1 LMRA Hist. 244–245.
It is also well established that the Board may not certi-
fy petitioned-for units that are “arbitrary” or “irration-
al”—for example, where integration and similarities be-
tween two employee groups “are such that neither group
can be said to have any separate community of interest
justifying a separate bargaining unit.”26 However, it ap-
pears clear that Congress did not intend that the peti-
tioned-for unit would be controlling in all but a few ex-
traordinary circumstances when contrary evidence is
overwhelming, nor did Congress anticipate that every
petitioned-for unit would be accepted unless it is “arbi-
trary” or “irrational.” Congress placed a much higher
burden on the Board “in each case,” which was to deter-
mine whether and which unit configuration(s) satisfy the
requirement of assuring employees their “fullest free-
dom” in exercising protected rights.
A. The C&F Salespeople are not Sufficiently Distinct
from Non-C&F Sales Employees
to be an Appropriate Unit
The record uniformly establishes two things that, in
my view, preclude an “appropriate” unit determination
other than one consisting of all salespeople storewide.
First, the evidence shows that salespeople across all de-
partments have multiple important interests in common
(including the Employer’s rules and policies as reflected
in the employee handbook, the same evaluation system,
the same or similar compensation arrangements, partici-
pation in the same daily rallies regarding storewide sales
issues, and—most important—the overriding responsibil-
ity to sell assigned products and create an environment
encouraging customers to purchase products throughout
the store). Second, to the extent there are dissimilarities
between the working conditions of sales employees in a
combined cosmetics and fragrances group and those of
sales employees outside cosmetics and fragrances, these
same dissimilarities exist between and among the sales-
people within the combined cosmetics/fragrances group.
In short, as the Board has held in numerous other retail
cases (see part B below), the record demonstrates here
that a unit other than all salespeople storewide is not
“appropriate” for purposes of the Act.
A bargaining-unit analysis in any retail setting must re-
late to the nature of the business. In Allied Stores of New
York, Inc.,27 the Board recognized the importance of a
retail employer’s overriding business objective—
26 Trident Seafoods, Inc. v. NLRB, 101 F.3d 111, 120 (D.C. Cir.
1996). See generally Kindred Nursing Centers East, LLC v. NLRB, 727
F.3d 552, 558–559 (6th Cir. 2013); Mitchellace, Inc. v. NLRB., 90 F.3d
1150, 1157 (6th Cir. 1996); Bry–Fern Care Ctr., Inc. v. NLRB, 21 F.3d
706, 709 (6th Cir. 1994); NLRB. v. Hardy-Herpolsheimer, 453 F.2d
877, 878 (6th Cir. 1972).
27 150 NLRB 799 (1965).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 38
selling—when evaluating what constitutes an “appropri-
ate” bargaining unit in a retail setting. The Board stated:
“We perceive a great difference between a retail store,
like the Employer, that employs salespeople to serve the
public and one where the public serves itself without the
aid of sales personnel.”28 The Board rejected the em-
ployer’s argument for a combined unit of selling and
nonselling employees and reasoned:

The Employer’s argument . . . minimizes the signifi-
cance of the Employer’s main venture—to sell—and
the salespeople whose ability to sell plays a large part
in the success of its business. Certainly the obvious job
qualifications of the competent salesperson—pleasing
personality, poise, self-confidence, ease in dealing with
strangers, imagination, ability to speak well, and to per-
suade—are not demanded of nonselling personnel. The
latter’s work is largely manual in bringing merchandise
in and out of the store, does not involve meeting the
public, knowing desirable features and construction of
merchandise, and showing initiative in marketing a
product. Failure to appreciate the difference between a
salesperson’s job and that of other store employees is to
disregard the obvious.29

Allied Stores was decided more than 50 years ago,
which was long before bricks-and-mortar retail stores
faced anything resembling modern-day competitive pres-
sures resulting from Internet sales, global price competi-
tion, and smartphone price-matching. In the present day,
these competitive challenges confront retail employers
and their sales employees alike, and these challenges
constitute an overriding common concern that should
render inappropriate any bargaining unit consisting of
less than a storewide selling unit, especially where the
record does not contain compelling evidence of distinc-
tions unique to a particular subset of retail store sales-
people.30
The specific facts here reveal that all selling employ-
ees share significant common interests and working con-
ditions. If the following matters involved differences,
there is no doubt that they would be emphasized and dis-
cussed prominently in any discussion of the “appropri-
ate” unit (i.e., as evidence that a discrete subset of em-
28 Id. at 804.
29 Id. (emphasis added).
30 The instant case does not present any issue regarding the appropri-
ateness of a single-store retail salesperson unit in comparison to a mul-
tistore, regional or nationwide salesperson units, and I do not express
any view regarding issues that may be relevant in these other contexts.
Likewise, because I would find that the petitioned-for unit is not appro-
priate, I do not reach the Employer’s alternative argument regarding the
appropriateness of a unit consisting of all selling and nonselling em-
ployees. See, e.g., Sears, Roebuck & Co., 184 NLRB 343, 346 (1970).
ployees, rather than a storewide unit, should be deemed
appropriate). The significance of these factors is not
diminished merely because they undermine rather than
support the petitioned-for unit:

• Within and outside the C&F area, some salespeo-
ple participated in a hiring process that involved
outside vendors, and other salespeople were hired
without input from outside vendors.
• All salespeople across the store—within and out-
side the C&F area—are covered by the same poli-
cies expressed in the same employee handbook.
• All salespeople storewide participate in the same
benefits plans that are administered by the same
human resources representatives and plan adminis-
trators.
• All salespeople storewide receive the same types
of performance evaluations, based on the same cri-
teria, and the same “sales scorecard” is used for
rating purposes.31
• All salespeople storewide are subject to the same
in-store dispute resolution procedure.
• All salespeople share other important matters as-
sociated with their day-to-day existence at work,
including the time periods they work, the
timeclock system, the breakroom(s), and participa-
tion in the same “daily” rallies regarding sales-
related totals and special events.

The nature of the employer’s business leaves no doubt
why all salespeople storewide have so many of these
things in common: these shared working conditions are
consistent with the Employer’s singular focus, which is
to ensure that all salespeople—working separately and in
coordination with one another—can maximize sales
across the store. To the extent there are distinctions be-
tween a combined C&F salespeople unit and the non-
C&F salespeople who work at the same store, (i) such
distinctions also exist between and among the C&F
salespeople, and (ii) any distinctions pale in comparison
to the interests that all salespeople storewide have in
common.
As noted previously, C&F and non-C&F selling em-
ployees perform the same basic job function of selling
31 This weakens the Petitioner’s request to represent just C&F em-
ployees. See Wheeling Island Gaming, 355 NLRB 637, 642 (2010)
(poker dealers not distinguishable from other table game dealers where
they were “evaluated using the same performance appraisal”); TDK
Ferrites Corp., 342 NLRB 1006, 1009 (2004) (petitioned-for unit inap-
propriate where the employer evaluated the performance of included
and excluded employees “based on the same factors”).

MACY’S, INC. 39
merchandise to customers, without a requirement that the
salespeople have specific selling experience before work-
ing for the Employer. Within and outside the C&F
group, many salespeople are assigned to sell particular
vendor brands, and other salespeople sell multiple vendor
brands. Salespeople across the store must have special-
ized, technical knowledge about the products they sell.
Regarding compensation, the record reveals that C&F
salespeople have a variety of commission arrangements,
salespeople in at least 4 of the remaining 10 departments
(fine jewelry, men’s clothing and shoes, furniture, and
bridal) also receive commissions, and sales-related bo-
nuses are provided to non-C&F salespeople employed to
sell four major brands (Levi’s, Guess, Buffalo, and Po-
lo). Although C&F and non-C&F salespeople do not all
receive the same commission rates, the Board has held
that differences in commissions and related pay incen-
tives are insufficient to render inappropriate a bargaining
unit that is otherwise appropriate.32 The important over-
riding factor here is that salespeople across the store—
not just C&F salespeople—receive sales-based incentive
pay that significantly supplements their base wages.33
The record further reveals that salespeople within and
outside the C&F department participate in training and
other storewide programs designed to maximize sales,
and have significant interaction with the many vendors
that sell products in the store. This shared emphasis on
training reinforces the appropriateness of a unit of all
salespersons storewide rather than the petitioned-for sub-
set of salespersons. See Boeing Co., 337 NLRB 152, 153
(2001) (petitioned-for unit deemed inappropriate where,
among other things, included and excluded employees
shared “similarity in training” and attended the same
employer-provided classes). There is also evidence of
integration and interaction among salespeople within and
outside the C&F group. Most important, salespeople
across the store develop customer relationships and
maintain customer lists—undoubtedly involving many of
the same customers—to maximize sales.
The facts also reveal that the Union and the Board—at
this same store—have deemed a storewide salesperson
unit appropriate. In Allied Stores of New York, Inc.,34 the
32 See, e.g., Wheeling Island Gaming, 355 NLRB at 642 (“fact that
poker dealers keep individual tips and the other table games dealers
share tips appear to be a minor difference”); Hotel Services Group, 328
NLRB 116, 117 (1999) (petitioned-for unit of salon’s massage thera-
pists did not possess a separate community of interest because, among
other things, they had “similar” compensation as other salon employees
despite differences in commission and gratuity rates).
33 See Coca-Cola Bottling Co., 229 NLRB 553, 554–555 (1977)
(unit limited to certain salesmen deemed inappropriate where all sales-
men were paid on “a salary-plus-commission basis”).
34 150 NLRB at 804.
Board supported its unit determination in part by evaluat-
ing the “pattern of organizing” in the retail industry. The
Petitioner Union in the instant case itself previously at-
tempted (unsuccessfully) to organize a storewide sales-
person unit that the Board deemed appropriate, and the
same Union represents employees in other storewide or
multidepartment salesperson units. This pattern, though
not controlling, “demonstrates the understanding” of the
Union and the Employer that “singular differences” have
not been relied upon in the past in favor of a unit limited
to a narrow subset of selling employees who share broad
commonalities with sales colleagues storewide.
In the instant case, the record compels a conclusion
that the petitioned-for subset of C&F salespeople is inap-
propriate because the unit would arbitrarily include some
salespeople and exclude others, when the included and
excluded are all engaged in selling merchandise to the
same customers in a full-service department store. This
conclusion is reinforced by the fact that all salespeople,
throughout the store, are covered by the same or similar
hiring procedures, the same handbook and policies, the
same dispute resolution procedure, the same performance
evaluation criteria and tools, and similar commission
arrangements (with pay differences that exist both within
and outside the petitioned-for unit). In these respects, the
Employer’s operation resembles that of the employer in
Wheeling Island Gaming,35 where a petitioned-for group
consisting of poker dealers was deemed inappropriate
because excluded employees (other table game dealers)
were “integral elements of the Employer’s business of
operating a casino.”36 Here, as in Trident Seafoods, Inc.
v. NLRB,37 the integration and similarities between C&F
and non-C&F salespeople “are such that neither group
can be said to have any separate community of interest
justifying a separate bargaining unit.”38
35 355 NLRB at 642. Specialty Healthcare explicitly reaffirmed
Wheeling Island Gaming. See 357 NLRB 934, 946 fn. 32.
36 355 NLRB at 642. See also Allied Stores, 150 NLRB at 804 (sell-
ing employees’ ability to sell, an employer’s “main venture,” “plays a
large part in the success of its business”).
37 101 F.3d at 111.
38 Id. at 120 (emphasis added). Two considerations emphasized by
my colleagues—the fact that the C&F salespeople comprise a single
“department” presided over by a single supervisor—do not in my view
adequately support a C&F-only unit. The complexity of the Employ-
er’s store clearly requires some delineation of particular product areas,
and department stores traditionally delineate those areas by depart-
ments; but the considerations that directly bear on unit “appropriate-
ness” are those that directly affect employees, and as noted in the text at
length, (i) broad commonalities in terms and conditions of employment
among all selling employees storewide favor a storewide salespersons
unit, and (ii) to the extent that differences exist between C&F salespeo-
ple and those in other “departments,” the same types of differences
exist between and among salespeople working within the combined
C&F unit. For similar reasons, although common immediate supervi-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40
For these reasons alone, even if Specialty Healthcare
were applied, I would find that C&F employees do not
constitute an appropriate unit. Using the language of
Specialty Healthcare, the record establishes that the ex-
cluded non-C&F salespeople share an “overwhelming”
community of interests with the C&F salespeople em-
ployed in the petitioned-for unit.39 I would find that the
smallest appropriate unit in the instant case must include
all salespeople at the Employer’s store.40
B. A Unit Limited to C&F Salespeople Contradicts
Longstanding Board Standards Regarding
the Retail Industry
In Specialty Healthcare, the Board dealt with the ap-
propriateness of a particular bargaining unit in a
nonacute healthcare setting. However, the Board
acknowledged the existence of “various” presumptions
and rules governing other industries, and it expressly
stated that Specialty Healthcare was “not intended to
disturb” those standards.41
Some of these standards, which reflect the develop-
ment of Board law over many decades, relate specifically
sion is relevant to the appropriate-unit determination, it is only one
factor, and it is outweighed here by the common working conditions
that cut across departmental lines, as well as the fact that Store Manag-
er McKay exercises control over and oversees all salespeople across the
store, both directly (through the daily rallies) and indirectly (through
her oversight of the store’s sales managers, who report to McKay). See
Hotel Services, 328 NLRB at 117 (multiple supervisors does “not nec-
essarily mandate excluding differently supervised employees” from a
unit); Haag Drug Co., 169 NLRB 877, 877–888 (1968) (“the commu-
nity of interest of the employees in a single store takes on significance”
when the store is “under the immediate supervision of a local store
manager”). Moreover, counter managers oversee the work of discrete
groups of employees within the C&F group, and there are other signifi-
cant differences in working conditions between and among C&F em-
ployees, as detailed above.
39 Specialty Healthcare, 357 NLRB 934, 945–946.
40 My colleagues cite a single case—Sears, Roebuck & Co., 261
NLRB 245 (1982)—for the proposition that the Board has found a
subset of salespeople within a department store to be an appropriate
unit. However, Sears is plainly distinguishable because the unit there
was limited to auto center employees who were physically separated
from other retail departments (the repair shop was separated from the
main store by a wall), they had different working hours and vacation
schedules, and they were only encouraged to attend monthly storewide
meetings. Id. at 246–247. The Board noted that interaction between
auto center salespeople and other salespeople was isolated to “rare
situations,” which reflected the “absence of any close relationship”
between the two groups of employees. Id. at 247. Most importantly,
the Board in Sears emphasized that the petitioned-for unit centered
around “a nucleus of craft employees (the mechanics) around whom the
other auto center employees are organized,” and only 7 people in the
33-employee unit were “sales employees.” Id. at 245. Therefore, Sears
involved a traditional “craft” exception to the retail industry presump-
tion of a storewide bargaining unit, and a majority of the unit employ-
ees were not even salespeople. These considerations are completely
absent in the instant case.
41 Specialty Healthcare, supra at 946 fn. 29.
to the retail industry. Specifically, the Board has held
that “storewide” bargaining units are presumptively ap-
propriate in the retail industry.42
There are substantial reasons for the Board’s presump-
tion in so many cases that storewide retail units are ap-
propriate. In Haag Drug Co.,43 the Board explained:

The employees in a single retail outlet form a homoge-
neous, identifiable, and distinct group, physically sepa-
rated from the employees in the other outlets of the
chain; they generally perform related functions under
immediate supervision apart from employees at other
locations; and their work functions, though parallel to,
are nonetheless separate from, the functions of employ-
ees in the other outlets, and thus their problems and
grievances are peculiarly their own and not necessarily
shared with employees in the other outlets.

The presumed appropriateness of a storewide unit can be
especially clear where, as in the instant case, “a local store
manager . . . is involved in rating employee performance, or
in performing a significant portion of the hiring and firing of
the employees, and is personally involved with the daily
matters which make up their grievances and routine prob-
lems.”44 The Board elaborated in Haag Drug: “It is in this
framework that the community of interest of the employees
in a single store takes on significance.”45 See also Allied
Stores of New York, 150 NLRB at 804 (Board finds store-
wide unit of retail sales employees appropriate based on
“pattern of organiz[ing]” and given the “great difference
between a retail store . . . that employs salespeople to serve
the public and one where the public serves itself without the
aid of sales personnel”).
The Board’s cases regarding unit appropriateness in
the retail industry involve a number of issues that have
been handled in a consistent manner.
First, as noted previously, the Board has indicated that
unique characteristics shared by sales employees have
warranted findings that storewide sales employee bar-
42 See May Department Stores Co., 97 NLRB 1007, 1008 (1952)
(“storewide unit” called “the optimum unit for the purposes of collec-
tive bargaining”); I. Magnin & Co., 119 NLRB 642, 643 (1957) (the
Board regards storewide unit “as a basically appropriate unit in the
retail industry”); Sears, Roebuck & Co., 184 NLRB at 346 (calling a
storewide unit “presumptively appropriate”).
43 169 NLRB at 877–878 (1968) (emphasis added).
44 Id. at 878.
45 Id. (emphasis added). Although cases such as Haag Drug arose in
the context of evaluating whether a storewide unit was appropriate,
rather than a multistore unit, these cases remain relevant in the instant
case because they recognize that employees in a storewide unit are
likely to share a community of interests that renders such a unit pre-
sumptively appropriate. See also Dixie Belle Mills, Inc., 139 NLRB
629, 631 (1962).

MACY’S, INC. 41
gaining units are appropriate.46 In I. Magnin,47 the Board
found that a union was not justified in seeking to repre-
sent a unit limited to a retail clothing store’s shoe sales-
men.48 Like all the store’s salespeople, the shoe sales-
men were hired through the same personnel department,
worked the same number of hours, enjoyed the same
benefits, and shared the same general sales skills. The
Board found that the shoe salesmen were not craft or
professional employees and thus were not “sufficiently
different” from other selling employees to warrant their
segregation in a separate unit. Likewise, in Kushins &
Papagallo,49 the Board held that a petitioned-for unit was
not appropriate where it was limited to one division of
sales employees in a multidepartment retail store that
sold shoes, dresses, and accessories.50
Second, the Board has found less-than-storewide retail
units of “craft or professional employees” to be appropri-
ate.51
46 See, e.g., Allied Stores of New York, Inc., 150 NLRB at 804. See
also Wickes Furniture, 231 NLRB 154, 154–155 (1977) (“selling em-
ployees have a sufficiently distinct community interest apart from other
[nonselling] store employees . . . [t]hey are under separate immediate
supervision, spend the large majority of their time on the selling floor
initiating virtually all sales, alone receive commissions for their sales,
and have minimal contacts with warehouse employees”); Sears, Roe-
buck & Co., 174 NLRB 941, 941–942 (1969) (because “display de-
partment employees, receivers, shippers, stockmen, unit control em-
ployees, auditing department, and credit department employees . . . do
no selling . . . we shall exclude them from the unit” of petitioned-for
salesmen).
47 119 NLRB at 642.
48 Id. at 643.
49 199 NLRB 631, 631 (1972).
50 The Board has also been unwilling to separate selling employees
into separate bargaining units in other industries where the employer’s
primary goal is to sell its products. See, e.g., Coca-Cola Bottling Co.,
229 NLRB at 553–555 (separate unit comprised of a subset of an em-
ployer’s soft drink and vending machine product salesmen inappropri-
ate; all sales employees had the same duty “to sell and/or deliver the
Employer’s products”); Larry Faul Oldsmobile Co., Inc., 262 NLRB
370, 371 (1982) (finance and insurance salespersons should be included
in a petitioned-for unit of automobile salespersons because both groups
of employees were “primarily engaged in selling”); Liberty Mutual
Insurance Co., 185 NLRB 734, 735 (1970) (personal and business
insurance salesmen belonged in a single unit).
51 I. Magnin, 119 NLRB at 643. See, e.g., Goldblatt Bros., Inc., 86
NLRB 914, 915–916 (1949) (window and interior display personnel
warranted a separate unit; they exercised artistic ability, used special-
ized tools, and completed a 2-year training program before beginning
work); May Department Stores Co., 97 NLRB at 1008–1009 (hair
stylists, beauticians, and manicurists constituted an appropriate, sepa-
rate unit; they completed training, obtained licenses, and had special-
ized knowledge); Foremen & Clark, Inc., 97 NLRB 1080, 1081–1082
(1952) (tailor shop employees warranted a separate unit; they “engaged
in manual work, much of it highly skilled, which is easily differentiated
from the duties of selling personnel”); J. L. Hudson Co., 103 NLRB
1378, 1380–1383 (1953) (carpet and upholstery installers warranted
separate units because they composed functional groups “possessing
The Supreme Court has indicated that the Board’s bar-
gaining-unit determinations can appropriately “be guided
not simply by the basic policy of the Act but also by the
rules that the Board develops to circumscribe and to
guide its discretion . . . in the process of case-by-case
adjudication,” and “the Board has created many such
rules in the half-century during which it has adjudicated
bargaining unit disputes.”52 In the circumstances pre-
sented here, a bargaining unit limited to C&F salespeople
is not only inappropriate given the facts of this case, such
a unit is contrary to standards developed and recognized
by the Board in numerous other retail industry cases.
These retail industry standards have been applied con-
sistently and exist for good reasons.53 Like the rules
developed by the Board for other industries, our retail
industry standards should “circumscribe” and “guide”
our resolution of the instant case.
C. Specialty Healthcare
As noted above, a wide array of undisputed facts ren-
ders inappropriate a bargaining unit limited to C&F em-
ployees. My colleagues, like the Acting Regional Direc-
tor, reach a contrary conclusion based on the Board’s
decision in Specialty Healthcare.54 In most cases, under
Specialty Healthcare, the petitioned-for unit of employ-
ees will be deemed appropriate, instead of a larger unit,
unless the opposing party proves that the excluded em-
ployees “share an overwhelming community of interest”
with the petitioned-for group.55
predominantly craft skills”); Rich’s, Inc., 147 NLRB 163, 164–165
(1964) (bakery employees constituted an appropriate unit).
52 American Hospital Assn. v. NLRB, 499 U.S. at 611–612 (emphasis
added; citations omitted).
53 Unlike my colleagues, I do not believe Saks Fifth Avenue, 247
NLRB 1047, 1051 (1980), supports the proposition that the presump-
tion favoring storewide units is “no longer applicable to department
stores.” This statement in Saks Fifth Avenue related to a successorship
situation, where the new employer argued it could refuse to recognize
and bargain with the union that previously represented a preexisting
unit of “alterations” employees. These employees were employed in a
less-than-storewide “craft” unit that traditionally has been considered
appropriate by the Board. See cases cited in fn. 50, supra. Moreover,
the above-quoted statement from Saks Fifth Avenue was accompanied
by a citation to Allied Stores, 150 NLRB at 803, where the Board up-
held the appropriateness of a storewide salesperson unit. Neither Saks
Fifth Avenue nor Allied Stores supports a less-than-storewide unit that
selectively includes some salespeople and excludes other salespeople at
the same store. Also, as my colleagues concede, subsequent to Saks
Fifth Avenue, the Board has reaffirmed the presumptive appropriateness
of storewide units in the retail industry. See Wal-Mart Stores, 348
NLRB 274, 287 (2006), enfd. 519 F.3d 490 (D.C. Cir. 2008). See also
Charrette Drafting Supplies, 275 NLRB 1294, 1297 (1985).
54 357 NLRB 934.
55 Id., slip op. at 1. In addition to the holding that a petitioned-for
unit will be accepted unless the opposing party proves that excluded
employees share an “overwhelming” community of interest with em-
ployees in the proposed unit, Specialty Healthcare also states that,

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 42
Contrary to my colleagues, I would not apply Specialty
Healthcare here or in any other decision. Three consid-
erations, in my view, suggest that Specialty Healthcare is
inconsistent with the role that the Board has been admon-
ished to play “in each case” when deciding the appropri-
ate unit.
First, Specialty Healthcare constitutes an unwarranted
departure from standards developed over the course of
decades that have long governed the Board’s bargaining-
unit determinations. Rather than upholding petitioned-
for units except when there is proof that excluded em-
ployees share an “overwhelming” community of interest
with employees in the proposed unit, I believe the
Board’s responsibility is to evaluate whether a unit’s
appropriateness is supported based on a careful examina-
tion of what interests are shared within and outside the
proposed unit. The Board reaffirmed this approach in
Wheeling Island Gaming,56 which, though cited with
approval in Specialty Healthcare,57 examined “whether
the interests of the group sought are sufficiently distinct
from those of other [excluded] employees to warrant
establishment of a separate unit.”58 I believe the same
type of examination, if conducted here, warrants a con-
clusion that the petitioned-for unit is not appropriate.
within the proposed unit, employees must be “readily identifiable as a
group (based on job classifications, departments, functions, work loca-
tions, skills, or similar factors),” and they must “share a community of
interest” based on “traditional criteria.” Id., slip op. at 12 (citing
Wheeling Island Gaming, 355 NLRB at 637 fn. 2) (other citations omit-
ted). These other standards existed long before the Board issued its
Specialty Healthcare decision, and I agree with them.
56 355 NLRB at 641–642.
57 357 NLRB at 946 fn. 32.
58 355 NLRB at 637 fn. 2 (emphasis in original). My colleagues
quote the Sixth Circuit appeal of Specialty Healthcare for the proposi-
tion that it is “just not so” that Specialty Healthcare represented a mate-
rial change in the law. Yet although the Sixth Circuit indicated that the
phrase “overwhelming community of interest” appeared in some Board
decisions, see Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d
552, 561–562 (6th Cir. 2013) (citing two examples), the Board in Spe-
cialty Healthcare acknowledged that other prior cases had used “differ-
ent words” when describing when excluded employees rendered inap-
propriate the petitioned-for unit, or evaluated whether employee inter-
ests were “sufficiently distinct,” or even failed to articulate “any clear
standard,” Specialty Healthcare, supra at 944–945, and the Fourth
Circuit squarely rejected the “overwhelming community of interest”
standard in NLRB v. Lundy Packing Co., 68 F.3d 1577, 1581 (4th Cir.
1995). Additionally, my colleagues suggest the Sixth Circuit rejected
arguments “similar to those presented” in this dissent, but nothing in
Kindred suggests that the Sixth Circuit evaluated the considerations
expressed here—especially that Specialty Healthcare improperly limits
the Board’s statutory role, contrary to the Act and its legislative history,
by affording too much deference to the petitioned-for unit in derogation
of Sec. 9(b)’s requirement that the Board “in each case” undertake a
broader and more refined analysis, play a more active role, and consid-
er the Sec. 7 rights of included and excluded employees when deter-
mining the appropriate unit. See fns. 60–67 and accompanying text,
infra.
Second, the Board in Specialty Healthcare stated that
its decision was “not intended to disturb” rules developed
by the Board regarding particular industries.59 Yet, the
instant case involves precisely the type of industry—and
a classification of employees within that industry—
warranting a continuation of the consistent treatment that
the Board has applied to similar facts in other cases. As
applied in the instant case, Specialty Healthcare detracts
from the type of employer and industry-specific stand-
ards that remain applicable to bargaining unit determina-
tions, particularly since the Board in Specialty
Healthcare expressly stated that these standards remain
intact.
Third, and most important, I believe the Specialty
Healthcare standard is irreconcilable with the role that
Congress intended that the Board would play “in each
case” regarding bargaining unit questions,60 and Special-
ty Healthcare renders “controlling” the “extent to which
the employees have organized” contrary to Section
9(c)(5).61 As recited at some length above, the Act and
its legislative history indicate that Congress requires the
Board—as reflected in mandatory statutory language—to
undertake an active inquiry that is twofold: (a) the Board
“shall decide in each case whether” the appropriate unit
“shall be the employer unit, craft unit, plant unit, or sub-
division thereof”;62 and (b) when making such a decision
in each case, the Board must determine which of these
competing groupings operates “to assure to employees
the fullest freedom in exercising the rights guaranteed by
[the] Act.”63 By its terms, Specialty Healthcare appears
to guarantee that the Board will not “in each case” decide
which of the unit configurations enumerated in the stat-
ute (i.e., the “employer unit,” “craft unit,” “plant unit,” or
“subdivision thereof”) operates to “assure employees the
fullest freedom in exercising the rights” associated with
union elections. Under Specialty Healthcare, the peti-
tioned-for unit “in each case” will govern, except in the
rare and unusual situation where an opposing party
proves the existence of an “overwhelming community of
interests” between excluded employees and those in the
proposed unit. I believe Congress has required that the
Board “in each case” will undertake a broader and more
refined analysis, and play a more active role, when de-
termining whether or not a unit is “appropriate” than is
permitted under the Specialty Healthcare standard.
59 357 NLRB at 946 fn. 29.
60 NLRA Sec. 9(b), 29 U.S.C. § 159(b).
61 29 U.S.C. § 159(c)(5). See NLRB v. Lundy Packing Co., 68 F.3d
at 1581 (“overwhelming community of interest” requirement “effec-
tively accorded controlling weight to the extent of union organization”).
62 NLRA Sec. 9(b), 29 U.S.C. § 159(b) (emphasis added).
63 Id. (emphasis added).

MACY’S, INC. 43
In my view, the “overwhelming community of inter-
ests” standard also improperly focuses solely on the Sec-
tion 7 rights of employees in the petitioned-for unit, and
it disregards the Section 7 rights of excluded employees
except in a rare case where the excluded employees’ in-
terests “overlap almost completely” with those of includ-
ed employees.64 All statutory employees have Section 7
rights, whether or not they are initially included in the
petitioned-for unit. And the Act’s two most important
core principles governing elections—the concepts of
“exclusive representation” and “majority rule,” both set
forth in Section 9(a)—are completely dependent on the
scope of the unit. For these reasons, the Board’s unit
determinations must, in part, consider whether the rights
of nonpetitioned-for employees warrant their inclusion in
any bargaining unit. Yet, such inquiry is effectively pre-
cluded under Specialty Healthcare. As stated in the dis-
senting opinion authored by former Member Hayes, Spe-
cialty Healthcare makes “the relationship between peti-
tioned-for unit employees and excluded coworkers irrel-
evant in all but the most exceptional circumstances.”65
In short, the Act requires the Board to approach unit
determinations with vigilance and some reasonably broad
range of vision regarding alternative unit configurations.
In this regard, Specialty Healthcare affords too much
deference to the petitioned-for unit in derogation of the
mandatory role that Congress requires the Board to play.
I believe this will necessarily result in bargaining units
not decided upon by the Board based on criteria specified
in the Act, but instead units will mostly result from
“whatever group or groups the petitioning union his or-
ganized at the time,”66 contrary to Section 9(c)(5) and
Sections 9(a) and 9(b) of the Act.67
64 Specialty Healthcare, 357 NLRB at 944 (quoting Blue Man Ve-
gas, LLC v. NLRB, 529 F.3d 417, 422 (D.C. Cir. 2008)) (internal quota-
tion marks omitted).
65 Id., at 948 (Member Hayes, dissenting). See also DTG Operations,
Inc., 357 NLRB 2122, 2129–2130 (2011) (Member Hayes, dissenting);
Northrop Grumman Shipbuilding, Inc., 357 NLRB 2015, 2020–2023
(2011) (Member Hayes, dissenting). In my view, the mere possibility
that excluded employees may seek separate representation in one or
more separate bargaining units does not solve the problem caused by
the Board’s failure to give reasonable consideration to their inclusion in
a larger unit. The Act’s requirement that the Board “assure to employ-
ees the fullest freedom” in exercising protected rights requires the
Board “in each case” to consider the interests of all employees—
whether or not they are included in the petitioned-for unit—so the
Board can “decide” whether the unit should be the “employer unit, craft
unit, plant unit, or subdivision thereof.” NLRA Sec. 9(b), 29 U.S.C. §
159(b).
66 H.R. Rep. 80–245, supra fn. 23, at 37.
67 I recognize that Specialty Healthcare was enforced by the Court of
Appeals for the Sixth Circuit, which held—as did the D.C. Circuit in
Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008)—that
the Board’s “overwhelming community of interest” standard does not
Conclusion
The Employer here—like countless others in the retail
industry—operates a store that involves enormous com-
plexity: an array of products and brands, with salespeo-
ple who have overlapping relationships with customers
and one another, with innumerable additional details re-
garding commissions and compensation, common per-
formance criteria, onsite vendor representatives, and
nonsales personnel. The record reveals that all salespeo-
ple storewide have the same or similar working condi-
tions, employment policies, job responsibilities, perfor-
mance criteria, benefit plans, and commission and com-
pensation arrangements. To the extent that cosmetics
and fragrances salespeople are dissimilar from other
salespeople in the same store, there are comparable dis-
similarities among and between the C&F employees
themselves. Moreover, if a unit limited to C&F sales-
people is deemed appropriate, that will raise the prospect
of one or more additional separate bargaining units for
other segments of sales personnel at the same store, and
the resulting multiplicity of bargaining relationships
would create even more complexity that would be at
odds with the Employer’s overriding business objective:
to attract and retain customers who purchase products
throughout the store.
violate Section 9(c)(5). As referenced in fn. 58, supra, and with due
respect for these court decisions, I believe Specialty Healthcare affords
too much deference to the petitioned-for unit in derogation of the role
that Congress requires the Board to play when making unit determina-
tions, contrary to Section 9(c)(5), Section 9(a) and Section 9(b). How-
ever, to the extent that Specialty Healthcare is considered to be within
the discretion that Congress prescribed for the Board, I would still
decline to apply or rely on that decision for the reasons stated in the
text.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44
I would find that the petitioned-for C&F salesperson
unit is not appropriate, and that the smallest potential
appropriate unit would consist of all salespeople store-
wide. I believe the contrary result my colleagues reach is
inconsistent with the Board’s traditional standards gov-
erning retail operations. Finally, I believe the Specialty
Healthcare standard, as applied in the instant case, high-
lights important shortcomings that render Specialty
Healthcare inappropriate and contrary to the Act, and I
would refrain from applying or relying on Specialty
Healthcare in any case.
Accordingly, I respectfully dissent.