Unions, in order to increase membership, are now attempting in some cases to represent employees in small “micro-units” as opposed to the traditional approach of representing employees throughout an employer’s facility. Micro-units come into existence when unions “pick off” employees in certain departments, and claim that these departments should be a bargaining unit apart from their co-workers. Unions have employed this strategy because it is generally easier to organize a small number of employees rather than an employer’s entire non-supervisory workforce. (To organize a 15 employee department in a 150 employee workplace, the union would need only 8 supporters instead of 76!) The strategy undermines the traditional criteria that governed whether a bargaining unit is appropriate by allowing unions to “slice up” a workplace by targeting only those workers who agree with them. It also exposes employers to dueling unions, each representing a different department.

Micro-units were first employed in the health care industry, but they now have moved to other industries. For example, on July 22, 2014, the NLRB ruled in Macy’s, Inc., 361 NLRB No. 4 (2014), that cosmetic and fragrance workers at a Macy’s store in Massachusetts were allowed to form a collective bargaining unit for their department alone.

A week later, in Neiman Marcus Group, Inc., 361 NLRB No. 11 (2014), the Board again approved the micro-unit concept generally, but ruled that a unit that was composed of all full-time and regular part-time female shoe associates in the second floor Designer Shoe Department and in the fifth floor Contemporary Shoe Department was not an appropriate unit, because the employees lacked a “community of interest.” Importantly, the NLRB noted that the boundaries for the proposed unit did not resemble any administrative or operational lines drawn by the employer. The sales associates on the second floor worked in their own department but the sales associates on the fifth floor were part of a larger Contemporary Sports Department.

Although the NLRB has clearly endorsed micro-units, employers are not powerless, and they can take steps if they wish to make it more difficult for unions to splinter small groups of employees. For example, employers can cross-train and encourage skill diversity so that employees are more interchangeable. Moreover, rather than having many small departments, employers can have fewer but larger departments with the same supervisors supervising more groups of employees.