\nOn May 4, 2012, National Labor Relations Board Regional Director, Region 2 (New York City) issued the most recent \u201cmicro\u201d unit decision finding appropriate a union\u2019s petition for a bargaining unit of only a small portion of the employer\u2019s workforce \u2013 rather than the traditional \u201cwall-to-wall\u201d unit of all similar employees in an employer\u2019s facility.\n<\/p>\n
\nRelying on the NLRB\u2019s August 26, 2011, decision in Specialty Healthcare<\/i>, 357 NLRB No. 83, the Regional Director held that the requested unit of \u201cfull-time and regular part-time womens\u2019 shoes associates in the 2nd Floor Designer Shoes Department and in the 5th Floor Contemporary Shoes Department\u201d is an<\/i> appropriate unit considering traditional \u201ccommunity of interest\u201d factors. The Neiman Marcus Group, Inc., d\/b\/a Bergdorf Goodman<\/i>, 02-RC-076954.\n<\/p>\n
\nThe Regional Director noted that, although the employer\u2019s contention that a larger unit of all retail sales associates would also be appropriate or even more appropriate, the test is not the single most appropriate unit. Rather, to defeat a union\u2019s petitioned-for unit, the burden is now on the employer to demonstrate that employees in its counter-proposed, larger unit \u201cshare an overwhelming community of interest with those in the [union\u2019s] petitioned-for unit.\n<\/p>\n
\nIn Bergdorf Goodman<\/i>, the Regional Director held the petitioned-for \u201cmicro\u201d unit appropriate because the evidence presented indicated differences in pay and benefits between womens\u2019 shoe associates and other store employees; few, if any, transfers into the womens\u2019 shoe department; and that the mens\u2019 shoe associates were located in a different building with little interchange with womens\u2019 shoe associates. The Regional Director distinguished the Board\u2019s long-followed 1957 decision, Bullock\u2019s, Inc. d\/b\/a I. Magnin & Co.<\/i>, 119 NLRB 642, which held inappropriate a unit of only shoe sales employees in a retail store due to the longstanding presumption of \u201cwall-to-wall\u201d units for the retail sales industry. In that case, the Board commented:\n<\/p>\n \n\tThe Board has long regarded a storewide unit of all selling and nonselling employees as a basically appropriate unit in the retail industry\u2026 Smaller units of retail clothing store employees are appropriate when comprised of craft or professional employees or where departments composed of employees having a mutuality of interests not shared by other store employees are involved\u2026[T]he record herein fails to establish any craft or professional skills or status among the shoe salesmen and it does not show that the skills, duties, interests, and conditions of employment of those employees are sufficiently different from those of other employees to warrant their establishment in a separate unit on any other basis.\n\t<\/p>\n<\/blockquote>\n \nUnfortunately, that was then and \u201cmicro\u201d units of whatever size and composition union officials demand is now. This decision highlights the risk at hand: union organizers can \u201ccherry pick\u201d units in which they know that they have sufficient support to win a representation election, imposing unwanted representation on the minority of workers in the \u201cmicro\u201d unit who would be in a majority rejecting representation in the traditional \u201cwall-to-wall\u201d unit.\n<\/p>\n \nMoreover, \u201cmicro\u201d units allow union organizers to get inside an employer\u2019s doors to organize additional groups and demand that the company recognize the union as the \u201crepresentative\u201d of its other employees. Further, union officials with monopoly bargaining powers over a micro-unit are put in a position where they are incentivized to offer concessions of employees\u2019 interests in return for the company\u2019s organizing assistance in unionizing the larger unit. \nWhat remains to be seen is whether a reviewing court will ultimately overrule the Board\u2019s \u201cmicro\u201d unit theory considering the National Labor Relations Act\u2019s Section 9(c)(5) admonition that \u201cthe extent to which the employees have organized shall not be controlling\u201d in determining whether a proposed bargaining unit is appropriate. After all, as Board Member Bryan Hayes said in dissent when the Board approved a \u201cmicro\u201d unit in Northrup Grumman Shipbuilding, Inc.<\/i>, 357 NLRB No. 163 (2011), \u201cCongress vested the authority to make unit determinations with the Board, not union organizers.\u201d\n<\/p>\n \nLast NLRB Watch: "NLRB\u2019s ‘Ambush’ Election Rule Invalidated\u2026 At Least for Now<\/a>"\n<\/p>\n\n
\nAdditionally, the risk of expanding representation over time creates uncertainty for employees who may be forced to make a decision about unionization without knowing the true make-up of the ultimate bargaining unit. Meanwhile, multiple competing small unions can create constant conflict between and among represented groups.\n<\/p>\n