The Board in July issued two decisions involving retail department stores, applying its standard from Specialty Healthcare (the "micro-bargaining-units" case) for determining appropriate bargaining units, and reached different results in each case. Under the Board's Specialty Healthcare standard, the Board will generally accept as appropriate a petitioned-for unit of employees who are readily identifiable as a group with a "community of interest." A party contending that the proposed unit is inappropriate has the burden of showing that other employees should be included in the unit because they share an "overwhelming community of interest" with the employees in the proposed unit.

In one case, involving a Macy's department store in Massachusetts, the Board approved a petitioned-for unit of all sales employees in the cosmetics and fragrance department. The unit, though only one department, was based on a grouping that the employer used for administrative or operational purposes. Thus, the Board readily found that the unit satisfied the community of interest required for an appropriate bargaining unit. The Board rejected the employer's argument that a wall-to-wall unit of all store sales employees was needed due to an overwhelming community of interest of all sales employees in the store. The Board found that "the fact that the petitioned-for employees work in a separate department, report to a different supervisor, and work in separate physical spaces supports [the] finding that the petitioned-for employees do not share an overwhelming community of interest with the other selling employees."

In the other case, involving a Bergdorf Goodman store in New York, the Board nixed a proposed unit of all shoe salespersons in two separate departments. The Board found that the grouping was arbitrary, with essentially the only commonality being that the employees had the same function, selling shoes. The Board thus found that the employees lacked a sufficient community of interest for an appropriate bargaining unit.

What are some takeaways here? First, the Board is expected to apply its Specialty Healthcare standard broadly across many business sectors. Second, employers' organizational groupings and structures will probably continue to be important factors in making unit determinations. Employers seeking to avoid a "micro-bargaining-unit" balkanization of their workforces and workplaces may be able to restructure their organizations to increase the size of the smallest appropriate unit by ensuring that the larger grouping has an "overwhelming community of interest." To do that, functional integration within the group, and common supervision and terms and conditions of employment may be important. Concerned employers should review their organizational structures in advance of union organizing efforts and consider the vulnerabilities of the current structures and possible fixes for a perceived micro-bargaining-unit problem.