Macy’s Inc. has filed an appeal to the Fifth Circuit Court of Appeals following the National Labor Relations Board’s order, on the basis of controversial prior precedent, that the retailer was required to bargain with an allegedly “fractured” bargaining unit representing a narrow group of cosmetic and fragrance workers within one of its department stores.

In a July 2014 representation case decision, the NLRB found that certain workers in the cosmetics and fragrances department of a Macy’s store in Saugus, Massachusetts were an appropriate bargaining unit, based on the Board’s controversial Specialty Healthcaredecision. The Specialty Healthcare decision, upheld by the Sixth Circuit Court of Appeals, found that an employer that challenges a proposed bargaining unit on the basis that it improperly excludes certain employees is required to prove that the excluded workers share “an overwhelming community of interest” with those in the proposed unit. Critics of the decision warned that this would open the door for unions to organize “micro-units” of employees by improperly selecting small subsets of employees of the same employer.

Because an employer is not able to directly appeal a representation decision, Macy’s was forced to refuse to bargain with the micro-unit, Local 1445, United Food and Commercial Workers Union. This action brought the dispute before the NLRB once again, who ruled early this month that Macy’s violated the National Labor Relations Act by refusing to bargain with Local 1445. In so finding, the NLRB rejected Macy’s arguments that the bargaining unit was an arbitrary segment of employees that conflicted with prior NLRB precedent that found units comprised of all employees within a single retail department store to be presumptively appropriate.