We reported in 2011 about the National Labor Relations Board (NLRB) decision in Specialty Healthcare. That controversial decision opened the door for unions to target small sections of a workforce for union organizing.  For example, in the past, a union trying to organize had to target all similarly-situated employees. In a manufacturing plant that was typically all production and maintenance workers and usually included all blue-collar departments, like shipping and receiving. But, the Specialty Healthcare case opened the door for a union to target smaller groups, like the maintenance group alone, or the shipping and receiving group. Being able to target smaller units for organizing improves a union’s chance for success because there are fewer voters to persuade to sign organizing cards and to vote for a union in an election.

Two recent NLRB cases show that the NLRB’s decisions about mini-unit organizing will be fact-specific and may be difficult to predict. On July 22, the NLRB approved a union’s effort to organize a unit at a Macy’s store in Massachusetts made up only of the cosmetics and fragrance sales workers. Before the dust had settled from the management-side concern about that ruling, the NLRB ruled just last week in a case involving Bergdorf Goodman’s department store that a targeted group made up of only shoe salespeople was not appropriate.  The NLRB recognized that the targeted shoe sales group had been carved out from a larger group of shoe salespersons in the store.

These conflicting decisions illustrate the importance of strategic consideration by employers when establishing departmental structure and reporting lines. Of course, business needs and efficiency must be the primary driving force in deciding how your organization should be structured. But, to the extent that there is some degree of integration among groups of employees, such as cross-training, common supervision, and movement of employees back and forth, the employer’s argument to require unions to target larger, rather than smaller, groups for organizing will be stronger.