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What Is A “Micro-Unit” – and Why Does It Matter?

Employment law attorneys are abuzz with talk of “micro-units.” This term first surfaced in 2011, and has garnered attention once again in the wake of two recent decisions from the National Labor Relations Board (“NLRB”). So, what is a micro-unit, exactly, and why should employers care about this legal catchphrase?

A “micro-unit” is a small and discrete subset of employees at a particular worksite, which a union seeks to represent. For decades, the NLRB held that where employees share a “community of interest” (common management, similar wages and skills, working conditions, etc.) that the appropriate bargaining unit was a “wall-to-wall” unit of all the employer’s similarly-situated employees. To establish a smaller sub-unit or micro-unit of employees, a party needed to show that the interests of the employees in the smaller unit were “sufficiently distinct” from those of other employees.

In 2011, the NLRB took a drastic departure from this principle with its decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011). Under Specialty Healthcare, a presumptively appropriate bargaining unit is any “readily identifiable” group of employees who share a community of interest. The burden is on the employer to show that excluded employees share an “overwhelming community of interest” with the proposed unit and should be included. In 2013, the Sixth Circuit affirmed the NLRB’s decision in Specialty Healthcare. The change is both important and detrimental to employers because a union requires 50% + 1 of the votes of any group it seeks to represent to automatically become the unit’s certified bargaining representative. From a common sense perspective, any union will have an easier time convincing 4 out of 7 employees to join a bargaining unit, as opposed to convincing 40 out of 70 to do the same thing.

Specialty Healthcare involved healthcare workers, but the NLRB’s recent decisions affect the retail industry, specifically, department store giants Macy’s and Bergdorf Goodman’s. For information about how the NRLB applied its precedent in Specialty Healthcare to the employees of these stores, check back on Wednesday.

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