NLRB Upholds Petitioned-For “Micro-Unit” at Boston-Area Macy's Store as Appropriate Under Specialty Healthcare

by Franczek Radelet P.C.

Earlier this week, in a 3-1 decision in Macy's Inc., the NLRB applied its controversial Specialty Healthcare decision in upholding as appropriate a bargaining unit that consists of 41 employees in the cosmetics and fragrances department at a Boston-area Macy’s store, and excludes all other sales employees at the store. This is the first case in which the NLRB has applied the Specialty Healthcare standard to a retail employer. The NLRB’s decision in this highly publicized case is unwelcome news for employers, particularly in the retail industry, as it provides support for unions' increasing efforts in seeking to organize "micro-units" consisting of small, discrete subsets of employees.

Summary of the Case

Macy’s employs approximately 120 sales employees at its Saugus, Massachusetts store, and the employees are organized into 11 departments. The union filed a representation petition with the NLRB in which it sought to represent only the 41 employees in the cosmetics and fragrances department. That sales department is located on two different floors of the store—women’s products are sold on one floor and men’s products are sold on another. In November 2012, the Regional Director issued a decision and direction of election, finding that the union’s petitioned-for unit was appropriate. Macy’s then appealed the Regional Director’s decision by filing a request for review with the NLRB.

On appeal, Macy’s urged the NLRB to reject the petitioned-for unit as inappropriate, relying on pre-Specialty Healthcare decisions in which the NLRB had established a presumption in favor of storewide or “wall-to-wall” units in the retail industry. Macy’s argued that under those precedents, the smallest appropriate unit must include all sales employees at the store, not merely the employees in one of the 11 departments. Macy’s also argued that the petitioned-for unit would result in a “fractured” unit because the cosmetics and fragrances employees shared an overwhelming community of interest with the other sales employees.

The NLRB majority, which consisted of Chairman Pearce and Members Hirozawa and Schiffer, rejected Macy’s arguments and affirmed the Regional Director’s decision. Applying the standards established in Specialty Healthcare, the NLRB found that the petitioned-for unit was appropriate because the 41 cosmetics and fragrances employees are a “readily identifiable group who share a community of interest,” and Macy’s had not satisfied its burden of establishing an “overwhelming” community of interest between those employees and the sales employees in the store’s 10 other departments.

The NLRB found “particularly significant” the fact that the unit tracked the departmental dividing line that Macy’s had drawn. In comparing the cosmetics and fragrances employees to other sales employees, the NLRB emphasized that the employees worked in separate departments, reported to different supervisors, worked in separate physical spaces, and there was no significant contact between the employees. The NLRB distinguished the decisions cited by Macy’s, and stated that more recent NLRB decisions have “evolved away from the presumptions favoring storewide units.” The majority also dismissed as “speculative” Macy’s suggestion that the application of the Specialty Healthcare standard to the retail industry would substantially harm Macy’s and other retail stores.

Member Miscimarra wrote a lengthy dissent in which he concluded that the bargained-for unit of only cosmetics and fragrances employees was not appropriate under any standard. Rather, he agreed with Macy’s that the smallest appropriate unit would include all of the 120 sales employees who work at the store. Member Miscimarra also confirmed his disagreement with Specialty Healthcare, stating that he “would not apply Specialty Healthcare [in this case] or in any other decision.”

Insights for Employers

The NLRB’s decision in Macy's Inc. is significant because it will continue to allow unions to strategically control the composition of a bargaining unit, which is a critical factor in a union’s ability to prevail in a union election. Employers must therefore be mindful of this issue in preparing for and responding to union organizing campaigns, as unions are increasingly seeking to organize the smallest subset of employees which they believe they can secure a majority of supporters.

On a broader scale, this case illustrates that despite its recent loss before the U.S. Supreme Court in Noel Canning the NLRB’s democratic majority is continuing to actively advance its pro-union agenda.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.