Take a Macro Approach to Defend Against Micro Bargaining Units

Union organizing can pose significant operational and financial challenges for employers. But those challenges can become even more complicated when a union organizes only a small segment of the workforce, creating what is commonly known as a “micro unit.”

A micro unit is a small group of employees within a larger workforce, sometimes consisting of only a handful of—or even just two—workers. Because the group is small, a union needs to persuade only a handful of employees to vote in favor of representation, making these units comparatively easy to organize. Once a micro unit is established, the union gains a foothold in the workforce and can seek to expand its reach to other employees across the company.

Why fragmented bargaining units cost employers more

For employers, the consequences can extend well beyond the employees in that first unit. Multiple small bargaining units can leave a company negotiating separate agreements and administering different rules, wage rates, and benefits throughout its operations. This fragmented structure can increase costs, complicate workforce management, reduce operational flexibility, and create additional opportunities for labor disruptions.

That dynamic creates competing incentives. Unions often have reason to define the bargaining unit narrowly, while employers generally benefit from advocating for a broader, more cohesive unit. Taking that “macro” approach can make a workforce more difficult to organize in the first place and, if employees ultimately choose union representation, significantly easier to manage.

A shifting regulatory landscape at the NLRB

The position of the National Labor Relations Board (NLRB) on micro units has shifted with changing administrations. Traditionally, the Board decided whether a proposed bargaining unit is appropriate based on whether the employees share a community of interest, considering facts such as whether the employees are in a separate department; have distinct skills, training, and job functions; are functionally integrated with, or have frequent contact with, other employees; interchange with other employees; have distinct terms and conditions of employment, including wage rates and benefits; and share supervisors.

In 2011, during the Obama administration, the Board held in Specialty Healthcare and Rehabilitation Center of Mobile that the unit sought by a union is presumptively valid if the employees have a distinct identity and internally share a community of interest. The burden then shifts to the employer to overcome that presumption by showing that employees excluded from the proposed unit share an “overwhelming” community of interest with the proposed unit.

In 2017, under the first Trump administration, the Board decided PCC Structurals Inc., overturning Specialty Healthcare and returning to the traditional test. The Board flipped back to the Specialty Healthcare standard under the Biden administration in 2022 in American Steel Construction. Although the Board may revisit the issue under the second Trump administration, for now, American Steel Construction remains the law, meaning micro units remain a live threat for employers facing union organizing efforts.

Proactive defense: building an integrated workforce

Employers should prepare to defend against a micro-unit organizing effort well before one begins by identifying the subgroups most vulnerable to organizing and the larger, more appropriate unit to which they belong. That unit should be as large as possible, making it harder for a union to organize, while still sharing a genuine community of interest. The objective is to build an “overwhelming community of interest” between the potential micro-unit employees and the larger group by minimizing the distinctions between them.

Where feasible, cross-train employees on one another’s jobs, have them cover for each other during absences, and overlap and integrate their functions so they interact frequently. Assign shared supervisors, rotating supervisors where appropriate, and apply common wage and benefit plans and the same performance-evaluation standards. Look for opportunities to integrate the groups outside their immediate job functions as well, including through shared break rooms and break times. Making these adjustments early can help establish that the larger group operates as a single, unified workforce rather than a collection of distinct employee groups.

The most effective defense to micro-unit organizing is a proactive one. HR managers and in-house counsel should not wait for an organizing petition to arrive. By evaluating workforce structures and identifying potential divisions before an organizing effort begins, employers can put themselves in a stronger position to advocate for bargaining units that are both broader and more manageable. The time to take a macro approach to micro units is before a union arrives.