Conditions are right for employee unionization efforts
"Unions are on a playing field that has never been more favorable for them, at least not in the last decade," says one legal expert.
Union-representation petitions filed by workers with the National Labor Relations Board have been essentially flat through the first three quarters of the fiscal year, a big slowdown in growth from the 58% increase recorded in the same nine months a year earlier.
But employment lawyers tracking the activity say it would be wrong to interpret the lull as indicating that unionizing efforts are losing momentum. Petition filings through the first nine months ending June 30 totaled 1,904, higher than the full year for all but four of the past 10 years. Petitions totaled 1,892 in the same nine months a year earlier.
Last fiscal year, petitions reached 2,072, cracking 2,000 for the first time since 2016.
“Right now, unions are on a playing field that has never been more favorable for them, at least not in the last decade,” said Gerald Maatman, a Duane Morris partner. “So they’re going to spend money, and they’re going to invest time and effort in their processes. Now’s the time to do it, while the going is good.”
Frenzy of union activity
Legal observers say COVID-19 spurred workers to reassess their relationships with their employers, from pay levels to working conditions. That shift in mindset shows up in public surveys, which show the public perception of unions has reached its highest point since 1965.
On top of that, President Joe Biden’s administration has been chipping away at workplace rules that labor advocates say unfairly tilted unionizing votes in favor of management.
For example, in April 2022, NLRB General Counsel Jennifer Abruzzo took the stance that mandating that employees attend management-led meetings where companies could argue against unions was illegal. The so-called captive audience meetings had been widely used by management for more than 70 years.
Some of the campaigns have been at major U.S. companies once deemed unlikely targets for unionizing, including Amazon, which for the first time had one of its warehouses unionize last year, and Starbucks, which now has more than 330 unionized stores in the United States.
Even so, the movement is showing signs of growing pains. For example, infighting has broken out at the Amazon warehouse that unionized, undercutting its efforts to apply pressure to Amazon. And 10 Starbucks stores that voted to unionize now face worker petitions to decertify the unions.
Amid the frenzy of union activity, workers say companies often aren’t playing fair. Through the first nine months of the fiscal year, unfair labor practice charges have swelled 14% to 14,621 from 12,819.
Starbucks workers allege the company is one of the most notorious bad actors. They have filed more than 500 unfair labor practice charges, alleging worker intimidation, discriminatory rules, and unlawful discipline and firing of union organizers. Starbucks denies wrongdoing and says it doesn’t retaliate against union organizers.
NLRB leaders last year pleaded for more funding, saying the whirl of activity had left staff overwhelmed. They expressed appreciation in December when Congress passed and Biden signed an omnibus budget that funded the agency at $299 million in 2023, a 25% jump and the first increase since 2014.
Attorneys tracking union activity say employers in industries that lack a history of unionizing need to be on guard against running afoul of Section 7 of the National Labor Relations Act, which guarantees the right to organize and bargain collectively without interference from the employer.
“There are a lot of lawyers who represent companies which do not think about Section 7,” Brian Balonick, a Fisher & Phillips regional managing partner, said. “There are many companies and lawyers that just haven’t been exposed to Section 7 before.”
Partly because of Biden’s pro-union stance — he says he wants to be the most pro-union president in American history — the nation is experiencing a “labor renaissance,” said Laura Pierson-Scheinberg, a principal with Jackson Lewis.
Employment attorneys say the tide could turn if a Republican wins back the White House and begins reinstating the Trump-era policies that Biden’s NLRB has been dismantling.
For now, though, “it’s an exciting time to be a labor lawyer, and a challenging time to be an employer,” Pierson-Scheinberg said.