Despite the ever-swinging pendulum of labor law, unionization rates in the private sector have declined and remained low since the 1970s. However, a recent wave of organizing efforts, coupled with unique economic conditions and initiatives leaders of the National Labor Relations Board (NLRB), signals a potential resurgence of the labor movement. Employers with or without a unionized workforce should closely monitor these developments and ensure they understand the potential impact on their operations.
Historical organization victories
For decades, companies like Amazon and Starbucks have remained unionless. Many believe that these companies have frustrated attempts to unionize because of their strong compensation and benefits practices. However, like every other aspect of life, the pandemic has changed how workers view and value their jobs.
On April 1, the Amazon Labor Union (ALU) made history by becoming the first labor organization to win an election at Amazon with its victory at the JFK8 warehouse in Staten Island, New York. The ALU is an independent union founded by two people, including an employee who was fired after leading a security strike, and a current Amazon employee stationed at JFK8. Most notably, the ALU won the elections despite minimal financial resources and virtually no experience in union organizing. Organizers ran their campaign from a nearby public bus stop and relied on unconventional tactics to connect with employees.
Amazon is also facing a long-running unionization campaign at its factory in Bessemer, Alabama. In April 2021, the Retail, Wholesale and Department Store Union lost an election to organize workers at the Bessemer plant. However, the NLRB ordered a new election following its finding that Amazon unlawfully interfered with the election. The new election took place a few weeks ago. While Amazon currently has a very slight lead in ballots counted, a hearing has been scheduled to consider disputed ballots that could determine the winner of the election. Amazon and Union also filed objections alleging each side unlawfully interfered in the election. While the Staten Island and Bessemer facilities are just two of Amazon’s many facilities, these organizing drives have energized the labor movement and could lead to more successful campaigns not only at Amazon, but at other employers. of all sizes.
Organizing efforts have also been successful at Starbucks. In December 2021, employees at a Starbucks store in Buffalo, New York, were the first to successfully vote to unionize. Since the success of the first store, about 200 Starbucks stores have followed suit and filed union petitions, including stores in Boston, Chicago and Seattle. The organizing efforts are led by a group called “Starbucks Workers United” and are supported by SEIU-affiliated “Workers United.”
Increase in the filing of petitions for union representation
Earlier this month, the NLRB released a memo reporting a 57% increase in the filing of petitions seeking union representation from October 2021 to March 2022, compared to the same period the previous year. It is too early to tell whether this will translate into increased electoral victories and an increase in the overall unionization rate of private sector employers. However, this increase in petition filings indicates that union organizing activity has increased and that employees are seeking union representation at a faster pace. The recent resounding successes of Amazon and Starbucks should increase interest in organizing among workers.
Changes to the National Labor Relations Board
Along with a flurry of organizing activity and key organizing victories at major employers, we expect a series of pro-union decisions and initiatives from the NLRB. This is the result of recent changes to key personnel at several levels of the agency.
General Councilor Jennifer Abruzzo: The Commission’s General Counsel establishes the Agency’s prosecution program and directs the work of investigators and counsel in the Commission’s regional offices. Last year, President Biden appointed Jennifer Abruzzo as the council’s general counsel. Abruzzo has set out an ambitious agenda for the agency to convince the entire NLRB board to overturn several pro-employer decisions and change or otherwise modify the existing precedent in favor of employees and unions. Unsurprisingly, decisions and procedures related to union organizing are at the heart of many of its initiatives. Some of these initiatives include:
- Urge the Commission to restrict the right of employers to require employees to attend meetings to hear the employer’s position on unionization (click on here for our alert on this GC initiative);
- Oblige employers to recognize a union on the basis of authorization cards signed by the majority of employees instead of an election by secret ballot. (Click on here to obtain a copy of the Advocate General’s memorandum to the Council);
- Tougher remedies for unfair labor practices committed during union organizing drives.
The General Counsel’s positions are recommendations only, and there is no guarantee that the entire NLRB will agree with the General Counsel. However, the NLRB has the discretion to strike down and/or change the law on these matters. Depending on how the Council decides, unions may have an easier path to recognition.
What is of greater concern to employers in the short term is that employers may be at increased risk of being drawn into protracted and costly NLRB investigations, even if they engage in conduct that may be lawful under current law, as the GC is actively seeking “test cases” to submit to the full Board as a means of overturning the existing precedent.
NLRB Five-Member Group: The NLRB (sometimes called the “Big Board”) is the five-person panel appointed by the President to hear appeals of unfair labor practices and representation decisions. Essentially, the decisions of the Commission become law. Under the Trump administration, the Republican-majority board has issued several pro-employer decisions. The majority of the Council has reverted to a Democratic majority, and many Trump-era decisions are expected to be reversed. While we can’t assume the Democratic Board will always agree with every position taken by the new General Counsel, many of the doctrines espoused by the Obama Board are expected to return.
What does this mean for employers?
The increase in organizing activity, in addition to union-friendly changes to the NLRB, should not be taken lightly by employers. Union campaigns are often successful because employers are caught off guard without a plan. Employers with unionized workforces should continue to work with their attorney to monitor these developments, as they may impact your current bargaining units. Employers without a unionized workforce should assess their labor climate and work closely with an attorney to understand their rights, the NLRB representation process, and develop a tentative plan for how management react to attempts at unionization.
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