Tag: bargaining unit

Union Elections Increasing

Why Are Union Elections Increasing in 2022?

The National Labor Relations Board reports a 58% increase in union election petitions through the first three quarters of the 2022 federal fiscal year. Upon first glance, this statistic may seem to reflect a major uptick in union organizing. And, on the raw numbers, it does. But there appear to be two notable causes for union elections increasing in 2022: Starbucks and COVID.

Union Election Petitions

The July 15, 2022 NLRB press release generally refers to the overall increase in “union election petitions.” There are actually an array of circumstances included in these filings. They don’t just refer to cases where a union seeks an election to determine whether they may represent employees.

There were 1,892 “union election petitions” filed with the NLRB between October 1, 2021 and June 30, 2022. Some of these were filed by unions, some by employers, and others by employees, with various objectives. 1,573 of the petitions did seek union representation of then-unrepresented employees. The second largest group were 236 petitions filed by employees seeking to oust their incumbent union. Of the remaining 84 petitions, 41 sought clarification of an existing bargaining unit, for example.

Representation Election Petitions

Petitions where a union seeks initial recognition are known as representation petitions or RC petitions. This category did indeed rise significantly in the first three quarters of FY 2022 compared the same period in FY 2021. They increased 70% overall. But there’s more to the story.

First, 313 of the 1,574 RC petitions involved Starbucks stores. That’s 20% of total representation petition filings–a highly unusual occurrence for a single employer. So, yes, these Starbucks cases are a big deal for the NLRB, which has to process all of these elections. But they’re something of a statistical anomaly in evaluating the overall state of union organizing in 2022. Very few companies operate like Starbucks, with so many corporate-owned locations scattered throughout the country. Even most quick-service food establishments use the franchise model, meaning there are numerous distinct “employers” rather than a single unionizing target.

Without the Starbucks cases, there was only a 36% increase in representation petition filings so far in FY 2022. Which brings us to the second consideration:

COVID-19.

Once you take out the rampant Starbucks unionization, FY 2022 only resembles NLRB filings before the pandemic began around March 2020. See graphs below.

 

The average number of RC petitions for the first three quarters of FY 2017, 2018, and 2019 was 1,255. Almost exactly the same number as were filed in the first nine months of FY 2022 (1,260).

Decertification Election Petitions

For a check on the COVID impact on NLRB union election petition filings, let’s look at decertification petitions (RD). In these cases, employees currently represented by a union are seeking to vote the union out.

We don’t have to worry about any direct Starbucks influence here. A union has to be in place at least a year before it can be voted out. None of the Starbucks stores have yet had a union for that long.

Like representation election petitions, RD filings are up in FY 2022. The 42% increase is actually higher than the Starbucks-excluded increase among RC petitions (36%).

If the 58% overall increase in “union election petitions” were due to more demand to be unionized (other than among Starbucks employees), then that wouldn’t explain the increase in decertification efforts. So, what does? Again, the answer appears to be a return to previous pre-COVID levels.

Again, remarkably, the average number of RD petitions for the first three quarters of FY 2017, 2018, and 2019 (242) was virtually equal to the number filed in the first nine months of FY 2022 (236).

Will Union Elections Continue Increasing Beyond Pre-COVID Levels?

This question remains to be answered. Historically, about 75% of union representation elections petitions are filed in the first 3 quarters of the NLRB’s fiscal year. That means a proportionally equivalent number should be filed between July 1 and September 30, 2022. If we see that approximately 420 RC petitions (excluding Starbucks) are filed in that period, then it would continue to show a return to normalcy rather than a real shift toward increased unionization. A higher number would require further examination. For example, any apparent uptick could be a remnant of artificially low petitions during the height of the COVID pandemic. In other words, unions may still only be making up for lost time rather than experiencing fundamentally renewed interest.

Of course, if your business is union-free and wants to stay that way, the most important union election petition is the one that is or isn’t filed with your name on it. National trends are only one macro-indicator of interest in unionization. Employers should remain alert to the needs and sentiments of their own employees. Keeping them satisfied and feeling respected is the most likely path to staying out of these NLRB statistics.

 

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All data were obtained from the National Labor Relations Board website.

2017 NLRB Decisions

2017 NLRB Buzzer Beaters

Republicans (temporarily) lost majority control of the National Labor Relations Board when Chairman Philip Miscimarra’s term expired on December 16, 2017. But not before they pulled off some 2017 NLRB fireworks!

Facing a 2-2 party split to begin 2018, Republican Members Marvin Kaplan and William Emanuel joined the outgoing Chairman in issuing pivotal rulings in the last days of his term. Here’s a quick summary of some of the most important 2017 NLRB policy shifts.

New Election Rules?

Not yet. But the road is paved.

On December 13, 2017, the NLRB issued a request for information from the public regarding the agency’s union election procedures. Specifically, the Board asked for information regarding the 2014 amendments to the rules. Those were promulgated by a Democrat-majority Board under President Obama, leading to what many have dubbed “quickie elections.”

The request for information itself does not change anything. However, it does strongly suggest a potential change in course. Once President Trump nominates and the Senate confirms a new Republican member to the NLRB, Members Kaplan, Emanuel, and their new colleague could take further action to revise the election rules. The result would likely be more time between filing of petitions and elections taking place.

Read here for more details on the request for information.

More Reasonable Restrictions on Employee Conduct

Under the previous administration, the NLRB said that employers could not have policies requiring employees to be “respectful”.

That was only illustrative of the extent to which the Obama Board objected to standard employment policies of the types long found in many employers’ employee handbooks.

The Obama NLRB also particularly enjoyed regulating comparatively new “Social Media” policies. Various Democrat-controlled panels routinely struck down policies, or at least portions of them, that seemed to most employers to be perfectly reasonable means of conducting business and avoiding undue attacks on companies from their own employees.

On December 14, 2017, the Miscimarra-chaired Board effectively reversed numerous Obama-era decisions by changing the legal test upon which they were decided.

A 2004 NLRB decision reasoned that even if a rule doesn’t “explicitly restrict” an employee right under the National Labor Relations Act, the rule may still be unlawful if employees would “reasonably construe the language” to restrict activity that the Act protects.

In a case involving Boeing, the 2017 NLRB (with both Democrats dissenting) has now rejected that standard and replaced it with a “balancing” test. Going forward the NLRB will now weigh “the nature and extent of the potential impact on NLRA rights” against “legitimate justifications associated with the rule.” (You can read the full decision here.)

The predictable impact of the new test will be greater protection of employers’ rights to maintain appropriate control over their business.

Relaxing the Joint Employer Doctrine

In 2015, the NLRB, over the objection of Miscimarra and fellow Republican Member Harry I. Johnson III, created a broad standard for determining when separate business entities simultaneously “employ” the same employees. In other words, when two different companies are “joint employers”. The critical question affects various issues under the National Labor Relations Act. These include union representation and liability for unfair labor practices.

In another December 14, 2017, 3-2 Board decision, the NLRB announced it was returning to an earlier test that “reflects a common-sense, practical understanding of the nature of contractual relationships in our modern economy”. The restored test will depend on which business(es) have “direct and immediate” control over terms and conditions of employment. It dismisses analysis of “indirect” factors that the Democrat majority introduced in 2015. (You can read the full decision here.)

Among other situations, this change in the joint employer doctrine will significantly affect franchised businesses. There are, for example, many NLRB cases contesting whether McDonald’s Corporation is a joint employer of its independent franchisees’ employees.

Eliminating Micro-Units

In 2011, the NLRB issued a ruling in Specialty-Healthcare that has permitted unions to organize smaller subsets of an employers’ workforce. Essentially, the Obama Board would accept most any bargaining unit containing employees who share some “community of interest”. The employer had the burden of proving that additional employees share an “overwhelming community of interest” in order to enlarge the scope of a proposed bargaining unit.

The new line of cases beginning in 2011 benefited unions seeking to organize, because they did not need to win the support of as many employees within a workplace. Indeed, they had greater latitude to pursue bargaining units that happened to coincide with employees who favored union representation. Pockets of co-workers who opposed the union could be ignored.

On December 15, 2017, however, the Miscimarra-led Republican majority reinstated the NLRB’s traditional community of interest standard in determining what bargaining units are appropriate. Under this restored test, the Board will evaluate “whether the employees in a petitioned-for group share a community of interest sufficiently distinct from the interests of employees excluded from the petitioned-for group to warrant a finding that the proposed group constitutes a separate appropriate unit.” (You can read the full decision here.)

2017 NLRB Makes Way for 2018

President Trump will have the opportunity to appoint his third NLRB member by the beginning of his second year in office. That is somewhat remarkable considering that Board members hold 5-year terms.

There’s no obvious reason to doubt that the newest Board member will agree with these 2017 NLRB reversals. He will likely join Members Kaplan and Emmanuel in reversing other Obama-era decisions, giving employers more latitude to manage their workplaces.