On October 18, 2023, I presented a complimentary webinar entitled “2023 NLRB Update”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.
In the webinar, I discuss:
Work Rules & Policies
Election Rules & Results
Bargaining Rules & Standards
What’s Next?
and much more!
The National Labor Relations Board enforces the National Labor Relations Act, which applies to most public-sector employers in the United States. This law permits employees to unionize, but also has implications in non-union workforces as well. The NLRB’s interpretation and application of the NLRA fluctuates, typically based on which political party is in the majority on the 5-member Board in Washington. NLRB Board members are appointed by the President to five-year terms, so policy shifts, which primarily occur through adjudicating cases, do not occur immediately upon a change in the White House. But recently, the Board has reversed course on many issues, creating a more burdensome regulatory environment for employers.
A series of significant policy changes from the NLRB should have all private employers on alert. For example, many previously commonplace work rules and employee policies may now be found to violate the NLRA. Moreover, changes to the union election rules and related procedures will likely make it harder for employers to oppose union organizing campaigns. Developments regarding collective bargaining rights and obligations are also shifting, as is pertinent to those companies whose employees are already represented by a labor organization.
Much of the most dramatic new caselaw arose in August 2023. The new election rules are scheduled to take effect on December 26, 2023. This webinar discusses what all U.S. businesses should know about the latest from the NLRB. More than ever, employers must be proactive to avoid unfair labor practice charges and representation proceedings.
This webinar also provides insights into recent union election data, trends, and results that aren’t available elsewhere.
The National Labor Relations Board began announcing an increase in union organizing activity in early 2022. More detailed analysis showed that those gains were primarily driven by elections at numerous Starbucks stores. Otherwise, the 2022 election statistics only suggested a return to pre-COVID levels. Now, however, statistics from the final three months of calendar year 2022, appear to reflect a general increase in union election filings entering 2023.
Starbucks Effect
Election petitions involving Starbucks stores accounted for an overwhelming proportion of the NLRB’s reported increase in union election filings in its fiscal year 2022 (from October 2021 through September 2022). For more, read Why Are Union Elections Increasing in 2022?
In NLRB FY 2022, there were 349 election petitions filed seeking union representation at Starbucks stores. To date, the union has won recognition in 223 cases and lost 48 times. Twenty-nine of the petitions have been withdrawn or dismissed for various reasons. Forty-nine of the cases remain open.
Excluding Starbucks cases, 1,345 union representation petitions were filed with the NLRB between January 1, 2022, and September 30, 2022. Though the numbers were much lower in 2020 and 2021 during the height of the COVID-19 pandemic, the same period in pre-COVID 2019 saw 1,329 union representation petitions filed. In other words, Starbucks-adjusted, there was only a 1% increase in 2022.
New Year Uptick
Entering 2023, continued increases in union representation elections seem to exceed any direct Starbucks or COVID impact.
Over the second half of NLRB FY 2022 (April-September), non-Starbucks union election petitions (922) were actually below the total for the same period in 2019 (943). The fourth quarter of FY 2022 (July-September) saw only a minimal increase from 453 to 464 compared to 2019.
Then, from October 1 through December 31, 2022, there were 437 union election petitions filed that didn’t involve Starbucks. That represents a 16% increase from the same “post-COVID” period in 2021 and a nearly 8% increase from the same pre-COVID period in 2019.
Note that Starbucks employees are still seeking representation at new stores. Thirty-six union representation petitions were filed between October and December 2022. Only 11 were filed during those months the previous year, when the Starbucks organizing campaign had just begun. But the Starbucks monthly filing rate has decreased to about a third of what it was in NLRB FY 2022.
Where Are Union Elections Becoming More Likely?
A few states substantially account for the recent increase in Starbucks-adjusted union representation petition filings. Due to differences in population and other factors, such as historical union activity, the typical number of petitions varies considerably between states. Thus, a proportional increase in filings in a given state will have a greater or lesser impact on the total number of election petitions filed nationwide.
First, let’s look at the total number of union representation petitions filed between October and December over the past few years in several notable states. These are listed in the chart below.
Union Election Petitions Filed Oct.-Dec.
2019
2020
2021
2022
California
52
51
47
74
DC
9
10
13
15
Georgia
5
0
3
7
Massachusetts
18
8
4
24
New York
67
40
42
54
Tennessee
1
1
2
5
Texas
9
8
7
17
Not surprisingly, California had the most petitions between October and December 2022. Conversely, Southern states Georgia and Tennessee had only about a handful. And Texas had relatively few compared to its overall population. However, these states had proportionally more union representation petitions filed in Oct.-Dec. 2022 than over the same months in the recent past.
Here are the ranked percentage increases in union election filings for these states for Q1 of the NLRB fiscal years 2022 and 2023:
Massachusetts: 500%
Tennessee: 150%
Texas: 143%
Georgia: 133%
California: 57%
New York: 29%
DC: 15%
And here are the percentage increases between the first quarters of the NLRB fiscal years 2023 and 2020 (the last fully pre-COVID quarter):
Tennessee: 400%
Texas: 89%
DC: 67%
California: 42%
Georgia: 40%
Massachusetts: 33%
New York: -19%
Large Labor-Friendly States: A Closer Look
New York
Yes, to be clear, total union representation petitions filed in New York remain below pre-COVID levels. But they are up over last year. Frankly, New York probably wouldn’t be worth mentioning here, except that it normally accounts for a significant portion of the union elections filed with the NLRB. So a modest increase from Q1 FY 2022 to Q1 FY 2023 has a material impact on the total nationwide increase. As previously discussed, it is plausible that union organizing in New York is still recovering from COVID-19 at a slower rate than the rest of the country.
In fact, we can dig deeper and learn that non-Starbucks petitions are essentially flat throughout most of New York State. All of the year-over-year increase comes from Region 29 of the NLRB. Region 29 is based in Brooklyn and covers Brooklyn, Queens, Staten Island, and Long Island. NLRB Q1 union representation petitions not involving Starbucks increased from 7 in FY 2022 to 19 in FY 2023. But that number still falls well below the 33 such filings in Oct. through Dec. 2019 (Q1 FY 2020). Meanwhile, Manhattan and Upstate New York filings have remained surprisingly consistent, with hardly any deviation among the first quarters of fiscal years 2020, 2022, and 2023.
California
Similarly, California’s increase is localized to two of the four NLRB regions covering the state: Region 20, based in San Francisco, serving the northernmost part of the state, and Region 21, based in Los Angeles and San Diego, serving the southernmost part.
California union representation petitions increased from 10 in Q1 FY 2022 to 21 in Q1 FY 2023 in Region 20 and from 12 to 21 in Region 21. The Q1 FY 2020 filings were 9 for Region 20 and 14 for Region 21, showing more than just a return to pre-COVID levels. While the central California Regions (31 and 32) increased slightly between Q1 FY 2022 and 2023, both Regions are still roughly even with Q1 FY 2020 petitions.
Decertification Petitions
The corollary to an NLRB petition seeking union representation (known as an “RC” petition) is a decertification (“RD”) petition seeking the removal of a previously recognized union representative. An earlier analysis of RD petitions for the first half of FY 2022 supported the conclusion that last year’s increase in RC filings (not involving Starbucks) may have been a COVID-related phenomenon. A 42% year-over-year increase in RD petitions over that period was actually higher than the Starbucks-excluded increase among RC petitions (36%).
Decertification petition filings remained at or above pre-COVID levels throughout FY 2022. However, it appears that trend may be dissipating. Seventy RD petitions were filed with the NLRB between October and December 2022–virtually the same as the 71 filed in the same period in 2021. While still higher than the 56 filed in October-December 2019, the RD petitions filed in Q1 FY 2023 remain below the levels for the same period of 2017 (82) and 2018 (76).
Representation Election Results
Unions typically win about 70% of the representation elections held. Many petitions filed in Q1 FY 2023 have not yet resulted in elections. Among those that have, unions have won about 75% of the time. But with so many cases yet to be decided, we don’t know whether unions are really becoming more likely to win representation status.
What Does the Recent Increase in Union Elections Means for Employers in 2023?
It’s really still too early to tell. But the latest statistics start to suggest a measurable shift toward greater unionization at private sector companies in the United States. Certain Southern states might be experiencing a particular renewed interest in union activity. Georgia, Tennessee, and Texas might constitute a current “watch list.” Areas with an existing higher propensity toward unionization, like parts of California, New York, and Massachusetts, may also be undergoing renewed employee interest in organizing.
Employers should continue to monitor these data, especially if they have any reason to suspect union organizing in their workplace.
On August 4, 2022, I presented a complimentary webinar entitled “Union Organizing Update for Employers”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.
In the webinar, I discuss:
Representation Case Statistics
Starbucks’ Impact
Decertification & Withdrawal of Representation
Planning Ahead
and much more!
The National Labor Relations Board recently reported a 58% increase in union election petitions. In this webinar, I break down that statistic to help employers understand what it may mean for their company.
In addition to the deep dive into NLRB data on recent union organizing efforts, we discuss practical implications and what you should consider if a union seeks to organize your employees.
Why You Should Watch “Union Organizing for Employers”
Most companies would prefer not to have to negotiate with a third-party union over their employees’ terms and conditions of employment. Therefore, employers should remain alert as to employee concerns at all times. Beyond knowing your own employees, you should remain aware of general trends in unionization that could affect your workforce. This webinar provides an in-depth analysis of NLRB union election statistics to better inform you on the current status of labor organizing in the U.S.
Despite general pronouncements of increased union election activity, we find two major factors driving the statistics. How do these affect your company? What should you be doing now if you want to remain union free?
Plus, learn what you should be prepared to do if a union does seek an election among your employees. There are critical decisions to be made quickly in these cases and the wrong moves can have negative legal and practical consequences.
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