Tag: organizing

April 18, 2022

Union Elections in New York Still Below Pre-COVID Levels

The National Labor Relations Board recently proclaimed an increase in union representation petitions nationwide. The NLRB noted that such filings are up 57% during the first half of the federal 2022 fiscal year (October 1-March 31) compared to the first half of FY 2021. A more in-depth look at the statistics, including a focus on filings in New York State, suggests that election petitions are only returning to pre-COVID levels. And a significant portion of the recent union elections involves a single employer. Whether there is a COVID-independent underlying trend of workers more eagerly pursuing unionization remains to be seen.

NLRB Press Release

The NLRB announced an increase in both representation petitions and unfair labor practice charges in an April 6, 2022 press release. The announcement aimed at justifying additional funding for the agency. For example, it asserts, “The increase in cases comes during a period of critical funding and staffing shortages for the Agency.” The press release notes that the NLRB’s Congressional appropriation has remained the same for nine years.

NLRB General Counsel Jennifer Abruzzo concluded the press release by arguing, “Right now, there is a surge in labor activity nationwide, with workers organizing and filing petitions for more union elections than they have in the last ten years.”

The press release states that 1,174 “union representation petitions were filed at the NLRB” between October 1, 2021, and March 31, 2022. This number reflects all “representation” petition filings during that time. These include both petitions from unrepresented employees seeking to unionize and various other categories of petitions regarding existing bargaining units. Most notably, it also includes decertification petitions from employees trying to vote out their existing representative to go union-free. These “RC” and “RD” petitions, as described below, account for over 90% of the representation cases referenced in the NLRB’s April 6th press release. (Other less common cases include unit clarification petitions seeking to adjust which positions are included in an existing bargaining unit and petitions filed by employers who believe their employees no longer support the union.)

Representation Petitions – RC

The following description from the NLRB website offers a concise explanation of the process by which employees can seek an election to determine whether they will become unionized:

Employees or a union may file a petition for a representation election (RC) after collecting signatures from at least 30% of workers in the potential bargaining unit. Petitions that are not withdrawn or dismissed result in an NLRB-conducted election. A majority of votes decides the outcome.

Nationwide RC Petitions

From 2012 to 2021, employees filed an average of 1,807 RC petitions each fiscal year across the United States. (Note: The NLRB only has jurisdiction over private employers. These data and the related law and procedures do not reflect unionization within the public (e.g., government) sector.)

During this time, petitions ranged from a high of 2,198 in FY 2015 down to 1,269 in FY 2021. It is probably a not mere coincidence that the number rose during the Obama administration and then fell under President Trump, as Republican-led labor boards are understandably seen as less favorable to employees and unions. However, the continued decline at the beginning of the Biden administration would be puzzling but for the COVID-19 pandemic, which began in March 2020–midway through FY 2020.

The following graph splits the data into six-month intervals beginning a year before COVID hit.

Here we see that the greatest decline in the filing of union election petitions occurred in the one-year period following the onset of COVID. During those 12 months, employees only petitioned for unionization 1,163 times. There are many reasons to expect that less unionization would have occurred during this period when many businesses were closed or operating on a more remote basis. The NLRB itself had reduced operations as a result. Plus, generally, workers had more pressing concerns than becoming unionized.

That being said, it is possible that the experiences of the pandemic prompted more employees to seek unionization as the COVID restrictions waned. In the first half of FY 2022, more union election petitions were filed than in the two half-year periods preceding the pandemic–16% more than the first half of FY 2020, but only 4% more than in the second half of FY 2019.

The RC petition filings in the first half of FY 2022 appear to reflect a return to pre-COVID union organizing efforts. However, there is a significant asterisk. At least 178 of the 976 (18%) union election petitions filed in those six months involve Starbucks, which is experiencing a unique proliferation of store-by-store unionization. Without those petitions, the total level would be closer to 800 filings–still below pre-pandemic levels.

New York RC Petitions

Between 2011 and 2020, employees filed an average of approximately 245 RC cases each year in New York. In the past year, only 210 were filed.

New York City was the initial epicenter of the COVID-19 outbreak in the United States. Thus, it would not be surprising that union representation petitions declined sharply in New York in 2020.

The following graph shows a breakdown of RC petition filings over the past six half-fiscal-year periods.

Statewide, RC petitions fell 57% between the first and second halves of FY 2020. They then began to increase gradually. In the first half of FY 2022, employees filed 113 union election petitions in New York–still down 16% from the corresponding period immediately pre-COVID, but virtually the same as the level of such filings in the second half of FY 2020.

The NLRB is divided into 26 regions across the country. Each region has one or more offices that process cases filed within their geographic area. New York State is split into three NLRB regions. Downstate, Region 2 serves Manhattan, the Bronx, and Orange, Putnam, Rockland, and Westchester counties, while Region 29 serves Brooklyn, Queens, Staten Island, and Nassau and Suffolk counties. Region 3 serves the rest of the state.

In the first six months of the COVID pandemic, RC filings dropped 71% in Region 29. The smaller declines of 46% in Region 2 and 52% in Region 3 were still much higher than the 24% decline experienced outside the state.

Election petitions remain down in Region 29, perhaps reflecting the intensity of the pandemic’s impact in the area. The first-half FY 2022 filings in Regions 2 and 3 are more in line with the apparent national rebound.

But, in Region 3, 11 of the 31 (35%) RC petitions involve Starbucks. In fact, the first Starbucks store to unionize is in Buffalo, where Region 3 is headquartered. Starbucks also accounted for 4 of the 21 filings in Region 29.

Decertification Petitions – RD

Employees who no longer want to be represented by a union may file a decertification (RD) petition upon a showing of support by at least 30% of the workers in a bargaining unit. The filing of decertification petitions has followed a similar trajectory as RC petitions over the past few years. This co-occurrence may further demonstrate that COVID, not an employee shift in pro-union sentiment, is the biggest factor in these data.

In New York, decertification petitions have remained steady over the past three years despite the pandemic. Given the relatively small number of decertification cases, it may be hard to draw any conclusions from this observation.

If anything, perhaps the COVID pandemic had less of an impact on decertification efforts than it did on unionizing efforts. Nationwide, RD petitions fell just 9% in the second half of FY 2020 (compared to the first half of that year), while RC petitions were down 29%. And in the first half of FY 2022, decertification efforts are up 29%, versus 16% for elections seeking union representation (which would still be down but for the Starbucks situation).

Union Election Outcomes

Not all NLRB representation petitions result in an election. In many cases, the petition is later withdrawn by the filing party or dismissed by the NLRB. The statistics above include all petitions filed regardless of the outcome.

RC Election Results

Across the U.S., only 2,893 of the 4,624 (63%) RC petitions filed since April 2019 have produced an election. As of April 15, 2022, 11% remain open. The other 26% were either dismissed or withdrawn for many different reasons. (Some of the dismissed/withdrawn cases were likely re-filed and are counted separately in the data.)

Of the 2,893 completed elections in the past three years, unions won 71% (70% outside of New York). Including the petitions that didn’t result in an election (but excluding those that remain open), 50% of RC petitions led to union representation.

During this time, unions have won 76% of the elections in New York, similarly resulting in union representation half the time an RC petition is filed.

Within New York, the union win percentage is highest in the NYC area: 77% in Region 2 and 79% in Region 29. The Region 3 rate of 72% for Upstate New York is closer to the national average.

It is possible that COVID-19 had a slight impact on union elections at the beginning of the pandemic. Both nationwide and in New York, the union win rate went down slightly in the second half of FY 2020.

The 62% New York union win rate in the first half of FY 2022 is interesting, but might be a statistical quirk given that nearly 40% of the cases filed during this period remain open. It is possible that still-pending elections are somehow more likely to be won by the union. But if this win rate persists once these cases are resolved, it would raise an important question of whether the pandemic or another underlying factor has produced the decline.

RD Election Results

Decertification elections are less successful in New York. Outside of New York, 62% of completed elections resulted in decertification in the past three years, compared to only 51% in the state. Despite considerably fewer RC petitions, Region 3 produced the majority of RD elections in New York (22 out of 35).

Are Union Elections Becoming More Common?

For Starbucks, absolutely. The coffee retailer has nearly 9,000 company-owned stores in the U.S. Most other quick-service restaurant chains rely more heavily on franchising, likely making them less vulnerable to (though not immune from) the type of organizing campaign Starbucks is currently experiencing.

Especially when excluding the Starbucks election petitions, it is hard to read the available statististics to reflect a general uptick in unionization. That’s not to say such a trend isn’t developing. And perhaps the pandemic will prove a motivating factor for more union elections. But, to date, the data more likely suggest only that union organizing is getting back to where it stood before COVID.

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

January 23, 2020

NLRB 2020 (Webinar Recap)

On January 22, 2020, I presented a complimentary webinar called “NLRB 2020: Updates for All Private Sector Employers”. For those who couldn’t attend the live webinar, we’re happy to make it available for you to watch at your convenience.

In the webinar, we discuss:

Employee Policies
Email Use
Investigatory Confidentiality
Representation Election Rule Changes
Union Issues

The National Labor Relations Board has a significant impact on private companies throughout the United States. The NLRB not only oversees union elections and management-labor relations, but also enforces employee rights to engage in concerted activities for their mutual aid and protection. Recently, the Board has taken many steps to reverse pro-labor rulings under the prior administration in Washington. We summarize many of those in this webinar.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “NLRB 2020”

Whether you currently have unionized employees or not, recent NLRB actions could affect your company. Fortunately, it’s mostly good news for employers.

After several years of restrictive enforcement of the National Labor Relations Act, the NLRB is now reiterating private companies’ rights to run their business. While employees still enjoy many protections, employers have more leeway in several areas that would have been problematic before.

If you are concerned about potential organizing activity, be sure to learn about the new NLRB election rules. These will favor employers compared to the current rules. But the procedures don’t change until April 2020, leaving open the possibility that unions will hurry to pursue organizing campaigns and elections before then.

Plus, if you already have unionized employees, there are also updates that affect you more directly. Recent NLRB decisions restore earlier longstanding views on deferral to arbitration awards, dues checkoff, and union insignias.

We also comment on the current composition of the NLRB Board and how it could change, along with what that could mean for employers.

Don’t Miss Our Future Webinars!

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January 7, 2020

Union Election Procedures to Change in 2020

In December 2019, the National Labor Relations Board finalized a rule to modify its union election procedures. This action will slow down the election process, giving companies more time to respond to election petitions. It ends a five-year reign of so-called “quickie elections.”

The new procedures will be in place beginning April 16, 2020.

2014 “Quickie-Election” Rules

The NLRB substantially changed its election procedures in 2014. Under the Obama Administration, the Democrat-led NLRB revised the rules to expedite elections. Those changes were primarily intended to reduce companies’ opportunity to respond to union organizing efforts. In other words, making it easier for employees to unionize.

In addition to condensing the timeline, the 2014 rules created a new disclosure requirement for employers. They required companies to provide extensive information about their workforce and response to the election petition in writing often in one week.

More Balanced Approach

As of April 16, 2020, the rules will change again to give employers more time to respond. The now Republican-led Board has not, however, completely reverted to the pre-2014 union election procedures.

There are many nuances to these procedures. Here are just some of the most impactful changes:

More Time Before Pre-Election Hearing

The 2014 rules provided for a pre-election hearing as soon as 8 days after the union filed an election petition.

The new rules delays hearing to the 14th business day. As before, the NLRB Regional office can postpone the hearing for good cause.

Statement of Positions Remains

Employers understandably did not appreciate the new requirement of preparing and submitting a Statement of Position after receiving an election petition. However, the NLRB has decided to keep that requirement in place. But they are making a couple of compromises in this area.

First, employers will now have 8 business days to file the Statement of Position. Under the 2014 rules, they often only had 7 calendar days, with a hearing to follow the next day.

Second, unions must now also file a written Statement of Position. The union has until 3 days before the hearing to do so.

Expanded Scope of Pre-Election Hearings

The 2014 union election procedures limited the subject matter of pre-election hearings to relatively few subjects. Fundamentally, they were limited to determining whether a question of representation exists. This required an appropriate bargaining unit to be identified, but did not allow employers to litigate individual voter eligibility or inclusion in the bargaining unit before the election. If the parties did not mutually agree on those issues, the NLRB would decide them after the election, if necessary, depending on the results.

Under the new rules, voter eligibility and unit inclusion issues usually will be part of the pre-election hearing process. This includes litigation over supervisory status. That question can be significant, as supervisors are not eligible to join a unionized bargaining unit. Moreover, employers can rely on supervisors as part of their election preparations. Thus, it is valuable to know who does and doesn’t qualify in that capacity under the National Labor Relations Act before the election takes place.

The new rules will also bring back the right for parties to call witnesses at the pre-election hearings. The 2014 rules limited the ways parties could present evidence at this stage.

Post-Hearing Briefs

With a focus on quick elections, the 2014 rules eliminated written post-hearing briefs by the parties. They would just be something else taking time to prepare, read, and respond to, after all!

The new union election procedures will allow the parties to summarize their positions in writing after the pre-election hearing. They have 5 business days after the hearing to submit briefs. The hearing officer can allow up to 10 additional days.

Scheduling the Election

Before the 2014 rule changes, union elections usually occurred 25-30 days after the direction of an election. That means, once the parties resolved all preliminary matters, either mutually or by hearing decision, the election would take place about 4 weeks later.

The 2014 union election procedures, moved that timeline up considerably. They required a Regional Director to “schedule the election for the earliest date practicable . . . .” That resulted in reducing the time between petition and election from 38 days to 23 days. The NLRB shows these statistics here.

The rules effective April 16, 2020, will return closer to the pre-2014 timeline. They provide that regional directors “normally will not schedule an election before the 20th business day after the date of the direction of election.”

More Time for Voter Lists

Once an election is scheduled, the employer must give the union a list of all eligible voters with contact information. Under the 2014 rules, companies only had 2 days to do so following the direction of an election. Now they will have 5 days.

Good and Bad News for Employers

Most companies should welcome these changes to the NLRB’s union election procedures. If nothing else, it gives you more time to respond if you do receive an election petition. And most employers will welcome the time to review their options in hopes of staying union-free.

But, there is a potential short-term downside to the rule changes. Significantly, they don’t take effect until April 16, 2020. Before then, the 2014 union-friendly rules remain in effect. This may result in unions rushing to begin election proceedings under the “quickie election” rules.

Companies that have any concern of a potential union organizing effort should evaluate the heightened possibility of an election petition in the first quarter of 2020. It is always better to be proactive if you want to keep a union out. This primarily means doing the right thing by your employees. But it also includes knowing the relevant procedures, legal parameters, and other logistical best practices. If you have any concerns in this area, you should consult with an experienced labor attorney sooner rather than later.

For more on what the NLRB has been up to, check out our upcoming webinar: NLRB 2020: Updates for All Private Sector Employers