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.
In an April 7, 2023, press release, the National Labor Relations Board announced a slight increase in union election petitions for the first six months of its 2023 fiscal year. Digging deeper, however, the latest data may suggest more of an uptick in unionization than even the NLRB acknowledges. After stripping away the unprecedented number of Starbucks elections sought last year, the number of union election requests from October 2022 through March 2023 reveals a potentially much broader trend.
NLRB Press Releases
The NLRB’s recent press release focused more on unfair labor practice charge filings, which were up 16% during the first half of the current fiscal year. Unlike last year’s corresponding release, the reference to union election petitions was much more subdued. October – March FY ’23 saw 1,200 total representation cases filed, compared to 1,174 during the same period last year. That’s only a 2% increase.
In the first half of FY ’22, the NLRB reported a shocking 57% increase in representation case filings. As we discussed at the time, that statistic was skewed by two key factors: Starbucks and COVID-19. The NLRB’s numbers also aggregate all representation cases, not just those seeking to form a union in the first instance. Most notably, “representation cases” also include filings seeking to remove a union from a workplace. Such “decertification” filings were up 35% in the first half of FY ’22 compared to the corresponding months in FY ’21. (These “RD” cases are back down 13% in FY ’23.)
In some senses, it’s fair to say the NLRB oversold the increase in representation cases a year ago. Yes, it was dealing with more cases than in the previous year. But, Starbucks aside, that didn’t reflect an overall greater propensity to organize. Nonetheless, we may now be experiencing that reality.
Union Election Requests – RC Petitions
Overall, the National Labor Relations Board received 1,012 “RC” petitions seeking union representation between October 2022 and March 2023. That’s a 3.5% increase over the 977 petitions from the same period last year.
But, when you simply remove the Starbucks cases, the magnitude of the increase rises to 18%. The 941 non-Starbucks cases so far in FY ’23 exceed the total (840) for the first six months of FY ’20, which ended just as COVID-19 started to shut down the U.S. By contrast, the 798 non-Starbucks cases for the same period last year (FY ’22) did not. In other words, non-Starbucks RC cases in Oct.-Mar. FY ’22 were down 5% compared to the last corresponding pre-COVID period, but the Oct.-Mar. FY ’23 filings were up 12%.
Starbucks RC Petitions
With 354 union election petitions involving Starbucks in FY ’22, it’s no surprise RC filings for the coffee retailer are down in the first half of FY ’23. There are fewer stores left to unionize. And the rare few that voted against the union are not yet susceptible to a new petition due to the NLRB’s “election bar” rule. Nonetheless, there still were 71 union election requests filed involving Starbucks between October 2022 and March 2023.
The following graph shows the total number of RC petitions filed in the first half of the corresponding NLRB fiscal years since FY 2018.
State-Specific Data
Looking at the data more locally, on a state-by-state basis, we see a few trends that may be instructive despite the relatively smaller sample sizes. As usual, California and New York have experienced the most union election requests in the first half of FY ’23. New Jersey and Pennsylvania have experienced a notable decline, while filings are up in Alabama, D.C., Massachusetts, North Carolina, Oregon, and Texas.
For this analysis, we’re excluding RC filings at Starbucks stores. As part of a nationwide employer-specific movement, we assume they’re less instructive of the general union activity in a particular geographic region. All statistics below are for the first half of the fiscal year (October through March) mentioned.
Alabama
Alabama sees very little union activity compared to most states. But the 8 union representation petitions filed so far in FY ’23 are double what the state usually sees in the first half of a fiscal year. There were 4 such filings in both 2020 and 2022, though there were also 8 in 2019.
California
RC filings in California have increased 43% from FY ’22 to FY ’23 and 54% compared to FY ’20.
D.C.
Though not a state, D.C. does have its own NLRB case data, and the numbers are up. Note the following first six months RC petition filing numbers for the respective fiscal years:
2023: 32
2022: 20
2021: 15
2020: 17
2019: 11
2018: 19
That’s a 60% increase from last year, which had been the high point in recent history.
Georgia
Though still modest overall, the level of union election petitions in Georgia has reached a new recent high as well:
2023: 14
2022: 8
2021: 2
2020: 7
2019: 6
2018: 8
Illinois
Illinois is among the more unionized states, but the FY ’23 numbers are higher than usual. The 71 RC petitions this year represents a 27% increase over 56 such cases in FY ’22 and a 13% increase over FY ’20.
Massachusetts
Another relatively union-prevalent state, Massachusetts has likewise experienced a recent increase in unionization activity. Its 44 union election requests in FY ’23 are a 175% increase compared to last year and up nearly 70% from its pre-COVID average.
New Jersey
Along with Pennsylvania, New Jersey is one of the few states that have seen fewer RC petitions in FY ’23. As shown below, these filings are down 15% versus last year and 58% compared to FY ’20. As with New York, we see a significant, and potentially lingering, COVID impact:
2023: 22
2022: 26
2021: 19
2020: 52
2019: 47
2018: 48
New York
New York’s FY ’23 filings are up 12% over last year, but still trail their pre-COVID FY ’20 level:
2023: 106
2022: 95
2021: 84
2020: 133
2019: 86
2018: 100
North Carolina
North Carolina slots in with Alabama and Georgia as southern states with traditionally low levels of union organizing activity. But it too has seen more RC cases filed in FY ’23:
2023: 12
2022: 4
2021: 5
2020: 9
2019: 4
2018: 4
Oregon
It may not be surprising that Oregon seems to be an increasingly pro-labor environment:
2023: 38
2022: 30
2021: 16
2020: 23
2019: 18
2018: 18
Pennsylvania
Pennsylvania shares a border and other potentially relevant conditions with New Jersey. Union election petitions are down similarly in both states. Here’s the Pennsylvania data:
2023: 40
2022: 57
2021: 49
2020: 59
2019: 51
2018: 29
Texas
Given its geographic size and growing (and already large) population, it may be particularly interesting to see that more than twice as many union election petitions (34) have been filed in the first half of FY ’23 compared to the previous year (16). That’s also a nearly 50% increase over pre-COVID levels:
2023: 34
2022: 16
2021: 15
2020: 23
2019: 21
2018: 25
Union Representation Election Results
Historically, unions win about 70% of the representation elections held. So far, they’ve won 78% of the 427 elections decided on petitions filed in FY ’23. Of course, that means nearly 700 of those cases have not yet resulted in an election being decided. Nearly 200 (~20%) have been withdrawn or dismissed. Almost 400 more cases are still pending.
With most representation cases filed in the first half of FY ’22 resolved, unions have won 75% of the elections completed, as they have in the aggregate for all elections in cases filed since the beginning of FY ’22 to date. The union has won a much higher percentage (83%) in Starbucks elections. But the non-Starbucks rate of 73% is still relatively high. And the Starbucks-adjusted union win rate for FY ’23 remains 78%.
It’s possible that the remaining open cases will shift the union win percentage down, But it’s also possible that unions are becoming increasingly successful in representation elections. Coupled with the growing number of election petitions filed, an increased union win rate warrants employers’ attention.
In January 2023, NLRB union election filings continued their recent climb. But you must look beyond the raw numbers to see this reality. As has been the case for the past year, union organizing at Starbucks stores still complicates the analysis.
January 2023 Union Election Petitions
Overall, the National Labor Relations Board received 150 “RC” petitions seeking union representation in January 2023. While that is much lower than the 169 filed last January, the decrease is all attributable to the maturation of the Starbucks unionization campaign.
In January 2022, there were 35 petitions seeking elections involving Starbucks stores. This year that number has declined to only 7–an unsurprising result, given the volume of stores that already had elections last year.
Setting aside the Starbucks petitions, the 143 other union elections sought this January represent a 6% increase over the 134 non-Starbucks election petitions in January 2022.
With or without the Starbucks cases, the January 2023 RC filings nearly match the 149 petitions from January 2020 and significantly exceed the 114 January filings in both 2018 and 2019, as shown in the graph below.
FY 2023 to Date
The NLRB’s current fiscal year began on October 1, 2022. In the first four months of FY ’23, there were 582 union election petitions filed that didn’t involve Starbucks–a 13.5% increase from the same “post-COVID” period in FY ’22 and a nearly 5% increase from the same pre-COVID period in FY ’20.
California and Texas Lead the Way
Most U.S. states see very few NLRB union election petitions filed in a single month. California and New York–large, relatively labor-friendly states–typically account for among the most RC petitions, as they did in January 2023. But it’s more notable that Texas continues to experience an upward trend in union elections.
California
With 15 non-Starbucks RC filings, California saw a 36% year-over-year increase from 11 petitions in January 2022. But 15 is well below the 23 January California RC petitions in 2020 and only back to the January average between 2018-2019.
Texas
Despite being the second-largest U.S. state by both land and population, Texas usually only sees a few RC petitions each month. Lately, that seems to be changing. Even excluding Starbucks, eight union election petitions were filed in Texas in January 2023. By comparison, only one RC petition was filed in the state in both January 2021 and January 2022, and 5 each in the month in 2019 and 2020.
With small sample sizes, it’s hard to reach dramatic conclusions about a potential trend toward increased union organizing in Texas. However, we can go back a little further for similar results. Between October and December 2022 (the first quarter of the NLRB’s 2023 fiscal year), 17 union election petitions (not involving Starbucks) were filed in Texas. Thus, there have been 25 such filings in the current NLRB fiscal year. During the same period in the previous fiscal years, there were only eight (FY ’22), nine (FY ’21), and 14 (FY ’20) union representation cases in Texas.
Georgia
Another southern state with an upward trend, Georgia had three non-Starbucks RC filings in January 2023. It had four total union election petitions filed in the previous five Januarys combined. There have now been 10 cases in Georgia this fiscal year, nearly as many as the 11 total union elections sought in Georgia between October and January over the previous three years.
Other Notable Gainers
Starbucks-adjusted January RC filings are also meaningfully up in:
D.C.: 6 in 2023 vs. 3 in 2022 and 6 total from 2018-2021
Illinois: 14 in 2023 vs. 11 in 2022 and no more than 9 between 2018-2021
Massachusetts: 6 in 2023 vs. 3 or 4 in each of the previous five years
Nevada: 7 in 2023 vs. 4 in 2022 and no more than 5 since 2018
North Carolina: 3 in 2023 vs. 3 total from 2018-2022
Washington: 9 in 2023 vs. 5 in 2022 and no more than 6 since 2018
Notably Down: New York & New Jersey
New York dropped from 16 to 12 January union election petitions compared to last year, matching the state’s five-year January low set in COVID-afflicted 2021.
New Jersey is another heavily unionized state that experienced a decrease in union election petitions in January 2023. Only five RC petitions were filed in the Garden State that month versus nine in both January 2022 and January 2020. (Like New York, New Jersey also experienced a large dropoff in such filings in January 2021 (only 1 case), presumably related to COVID-19 effects.)
FY 2023 Union Representation Election Results
Unions typically win about 70% of the representation elections held. Many petitions filed in Q1 FY 2023, including all of those filed in January, have not yet resulted in elections. Among those that have, unions have won about 76% of the time. Unions only won 71% of the elections held in cases filed in Q1 FY 2022. However, it may be too early to conclude that unions are winning elections more often since the data are incomplete.
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