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.
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.
On September 23, 2019, the National Labor Relations Board (NLRB) issued a proposed rule that would address whether college and university students who work for their schools can join unions. This rulemaking is a new approach to resolving a labor law question that has not had a consistent answer in recent decades. The proposed rule would enable institutions of higher education to keep their students out of unions.
Are Students Employees?
Many students hold jobs with their schools. For example, many graduate students serve as teaching assistants. The students often receive compensation for this work, whether direct compensation or credit toward their education costs.
The question of interest under the National Labor Relations Act (NLRA) is whether these students qualify as “employees” who have the right to form or join a union. Specifically, that is, a union that would negotiate on their behalf with the school over the terms and conditions of their employment.
(Note: The NLRB only has jurisdiction over private, non-governmental employers. Accordingly, public colleges and universities are outside its jurisdiction. However, the many private schools in the country are within its purview.)
Historical Approach
For many years, the NLRB has interpreted the NLRA primarily through adjudicating cases. It rarely used formal rulemaking to establish legally binding interpretations of the law. The Board’s adjudicative approach has increasingly produced a back-and-forth pendulum on many contentious issues. As a result, the labor law’s protections depend more and more on which party controls the NLRB.
In 1974, the NLRB ruled in a case involving Stanford University that graduate student research assistants are not “employees”. Instead, the Board ruled, they were “primarily students”. This decision kept college students out of unions for more than 25 years.
Then, in 2000, the NLRB held for the first time that certain New York University graduate students were employees under the NLRA. That conclusion was reversed, however, just 4 years later in a case involving Brown University.
Most recently, the NLRB went back in the direction of its NYU decision, and beyond. In 2016, the Board ruled that both graduate and undergraduate students at Columbia University could qualify for the NLRA’s protections as employees, even if their positions were externally funded.
Proposed Rule to Exclude Students from Unions
Seeking to stop the bouncing ball, the current NLRB has shifted toward rulemaking on significant labor policy issues. On the student-employee issue, the Republican Board majority takes a position that would keep students out of unions. In other words, the NLRB would not assert jurisdiction over them under the NLRA.
As an exception to standard jurisdiction over private colleges and universities, the proposed rule provides:
“Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the [NLRA].”
Comment Period
As required under federal law, the NLRB has allowed time for the public to comment on the proposed rule.
Interested parties can file comments up until December 16, 2019. In addition, comments responding to other comments can be filed until December 30, 2019.
Given these deadlines, the NLRB will not be able to issue a final rule this year. However, it is likely there will be a final rule that will keep college and university students out of unions beginning in 2020.
What This Means for Employers
If you work for a private college or university, the potential impact is somewhat apparent . . . at least in the short term. With this change, students who work for the school will not have rights under the NLRA to engage in collective activity for their mutual aid and protection. They will not be able to join unions if the employer objects. But, if the political tides shift in Washington, the rule could be eliminated or revised in the future.
For other private employers, this signals a trend toward pro-employer rulemaking by the NLRB. Generally, this is a positive sign of greater leeway to run your business. But, again, the trend could be shortlived. Employers will continue to be at the mercy of the party that controls the NLRB–generally, the one that holds the Presidency. So, you can never get too comfortable in your understanding of the NLRA’s impact on your workplace.
You must be logged in to post a comment.