Employers Take Note! Labor’s Resurgence Could be Real this Time

By Jason Patterson, Tracey Truesdale, Michael Warner and Koga Ndikum-Moffor - Franczek P.C.

April 18, 2022

Despite the always shifting pendulum of labor law, unionization rates in the private sector have decreased and remained low since the 1970’s. However, a recent surge of unionization efforts, coupled with unique economic conditions and key initiatives at the National Labor Relations Board (NLRB), signal a potential resurgence of the labor movement. Employers with or without unionized workforces should closely monitor these developments and ensure they understand the potential impact on their operations.

Historic Organizing Victories

For decades, companies such as Amazon and Starbucks have remained union-free. Many believe these companies have defeated organizing attempts because of their strong pay and benefit practices. However, like every other aspect of life, the pandemic changed how workers view and value their employment.

On April 1, the Amazon Labor Union (ALU) made history by becoming the first labor organization to win an election at Amazon with its victory at the JFK8 warehouse in Staten Island, New York City. The ALU is an independent union founded by two individuals, including an employee who was terminated after he led a safety walkout, and a current Amazon employee stationed at JFK8. Most notably, the ALU won the election despite minimal financial resources and virtually no union organizing experience. The organizers ran their campaign from a nearby public bus stop and relied on unconventional tactics to connect with employees.

Amazon is also facing a longstanding organizing campaign at its Bessemer, Alabama facility. In April 2021, the Retail, Wholesale and Department Store Union lost an election to unionize the workers at the Bessemer facility. However, the NLRB ordered a re-run election as the result of its finding that Amazon unlawfully interfered with the election. The re-run election was conducted a few weeks ago. While Amazon currently has a very slight lead in counted ballots, a hearing has been scheduled to consider challenged ballots that could determine the winner of the election. Amazon and the Union also filed objections alleging each side unlawfully interfered with the election. While the Staten Island and Bessemer facilities are only two of many Amazon facilities, these organizing campaigns have energized the labor movement and could result in more successful campaigns, not just at Amazon, but at other employers of all sizes.  

Unionization efforts have also been successful at Starbucks. In December 2021, employees at a Starbucks store in Buffalo, New York were the first to successfully vote to unionize. Since the first store’s success, approximately 200 Starbucks stores have followed suit and filed union petitions, including stores in Boston, Chicago and Seattle. The organizing efforts are being led by a group called “Starbucks Workers United” and are supported by the SEIU affiliated “Workers United.”

Increase in Filings of Petitions for Union Representation

Earlier this month, the NLRB issued a memo reporting a 57% increase in the filing of petitions seeking union representation from October 2021 to March 2022, as compared to the same period the previous year. It is too early to know whether this will equate to an increase in election victories, and an increase in the overall unionization rate of private sector employers. However, this surge in the filings of petitions indicates union organizing activity has increased, and employees are seeking to be represented by unions at a higher rate. Recent high-profile successes at Amazon and Starbucks are likely to increase interest in unionization among workers.

Changes at the National Labor Relations Board

In addition to a surge of organizing activities, and key organizing victories at large employers, we are expecting a series of union friendly decisions and initiatives from the NLRB. This is the result of recent changes to key personnel at multiple levels of the agency.  

General Counsel Jennifer Abruzzo: The Board’s General Counsel sets the prosecutorial agenda of the Agency and directs the work of the investigators and attorneys at the Board’s regional offices. Last year, President Biden appointed Jennifer Abruzzo as the Board’s General Counsel. Abruzzo set an ambitious agenda for the agency focused on convincing the full NLRB Board to reverse several employer-friendly decisions and to otherwise change or modify existing precedent in favor of employees and unions. Unsurprisingly, decisions and procedures related to union organizing are at the heart of many of her initiatives. Some of these initiatives include:

- Urging the Board to restrict the right for employers to require employees to attend meetings to hear the employer’s position on union organizing;
- Requiring employers to recognize a union based on signed authorization cards from the majority of employees instead of a secret ballot election;
- More severe remedial action for unfair labor practices committed during union organizing campaigns.

The General Counsel’s positions are only recommendations, and there is no guarantee the full NLRB will agree with the General Counsel. However, the NLRB has discretion to reverse and/or modify the law on these topics. Depending on the how the Board rules, unions may have an easier path towards recognition.

More concerning for employers in the short term is that employers may be at an increased risk of getting embroiled in protracted and expensive NLRB investigations even if they are engaging conduct that may be lawful under current law, as the GC actively looks for “test cases” to bring to the full Board as a means to reverse existing precedent.

Five-member NLRB Panel: The NLRB (sometimes referred to as the “Big Board”) is the five-person panel appointed by the President to hear appeals from unfair labor practice and representational decisions. Essentially, the Board’s decisions become the law. During the Trump administration, the Republican majority Board issued several employer-friendly decisions. The Board’s majority has shifted back to a Democratic majority, and it is expected that many of the Trump era decisions will be reversed. While we cannot presume that the Democratic Board will always agree with all the positions taken by the new General Counsel, it is expected that many of the doctrines adopted by the Obama Board will return.

What Does This Mean for Employers?

The surge in union organizing activities, in addition to union-friendly changes at the NLRB, should not be taken lightly by employers. Union campaigns are often successful because employers are caught off guard without a plan. Employers with unionized workforces should continue to work with their counsel to monitor these developments, as they may impact your current bargaining units. Employers without a unionized workforce should assess the climate of their workforce and work closely with counsel to understand their rights, the NLRB representation process, and put together a tentative plan on how management would respond to attempts to unionize.   

For more information on these developments, or on how to lawfully respond to a union organizing campaign, contact Jason Patterson, Tracey Truesdale, Sally Scott, Melissa Sobota, Jennifer Dunn, or your regular Franczek attorney contact.

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