Q. There have been lots of recent headlines about workers unionizing, but is labor activity actually increasing — and what’s on the horizon for employers?
A. Although union membership declined slightly between 2020 and 2021, labor organizing now appears to be on the rise. The National Labor Relations Board (NLRB or Board) announced this month that union election petitions increased by 57% in the first half of the federal fiscal year, which began in October 2021. At this pace, the nation is on track this year to see the highest levels of union election petitions in at least a decade, according to the NLRB.
Several intersecting factors help to explain this surge, including rising inflation and stressors related to working during the ongoing COVID-19 pandemic.
Union organizers also have likely gained confidence since last August when the Senate approved two Biden appointees — both long-time, union-side attorneys — shifting party control of the NLRB to the Democrats.
In addition, NLRB General Counsel Jennifer Abruzzo, whom President Biden appointed in February 2021, has recently signaled policy shifts that, if implemented, will make it harder for employers to challenge petition drives.
For example, in a brief to the Board in a case called Cemex, the general counsel called for the reinstatement of the Joy Silk doctrine, which would require more employers to recognize a union without the need for a formal election. Under Joy Silk, an employer presented with signed authorization cards by a majority of workers would be required to recognize the union, placing the burden on the employer to demonstrate a good faith basis to believe the union did not have majority support.
General Counsel Abruzzo also issued a memorandum to NLRB field offices, recommending that the Board to find an employer in violation of the National Labor Relations Act if it mandates that employees attend meetings at which they are presented with the employer’s perspective on labor organizing and its potential impact — a practice sometimes referred to as a “captive audience meeting.”
Employers navigating this environment can take steps to minimize the risk that workers seek to organize, principally by promoting a healthy work environment, providing competitive wages and benefits, resolving workplace issues sensitively and efficiently, and ensuring that employee handbooks and other policies are clear, accessible, and up to date.
Troutman Pepper’s attorneys are experienced in helping clients navigate these issues and are closely monitoring trends and NLRB decisions to help clients prepare for and adapt to workforce and policy changes. If you have questions or want to learn more, please contact a member of our Labor + Employment Practice Group.