Executive Summary: Recently, the National Labor Relations Board ("NLRB" or "the Board") issued a press release detailing an increase in labor activity this year. Compared to this time last year, the Board has seen an exponential rise in representation petitions and unfair labor practice charges. This increase in labor activity coincides with the Biden Administration's push to limit employers' right of free speech and revive automatic recognition. As the labor landscape shifts, employers must shift their focus to preparation and training. Now, more than ever, executives and managers must know their rights and responsibilities under the National Labor Relations Act ("the Act").
NLRB Filings and Union support Continue to Rise
On July 15, 2022, the Board issued a press release detailing labor statistics from the first nine months of Fiscal Year 2022 (October 1—June 30). According to the NLRB, filed union representation petitions have increased by 58 percent from the previous year. Representation petitions are filed by employees, unions, or employers requesting an election to determine if employees wish to be represented by a union for the purposes of collective bargaining. During the first three quarters of Fiscal Year 2021, the NLRB received 1,197 representation petitions. This year, the NLRB received 1,892 representation petitions during that same time period.
Moreover, unfair labor practice charges have increased by 16 percent. An unfair labor practice charge is a complaint filed by any member of the public alleging an employer or union violated the Act. During the first three quarters of Fiscal Year 2021, the NLRB received 11,082 unfair labor practice charges. This year, the NLRB has already received more than 12,000 unfair labor practice charges. For the first time since 2017, the number of unfair labor practice charges has surpassed the previous year.
In 2021, union approval reached a 50-year high with 68 percent of Americans approving unions. Conversely, from 1972 through 2016, union support rarely reached above 60 percent. This increase in representation petitions, unfair labor practice charges, and union support is a direct result of the Biden Administration's push towards increased unionization, with President Biden famously promising "to be the most pro-union President leading the most pro-union administration in American history." In short, the labor landscape is shifting.
The Labor Landscape is Shifting
Since her confirmation in June 2021, NLRB General Counsel Abruzzo ("Abruzzo") has attempted to minimize the barriers unions face when seeking representation certification. But this is at the expense of employees and employers. Abruzzo has sought the reversal of multiple Board decisions meant to ensure the election process is fair to all parties involved. Specifically, Abruzzo has petitioned the Board to return to the Joy Silk doctrine, allowing an employer to refuse to bargain only if it can establish a "good-faith" doubt as to the union's majority status. For a more detailed discussion, see our April 19, 2022 Legal Alert, NLRB General Counsel Seeks to Limit Secret Ballot Elections in Favor of Union Recognition Based on Card Count. Abruzzo's attack on employer free speech is not limited to her petition to revive Joy Silk.
For over 75 years, the Board has recognized an employer's right to free speech, absent any unlawful conduct. However, in an April 2022 memo, Abruzzo announced her intent to challenge an employer's ability to hold informal meetings to discuss union organizing. As a result, Abruzzo is forcing representation on employees and employers while simultaneously limiting an employer's right to free speech. An employer's right to free speech is crucial to the labor landscape, providing employees with the critical information unions often fail to provide. Abruzzo's challenges to employer free speech coupled with a push for automatic recognition could leave employers defenseless against lawful and unlawful organizing efforts. Ultimately, this limits an employee's right to make an informed decision to organize. For more information, please see our April 13, 2022 Legal Alert, NLRB's Top Prosecutor Seeks to Muzzle Employers by Banning Employee Meetings.
Abruzzo has also made clear her intent to reverse the Board's decision in The Boeing Co. Under The Boeing Co., a workplace rule is lawful unless it directly or indirectly restricts an employee's right to engage in protected activity and outweighs the employer's legitimate justification for the rule. Abruzzo likely intends to return to the Board's analysis of workplace rules under Lutheran Heritage, whereby workplace rules would be unlawful if employees simply could reasonably believe the rule limited their right to engage in protected activity. A return to Lutheran Heritage would considerably limit an employer's right to manage employee behavior and its own business interests.
Abruzzo's intent to revisit these decisions and standards has coincided with an increase in representation petitions and unfair labor practice charges. Unions understand the labor landscape is shifting and are becoming more aggressive in their attempts to organize, knowing the Board will back them. Employees and unions are also filing more unfair labor practice charges, taking advantage of Abruzzo's agenda. We have already seen the NLRB consistently take a more aggressive approach to pursuing election objections and unfair labor practice charges filed by unions. The Biden administration's pro-union agenda emboldened unions, and a union-friendly workforce has created a perfect storm for employers. Employers must be prepared to withstand this storm.
Bottom Line: As public and political support for unions continues to rise, employers can expect an increase in election petitions and unfair labor practice charges. Initial and recurrent management training is more important than ever. Managers need to know the early signs of union activity and how to discuss potential unionization with their employees. And once a petition for election has been filed, management needs to know the laws governing what can and cannot be said during the election period. Finally, now more than ever, employers must ensure their policies and procedures are lawful. Employers should also partner with their labor counsel to be prepared for the continued increase in union activity.
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