The coming year will reveal the full impact of a U.S. labor board's recent rulings that were seen as providing a major boost to union organizing and whether those changes can withstand legal challenges amid a series of high-profile labor campaigns.
Democratic President Joe Biden's appointees to the National Labor Relations Board (NLRB) paved the way in 2023 for workplaces to unionize outside of the decades-old secret ballot election process, made it easier for unions to organize franchise and contract workers, and expanded the type of worker conduct protected by U.S. labor law, among other significant moves.
Business groups and employers are challenging many of those decisions in court, but in the mean time companies should brace themselves for an uptick in organizing emboldened by the NLRB's burst in pro-union activity, experts said.
"There's an all-out assault to get businesses to recognize unions and increase union membership," said Ben Brubeck, vice president at construction trade group Associated Builders and Contractors.
WHY IT MATTERS
Union organizing has been on the rise since the COVID-19 pandemic, spurred by concerns over layoffs and worker safety and sustained by sharp inflation and economic uncertainty. A range of major companies including Starbucks Corp, Amazon.com Inc, Wells Fargo & Co and Apple Inc are facing unionizing efforts that are unprecedented in their histories.
Unions filed nearly 2,600 petitions for elections in the fiscal year that ended Sept. 30, a 3% increase from the previous year and a surge of nearly 60% since 2021 and won a near-record 76% of elections held, according to data from the board. Despite the increase, unions added fewer than 100,000 new members in fiscal 2023 and only about 6% of private-sector workers are represented by unions.
The recent decisions and two new rules from the NLRB, which oversees union elections and hears cases alleging illegal labor practices, cover the gamut of union activity from the early stages of organizing workers to election procedures, negotiating collective bargaining agreements, and collecting dues.
Trade groups and lawyers say the most impactful decision for businesses came in August, when the board established a blueprint for workplaces to unionize without elections in a case involving building supply company Cemex Construction Materials Pacific LLC.
For decades, unions have been required to petition for and win secret ballot elections before employers must recognize and bargain with them.
In Cemex, the board said that when a union shows it has majority support in a workplace, such as signed authorization cards, an employer must recognize the union or petition for an election. If the employer is found to have committed an illegal labor practice, it can be ordered to bargain without an election ever being held or after a union loses.
The board and supporters of the ruling, including the White House, have said the change was necessary to counter the prevalence of illegal union-busting tactics by many employers. Some unions have said that the typical election process encourages unfair labor practices because there are few disincentives for employer to commit them.
"The decision will help stop employers from playing games and refusing to recognize a union when there is unquestionable evidence of majority support," said Andy O'Brien, a spokesman for the Maine chapter of the AFL-CIO.
But critics claim the decision conflicts with a 1974 U.S. Supreme Court ruling that said unions, and not employers, must file election petitions, and violates federal labor law by imposing unionization on workers. Cemex is challenging the decision in a San Francisco-based U.S. appeals court.
WHAT IT MEANS FOR 2024
Coupled with a new NLRB rule that speeds up the union election process, which took effect Dec. 26, the Cemex decision will likely lead to a significant increase in election petitions and unfair labor practice complaints, according to Michael Lotito, an employment lawyer who represents businesses.
Another rule, which goes into effect in February and has already been challenged by business groups, says companies can be made to bargain with franchise and contract workers when they have control over working conditions.
"Employers should be trained and prepared for an election at any time," Lotito said.
Along with those major procedural changes, the NLRB has significantly expanded the scope of labor law protections for workers. That has included rulings that the law protects profane outbursts that stem from legitimate complaints and advocating not only for coworkers but for non-employees such as unpaid interns.
Business groups and lawyers who represent unions and employers have said those rulings, along with the new Cemex standard, will make it easier for unions to organize and ultimately win recognition from employers.
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