A false dawn for unions in 2022?

Summary: This article touches on some of the complex issues surrounding the apparent boom in unionization—will this be a sea change or just temporary? What are the implications of recent union victories in major multinational companies? 

There have been high-profile union victories in the news lately for the employees of major multinational companies, particularly Amazon and Starbucks.  The National Labor Relations Board (“NLRB”), which oversees union elections and investigates “unfair labor practice” claims, has also gone to bat recently against those same companies for numerous allegedly unlawful tactics they engaged in during union elections.  It could be that unions are on the verge of a renaissance in the face of the “great resignation” causing a shift in the power dynamics between employees and employers.  Indeed, unions are more popular with the public now than they have been in generations.  

Is 2022 just a blip, or the sign of something more? What are the implications of, and obstacles to, an increase in unionization? This article will briefly touch on these complex topics.  

Union membership remains incredibly small as a proportion of the labor force.  Union membership in the United States has approximately halved even since the early 1980s.  While it did increase during the pandemic, it has continued to fluctuate at most in the mid-teens, percentage-wise.  Unions are more prevalent in the public sector, but still only cover a minority of government employees. 

Increased union membership could have major impacts on the United States.  One view is that greater union membership will generally reduce income inequality, raise wages for union and non-union workers, increase civic engagement, and generally protect individual rights.  Another view is that increased unionization will benefit some more than others and generally discourage investment and economic growth, harming everyone.  

The National Labor Relations Act (“NLRA”) governs union elections and many aspects of labor-management relations.  It was largely a compromise in the face of the violent labor disputes of the 19th Century, with a goal of ensuring industrial peace and stability.  However, the system it sets up gives employers certain natural advantages.  

One example is that unions are by definition supposed to be democratic—chosen by the workers and making decisions democratically.  While this does improve the odds that unions will be responsive to workers’ rights, it is by definition inefficient.  By contrast, employers have no such requirements, especially in an at-will state like Texas.  Employers can, for instance, mandate that employees attend anti-union presentations on penalty of termination, while unions have no comparable ability.  And this does not even begin to touch on “right-to-work” laws.   

Further, union elections are defined by the concept of the “bargaining unit”—the group of employees the union actually represents based on having a “community of interest.”  The issue here is that this standard is so vague that the appropriate bargaining unit can be easily debated and manipulated.  Employers may be able to convince the NLRB the bargaining unit should include employees who would be less likely to vote for a union (thus causing it to lose) or should be limited to only a single location (thus weakening union influence).  

Another problem is the politicization of the NLRB.  As you might have guessed, numerous polls show unions are among the most politically polarizing issues between the parties.  The President appoints the members of the NLRB, who have staggered 5-year terms.  It is no surprise that each new administration can radically shake-up the NLRB, potentially reversing whatever the preceding administration did.  Unlike the federal courts, which have lifetime appointments and emphasize the importance of binding precedent, this has arguably led to extremely inconsistent and even irrational decision-making by the NLRB, which at a minimum creates uncertainty for unions and companies.    

Given all that, it is worth considering that part of the reason there has been so much news coverage of union victories lately is because they are unusual.  For instance, the union for an Amazon plant in Bessemer, Alabama lost an historic election just last year.  An Amazon union lost another vote earlier in May.  Union representation petitions, which are workers’ petitions to hold a union election supervised by the NLRB, have increased by over 50 percent since 2021.  This suggests that partly the notable victories are due to the increased number of such elections. 

If these recent union victories are going to become a long-lasting trend, it will likely be in part because of cultural changes: a younger and more liberal generation entering the workforce with less trust in employers’ beneficence; the COVID-19 pandemic causing people to place a renewed value on work-life balance; or simple momentum, where increased visibility to union victories and employers being penalized for unfair labor practices leads to more acceptance of unions and workers standing up for their rights.

It will be extremely interesting to see if, in the coming years, the 2022 union boom continues or falls flat.  If you support increased unionization, you may want to research and talk to your Congressperson about reforms to the NLRA such as the PRO Act.  If you believe you have been subject to an unfair labor practice, you may want to consult a labor and employment attorney such as those at Rob Wiley, P.C. 

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