NLRB Sees Uptick in Labor Violation Allegations and Union Organizing

​The National Labor Relations Board (NLRB) recently reported a significant increase in the number of alleged labor violations, as well as a smaller increase in union drives.

At least 22,448 cases of unfair labor practices were filed with the agency from Oct. 1, 2022, to Sept. 30, 2023, representing a 10 percent increase from the previous fiscal year. This was the highest number of cases filed since fiscal year 2016.

Examples of unfair labor practices include:

• Threatening workers with the loss of jobs or benefits if they unionize.
• Questioning workers about their union activities.
• Firing or discriminating against workers because of their union activity.
• Making false statements to workers seeking to unionize.
• Refusing to bargain collectively with the union.
• Closing a plant or factory because it voted to unionize.
  

"Increased charge filings are part and parcel of increased union efforts across the country and a likely result of greater union activity," said Aaron Vance, an attorney with Barnes & Thornburg in Indianapolis. "The more organizing there is, the more unfair labor practice charges that will be filed related to those drives."

Another factor may be the NLRB's priorities and policy changes. The NLRB "has not only signaled its willingness to expand what it considers protected activity under the NLRA [National Labor Relations Act], but has made good on those promises with many of its recent decisions concerning employee handbooks, dress codes and workplace conduct. Additionally, expanded remedies from the board have provided further incentive to pursue remedies under the [NLRA]," Vance said. "Another year of a marked increase in the number of charges filed is not surprising, as unions and aggrieved employees are seeing more opportunities for redress and liking their odds before the current board."

Union Petitions Up 3 Percent

The NLRB also received 2,594 union petitions from Oct. 1, 2022 to Sept. 30, 2023, representing a 3 percent increase from the previous fiscal year. This is the highest number of petitions filed since fiscal year 2015. Notably, employees at Starbucks and Amazon have been unionizing in the last two years.

"Union support and interest are both at an all-time high, and much like the trend with charges, under the policy prerogatives of the current [NLRB] and Biden administration, unions and workers are feeling emboldened to organize and campaign," Vance said.

Working conditions and economic shifts can either promote or hinder union growth.

The COVID-19 pandemic "fundamentally changed the way work is done and exposed some stress lines across various industries, which led to many frustrated employees, who in turn looked to organized labor as an outlet to improve their working conditions, and this is true in both new and traditional spaces," Vance said. "With high inflation and ongoing fears related to a possible economic downturn, workers have continued to lean into labor [unions] as a possible source of economic security and job protection."

The nonfarm unemployment rate was 3.8 percent in September, according to the U.S. Bureau of Labor Statistics (BLS), compared to 3.5 percent in September 2022 and 4.8 percent in September 2021. The unadjusted annual inflation rate was 3.7 percent for the 12 months ending in September, according to the U.S. Labor Department. But inflation was significantly higher earlier in 2023, when there was much discussion about a possible recession.

"Depressed attitudes about jobs and the current state of the economy left a lot of workers looking for something more," Vance said. "Those concerns quickly became interest in unionizing, which turned into action as they watched the Biden administration strengthen labor protections and the highly publicized efforts of various unions across the country" this year.

However, union membership continues to wane overall. About 10 percent of U.S. workers were union members in 2022, down from 11.3 percent in 2013 and 12.9 percent in 2003, according to the BLS.

New state and federal laws, along with the deindustrialization and globalization of the American economy, have all contributed to the decline of union membership, according to Steve Bernstein, an attorney with Fisher Phillips in Tampa, Fla.