The reported rate of union membership in the United States has been decreasing for the past 40 years, with recent numbers no exception to the slide downhill. Those numbers, however, are deceiving. Last year saw the most union elections in one year since 2015. And although the rate of union membership – the share of US workers who are unionized – has fallen, the actual number of union members increased in 2021 by more than 273,000, according to the recent report of the Bureau of Labor Statistics. The reasons behind this increase include a shift in the demographics of the people who are likely to join unions, and recent union friendly rulings from the NLRB which can hamstring employers in defending union campaigns.
Who’s Joining Unions?
The demographics of the people who are likely to join unions is quickly changing, both as to the type of worker and the nature of the work performed. For generations, unions have focused membership efforts on blue collar workers who were seeking better wages and improving working condition, in what typically were manual labor jobs, not always carried on in the most pristine conditions, and often subjecting the workers to long hours and low pay. That continues, as Gallup reported in August 2022 that one in five of front-line and production workers are union members, whereas only one in 10 in healthcare, administrative and white collar workers have joined unions. But, as those manufacturing and production jobs have become scarcer due to factors including increased technology (e.g. robotics), the movement of such jobs overseas and the increase in part-time and contingent workers, unions have felt a squeeze in members and, correspondingly, the collection of union dues.
Increase in Union Supports Among Younger Generations
The shortage of workers to fill available jobs and the activism of younger workers has also become a boon to unions. There is a new generation of younger professionals and service workers who are less likely to put up with unfavorable working conditions and who are learning that they have a stronger voice in an economy where employers are desperately fighting to fill positions. These workers tend to be more socially aware and civic minded. They want to contribute to improving the environment, eliminating racial discrimination and sexual harassment in the workplace. They want a better balance between work and the rest of their lives. These issues are as important to them as better wages. They have more leverage than in the past, and they are looking to unions to increase their leverage and to demand these changes. Unions have found a receptive audience in this demographic. The Gallup poll indicated an overall approval rate for unions among Americans of 71%, which is the highest since 1965. That is in large part due to an increase in union support among millennials and younger workers who are more likely than older workers to view unions favorably.
As importantly, the pay divide between blue collar workers and professionals has been steadily decreasing, especially when factoring in student debt. White collar employees no longer have better pay, job security or morale in this era of the pandemic which has spawned inflation, layoffs, confusion and insecurity.
Interestingly, although union workers report favorable opinions of their unions, they are less likely to feel the same way about their employers. Gallup reports that there is a reverse relationship to job engagement and union membership. Only 24% of union members are actively disengaged at work compared with 17% of nonunion members; 27% of workers who are union members report being less engaged at work compared to 33% of nonunion members. However, union members generally stay put regardless of engagement. That remains to be seen in this new labor market.
Unions Are Gaining Strength in Non-Traditional Areas Using Non-Traditional Tools
Thus, the siren call of collective bargaining beckons. Unions are recharging their ranks by drawing the interest of these workers within academic institutions, especially with graduate students, journalists, technology and hospitality workers. Architects, renowned for working extremely long hours and who have seen their average salary remain stagnant with prevailing inflation, are looking to unions to improve their work lives and income. Medical residents are also joining unions in increasing numbers as they, too, seek higher pay, fight long work shifts to alleviate burnout, and demand adequate protection when treating COVID-19 patients. Not to be undone is the cannabis industry, which is also experiencing a rise in union membership, as more states legalize its use. It is a highly lucrative industry and its now 300,000-plus workers are demanding a piece of those money-making ‘buds’ as they seek to restructure their minimum wage jobs into family sustaining careers.
Given media attention, it is easy for workers to share the experience of collective bargaining which only fosters more activity. As workers see Starbucks, Amazon and Google — and even the New York Times — seek union representation, they also see the possibilities for themselves. Union efforts are also improved with technology. No longer relegated to workplace parking lots and furtive conversations during break times, workers now have social media outside of work to freely exercise concerted activity, air grievances and/or campaign for union representation.
The NLRB Has Been Supportive of Union Positions
Unions are also finding more fertile ground as the NLRB continues to groom a more favorable landscape for union activities. The NLRB has continued to restrict employers from silencing workers by zippering up social media and non-disparagement policies to prevent activity now characterized by the NLRB as concerted and protected. In a recent memorandum, the NLRB General Counsel indicated that she found “captive audience meetings” unlawful. Permitted since 1948, employers have been free to compel workers to attend meetings under threat of discipline and present videos and speeches advocating the disadvantages of joining unions such as the high cost of union dues. The General Counsel now asserts that such meetings interfere with and restrain workers’ rights to concerted activity and has advised the Board to find them unlawful. Although at this point the memorandum is only advisory, one would not be surprised if the current administration, which is union forward, will undertake an effort to make it a rule. That is so especially in light of President Biden’s statements in his State of the Union speech this year that “workers have a right to form a union” and he intends to protect employees who wish to do so.
The General Counsel has also issued a memorandum indicating that she intends to “zealously” urge the NLRB “to adopt a new framework for protecting employees from intrusive or abusive forms of electronic monitoring and automated management that interfere with Section 7 activity.” She finds that many employers may be abusing available technology such as wearable devices, cameras and GPS to track and monitor employee movements and conversations, and that those activities may interfere with protected union activity, even if they only foster the impression of surveillance. Surveillance chills speech and she wants to avoid that result.
Recently, in an action against Tesla, Inc., the Board ruled that employers could not restrict the display of union insignia or the wearing of union apparel absent a demonstration such restriction was warranted due to “special circumstances.” This past December, in an action involving Bexar County Performing Arts Center Foundation, the Board limited an employer’s right to restrict access to its property from off-duty workers of a third party contractor who are exercising their Section 7 rights:
“Only where the property owner is able to demonstrate that the [third party] employee’s activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason.”
Last but not least, the Board ruled in an action against Thryve, Inc. that the “make whole remedy” for violations of unfair labor practices would extend beyond mere compensation for back wages and lost benefits. Workers are now entitled to all “direct or foreseeable pecuniary losses” suffered as a result of the violation. That could include medical costs incurred due to the loss of health care coverage, mortgage payments that went unpaid and credit card debt incurred for living expenses. The recent Omnibus Bill may also help foster increased union activity, as it added $25 million to the NLRB’s budget. The NLRB, which has seen a drop in staff but a total case intake up 23% in 2022, can put these funds to good use.
Suggestions for Employers
This demographic shift coupled with these union friendly decisions may result in more union activity at businesses that were not typically targeted by unions. Those businesses might be unaware of this activity and unprepared when the campaign hits their front door. We suggest the following best practices.
- Do not underestimate the likelihood of your business being targeted for unionization because you are not in manufacturing or production. All employers are now potential targets for union campaigns.
- Be prepared and educated as to what lawful actions you can take in the face of a campaign. Take positive, preemptive actions, such as engaging with your workforce now, and providing them opportunities for meaningful discussion about their work environment, their desire to create a livable balance and your involvement in furthering the social issues important to them. Do so prior to the time that your employees find the need to interact with union organizers about your workplace.
- Be aware that the National Labor Relations Act (NLRA) applies even to non-union shops with respect to concerted activity. Review your handbooks for policies that might restrict concerted activity by your employees, such as those limiting or policing their use of social media and prohibiting disparagement of your business.
- Stay updated on new rules and advisory memos from the NLRB to avoid being on the other end of an unfair labor practice claim.
For guidance on current NLRB pronouncements and decisions and how to lawfully address union efforts to initiate a campaign at your business or defend one already begun, contact Maribeth Meluch (MM@kjk.com; 614.427.5747) or one of our other partners in the Labor & Employment Practice Group.