What to Expect When you are Expecting: Labor Pains

Darrell VanDeusen
Darrell VanDeusen

The turn of the phrase “labor pains” when talking about union organizing is now an old, trite (and stupid, while meant to be humorous) expression.  But it’s one I heard used regularly when I was a baby lawyer in the mid-1980s. 

K&S posted a number of blogs in 2022 regarding the new wave of union organizing.  Moreover,  a quick inquiry to your favorite search engine will show you that there is a resurgence in organizing.  It has not yet crested.  Amazon, Starbucks, bagel shops, grad students – you name the business and there’s organizing going on.  The NLRB is reinvigorated, overturing precedent and creating new ways for employees to recover consequential damages for an employer’s unfair labor practices (ULP). See Thryv, Inc., 372 NLRB No. 22 (Dec. 13, 2022).

Let’s spend a little time unpacking where things stand. 

According to Bloomberg, unions won 76% of the 1,573 NLRB elections held in 2022.  That makes 2022 a tie statistically for the highest success rate on record.  Now, you can quibble with how that result can be played with – a union that reads the tea leaves before an election and sees a loss likely might drop the petition, for example. 

Unions are flexing their muscle in rejecting contracts, striking and engaging in more robust action than we’ve seen in years.  At Disney World, for example, it was reported last week that the 32,000 workers represented  by six different unions rejected a contract proposal that would  give them at least a $1 an hour raise each year for the next five years.  Employees were urged by their unions’ leadership to vote “no.”  Of over 14,000 votes cast, 96% voted no.

The unions said workers who would benefit from the $1/hour increase were in jobs where Disney is having trouble filling the positions. Moreover, with the rising cost of living in the Orlando area, a $1/hour increase really didn’t help significantly.

But at the same time, the percentage of U.S. workers who belong to a union decreased from 10.3 percent to 10.1 percent, according to the Bureau of Labor Statistics.  One explanation is that the job market – which continues to be “hot” – added non-unionized workers at a rate higher than it added unionized workers.

Collective action/unionization has the highest approval rating in decades.  Gallup reports that 71% of Americans view unions favorably.  At the same time, 58% of non-unionized workers who were surveyed said they are “not interested at all” in joining a union. 

Union officials (and the NLRB’s General Counsel) will claim that view is due to “union-busting” efforts by employers, not worker disinterest.  Because, of course, (note some sarcasm here) how could anyone reasonably take the position that union’s might not be the panacea for all workplace strife?  Add to this a pro-union administration (put aside the gripes we heard about the Biden administration when it stepped into stop the railroad strike in December) as well as an active NLRB, and you’ve got a recipe for change. 

The takeaway?  There is no doubt we will see continued organizing activity in both the private and public sector in the coming year.   Employers are well advised to become familiar with the signs of organizing efforts and learn what are considered appropriate (read legal) and inappropriate (read ULP) responses to such action.


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