Two major developments this week illustrate a new landscape for employers with regard to union organizing campaigns.
First, the National Labor Relations Board has reported a dramatic increase recently in the number of union election petitions (i.e., requests for elections to decide whether a union may represent a group of workers). During the first half of Fiscal Year 2022 (October 1–March 31), the number of union election petitions increased 57% from the second half of FY2021. This represents a major increase from historical averages as well and, if the pace continues, it will constitute the highest number of petitions in well over a decade.
This confirms what other recent signs have illustrated, i.e., that unions are uniquely positioned at this time to organize new groups of workers. Because a petition for a union to represent a new group requires evidence that at least 30% of the employees support the union (as is the case for the vast majority of these petitions), this increase appears to be objective evidence that support for unions has increased among U.S. workers. There have been many other similar indicators of late, such as unions’ recent success in organizing workers at Starbucks, many historically non-union retailers, and distribution facilities which have drawn national attention.
Then, on Thursday, the NLRB announced a major potential shift in the law regarding union organizing campaigns. For decades, courts and the board have recognized that employers may...
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