The U.S. Labor Union Spike

No industry seems untouched by the recent rise of union popularity. Recent examples include outdoor goods seller REI; the New York Times tech workers; Alphabet (parent company of Google); and more famously, retailer supergiant Amazon and coffee chain Starbucks. Several factors such as the current labor shortage, the Covid-19 pandemic, and high-profile union litigation gaining traction on social media have played crucial roles by increasing worker autonomy and contributing to one of the largest national labor movements seen in the U.S. in decades. While union membership has generally declined annually in the U.S. since 1983, labor action has not seen the same decline. Between October 2021 and March of 2022, union representation petitions filed at the National Labor Relations Board (“NLRB”) increased 57% from the same period in 2020–2021. Unique factors facing workers in recent years have caused a newfound rise of labor unions, a stark contrast to trends in recent decades.

According to data from the Bureau of Labor Statistics, a record 4.5 million U.S. workers left their jobs in November 2021, and more than 4 million workers left their jobs in every month from July 2021 through November 2021. Known as the “Great Resignation,” the ongoing event of record-breaking numbers of workers leaving their jobs has given workers the edge by creating a shortage in the labor market. In 2019, there was a high of approximately 7.5 million job openings in the United States; in 2021, there was a high of approximately 11.4 million. Possible causes of the labor shortage include wage stagnation, job dissatisfaction, burnout, and safety concerns related to the Covid-19 pandemic. The Covid-19 pandemic has driven workers to demand more from their employers—namely, better pay and better working conditions. According to Bloomberg Law’s database of work stoppages, in 2021, the final strike total reached 169, more than any year since 2012. Generally, periods of worker shortages give union members considerably more leverage as workers become harder to replace.

The social impact of the pandemic also significantly contributed to the recent spike in union involvement. In addition to accelerating the larger ongoing employee movement, the pandemic has brought work-life balance to the forefront. Further, according to a Gallup poll conducted in August 2021, 68% of Americans now approve of labor unions. Only 48% of Americans approved of labor unions in 2009, but the number has steadily increased since 2016 to reach the current highest reading measured since 1965. A recent CNBC survey found that a majority (59%) of U.S. workers across all industries indicated support for increased unionization in their workplaces. The recent uptick in labor union approval may at least partially be due to the rise of media coverage of unions. High-profile union victories that were widely reported on and broadcast on social media have assisted in increasing public awareness of the labor union movement. The first union win by employees at a Starbucks in Buffalo, New York, in December 2021 resulted in workers at 140 Starbucks in 27 states petitioning for unionization votes as of March, and today, well over 100 locations have unionized. Additionally, recently Amazon warehouse workers successfully voted to unionize an Amazon warehouse in Staten Island, New York City, NY. The historic vote came after workers at the the largest Amazon facility in Staten Island, which Amazon calls JFK8, formed an independent union called the Amazon Labor Union, which, despite the lack of ties to organized labor, succeeded in having its workers vote in favor of unionizing by a margin of almost 11 percent. Amazon is the second-largest private employer in the U.S. after Wal-Mart.

In addition to growing economic power and recent social support, the labor movement also may also flourish due to a newfound political support through the Biden Administration. For example, under the Biden Administration, in an advice memorandum released in May 2022, General Counsel of the NLRB Jennifer Abruzzo indicated that she would advise in future cases to broaden union access to public spaces. Notably, in a brief filed in April 2022 in Cemex Construction Materials Pacific, LLC, No. 28-CA-230115, General Counsel Abruzzo also advocated to reinstate the card majority rule set forth previously in Joy Silk Mills, 85 NLRB 1263 (1949), which would in most cases require employers to immediately recognize union status through the card majority rule rather than a drawn-out election.

Under the NLRB’s current standard that has been in place since it abandoned the Joy Silk standard in 1969, an employer presented with signed authorization cards indicating a union’s majority status is not required to recognize the union’s claim. Even though employers are free to recognize a union through signed authorization cards and without an election, employers frequently reject a union’s demand for recognition and instead insist on secret ballot elections. The elections also benefit employers by giving them the opportunity to lobby against unionization, and time for the union effort to lose momentum. Under Joy Silk, by contrast, in order to hold an election, an employer was required to establish a “good faith doubt” regarding the validity of the majority status; otherwise, the employer would be required to immediately recognize the union. Unions have long advocated for a card majority rule, and there is significant discussion of the impact reinstating Joy Silk would have on the prevalence of secret ballot elections. While some experts note that the reinstatement of Joy Silk would be unlikely to trigger the replacement of union elections altogether, others believe that, if sustained, the reinstatement may likely cause an increase in union organizing campaigns across the country, as unions will be able to take advantage of the newer, easier standard in recognizing union membership.

Conclusion

While recent union wins fuel optimism for some labor activists, the Bureau of Labor Statistics reported in January that in 2021, just 10.3% of U.S. workers were in unions and just 6.1% in the private sector. Economists predict that despite the recent spike, overall, labor unions are still on the decline. One of the largest hurdles for unions is the decades of anti-union policy established in the United States. As noted above, unions need to win a highly contested election in order to have an opportunity for union representation. However, it is possible that the momentum of labor organizing continues in a significant way. A politically friendly climate, combined with skyrocketing employer profits, a tight labor market, general worker dissatisfaction, and the growth of social media attention directed towards labor organizing, has created an interesting opportunity for unions to gain lost ground from the last several decades of decline.