On January 19, 2023, the U.S. Department of Labor's Bureau of Labor Statistics (BLS) reported that the national union membership rate declined from 10.3 percent in 2021 to 10.1 percent in 2022. As described by BLS, the national union membership rate is "the [percentage] of wage and salary workers who were members of unions." A national union membership rate of 10.1 percent is the lowest rate that BLS has measured since it began tracking this data in 1983.
How will the union membership rate change over the course of 2023? Here are five reasons why the rate may increase in the calendar year.
1. The Return of Micro-Units
At the end of 2022, the National Labor Relations Board (NLRB) returned to its Specialty Healthcare standard to evaluate the proper bargaining unit of voters for a union election. Under this standard, a party contesting a petitioned-for bargaining unit (including an employer seeking to add employees to an election) must demonstrate that the excluded employees share an "overwhelming community of interest" with employees in the petitioned-for unit. The NLRB's decision to return to the Specialty Healthcare standard increases the odds that unions will seek to organize smaller units that can provide more certainty to vote in favor of representation at an election. This standard will be in effect for 2023 and may increase the number of elections that will lead the NLRB to certify a collective bargaining representative to represent employees.
2. An Uptick in Petitions
The NLRB reported a big jump in union representation petitions filed with its offices from 1,638 in fiscal year (FY) 2021 to 2,510 in FY 2022—an astounding 53 percent increase. The total representation petitions filed in 2022 was the highest number since FY 2016. If union representation petitions maintain this rate or increase, it will likely also lead to an increase in overall union membership totals.
3. The NLRB General Counsel's Pro-Labor Agenda
NLRB General Counsel Jennifer Abruzzo has thus far pursued an aggressive agenda favoring organized labor. Last year, the general counsel made headlines with the release of her memorandum addressing the intersection of new workplace technologies and the National Labor Relations Act (NLRA). This action garnered significant media attention that undoubtedly contributed to more employees seeking union representation elections. In addition, General Counsel Abruzzo's office announced her interest in pursuing cases to overturn or expand NLRB precedent affecting union membership. For example, General Counsel Abruzzo stated that she would like to "carefully examine" cases "in which an employer refuses to recognize and bargain with a union where the union presents evidence of a card majority, but where the employer is unable to establish a good faith doubt as to majority status." Also of note, the general counsel announced in April 2022 that she intends to ask the NLRB to significantly limit employer speech rights—specifically, by banning the use of so-called "captive audience" meetings during organizing campaigns. If the general counsel is successful, these cases will present the opportunity for unions to significantly increase their member ranks.
4. The NLRB Pendulum Swing Continues
While General Counsel Abruzzo has announced her interest in pursuing an aggressive pro-union agenda, the NLRB has issued decisions in the recent past that have already drawn increased employee attention to the NLRA and union organizing. Recent NLRB decisions include expanding remedies related to unfair labor practice cases and limiting property owners' right to limit off-duty access for Section 7 activity. More attention-grabbing decisions with significant impacts on the workplace are likely to be issued in the near future as the NLRB considers cases addressing the independent contractor standard and the legality of employer work rules. These decisions may further create opportunities for unions to add members in 2023.
5. An Increase in Total Number of Union Members
Despite the union membership rate declining slightly from 2021 to 2022, the number of union members increased by 273,000. This inverse relationship means that the number of nonunion jobs the country added in 2022 outpaced the number of union jobs. While the overall union membership rate decreased, the total number of union members increased, breaking a trend of year-over-year decreases in union membership. The last year in which total union membership increased was 2016. If unions continue to add members in the coming year, it may result in a change to the membership rate in 2023.
Key Takeaways
Although BLS announced a decline in the union membership rate in 2022 in a year that was full of labor headlines, this announcement could mask what may be a robust year for an increase in the union membership rate for 2023. Recent and expected labor developments will likely create expanded opportunities for unions to increase their membership. In light of these factors, employers may want to take steps to maintain positive employee relations in the coming year.
Ogletree Deakins' Traditional Labor Relations Practice Group will continue to monitor and report on NLRB developments and will post updates on the Traditional Labor Relations blog as additional information becomes available. Important information for employers is also available via the firm's webinar and podcast programs.
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