United States: NLRB Continues To Experience Increase In Filing Activity Through First Half Of FY 2023

On April 7, 2023, the National Labor Relations Board (NLRB) released its filing data through the first half of its fiscal year (FY) 2023 (October 1–March 31). Through the first six months of the fiscal year, filing activity continued to build on record increases that developed in FY 2022.

Compared with the first half of FY 2022, the number of unfair labor practice charge filings jumped from 8,275 to 9,592, a nearly 16 percent increase. The NLRB did not break down the number of charges associated with elections, established bargaining relationships, or other nonunion settings. Representation petitions were closer to the FY 2022 pace, though they still increased to 1,200 from 1,174. Overall, NLRB filings are up 14 percent in FY 2023 compared to the same period in 2022.

These filing increases through the first half of FY 2023 build on significant increases in filing activity that the NLRB observed in its full FY 2022 compared to the prior year. The most dramatic increase was in representation petitions, which increased from 1,638 petitions in FY 2021 to 2,510 petitions in FY 2022, or a jump of 53 percent. Additionally, unfair labor practice charges increased from 15,082 in FY 2021 to 17,988 in FY 2022, a bump of 19 percent.

There are reasons for employers to expect that filing activity will continue apace over the full FY 2023. At the end of calendar year 2022, the NLRB returned to its prior Specialty Healthcare bargaining unit determination standard that may lead to an increase in petition filing activity. The timing of that decision, released in December 2022, had limited time to affect petition filing decisions in the first half of the NLRB's fiscal year 2023. Additionally, the NLRB general counsel continues to pursue an aggressive agenda favoring organized labor that may lead to more NLRB precedent changes. These changes could incentivize more filings through the remainder of 2023.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.