Once the bastion of older generations working mostly in rust-belt industrial settings, US unions are taking advantage of an uptick in interest and a supportive political environment to bolster memberships and expand into new industries as well as new worker categories. In addition to full-time staff employees, contingent workers are also now on unions’ radars as they seek opportunities for expansion.
“For much of this past year, the big picture has been focused a lot on the unions’ efforts at the Starbucks and Amazons of the world,” Kevin Terry, partner at law firm Michael Best & Friedrich LLP, told CWS 3.0. “But all unions are seeking to expand their membership and to expand representation over workforces that were previously not represented — and that includes contingent workforces.”
In federal fiscal year 2022 ended Sept. 30, 2022, 2,510 union representation petitions were filed with the US National Labor Relations Board’s 48 field offices — a 53% increase from the 1,638 petitions filed in fiscal 2021 and the highest number of union representation petitions filed since fiscal 2016, the NLRB reported. In addition, unfair labor practice charges increased 19% year over year in fiscal 2022 and total case intake at NLRB field offices increased 23%, the largest jump in a single year since fiscal 1976.
Despite these efforts, the total number of employees in the US who are represented by unions has continued to trend downward.
“My perspective is that unions are viewing 2023, this kind of Covid-driven climate that we’re in, as a huge opportunity to try to focus on gaining support of a younger workforce, and I think that they will point to their work with Amazon and Starbucks as signs that it’s working,” Terry said. “But we’re not seeing the overall majority of workers who are represented increasing.”
One strategy that unions utilize to garner support is to engage a direct workforce with their messaging and their organization efforts. And when a workforce includes both staff employees and a contingent workforce, they make efforts to target the contingents as well to help carry their message so that the union can represent both contingent workers and employees of organizations all under one collective bargaining agreement, according to Terry.
In addition, unions can use a contingent’s experiences with multiple employers to “get a lot of bang for their buck,” he says. “When they find those people who are temporary and contingent workers, they can carry that message into multiple employers. I think they’ve made a point to identify the contingent workforce as important to their unionization efforts, and so they’re strategically marketing themselves to contingent workers.”
President Biden, who has called himself “the most pro-union president you’ve ever seen,” has made no secret of his support for unions. For example, the White House Task Force on Worker Organizing and Empowerment, led by VP Kamala Harris, submitted to the president more than 70 recommended tools executive branch agencies could use with existing executive branch powers, procedures and practices to reduce barriers to worker organizing.
Biden approved all of the recommendations in February 2022, and the task force this month announced that agencies have advanced its recommendations actions.
“While the task force has been focused on its work within the executive branch, the country has seen significant momentum in worker organizing spread across multiple industries, including in industries with a history of low union density, such as digital programming and testing and previously unorganized retail,” the White House stated. “This organizing momentum reflects the timely nature of the Task Force’s work as a new generation of workers — many without any previous exposure to collective bargaining — makes their voices heard.”
Also advocating for the union cause is Jennifer Abruzzo, who became the NLRB’s general counsel in mid-2021. Shortly thereafter, she issued her first guidance memo declaring her intent to overturn recent Trump-era precedent with regard to unions, reassess long-standing agency doctrine and actively enforce the National Labor Relations Act consistent with her own view — even if they conflict with board precedent, according to an insight brief by law firm Fisher Phillips. Since that time, she has issued 16 additional guidance memos, giving rise to accusations that she wants to use her position as the NLRB’s chief prosecutor to rewrite labor law.
Memos from the general counsel don’t represent the official legal position of the entire agency; however, they do represent the policy and guidance for all NLRB regional offices investigating and prosecuting charges against employers.
Suggesting that Abruzzo is attempting to “rewrite labor law,” Fisher Phillips explained that last year she issued a memo addressing “captive audience meetings,” where employers can have an opportunity to meet with employees during work time to address union representation. Abruzzo opined that such meetings violate the National Labor Relations Act, even though they have generally been deemed lawful dating back to 1948.
Look for part two in an upcoming issue of CWS 3.0, which will address ways CW program managers can help avoid or prepare for a possible unionization push at their organization.