Written by James A. Holt and Brianna L. Schmid from Reed Smith LLP on March 11, 2024
Employers in all industries should take notice that efforts to unionize appear to be spiking in 2024. Indeed, data made available by the National Labor Relations Board (NLRB) shows that, in just the first few months of the current fiscal year, the number of union representation cases, or so-call “R-cases,” filed with the NLRB is on a meteoric rise – indicating that recent trends with respect to union organization efforts may be amplifying.
This was predicted in our prior article about the NLRB’s decision in Cemex Construction Materials Pacific, LLC, which established a new framework for the union representation process. Under Cemex, when a union requests recognition based on a majority support of the employees to be in the bargaining unit, an employer must either: (1) recognize and bargain with the union; or (2) promptly file a RM petition to challenge the union’s claim of majority support by seeking an election, pursuant to Section 9(c)(1)(B) of the NLRA, unless the union has already filed a petition for a representation election pursuant to Section 9(c)(1)(A) of the Act. The time for the employer to act is limited, as it is generally held that the employer has only 14 days after the demand for recognition in which to file an RM petition.
Cemex appears to be having a profound impact and emboldening unionization efforts. According to the NLRB’s data, the rate of petitions filed by employers (RM petition) has aggressively ballooned. An average of 45 RM petitions were filed annually between 2014 and 2022. In 2023, the NLRB saw almost double the amount of RM petitions as it did in 2022, increasing from 32 to 62 RM petitions filed. So far, in 2024, a whopping 70 RM petitions have already been filed, rapidly outpacing last year. At that rate, employers are on pace to file anywhere between an average of 400 to 600 RM petitions in 2024.
Notably, the increase in RM petitions has not slowed the filing of petitions filed by workers or unions (RC petitions). Instead, the NLRB’s data shows a surge in RC petitions as well thus far in 2024, with 389 RC petitions having already been filed. At that rate, workers and unions are on face to several hundred more RC petitions than they did in 2023.
The significant spike in petition activity demonstrates that union organization efforts continue to have significant traction. With filing rates only expected to swell further – both in the wake of the Cemex decision, and as the United States continues to move closer to this year’s presidential election – employers must be mindful of the dynamics of their workforce, understand the rights of both management and non-management populations under applicable law, and create and implement effective plans and strategies for maintaining productive employee relations and, should the circumstances arise, for addressing any union organization efforts that could take place among their workers. Contacting legal counsel for assistance and guidance can go far towards establishing effective plans and programs with such purposes and mitigating associated risks and potential missteps.
