Hunton Employment & Labor Perspectives

This fall, the National Labor Relations Board (NLRB) published its case processing data for Fiscal Year 2023 (FY2023) – revealing a significant uptick in Unfair Labor Practice (ULP) Charge filings and union petitions since FY2022. Specifically, the NLRB saw a 10% increase in ULP Charges filed since FY2022. This year over year increase is significant, as there was a 19% increase in ULP Charges in FY2022 itself. The agency received just 15,082 ULP Charges in FY2021 while in FY2023, employees filed nearly 20,000 ULP Charges. This surge in ULP Charges during the last few years illustrates the increased scrutiny on employers’ compliance with the National Labor Relations Act (NLRA).

The NLRB also experienced a 3% increase in union petitions in FY2023, following a boom of union petitions in FY2022. There was a 53% increase in union petitions from FY2021 to FY2022. In FY2021 only 1,638 union petitions were filed with the NLRB. During FY2023, more than 2,500 union representation petitions were filed by employees. Again, this surge in representation petition filings indicates an increase of unionization efforts across the country.

Another notable statistic from FY2023 relates to the number of Certification of Representation (RM) petitions filed by employers after the NLRB’s August 25, 2023 decision in Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130. In Cemex, the Board announced a new, more lenient standard to determine when employers are required to bargain with unions without a representation election. Under the new standard, when a union requests recognition on the basis that a majority of employees in a bargaining unit have designated the union as their representative, an employer must either recognize and bargain with the union or file an RM petition seeking an election. If the employer commits any ULPs that would require setting aside the election, the RM petition is dismissed and the Board orders the employer to recognize and bargain with the union. Since this decision, employers have filed 28 RM petitions after being asked to voluntarily recognize a union. In another sign of the times, both employers filing RM petitions and employees filing union election petitions are increasingly seeking elections.

Employers should continue to track this uptick in NLRB cases and remain vigilant with NLRA compliance. Companies experiencing a union drive should seek experienced counsel to avoid committing ULPs, manage union election petitions, and file RM petitions as needed.