2022 will be the biggest year for labor unions since… well, since 2021. The sheer volume of labor-related developments and stories this year has been unlike anything I’ve seen in my almost three decades in the business. There are big stories almost every day, and the Biden administration has just barely gotten his team on the field. Here are eight predictions for 2022:
ONE: Union organizing will have a record year. This year’s overall RC petition activity is low because of the pandemic. However, 4th quarter petition activity continues to be strong. I am sure this trend will continue into the first quarter. Barring another pandemic-fueled shutdown (please let’s avoid that!) next year will be the biggest year for petition activity in nearly a decade. I think unions will file over 2,000 petitions for the first time since 2015.
TWO: More high-profile campaigns. Unions are targeting name brands like the recent Starbucks campaigns. Elections in units like these make little sense – the cost to negotiate and administer a labor agreement for 30 employees in a high-turnover industry far outweighs any dues income it will generate. However, these types of campaigns also generate a massively outsized amount of publicity for unions. And that’s why they organize in units like these – expect to see a lot more petitions in high profile restaurants, retailers, and perhaps even your favorite college football or (more likely) basketball team.
THREE: Some high-profile losses. Related to the point above, unions will lose many of these high-profile campaigns. That will be spun as a reason to pass the PRO Act. But even when unions “win,” they typically do a terrible job representing and delivering on their promises in units like these. Once people actually get to experience the realities of union representation, they’ll quickly understand that the points made in so-called “vicious anti-union campaigns” are actually just facts. Bargaining takes a long time. It’s inefficient. It’s focused mostly on the union’s institutional goals. It’s unnecessarily adversarial (because the union needs it to be that way). It ruins the workplace culture. And it rarely ends up delivering the things unions promise to win support. This either means a bunch of frustrated new union members end up on strike (see below) or decide this was a dumb idea and dump their union.
FOUR: Union density will remain low. Despite this increased organizing, union density will remain low. That’s partially because unions are primarily targeting higher profile but smaller shops. And the economy continues to remain on shaky ground – there are a lot of unionized employers who continue to have a hard time competing. And while RC petitions are on the rise, so are decertification petitions to remove unions from bargaining units. While unions will organize new members, they’ll also lose a lot. Overall union density will remain flat.
FIVE: Strikes will explode. A lot of the talk about strikes this year was hype (I covered Strikesgiving last month). But this year will be different. There will be more strikes – big and small – than at any time in the last decade. Coverage of these strikes will be sympathetic to unions and encourage more and more work stoppages.
SIX: Card-Check will become the law of the land. Sometime soon the NLRB will rule that employers must recognize unions based on union authorization cards and cannot insist on a secret ballot election unless there is actual proof of good faith doubt about the union’s claim of majority support. Coupled with changes in how bargaining units are picked (basically the union can pick whatever unit it wants) this will dramatically shift the landscape. This means employers must make sure to educate employees early and often about the realities of unions. Check out my upcoming webinar to understand how to deal with this new change.
SEVEN: Labor law will be changing a LOT, just not with the PRO Act. If we’ve learned anything this year – especially over the last 6 months – it is really difficult to get anything done in Washington. The PRO Act is not happening in 2022, and it is hard to imagine it moving after that unless there is a massive shift to the Democrats in the mid-terms (and that is really hard to imagine right now). The mid-terms are nearly a year away, which is like a decade in today’s politics, so anything can happen, but my bet is that all of the labor law changes coming this year will be from the NLRB. That said, there will be a deluge of pro-labor Board decisions like we’ve never seen. In addition to the Joy Silk/Card-check and unit determination decisions I mentioned above, you can expect many other big restrictions in areas like handbook rules, bargaining, campaign communications, disciplinary action, strikes and more.
EIGHT: I’ll see you in court. The new General Counsel has already shifted the litigation strategy in unfair labor practice cases. Many, many cases that traditionally would have been resolved through the Board’s administrative process have been referred to federal courts for 10(j) injunctive relief. This basically short-circuits the normal Board process and lets the GC pressure an employer to comply with their demands or face a very lopsided injunction case where the GC isn’t required to prove much about the merits of the underlying case. That trend is going to continue in 2022. It will be interesting to see how many district court judges go along with the new strategy, but we’ll see more 10(j) cases in 2022 than ever before.
Happy New Year and I hope you and your family have a blessed holiday season. Make sure to catch up on your sleep – 2022 is probably going to mean a lot of late nights!