Bloomberg Law
Nov. 14, 2022, 2:00 AM

ANALYSIS: Why Unionization Efforts May Run Out of Steam in 2023

Francis Boustany
Francis Boustany
Legal Analyst

It’s been hard to miss the successes that unions have amassed in election after election. Once perceived as a dying force in the private industry, unions have engineered a turnaround to reach their highest level of public approval since 1965.

But as we enter 2023, unions will face new challenges. Burgeoning expectations from newly minted bargaining units, growing employer resistance, and strengthening economic headwinds will be pivotal forces in determining whether recent union achievements represent a long-term shift in the American labor movement or a fleeting string of wins soon to be in the rear-view mirror.

Bargaining: Higher Hopes, but Fewer Resources

Unions won hundreds of elections over the past year alone, and now they’re expected to deliver on the promises they made in their organizing campaigns, from higher wages to improved benefits to better working conditions. However, the slow pace of bargaining negotiations and contract ratification may wear on the enthusiasm of even the most ardent supporters, risking the momentum and the media coverage that unions have recently enjoyed.

An analysis of Bloomberg Law’s labor data showed that the average number of days it takes for employers and new bargaining units to ratify their first contract is 465 days. This means that a newly formed bargaining unit we hear about today will likely not have a collective bargaining agreement in place until 2024.

That is a long time to wait.

Beyond this, new bargaining units likely have high expectations for their negotiators, as a union’s first contract typically includes large wage increases—particularly when compared to raises negotiated during contract renewal sessions.

However, workers expecting to hit these kinds of raises will probably be disappointed.

Moving into 2023—when the initial collective bargaining will occur for many newly formed bargaining units— unions and their most effective negotiators will likely be spread thin nationally, essentially having to utilize the same staffing and funding levels they’ve had in leaner years to negotiate a far greater number of contracts.

This will be particularly concerning to new bargaining units, as the unions that are most active in organizing have had to decrease their spending on representational activities—which includes bargaining negotiations—between 2017 and 2021.

Even if unions secure and utilize the necessary funds, there’s no guarantee that they will be able to recruit the seasoned labor-side lawyers and professionals needed to successfully bargain for all newly formed bargaining units. This could equate to fewer improvements in wages, benefits, and working conditions than newly formed bargaining units typically expect.

When the reality sets in that winning a representation election is just the beginning, some workers might become discouraged—and others may peel away from the movement altogether.

Employers Are Ready for a Fight

Unions may be winning representation elections in large numbers, but employers have taken note and are better preparing on multiple fronts.

From standard forms of unionization prevention (read: union busting) to challenging election administration to fighting outright with the National Labor Relations Board (NLRB), employers have several options available to them to fight unionization efforts. They will likely use the tools available to fend off union support among employees by discussing the less glamorous realities of unionization, regulating solicitation and distribution, and limiting activities of non-employee union members.

And they may win the long game doing so.

In 2023 we will see broadened employer efforts to stop the spread of labor activities nationwide. It is likely that more employers will expand the labor relations arm of their legal teams to prepare for legal challenges, double down on challenging elections, raise concerns of irregularities in said elections, and allege that unions are using unlawful tactics to gain support (although claims of free cannabis giveaways might not gain widespread usage).

And while it’s unclear whether any employer challenges would overcome union wins in elections, it is probable that they will succeed in some critical facets: slowing down unions’ momentum (which can lead to lower raises in negotiations), stalling progress toward collective bargaining, and wearing on the patience of union-supporting employees.

The Elephant in the Room: Economic Instability

There are economic headwinds ahead in 2023. The risks of global and US recessions (some putting the US risk at 98%), inflation, and a slowing job market expose the entire global economy to instability—and the US labor movement is no exception.

And if an economic downturn materializes, unions might feel pressure from multiple angles.

To start, employees may be less willing to participate in union organizing activities if the job market tightens and they feel that their jobs are in danger.

While it is true that the jobs of unionized employees, particularly those covered by a CBA, are better protected than non-unionized employees, those who consider starting a union at an organization may think twice before joining an organizing effort.

They may see retaliation as a real possibility, even though employer punishment for concerted action is unlawful under federal labor law. Or they may feel like the threat of unionization would put an employer in a worse economic position, necessitating layoffs before an organizing drive even has the chance to begin.

In addition to the personal risks for employees, union leaders themselves may be hesitant to negotiate boldly during an economic downturn, due to employers having fewer resources to fund expanded benefits or increased wages.

If a recession materializes in 2023, there is a real potential that newly organized bargaining units will be at a disadvantage when it comes to their first time at the table, threatening their ability to win additional wages or benefits.

Unfavorable collective bargaining outcomes, combined with fear of employer retaliation, may ultimately steer employees who would have engaged in organizing efforts in 2020, 2021, or 2022 away from such behavior in 2023.

Amid an economic downturn, increased employer challenges, and looming concerns about the effectiveness of newly formed bargaining units, 2023 looks like it could be a challenging year for the US labor movement. How unions, their bargaining units, and their supporters handle these challenges will make next year a make-or-break year for the momentum that unions hope to maintain.

Access additional analyses from our Bloomberg Law 2023 series here, covering trends in Litigation, Transactional, ESG & Employment, Technology, and the Future of the Legal Industry.

Bloomberg Law subscribers can find related content on our Labor and Employment Practice Center and Practical Guidance: Union Recognition & Bargaining resources.

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