First Contracts, Court Battles, & the 2024 Elections

The race is on: labor trends to watch in the new year

The Biden Administration – specifically, the National Labor Relations Board (NLRB) – has been working overtime to overturn entrenched precedents and create new policies around the processes of union organizing under the National Labor Relations Act (NLRA). From election rules, handbook policies, joint employment regulations and employer speech, the NLRB and its General Counsel are pushing the limit on what they will deem prohibited conduct by employers. But the coup de grace was the Board’s decision in Cemex which prioritizes card check as the method to determine union representation – overturning and dismissing decades of precedent and analysis that strongly recommended secret ballots as the preferred and proper method for certifying a union.

Fortunately, many of the NLRB’s changes are already being challenged and struck down by courts, and the application of the Cemex standard will certainly face judicial scrutiny. Moreover, the long-term viability of these policy changes will be highly dependent on the results of the upcoming elections. If Republicans win the White House as well as a majority in the Senate, favorable nominees will be put forward and confirmed for the board. Plus, Jennifer Abruzzo’s, NLRB’s current general counsel, term may be cut short and replaced much like her predecessor. Until this happens, union organizers are in a race against the clock to take advantage of the tilted playing field that has been created for them to push for and earn first contracts, i.e., Starbucks and Amazon. It is known that first contracts are the holy grail because unions, once embedded, rarely relinquish their hold.

Remember, despite the large amount of ink spilled in the past year about the rise of the labor movement - The New York Times wrote about “Labor’s Very Good Year” while the Wall Street Journal noted 2023 as the “Year of the Strike” - these pronouncements miss an overall point. Most of Labor’s “wins” were newly negotiated contracts of existing collective bargaining agreements (CBA). From the west coast ports, UPS & UAW to the Hollywood strikes, these unions won new updated contracts with significant, and costly both in terms of strategic and financial flexibility, concessions from management because they had a place from which to negotiate.

To forestall that first contract major employers must remain vigilant and ready for organizing efforts at their facilities throughout 2024 because a durably tight labor market will continue to put pressure on employers to satiate the demands of their workforce. Leading retailers must continue to provide excellent value to their employees and refresh training for front line managers on the shifting do’s and don’t to limit unfair labor practice charges and improve communication. Ultimately, these proactive practices from employers combined with the fact that the union friendly policy changes may be short-lived may curtail labor’s perceived momentum. This time next year the headlines at the Times and Journal could read very differently.

For more information about workforce trends, the retail industry impact, and RILA’s advocacy efforts on these issues, please contact RILA VP of Workforce Policy Evan Armstrong.
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