Understanding the trends behind the current uptick in union organizing activity provides important insights for all employers as they develop their own positions toward unions and unionization in this new labor relations climate.

This article will focus on three trends that are particularly important for employers to be aware of. First, unions are increasingly relying on non-traditional labor entities like the Democratic Socialists of America and younger ideological organizers to organize non-union employers. Second, social, political and ideological bargaining demands – like refusing to agree to no-strike clauses, demanding the ability to wear union apparel at work without limitation and wanting a greater role in company decisions – are becoming as important to unions as traditional economic demands. And third, federal labor law policy seeks to encourage and facilitate union organizing, even if that means overturning decades old precedent.

Several high-profile union organizing efforts, including organizing campaigns at Amazon and Starbucks, were led in part by younger, college-educated workers, who specifically took jobs with those companies to encourage company employees to form and/or join a union. These organizers are ideologically committed to unionization and, unlike more traditional organizers, emphasize the importance of workers to organize for social and political reasons — not just because their economic conditions may improve. These organizers also tend to resonate with workforces that have higher percentages of younger employees — that is, those under 40.

Supporting this new type of organizer are a host of non-traditional labor organizations. For example, the Democratic Socialists of America have become extremely active in union organizing campaigns by, among other things, leading rallies to support union campaigns, assisting union members in handbilling and providing volunteers to man picket lines in support of strikes/job actions. Similarly, instead of affiliating with an existing union, Amazon workers interested in organizing started their own union, appropriately titled the Amazon Labor Union. The Amazon Labor Union proudly declares its independence from traditional labor unions, stating that it is a “grassroots, worker-led union.”

Employers need to be aware that college-educated “salts” and newly formed grassroot unions supported by political activists like the Democratic Socialists are the current face of union organizing.

Bargaining demands

Just as the entities and organizers who power union organizing efforts are changing, union bargaining demands, which historically centered on economic issues – higher wages and better benefits – are also changing. While union bargaining demands continue to emphasize economic issues (think of the fight for $15), in today’s climate, unions are focusing equally on demands that express the social and political perspectives of their members, including a larger role for employees in corporate governance and more flexible leave and vacation policies that comport with employees’ sense of an appropriate work life balance.

Additionally, unions are increasingly taking strident bargaining positions over longstanding features of collective bargaining, like no strike clauses, which some unions ideologically oppose. For example, two candidates for the presidency of Service Employees International Union (SEIU) Local 1000, the largest SEIU local in California, campaigned on the elimination of all no strike clauses from their contracts.

These ideological and social/political demands are often difficult to address in collective bargaining because they are either non-starters for the employer (removing no strike clauses) or infringe on core and longstanding management rights (such as corporate governance and hiring). As a result, bargaining can drag on and the risk of labor instability increases.

Federal labor policy

Central to the Biden administration’s pro-union, pro-organizing policy agenda is an active National Labor Relations Board that advances policies encouraging the expression of pro-union sentiment and making it easier for unions to organize employees.

To that point, on Aug. 29, the NLRB issued its first precedent-shifting decision in Tesla Inc., 370 NLRB No. 131 (2022). In Tesla, the agency found that an employer cannot impose any restrictions on its employees’ right to wear union apparel or clothing with union insignia unless the employer can establish “special circumstances” warranting such restrictions. The board went on to specifically overrule prior precedent that allowed employers to impose certain restrictions on employee rights to wear union apparel without justifying those restrictions with special circumstances.

Similarly, the NLRB’s general counsel has asked the board to find captive audience meetings unlawful — a position that would reverse over 70 years of precedent. Captive audience meetings are compulsory meetings conducted by a company during a union organizing campaign where the company expresses its position on unionization.

In Babcock & Wilcox, a case decided in 1948, the NLRB found captive audience meetings to be lawful. On April 7, in Memorandum GC-22-04, the NLRB’s general counsel took aim at this decades-old precedent, urging the board to outlaw these meetings as inherently retaliatory and coercive of employees’ Section 7 rights. While the general counsel’s memorandum is not binding law, the board is considering the lawfulness of captive audience meetings in Cemex Construction Materials Pacific LLC, Case No. 28-CA-230115 (2018), with a decision likely next year.

In the face of this new labor relations climate, it is more important than ever for employers to be proactive about unionization and think critically about the course of conduct an employer would take if its employees attempted to organize.

Matthew A. Fontana is a labor and employment partner at Faegre Drinker.