NLRB Fiscal Year 2023 Data Shows Unfair Labor Practice Charges, Elections Continue to Increase

Quick Hits

• NLRB FY 2023 case filing data shows union representation petitions for elections ticked up 3 percent over FY 2022—much less than the 53 percent spike from FY 2021 to FY 2022.
• ULP charges increased 10 percent from FY 2022 to FY 2023, compared to the 19 percent increase from FY 2021 to FY 2022.
• Due to recent Board decisions, employers may again begin to experience an uptick in ULP charges and election petitions.

The NLRB reported that union representation petitions for elections were up 3 percent over FY 2022. While this is higher, the increase isn’t as dramatic as last year’s increase. The NLRB’s release recalls that FY 2022 saw a 53 percent increase in the number of union representation petitions filed, as compared to the number filed in FY 2021. While petition activity remained high in FY 2023, compared to years past, it did not grow at the record clip of FY 2022.

Unfair labor practice (ULP) charges, or complaints that a party violated the National Labor Relations Act, increased 10 percent over FY 2022’s total. This growth rate in charges is about half as much as the Board witnessed in FY 2022. From FY 2021 to FY 2022, the Board experienced a 19 percent increase in ULPs filed.

The second half of FY 2023 may have slowed the year-over-year growth in filings with the Board. In a release publishing the filing data for the first half of FY 2023, the Board reported an increase in union election petitions of 14 percent compared to the first half of FY 2022. The Board also reported an increase in ULP charges of 16 percent compared to the same time period for FY 2022. Ultimately, while both rates increased overall comparing FY 2023 to FY 2022, they grew less than the trend of the first half of the fiscal year.

Looking Forward

With the Board’s precedent-turning decisions this calendar year, particularly in August 2023, employers may again begin to experience an uptick in ULP charges and election petitions. For example, the Board reported that it had received twenty-eight RM petitions, or petitions filed by employers to hold an election, just a little over one month after its August 25, 2023, decision placing a burden on employers to file such a petition when employees claim a union enjoys majority support.

While some might not view twenty-eight RM petitions in one month as extraordinary, it far surpasses the typical rates of years past. At twenty-eight RM petitions per month, this rate would be equivalent to 336 annually, a total far surpassing prior years. For example, in FY 2022, thirty-two RM petitions were filed over the course of the entire year; in FY 2021, thirty-four RM petitions were filed; and in FY 2020, forty-one RM petitions were filed. Further, if 336 RM petitions were added to all election filings in FY 2023, this number would constitute approximately 11 percent of total election filings for the year.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will publish updates on the Traditional Labor Relations blog as additional information becomes available.

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