Decertifying a Union: The Employer Bill of Rights

Many company leaders believe that once employees vote in a union, there is no way out. It's not true! You won't hear unions talking about it, but decertifying a union is an option for employees - meaning they can choose to get rid of the union as their representative.

There is a legal process for union decertification that employees can follow to end their commitment to the union. It's not easy, but it doesn't take much to realize the union will do everything possible to prevent decertification. This includes filing numerous Unfair Labor Practices (ULPs) charges with the NLRB. The well-kept secret is that employers have rights during a decertification campaign, and they need to exercise them.

Count on a Fight when Decertifying a Union

The reasons employees choose to decertify a union vary. They may believe the union fails to represent employees in employment matters properly, doesn't keep its promises, or causes so much harm to the employee-employer relationship that a toxic culture has replaced what was once a good culture. Sometimes, employees decide they don't want to pay union dues because it could mean a pay cut, or they aren't getting value for what they pay. There are also situations in which employees come to the realization the employer meets their needs with generous benefits, fair compensation, and transparent management practices, so they don't need the union.

One thing you can absolutely count on is that the union will aggressively fight for continued unionization. The union hopes that you will be drawn to committing ULPs during the decertification process. This would give them a path to stall the process. They hope you will provide fodder for their arguments against decertification. Unions often use the filing of ULPs – justified or otherwise – to bide time to convince employees to vote against decertification.

Employers know their employees have rights, but did you know employers do too? Following is an Employer Bill of Rights that you can use as a quick reference guide during the decertification process. With a little rewording, you can transparently share it with employees as well. This way, they know what you're allowed to do, and by implication, what you can't do. Exercise these rights within the limits of the law, and you're more likely to become union-free.

Employer Bill of Rights

During a decertification process, employers can exercise their rights protected by federal and state labor laws, and in adherence to NLRB and Administrative Law Judge rulings. You have the right to:

• Inform employees of your views on unions. Inform them of the facts they need to make an informed decision. Utilize a variety of strategies that can include videos, web and eLearning tools, in-person training, printed materials, and social media
• Maintain rights to free speech, including expressing approval of decertification and the factual reasons for approval
• Inform employees of their rights and options under the National Labor Relations Act (NLRA)
• Inform employees they are free to vote for or against decertification in an election
• Remind employees that whether they decide to sign the decertification petition or not, doesn't take away their right to vote if an election is held
• Reinforce the good features of working for the company, like generous benefits, job security, open-door policies, etc. 
• Reinforce that the reasons employees voted for unionization in the first place no longer exist due to management responses. (For example, improved grievance procedures, revamped promotion policies, revised compensation schedule, adjusted work schedules, etc.)
• Consult with other organizations and labor law professionals who can help your business stay within legal requirements and limitations 
• Require the union to adhere to decertification laws, including the filing period
• Require employees only to perform decertification activities during non-work time, in non-work areas
• Accept voluntary employee complaints about union coercion or union undue pressure to vote against decertification. You won't influence the employee in any way and will only instruct the employee on next steps to take. This would include reporting the union behavior to the NLRB
• Protect the privacy of employees by not revealing the names of employees who support decertification by signing a petition or who privately let the employer know of their support
• Refuse to assist an employee with the decertification petition or any other step in the decertification process in staying within legal requirements and in avoiding any appearance of influence
• Answer only questions strictly involving legal aspects of the decertification process and employee rights (or refer employees to the NLRB)

Taking the Long View

Numbers 10 and 11 seem contradictory to the employer's support for decertification. However, there are two significant issues to consider.

• Allowing employees to use work time for union activities, including decertification will negatively impact employee productivity
• Allowing employees to use work time and work areas for union activities creates a precedent for allowing employees to use the workplace for non-job related activities beyond unions, like posting club announcements on the bulletin board and discussing personal activities during work hours

It's important to take the long view. Even if the employees vote to decertify, they always have the option of calling for a union election again should they become dissatisfied with working conditions and policies and procedures. Consistent and legal policies and procedures, effective leadership, and communication throughout the decertification process sets your company up for long-term employee engagement and positive workplace culture.

Refer and Inform vs. Assist and Encourage

Simply stated, employers cannot help or appear to help with the decertification process in any way. In fact, there are some statements the employer must not make. For example, offering to help get rid of the union by asking employees for a decertification election, or promising to reward employees if the decertification effort is successful. It's naturally tempting to want to assist one or more employees who indicate they want to start a decertification campaign, especially if the employee seeks your help

Don't do it! The union can claim that you unlawfully helped your employees to get rid of the union. Any assistance you give an employee will be challenged by the union, and the union will likely win. Think "refer the employee" to the NLRB rather than "assist the employee." Think "inform the employee" rather than "encourage the employee."

During the union contract period, you have likely taken significant steps to improve employee engagement, or employees would not be considering decertification. Key steps after the decertification vote include continuing to improve employee engagement levels, regularly reviewing all Human Resources policies, especially those that influence employee decisions to pursue unionization, and training supervisors and managers on unions and labor law and effective communication. Employee interest in decertification is a sign you are doing everything right to get union-free once again