How Does the Union Decertification Process Work? An Employer’s Guide

Unhappiness with representation, an unwillingness to pay union dues, and resentment that a union contract determines compensation are all reasons why employees decide to decertify their union. A legal process exists for union decertification, and it is quite similar to the certification process, except for one thing: employers are even more restricted in what they are allowed to communicate.

When & How The Process of Decertification Starts

The National Labor Relations Act (NLRA) allows employees to petition the National Labor Relations Board (NLRB) to hold a "decertification election," requesting termination of the union as a bargaining agent. The law says that at least 30 percent of employees must sign cards or a petition asking for a decertification election. Decertification elections cannot be held for at least one year after a union certification or during the first three years of a collective bargaining agreement, except during a "window period" near the end of the contract.

Employer rights during the process of decertification are limited, forcing them to walk a thin tightrope before and during the entire proceeding. You cannot encourage decertification efforts or interfere in the filing of the petition by employees. You cannot harass or threaten employees, such as subtly indicating a promotion will not happen if employees vote against decertification. You cannot "bribe" employees with pay increases, time off or other benefits because these types of actions are interpreted as interference.

Examples of Unfair Labor Practices Related To Decertification

The U.S. courts and the National Labor Relations Board have heard plenty of complaints involving union claims of unfair labor practices (also called ULPs) during the union decertifying process. In the U.S. Court of Appeals case Enterprise Leasing Company of Florida, Doing Business as Alamo Rent-A-Car (No. 15-1200), decided August 5, 2016, the NLRB claimed that Enterprise violated the NLRA by "… encouraging an employee to circulate a petition to decertify the Union as its employees' bargaining representative….interfering with a union representative's contractual right of access to Enterprise's facility, [and] unlawfully decertifying the Union as its employees' bargaining representative based on a petition tainted by unfair labor practices…." The court decided in favor of the NLRB, saying the company manager had "interrogated employees about, and solicited them to withdraw, their union membership."

In April 2016, the Agricultural Farm Labor Board affirmed an Administrative Law decision that allowed the setting aside of a 2013 decertification election at Gerawan Farming. The employer was found to have interfered with a decertification campaign and to have colluded with the California Fresh Fruit Association, which paid for decertification campaigners to gain support for decertification ballots. The employer allowed employees who favored decertification from the United Farm Workers to gather signatures for decertification during their shifts. The company also increased employee wages during the decertification, which was interpreted as a deliberate attempt to sway voters. This dispute dates back to 1992, proving once again that staying union proof is critical.

Explaining Decertifying a Union To Employees

Employers do have rights, but the tightrope keeps narrowing. Recognizing the delicate balancing act required, an employer may lawfully inform an employee of the union decertification should an employee ask a manager for help. Once a certification petition is filed, the employer can actively campaign for decertification within the same employer limitations associated with a certification campaign. You can explain why decertifying the union benefits employees but your information must be communicated in a fact-based manner without threats or intimidation.

Need some help providing employees with the knowledge they need when it comes to decertification?

You can communicate your views in writing, through websites, or training programs. Developing effective leadership communication is a critical strategy for engaging employees year-round. Communication technologies make it easier to reach all employees on a regular basis, and they include web-based training, eLearning, and video tools; these tools can be adapted to address specific union-related occurrences, such as a petition for decertification. Maintaining a positive workplace culture is much easier when your employees understand you truly care about their welfare and working conditions.