Decertifying the Union

David Keene, II
December 3, 2008 — 4,474 views  
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I.          Introduction


The right of employees to unionize is set forth in the National Labor Relations Act (“Act”).  The Act also provides a framework for decertification, the process by which a union may be removed as the exclusive bargaining representative.  Employees (and their employers) who want to remove unions from their workplaces have two removal methods.  The first: petition the National Labor Relations Board (the “Board”) for a decertification election. The second: present the employer with a petition signed by a majority of employees in the bargaining unit, demanding that the employer withdraw recognition from the union as the employees’ exclusive bargaining representative.  Each method is examined below. 


II.                The Methods


A.                Decertification election


Employees must judge the strength of support for decertification within their specific bargaining unit.  While election rules require that only 30% of the workforce sign the petition, it’s not worth filing a petition unless 75% of the workforce actually signs, as some supporters will fall by the wayside.


The filing of a petition comes next.  Specific rules govern when decertification petitions may be filed. They are as follows:


·                     If a labor contract is in place with a definite expiration date of three years or less, a decertification petition may be filed between 90 and 60 days prior to the termination date of the contract.

·                     If a labor contract is in place with a definite expiration date of more than three years, a decertification petition may be filed between 90 and 60 days prior to the contract’s third anniversary year or after the contract’s third year.

·                     Upon the expiration of a collective bargaining agreement, but before a new agreement is reached by the parties, a decertification petition may be filed at any time.


Once it is determined that one of these three windows of opportunity is met, and once the employees have filed a petition, a hearing is conducted before the Board to determine the appropriateness of the petition and the union’s status as a labor organization. Following the hearing, the Board will issue a decision regarding whether the petition is appropriate and whether the election can proceed. The election will usually be held within 40-50 days from the time employees file the petition. To prevail in ousting the union, a simple majority (50% plus 1) of the employees must vote in favor of ouster.  


Employers frequency ask how they can help the decertification effort.  Management is prohibited from instigating, encouraging, authorizing or ratifying decertification petitions.  There are, however, a number of actions management may take that will enhance the prospects of decertification.


Management can:


·                     Truthfully respond to employee inquiries about the decertification process.

·                     Tell the employee that decertification requires a majority vote of the bargaining unit in an election conducted by the Board, and that he may file a petition with the Board for such an election.

·                     Advise the employee that a decertification petition must be supported by the signatures of at least 30 percent of the employees in the bargaining unit, and you may provide an estimate of the minimum number of signatures needed.

·                     Explain the timeframe for filing a petition.

·                     Give the employee the telephone number and address of the Board’s Regional Office where the petition is to be filed, and encourage the employee to call that office for more information on how to file the petition.


The Board’s rules state that “while an employer does not violate the Act by rendering what has been termed ‘ministerial aid,’ its actions must occur in a situational context free of coercive conduct.  The essential inquiry is whether the preparation, circulation, and signing of the petition constitutes the free and uncoerced act of the employees concerned.”  What exactly this means varies from case to case, and I strongly suggest you speak to counsel before becoming involved whatsoever in a decertification campaign.


Management cannot:


·                     Initiate the decertification petition.

·                     Become involved in circulating the petition

·                     Solicit petitions or signatures on petitions.

·                     Waive compliance (or ignore noncompliance) with its no-solicitation/no-distribution policy.

·                     Question eligible voters about whether they support decertification.

·                     Generate or underwrite the cost of campaign literature or paraphernalia for use by employees leading the decertification effort.

If the petition is sufficient and the election date is set, the campaign will begin. The success or failure of a decertification election largely depends on how the employer conducts its campaign.  The key to success is effective communication of the employer’s views. Although the campaign should be specifically tailored for the relationship between the employees and the union, the following issues should be addressed:


·                     What has the union achieved?

·                     What has the union “charged” employees in terms of union initiation and monthly dues? Where does that money go?

·                     What is the union’s record of success in grievances and arbitrations?

·                     Have there been strikes or picketing?

·                     Are the employees paying someone to do what they may be able to do for free?

·                     Are the union leaders trustworthy and capable?

·                     How do non-union employees who work for the same employer feel about being able to represent themselves without a union?


Employers faced with the decertification petition should seek the assistance of counsel.  Understanding the law and preparing strategies and tactics that can lawfully be employed during an election campaign are the keys to success.


B.                 Withdrawal of recognition


Under current law, an employer may withdraw recognition from a union at the end of the term of a collective bargaining agreement (or three years, whichever is sooner) when the employer has objective evidence of the union’s lack of majority status. A petition signed by a majority of the employees in the bargaining unit clearly demanding that the employer withdraw recognition of the union as the employees’ collective bargaining agent is evidence of a lack of majority status.


This is only the tip of the iceberg.  And, when I write iceberg, I mean that: the vastness of this issue is hidden beneath the water, and poses a dangerous trap for the incautious.  The burden of proving loss of majority status rests on the employer; evidence about which the employer was not aware at the time it withdrew recognition can be used after the fact to show that the union maintained its majority status. Withdrawing recognition of a union is a complicated process requiring careful navigation through an icefield of hidden legal issues. Employers should always proceed with caution and with experienced counsel.  


David Keene, II


David Keene, an associate in Baker Donelson's Tri-Cities office, concentrates his practice in the area of labor and employment law. Mr. Keene has experience in a multitude of labor and employment areas including negotiating collective bargaining agreements for both private and public sector employers; representing employers in grievance and issue arbitrations; representing employers in all matters, including elections and unfair labor practices, before the National Labor Relations Board and state labor boards; helping clients maintain union-free workforces; handling unemployment claims from initial applications for benefits through court appeals; counseling clients on a multitude of federal employment laws, including the ADA, FMLA, ADEA, and FLSA; litigating employment discrimination claims; and representing individuals against unions. Mr. Keene has been published in The Labor Lawyer, Labor Law Journal, and numerous other publications, and has taught seminars on a wide variety of labor and employment topics.