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How Does Union Decertification 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 leave a union. A legal process exists for decertifying a union, 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 Employees Want Out

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 this process are limited, forcing them to walk a thin tightrope before and during the decertification process. You cannot encourage 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 an employee votes to retain the union. You cannot “bribe” employees with pay increases, time off or other benefits because these types of actions are interpreted as interference.

RELATED: Understanding Decertification Elections

Falling Off the Tightrope

The U.S. courts and NLRB have heard plenty of complaints involving union claims of unfair labor practices during the decertification 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 union 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 process, which was interpreted as a deliberate attempt to sway votes. This dispute dates back to 1992, proving once again that staying union proof is critical.

Decertification Explainer Video

Don’t Show Too Much Enthusiasm for Decertification

Employers do have rights, but the tightrope keeps narrowing. Recognizing the delicate balancing act required, an employer may lawfully inform an employee of the decertification process 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.

You can communicate your views in writing or 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. Staying safely on the tightrope is much easier when your employees understand you truly care about their welfare.

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