An employee walks up to you and says he and some of his co-workers want to leave the union but they don’t know how. Not hiding your joy, you enthusiastically reach out to shake his hand, and tell him that you will do everything possible to help get the decertification process started.
You just made two mistakes. One, you encouraged decertification. Two, you offered to help with the process. If the union discovers you held this conversation, it will file a complaint with the National Labor Relations Board (NLRB). The NLRB will then proceed to invoke sanctions against your business for unfair labor practices. The decertification process will never take place, and the sanctions will prevent another decertification attempt for years. Just a few enthusiastic words can derail the decertification process.
Employer Rights – With Limitations
There are certain things you cannot do or say about decertification during the initiation, petition or election stages. Employers do have rights, but there are rigid rules that, paradoxically, have fluid NLRB interpretations. Following are 6 types of the statements an employer cannot make. All the statements are considered violations of employee rights, or simply as limiting the employees’ freedom of choice. Each statement is supported by an NLRB decision or court case reference.
- “I will help you get rid of the union.” Employers cannot offer to help employees initiate the decertification process. (Weisser Optical, 274 NLRB 143).
- “Forget your raise if the union stays.” Employers cannot use intimidation or fear of reprisal to “encourage” employees to pursue decertification. (Dow Chemical, 250 NLRB 586).
- “If you don’t like paying unions, consider starting a union decertification campaign.” The law says an employer cannot initiate, instigate, solicit or encourage decertification because it interferes with an employee’s free choice. (Quality Transport, 211 NLRB 198).
- “I’ll get Human Resources to distribute the petition to all our employees.” Providing employer resources to support the decertification process is encouraging the decertification election, and that is not allowed. (Placke Toyota, 215 NLRB 395; Quality Transport, 211 NLRB 198; Weather Shield, 292 NLRB 1).
- “You will be much better off without the union.” This statement is also interpreted to be interfering with employee rights (Allou Distributors, 201 NLRB 47; Weisser Optical, 274 NLRB 143).
- “Don’t talk to union representatives. Just sign the decertification petition – or we may end up going out of business.” Employers cannot tell employees who they should not talk to, instruct anyone to support decertification or be involved in the petition process. (Renaissance Hotel Operating Company, NLRB 28-CA-128643).
In the Renaissance Hotel Operating Company case, the employer was told to cease and desist from soliciting the decertification of the union through activities like alerting all employees to the fact a decertification petition is circulating; directing employees to sign a decertification petition; promising employees that, if they sign a decertification petition, they would get a pay increase; promising the reinstitution of a tuition reimbursement program; and promising assistance with job advancement. Saying these kinds of things can actually thwart the efforts of employees, and get the decertification process stopped or invalidated.
Employers Still Have Rights
Employers have rights, but they are the same rights as during the certification process. You can answer questions about the legalities of the process of decertification or refer employees to the NLRB for information concerning the process and the law. However, employers walk a minefield when it comes to decertification, because the NLRB can determine what constitutes interference with employee rights to free choice. An employer can only provide “ministerial assistance” to employees. The test is whether the business leader’s actions had the “tendency … to interfere with the free exercise of the rights guaranteed to employees under the [National Labor Relations] Act.”
The key is for employers to provide high-quality training to managers. Those who represent your company directly to employees need to know what they can and cannot say. Sometimes a few words can make the difference between keeping or not keeping the union.