Unions make big and bold promises to sell their wares to workers. Therefore, it is not uncommon that a harsh reality sets in once workers realize that their union doesn’t truly represent their interests.
Perhaps initial excitement faded once workers realized that the bargaining process takes longer than expected, or a contract never materialized at all. A sell-out contract might leave workers feeling as though they were hung out to dry. Workers might also discover that a trusted co-worker was actually a paid salt with a vested interest in organizing the workplace.
Thus begins the desire to decertify a union, but unlike the organizing process, no one will pass workers pamphlets on how to remove a union from power. Our own Michael VanDervort also detailed recent union responses to decertification petitions (spoiler alert: they do resist).
Section 7 of the National Labor Relations Act (the Act) guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
Decertification refers to the process where the National Labor Relations Board (NLRB) allows employees to call for a special election to eliminate the union as their “exclusive representative.”
Decertifying a union is a complicated process and takes work. Some of the challenges that workers face include:
- Opposition from the union, which will often pressure the employees to withdraw or vote against their petition.
- The NLRB often dismisses petitions based on technical issues or alleged but unresolved unfair labor practice allegations.
Once workers clear the hurdle of realizing that they would rather use those union dues for, say, building a 401K fund, the actual decertification rules can be complicated. Here are some steps for workers who want to remove their union representation:
- Step 1: Timing means everything. Biden’s extremely pro-union NLRB will reject petitions that are filed outside the proper window. This includes petitions filed before the one-year anniversary of a union’s initial certification. A “contract bar” rule also bars petitions filed within the first three years of a labor contract other than a 30-day “window period.” Generally, that opens 90 days before a contract’s expiration, but in a healthcare workplace, the window appears 120 days before expiration. If three years have passed since the contract began, workers can file at any point.
- Step 2: Draft the petition. The form itself is simple (a template can be found here) and includes the names of the union and the company, and states that the employees no longer want to be represented by the union. Names of signatories will be kept confidential, and at least 30% of the bargaining unit must sign.
- Step 2: Gather signatures. All signing (and associated efforts) must occur away from work areas and never during work times. No management can be involved in the process. The petition must then be filed with the NLRB’s closest regional office with a cover sheet (NLRB Form 502).
- Step 4: Vote. The NLRB will investigate and could deny the petition if the union has filed a high number of ULPs. Around 60 days later, the board will hold a secret ballot election. If over 50% of workers choose to oust the union, then it shall happen.
From there, employees will be able to discuss issues (of working conditions, pay, benefits, and more) directly with their union-free company. Union dues will also be a thing of the past.
Workers must be prepared for unions to campaign (they cannot threaten) against decertification efforts. Employers cannot be involved in any way with the process, nor can they offer advice or information.
HR departments and legal counsel can offer more guidance if employers have decertification questions.
