Decertification elections are a complicated process fraught with challenges. Before a formal NLRB petition can be filed, 30% of workers in a bargaining unit must sign a petition affirming that they don’t wish to be represented by their union. Further hurdles include Board dismissals based on procedure or unresolved ULPs that can lead to blocking charges from the union itself.
When employees vote to remove their union, you might assume that the vote results settle the matter. That isn’t the case, at least not right away. Federal labor law still requires employers to recognize and bargain with a union until the NLRB formally certifies the election result, a process that can take weeks after the vote itself. The Eighth Circuit is now pushing back on how that interim period has been handled.
The Case
At Research Medical Center, an acute care center in Kansas City, workers voted to decertify SEIU, and the employer withdrew recognition during the post-vote certification window. The employer also stopped withholding dues from workers’ paychecks, ceased bargaining, and disallowed union access on the premises.
The Eighth Circuit’s decision in Midwest Division-RMC, LLC v. NLRB (2026) counters the Board’s finding that the employer’s withdrawal was an automatic NLRA violation under W.A. Krueger Co., 325 NLRB 1225 (1990). That standard required that even if workers voted to remove their union, an employer must keep bargaining until the Board certifies. Also under that standard, an employer who withdrew recognition before Board certification committed an automatic NLRA violation, regardless of how the vote went.
The Eighth Circuit referred back to Mike O’Connor Chevrolet, 209 NLRB 701 (1974), in which the Board found that an employer acts “at its peril in making changes in terms and conditions of employment during the period that objections to an election are pending and the final determination has not yet been made.” Those actions were not automatic violations, though, and the Eighth Circuit characterized W.A. Krueger as inconsistent with how employers are allowed to act upon election results before NLRB certification when workers choose to unionize.
Furthermore, the Eighth Circuit pointed toward the Board’s own decision in Johnson Controls, Inc., 368 NLRB No. 20 (2019). The Board had found that an employer who cancelled a bargaining session following a decertification vote had not automatically violated the NLRA, signaling that the rigid W.A. Krueger standard was already losing ground even within the Board itself.
What’s next?
The Eighth Circuit’s ruling draws on Fifth Circuit rationale from two prior cases in rejecting the automatic-violation approach of W.A. Krueger on post-decertification employer conduct. It now becomes harder for the Board to maintain the W.A. Krueger position in federal court. At some point, we could also see the current, employer-friendly NLRB overturn this standard.
What Changes And What Doesn’t For Employers
The Eighth Circuit ruling frees employers from being unequivocally required to keep bargaining with a union while waiting for the Board to formally certify the result.
However, choosing to cease bargaining during that period doesn’t remove risk if a union succeeds in objecting to a decertification vote. In that event, an employer could be required to bargain retroactively. Yet this is a more practical standard for employers in cases where their workers make it overwhelmingly clear that they want a union out.
Crucially, the Eighth Circuit is not only expressing employer-friendly views but also siding with workers who are disappointed after a union fails to deliver on its promises. In a time when Biden-era blocking charge policies still shape the landscape by allowing unions to easily block decertification votes, appeals court judges are signaling that workers’ voices matter when they choose to remove a union.
