When employees become dissatisfied with their union representation, they often ask questions of their employer as to how to get rid of their union. When a union no longer enjoys the support of unit employees, it can be decertified. Decertification is the process of formally removing recognition of a union as the authorized representative of the employee unit. However, the National Labor Relations Act (“NLRA”) has strict requirements for decertification—including when an employer can even mention decertification to employees.
The NLRA creates a dilemma for employers. Their employees bring to their supervisors their unhappiness with the union, but employers are hampered in what they can tell employees.
When Employers Discuss Decertification
Employers cannot unilaterally bring up or suggest decertification to their employees. However, you can provide limited information about decertification in response to certain employee inquiries. Employees must directly ask about decertification or how to eliminate their union. You can provide information about the decertification process if approached by an employee who claims that the employees do not want to be represented by the union and directly asks what can be done.
What Employers Can Say or Do
Employers cannot do anything to encourage or initiate employee desire to decertify. You can tell employees the following:
- Unions can be decertified through a process which determines that the union is no longer supported by a majority of employees.
- You can find more information about decertification online, including at the website for the National Labor Relations Board (“NLRB”).
- Unions can only be decertified at certain times (as explained below).
As a precaution, you should always document these conversations and explicitly clarify to the employee that you are not permitted to encourage or provide more than limited information about decertification.
Timing of Decertification
Decertification can only occur during specific windows of time. Generally speaking, petitions for decertification cannot be filed within a year after a union has been certified. In addition, petitions may only be filed after the expiration of a collective bargaining agreement or after it becomes more than three-years-old. There is also a 30-day window just prior to the expiration or three-year period that decertification can occur. This window runs from 90 to 60 days before the expiration or three–year period. For healthcare providers, this window runs from 120 to 90 days before the expiration or three-year period.
The employee-led decertification method permits employees to petition the NLRB for a decertification election with signatures from at least 30 percent of unit employees. An employer cannot provide material support for an employee-led petition and cannot do anything to affect employee sentiment regarding a petition. However, you can provide limited, ministerial support for a decertification when requested by the employees.
In one example, a supervisor provided a decertification petition to employees with some basic information filled out, such as the number of employees in the unit. The supervisor also let the employees keep the petition secured in his desk when employees were not obtaining signatures. The employer did not initiate the petition, did not solicit signatures or handle the petition while it was being signed, and provided little more than minimal support. The court agreed that the employer did not violate the NLRA. However, we encourage you to simply explain the various options and direct employees to third parties, such as the NLRB, for further information.
Employers may also directly petition the NLRB for a decertification election where they have sufficient evidence of a lack of employee support for their union. The benefit of this approach is that employees do not have to figure out or manage the logistics of decertification. You must document affirmative evidence from employees that the union lacks support. For example, if 50% + 1 of the employees sign a petition stating they don’t want the union to represent them, the employer can file a decertification petition.
There is no doubt that a dance is required to figure out what you can and cannot say when employees express dissatisfaction with their union. The smartest thing you can do when you begin to hear employee discontent is to consult legal counsel.