What to Do when an Employee asks you about “Decertifying the Union”

September 18, 2007

The Lancaster New Era has an interesting article entitled "Worker strikes down union at Lancaster parts maker" which describes a twenty-three year old employee’s motivations to decertify the Steelworker’s union which had represented employees at the plant for 37 years. By a vote of 11-6, the employees voted to become nonunion for reasons which may be typical for many employees (particularly for Generation Yers):

The key issue in the 2005 strike was the Steelworkers’ desire to keep Mac-It a "closed shop," meaning hourly workers who were covered by the union contract had to be union members.

Management wanted to delete the "closed shop" provision, contending it caused some workers to leave Mac-It and made it hard to recruit new ones.

"We wanted people to have a choice," Stillman said. "This is America. People should have a choice."

Walton concurred with management. He wasn’t happy that he had to join the Steelworkers.

He wasn’t happy that 1.3 percent of his gross pay, including overtime and bonuses, was deducted for union dues.

And he wasn’t happy that the union contract, not his productivity, set his pay, and that the contract, not his willingness to take initiative, set what tasks he could perform.

"How to Guides" for decertification appear on several websites, like the National Right to Work Foundation. Union decertifying is governed by the National Labor Relations Act and begins with the filing of a decertification petition supported by 30 percent of the employees in the unit covered by the union. The NRLB imposes time frames on filing a decertification petition that generally coincide with contract expiration. The process of certifying and decertifying a union are almost identical, except for the role that an employer is permitted to take in the decertification process.

When approached by an employee who asks "how to get ride of the union" employers must contain their glee and realize their role is limited as follows:

  • An employer may not initiate, instigate, solicit, encourage or actively assist in the filing of a decertification petition. Promoting decertification is impermissible because these activities interfere with employees’ free choice.
  • An Employer may provide "Ministerial Assistance." If an employee asks a management representative how to remove the union, the representative may lawfully inform the employee of the decertification process.
  • Once a petition has been filed, an employer may actively campaign to decertify the union. An employer may give employees arguments for voting against the union; communicate its views in writing, including handouts, posters and letters; and otherwise do anything it is permitted to do in a recognition campaign. 

Employers must tread carefully in the decertification process so as not to invalidate the efforts of their employees.   A union may challenge a decertification vote on the basis of employer interference. The decertification petition may trigger other employer rights associated with the withdraw of recognition of the union as the bargaining agent for the unit. These are complex legal issues that depend on careful evaluation of the facts and circumstances.