Viewpoint: Can Employees Fire Their Union?

By Phillip Wilson January 26, 2018
Viewpoint: Can Employees Fire Their Union?

​Decertification of unions—voting them out of companies where they represent workers—is an option for employees frustrated by their unionized representatives.

Consider the following scenario:

Carol storms into your office, and she's upset. Jack is back. Again.

"Is Jack some kind of cat? He's got nine lives!" Carol complains. You know how she feels. The first two times Jack was fired, you reluctantly agreed to bring him back on a final warning in exchange for concessions from the union. This time someone above your head made the call over your loud objection, saying something about legal fees and a hush-hush deal with the union.

"This guy is horrible. He's a jerk to everyone. Customers hate him. Nobody wants to work with him. His work is garbage, and he always does the bare minimum." Her blood pressure is rising, and so is yours.

Everything Carol says is true. But this bad apple continues finding his way back into the bunch because Jack is a key member of the union's leadership team. So the union defends Jack to the hilt while doing a terrible job representing the rest of the workers. The company, hoping to avoid high legal fees and maybe get some leverage at the bargaining table, lets Jack return again.

This decision is terrible for the team and the customers who have to deal with Jack. It's terrible for company morale. Carol and her co-workers have had enough.

"Why are we paying a bunch of money to the union? It isn't doing anything we can't do for ourselves," Carol says. "I think we'd do a lot better without it. Is there a way to get rid of this union?"

How Can Employees Remove Their Union?

Carol's question is common in unionized locations around the country. Members get frustrated with what they see as poor representation and a lack of value from their dues money. They can get rid of a union through decertification: the process by which the National Labor Relations Board (NLRB) allows employees to call for a special election to remove the union as their exclusive representative. It is important to remember that companies or managers are not allowed to encourage or assist with decertifying a union. The effort must be led entirely by employees. But employees may reach out to other organizations (see below) to help.

[SHRM members-only HR Q&A: What is the process to decertify a union?]

The object of decertification is to determine whether a union continues to enjoy majority status in a bargaining unit. If not, the union's right to represent those workers is terminated. A decertification election is held to test the union's majority status.

Once a union is decertified, it no longer has a right to represent workers or to negotiate on their behalf.

5 Steps to Decertification

There are five steps to decertify a union:

1. Determine the proper filing period. Decertification petitions may be filed only at certain times during the labor contract. Otherwise, they are barred.

Under the so-called contract bar, a decertification petition cannot be filed in the first three years of a labor contract, except during a 30-day window. Most labor contracts last three years, although they can be longer or shorter; they typically do not expire annually. The 30-day window opens 90 days prior to the contract expiration and closes 60 days before the contract ends, except in health care settings. For contracts that last longer than three years, the decertification petition may be filed at any time.

In health care settings, the window opens 120 days before the contract expires and closes 90 days before the contract ends.

2. Draft and circulate a showing of interest. Employees need to draft a decertification "showing of interest" to collect employee signatures. This is their showing of support, and it must have signatures of at least 30 percent of bargaining unit members before the NLRB will direct a secret-ballot election.

Employees can undertake decertification efforts only during nonwork times and in nonwork areas. They cannot use company equipment or resources. Also, management cannot be involved in any way in this effort. Employees can seek assistance from organizations such as the National Right to Work Foundation.

3. File a petition with the NLRB. Once employees have a valid showing of interest, one or more represented workers must file it—usually in the form of employee signatures on a document that says they don't want a union—with the NLRB and also file a separate petition with the board. This petition must also be sent to the union at the same time employees file it with the board.

4. Hold a secret-ballot election. The NLRB then sets up a secret-ballot election in response to the petition document. The NLRB will determine the appropriate group of people to vote in the election—a determination that unions and employers sometimes dispute, which can lead to delays in holding the election.

5. Act in response to the results of the election. If 50 percent or more of the employees vote against union representation, the union will no longer have representation rights and the employees will once again be able to deal directly with the company on issues related to pay, benefits and working conditions.

When a union hears about a decertification effort, it won't be happy. However, it cannot prohibit employees from exercising their rights. If the union tries to pressure employees to stop a decertification effort, it should be reported to the NLRB, because such interference is illegal.

The next time someone like Carol comes to your office, let them know their rights under the National Labor Relations Act. While you cannot encourage or help employees to decertify, it is perfectly legitimate to inform them of their options.

Phillip Wilson is president and general counsel of the Labor Relations Institute in Broken Arrow, Okla.


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