Years ago, I was negotiating a simple renewal contract with a Teamsters local in Chicago. The union took an aggressive position, threatened a strike, and let the contract expire after declining our offer of an extension. Their bargaining committee had one of our own employees on it, and the hard line at the table was wearing him down.
One day, our shop steward, Dave, pulled me aside. “What are these guys doing?” he asked. All the drivers wanted was a raise and a renewed contract. Then he asked the question I had never been asked before: “How do we get these guys out of here?”
I told him the truth. I didn’t know the answer, and I didn’t know what I was legally allowed to say to him. But I would find out and get him an answer.
I called our labor attorney. We prepared a script. Twenty-four hours later, seven of eight drivers presented a petition stating they no longer wanted union representation, and with the contract lapsed, we withdrew recognition. The union filed an unfair labor practice charge. The region investigated and dismissed it. It was the first of nine decertification campaigns I would work on over my career.
Withdrawal of recognition was a risk then, and it’s a bigger risk now. The National Labor Relations Board’s (NLRB’s) current framework gives employers far less room to act unilaterally, even with a majority petition in hand.
Three Paths, One Name
Many use “decertification” as a catch-all term. It isn’t. There are three legally distinct paths, each with a different risk profile.
A decertification election is employee driven. Employees file a petition with the NLRB, demonstrate at least 30% support for removing the union, and the board runs a secret-ballot election. The NLRB’s decertification page and elections process page walk through the mechanics. This is the standard path, governed by Section 9(c)(1)(A)(ii) of the National Labor Relations Act (NLRA).
A deauthorization election is also employee-driven, but it doesn’t remove the union. Under Section 9(e)(1) of the NLRA, it strips the union’s authority to require membership as a condition of employment. The union stays. The union-security clause goes. Many routinely confuse this with decertification. They are not the same thing.
Employer withdrawal of recognition or an employer-filed petition is the third path and belongs in a category of its own. The employer either stops recognizing the union or asks for its own election based on claimed evidence that the union has lost majority support. This is the highest-risk route available. If the evidence doesn’t hold up, the employer faces a refusal-to-bargain charge under Section 8(a)(5). This path requires labor counsel.
Why Is Decertification Showing Up Now?
The organizing wave that began around 2021 produced many newly certified bargaining units.
However, winning a union election doesn’t mean winning a bargaining contract. The gap between campaign expectations and bargaining reality is where decertification pressure tends to build. The post-election experience often doesn’t match what employees thought they were voting for, particularly when unions do not live up to campaign promises.
The lesson for HR isn’t about taking sides. It’s about understanding what’s driving employee dissatisfaction, because the same frustration that feeds a decertification campaign also signals something about your workplace that won’t disappear even if the petition fails.
What HR Should and Should Not Do
When decertification issues arise, HR’s job is to stay out of the petition process while helping keep the business running without worsening the legal situation.
HR can acknowledge that employees have the legal right to decide whether they want representation. HR can keep messaging factual and consistent. HR can document unusual events, preserve relevant communications, and escalate issues to legal counsel.
HR should not:
- Suggest, draft, circulate, or collect a decertification petition.
- Ask employees who signed or how they plan to vote.
- Promise improvements that look tied to petition activity.
- Withdraw recognition without counsel and a solid legal basis.
Supervisors also need to understand the ground rules. One manager asking, “So who else signed that?” can turn a worker-led process into an employer’s unfair labor practice problem. Under the NLRB’s 2024 restored blocking-charge rule, a regional director can hold a petition in abeyance when conduct may have impaired employee free choice. A single misstep by a front-line manager can hand the union the mechanism to stall the entire process. Front-line managers need a clear briefing on what not to say before rumors start circulating.
When to Call an Attorney
HR should call their attorney when:
- An employee mentions a decertification petition or says one is being circulated.
- The union files or threatens an unfair labor practice charge.
- Someone in management proposes withdrawing recognition.
- A recent certification or election may still be within the one-year bar established in Brooks v. NLRB.
- Voluntary recognition happened after Sept. 30, 2024, triggering the board’s new recognition bar under 29 C.F.R. Section 103.21.
- An acquisition or ownership change involves a represented workforce.
- A manager has already said something that may need a corrective response.
If you wait until the NLRB regional office calls, you’re already behind.
Michael VanDervort is a labor relations and communications strategist at LRI Consulting Services Inc., headquartered in Broken Arrow, Okla.
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