The Employer’s Decertification Playbook: What’s Legal, What’s Not?
As an employer, navigating a decertification is as complex as unionizing. Sometimes more.
An RD petition is a formal request filed with the National Labor Relations Board (NLRB) by one or more employees to remove (decertify) the current union as their exclusive bargaining representative.
Many missteps during a decertification are accidents. Here's how to avoid them.
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Many missteps during a decertification are accidents. Well-meaning employees just say the wrong thing. |
Legally, an employer can't assist the unionized employees with an RD petition in any way. To businesses, that often comes as a relief. You'd think things would end there.
That's often misleading.
Actually, the assumption that they are "off the hook" causes big problems for many employers. The reality is, it's still possible to break the law, even without knowingly participating in your employees' decertification process.
Why do people leave unions?
It depends on who you ask.
Employees feel that the union no longer represents them, or doesn’t take their needs seriously enough.
- National Labor Relations Board
Workers can’t afford union dues and don’t think they’re worth it.
- Economic Policy Institute
Workers feel the union isn’t getting good contracts or solving problems.
- U.S. Chamber Of Commerce
Employees prefer to negotiate directly with their employer for better results.
- Fisher Phillips - a leading US law firm specializing in labor relations
It seems there are differing opinions, all from credible sources. In reality, it may be a combination of factors.
Whatever the reason, over 300 decertification petitions are filed with the NLRB annually, and the number is rising.
As decertification petitions rise, so do the legal risks for employers. Unfair Labor Practice charges tied to RD petitions have become more common.
A Guide to Navigating Representation Decertification (RD) Petitions
Employers cannot initiate, fund, or assist the petition; doing so can result in an Unfair Labor Practice charge (ULP).
Even neutral-seeming actions by untrained supervisors can invalidate an entire election.
5 Common Mistakes Supervisors Make During Union Decertification Efforts
Even when well-intentioned, front-line supervisors and managers often trigger legal problems during RD (Representation Decertification) petitions. Here’s how:
Saying “You Don’t Need the Union Anymore”
Why it’s a problem: This can be interpreted as discouraging union membership, which violates Section 8(a)(1) of the NLRA.
Takeaway: Even casual statements can invalidate an entire decertification election if deemed coercive.
Distributing Decertification Petitions or Helping Organize Them
Why it’s a problem: Only employees can initiate RD efforts. We've already established that employer involvement is illegal, but many front-line managers and supervisors don't realize that could mean something as simple as handing someone the wrong piece of paper, or allowing an employee to use a network printer or photocopier.
Takeaway: I hear this all the time, "we've already trained our managers and supervisors."
Make sure they get a refresher from a professional as soon as you become aware that an RD petition is being filed.
Make sure managers and supervisors know they should refer all inquiries neutrally and immediately to HR/legal counsel, even if they seem benign. Make sure HR knows they should take these seriously.
Implying Better Wages or Benefits Without the Union
Or implying anything will improve, for that matter. This creates the appearance of a quid pro quo (“leave the union, get rewards”), which often results in an immediate unfair labor practice charge.
Takeaway: Did I mention training? 😉 Also, stick to neutral facts and avoid any mention of future changes, even if directly asked.
Monitoring or Asking About Union Activity
Workers are protected from surveillance or questioning about union discussions. Whenever I bring this topic up, I hear "I get it," or "Yeah, I know."
Cue the eye-rolls coming from said managers and supervisors.
Big red flag here: “Did you sign that decert petition?” or “Are you going to that union meeting?” might be obvious no-nos. But did you know that something as simple as "What's going on?" could be problematic?
Holding “Captive Audience” Meetings Without Legal Review
- During the Biden administration, NLRB General Counsel Jennifer Abruzzo argued that captive audience meetings are inherently coercive, and thus violate Section 8(a)(1) of the National Labor Relations Act (NLRA).
- Abruzzo called for the Board to reinterpret precedent dating back to Babcock & Wilcox Co. (1948), which had allowed such meetings under “employer free speech” protections.
- Her goal was to require employers to make these meetings voluntary or face ULP charges.
- Then, with the administration change, Abruzzo left before there was ever a formal board ruling. The Board would need to issue a new majority decision in a test case to overturn Babcock & Wilcox, and that hasn't happened.
- Several conservative business groups and trade associations have indicated that they will challenge any ban on captive audience meetings in federal court.
- Yet, in past court decisions, mandatory meetings were upheld as “employer speech” under both NLRA and First Amendment interpretations.
Still, employers should know that these meetings walk a fine line. Just because the meeting itself is legal, doesn't mean the content delivered in them. You'll likely be facing a ULP charge if your PowerPoint deck contains (or your presenters say) anything that can be construed as a threat or misinformation.
Takeaway: Stay alert to policy changes, vet your presentations with legal counsel. Hire professionals to train, and to talk to your employees.
Decertification Doesn't Have to Be a Disaster
When employers take the time to understand the process, get the right people involved, and train their teams properly, it usually goes just fine.
Refresh yourself and your team about the rules, keep the lines of communication clear, and you’ll be in a much better position to lead through it with confidence.