WHAT IS A DECERTIFICATION ELECTION? You (or someone you know) may be employed in a workplace where a union has the right to “represent,” and collectively bargain for, all employees. This is frequently referred to as “exclusive representation,” but it is really the government-granted monopoly bargaining privilege that gives union officials the power to make contracts that workers may not like while barring employees from negotiating their own terms of employment. Except in Right to Work states, these contracts almost always include a provision which mandates that employees be fired for not paying dues to a union they do not wish to support.
Though it is generally an uphill battle, the National Labor Relations Act (NLRA) allows employees to call for a special election to get rid of the union as their “exclusive representative.” This is called a Decertification Election, because employees revoke the union’s "certification" to be the “exclusive bargaining representative.” In effect, the union is voted out of the workplace. (NOTE: Decertification elections of the type described here only occur under the NLRA, which governs the labor relations of most private sector workers. Airline and railway workers, who are covered by the Railway Labor Act (RLA), must follow a different procedure, described here.) Many state bargaining laws that apply to state and local government employees or public school employees also have analogous procedures for decertification, which are summarized here: Public Sector Decertification Laws. Decertification elections under the NLRA are open to all employees in the bargaining unit, union members and non-members alike. All employees in the bargaining unit can sign petitions and vote in decertification elections, regardless of their membership or non-membership in the union.
The few state laws governing public employees that provide for deauthorization are summarized here: Public Sector Deauthorization Laws.)
A decertification election has only one purpose and effect: to remove the union as the “exclusive bargaining representative” of the employees. A decertification election is different from a "deauthorization" election. A deauthorization election has only one purpose and effect: to remove the “union security ” forced-unionism clause from the contract. In a deauthorization election, the union remains as the exclusive bargaining representative, and the collective bargaining agreement remains in effect, except for the forced unionism clause.
The National Labor Relations Board maintains many rules governing when employees can file for a decertification election. The first rule is the "certification bar," which holds that petitions for a decertification election cannot be filed for 1 year after a union wins an NLRB conducted election.
Another important rule is the "contract bar," which holds that petitions for a decertification election cannot be filed during the first 3 years of a collective bargaining agreement, except for during a certain 30-day "window period." In most workplaces, the 30-day “window period” for filing a decertification petition with the NLRB occurs 60 to 90 days prior to the expiration date or 3 year anniversary of the contract, whichever comes first. In the health care industry (such as hospitals), the 30-day “window period” occurs 90 to 120 days prior to the expiration date of the contract or 3 year anniversary of the contract, whichever comes first.
A decertification petition can also be filed anytime after a contract expires or becomes more than 3 years old. However, if your employer and the union enter into a successor contract, the new contract will begin another 3 year "contract bar" on decertification elections. Thus, if you miss the "window period" for filing a petition for a decertification election, you may have to wait for another 3 years to request a decertification election.
Most employees prefer a workplace where they are free to discuss their terms and conditions of employment directly with the employer, without intervention by a third-party. They also prefer a workplace in which union membership and the payment of dues is voluntary, as this forces the union hierarchy to be more accountable to the rank-and-file workers. Instead of relying on threats, intimidation, and even firings to gain financial support, union officials have to sell the benefits of union membership to the individual employees.
Under the National Labor Relations Act, if 30% or more of the employees in a bargaining unit sign a Decertification Petition, the National Labor Relations Board will conduct a secret ballot election to determine if a majority of the employees wish to decertify the union and stop it from any further “exclusive representation.” If the petitioning employees win that election, then the company becomes nonunion and all employees are free to bargain on their own, and negotiate their own terms and conditions of employment. Moreover, if 50% or more of the employees in a bargaining unit sign a petition that they no longer want to be represented by the union, the employer can withdraw recognition without an election if it wishes to do so. (Except where the contract bar applies, as discussed above.)
If you collect a petition signed by over 50% of the employees in your bargaining unit, you can give that petition to your employer with a request that it withdraw recognition of the union. Do not give the petition to the union, which has no right or entitlement to see the petition and does not need to see it for the employer to withdraw recognition. If you are going to ask your employer to withdraw recognition, you may wish to first contact the Foundation for legal advice specific to your situation.
The petition must be an employee effort. Employer assistance is unlawful and, if there is any, the union will nullify the effort by filing an unfair labor practice charge.
HOW TO GET STARTED: First, employees should assess the strength of support for decertification within their specific bargaining unit. Usually, is it not worth calling for such an election unless the petitioning employees believe they will be able to garner the support of a majority of their fellow employees. The petitioning employees will need the votes of a majority of those employees who show up to vote on election day.
In order to proceed, employees should collect signatures on a petition which reads something like the following:
PETITION TO REMOVE UNION AS REPRESENTATIVE
The undersigned employees of ________________________ (employer name) do not want to be represented by ________________________ (union name), hereafter referred to as “union”.
Should the undersigned employees constitute 30% or more, but less than 50%, of the bargaining unit represented by the union, the undersigned employees hereby petition the National Labor Relations Board to hold a decertification election to determine whether the majority of employees also no longer wish to be represented by the union.
In addition, should the undersigned employees constitute 50% or more of the bargaining unit represented by the union, the undersigned employees hereby request that our employer immediately withdraw recognition from the union, as it does not enjoy the support of a majority of employees in the bargaining unit.
These signatures should be collected when the employees are on non-work time, and in non-work areas! You must fill in the names of the union and employer in the blank spaces above before you collect signatures. There should be no employer help, and employer resources should not be used.
For more signature blanks, click here.
Once employees have collected the appropriate number if signatures, they also need to fill out a separate NLRB “Petition” cover sheet, NLRB Form 502. This single sheet of paper is easy to fill out, and is available from any Regional Office of the NLRB. The NLRB’s website contains copies of the Petition form (requires Adobe Acrobat Reader) and others, as well as a directory of the regional NLRB offices in your area.
For more information about other options related to limiting union coercive power over workers, click here.
Finally, you may contact Foundation staff attorneys if you have questions about how to proceed, need assistance getting through to the NLRB, or encounter legal difficulties interfering with your efforts.
Other Helpful Documents for Employees
Questions & Answers
Issue Briefing Papers
- Decertification Election
- Deauthorization Election
- An Employee's Guide to Union Dues and Religious Do Nots
- Are You Funding Your Union’s Federal PAC (Political Action Committee) Unknowingly or Against Your Will?
- Can Union Bosses Punish You" - Union Discipline and Employee Rights
- The tip of the iceberg: PACs & The Forced-dues Base of Big Labor's Political Machine
- Big Labor's Massive Political Machine
- Big Labor’s Top Ten Special Privileges
- Legal Analysis of Nebraska Legislative Bill 226
- Policy Analysis: The Permissible Use of Forced Union Dues From Hanson to Beck
- Catholic Social Teaching and the Right to Work
- Union Bosses Richer After Campaign "Reform": The Impact of Initiative 134 in Washington State