PLEASE NOTE: Exercising your rights as an employee subject to American labor laws can be complicated. If you are unsure about how to apply the information described on this page, you can contact the National Right to Work Legal Defense Foundation for free legal assistance by calling 1-800-336-3600 or through our Request Legal Aid page.
WHAT IS A DECERTIFICATION ELECTION?
NOTICE: The National Labor Relations Board (“NLRB”) changed the rules for decertifying a union effective May 31, 2020. The decertification process described on this webpage was updated to account for the new rules.
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 what it really means is that union officials have the power to make contracts that workers may not like while employees cannot negotiate 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, even if those employees are not union members and oppose the union’s policies.
The National Labor Relations Act (NLRA) allows employees to call for a special election to get rid of the union as their “exclusive representative,” which effectively removes the union from their workplace. This is called a “decertification election,” because employees revoke the union’s “certification” to be the exclusive bargaining representative. Decertification elections of the type described here only occur under the NLRA, which governs the labor relations of most private sector workers, and are run by the National Labor Relations Board (NLRB). Airline and railway workers, who are covered by the Railway Labor Act, 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. All bargaining unit employees can sign petitions and vote in decertification elections, regardless of their union membership or non-membership.
A decertification election has only one purpose and effect: to remove the union as the employees’ exclusive bargaining representative. A decertification election is different from a “deauthorization election,” which removes the clause in the union’s contract that allows union officials to collect forced dues In a deauthorization election, the union remains the exclusive bargaining representative, and the collective bargaining agreement remains in effect, except for the forced unionism clause.
WHEN CAN I FILE FOR A DECERTIFICATION ELECTION?
If the contract between the union and your employer falls into either of the following categories, you cannot immediately file for a decertification election:
- Petitions for a decertification election cannot be filed for one year after a union wins an NLRB conducted election.
- Petitions for a decertification election cannot be filed during the first three years of a collective bargaining agreement, except for during a certain 30-day “window period.” In most workplaces, the “window period” for filing a decertification petition with the NLRB occurs 90 to 61 days prior to the expiration date or three year anniversary of the contract, whichever comes first. In the health care industry (such as hospitals), the “window period” occurs 120 to 91 days prior to the expiration date of the contract or three year anniversary of the contract, whichever comes first.
A decertification petition can also be filed any time after a contract expires or becomes more than three years old. However, if your employer and the union enter into a successor contract, the new contract will begin another three year “contract bar.” Thus, if you miss the “window period” for filing a petition for a decertification election, you may have to wait for another three years to request a decertification election.
WHAT HAPPENS AFTER I SUBMIT A DECERTIFICATION PETITION?
Under the NLRA, if 30% or more of the employees in a bargaining unit sign a Decertification Petition, the NLRB will conduct a secret ballot election to determine whether a majority of the employees wish to decertify the union. If the petitioning employees win that election, then the company becomes “nonunion,” and all employees are free to 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 or certification bar, discussed above, applies).
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 a Staff Attorney’s legal advice specific to your situation. Depending on the timing and circumstances, the employer may, but is not obligated to, withdraw recognition of the union.
The petition must be an employee effort. Employer assistance is unlawful and, if there is any, the union can file an unfair labor practice charge to try to nullify the effort.
HOW TO PETITION FOR A DECERTIFICATION ELECTION
Employees should follow these three steps to petition the NLRB for an election to decertify the union:
- COLLECT SIGNATURES
- PREPARE DOCUMENTS
- FILE AND SERVE
STEP 1: COLLECT SIGNATURES
First, employees should assess the strength of support for decertification within their bargaining unit. Usually, it is not worth seeking such an election unless the petitioning employees believe they will be able to garner the support of a majority of the unit employees. The petitioning employees will need the votes of a majority of those employees who vote on election day (or who vote in a mail ballot if the NLRB orders one).
To proceed, employees should collect signatures on a petition (“Signature Petition” or “Showing of Interest”) which reads something like this sample petition.
NOTE: These signatures should be collected when 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 the signature lines before you collect signatures. There should be no employer help, and employer resources should not be used.
STEP 2: PREPARE DOCUMENTS
After collecting signatures for the Signature Petition (or “Showing of Interest”), employees should gather the following documents. The necessary forms are available on the NLRB’s website or at any NLRB Regional Office (a list of the Regional Offices and map showing the areas they cover can be found here). Once the necessary documents are completed, submit them to the relevant organizations as explained below If you need assistance in filling out and submitting any of the necessary documents, please call 703-321-8510 or, toll-free, 800-336-3600 and ask for a Foundation Staff Attorney to walk you through the process:
The following documents must be prepared and submitted to the NLRB Regional Office:
- RD Petition (NLRB Form 502 – RD).
- Certificate of Service (NLRB Form 5544). This form certifies that the employees have complied with the service of process requirements described in Step 3 below.
- The Signature Petition (or “Showing of Interest”) containing employee signatures from Step 1 above.
The following documents must be submitted to your employer and the union:
- Statement of Position (NLRB Form 505). Employees should NOT fill out Form 505. Instead, employees must provide a blank copy to the employer and union.
- A copy of the completed RD Petition (NLRB Form 502 – RD).
- Description of Procedures (NLRB Form 4812). Form 4812 describes the NLRB’s representational process and must be given to the union and employer.
Do NOT give a copy of the signature petition to the union. Those signatures are confidential. Do not give a copy of the signature petition to the employer unless the petition is signed by more than 50% of the unit employees and you are requesting that the employer withdraw its recognition of the union.
STEP 3: FILE AND SERVE
After collecting the necessary signatures and documents, employees must file the first three documents listed above with the NLRB Regional Office for the Region in which your bargaining unit is located. Employees must also serve (deliver) the second group of three documents listed above to the employer and the union at the same time as or as soon as possible after filing with the NLRB.
HOW TO FILE AND SERVE:
There are four options for filing and serving. Regardless of which method you choose, you must ensure that the documents listed in step two are submitted to the correct organizations. The documents that should be filed and served, and the organizations that should receive them, are the same for each filing method. You should keep copies of the three documents you submit to the NLRB Regional Office and any other records that show that you submitted to the union and your employer the documents you are required to serve on them.
OPTION (A) – ELECTRONICALLY
Employees can file with the NLRB electronically and then serve the documents electronically. This method works best if the employer and union have email addresses. To file and serve electronically follow these steps:
(1) FILE
Employees should E-File the first three documents listed in Step 2 above via the NLRB’s website with the Regional Director for the Region where the bargaining unit exists.
After E-Filing, employees MUST also send the original Signature Petition containing the signatures gathered in Step 1 to the NLRB Regional Office via mail or deliver it in person. The original Signature Petition must be received by the Regional Director within two business days after E-Filing. The Region will likely reject employee petitions if the original Signature Petition is not timely received.
(2) SERVE
Email to the employer and union the second group of three documents listed in Step 2.
Remember to save to some type of electronic storage device the emails you send to the union and employer. It is also recommended that you print out a copy of those emails for your records. These steps are precautionary in case the NLRB asks for proof that you served the employer and union.
IMPORTANT: If the employer or union does not have an email address, then it must be notified by telephone of the filing with the NLRB, and copies of the documents in the second group listed in Step 2 must be served by: (a) personal delivery no later than the day after the electronic filing with the NLRB; or (b) overnight delivery service; or (c) by fax if the party being served consents to being served by fax.
OPTION (B) – U.S. MAIL
Employees can file with the NLRB Regional Office via U.S. mail. If employees file by mail, they have the option of serving the union and employer via mail or personal service (hand delivery). Employees can also serve the documents via fax if the party being served is willing to accept service via fax. To file via mail, employees should follow these steps:
(1) FILE
Mail the first three documents listed in Step 2 to the Regional Director of the NLRB Region where the bargaining unit exists.
(2) SERVE
Submit the second group of documents listed in Step 2 to the union and your employer. Service can be done via mail or personal service (hand delivery).
NOTE: If employees serve the documents via mail, it is recommended that employees use registered or certified mail and request a return receipt as proof of service on the union and employer.
OPTION (C) – HAND DELIVERY
Employees can file with the NLRB by delivering the necessary documents in person. To file via hand delivery:
(1) FILE
Hand deliver the first three documents listed in Step 2 to the Regional Director of the NLRB Region where the bargaining unit exists.
(2) SERVE
Submit the second group of documents listed in Step 2 to the union and the employer. If employees file with the NLRB via hand delivery, they must promptly notify the employer and union, over the telephone, of the filing. Then employees must either choose a mailing option that ensures the employer and union will receive the necessary documents by the close of the next business day after filing or personally serve (hand deliver) the documents by the close of the next business day after filing.
OPTION (D) – FAX
Employees can also file via fax by following these steps:
(1) FILE
Employees should fax the first three documents listed in Step 2 to the Regional Director of the NLRB Region where the bargaining unit exists.
Employees must also send the original petition containing the signatures gathered in Step 1 to that NLRB Regional Office via mail or deliver the signatures in person. The original signature petition must be received by the NLRB Regional Office within two business days of transmitting the documents via fax. The Region will likely reject employee petitions if the original Signature Petition is not timely received.
(2) SERVE
Employees should try serving the employer and union by fax by submitting the second group of documents listed in Step 2. If the documents cannot be served by fax, or if the employer or union does not accept service by fax, then employees must notify the union or employer personally or via telephone of the fact of the filing with the NLRB, and copies of the documents must be served personally (hand delivery) or sent via overnight delivery service.
QUESTIONS? You should 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.
