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Staff sour on union? Let NLRB handle decertification vote

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in Employment Law,Human Resources,Leaders & Managers,Management Training

Sometimes, employees learn that having union representation might not be as good a deal as they initially thought. If that’s the case, you may find that some employees approach management about the possibility of ousting the union. Before you jump for joy, think carefully about how to go about becoming a nonunion workplace again.

The reason: The National Labor Relations Act (NLRA) allows employers to refuse to bargain with a union after a majority of employees sign a petition claiming they no longer want to be represented by it. But some of those grumbling employees may change their minds after a little pressure from co-workers and union reps—and quickly sign a new petition. At that point, employers that refuse to bargain based on the first petition may find themselves in the crosshairs of an unfair-labor practices charge. And that can mean months or years of needless litigation.

Advice: The better approach is to simply ask the National Labor Relations Board (NLRB) to conduct a new election to determine union support.

Recent case: Bayside Care Center was a union workplace. In 1998, the NLRB held an election and certified the United Food and Commercial Workers as the exclusive bargaining representative for some Bayside employees. The parties negotiated a contract.

In September 2002, 34 of Bayside’s 61 covered employees signed a petition stating that they no longer wanted the union to represent them. Management then informed the union that when the contract ended, it would withdraw its recognition of the union.

But then another petition was circulated. This time, 34 employees asked that the union remain their representative. Thirteen of the workers who had originally wanted the union out had changed their minds. Bayside refused to consider the petition, and the union filed unfair-labor charges. The NLRB determined Bayside violated the NLRA by refusing to bargain with the union.

Bayside appealed, but the 4th Circuit Court of Appeals backed the NLRB. The court reasoned that, when the time came to negotiate the new contract, most employees wanted union representation. It didn’t matter that for a few weeks it looked as though the union was on the way out. The appeals court stressed that employers have the burden of proving a union has lost the support of the majority of workers. Because the employees had clearly changed their minds, Bayside hadn’t met its burden. The court said the preferred method of settling such disputes is through NLRB-conducted elections. (NLRB v. HQM of Bayside, No. 06-2253, 4th Cir., 2008)

Final note: Always consult an experienced labor attorney when your organization has been targeted for a union push, or when it is time for decertification. The laws are complicated and the chances for missteps are great. A qualified attorney can save you time and money.

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