Decertification Election 

[En español] 

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.

NOTICE: The National Labor Relations Board (“NLRB”) changed the rules for decertifying a union effective April 14, 2015. The decertification process described on this webpage was updated to account for the new rules. 

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 a 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. 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.

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. The purpose and effect of a deauthorization election is to remove the “union security,” i.e., forced unionism, clause from the contract. 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. The few state laws governing public employees that provide for deauthorization are summarized here.

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 one 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 three 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 three 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 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” of decertification elections. 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.

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 whether 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 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 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 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 will try to nullify the effort by filing an unfair labor practice charge. 

HOW TO GET STARTED 

INTRODUCTION:

Employees should follow these three steps to petition the NLRB for an election to decertify the union: 

  1. COLLECT SIGNATURES
  2. PREPARE DOCUMENTS
  3. FILE AND SERVE 

STEP 1: COLLECT SIGNATURES 

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 the unit employees. The petitioning employees will need the votes of a majority of those employees who show up to vote on election day (or who vote in a mail ballot if the NLRB orders one).

In order 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.

IMPORTANT: 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 the employer agrees to withdraw recognition of the union, then you do not need to petition the NLRB for a decertification election and you can ignore the remaining steps. 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.

STEP 2: PREPARE DOCUMENTS

After collecting signatures for the Signature Petition (or “Showing of Interest”), employees should gather the following documents that are all 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:

GET THESE DOCUMENTS: 

  1. RD Petition (NLRB Form 502 - RD). NLRB Form 502 - RD must be filled out and filed with the NLRB. Copies of Form 502 - RD are available on the NLRB’s website or at any NLRB Regional Office. Employees should fill out and complete Form 502 - RD. If you need assistance filling out Form 502 - RD, please call 703-321-8510 or, toll-free, 800-336-3600 and ask for a Foundation staff attorney to walk you through the process. 
  2. Statement of Position (NLRB Form 505). Employees can obtain a copy of Form 505 on the NLRB website or at any Regional Office. Employees should NOT fill out Form 505. Instead, employees must send a blank copy to the employer and union.
  3. Description of Procedures (NLRB Form 4812). Employees can obtain a copy of Form 4812 on the NLRB website or at any Regional Office. This document must be sent to the union and employer. Form 4812 describes the NLRB’s representational process.  
  4. Certificate of Service (NLRB Form 5544). Employees can obtain a certificate of service (Form 5544) from the NLRB website or at any Regional Office. This form certifies that the employees have complied with the service of process requirements described in Step 3 below. If you need assistance filling out Form 505, please call 703- 321-8510 or, toll-free, 800-336-3600 and ask for a Foundation staff attorney to walk you through the process. 

AUTHORITY: 29 C.F.R. § 102.60(a) (2015); OFFICE OF THE GEN. COUNSEL, MEMORANDUM GC 15-06, GUIDANCE MEMORANDUM ON REPRESENTATION CASE PROCEDURE CHANGES EFFECTIVE APRIL 14, 2015, at 3 (2015). 

STEP 3: FILE AND SERVE

After collecting the necessary signatures and documents, employees must file the documents with the NLRB. Then, employees must serve (deliver) the necessary documents to the employer and union. Employees should serve the union and employer at the same time as or as soon as possible after filing with the NLRB. 

OVERVIEW: 

  • The following documents must be filed with the NLRB: 
  • The completed and signed RD Petition (NLRB Form 502 - RD). 
  • The Signature Petition (or “Showing of Interest”) from Step 1.
  • Certificate of Service (NLRB Form 5544). 
  • The following documents must be served on the union and the employer (NOTE: if more than one union claims to represent the bargaining unit, then the additional union(s) must also be served):  
  • A copy of the RD Petition (NLRB Form 502 - RD) filed with the NLRB.
  • A blank Statement of Position (NLRB Form 505). 
  • The NLRB’s Description of Procedures form (NLRB Form 4812). 
AUTHORITY: 29 C.F.R. § 102.60(a), 61(c)(8) (2015); Ambush Election Final rule, 79 Fed. Reg. 74308, 74462 (Dec. 15, 2014) (to be codified at 29 C.F.R. pt. 102); OFFICE OF THE GEN. COUNSEL, MEMORANDUM GC 15-06, GUIDANCE MEMORANDUM ON REPRESENTATION CASE PROCEDURE CHANGES EFFECTIVE APRIL 14, 2015, at 3 (2015). 

HOW TO FILE AND SERVE:

There are a variety of options for filing and serving: 

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 following documents via the NLRB’s website with the Regional Director for the Region where the bargaining unit exists: 

  • RD Petition (NLRB Form 502 - RD).
  • The Signature Petition.
  • Certificate of Service (NLRB Form 5544). 

After E-Filing, employees MUST also send the original Signature Petition containing the signatures gathered in Step 1 to the NLRB. 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. 

NOTE: Employees should keep copies of all three documents for their records. 

AUTHORITY: 29 C.F.R. §§ 102.60(a), 102.61(c)(8), (f) (2015). See also 29 C.F.R. 102.111(a) (2015) (noting that for periods of less than 7 days, one day means one business day); 79 Fed. Reg. 74308, 74329 (Dec. 15, 2014) (to be codified at 29 C.F.R. pt. 102) (noting that Regional Director will reject an electronic or facsimile filing that is not accompanied by an “original” showing of interest within two business days): OFFICE OF THE GEN. COUNSEL, MEMORANDUM GC 15-06, GUIDANCE MEMORANDUM ON REPRESENTATION CASE PROCEDURE CHANGES EFFECTIVE APRIL 14, 2015, at 3-4 (2015). 

(2) SERVE

  • Email to the employer and union the following documents prepared in Step 2: 
  • Copy of the RD Petition (NLRB Form 502 - RD). Do NOT send copies of the Signature Petition to the union or employer. The signatures are confidential and only the NLRB gets them.
  • A blank Statement of Position (NLRB Form 505). 
  • Description of Procedures (NLRB Form 4812). 
  • Remember to “save” the emails you send to the union and employer to some type of electronic storage device. It is also recommended that you print out a copy of the email 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 do not have email addresses, then they must be notified by telephone of the substance of the transmitted document and a copy of the documents must be served by: (a) personal service no later than the day after the documents were filed electronically; or (b) overnight delivery service; or (c) by fax if the party being served consents to being served by fax. 

AUTHORITY: 29 C.F.R. §§ 102.60(a), 61(c)(8), (f), 114(a), (i) (2015); OFFICE OF THE GEN. COUNSEL, MEMORANDUM GC 15-06, GUIDANCE MEMORANDUM ON REPRESENTATION CASE PROCEDURE CHANGES EFFECTIVE APRIL 14, 2015, at 3-4 (2015).  

OPTION (B) - MAIL 

Employees can file with the NLRB via 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. See 29 C.F.R. § 102.114(a) (2015). To file via mail, employees should follow these steps: 

(1) FILE

Mail the following documents to the Regional Director of the NLRB Region where the bargaining unit exists:

  • RD Petition (NLRB Form 502 - RD).
  • The Signature Petition.
  • Certificate of Service (NLRB Form 5544). 

NOTE: Employees should keep copies for their records.

(2) SERVE

Service can be done via mail or personal service (hand delivery). Also, if the party being served consents to being served by fax, then service can be done via fax. See 29 C.F.R. § 102.114(a) (2015). These documents must be served on the union and employer: 

  • Copy of the RD Petition. Do NOT send copies of the Signature Petition to the union or employer. The signatures are confidential and only the NLRB gets them.  
  • A blank Statement of Position (NLRB Form 505). 
  • Description of Procedures (NLRB Form 4812). 

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. See 29 C.F.R. § 102.114(b) (2015). 

AUTHORITY: 29 C.F.R. §§ 102.60(a), 61(c)(8), 114(a)-(b) (2015); OFFICE OF THE GEN. COUNSEL, MEMORANDUM GC 15-06, GUIDANCE MEMORANDUM ON REPRESENTATION CASE PROCEDURE CHANGES EFFECTIVE APRIL 14, 2015, at 3-4 (2015);  NLRB CASEHANDLING MANUEL PART TWO: REPRESENTATION PROCEEDINGS § 11022.3 (Sept. 2014). 

OPTION (C) - HAND DELIVERY

Employees can file with the NLRB by delivering the necessary documents in person. To file via hand delivery:

(1) FILE

Employees can hand deliver the following documents to the Regional Director of the NLRB Region where the bargaining unit exists: 

  • RD Petition (NLRB Form 502 - RD).
  • The Signature Petition.
  • Certificate of Service (NLRB Form 5544). 

NOTE: Employees should keep copies for their records.

(2) SERVE

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. See 29 C.F.R. § 102.114(a) (2015). The documents that must be served are: 

  • Copy of the RD Petition.  Do NOT deliver a copy of the Signature Petition to the union or employer.  The signatures are confidential and only the NLRB gets them.
  • A blank Statement of Position (NLRB Form 505). 
  • Description of Procedures (NLRB Form 4812).

AUTHORITY: 29 C.F.R. §§ 102.60(a), 61(c)(8), 114(a)-(b) (2015); OFFICE OF THE GEN. COUNSEL, MEMORANDUM GC 15-06, GUIDANCE MEMORANDUM ON REPRESENTATION CASE PROCEDURE CHANGES EFFECTIVE APRIL 14, 2015, at 3-4 (2015).  

OPTION (D) - FAX

Employees can also file via fax by following these steps: 

(1) FILE

Employees should fax the following documents to the Regional Director of the NLRB Region where the bargaining unit exists:

  • RD Petition (NLRB Form 502 - RD).
  • The Signature Petition.
  • Certificate of Service (NLRB Form 5544). 

Next, employees must also send the original petition containing the signatures gathered in Step 1 to the NLRB. The original signature petition must be received by the NLRB within 2 business days of transmitting the documents via fax. The Region will likely reject employee petitions if the original Signature Petition is not timely received. Also, employees should send the original documents to the Regional Office where the petition was faxed. 

(2) SERVE

Employees should try serving the employer and union by fax. But, if they cannot be served by fax or if the employer and union do not accept service by fax, then employees must notify the union and employer personally or via telephone of the substance of the documents filed via fax. See 29 C.F.R. §§ 102.114(h) (2015). A copy must then be served personally (hand delivery) or sent via overnight delivery service. Id.

These are the documents that must be served on the employer and union: 

  • Copy of the RD Petition.  Do NOT send a copy of the Signature Petition to the union or employer.  The signatures are confidential and only the NLRB gets them. 
  • A blank Statement of Position (NLRB Form 505). 
  • Description of Procedures (NLRB Form 4812). 

AUTHORITY: 29 C.F.R. §§ 102.60(a), 61(c)(8), (f), 114(a), (h) (2015); OFFICE OF THE GEN. COUNSEL, MEMORANDUM GC 15-06, GUIDANCE MEMORANDUM ON REPRESENTATION CASE PROCEDURE CHANGES EFFECTIVE APRIL 14, 2015, at 3-4 (2015).  

QUESTIONS? 

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. 


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