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Union Vote

Unions Face Decertification Threat

July 27, 2020
NLRB makes it easier for workers to undo union representation.

Although not as frequent as organizing elections, union members also are allowed to exercise a federally protected right to kick a union out of their workplace by voting to decertify it. In the current volatile environment, we may start seeing this happen more often if union members’ dissatisfaction grows.

The unions would prefer that their members don’t know they can do this, of course. The widespread belief is that once employees vote to approve union representation, that decision is forever. Unlike other contracts—excepting perhaps marriages with “to death do us part” in their vows—labor representation contracts have no set terms for their existence, where reapproval is required after a certain amount of time.

In spite of strenuous support from Democrat state and municipal leaders and high-profile organizing campaigns, unions are having trouble shoring up their once-predominant role in American life. In 2019, union membership in the United States slid to a total of 14,574,000 members representing an estimated 10.3% of the workforce, down from the 10.5% total the previous year.

Those numbers show a slow but steady decline from the 12.3% total registered a decade earlier in 2009. By contrast, in 1983, the first year for which comparable union data was available, the union membership rate was 20.1%.

The reasons for this vary. Embrace of the global economy sent many manufacturing jobs overseas. Widespread instances of corruption, including embezzlement by local and national union officers, has taken the bloom off the union rose for many workers. After its top leadership was hit by a recent scandal, the United Auto Workers’ membership declined by 15%. Paradoxically, stronger laws protecting workers at the city, state and national levels also may encourage the perception that unions are no longer necessary.

Some unions have made gains in organizing workers in the high-tech industry. Also, with help from state Democrat politicians, the Teamsters union has been able to organize West Coast port drayage drivers and may achieve a stronger foothold in the ridesharing business. But unions have faced resistance to organizing at some auto plants and at one point gave up completely on attempting to organize Walmart (although they now again claim to be interested in doing so).

When it comes to decertification, keep in mind that the employer cannot help the employees in any part of the process involved in decertifying a union—that has to come directly from the employees themselves. A decertification vote supervised by the National Labor Relations Board (NLRB) is scheduled once a minimum of 30% of workers in a workplace under a collective bargaining agreement sign a petition requesting it.

If more than 50% of the employees then vote against continued union representation, the employer will be union-free and employees will be able to deal directly with the company regarding pay, benefits and working conditions. Names on the petition are kept confidential and the decertification vote is by secret ballot, protecting employees from retaliation.

Until late last year, a typical trick has been for the union to file an unfair labor charge against the employer, which while pending investigation would block a decertification vote. Late last year the NLRB changed its policy in this regard, easing the way for the process to proceed. (Last July the National Mediation Board also changed its rules to make decertification easier in the railroad and airline industries.)

The quickest path to being organized is for an employer to be perceived by its workers as being unwilling to pay them well and treat them fairly. But if members come to believe unions are taking their hard-earned pay but aren’t representing their best interests, prepare to see more decertification votes.

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