United States

Going from union to non-union the legal process

CONSTRUCTION QUARTERLY UPDATES  | 

There are non-union construction companies which, nevertheless, once operated with a union represented workforce. This change, from a union to non-union operation, can occur in two different ways. In one method, the employees drive the change from union to non-union. In the other, the employer makes the decision.

Employee initiated change

A. The NLRA and NLRB

The federal law, the National Labor Relations Act (NLRA), governs private sector labor relations. The National Labor Relations Board (NLRB) administers and enforces this law. The creation and protection of employee rights to engage in activities for or against a labor union is a fundamental principle of the NLRA. Another is that employees decide, by majority rule, whether they want union representation. This means that union represented employees can end union representation if this is what the majority of them want.

B. Legal rules employee must follow

The employer, and its managers or supervisors, cannot initiate, encourage, assist or in any way support employee activity to decertify or get rid of their union representation. This means that the company cannot knowingly allow employees to use company time, equipment or property for decertification.

Employers can, however, answer employee questions about the process of getting rid of their union. If a union-represented employee does ask such a question, it is best that the employer give the employee a scripted explanation of the decertification process and employee rights. If the explanation is balanced and does not encourage decertification, it is lawful.

Union-represented employers must also continue to recognize and bargain in good faith with the union even when the employer is aware of ongoing decertification activity. This duty to recognize and bargain remains until the moment the legal relationship with the union ends.

C. Decertification election

Union represented employees have the right to request from the NLRB a secret ballot election to vote on whether to keep union representation. To do this, the employees need at least 30 percent of the bargaining unit to sign and date a document which states their preference for ending union representation. One or more of the employees has to take this document to the NLRB, and file a formal NLRB election petition. After the NLRB completes a quick check to verify that there are valid signatures from at least 30 percent of the employees, the NLRB will hold the secret ballot election, usually within 4 – 6 weeks from the date the employee filed the petition.

Employees and employers should understand, however, that the NLRB has restrictions on when a decertification petition can be filed. While employees can file whenever there is no union contract in effect, special rules apply when a contract is in effect. As a rule, employees cannot decertify during the first 3 years of a contract, except for a 30 day window in the last 3 months of the 3 year period. Even if employees desperately and overwhelmingly want to get rid of their union during the closed period, they are stuck.

D. Withdrawal of union recognition without an election

If employees circulate a decertification document during an open period, get signatures from a majority (50 percent + 1) of the represented employees, and then present this to the Company, the Company can notify the Union that it is withdrawing its recognition of the Union as bargaining representative. There would then be no need for an NLRB election.

Employer termination of union representation

Some construction employees can, at the appropriate time, unilaterally end their legal relationship with the union. This can only happen in the construction industry, and only with a specific type of contractual relationship with the union.

Construction employers which do not have a regular union represented workforce and staff their projects almost exclusively through union hiring halls usually have what is known in labor law as a prehire or 8(f) agreement with the union. These union contracts are unique because once they expire, the employer is free to withdraw recognition from the union. To do this lawfully, the employer must first timely comply with termination provisions of the expiring agreement and, if the employer is a member of a multi-employer bargaining group, timely withdraw from the group.

Changing from union to non-union almost always involves challenges and risks. These include withdrawal liability claims from union pension plans, and the potential for tactical union responses to the change such as picketing and salting. Employers considering the possibility of such a change should first engage in a thorough assessment of their legal, financial and operational circumstances.

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