Duhaime's Law Dictionary


Decertification Definition:

A vote by members of a collective bargaining unit to dissociate from the incumbent union.

Related Terms: Disclaimer of Interest

Also known as revocation:

"(I)f a majority of these employees no longer wish to be represented by a union, they can apply to have the union's rights annulled. The process is called revocation, which is also referred to as decertification or cancelation of bargaining rights."1

Decertification of a union by the members of a collective bargaining group is often a difficult process as the proposal may not be unanimous among the membership.

Decertification differs from a disclaimer of interest in that a disclaimer is the membership seeking to abandon a union, whereas a disclaimer of interest is an initiative of an incumbent union to disassociate itself from a part of the membership (partial decertification) or the entirety of members.

Decertification is premised on the public policy proposal that:

"...  employees of a union which they no longer desired to represent them; opponents of the decertification procedure argued it would be used by anti-union employers to thwart collective bargaining."2

DecertificationIn her 1981 article, professor Janice Bellace wrote of the history of decertification in the United States:

"The labor law of the United States is premised on the belief that employees have a right to bargain collectively through representatives of their own choosing, and that an employer must recognize this right when a majority of his employees designates a union as its bargaining agent. That employees should also have the right to refrain from bargaining collectively if they so desire can be viewed as a logical corollary of this premise.

"In 1947, Congress, accepting this line of reasoning, amended the Wagner Act to provide a means whereby employees may decertify their union as bargaining agent...."

"The label decertification is correctly used to describe two very different situations. In the first, an incumbent union loses its status as exclusive bargaining agent and is not replaced by another union. In the second, the employees' allegiance is transferred from one union to another ...."

Decertification takes a requisite number of eligible members to approve the initial petition, such as, for example, 30% - usually a small but not insubstantial threshold.

The decertification is then sent to the government agency which regulates unions (e.g.. in the United States, the National Labor Relations Board), which then schedules a formal vote of the members of the collective bargaining unit on the proposal of decertification. That vote usually requires a 50% approval from the collective bargaining unit membership.

The result of either a successful petition for decertification or an disclaimer of interest is ultimately the same: the union no longer represents the former collective bargaining unit.

In Canada, by way of further example, and to highlight the differences in process and mandatory thresholds, the law in the province of British Columbia is as follows:

"Just as employees can choose to be represented by a union, they can also choose to have their union's representation rights cancelled.

If the (Labour relations Board - "LRB") receives an application to cancel the certification of a union and the application is signed by at least 45% of the employees in the bargaining unit, it will conduct a representation vote within 10 days of the application. The LRB may allow a longer period if the vote is conducted by mail....

"The LRB may also cancel the certification of a union at any time if it is satisfied that the union has ceased to be a union within the meaning of the Code, or that the employer has ceased to be the employer of the employees in the bargaining unit. As well, the LRB may cancel the certification if it determines that the trade union has abandoned the bargaining unit....

"When a union’s certification to represent a bargaining unit is canceled and no other union is certified to take its place, any collective agreement that was in force between the union and the employer becomes void. For 10 months following the decertification, or a shorter period specified by the LRB, no other trade union can apply for certification to represent the bargaining unit. The decertified union, however, can apply to be re-certified during this period if it can show evidence that it has regained the required employee support for certification."

REFERENCES:

  • Bellace, Janice R., Union Decertification under the NLRA, 57 Chi.-Kent L. Rev. 643 (1981)
  • NOTE 1: Canada Industrial Relations Board, Information Circular #10 (2010 - last retrieved on 2012-12-15 from http://www.cirb-ccri.gc.ca/publications/info/10_eng.asp)
  • NOTE 2: Krislov, Joseph, Union Decertification, 9 I.L.R. Review 589 (1955-1956)

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