Increasingly, employees want out! Hospitality employers are often faced with questions from employees who are unhappy with their representative union and want �out.� Most managers wrongly believe that once a union is in place with a signed labor contract, there is nothing management can do� even when employees tell them that they want to �get rid of the union.� In fact, most managers and supervisors try to avoid talking with employees about getting rid of the union because they fear that such conversations will be unlawful.

The right of employees to unionize �to join together as a unit for collective bargaining with their employer �is specifically authorized by law. But that same law not only permits employees to refuse to unionize initially, but goes one step beyond to provide a framework for �deunionization� �the process by which a union, once it has become the elected representative of the employees, may later be removed from that position if the employees so wish. 

Deunionization.  

Deunionization is a sensitive topic and can be a traumatic process for unions, employees and employers. But, it is also a timely topic because employees in the hospitality industry have increasingly become disenchanted with their existing repre-sentatives. In the current lodging industry downturn, employees have come to realize that unions are not able to save their jobs in the face of survival driven layoffs and hours reductions, and they cannot obtain significant wage increases and benefits in this environment. As a result, employees are growing increasingly dissatisfied with the �benefits� they receive in return for their union membership and dues. When these frustrated employees come to their employers asking questions about ousting the union, management has a significant opportunity to assist if they understand the basics of the legal process and the employer�s rights in that process.

The basic legal process.  

The National Labor Relations Act (�NLRA�) provides  a process for employees to petition the National Labor Relations Board (�Board�) for a �decertification election� which can lead to the termination of the union�s status as bargaining agent. Only employees may petition for such decertification once they have obtained signatures from at least 30% of the employees/union members who are considered part of the bargaining unit. Once the employees have filed a petition, a hearing is usually conducted before the Board to determine the appropriateness of the petition, the Board�s jurisdiction and the union�s status as a labor organization. Following the hearing, the Board will typically issue a decision regarding whether or not the petition is appropriate and can proceed to an election. The election will usually be held within four to six weeks from the time employees file the petition. To prevail in ousting the union, the employees need a simple majority of those who actually vote; not a majority of those in the bargaining unit. Ties go to the union.

The procedural aspects of the decertification process can be very complex, and this discussion should be referred to only for general guidance.

When can a petition by employees be filed? 

Specific rules govern when decertification petitions may be filed. They are as follows:

• If there is no labor agreement in place, even though negotiations are in process, a decertification petition can be filed at any time provided at least 12 months have elapsed following the union�s certification by the NLRB.
• If a labor contract is in place with a definite expiration date of three years or less, a decertification petition may be filed between 90 and 60 days prior to the termination date of the contract.
• If a labor contract is in place with a definite expiration date of more than three years, a decertification petition may be filed between 90 and 60 days prior to the contract�s third anniversary year or after the contract�s third year.
• Upon the expiration of a collective bargaining agreement, but before a new agreement is reached by the parties, a decertification petition may be filed at any time.

The widespread belief is wrong that management�s hands are tied when faced with questions about decertification. Generally speaking, the NLRA prohibits management from instigating, encouraging, authorizing or ratifying �decertification petitions.� There are, however, a number of lawful approaches management may take that will enhance the prospects of a decertification petition being filed. Although the employer may not become involved in assisting or participating in the circulation of a union decertification petition, the employer is not prohibited from responding to employee inquiries about the decertification process, as long as the responses are accurate. On request of employees, an employer may describe the legal avenues available to the employees; may advise them to seek assistance from the Board; and may further advise them that they have a right to exercise their rights to decertify a union. In addition, an employer can establish a labor relations educational program that broadly examines all of the federal laws and regulations regarding the relationship between employees and a union. As part of that educational process, the employer may address such topics as: how the employer-union relationship can come into existence; what rights and duties flow from the relationship; and how that relationship can be ended. Through this process, the employer may discuss the procedural aspects of the law in terms of how employees can go about filing a petition for decertification with the Board. Any such educational program should be reviewed in advance by counsel to ensure legal compliance.

What can management do in a campaign against the union? 

Once a petition for decertification has been filed and the election process has been set in motion, the campaign to deunionize will begin. The success or failure of a decertification election� from the employer�s perspective �will depend on how the employer conducts its campaign. Campaigning is permissible under the law. The key to success is effective communication of the employer�s views on the issues relating to the employer-employee relationship at the affected work site. Although the campaigns should be specifically tailored for the nature of the existing relationship between the employees and the union, some or all of the following issues are of the kind the employer should address in the campaign:

• What has the union achieved for employees at the work site?
• How do the wages and benefits the union has achieved compare to the wages and benefits that would have been provided to the same employees without the union?
• What has the union �charged� employees in terms of union initiation and monthly dues? Where does that money go? How is it used, and by whom?
• What is the union�s record of success in grievances and arbitrations?
• Have there been strikes or picketing that have been disruptive to the working environment?
• By having a union, the employees are paying someone to do what they may be able to do for free.
• Are the union leaders trustworthy and capable?
• How do non-union employees who work for the same employer feel about being able to represent themselves without a union?
• How does the employer intend to address employee issues without a union?

Marta M. Fernandez is a senior member of JMBM�s Global Hospitality Group and of the Labor Department. As a management labor lawyer, Marta specializes in the representation of hospitality industry clients in all aspects of labor and employment. For more information, please contact Marta Fernandez at 310.201.3534 or at [email protected].

The Global Hospitality Group(r) is a registered servicemark of Jeffer, Mangels, Butler & Marmaro LLP