Considerations for Disclaimers of Interest

Some schools recently reported receiving a union disclaimer of interest letter, which a union uses to assert that it disclaims interest in representing a bargaining unit. Considerations are discussed below.

Collective Bargaining Agreement

Unions sometimes use disclaimer of interest letters to assert that a collective bargaining agreement (CBA) between the union and a school is void due to the union’s disclaimer of interest. That assertion is accurate. The Michigan Employment Relations Commission (MERC) recently concluded that “where the union representing the bargaining unit has fully disclaimed an interest in representing the members of the bargaining unit, there remains no valid agreement.”

Once a CBA is void, the school can unilaterally change the terms and conditions of employment for the former bargaining unit. To maintain employee morale and to avoid potential community backlash, a school may choose to voluntarily continue applying the CBA, at least temporarily, while it transitions to a non-unionized workplace for the former bargaining unit.

Transition

After a CBA becomes void, employee terms and conditions of employment will be governed by board policies, administrative guidelines, handbooks, and individual employment contracts. Those documents should be clear and concise to maintain an efficient workplace.

Subsequent Unionization Efforts

The Public Employment Relations Act (PERA) requires a school to bargain with the exclusive bargaining representative of its employees. A union or another group may become an employee group’s exclusive bargaining representative either through a MERC election or a school’s voluntary recognition of the group as the exclusive bargaining representative.

If a group seeks representation through a MERC election, the school should not provide guidance to the group on the election process because PERA prohibits schools from initiating and contributing to the formation of a labor organization. Instead, the school should direct the group to MERC for assistance. Once an election petition has been filed, an employer is obligated to maintain the proposed bargaining unit’s existing terms and conditions of employment either until the group loses the MERC election or the group wins the election and a collective bargaining agreement has been negotiated.

If a group seeks representation through voluntary recognition, the school may voluntarily recognize the group without a MERC election. If the school chooses to do so, it has a duty under PERA to verify that recognition is supported by a majority of employees within the proposed bargaining unit. Absent majority support, voluntary recognition is unlawful.

Typically, a group secures signatures from employees within the proposed bargaining unit by having them sign applications or cards stating that those employees desire the group to be the exclusive bargaining representative. To minimize the potential for interference claims and to protect the confidentiality of employees signing applications or cards, the school and the group typically retain a neutral third party to validate the signatures.

If the signatures are validated and establish majority support, the school may grant voluntary recognition, which is typically completed through a school board resolution or meeting minutes. Once voluntarily recognized, the group becomes the employee unit’s exclusive bargaining representative – the same status bestowed upon a group after a successful MERC election.

Handling the impact of a union disclaimer of interest, especially if unexpected, may be daunting. If your school receives a disclaimer of interest, please consider contacting a Thrun labor attorney for assistance.