Eighth Circuit: Withdraw Recognition After Decertification Vote At Your Peril

I’ve probably withdrawn recognition of unions more times than most labor lawyers, so this case hits close to home.

The Eighth Circuit recently ruled in Midwest Division-RMC, LLC v. NLRB that a Kansas City hospital did not violate the NLRA when it stopped recognizing a union immediately after employees voted to decertify it — even though the NLRB hadn’t yet formally certified the election results.

On June 14, 2021, the SEIU decertification election count came in 203-171 against the union. The hospital’s CEO announced the result the same day. Before the NLRB formally certified the decertification in February 2022, the hospital pulled SEIU recognition, halted dues deductions, refused to bargain over PRN wage rates, blocked SEIU from the premises, and stopped releasing employees for union steward training.

The NLRB found ULP violations, citing W.A. Krueger Co. (1990) for the rule that employers must continue recognizing the union until the NLRB certifies the election. The Eighth Circuit reversed.

The court’s reasoning: The Board’s own subsequent decision in Johnson Controls, Inc. (2019) had effectively undermined Krueger. Johnson Controls said an employer who withdraws recognition after a decertification vote but refrains from unilateral action “makes changes at its peril” — the same standard applied to employers in initial certification contexts.

The court aligned with the Fifth Circuit’s Arkema decision and Dow Chemical, rejecting the idea that employers should be treated differently depending on whether a union wins or loses an election. Federal labor law protects the rights of employees — not unions — and the same rules should apply regardless of outcome.

Because the NLRB ultimately certified the decertification and overruled SEIU’s objections, no violation occurred.

For employers managing decertification scenarios, two takeaways:

1. Withdrawal of recognition after a decertification vote is no longer per se unlawful. As long as the election results ultimately stand, the employer is in the clear.

2. It’s still “at your peril.” If the Board sustains union objections or orders a new election, everything you did in the interim becomes a liability. Calibrate carefully.

The Eighth Circuit’s approach aligns the law of decertification with the law of initial certification — same rules, regardless of outcome.

P.S. Why did it take nearly a year to certify the election results? There we not enough challenged ballots to make a difference. Whether law or public policy, an employer should not have to wait a year after decertification vote to end its relationship with a union.

Is the “act at your peril” framework the right balance — or does it create too much temptation for employers to push the boundaries?