Hospital pulls union recognition after decertification vote, appeals court agrees

On June 14, 2021, the ballot count in the decertification election was held. With 203 votes against SEIU, 171 in favor, and 13 challenged ballots, employees chose to end union representation. That same day, the hospital’s chief executive, Ashley McClellan, emailed and posted a statement announcing the result. In the months that followed – and before the NLRB formally certified the election in February 2022 – Midwest pulled recognition of SEIU, halted dues deductions, refused to bargain over PRN wage rates, blocked SEIU from the premises, and stopped releasing employees for union steward training.

SEIU filed objections to the election. The NLRB’s General Counsel issued a consolidated complaint, and an administrative law judge found the hospital had violated the National Labor Relations Act. A three-member NLRB panel agreed in March 2024, ordering the hospital to undo its actions and make SEIU whole for the intervening period.

The Eighth Circuit saw it differently. The court held that the hospital took a calculated risk by acting before certification, but because the NLRB ultimately overruled SEIU’s objections and certified the decertification, no violation occurred. The court found that the NLRB’s own 2019 decision in Johnson Controls, Inc. had effectively undercut the stricter rule it was trying to apply. The court also aligned itself with the Fifth Circuit, which had previously rejected the idea that employers should be treated differently depending on whether a union wins or loses an election. The court noted that federal labor law protects the rights of employees – not unions – and that the same rules should apply regardless of the outcome.

For HR teams at unionized workplaces, the practical upshot is significant. An employer that withdraws recognition after a decertification vote is not automatically in violation of the NLRA, as long as the election holds up. But the risk is real – if the board sustains union objections or orders a new election, everything the employer did in the interim becomes a liability.

The second dispute in the case carries its own lesson. The hospital had barred an NNOC labor representative from attending a Step 1 grievance meeting, arguing that its collective bargaining agreement allowed only one union representative to be present. The court disagreed. It found nothing in the agreement that expressly limited the number of union representatives at a grievance meeting, and noted that because the grievance was filed on behalf of a group of nurses, there was room for more than one union participant under any reasonable reading of the contract. The court enforced the NLRB’s order on this point.