Depending on one's perspective, in recent years the NLRB has either blazed a radical path in favor of unions and individual concerted activity or it is returning to its original role under the National Labor Relations Act (NLRA). Whichever way you look at the Board's recent decisions, it certainly has been busy in changing the ground rules that govern the conduct of employers, unions, and employees in the private workplace sector. Among other topics, we have recently reported on the NLRB's evolving positions on the protected nature of social media, the use of class action waivers and even whether an at-will statement in an employee handbook is legal. Now the NLRB has issued a significant decision that reverses 50 years of its own precedent.
In the 1962 Bethlehem Steel case, 136 NLRB 1500, the Board held that when a labor contract expires containing a union dues checkoff provision, an employer does not violate the NLRA if it discontinues the dues checkoff. ("Dues checkoff" is a system in which an employer regularly deducts a portion of an employee's wages to pay union dues.) This was an important bargaining tool that employers could use because the continued receipt of dues is essential to a union's viability. However, on December 19, 2012, the NLRB reversed the Bethlehem Steel decision in WKYC-TU INC., 359 NLRB No. 30. In this case, the NLRB held that a dues checkoff provision survives the expiration of a collective bargaining agreement and that an employer cannot unilaterally discontinue collecting union dues. That is, dues checkoff is now part of the "status quo" that an employer must maintain after a collective bargaining agreement expires while it is bargaining with a union for a new agreement. This ruling clearly shifts the balance of power in labor negotiations in favor of unions. An employer that does not heed this new decision runs the risk of committing an unfair labor practice and turning an economic strike into an unfair labor practice strike, which is often a risk to employers who engage in hard bargaining. There will undoubtedly be more such decisions coming from the NLRB in the coming months and years. We will keep you informed of them as the Board continues to reassert its position as the ultimate authority in private sector labor relations.
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