United States: NLRB Issues Decision Protecting Union Coffers

Historically, employers have been free to discontinue union dues check-off arrangements upon the expiration of a collective bargaining agreement. The National Labor Relations Board (NLRB) changed that long-standing rule on December 12, overturning 50 years of precedent and ruling employers must honor dues check-off arrangements until the parties execute a new collective bargaining agreement or reach a bargaining impasse. The fact that this decision came just one day after Michigan joined the ranks of Right-to-Work states, by banning requirements that non-union employees pay union dues, raises the question of whether the NLRB is seeking to give where state legislatures take away.

In WKYC-TV, Inc., a divided Board determined that employers must continue to honor dues check-off provisions after contract expiration in order to preserve the status quo, thereby "ensuring that the trade-offs made by the parties in earlier bargaining remain in place." Union dues check-off provisions are a mandatory subject of bargaining, the NLRB reasoned. But unlike other mandatory bargaining subjects that do not survive the contract (such as no-strike clauses), dues check-off provisions do survive, because they do not "involve the contractual surrender of any statutory or nonstatutory right." Rather, they are simply a matter of "administrative convenience," the NLRB stated. In this way, dues check-off provisions are no different from "other voluntary check-off arrangements, such as employee savings accounts and charitable contributions ... [which] survive the contracts that establish them." Therefore, the Board determined, "it is anomalous to hold that they survive contract expiration, but that dues check-off arrangements ... do not."

In so holding, the NLRB overruled the 1962 Bethlehem Steel decision, which held an employer's dues check-off obligations terminate upon contract expiration. Given employers' long-standing reliance on Bethlehem Steel, the Board made clear that WKYC-TV will apply only prospectively. A copy of the WKYC-TV decision, including a vigorous dissent by Member Hayes, is here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.