The NLRB Overrules 50 Years of Precedent
Last month, the current NLRB once again left the labor relations world with its mouth agape when it decided that Dues Checkoff provisions will now survive the expiration of a collective bargaining agreement (“CBA”). Nearly all CBAs have a provision that requires management to withhold from employee paychecks the amount of union dues and assessments and pay those amounts over to the union. This provision is commonly called the Dues Check Off. The recent decision, in WKYC-TV, Gannet Co., Inc., reversed 50 years of NLRB precedent, dating back to the Bethlehem Steel case of 1962 in which Dues Checkoff provisions were deemed to expire when the underlying CBA expired. Now, with this decision, Dues Check Off obligations of management will live on.
So Do We Have to Deduct Union Dues After the Union Contract Expires?
This is a common question that comes up during collective bargaining negotiations. The answer is relatively straightforward: Yes. Now, in the wake of the WKYC-TV decision, Dues Checkoff will no longer expire with the CBA. The NLRB reasoned that Dues Checkoff provisions are analogous to status quo regular benefits provisions (which do survive CBA expiration) and, therefore, should continue in effect even after the underlying CBA expires. The majority of provisions contained within a CBA continue in effect as the status quo. The status quo can’t be changed unilaterally by management unless the union is first given notice and an opportunity to bargain over the change or until there is a bona fide impasse. However, there are several common provisions that do expire with the underlying contract. The provisions that have been held for 50 years to expire with the CBA include such well-known provisions as Management Rights, No Strike/No Lockout, Union Security, Arbitration. These provisions and, prior to last month, Dues Checkoff, were deemed by the NLRB for 50 years to be “waivers” that are incapable of existing without valid, clear and unmistakable contract language. Those provisions will continue to die with the contract.
Why Is This Significant?
Although this may seem like a minor change in the law, it actually represents a significant shift in the balance of power between management and a union when faced with the possibility of CBA expiration. Prior to the WKYC-TV decision, unions were faced with counter-balancing pros and cons to allowing a CBA to expire without reaching an agreement with management. On one hand, an expired CBA meant the union was no longer bound by the No Strike provision and, therefore, could call a strike without violating the contract. Of course, during a strike employees earn no wages and there would be nothing to deduct union dues from. On the other hand, if no strike is called, an expired CBA allows the employees to keep on working under the status quo conditions of employment while bargaining is still ongoing. Before last month, management could generally stop deducting union dues once the CBA expired. That meant the union would have to work much harder to collect their dues because management would no longer be doing it for them through payroll deduction. Faced with this dilemma – and the inevitable difficultly of tracking union members down to collect their dues – unions frequently passed on the ability to freely call a strike and, instead, opted to diligently work with management to reach a deal before the CBA expired. After WKYC-TV, however, this dilemma no longer exists, thereby eliminating a very powerful incentive for unions to be cooperative and reasonable during negotiations.
What Can Employers Do?
In light of this development, employers with Dues Checkoff provisions in their CBAs should revisit the language of the agreement to determine if the parties explicitly contemplate the fate of the provision in the event of CBA expiration. If the language does not explicitly declare that the provision will expire with the CBA, employers should consider proposing this idea the next time they sit down with the union for contract negotiations.
If you would like more information about the WKYC-TV decision or have questions about labor relations law in general, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
