In WKYC-TV, Inc., 359 NLRB No. 30 (2012), the NLRB overruled 50 years of precedent under Bethlehem Steel, 136 NLRB 1500 (1962), and held that going forward, employers could not unilaterally end dues checkoff at the expiration or termination of a collective bargaining agreement. There was no appeal in the WKYC case because the Board applied the new rule prospectively only, and not to WKYC-TV itself or to any other pending cases.

Now an ALJ has ruled that the WKYC decision was not controlling precedent because it had been decided by a Board panel that was invalidly appointed under the Supreme Court’s decision in NLRB v. Noel Canning et al., 134 S.Ct. 2550(2014). In Lincoln Lutheran of Racine, No. 30-CA-111009 (August 11, 2014), the ALJ ruled that the employer’s unilateral termination of dues checkoff upon expiration of the collective bargaining agreement was lawful under Bethlehem Steel and that the Board had not had jurisdiction to issue the decision in WKYC and overrule Bethlehem Steel.

It is a foregone conclusion that the current Board will eventually endorse the rulings of the invalid Board which sat during 2012 and most of 2013. And the vehicle for doing this and overturning Bethlehem Steel a second time appears to very likely be the Lincoln Lutheran case itself, assuming that the NLRB General Counsel files exceptions to the ALJ’s decision.

But even though the Board will very likely overrule Bethlehem Steel again, it is up in the air whether it would apply the new law prospectively only for a second time; or whether the Board would apply the new law to currently pending cases (including the Lincoln Lutheran case itself). The test is whether or not a retroactive application of the new rule would create a manifest injustice. Query whether, because of its history of trying to overturn Bethlehem Steel, the Board might now apply a decision doing so retroactively and hold it was not manifestly unjust.

The Lincoln Lutheran decision may be a precursor of others by ALJs, applying similar reasoning to undermine precedent set by the invalidly appointed Board. Eventually, the issues they raise will have to be sorted out by the Board itself, and possibly the courts.