The National Labor Relations Board (NLRB) issued yet another gift to organized labor this holiday season by overturning a 50-year-old precedent and ruling that employers must continue to deduct and submit dues to unions even after a collective bargaining agreement expires. In WKYC-TV, Gannet Co., Inc., 08-CA-039190; 359 NLRB No. 30 (December 12, 2012), the NLRB reversed its 1962 decision in Bethlehem Steel,+136 NLRB 1500 (1962), in which it held that a "dues checkoff" provision expires with the agreement. In the reversal of its longstanding position, the NLRB reasoned that the dues checkoff provision is part of the status quo terms and conditions of employment that an employer must maintain until a new collective bargaining agreement or a lawful impasse is reached. However, the NLRB did acknowledge that collective bargaining agreements may include a clause providing for the expiration of the dues checkoff provision; however, such clauses must be "clear and unmistakable."
A dues checkoff provision is an agreement by an employer to automatically deduct union dues from employees' paychecks and submit them directly to the union. Since the 1962 decision in Bethlehem Steel, the NLRB had had that this process was merely an "administrative convenience" for the parties, therefore allowing employers to unilaterally cease deducting such dues upon termination or expiration of an agreement. However, under this new decision in WKYC-TV, the process of deducting union dues from employees is deemed a term and condition that must continue even after the collective bargaining agreement expires. Significantly, an employer that fails to deduct dues after the expiration or termination of the agreement will be found to have committed an unfair labor practice.
This decision is notable for employers for several reasons. First, the discontinuation of dues checkoff had long been recognized as a "legitimate economic weapon" for employers during collective negotiations. For instance, many employers stop deducting dues from employees as a way of exerting pressure on a union to agree on a new collective bargaining agreement. Now, by having to deduct dues and remitting them to the union, employers will essentially be funding union operations during what may often be tense collective negotiations.
Second, employers should now carefully examine their collective bargaining agreements to determine whether they have a dues checkoff provision and, if so, whether it addresses the employer's duty upon expiration of the agreement. If the provision is silent on this issue or if it does not have a clear and unmistakable waiver, the employer will be required to maintain the status quo and continue deducting union dues from its employees unless the parties can reach an alternative.
Lastly, it is important for employers to realize, even more so now, that they do not have to agree to a dues checkoff provision that will outlast the life of the collective bargaining agreement. Under the National Labor Relations Act, an employer is only required to bargain in good faith, not be forced into agreeing to a proposal or making a concession. Therefore, employers that wish to avoid having to continue checkoff deductions after the expiration or termination of the agreement may either seek concessions from the union as a trade for checkoffs or bargain for clear and explicit language calling for the employer's checkoff obligation to cease upon expiration or termination.
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