NLRB Overturns Longstanding Precedent and Rules That a Dues Check Off Provision Survives Contract Expiration

by Constangy, Brooks, Smith & Prophete, LLP

Overruling approximately 50 years of its own precedent, the National Labor Relations Board has decided that a union dues check off provision in a collective bargaining agreement will survive expiration of the agreement. The Board held 3-1 in WKCY-TV, Inc., that the check off provision is part of the status quo terms and conditions of employment that must be maintained by an employer until agreement or impasse in bargaining with a union, unless the parties to the agreement "clearly and unmistakably" agree otherwise. The WKCY decision overrules the 1962 case of Bethelehem Steel, which the Board had followed since 1962 and through the administrations of 10 presidents of both parties. The Board in WKCY held that its new rule would not be applied retroactively to pending cases, but would be applied prospectively.

Chairman Mark Gaston Pearce, and Members Sharon Block and Richard Griffin, reasoned that Bethlehem Steel should be overturned largely because a dues check off provision was (1) comparable to benefits provisions that survive post-contract expiration, and (2) fundamentally different from the other types of contract provisions that typically do not continue as part of the status quo, such as no-strike, arbitration, union security, and management rights provisions. According to the majority, the latter type of provision involves "waivers" that should expire with the contract, while check off does not. Accordingly, the majority said, check off provisions should continue as part of the status quo, "consistent with the language of the Act, its relevant legislative history, and the general rule against unilateral changes in terms and conditions of employment."

Member Brian Hayes, the sole Republican on the Board, whose term expired this week, dissented, contending that the majority had advanced no valid policy reasons for departing from the Bethlehem Steel rule, which had lasted for 50 years and had promoted peaceful resolution of labor disputes. In Member Hayes' view, a dues check off provision is analogous to the other types of contract provisions that do not survive contract expiration, absent the parties' agreement that such a provision should survive.

At this time, it is unclear whether the decision will be appealed. The employer has little incentive, apart from principle, to do so because the rule applies only prospectively – meaning that the employer in the case will face no remedial order.

Assuming the Board decision will stand, employers with existing collective bargaining agreements should review the agreements to determine whether they have check off provisions and, if so, whether the agreements address what happens to check off in the event of contract expiration. If the agreement is silent on the subject or does not have a clear and unmistakable waiver, the employer will be required to honor check off after contract expiration unless it can negotiate an alternative with the union. Otherwise, the status quo will need to be maintained until subsequent agreement or impasse, despite the fact that the Board's new rule imposing that "status quo" did not exist when the parties negotiated the contract.

Although, theoretically at least, an employer whose contract has not yet expired could negotiate for a "clear and unmistakable" right to stop the dues check off on or after contract expiration, it is doubtful that a union would be required to bargain mid-term over this and even more doubtful that the current Board would require a union to do so. Unfortunately, this is true even though the Board itself created this wholly new issue for bargaining mid-term.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.