NLRB Rules that Union Dues Checkoff Survives Contract Expiration

by Ballard Spahr LLP
Contact

An employer that deducts union dues from employees’ wages (dues checkoff) under a collective bargaining agreement (CBA) must now continue to do so after the CBA expires. According to a recent National Labor Relations Board (NLRB) ruling, the dues checkoff obligation continues after CBA expiration until the parties reach either a new agreement or a valid bargaining impasse. The 3-1 decision in WKYC-TV, Inc., issued on December 12, 2012, overrules 50 years of precedent to the contrary. Because of the previous long-standing precedent, the Board’s decision will apply only prospectively.

In 1962, the NLRB ruled in Bethlehem Steel that an employer’s dues checkoff obligation expires with the expiration of the CBA. Employers have thus long relied on Bethlehem Steel in interpreting their obligations under the National Labor Relations Act (NLRA or the Act). In WKYC-TV, a three-member majority of the NLRB overruled Bethlehem Steel, finding that “requiring employers to honor dues checkoff arrangements following contract expiration is consistent with (1) the language of the Act; (2) its relevant legislative history; and (3) the general rule against unilateral changes in terms and conditions of employment.”

The NLRB examined Section 8(a)(5) of the NLRA, which prohibits unilateral changes to employees’ wages, hours, and other terms and conditions of employment without bargaining with the union. The Board concluded that the dues checkoff is a mandatory subject of bargaining and must continue after CBA expiration until a new agreement or a lawful impasse is reached. The Board likened dues checkoff provisions to other types of voluntary wage deductions, such as contributions to employee savings accounts and charitable contributions, which survive a CBA’s expiration.

The NLRB also concluded that, under the Taft-Hartley Act, Congress contemplated that a dues checkoff provision would survive expiration of the CBA, citing language that permits an employer to remit dues to a union under employees’ written authorization if the assignment is not irrevocable “beyond the termination date of the applicable collective agreement.” The Board also relied on the law’s different treatment of employee trust funds and dues checkoff provisions to conclude that the latter survive CBA expiration.

Finally, the Board concluded that Bethlehem Steel was incorrect in inextricably linking dues checkoff provisions with union security clauses (which require employees to be union members to maintain employment and expire with the expiration of the CBA). The Board noted that, in right-to-work states, a CBA may not contain a union security clause, but may contain a dues checkoff provision, demonstrating the independence of the two clauses. Thus, the Board determined that the presence of a union security clause in the CBA does not dictate the expiration of the dues checkoff provision.

Board member Brian E. Hayes, whose term has now expired, wrote a lengthy dissent in WKYC-TV, noting Bethlehem Steel recognized that a union security clause is a large inducement for employees to authorize dues checkoff. Thus, Mr. Hayes found it “unreasonable” to believe that employees would prefer to have dues deducted from pay when their employment no longer depended on union membership. He also said the majority’s decision did not recognize the principle of “voluntary unionism.”

As Mr. Hayes noted, the Board’s decision in WKYC-TV removes a “legitimate economic weapon” previously wielded by an employer in bargaining for a successor contract, which may result in “significantly alter[ing] the playing field that labor and management have come to know and rely on” as employers will now be required to continue enabling the funding of union activity rather than forcing the union to face the administrative difficulty of collecting dues. In addition, as he noted, to be able to discontinue dues checkoff, an employer will have to eliminate the provision in its final proposal to the union before reaching impasse, which may further stall resolution of a new agreement.

Members of Ballard Spahr’s Labor and Employment Group are available to discuss the WKYC-TV decision and to assist employers facing negotiation of expiring CBAs. For more information, contact Constantinos G. Panagopoulos at 202.661.2202 or cgp@ballardspahr.com, Amy L. Bashore at 856.761.3402 or bashorea@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.

Written by:

Ballard Spahr LLP
Contact
more
less

Ballard Spahr 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):
hide

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.

Security

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 info@jdsupra.com. 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: info@jdsupra.com.

- 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.