Takeaway: The National Labor Relations Board’s (NLRB) recent decision to overturn prior case law applies retroactively to all pending cases. Employers currently refusing to remit union dues because of the expiration of a collective bargaining agreement could be found to have violated the National Labor Relations Act (NLRA), despite it being lawful precedent at the time.

In a recently issued decision, the NLRB held that employers violate the NLRA when they stop sending deducted dues to unions after the expiration of a collective bargaining agreement. This recent decision overturns a 2019 decision, marking another major shift in NLRB precedent under the Biden Administration.

The NLRB’s 3-2 decision, made on remand from the Ninth Circuit, holds that the requirement for employers to deduct union dues from employees’ paychecks and send those monies to the employees’ union, so-called “dues checkoff” provisions, survive contract expiration. The NLRB’s decision expressly overruled a 2019 decision between the same parties in which the NLRB determined that employers could withhold union dues upon the lapsing of the applicable collective bargaining agreement.

The NLRB’s decision was expected after NLRB General Counsel Jennifer Abruzzo identified the lapsing of dues checkoff provisions as a target of the Biden Board. The decision holds that dues checkoff is part of the “status quo” that must be maintained when a contract expires without a new contract having been negotiated to replace it. This change in course increases the burden on employers and removes a powerful negotiation tool for employers.

Of critical importance to employers currently negotiating successor collective bargaining agreements, the decision applies retroactively to all pending cases. This means that employers currently refusing to remit union dues because a collective bargaining agreement expired could be found to have violated the NLRA, despite it being lawful precedent at the time.