NLRB Overturns 50-Year-Old Precedent In Latest Decision On Dues-Checkoff Provision

In WKYC-TV, 359 NLRB No. 30 (Dec. 12, 2012), the National Labor Relations Board effectively overturned 50 years of precedent by holding that, like most other terms and conditions of employment, an employer's obligation to check off union dues continues after expiration of a collective bargaining agreement that contains such a provision.

History

Since its decision in Bethlehem Steel Co., 136 NLRB 1500 (1962), the Board has consistently held that union security provisions (which make union membership mandatory) cannot lawfully continue post-expiration. As a result, dues-checkoff provisions, which implement union security provisions by automatically deducting employee union dues, may be cancelled by employers upon expiration.

In determining that union security provisions cannot survive expiration, the Board in Bethlehem relied on the portion of Section 8(a)(3) of the National Labor Relations Act (the "Act") which states, "nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization . . . to require as a condition of employment membership therein." The Board interpreted this language to mean that "the acquisition and maintenance of union membership cannot be made a condition of employment except under a contract" that includes this condition, and can be imposed only "so long as such a contract is in force." Accordingly, under Bethlehem, once an agreement expired so too did a union-security provision established therein.

Likewise, the Bethlehem Board held that dues-checkoff provisions do not survive contract expiration. The Board reasoned that the dues-checkoff provisions "implemented the union-security provisions" of the collective bargaining agreement, and thus, the union's right to dues-checkoff, like its right to impose union security, was "created by the contracts and became a contractual right which continued to exist so long as the contracts remained in force." These principles remained good law for several decades.

Evolution of the Law

More recently, the general rule set forth in Bethlehem began to be questioned by a trio of cases known as the Hacienda decisions.1 At the heart of the Hacienda decisions was the Board's insistence in all three cases that an employer's dues-checkoff obligation did not survive expiration of an agreement, even in a right-to-work state where union security provisions are unlawful.

In the appeal of Hacienda I,2 the U.S. Court of Appeals for the Ninth Circuit overturned the Board, seeking an explanation as to why a dues-checkoff provision could be cancelled upon expiration of an agreement where the underlying agreement did not include a union security provision.

Having not received an adequate explanation on remand, in the appeal of Hacienda II3 the Ninth Circuit again overturned the NLRB, holding that the mere inclusion of a durational clause in the collective bargaining agreement was not a clear and unmistakable waiver by the union of the right to...