Depending on your point of view, it's the same old (and new) song. Whether the famous 19th Century line by French writer Jean-Baptiste Alphonse Karr, the lyrics from the 2010 Bon Jovi song, or decisions of the current National Labor Relations Board ("NLRB" or "Board"), it's apparently true that the more things change, the more they stay the same. Thus and yet again, the NLRB has determined that employers normally will be obligated to continue deducting union dues even after a collective bargaining agreement expires. Today in Lincoln Lutheran of Racine, 362 NLRB No. 188 the NLRB reaffirmed that it is overturning a 50 year-old precedent allowing employers to discontinue union dues deductions after a collective bargaining agreement expires.
Employers normally must maintain the "status quo" or most existing terms and conditions of employment following the expiration of a collective bargaining agreement. Unless there is a lawful impasse in negotiations, an employer may not change wages, job assignments, vacation scheduling procedures, overtime assignment rules, health and welfare contributions, or many other terms or conditions of employment during the hiatus between a contract's expiration and the beginning of a new labor agreement.
Several key exceptions to this rule exist, however. In Bethlehem Steel, 136 NLRB 1500 (1962), the NLRB ruled that an employer's dues-checkoff obligations were tied to a contractual union security clause which, like a management rights or no strike clause, expires with the labor agreement. And so for 50 years, the Board held that when a labor agreement expires, both the union security clause and any obligation to deduct and remit employees' union dues terminates.
That tune changed in 2012. In WKYC-TV, Inc., 359 NLRB No. 30 (Dec. 12, 2012), the Board announced that employers could no longer unilaterally stop deducting union dues after a collective bargaining agreement expires. [See our prior blog post .] While labor agreements may be drafted to provide for the expiration of dues deductions, such a clause must be, in the NLRB's view, "clear and unmistakable." Thus, after contract expiration, an employer could lawfully stop making dues deductions only if it was confident (and correct) that its dues-checkoff clause terminated with the labor agreement. Absent that certainty, if a union engaged in a strike, employers were required to continue deducting dues from crossovers – bargaining unit employees who choose not to or abandon a strike – without necessarily knowing whether they resigned their union membership and dues-checkoff authorizations.
In its 2014 NLRB v. Noel Canning decision [as discussed here], however, the U.S. Supreme Court found that many NLRB decisions, including WKYC-TV, were decided by a Board that was not validly appointed. So did the law revert then to Bethlehem Steel and the ability to cut off dues deductions after contract expiration? Not so fast, my friend, because, of course, the more things change the more they stay the same. Faced with yet another opportunity to consider the issue, today the NLRB today affirmed its ruling in WKYC-TV and found that, absent a clear and unmistakable waiver, employers need to continue giving unions their dues. And as the dissent by Members Miscimarra and Johnson points out, the Board Majority's rule will only impede labor negotiations by encouraging employers to reject dues checkoff clauses in bargaining first contracts, proposing to delete them in contract renewal negotiations, and – since the pressure from discontinuing dues deductions after contract expiration cannot occur – raising the stakes in negotiations by potentially locking out employees to exert economic leverage. Instead of Bon Jovi, the tune we're hearing may be the labor anthem "Solidarity Forever."
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