Nlra Case Notes

• Jurisdiction: United States,Federal
• Author: By Richa Amar and Jonathan Cohen
• Publication year: 2016
• Citation: Vol. 30 No. 1

NLRA Case Notes

By Richa Amar and Jonathan Cohen

Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board. Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California.

Board Overrules Longstanding Precedent and Holds That Employer's Duty to Check Off Dues Continues After Expiration of a Collective Bargaining Agreement

Lincoln Lutheran of Racine, 362 NLRB No. 188 (Aug. 27, 2015)

In a 3-2 decision, the National Labor Relations Board (Board), revisiting its two-member decision in WKYC-TV, Inc., 359 NLRB No. 30 (Dec. 12, 2012), held that an employer's obligation to check off union dues continues after expiration of a collective bargaining agreement.

In December 2012, SEIU Healthcare Wisconsin and Lincoln Lutheran began negotiating a successor collective bargaining agreement. In February 2013, the employer informed the union that it would terminate dues checkoff upon expiration of the parties' agreement, and did so the following month.

The Board first emphasized the basic premise that an employer violates National Labor Relations Act (Act) section 8(a)(5) by unilaterally changing employees' terms and conditions of employment without providing their union prior notice and an opportunity to bargain, and that dues checkoff has long been recognized by the Board as a mandatory subject of bargaining. Applying those principles, the Board held that "[a]n employer's decision to unilaterally cease honoring a dues-checkoff arrangement established in an expired collective bargaining agreement obstructs collective bargaining just as other, prohibited unilateral changes do."

As the Board observed, unilaterally cancelling dues checkoff "both undermines the union's status as the employees' collective bargaining representative and creates administrative hurdles that can undermine employee participation in the collective bargaining process." Among other things, employees who fail to make alternative dues payment arrangements risk losing membership in their union; a union is forced to expend time and resources creating alternative arrangements to collect dues instead of focusing on bargaining; and the cancellation of dues checkoff sends the message to employees that the employer is free to "interfere with the financial lifeline between employees and the union they have chosen to represent them."

Distinguishing arbitration provisions, no-strike clauses, and management rights clauses, which do not survive expiration of a contract, the Board noted that each of those terms is a waiver of rights otherwise enjoyed by the parties in order to conclude a collective bargaining agreement. Unlike those provisions, "a dues checkoff provision does not involve the contractual surrender of any statutory or nonstatutory right by a party to the agreement." Rather, dues checkoff is merely an agreement "to establish a system for employees who elect to pay their union dues through automatic payroll deduction, as a matter of administrative convenience to a union and employees."

The Board found support for its conclusion in section 302(c)(4) of the Taft-Harley Act, which provides that a dues deduction authorization "shall not be irrevocable for a period of more than one year, or beyond the termination of the applicable collective bargaining agreement, whichever occurs sooner." According to the Board, this provision shows that Congress contemplated that "a dues-checkoff arrangement could continue beyond the life of the collective bargaining agreement establishing it, as it contains no language making dues-checkoff arrangements dependent on the existence of a collective bargaining agreement."

Acknowledging that its decision overrules longstanding precedent on which employers have reasonably relied - Bethlehem Steel, 136 NLRB 1500 (1962) - the Board ruled that its decision will not apply retroactively.

Members Johnson and Miscimarra dissented. Among other things, they emphasized that dues checkoff is a form of union security, and like a union security clause that terminates with the expiration of a contract, dues...