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eLABORate: NLRB Requires Employers to Continue Dues Check Off Following Expiration of CBA

January 14, 2013

A recent decision of the National Labor Relations Board continues its trend of issuing rulings favorable to unions. The Board, on December 12, 2012, held in WKYC-TV, Inc., 359 NLRB No. 30, that, after a collective bargaining agreement expires, employers must continue to deduct union dues from employee wages and forward those dues to the union.

The decision abrogated the Board’s fifty-year-old rule from the Bethlehem Steel case. There, the Board held that employers were not required to perform the check off function following the expiration of a contract. Now, however, the obligation to deduct and forward dues payments continues until the employer and the union reach a successor agreement or an impasse.

The Board’s WKYC-TV ruling was premised on its belief that “a coherent explanation for [the Bethlehem Steel] rule” had never been provided. In Bethelehem Steel, the Board had held that an employer properly terminates a union-security provision upon expiration of a contract, because the language of Section 8(a)(3) allowing such clauses was properly read to require an existing contract for union-security clauses to be operative. The Bethlehem Steel Board also held that, because of “similar considerations” a union dues check off clause should terminate on expiration of the contract. In the view of the WKYC-TV Board, union-security clauses are unlike dues check off clauses; as it noted, it is possible to have dues check off where union-security clauses are not even allowed, as in right-to-work states. The WKYC-TV Board reasoned that dues check off clauses are similar to other voluntary wage deductions, such as charitable contributions and contributions to employee savings accounts, which survive the expiration of a contract. The Board also reasoned that its new holding was consistent with section 8(a)(5) of the National Labor Relations Act and with the Taft-Hartley Act.

The potential impact of WKYC-TV on employers is significant. The decision precludes employers from stopping the flow of union dues to a union following expiration of a CBA, thereby eliminating the pressure of lost dues as bargaining leverage. Employers facing expiring CBAs must reevaluate their bargaining strategies in light of this lost piece of leverage.