In an opinion released today, but decided last week, the NLRB reversed a 50-year-old precedent regarding dues checkoff provisions.  For those unfamiliar with the term, a dues checkoff provision is a clause in a union contract by which an employer agrees to deduct union dues from the paychecks of employees who authorize it and pay that money directly to the union.  NLRB cases have described this procedure as an “administrative convenience” for employees and unions.

In Bethlehem Steel, decided in 1962, the NLRB ruled that a dues checkoff provision expires when the union contract in which it is found expires.  In the ruling issued today, WKYC-TV, Inc. (pdf), the NLRB reversed this decision, holding that an employer must continue to withhold dues and pay them to the union even after the union contract expires.  The employer may only stop if the employee revokes their authorization to withhold the dues, the employer bargains to impasse with the union, or the employer can demonstrate a “clear and unmistakable” waiver by the union of its right to bargain over the continuation of the checkoff provision.

 

In reaching its 3-1 decision, the NLRB concluded that the Bethlehem Steel decision is

unsupportable because it is based on questionable reasoning, is inconsistent with established policy generally condemning unilateral changes in terms and conditions of employment, is contradicted by both the plain language and legislative history of the only statutory provision addressing dues checkoff, and finds no justification in the policies of the [NLRA].

The NLRB also noted that the “antiquity” of the Bethlehem Steel decision does not alter the fact that it is “difficult to reconcile” with the NLRA’s language and policies. “Unlike a good wine, a mistake does not get better with age.” The NLRB majority, however, concluded that the change would only be applied prospectively, and not to any pending cases involving this issue, given that employers have relied on the rule for 50 years.

 

Member Hayes (R) dissented from the majority’s decision.  Among other arguments, Member Hayes rejected the notion that there was any statutory language or legislative history supporting the majority’s decision. He further distinguished the precedents on which the majority relied in concluding that the policy condemning unilateral changes was applicable.

 

The implications for a labor professional in contract negotiations are potentially significant. As Member Hayes observed, the employer’s ability to discontinue dues checkoff has “long been recognized as a legitimate economic weapon” in contract negotiations.  To take away from parties the ability to “wield such weapons” during negotiations would “significantly alter the playing field that labor and management have come to know and rely on.”  Any labor professional involved in, or anticipating, labor negotiations should consult with labor counsel on the implications of the NLRB’s decision.