This EIA discusses a recent
decision of the NLRB that overturned 50 years of precedent. The impact of the
Boards decision in WKYC-TV, holding that dues deduction clauses can survive
contract expiration is analyzed with practical insight and commentary.
Although not expressly set
forth in the National Labor Relations Act ("Act"), the statutory
obligation to bargain collectively has been interpreted by the National Labor
Relations Board ("Board") and the courts as prohibiting an employer
from making unilateral changes in terms and conditions of employment, i.e.,
making changes without first providing the union with an opportunity to bargain
about those changes. As a general rule, therefore, even though the contractual
obligation to abide by a term or condition of employment set forth in a
collective bargaining agreement may cease on the expiration of the agreement,
the statutory obligation to refrain from unilateral changes precludes an
employer from simply abandoning the contract on its expiration.
However, certain provisions of a collective bargaining agreement - such as
union security clauses and arbitration provisions - are viewed as so
"uniquely contractual" that an exception to the general rule is
recognized. In its 1962 decision in Bethlehem Steel Co., the Board held
that dues checkoff provisions belonged to that category of "uniquely
contractual" provisions and that, upon expiration of a collective
bargaining agreement, an employer did not violate the Act by ceasing to deduct
union dues from employees' pay and remitting the amounts deducted to the union.
In Bethlehem Steel, the issue arose in the context of a collective
bargaining agreement that contained both a union security clause and a dues
checkoff clause. With respect to the union security clause, the Board held that
an employer was free to unilaterally cease enforcing the clause upon expiration
of the contract because the proviso to Section 8(a)(3) of the Act precluded
enforcement of union security obligations at a time when no contract was in
force. It then held that an employer was entitled to unilaterally cease enforcing
the dues checkoff clause upon expiration of the contract because such clauses
were a matter of contract and "implemented" the union security
subscribers can access enhanced versions of the opinions cited in this article:
Inc., 359 NLRB No. 30, 2012 NLRB LEXIS 851 (2012)
Steel Co., 136 N.L.R.B. 1500
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