Lareau on WKYC-TV: Abandoning Precedent, Board Holds Dues Deduction Clause Survives Contract Expiration

Lareau on WKYC-TV: Abandoning Precedent, Board Holds Dues Deduction Clause Survives Contract Expiration

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.

Excerpt:

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 provision.

Lexis.com subscribers can access enhanced versions of the opinions cited in this article:

WKYC-TV, Inc., 359 NLRB No. 30, 2012 NLRB LEXIS 851 (2012)

Bethlehem Steel Co., 136 N.L.R.B. 1500 (1962)

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