Dues Checkoff Authorizations Once Again Suspended Upon Contract Expiration
December 20, 2019 by Andrew BakerThe Trump Board has rolled back one more union gain from the Obama Board. After the Ninth Circuit Court of Appeals refused to enforce the NLRB’s old, but unexplained, rule that employers are not required to comply with union dues checkoffs once a contract expires, the NLRB in 2012 reversed a 50-year-old rule and determined that, like almost all other contractual terms that must be kept in place when a contract expires, so too must checkoff authorization language. But in a decision issued December 16, 2019, the Trump Board overruled the Obama Board decision, and returned to the old “Bethlehem Steel” doctrine. Valley Hospital Medical Center, 359 NLRB No. 139.
Generally, the terms of a collective bargaining agreement continue in effect as the status quo upon contract expiration and during bargaining. (Exceptions to this principle are union security, arbitration, no-strike and management-rights clauses, all of which do not survive contract expiration.) This serves the goals of the Act to promote collective bargaining and to proscribe unilateral changes. The Obama Board acknowledged that Bethlehem Steel and its progeny had never articulated a coherent explanation for treating a contractual dues checkoff provision differently and that doing so conflicted with the Act’s text and purpose.
Not surprisingly, the Trump Board disagreed. Over the dissent of the lone Democrat sitting on the Board, the Trump-appointed Board members concluded that a dues checkoff provision is purely a creature of the collective bargaining agreement, and thus once the contract expires so expires the dues checkoff provision. The majority distinguished other terms of employment typically found in a collective bargaining agreement, such as wages and health benefits, which can also exist outside of a collective bargaining agreement, and which an employer may change only after bargaining to impasse.
It remains to be seen whether the Ninth Circuit accepts the Board’s rationale here. But for now, unions can no longer count on employer recognition of dues checkoff authorizations to collect dues from members once a collective bargaining agreement expires.
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