No Duty To Continue Dues Checkoff Post-Contract Expiration

October 13, 2007 by Beeson Tayer & Bodine

In another 3-2 decision, the National Labor Relations Board has avoided an invitation from the Ninth Circuit Court of Appeals to explain its 35-year old doctrine that permits employers to discontinue dues checkoff at the expiration of a contract, even absent a good-faith bargaining impasse. Hacienda Hotel, Inc., 351 NLRB No. 32 (September 29, 2007).

Under longstanding Board law, all terms of an expired collective bargaining agreement remain in place until a good-faith bargaining impasse is reached, with three notable exceptions: the no strike, arbitration and union security clauses all expire with the expiration of the contract. In 1962 the Board issued a bare-bones decision rolling dues checkoff into the union security exception to the rule.

In 2002 the Ninth Circuit remanded to the Board a decision applying the 1962 decision. The Ninth Circuit did not rule that the Board’s 1962 decision was wrongly decided, only that the Board has never properly explained the rationale for the decision.

Five years later, the Board majority has upheld its original decision, but rather than attempt to explain a rationale for the 1962 decision, they instead have rendered their decision based solely on an analysis of the particular dues checkoff language involved in this case.

The clause here provides that the employer will deduct dues “during the term of this Agreement.” The Board majority concluded that this contract language expressed a mutual agreement of the parties for the dues checkoff clause to expire with the expiration of the contract.

By so ruling, the Board left open the possibility that unions with dues checkoff language that does not include sunset language can revisit the question of whether the Board will automatically exclude checkoff from those contract terms the employer must continue to apply post-contract expiration.

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