Dues Checkoff Survives Contract Expiration Again
September 7, 2015 by Beeson Tayer & Bodine
The NLRB has once again ruled that dues check-off clauses remain enforceable after the expiration of a collective bargaining agreement. In a 3-2 decision, Lincoln Lutheran, 362 NLRB No. 188, the Board reaffirmed an employer’s obligation to continue to process payroll deductions of union dues, or “dues check offs,” upon expiration of a contract that established the check-off arrangement. The decision confirms the Board’s overruling of Bethlehem Steel, a case that has been on the books for over fifty years.
In 2012, the Board overruled Bethlehem Steel and held that dues check off survives contract expiration. However, the Board that issued that 2012 decision included two members whose appointments the Supreme Court later ruled unconstitutional. In Lincoln Lutheran, the current, constitutionally appointed Board reexamined the issue and reaffirmed an employer’s obligation to continue dues check off post expiration.
Generally, the terms of a collective bargaining agreement continue in effect as the status quo upon contract expiration and during bargaining.[1] This serves the goals of the Act to promote collective bargaining and to proscribe unilateral changes. The Board acknowledged that Bethlehem Steel and its progeny had never articulated a coherent explanation for treating a contractual dues check off provision differently and that doing so conflicted with the Act’s text and purpose.
In its decision, the Board rejected the arguments of the employer and amicus National Right to Work Legal Defense Foundation that dues check off is a benefit to unions alone. This false dichotomy ignores the benefits to employees of having a simple, reliable means of supporting the union that represents them. That employees must voluntarily elect dues check off implies that they see the administrative convenience as a benefit to them. Going forward, unions and their members can count on the important stability that this continued benefit provides.
The Board’s decision is prospective. An employer’s unilateral cessation of dues check off prior to August 27, 2015 cannot be remedied. However, if an employer has ceased dues check off any time after August 27, 2015, the employer may have committed an unfair labor practice.
[1] Exceptions to this principle are union security, arbitration, no-strike and management-rights clauses, all of which do not survive contract expiration.
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