In the world of collective bargaining, leverage is everything, and the employer has the upper hand only in certain limited situations. The employee-leaning, activist National Labor Relations Board (NLRB) has just eliminated one of those leverage factors. Was it really a surprise when the NLRB removed the employer's ability to discontinue a union dues check-off provision when a labor contract expired? Not to me.
Last month, the NLRB abandoned a fifty-year-old precedent when it held that an employer's obligation to check-off union dues continues after the expiration of the labor contract that created the check-off arrangement. The old rule was established in the case of Bethlehem Steel in 1962. The NLRB overruled this precedent in WKYC-TV, Inc., 359 NLRB No. 30 (12/12/12).
In WKYC, the television station terminated the union check-off provisions in October 2010 after its labor contract with the union expired. The union brought an unfair labor practice charge. A hearing was held before an administrative law judge who found that the television station was free to unilaterally discontinue honoring the dues check-off provision when the contract expired, citing Bethlehem Steel. In an unusual move, however, the NLRB acting general counsel and the union filed exceptions to this decision, urging the full board to reverse this long-standing precedent.
Chairman Mark Gaston Pierce and members Richard F. Griffon, Jr. and Sharon Block stated that Bethlehem Steel and decisions which follow it "should be overruled to the extent they stand for the proposition that dues check-off does not survive contract expiration under the status quo doctrine." The majority opined that "requiring employers to honor dues check-off arrangements post-contract expiration is consistent with the language of the Act, its relevant legislative history, and the general rule against unilateral changes to terms and conditions of employment."
Board member Brian Hayes dissented, arguing that the Board majority failed to point to any evidence that the long standing Bethlehem precedent, allowing dues check off to be terminated after the contract expires, "has impeded collective bargaining or the peaceful resolution of labor disputes." Hayes wrote "it hardly advances collective bargaining to require that some portions of negotiated agreements – i.e., those favorable to the union – survive contract expiration, while others – those favorable to the employer – do not."
The new precedent will not be applied to pending cases because employers did not have adequate warning that the established precedent would change.
No surprise at all. This case serves as another example of an activist NLRB determined to tip the balance wherever it can in favor of a more pro-union agenda.
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