LABOR BOARD REQUIRES EMPLOYERS TO CONTINUE CHECK-OFF OF UNION DUES EVEN AFTER CONTRACT EXPIRATION

Written on May 18, 2016.

For over 50 years, the National Labor Relations Board (NLRB) ruled that an employer may cease honoring union dues-check off arrangements after the expiration of the collective bargaining agreement, without prior bargaining with the union. The theory has always been that the union dues check-off is a contractual provision only, much like the no-strike clause and arbitration provisions of a collective bargaining agreement that expire when the contract expires. All this has now changed with the December ruling of the NLRB in WKYC-TV, 359 NLRB No. 30.

Three Democratic appointees on the Board, all with union backgrounds, ruled that the NLRB has been wrong all these years, and that the union dues check-off should be treated like other provisions of the labor agreement that set forth terms and conditions of employment, which the law has traditionally required be the subject of bargaining prior to changes being made. According to the ruling, before an employer may discontinue this check-off provision, the employer and union must agree to such changes or the parties must first bargain to impasse over the employer’s proposals to eliminate or discontinue the check-off provisions. The Republican appointee on the Board dissents, noting that the NLRB knows well that an employer’s ability to cease dues check-off upon contract expiration has long been recognized as a legitimate economic weapon in bargaining for a successor agreement.

The majority does note two situations in which check-offs can be discontinued by employees outside the normal annual ten-day escape period set forth in union check-off authorization forms. First, employees may revoke their check-off authorizations at any time after contract expiration, assuming no new contact is in effect. Second, the Board states that its ruling does not preclude parties from expressly agreeing in a union contract that, following contract expiration, the employer may unilaterally discontinue honoring a dues check-off arrangement.