The National Labor Relations Board has yet again changed its position on the question of whether an employer may unilaterally cease union dues checkoff after collective bargaining agreement (“CBA”) expiration without first bargaining to impasse. In its latest decision in the Valley Hospital case, the Board answered the question with a resounding “no.” The decision reversed a 2019 decision in the same case by a Trump Board, which overturned a 2015 decision in the Lincoln Lutheran case by an Obama Board, which itself overturned precedent established in the 1962 Bethlehem Steel case.
In Lincoln Lutheran, the Board held that dues checkoff is subject to the general rule prohibiting unilateral changes in most terms and conditions of employment after CBA expiration. In reversing that holding in the 2019 Valley Hospital opinion, the Board found that dues checkoff belongs in the limited category of mandatory subjects of bargaining that are exclusively created by the contract and are enforceable only for the duration of the contractual obligation created by the parties. On the union’s petition for review, the U.S. Court of Appeals for the Ninth Circuit found that the Board failed to adequately explain its departure from precedent that is inconsistent with the “contract creation” rationale.
On remand from the Ninth Circuit court, the Board in the present decision returned to the rule of Lincoln Lutheran. The Board found that “a dues-checkoff provision properly and reasonably belongs in the broad category of mandatory bargaining subjects that Section 8(a)(5) of the [National Labor Relations Act] bars employers from changing unilaterally after the expiration of a contract, rather than in the small handful of exceptions to the rule.” Following CBA expiration, held the Board, an employer must continue to honor a dues-checkoff arrangement established in the CBA until either the parties have reached a successor CBA or a valid overall bargaining impasse permits unilateral action by the employer.
The Board further concluded that its holding will apply retroactively to all pending cases.
The impact of the decision on employers, including construction employers, with 9(a) CBAs could be significant, as it prevents employers from using a potentially persuasive tool in bargaining. However, the impact on construction employers with 8(f) CBAs is uncertain. Because employers with 8(f) agreements have not ongoing duty to bargain after CBA expiration, the obligation to continue to honor dues checkoff provisions may not apply. Still, it’s possible that the Board – particularly the present Board – would deem such an employer to have a duty to bargain in good faith to impasse after expiration of even an 8(f) CBA once the employer chooses to begin bargaining. (For information on the difference between 9(a) and 8(f) CBAs, go to AGC’s Labor & HR Topical Resources library and select the main category “Collective Bargaining” and subcategory “Collective Bargaining Agreements: 8(f) vs. 9(a).” AGC-member login is required for access to the resources.)