December 19, 2012
Dues Check-Off Now Survives Contract Expiration
Today, the NLRB released its decision (3-1) in WKYC-TV, in which reversed the long-standing rule Bethelem Steel that agreements for dues checkoffs will not continue after the contract expires. The new rule will not apply to pending cases. The essence of the majority decision is that because dues checkoffs are mandatory subjects of bargaining, the normal Katz rule for such topics--that they must continue while a new contract is being negotiated--should apply unless there is a reason for an exception; the majority found that there wasn't. In making this conclusion, the majority distinguished clauses that involved the waiver of rights, like no-strike clauses. The majority also criticized Bethelem Steel for treating dues checkoff provisions the same as union security clauses (in part because of its reading of Sections 8(a)(3) and 302(c)).
Member Hayes dissented, arguing that there was no evidence that the old rule wasn't working. Further, he disagreed with the majority's statutory interpretation. He also stressed that limiting dues checkoffs to an active collective-bargaining agreement was more consistent with the concept of voluntary unionism.
This last point of Member Hayes is important and may be what prompted this case. Although I don't know, I wonder whether the Board was at least partially motivated by the Supreme Court's recent dues cases and their more anti-union view of voluntarism (although there had been earlier moves to reverse this precedent, most recently in the split Hacienda case in 2010). Perhaps this case will be part of a larger answer that the Board will try to make. We'll have to see.
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Connecting dues checkoff with "voluntary unionism" is a red herring. Dues checkoff is simply a mechanism that union members use to pay their union dues through payroll deduction. It is no different than a payroll deduction to pay a health insurance premium or into a retirement account. Union security -- which requires employees to maintain membership as a condition of employment (as limited by Beck) -- expires with the CBA, per the requirements of Section 8(a)(3). Union members who wish to discontinue dues checkoff are privileged to do so. Hayes' argument about the conflict with voluntary unionism is premised on the assumption that workers are not bright enough to understand their rights, even though they have previously been notice of these rights. "It is unlikely that employees will recall the revocation language in their authorizations, and less likely still that they will understand that their obligation to pay dues as a condition of employment terminated as a matter of law once the contract expired."
Posted by: James A.W. Shaw | Dec 20, 2012 8:38:07 AM
I agree with James. As the majority suggests, bad wine does not get better with time, and this wine was bitter from its inception.
Posted by: Michael Duff | Dec 20, 2012 10:12:16 PM
It is amazing that it took almost 15 years and three trips to the 9th Circuit to get to this result.
Posted by: Josh | Dec 21, 2012 1:15:05 PM