50-year-old Precedent Overruled Again: Union Dues Checkoff Now Survives Expiring CBA: NLRB | Practical Law

50-year-old Precedent Overruled Again: Union Dues Checkoff Now Survives Expiring CBA: NLRB | Practical Law

In Lincoln Lutheran of Racine, the National Labor Relations Board (NLRB) overturned longstanding precedent that collective bargaining agreement (CBA) terms requiring an employer to deduct union dues from represented employees do not survive the expiration of the CBA requiring those deductions.

50-year-old Precedent Overruled Again: Union Dues Checkoff Now Survives Expiring CBA: NLRB

by Practical Law Labor & Employment
Published on 02 Sep 2015 • USA (National/Federal)
In Lincoln Lutheran of Racine, the National Labor Relations Board (NLRB) overturned longstanding precedent that collective bargaining agreement (CBA) terms requiring an employer to deduct union dues from represented employees do not survive the expiration of the CBA requiring those deductions.
On August 27, 2015, in Lincoln Lutheran of Racine, the panel (Board) heading the NLRB's judicial functions again overturned long-standing precedent that collective bargaining agreement (CBA) terms requiring employers to deduct union dues from represented employees do not survive the expiration of the CBA requiring those deductions (see Legal Update, 50-year-old Precedent Overruled: Union Dues Checkoff Now Survives Expiring CBA: NLRB; Bethlehem Steel, 136 N.L.R.B. 1500 (1962)). The change in law will apply prospectively. (362 N.L.R.B. slip op. 188 (Aug. 27, 2015).)
The Board's 2012 decision that overruled, in substantial part, its 1962 Bethlehem Steel decision, was invalidated under the Supreme Court's decision in NLRB v. Noel Canning (134 S.Ct. 2550 (2014); see also Article, Expert Q&A on Noel Canning and Its Aftermath and Legal Update, Supreme Court Holds 2012 Recess Appointments to the NLRB Were Invalid, Effectively Invalidates 20-Months of NLRB Decisions).
Lincoln Lutheran of Racine does not overrule the holding in Bethlehem Steel that union security clauses, including union shop clauses and agency shop clauses do not survive CBA expiration. Employers with expiring CBAs should:
  • Be prepared to continue dues checkoff arrangements after CBA expiration.
  • Recognize that:
    • they may lose some bargaining leverage because unions will continue to receive dues automatically while negotiations for a renewal CBA are on-going; and
    • union security clauses providing for a union shop or agency shop still must cease when CBAs expire.