On December 12, 2012, the NLRB reversed longstanding precedent in WKYC-TV, Inc., holding that dues checkoff provisions continue in force after the labor contract expires.  (“Dues checkoff”  is the act of deducting union dues from employees’ wages and remitting them to the union.)  This decision overruled Bethlehem Steel, 136 N.L.R.B. 1500 (1962), which for the prior 50-years held that a dues checkoff provision expires with the expiration of the collective bargaining agreement containing it.  The Board likened dues checkoffs to other mandatory subjects of bargaining, such as wages and hours.  Thus, an employer cannot unilaterally modify a dues checkoff provision without prior notice and a meaningful opportunity to bargain without violating Section 8(a)(5) of the NLRA.   Although there are other mandatory bargaining terms that do not survive an agreement’s expiration – think arbitration provisions and no-strike clauses – dues checkoffs do not involve voluntary waivers of rights.  In fact, dues checkoffs are more akin to other voluntary checkoff agreements, such as employee savings accounts, which create “administrative convenience” and “survive the contracts that establish them.”

With this ruling, the Board may have “significantly altered the playing field that labor and management have come to know and rely on,” as pointed out by the lone dissenter.  The dissent argued that commonsense and fifty years of success should compel Bethlehem Steel to stand.  The Board rejected the dissent’s argument, claiming its view is both “compelled by the Act” and “more faithful to its language and policies.”  We’ll be on the look-out for a challenge to this new rule in 2013.

Even though this decision overrules fifty years of NLRB precedent, the Board will only be applying the new rule prospectively and it will not apply to pending cases.  Such a thing would be entirely unjust.