The NLRB continues to overrule long-standing case law in key areas. Last week, in particular, two major determinations of the NLRB issued which will no doubt be tested before the courts of appeal. One, involving the Joint Employer Doctrine for which this Firm issued a client alert, can be reviewed here; the second, involved Dues Check-Off, which will be the primary topic of this blog posting. As some of you may recall, the Board had previously overturned the long-standing case law as to dues check-off expiration, established long ago by Bethlehem Steel, but as a result of the ruling in Noel Canning that decision was vacated. Hence this is the second rendition of the Board’s efforts to overturn Bethlehem Steel.

In a nutshell, for over 50 years the Board has established that, during the collective bargaining process, once the contract expires a number of different provisions expire along with the contract, unlike most terms and conditions of employment which must continue post-expiration until the parties reach impasse or agreement. There are a number of policy and practical reasons why these exceptions take place and dues check-off is no different. What is particularly difficult to understand is why the Board is overturning long-established precedent in this area. There was no cry of inherent unfairness by any particular group regarding this principle of law. Indeed, both sides, both labor and management, were quite comfortable with the status quo. When it comes to collective bargaining there is no question that having pre-established “rules of the game” is vitally important for both parties. Modifying a key provision of these rules, 50 years after the rule was established, for no apparent rational reason, is just difficult to understand. It will now take time, effort, and expense, by all parties, to deal with this change to the collective bargaining process. Moreover, no doubt litigation in this area will increase and it may very well result in more work stoppages. So why is an agency whose primary purpose is to eliminate labor disputes creating more labor unrest by its actions, because that is surely the outcome of this change in case law. Indeed the impact is even more evident with all the changes taking place for many months with the current Board, be it the joint employer status, the new representation rules, the new handbook guidelines, or the myriad of other changes that have taken place. Legitimate changes in the law that are nuances to pre-established law I understand, but the wholesale destruction of policies and procedures long established simply makes no sense and, again, will simply create more labor strife, not labor peace. This is partially true where the Board has replaced long established bright line tests with nebulous standards, such as the case of the new joint employer standard. So, I ask, why the changes?