Unions commonly utilize clarification petitions to invoke accretion principles and try to bypass election procedures. However, the National Labor Relations Board’s recent decision in Recology Hay Road and Teamsters Local 315 illustrates how employers can avoid employee accretion into existing bargaining units by emphasizing the lack of interchange between bargaining unit employees and the non-bargaining unit employees at issue. Interchange occurs when employees alternate or transfer between positions.
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.
It’s a myth that Twinkies last forever. And just as these childhood staples will expire, it appears that the iconic brand behind them has also finished its run. Hostess filed for its second bankruptcy in January and has since been trying to come out from under a mountain of debt. These efforts came in the form of negotiating new contracts with members of the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union (BCTGM). Sadly, on Friday November 16, 2012, Hostess announced “It’s over,” and that it would be closing its doors and shutting down. The death knell for the financially struggling snack cake brand came on November 9th when members of BCTGM went on strike, effectively crippling Hostess. As reported by the Associated Press, the nationwide strike came after Hostess proposed a new union contract, which cut a “$100 million a year contribution to pension costs to workers to $25 million a year, in addition to wage cuts and a 17 percent reduction in health benefits.” The union rejected this offer, went on strike, and Hostess waved the white flag. Twinkie lovers felt a glimmer of hope on Monday November 20, when Hostess and the union attempted mediation to resolve the conflicts plaguing the company. Alas, mediation failed and Hostess has moved forward with its plan to liquidate. Hostess’s liquidation means the closure of 33 bakeries, 565 distribution centers, and 570 bakery stores nationwide, not to mention the thousands of jobs lost. In the aftermath, people are paying $100 for a box of Twinkies on EBay to preserve childhood memories. Remember…they don’t last forever.