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Decisions of the National Labor Relations Board (“NLRB”) often reflect the sitting President’s views on union-management relations. We saw this play out in the recent past when the Obama-era NLRB reversed decades of established precedent, only to see many of those cases overruled by the more employer friendly NLRB members appointed by former President Trump. With President Biden having announced that he is the most pro union President in U.S. history, it’s not surprising that the current iteration of the NLRB is moving decisively to undo many of the key pro-employer precedents established while President Trump was in office.
In the latest of an onslaught of recent pro-union decisions from the Biden-era NLRB, the Board recently reversed course again and ruled that employers must now continue to deduct and remit union dues pursuant to a dues check-off clause after their union contract expires. The decision overturned a Trump-era NLRB decision on the subject and returns the law to what it was in 2015 when President Obama was in office.
Under federal law, an employer has a duty to maintain the “status quo” after the expiration of a union contract. This means the employer must refrain from making unilateral changes to subjects that impact wages, hours, and working conditions. As the terms of a union contract represent the “status quo,” with few exceptions, most provisions in a union contract continue in effect even after the union contract expires. This duty to maintain the status quo continues in until the parties either reach a new agreement or bargain to impasse.
As noted, the NLRB has established a handful of exceptions. CBA provisions that do not survive the contract’s expiration have included union security, no-strike no-lockout, arbitration, and management rights clauses. For nearly 50 years, a dues check-off clause was among those exceptions as well until the Obama-era NLRB’s Lincoln Lutheran decision in 2015. That decision overruled nearly 50 years of precedent to require employers to continue deducting and remitting union dues in accordance with a dues -check-off clause after the expiration of a CBA.
In 2019, the Trump-era NLRB restored dues check- off as being among the few clauses that do not continue once the union contract expires because the deduction and remittance of union dues is an obligation created exclusively by the union contract. There is no statutory obligation to remit union dues without a contract requiring an employer to do so. The union appealed the Board’s decision to the Ninth Circuit who, agreeing with the union’s arguments, vacated and remanded the NLRB’s decision in 2020.
On remand from the Ninth Circuit, the NLRB appointed by President Biden returned to law to the rule first announced by the Obama- era NLRB, i.e., that dues check-off clauses continue in effect after the union contract has expired. Furthermore, the NLRB held that the remittance of union dues is related to wages, hours, and working conditions and thus subject to the duty to bargain.
This new ruling means that unionized employers with dues check-off clauses in their union contract must ensure that they continue to deduct and remit union dues even after the CBA expires. Further, being that we now have one of the most union-friendly NLRBs in recent memory, employers must exercise extreme caution when making decisions in reliance on controversial areas of NLRB law that may have been established under more employer friendly NLRB members.
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