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NLRB Decisions: Lincoln Lutheran of Racine

September 15, 2015

By Noah R. Jordan, Esq.

In Lincoln Lutheran of Racine, (362 NLRB No. 188), the Board addressed whether it is unlawful for an employer to cease checking off union dues after the expiration of a CBA.  The Board held that employers in fact are obligated to continue to check off union dues after a CBA expires as part of the same requirements to continue most other terms and conditions of employment under a “status quo” arrangement.  Unlike the Browning-Ferris decision, however, the Board limited this decision in that it will be applied only prospectively.

Since 2007, the Employer and Union involved in the case had been parties to a CBA that included a dues check off provision.  The parties’ Agreement expired in early 2013, shortly after which the employer discontinued dues check off for a period of 8 months.

It is well-established law that when a CBA expires and the parties have yet to reach a new agreement, the employer must continue all contractually-established terms and conditions of employment that are mandatory subjects of bargaining until agreement is reached or the parties bargain to lawful impasse.  This does not mean, however, that all terms and conditions survive expiration; this protection is not extended to those agreements that involve the contractual surrender of statutory or non-statutory rights by one of the parties.  Thus, the Board had to decide whether dues check off is included among those items that do survive.

The Board recognized dues check off to be a matter related to wages, hours, and other terms and conditions of employment and, therefore, a mandatory subject of bargaining.  In comparing dues check off to other voluntary check off agreements, such as employee savings accounts and charitable contributions, the Board held dues check off subject to surviving the contracts that establish it.  In support of this ruling, the Board noted that had Congress intended for dues check off to expire along with an expiring CBA, it would not make sense for employees to be informed of their right to revoke their check off authorization upon expiration of the contract.  Therefore, the Board ordered that such arrangements be treated the same as other terms and conditions of employment for purposes of the status quo rule.

Despite this ruling, the Board recognized that its decision overturned 50 years of legal precedent upon which employers had relied when negotiating CBAs.  Therefore, the Board decided that its ruling would be applied prospectively only, and that the complaint involved in the case, as well as all other pending similar cases, would be dismissed.

Why this decision is important for you: The significance of the Board’s ruling in this case obviously will come into play any time a CBA to which you are a party expires and status quo is applied during a period of negotiations over a new agreement.  If an employer with whom you are negotiating takes the position that it does not have to continue dues check off, you should demand that it continue to deduct union dues and you can cite this decision as definitive support of your position.  Failure by the employer to comply with your demand would make it appropriate for you to file a charge of unfair labor practice.

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