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The National Labor Relations Board Returns an Economic Weapon to an Employer’s Collective Bargaining Arsenal

In 2015, the Obama-era National Labor Relations Board (“NLRB”) issued a decision in Lincoln Lutheran of Racine,  362 NLRB 1655, providing that an employer’s obligation to “check off”, or deduct, union dues from the paychecks of union-member employees survived the expiration of the applicable collective bargaining agreement between the employer and union.  Accordingly, employers lost a key negotiating tool that they had held for some time.  Indeed, in the fifty-plus years before Lincoln Lutheran, unions would generally risk losing at least a part of their financial base if they allowed a cba to expire without first addressing the dues checkoff issue because they would then have to rely on union members to self-deduct – a challenging prospect at best, especially after the members received one or more paychecks that contained their full pay (i.e., pay that did not account for their union dues).  Lincoln Lutheran purported to eliminate this risk, holding that, like wages, hours, and other terms and conditions of employment, employers were legally required to continue dues checkoff following the expiration of any cba that had included the obligation.
In a significant win for employers, the current NLRB has now returned this tool.  On December 16, 2019, the Board issued a decision in Valley Hospital Medical Center, Inc., 368 NLRB No. 139, holding that employers generally have no obligation to continue union dues checkoff after the expiration of the applicable collective bargaining agreement.  As a result, employers are again in a position to use the threat of stopping dues checkoff as a means to obtain more favorable concessions from a union, or to actually stop dues checkoff under appropriate circumstances.      

If you have any questions regarding this decision or any other of the recent decisions issued by the NLRB, please feel free to contact me or any other member of DeWitt’s Employment Relations practice group.              

About the Author

John Gardner is an attorney practicing out of our Madison office. He is the Chair of the Labor & Employment Relations practice group. He is also a member of the Litigation practice group. Contact John by email or by phone at (608) 252-9322.

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