Mid-December is always a time where i can expect significant decisions to issue from the NLRB.  In recent years, we saw the Board, among other decisions, abandon the much criticized "micro unit" standard and the equally criticized handbook violation standard.

December is also one of the main times of year that a Board Fellow member'south term ends.  December 16 was the last day of Member Lauren McFerran's term.  Every bit of December 17, the Board will take a bare quorum of three members (Chairman Band, Members Emanuel and Kaplan), all of whom are Republican.  At that place has been no indication that the two vacancies on the Board will be filled anytime before long, especially since 2020 is an election yr.

In Valley Medical Center, Inc. d/b/a Valley Hospital Medical Heart, 368 NLRB No. 139 (2019), the NLRB restored precedent that had been in place for over fifty years prior to information technology beingness reversed in a 2015 decision.  This case restores the brilliant-line rule that employers may unilaterally finish deducting dues upon the expiration of the contract.

Factual Background

A "checkoff" provision in a commonage bargaining agreement provides that the employer agrees to deduct spousal relationship dues from the pay of employees who have voluntarily signed-on for deductions, regardless of whether that employee is a union member, until the employee revokes such authorization as specified in the agreement.

In Valley Medical Heart, the CBA betwixt Valley Hospital and the Local Joint Executive Lath (Culinary Workers Local 226 and Bartenders Local 165) in Las Vegas, Nevada had been expired for roughly 13 months when, on Feb 1, 2018, the employer stopped deducting Wedlock ante.  The expired understanding independent a checkoff provision that, by its terms, "continued in effect for the term of the Agreement."  The Authorization form also stated that it was valid "during the term of the Agreement."  While the agreement also had a "Marriage Shop" article, Nevada is a "right to work" state and the agreement too contained language that the Marriage Store provision would not exist applicable if it conflicted with state police force.  Accordingly, the Marriage Shop clause was void.

NLRB Upends 50-Year Precedent in 2015

In 1962, the Board issued Bethlehem Steel, 136 NLRB 1500 (1962), holding that unilateral termination of matrimony-security and dues-checkoff provisions in an expired agreement was not only lawful, but mandatory pursuant to Section 8(a)(3) of the National Labor Relations Human activity. Id. at 1502.  The Board noted that ceasing dues deduction was another class of economic warfare, only similar a strike or lockout. The Lath applied this dominion for more than a half century until a new Board majority in 2015 abruptly reversed grade in Lincoln Lutheran of Racine, 362 NLRB 1655 (2015).

There, the Board held that while some contractual provisions can be lawfully unilaterally changed upon CBA expiration (e.chiliad., no-strike, arbitration, and management-rights clauses), dues checkoff provisions were matters of "administrative convenience" and survived the term of the CBA. Id. at 1658.  Further, the fact that dues checkoff provisions were created past contract did not mean the provisions expire with the contracts that created them.

Majority Opinion Restoring Bethlehem Steel

In Valley Medical Centre, a bulk comprised of Chairman Ring and Members Kaplan and Emanuel overturned Lincoln Lutheran and returned to Bethlehem Steel, focusing primarily on the contractual nature of ante-checkoff provisions.  Though the Board agreed that ante-checkoff is a mandatory subject of bargaining, the Board acknowledged that in that location are some mandatory subjects that an employer tin can unilaterally terminate.  The Lath majority concluded that not all mandatory subjects of bargaining were equal.  The relevant distinction between the two types of mandatory subjects lies between terms that tin exist from the outset of the bargaining relationship and terms that cannot be until the parties affirmatively contract to them.  The former, such as terms related to wages, alimony and welfare benefits, hours, working weather, and numerous others, are not as inextricably tied to an Agreement as the latter subjects similar ante checkoff, no-strike, and mandatory arbitration provisions.  The latter group are bailiwick to statutory obligations merely for the duration of a contract establishing them. Valley Medical Center, at *4.

The Lath held that its return to Bethlehem Steel was warranted noting that Lincoln Lutheran conflicted with NLRA statutory bargaining principles.  A rule restricting employers from unilaterally terminating ante-checkoff provisions undermined labor relations stability because parties negotiated under the Bethlehem Steel rule for more than than five decades and were unprepared for the reversal.  Further, the Board noted that this sudden shift was unsupported by whatever facts – e.g., the majority in Lincoln Lutheran did non provide any statistics demonstrating how many employers actually chose to unilaterally cease ante-checkoff provisions.

Finally, the bulk decided to apply the revived rule to all pending cases.

1 of Fellow member McFerran's Final Dissents

Handed downward on the final twenty-four hour period of her five-year term, Valley Medical Center marked one of Fellow member McFerran'due south final published dissents.  In her dissent, Member McFerran framed the Bulk'south determination – along similar lines as other recent NLRB decisions – as permitting employers to "dispense with bargaining and [] brand unilateral changes in employees' terms and weather condition of employment." Valley Medical Center, at *ix.  In her view, the Majority failed to demonstrate how a rule that allows employers to unilaterally human activity serves to encourage bargaining.

Member McFerran took issue with the contractual distinction described above, arguing that naught stops parties from setting upward voluntary dues checkoff prior to reaching a commonage bargaining agreement, and, unlike union-security provisions, there is no statutory requirement that dues checkoff provisions be included in a collective bargaining agreement to be lawful. Id. at *12.  While the majority viewed Valley Medical Centre equally a render to lengthy precedent, the dissent repeatedly insisted that that precedent had been flawed from its inception, and there was thus no justification to revert to it.

Takeaways

The Lath'southward decision restores an economic weapon taken abroad from employers in 2015.  There is nothing in the determination that says unions may not collect dues, only that, post-expiration, the employer does not accept to practise it for them.  The return to longstanding precedent likely will issue in more than successor agreements existence reached without expiration.

The decision also provides employers with more clarity every bit to the definition of mandatory subjects of bargaining.  Not all mandatory subjects are created equal and some, similar union security and checkoff, are statutory and others are contractual creatures that once granted may be revoked upon expiration of the understanding.

It is very likely more than pregnant decisions volition exist issued in the coming days and we will keep you posted.

Tags: ante checkoff, NLRA, NLRB