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Deducting Union Dues After A Collective Bargaining Agreement Expires

By Daniel G. Fritz - McMahon Berger P.C.

October 25, 2018

An administrative law judge (“ALJ”) for the National Labor Relations Board (“NLRB”) recently held that Valley Hospital Medical Center could rely upon language in an expired collective bargaining agreement (“CBA”) and cease deducting union dues because the language stated the dues-checkoff requirements “shall be continued in effect for the term of this Agreement.” The ALJ relied upon Hacienda II, 351 NLRB 504, 505 (2007), where the NLRB determined the employer lawfully ceased deducting dues after the contract expired because the dues-checkoff provision contained “clear language linking dues-checkoff to the duration of the agreement” and the union “thereby waived any right to the continuation of dues checkoff as a term and condition of employment” after expiration of the agreement.

While the Valley Hospital Medical Center decision undoubtedly will be appealed, it creates a glimmer of hope following the NLRB’s 2015 decision in Lincoln Lutheran of Racine, 362 NLRB No. 188 (2015). In Lincoln, the NLRB in a 3-2 decision reversed nearly fifty (50) years of precedent by overturning Bethlehem Steel, 136 NLRB 1500 (1962), which stood for the proposition that dues-checkoff provisions that implement union security type provisions generally terminate upon contract expiration. Under Lincoln, employers may not cease deducting dues “until the parties have either reached a successor collective bargaining agreement or a valid overall bargaining impasse permits unilateral action by the employer,” which is extremely difficult.

In December 2017, the General Counsel for the NLRB issued a General Counsel Memorandum identifying some significant legal issues, which overruled precedent and involved at least one or more dissents over the last eight years. The General Counsel stated these significant legal issues must be submitted to the NLRB Division of Advice, and one such issue included whether “the dues check-off obligation survives expiration of the collective-bargaining agreement.” Accordingly, Valley Hospital Medical Center could provide the NLRB an opportunity to re-evaluate and potentially overturn Lincoln. The attorneys at McMahon Berger will be closely watching this case and will keep you posted on any developments.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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