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«Dues Check-Off Dreams Do Come True, They Do, They Do By Brian A. Powers AMERICAN BAR ASSOCIATION COMMITTEE ON THE DEVELOPMENT OF THE LAW UNDER THE ...»

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Id. citing Industrial Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 619 (3d Cir. 1963).

Id.

Hacienda II, 351 NLRB 504 (2007), vacated, Local Joint Executive Bd. of Las Vegas v. N.L.R.B., 540 F.3d 1072, (9th Cir. 2008).

Id.

Id.

Id. at 505.

Id.

Id. at 507.

Id.

Dues Check-Off Dreams Do Come True, They Do, They Do By Brian A. Powers On petition to the Ninth Circuit, the court again vacated the Board’s decision and remanded with instructions to the Board.85 The court examined the Board’s argument that the contractual language implied that the Union waived its right to dues check-off after expiration of the agreement.86 Recognizing the standard articulated by the Supreme Court in Metro. Edison Co. v. N.L.R.B., the court explained that the employer bears the burden of proving that waiver of a statutory right - such as dues check-off must be “clear and unmistakable.”87 Moreover, where the Board relies solely on language in a collective bargaining agreement in determining a party clearly and unmistakably waived a statutory right, Board precedent requires the agreement to explicitly state the provision will terminate.88 Notably, in the agreement at issue, the provision merely stated that it applied during the term of the Agreement.89 Accordingly, the court held that the Union did not “clearly and unmistakably” waive its right to protection from the Employer’s unilateral change to dues check-off.90 The court remanded with “instruct[ions to] the Board to explain the rule it adopted in Hacienda I, or abandon Hacienda I to adopt a different rule and present a reasoned explanation to support it.”91 For the second time, the Board accepted the Ninth Circuit’s remand.92 In Hacienda III, with a decisive fifth vote impossible after Member Becker recused himself, Chairman Liebman and Members Schaumber, Pierce, and Hayes deadlocked.93 Members Schaumber and Hayes voted to uphold the ALJ's decision and dismiss the Union's complaints, while Chairman Liebman and Member Pierce unsurprisingly voted to overturn the Board’s rule in Bethlehem Steel. Significantly, the Board’s established precedent prohibited an equally divided four-member board from offering a new Local Joint Executive Bd. of Las Vegas v. N.L.R.B., 540 F.3d 1072, 9th Cir., Aug. 27, 2008.

Id.

Id. at 1079; citing Metro. Edison Co. v. N.L.R.B., 460 U.S. 693 (1983).

Id. at 1080.

Id. at 1076.

Id. at 1082.

Id.

Hacienda III, 355 NLRB No. 154 (2010), vacated, Local Joint Executive Bd. of Las Vegas v. N.L.R.B., 657 F.3d 865 (9th Cir. 2011).

Id.

Dues Check-Off Dreams Do Come True, They Do, They Do By Brian A. Powers explanation for its existing rule or overruling precedent.94 Thus, the Board decided to follow its existing precedent and affirm the ALJ’s dismissal of the Union’s Complaint.95 Less than two months after the Board’s decision in Hacienda III, the Ninth Circuit predictably granted the Union’s petition for review a third and final time.96 The court was clearly out of patience with the Board, explaining in the introduction to its opinion

that:

[T]he Board's decision in Hacienda III is arbitrary and capricious because the Board provides no explanation for the rule it follows in dismissing the Union's complaint. We further conclude that, although we must show deference to the Board in its promulgation of labor policy, a third open remand is inappropriate in this case because the Board, after more than fifteen years, has reached a deadlock on the merits and continues to be unable to form a reasoned analysis in support of its ruling.97 Furthermore, the court determined, “upon consideration of the merits,” that the employers’ unilateral termination of dues check-off prior to bargaining to impasse violated Section 8(a)(5).98 Accordingly, the Ninth Circuit remanded to the Board to determine the appropriate relief in light of its decision.99 The court’s decision in Local Joint Executive Bd. of Las Vegas v. N.L.R.B.

(Hacienda III) rested substantially on its conclusion that the Board lacked justification “for carving out an exception to the unilateral change doctrine for dues-checkoff in the absence of union security.”100 The court’s based its conclusion on the “crucial distinction” between the Board’s seemingly defensible reasoning in Bethlehem Steel and ostensibly flawed reasoning in Hacienda III.101 In Bethlehem Steel, the court pointed out, the collective bargaining agreement required dues check-off pursuant to the union security agreement.102 Conversely, in Hacienda III, the agreement lacked a Id. (explaining “It is the tradition of the Board that the power to overrule precedent will be exercised only by a three-member majority of the Board.1 In the absence of a three-member Board majority to overrule established precedent, we reluctantly join our colleagues in affirming the judge's dismissal of the complaint allegations. In an appropriate case, we would consider overruling Bethlehem Steel and its progeny, including Tampa Sheet Metal, 288 NLRB 322, 326 fn. 15 (1988)”).

Id.

Local Joint Executive Bd. of Las Vegas v. N.L.R.B., 657 F.3d 865 (9th Cir. 2011).

Id. at 867.

Id.

Id.

Id. at 875.

Id.

Id.

Dues Check-Off Dreams Do Come True, They Do, They Do By Brian A. Powers union-security provision and each employee signed a request permitting the Employer to deduct union dues from their paycheck.103 The court emphasized the consequence





of this pivotal difference:

[U]nlike in Bethlehem Steel, where the unilateral cessation of duescheckoff merely terminated a contractual arrangement that individual employees and employers alike were compelled to accept, the unilateral cessation of check-off by the Employers in this case stripped employees of a contractual right that they had expressly exercised by requesting dues-checkoff.104 In light of this difference, the court underscored that dues check-off authorization – unrelated to a union security clause - was a mandatory subject of bargaining; thus, it survived the expiration of the collective bargaining agreement.105 More broadly, the court held that an employer cannot unilaterally eliminate a dues check-off provision after the collective bargaining agreement expires in right to work states which prohibit union security agreements.106 Despite the Ninth Circuit’s decision in Hacienda III, over the next fourteen months the Board refused to overturn its long-standing precedent established in Bethlehem Steel.107 In Hargrove Electric Co., Inc., the Board affirmed an ALJ’s findings that, inter alia, the employers did not violate Section 8(a)(5) and 8(a)(1) by ceasing to deduct union dues when the contract expired.108 The employers notified the union prior to contract expiration that it intended to terminate the agreement.109 Eleven days after the contract expired and ten days after the employer sent a ten-day termination notification, the employers terminated the agreement and unilaterally implemented changes to the employees working conditions and terms.110 Amongst other changes, the employers Id.

Id.

Id. at 876.

Id.

See Hargrove Electric Co., Inc., 358 NLRB No. 147 (2012); See also C & G Distrib. Co., Inc. & Gen. Truck Drivers, Warehousemen, Helpers, Sales & Serv. & Casino Employees, Teamsters Local Union No. 957, Affiliated with the Int'l Bhd. of Teamsters, 2012 WL 5494946 (N.L.R.B. Div. of Judges Oct. 17, 2012); Windsor Skyline Care Ctr. & SEIU United Healthcare Workers - W. Windsor Monterey Care Ctr. & SEIU United Healthcare Workers W. Windsor Country Drive Care Ctr. & SEIU United Healthcare Workers - W. Windsor the Ridge Rehab. Ctr. & SEIU United Healthcare Workers - W., 2012 WL 5941223 (N.L.R.B. Div. of Judges Nov. 26, 2012).

Id.

Id. at **11.

Id.

Dues Check-Off Dreams Do Come True, They Do, They Do By Brian A. Powers stopped deducting union dues from employees’ paychecks.111 In the ALJ’s decision, she acknowledged 1) the Ninth Circuit’s holding in Local Joint Executive Bd. of Las Vegas v. N.L.R.B. (Hacienda III), and 2) that Texas is a right-to-work state.112 However, the ALJ explained that the Ninth Circuit’s decision did not require her to overrule fifty years of Board precedent. Rather, the ALJ found, and the Board agreed, that the Board’s decision in Hacienda III remained “the outstanding current Board law with respect to the lawfulness of an employer's cessation of dues deductions after the expiration of a contract.”113 Yet, less than three months after the Board’s decision in Hargrove Electric Co., Inc., the Board renounced its commitment to Bethlehem Steel and determined that an employer must continue to check-off union dues after a contract expires unless the parties reach an agreement or bargain to impasse.114 In WKYC-TV, the union filed a complaint alleging the employer violated Sections 8(a)(5) and 8(a)(1) after the employer ceased honoring the dues-checkoff arrangement without providing notice to the Union.115 The ALJ appropriately applied the Board’s longstanding rule from Bethlehem Steel, finding that the Employer’s conduct did not violate the Act. However, the Union and General Counsel excepted to the ALJ’s findings and asked the Board to reject the ALJ’s determination - and, in the process, abandon fifty years of Board precedent.116 Remarkably, the Board agreed with the Union and General Counsel, holding that “requiring employers to honor dues-checkoff arrangements postcontract expiration is consistent with the language of the Act, its relevant legislative history, and the general rule against unilateral changes in terms and conditions of employment.” As discussed infra, the Board’s decision in WKYC-TV resulted in several foreseeable, immediate effects.

Id. at **12.

Id. at **18.

Id.

WKYC-TV, Inc. & Nat'l Ass'n of Broad. Employees & Technicians, Local 42 a/w Communications Workers of Am., AFL-CIO, supra note 20.

Id. at **2.

Id.

Dues Check-Off Dreams Do Come True, They Do, They Do By Brian A. Powers Section 3. WKYC-TV’s immediate effects on dues check-off provisions after a collective bargaining agreement expires.

To understand the immediate effects of the Board’s decision in WKYC-TV, labor practitioners need only read several key paragraphs littered in Parts IV, V, and VI in the majority’s opinion. Specifically, readers should focus on where the Board discusses 1) the independent relationship between union-security agreements and dues check-off provisions, and 2) the prospective effect of its decision.

Significantly, the Board’s decision in WKYC-TV went a step further in protecting a union’s right to receive post-contract dues than the Ninth Circuit’s decision in Local Joint Executive Bd. of Las Vegas v. N.L.R.B. (Hacienda III). Unlike the Ninth Circuit, the Board did not limit its decision to collective bargaining agreements between parties in right-to-work states.117 The union and employer’s collective bargaining agreement in WKYC-TV covered work in Ohio, a non-right-to-work state, and the collective bargaining agreement contained a union-security agreement.118 Throughout its opinion, the Board stressed a fundamental flaw in the Bethlehem Steel Board’s reasoning; namely, the dues check-off provision terminated with the union-security provision because “the dues-checkoff arrangement ‘implemented the union-security provisions.’”119 In contrast to the Bethlehem Steel Board, the Board in WKYC-TV decreed that dues check-off provisions are fundamentally different from union-security agreements because employees must voluntarily elect to allow dues check-off, even where the contract contains a union-security clause.120 The Board also noted that precedent established subsequent to Bethlehem Steel confirms its assertion. Specifically, the Board referenced its decision in American Nurses' Assn. that union security and dues checkoff are “distinct and separate matters.”121 Thus, where a state permits union-security clauses and the collective bargaining agreement in fact contains a union-security clause, unilateral termination of a dues check-off provision after contract expiration still Id. at *7-8.

Id. at fn 21, fn 5.

Id. at *7.

Id.; citing Bluegrass Satellite, Inc., 349 NLRB 866, 867 (2007) (“By contrast, an employee's participation in dues checkoff is entirely voluntary; “employees cannot be required to authorize dues checkoff as a condition of employment,” even where a contract contains a union-security agreement”).

Id. at *7; American Nurses' Assn., 250 NLRB 1324, 1324 fn. 1 (1980).

Dues Check-Off Dreams Do Come True, They Do, They Do By Brian A. Powers violates the Act so long as the dues check-off provision is independent of the unionsecurity clause.

The Board’s decision in WKYC-TV underscores the importance of correctly wording dues check-off authorization provisions to survive contract expiration. Most importantly, the language in the collective bargaining agreement should make it clear that the dues check-off provision is independent of the union-security agreement. The dues check-off provision should not reference the union security clause or the obligation to maintain membership in the union for it to have effect. In addition, language emphasizing the voluntary nature of dues deduction is useful and consistent with the Board’s decision in WKYC-TV. 122 Thus, the dues check-off provision should state that deductions are limited to employees who authorize it. In essence, drafters are well advised to take care to use appropriate language to separate the dues check-off provision from the union-security agreement.

Drafters will also benefit by using language that indicates dues-deduction serves an independent purpose. For instance, the collective bargaining agreement could include language stating, “the employer will check-off dues from employees’ paychecks in order to encourage administrative convenience.” Alternatively, the agreement could state that “dues check-off is necessary to limit the solicitation of dues payment during working hours or on company property.” To be sure, drafters can get creative in adopting any language that emphasizes an independent reason for dues-deduction.



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