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Employers whose collective bargaining agreements are about to expire should pay close attention to this recent Ninth Circuit decision if you are in a Right to Work state.  The Court found that employers in Right to Work states may not unilaterally stop dues checkoff after the expiration of their collective bargaining agreements.  This decision overrules prior National Labor Relations Board (“the Board”) precedent and is different than the rule applied in non-Right to Work states. 

When a collective bargaining agreement (“CBA”) expires, the employer cannot make a unilateral change in the terms and conditions of employment.  Instead, the union and employer must negotiate over these issues and reach agreement or an impasse before any changes can be made.  There has been much litigation over what is and is not a term and condition of employment.  Generally, anything that benefits the employees is considered a term or condition of employment.  Wages and hours are some of the most concrete examples of ‘terms and conditions of employment’ but the list goes much further.   

A union security clause is a clause in a CBA which requires all employees in the bargaining unit to join the union or be fired.  The union security clause is usually followed by a dues checkoff clause, which requires the employer to automatically deduct the employee’s union dues from the paycheck and send them to the union.  Previously, the Board found union security clauses and dues checkoff clauses are not terms or conditions of employment (in both Right to Work and non-Right to Work states) and therefore an employer could unilaterally discontinue the dues checkoff after the CBA expired. 

Certain states, called Right to Work states, mandate that employees cannot be forced to join a union if their workplace is unionized.  Therefore, union security clauses are not allowed, and dues checkoff for everyone cannot be part of a CBA.  In this case, the CBA expired, and the employer stopped dues checkoff without first negotiating with the union.  The union argued the employer unilaterally changed a term or condition of employment.  The Court agreed, finding that in a Right to Work state, dues checkoff is a term or condition of employment because it directly benefits the employees.  So an employer in a Right to Work state cannot stop dues checkoff after expiration of the CBA without first bargaining with the union and reaching agreement or an impasse.  The Ninth Circuit overturned the Board’s decision and asked the Board to review the case again. 

The Ninth Circuit covers California, Nevada, Arizona, Idaho, Oregon, Washington, Montana, Alaska and Hawaii.  It is possible that other circuit courts will follow suit and the Board may even change its position given the Democratic majority of the current Board.  If your current union contract is about to expire, it is important to consult with legal counsel over what you can unilaterally change.  As you can see, the answer is not always intuitive. 

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.