WHEN AN EMPLOYER’S COLLECTIVE BARGAINING OBLIGATIONS SURVIVE EXPIRATION OF THE CONTRACT
On December 20, 2012, the NLRB released its decision in WKYC, Inc., a case in which a union challenged the Board’s long-standing rule that an employer’s obligation to withhold union dues expires when the collective bargaining agreement expires.
Not surprisingly, the Board sided with labor in the case, holding that an employer must continue to withhold union dues even after an agreement expires, unless the employer can show that it has bargained to impasse with the union, or that the union has expressly waived its right to continue receiving dues.
As a practical matter, this ruling provides another example of the Board’s apparent inclination to alter the balance of collective bargaining in favor of labor. Without the worry of dues discontinuation, unions presumably will be emboldened when negotiating. Put another way, they may be more willing to endure the uncertainty that comes with an expiring contract knowing that the revenue stream will be intact.
However, for employers, this decision raises questions. For example, most states require written authorization prior to withholding dues. For employees whose authorization is timed to expire with the collective bargaining agreement, there is some possibility that continued withholdings beyond the expiration date will trigger legal challenges under state law.
Issues regarding the applicability of the WKYC, Inc. case in these circumstances – and the related questions about pre-emption which the decision presents – now loom large. Look for both employers and unions to take up these and other issues in the near future as a way of testing how far the Board’s decision in WKYC will go.