Written by Anthony Amendola and Eric Engelman

As has become standard practice in our increasingly polarized nation, on October 3, the National Labor Relations Board (“NLRB”) again changed course on an issue of importance to labor and management. In Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 371 NLRB No. 160 (2022), the NLRB ruled that employers must now continue to honor dues check-off provisions in expired collective bargaining agreements (“CBA”). A dues check-off provision requires an employer to withhold union dues from represented employees’ paychecks and to remit those dues to the union.

The National Labor Relations Act (“NLRA”) generally prohibits employers from unilaterally changing represented employees’ terms and conditions of employment without first negotiating with their union. This rule generally requires an employer to maintain the “status quo” upon expiration of a CBA, until such time as a new CBA is agreed upon or the parties reach a valid impasse in collective bargaining negotiations.  However, more than 50 years ago, in Bethlehem Steel, 136 NLRB 1500 (1962), the NLRB held that a dues-checkoff provision, like other provisions that impact the balance of power during negotiations (such as a management’s rights clause and a no-strike/no-lockout clause) do not survive termination of the CBA. This longstanding rule was first reversed during the Obama administration in 2015, and then reinstated in 2019 during the Trump administration. The Valley Hospital decision reverts to the rule adopted in 2015, which allows dues-checkoff provisions to continue even after a CBA expires.  Significantly, the NLRB is applying this new ruling retroactively in all pending cases where the expiration of a dues-checkoff provision is at issue.

Unfortunately, this constant seesawing of national labor policy leaves employers, unions and employees without clear guidance upon which they can rely.