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The National Labor Relations Board (NLRB) has issued another precedent-shifting decision, the second under the Biden administration. Last week, the Board held that employers must continue to deduct union dues from workers’ paychecks even after a collective bargaining agreement (“CBA”) has expired.

The National Labor Relations Act (NLRA) generally prohibits employers from making any unilateral changes to the terms and conditions of an employee’s employment without negotiation with the union. This rule further requires employers to maintain the “status quo” even after a CBA’s expiration until a new agreement is reached or an impasse is reached through negotiations.

More than 60 years ago, the NLRB held that provisions of a CBA, which may impact the balance of power during negotiations, do not survive an expired CBA. Accordingly, employers could abandon dues checkoff provisions, meaning they would no longer have to deduct and remit union dues after the CBA expired, which is a provision nearly always requested by unions to include within the CBA.

The NLRB reversed this historic ruling under the Obama administration in 2015 and then reinstated it in 2019 during the Trump administration. The NLRB’s most recent decision revisits this and once again implements its 2015 ruling that checkoff provisions must continue even after a CBA expires.

What does this mean for employers?

First, it is important to note that the decision applies retroactively. If an employer has ceased to remit union dues because of an expired CBA, it should consider immediately reinstituting deductions. Otherwise, it may face an investigation by the NLRB into an unlawful labor practice.

Second, if a CBA expires in the future, employers should maintain the status quo by continuing to deduct and remit union dues.

Despite the NLRB’s recent decision, employers can avoid this issue by incorporating a term into the CBA expressing that the company will not deduct and remit union dues upon the expiration of the CBA. It is likely that the decision will be appealed in the future. We’ll be sure to keep you updated!

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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