Last month the National Labor Relations Board issued a decision perceived to be very beneficial to organized labor, as it erased 50 years of precedent to hold that an employer can no longer unilaterally discontinue dues checkoff provisions after the expiration of a collective bargaining agreement. However, the Board might have unintentionally made it more difficult for unions to reach agreement with some employers on new contracts, thus promoting more industrial strife.

As we noted two weeks ago, in WKYC-TV, 359 NLRB No. 30 (2012), the Board reversed its decision in Bethlehem Steel, 136 NLRB 1500 (1962), as it relates to dues checkoff provisions based on “compelling statutory and policy reasons.” Finding that there was no statutory basis to exclude dues checkoff from the general rule that employers cannot make unilateral changes regarding mandatory subjects of bargaining, the Board ruled that dues checkoff, like other terms and conditions of an expired collective bargaining agreement, is part of the status quo that cannot be changed absent agreement by the union.

This development is significant as some employers will object to continuing dues checkoff during negotiations for a new collective bargaining agreement because it eliminates what has historically been a legitimate leverage point available to them. While unions ordinarily place high priority on these provisions, employers typically recognize they provide little benefit to operations while increasing administrative burdens. As a result, employers may give it a second thought now that the commitment will be more open-ended.

Moreover, and perhaps more importantly, the Board’s decision in WKYC-TV provides employers an easier path for bargaining to impasse in either first or successor contract negotiations given the recent decision by the U.S. Court of Appeals for the District of Columbia in Erie Brush & Manufacturing Corp. v. NLRB, Case. No. 11-1337 (D.C. Cir. Nov. 27, 2012).

As discussed in our analysis of Erie Brush, the NLRB found that the employer unlawfully refused to bargain with the union by claiming that there was an impasse. The primary issue leading to overall impasse in Erie Brush was the employer being “committed to an open shop,” and thus unwilling to agree to the union’s proposal on union security. On petition for review with the appellate court, the court vacated the NLRB’s order because the evidence “uniformly” supported the employer’s position that there was a bargaining impasse despite the fact that impasse existed on only two discrete issues:

Impasse on a single critical issue can create an impasse on the entire agreement. See CalMat Co., 331 NLRB 1084, 1097 (2000). A party asserting impasse based on a single issue must show that: first, a good-faith bargaining impasse actually existed; second, the single issue involved was critical; and third, “the impasse on this critical issue led to a breakdown in the overall negotiations.” Id. The Board does not dispute that Erie established the second CalMat factor: union security was a critical issue. See Board Decision at 2; Resp’t Br. at 26.

Although Erie Bush provides employers reluctant to bargain with a union an opportunity to create a bona fide impasse by insisting on an open shop, the tactic is very risky as the Board generally views an employer’s reluctance to agree to union security as evidence of bad faith bargaining. See Clarke Manufacturing, 352 NLRB 141 (2008) (finding that an employer’s submission, without a tenable explanation, of a regressive proposal to eliminate a union-security provision was unlawful under Section 8(a)(5) and (1)). Accordingly, the detrimental effect of Erie Bush, at least as perceived by organized labor, was somewhat limited–at least until the Board’s decision in WKYC-TV.

WKYC-TV now provides employers an additional path under Erie Bush to use a singular issue to create an overall impasse. Because some employers will want to secure elimination of dues checkoff as an economic weapon in subsequent negotiations, they now have a “tenable explanation” for being “committed” to proposals that either:

  1. do not provide for dues checkoff; or
  2. expressly provide that dues checkoff ceases immediately before or at the termination of the collective bargaining agreement.

Given that most unions will likely refuse to agree to either of those proposals, it certainly appears that a bona fide impasse may be more likely to result in future negotiations than before, which may in turn result in more strikes, lockouts, and other industrial strife. So even if the current Board was trying to reduce industrial strife by shifting some bargaining leverage back in organized labor’s favor, it remains uncertain whether WKYC-TV will actually achieve those results.