In an unusual move, an NLRB administrative law judge has disregarded Board law and held that an employer that stopped dues deductions after the expiration of its collective bargaining agreement did not commit an unfair labor practice, dismissing an unfair labor practice complaint.  Lincoln Lutheran of Racine, 30-CA-11099 (JD-49-14 August 11, 2014) Relying on the United States Supreme Court’s decision in NLRB v. Noel Canning, which held the Board lacked the quorum necessary for the issuance of decisions from January 4, 2012 through August 4, 2013, the judge concluded he could not follow the Board’s precedent-setting dues check-off decision in WKYC-TV, 359 NLRB No. 30 (issued in December 2012), and instead should rely on Board  law as it existed previously.

While NLRB administrative law judges normally must adhere to existing Board law, the Judge in Lincoln Lutheran of Racine  refused to apply WKYC-TV.  In that case, the Board found that “an employer’s obligation to check-off union dues continues after expiration of a collective bargaining agreement that establishes such an arrangement.”    However, since WKYC-TV was issued during the quorum-less period, when the NLRB was without authority to render decisions under Noel Canning, the Judge decided the decision was not “valid precedent.”   Instead, the Judge applied Bethlehem Steel, the decision that WKYC-TV overruled.  Bethlehem Steel held that an employer does not violate the NLRA by ceasing to follow the dues check-off provision after expiration of the collective bargaining agreement.  Bethlehem Steel, 136 NLRB 1500 (1962).  Accordingly, the Judge dismissed the complaint.

It remains to be seen whether other ALJs will follow suit when faced with the question of whether or not to follow Board decisions invalidated by Noel Canning.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.