As we previously observed here, no cases that were invalidated by the United States Supreme Court in Noel Canning v. NLRB remain for the National Labor Relations Board to decide.

However, not all of the decisions that were nullified have been reaffirmed. One of the more significant decisions that has not been reaffirmed is WKYC-TV, Inc., 359 NLRB No. 30 (2012). In that case, the Board held that “an employer, following contract expiration, must continue to honor a dues-checkoff arrangement established in that contract until the parties have either reached agreement or a valid impasse permits unilateral action by the employer.”

The decision overruled 50 years of Board precedent that employers, at the expiration of a collective bargaining agreement, may cease honoring a contractual dues-checkoff provision. However, after WKYC-TV was invalidated, the case was closed without a subsequent NLRB decision reaffirming its holding. According to the Board’s website, the reason the case was closed was “Dismissal Non-adjusted.”

What does this “Dismissal Non-adjusted” mean for employers? It means that Bethlehem Steel Co., 136 NLRB 1500 (1962), the decision that WKYC-TV overruled, is still good law.

Therefore, for the time being, employers may continue to follow Bethlehem Steel Co. It is likely that the Board, when presented with the appropriate case, will issue a decision consistent with WKYC-TV. Although the decision in WKYC-TV applied only prospectively, there is no guarantee that a new decision on the issue will similarly be applied prospectively.