Earlier this week, the Ninth Circuit Court of Appeals overturned for the second time a decision by the National Labor Relations Board, and held that two Las Vegas casinos violated the National Labor Relations Act by unilaterally terminating dues checkoff without first bargaining with the union over that decision. Local Joint Executive Bd v. NLRB (9th Cir 08/27/2008).
The employer argued that the parties’ collective bargaining agreement allowed it to end dues checkoff at the expiration of the agreement and the NLRB agreed; the Ninth Circuit, however, held that the contract language does not show a "clear and unmistakable waiver" of the unions’ right to bargain over ending dues checkoff. This was the second time this case was before the Ninth Circuit – the first time, the court remanded the case to the NLRB to "articulate a reasoned explanation" for its conclusion that dues-checkoff disputes should be excluded from the "unilateral change doctrine" recognized in NLRB v. Katz, 369 US 736 (1962).
The lesson for union employers: remember your obligation to bargain with the union in good faith before making any unilateral change to the terms and conditions of employment, unless there the union has clearly and unmistakenly waived its right to bargain over that change. Unilateral changes might get a pass from the current NLRB, but they are unlikely to be tolerated by the appellate courts.