Lincoln Lutheran of Racine

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 188 (N.L.R.B. 2015)

362 NLRB No. 188
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Lincoln Lutheran of Racine and Service Employees
International Union Healthcare Wisconsin,
SEIU-HCWI. Case 30–CA–111099
August 27, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, JOHNSON, AND MCFERRAN
The issue in this case is whether the Respondent un-
lawfully ceased checking off union dues after its contract
with the Charging Party Union expired.1 The judge dis-
missed the complaint, citing Bethlehem Steel, 136 NLRB
1500 (1962), remanded on other grounds sub nom. Ship-
building v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. de-
nied 375 U.S. 984 (1964), which held that an employer’s
obligation to check off union dues ends when its collec-
tive-bargaining agreement with the union expires. The
judge did not rely on WKYC-TV, Inc., 359 NLRB No. 30
(2012), which overruled Bethlehem Steel and its progeny,
and held that an employer’s obligation to check off union
dues survives contract expiration. As the judge noted, at
the time of the Decision and Order in WKYC-TV, the
composition of the Board included two persons whose
appointments to the Board had been challenged as consti-
tutionally infirm. On June, 26, 2014, the United States
Supreme Court issued its decision in NLRB v. Noel Can-
ning, 134 S.Ct. 2550 (2014), holding that the challenged
appointments to the Board were not valid.
In light of the Supreme Court’s decision in NLRB v.
Noel Canning, we reexamine in this case whether an em-
ployer’s obligation to check off union dues from em-
ployees’ wages terminates upon expiration of a collec-
tive-bargaining agreement. Having considered the issue
de novo, we hold today that, like most other terms and
conditions of employment, an employer’s obligation to
check off union dues continues after expiration of a col-
lective-bargaining agreement that establishes such an
arrangement. However, because we find that it would be
unjust to apply our new holding in this case or in other

1 On August 11, 2014, Administrative Law Judge Paul Bogas issued
the attached decision. The General Counsel and the Charging Party
filed exceptions and supporting briefs, and the Respondent filed an-
swering briefs. The National Right to Work Legal Defense Foundation,
Inc. (NRWLDF) filed a brief amicus curiae. The Charging Party filed
reply briefs.
The National Labor Relations Board has considered the decision and
the record in light of the exceptions and briefs and has decided to af-
firm the judge’s rulings, findings, and conclusions only to the extent
consistent with this Decision and Order.
pending cases, we shall apply our holding only prospec-
tively.
Background
Since at least 2007, the Respondent has collectively
bargained with Service Employees International Union
Healthcare Wisconsin, SEIU-HCWI. The Union and the
Respondent have entered into successive collective-
bargaining agreements, the most recent of which was
effective by its terms from June 1, 2011, to December
31, 2012. The parties agreed to extend the terms of that
agreement to February 19, 2013. The agreement includ-
ed a dues-checkoff provision in which the Respondent
agreed to deduct union initiation fees and membership
dues from the paychecks of participating unit employees
and to transmit those funds to the Union.2
On December 17, 2012, the Respondent and the Union
began negotiations for a successor to the expiring con-
tract. On February 12, 2013, the Respondent informed
the Union that it intended to terminate the dues-checkoff
provision effective February 19, the date the contract was
to expire. However, at the next bargaining session on
February 18, the Respondent stated that dues-checkoff
and union-security provisions would expire after the next
bargaining session. The Respondent discontinued dues
checkoff on March 19, 2013. The Respondent resumed
dues checkoff on November 21, 2013.

2 The provision states as follows:
(a) Upon receipt from a team member, Worksite Leader and/or Union
Representative of a lawfully executed written authorization, Lincoln
Lutheran agrees, until such authorization is revoked in accordance
with its terms, to deduct the initiation fees and regular monthly Union
membership dues of such team members from the team member’s
first two paychecks of each month and to promptly remit such deduc-
tions to the Union, the list outlining dues payments and initiation fees
will be provided to the Union by electronic mail The Union will noti-
fy Lincoln Lutheran, in writing, of the exact amount of such regular
monthly membership dues to be deducted. Team members shall be
provided Union authorization forms at time of hire along with other
appropriate forms of employment. The authorization provided for by
this Section shall conform to all applicable Federal and State laws.
The Union agrees to indemnify and hold Lincoln Lutheran
harmless against any and all claims, suits, orders, or judgments
brought or issued against Lincoln Lutheran as a result of any ac-
tion taken or not taken by Lincoln Lutheran pursuant to any writ-
ten communication from the Union under the provisions of this
article.
(b) The Employer agrees to deduct and transmit to SEIU COPE, $
_____ per pay period, from the wages of those team members who
voluntarily authorize such contributions on the forms provided for that
purpose by SEIU HEALTHCARE WISCONSIN. These transmittals
shall occur for each payroll period. A list of names shall be sent via
electronic mail/media of those team members for whom such deduc-
tions have been made. The list will include the amount deducted for
each team member.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Discussion
In holding that an employer has an obligation to con-
tinue dues checkoff after the expiration of a collective-
bargaining agreement establishing that arrangement, we
overrule Board law set forth in Bethlehem Steel and its
progeny, which held that the employer’s obligation ceas-
es when the contract expires. Although this rule is
longstanding, the Board had never provided a coherent
explanation for it, as the Ninth Circuit noted in refusing
to enforce the Board’s decision in Hacienda Resort Hotel
& Casino, 355 NLRB 742 (2010), a case in which the
Board deadlocked on whether to overrule Bethlehem
Steel. Local Joint Executive Board of Las Vegas v.
NLRB, 657 F.3d 865 (9th Cir. 2011). On review, the
Ninth Circuit observed that the Board “continue[d] to be
unable to form a reasoned analysis in support of” the
Bethlehem Steel rule and, applying its own analysis, the
court found the Bethlehem Steel rule unsupportable in the
case before it. 657 F.3d at 867.
After careful consideration, we find sound reasons to
overrule Bethlehem Steel and adopt the rule we articulate
today. Although our dissenting colleagues suggest that
it is improper for the Board, as opposed to Congress, to
change the Bethlehem Steel rule regarding dues checkoff,
the Board “is free to change its mind on matters of law
that are within its competence to determine, provided it
gives a reasoned analysis in support of the change.” Au-
to Workers Local 1384 v. NLRB, 756 F.2d 482, 492 (7th
Cir. 1985). Thus, the Supreme Court has made clear that
“a Board rule is entitled to deference even if it represents
a departure from the Board’s prior policy,” as long as it
is “rational and consistent with the Act.” NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 787 (1990).
Accord: NLRB v. Ironworkers Local 103, 434 U.S. 335,
350–351 (1978). For the reasons articulated below, we
find that requiring employers to honor dues-checkoff
arrangements after contract expiration serves the Act’s
goal of promoting collective bargaining, consistent with
longstanding Board precedent proscribing postcontract
unilateral changes in terms and conditions of employ-
ment.
I.
The declared policy of the Act, as stated in Section 1,
is to “encourag[e] the practice and procedure of collec-
tive bargaining” and protect the “full freedom” of work-
ers in the selection of bargaining representatives of their
own choice. Section 8(a)(5) makes it an unfair labor
practice for an employer “to refuse to bargain collective-
ly with the representatives of his employees.” It has long
been established that an employer violates Section
8(a)(5) when it unilaterally changes represented employ-
ees’ wages, hours, and other terms and conditions of em-
ployment without providing their bargaining representa-
tive prior notice and a meaningful opportunity to bargain
about the changes. NLRB v. Katz, 369 U.S. 736, 742–
743 (1962). As the Supreme Court explained in Katz,
such unilateral action “amount[s] to a refusal to negotiate
about the affected conditions of employment under nego-
tiation, and must of necessity obstruct bargaining, contra-
ry to the congressional policy.” Id. at 747.
Under this rule, an employer’s obligation to refrain
from unilaterally changing these mandatory subjects of
bargaining applies both where a union is newly certified
and the parties have yet to reach an initial agreement, as
in Katz, and where the parties’ existing agreement has
expired and negotiations have yet to result in a subse-
quent agreement, as in this case. Litton Financial Print-
ing Division v. NLRB, 501 U.S. 190, 198 (1991). In the
latter circumstances, an employer must continue in effect
contractually established terms and conditions of em-
ployment that are mandatory subjects of bargaining, until
the parties either negotiate a new agreement or bargain to
a lawful impasse. Id. at 198–199.
An employer’s decision to unilaterally cease honoring
a dues-checkoff arrangement established in an expired
agreement obstructs collective bargaining just as other,
prohibited unilateral changes do. Under settled Board
law, widely accepted by reviewing courts,3 dues checkoff
is a matter related to wages, hours, and other terms and
conditions of employment within the meaning of Section
8(a)(5) and (d) of the Act and is therefore a mandatory
subject of bargaining. See, e.g., Tribune Publishing Co.,
351 NLRB 196, 197 (2007), enfd. 564 F.3d 1330 (D.C.
Cir. 2009).4 As the Supreme Court explained long ago,
an employer’s unilateral action regarding its employees’
terms and conditions of employment, by definition, frus-
trates the statutory objective of establishing terms and
conditions of employment through collective bargaining
and interferes with employees’ Section 7 rights by em-

3 See Steelworkers v. NLRB, 390 F.2d 846, 849 (D.C. Cir. 1967),
cert. denied 391 U.S. 904 (1968); NLRB v. Reed & Prince Mfg. Co.,
205 F.2d 131, 136 (1st Cir. 1953), cert. denied 346 U.S. 887 (1953);
Caroline Farms Division of Textron, Inc. v. NLRB, 401 F.2d 205, 210
(4th Cir. 1968); NLRB v. J. P. Stevens & Co., 538 F.2d 1152, 1165 (5th
Cir. 1976); Operating Engineers Local 571 v. Hawkins Construction
Co., 929 F.2d 1346, 1350 (8th Cir. 1991).
4 Mandatory subjects of bargaining contained in a collective-
bargaining agreement that survive contract expiration include a wide
range of terms and conditions of employment, e.g., union bulletin
boards, hiring halls, work rules, seniority in assignments. Beverly
Health & Rehabilitation Servicesv. NLRB, 317 F.3d 316, 322 (D.C. Cir.
2003); NLRB v. Southwest Security Equipment Corp., 736 F.2d 1332,
1334, 1337–1338 (9th Cir. 1984), cert denied 470 U.S. 1087 (1985);
NLRB v. Unbelievable, Inc., 71 F.3d 1434, 1439 (9th Cir. 1995); L & L
Wine & Liquor Corp., 323 NLRB 848, 852–853 (1997)
3
LINCOLN LUTHERAN OF RACINE
phasizing to employees that there is no need for a bar-
gaining agent. Katz, supra, 369 U.S. at 744; May De-
partment Stores Co. v. NLRB, 326 U.S. 376, 385 (1945).5
An employer’s unilateral cancellation of dues checkoff
when a collective-bargaining agreement expires both
undermines the union’s status as the employees’ collec-
tive-bargaining representative and creates administrative
hurdles that can undermine employee participation in the
collective-bargaining process. Cancellation of dues
checkoff eliminates the employees’ existing, voluntarily-
chosen mechanism for providing financial support to the
union. By definition, it creates a new obstacle to em-
ployees who wish to maintain their union membership in
good standing. This is significant, because employees
who fail to take proactive steps to maintain their mem-
bership in the face of this new administrative hurdle lose
their right to participate in the union’s internal affairs,
including matters directly related to the negotiations,
such as the choice of a bargaining team, setting bargain-
ing goals, and strike-authorization and contract-
ratification votes.6 Such a change also interferes with the
union’s ability to focus on bargaining, by forcing it to
expend time and resources creating and implementing an
alternate mechanism for dues collection during a critical
bargaining period. Finally, an employer that unilaterally
cancels dues checkoff sends a powerful message to em-
ployees: namely, that the employer is free to interfere
with the financial lifeline between employees and the
union they have chosen to represent them.
Because unilateral changes to dues checkoff under-
mine collective bargaining no less than other unilateral

5 Our dissenting colleagues maintain that dues checkoff is less im-
portant to unions than it once was, because “unions now have more
options for collecting union dues without the employer’s assistance
than at any other time in history” (emphasis in original). Correct or
not, that claim is irrelevant to the legal issue presented here. Dues
checkoff is indisputably a term and condition of employment for pur-
poses of the duty to bargain under Sec. 8(a)(5). If our colleagues are
correct about the relative administrative convenience of checkoff, then
the importance of the issue in bargaining presumably would be in de-
cline—but our colleagues cite no evidence that this is so, and, indeed,
they make dire predictions about the effect on collective bargaining of
the new rule adopted today.
6 As the Supreme Court has observed:
[A] union makes many decisions that “affect” its representation of
nonmember employees. It may decide to call a strike, ratify a collec-
tive-bargaining agreement, or select union officers and bargaining rep-
resentatives.
. . . .
[T]he [National Labor Relations] Act allows union members to con-
trol the shape and direction of their organization, and “[n]on-union
employees have no voice in the affairs of the union.”
NLRB v. Financial Institution Employees Local 1182, 475 U.S. 192,
205 (1986) (reversing Board decision requiring that nonmembers be
permitted to vote in union’s affiliation election).
changes, the status quo rule should apply, unless there is
some overriding ground for an exception. As the Katz
Court observed, an employer’s unilateral change “will
rarely be justified by any reason of substance.” 369 U.S.
at 747. We see no such reason here.7
It is true that a few contractually established terms and
conditions of employment—arbitration provisions, no-
strike clauses, and management-rights clauses—do not
survive contract expiration, even though they are manda-
tory subjects of bargaining. In agreeing to each of these
terms, however, parties have waived rights that they oth-
erwise would enjoy in the interest of concluding a collec-
tive-bargaining agreement, and such waivers are pre-
sumed not to survive the contract. See, e.g., Hilton-
Davis Chemical Co., 185 NLRB 241, 242 (1970) (no
postexpiration duty to honor contractual agreement to
arbitrate because agreement “is a voluntary surrender of
the right of final decision which Congress has reserved to
the[ ] parties,” characterizing arbitration as “a consensual
surrender of the economic power which the parties are

7 To the extent that our dissenting colleagues argue that an employ-
er’s unilateral cessation of dues checkoff must be treated by the Board
as a permissible economic weapon, they run afoul of Supreme Court
and Board precedent. The Katz Court explained that while the Board is
not “empowered . . . to pass judgment on the legitimacy of any particu-
lar economic weapon used in support of genuine negotiations,” the
Board “is authorized to order the cessation of behavior which is in
effect a refusal to negotiate, or which directly obstructs or inhibits the
actual process of discussion, or which reflects a cast of mind against
reaching agreement”—such as a unilateral change in terms and condi-
tions of employment. 369 U.S. at 747 (emphasis added). Simply put,
“unilateral action is not a lawful economic weapon.” Daily News of
Los Angeles, 315 NLRB 1236, 1242 (1994), enfd. 73 F.3d 406 (D.C.
Cir. 1996), cert. denied 519 U.S. 1090 (1997). “To condone such a
proposition,” in the words of the District of Columbia Circuit, “would
make a mockery of the bargaining process.” Daily News of Los Ange-
les v. NLRB, 73 F.3d at 414.
We also reject our colleagues’ related assertion that the bargaining
process is somehow facilitated by permitting employers to unilaterally
eliminate dues checkoff when a contract expires. The dissent’s argu-
ment boils down to “random speculation”—of precisely the type that
the dissent disdains—suggesting that giving employers free rein to
make unilateral changes in dues checkoff will reduce employers’ incen-
tive to lock out workers during difficult negotiations, and/or that deny-
ing employers the ability to cease checkoff will make routine bargain-
ing more difficult because employers will feel compelled to bargain for
such authority. The dissent offers no empirical evidence to support
either of these speculative assertions. Certainly, a lockout is a more
consequential tool for employers in difficult negotiations than the elim-
ination of dues checkoff, and it is also possible that some employers
may feel that it is in their interest to seek the elimination of dues
checkoff. But the need to improve employers’ bargaining options in
either of these scenarios is not an argument for authorizing a unilateral
change that is otherwise inconsistent with the policies of the Act. Cf.
Daily News of Los Angeles, supra, 315 NLRB at 1242–1243 (rejecting
argument that where employer’s lockout would have been lawful under
Sec. 8(a)(3), unilateral decrease in wages and benefits should be per-
mitted under Sec. 8(a)(5)).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
otherwise free to utilize”); Indiana & Michigan Electric
Co., 284 NLRB 53, 58 (1987) (“because an agreement to
arbitrate is a product of the parties’ mutual consent to
relinquish economic weapons, such as strikes or lock-
outs, otherwise available under the Act to resolve dis-
putes . . . the duty to arbitrate . . . cannot be compared to
the terms and conditions of employment routinely per-
petuated by the constraints of Katz”)8; Litton Financial
Printing, supra, 501 U.S. at 199 (“in recognition of the
statutory right to strike, no-strike clauses are [also] ex-
cluded from the unilateral change doctrine”); Beverly
Health & Rehabilitation Services, 335 NLRB 635, 636
(2001) (“[T]he essence of [a] management-rights clause
is the union’s waiver of its right to bargain. Once the
clause expires, the waiver expires, and the overriding
statutory obligation to bargain controls.”), enfd. in rele-
vant part 317 F.3d 316 (D.C. Cir. 2003).9
Unlike no-strike, arbitration, and management-rights
clauses, a dues-checkoff provision in a collective-
bargaining agreement does not involve the contractual
surrender of any statutory or nonstatutory right by a party
to the agreement. Rather, as the courts have recognized,
such a provision simply reflects the employer’s agree-
ment to establish a system for employees who elect to
pay their union dues through automatic payroll deduc-
tion, as a matter of administrative convenience to a union
and employees.10 Payments via a dues-checkoff ar-
rangement are similar to other voluntary checkoff agree-
ments, such as employee savings accounts and charitable
contributions, which the Board has recognized also cre-
ate “administrative convenience” and, notably, survive
the contracts that establish them. Quality House of

8 In Litton Financial Printing, supra, the Supreme Court approved
the Board’s decision to exempt arbitration agreements from Katz,
agreeing that the exemption “is grounded in the strong statutory princi-
ple, found in both the language of the NLRA and its drafting history, of
consensual rather than compulsory arbitration.” 501 U.S. at 200 (em-
phasis added).
9 As we discuss below, union-security clauses do not survive con-
tract expiration because the proviso to Sec. 8(a)(3) of the Act limits
such provisions to the term of the contracts containing them. Bethle-
hem Steel, supra.
10 As the Fifth Circuit has explained, union-security agreements are
governed by a section of the Act totally removed from the section
governing dues checkoff, and ... have a totally different purpose ....
[D]ues checkoff . . . far from being a union security provision, seems
designed as a provision for administrative convenience in the collec-
tion of union dues.
NLRB v. Atlanta Printing Specialties & Paper Products Union, 523
F.2d 783, 786 (5th Cir. 1975). See Food & Commercial Workers Dis-
trict Union Local One v. NLRB, 975 F.2d 40, 44 (2d Cir. 1992); An-
heuser-Busch, Inc. v. Teamsters Local 822, 584 F.2d 41, 43 (4th Cir.
1978); Associated Builders & Contractors v. Carpenters Vacation &
Holiday Trust Fund, 700 F.2d 1269, 1277 (9th Cir. 1983), cert. denied
464 U.S. 825 (1983).
Graphics, 336 NLRB 497, 497 fn. 3 (2001).11 In light of
the Board’s treatment of these similar checkoff proce-
dures, it seems anomalous to hold that they survive con-
tract expiration, but that dues-checkoff arrangements,
which directly assist employees in their voluntary efforts
to support their designated bargaining representatives
financially, do not.12
Nothing in Federal labor law or policy, meanwhile,
suggests that dues-checkoff arrangements should be
treated less favorably than other terms and conditions of
employment for purposes of the status quo rule. That
includes Section 302 of the Taft-Hartley Act, which, at
the very least, creates no obstacle to finding that an em-
ployer violates the Act by unilaterally discontinuing dues
checkoff after contract expiration.13 Section 302(c)(4),
an exception to the prohibition on employer payments to
unions in Section 302(a) of the Act, specifically permits
dues checkoff and further states, “Provided, That the
employer has received from each employee, on whose
account such deductions are made, a written assignment
which shall not be irrevocable for a period of more than
one year, or beyond the termination date of the applica-
ble collective agreement, whichever occurs sooner” (em-
phasis added).14 The plain terms of this provision indi-
cate that Congress contemplated that a dues-checkoff
arrangement could continue beyond the life of the collec-
tive-bargaining agreement establishing it, as it contains

11 See also King Radio Corp., 166 NLRB 649, 653 (1967), enfd. 398
F.2d 14 (10th Cir. 1968) (employer violated Sec. 8(a)(5) where, follow-
ing union’s election win, it unilaterally canceled its practice of permit-
ting employees to purchase savings bonds through payroll deductions).
12 We reject our dissenting colleagues’ suggestion that an employ-
ee’s dues-checkoff authorization is a waiver of the Sec. 7 right to re-
frain from supporting a labor organization and is therefore analogous to
cases where the Board has created exceptions to the status quo rule.
Properly understood, an employee’s voluntary execution of a dues-
checkoff authorization is an exercise of Sec. 7 rights, not a waiver of
such rights. When an employee authorizes other types of checkoff
provided for by a collective-bargaining agreement, he is exercising a
right under the agreement—and thus engaging in protected, concerted
activity. See generally NLRB v. City Disposal Systems, 465 U.S. 822
(1984). Exercising that right does not mean waiving the corresponding
right to refrain from engaging in protected concerted activity, not least
because Sec. 302(c)(4) guarantees that an employee may revoke dues-
checkoff authorization when the contract expires.
13 Although the Board is not responsible for enforcing Sec. 302,
“neither does the statute bar the Board, in the course of determining
whether an unfair labor practice has occurred, from considering argu-
ments concerning Sec[.] 302 to the extent they support, or raise a de-
fense to, unfair labor practice allegations.” BASF Wyandotte Corp.,
274 NLRB 978, 978 (1985), enfd. 798 F.2d 849 (5th Cir. 1986). Ac-
cord: NLRB v. Oklahoma Fixture Co., 332 F.3d 1284, 1287 (10th Cir.
2003) (en banc) (concluding that the Board’s interpretation of Sec. 302
insofar as it affects labor law issues is entitled to “some deference,”
provided that the Board’s interpretation is reasonable and “not in con-
flict with interpretive norms regarding criminal statutes”).
14 This is the only provision in the Act that regulates dues checkoff.
5
LINCOLN LUTHERAN OF RACINE
no language making dues-checkoff arrangements de-
pendent on the existence of a collective-bargaining
agreement. Rather, the only document necessary for a
legitimate dues-checkoff arrangement, under the unam-
biguous language of Section 302(c)(4), is a “written as-
signment” from the employee authorizing deductions.15
Had Congress intended for dues-checkoff arrangements
to automatically expire upon contract expiration, there
would have been no need to say that employees can re-
voke their checkoff authorizations at contract expiration
because there would be nothing left thereafter for an em-
ployee to revoke.16 Further, the proviso to Section
302(c)(4) is concerned only with an individual employ-
ee’s right to withdraw his checkoff authorization; noth-
ing therein suggests that Congress intended to permit
employers to unilaterally revoke checkoff arrange-
ments.17

15 As discussed in more detail later in this decision, the Act’s treat-
ment of dues-checkoff arrangements is in sharp contrast to its treatment
of union-security agreements. Sec. 8(a)(3) of the Act conditions the
life of a union-security agreement on the term of the collective-
bargaining agreement that establishes it.
16 The District of Columbia Circuit and the Ninth Circuit have
agreed with this interpretation of Sec. 302(c)(4). See Tribune Publish-
ing, supra, 564 F.3d 1330; Local Joint Executive Board of Las Vegas,
supra, 657 F.3d 865. In Local Joint Executive Bd., the Ninth Circuit
held that there is “nothing in the NLRA that limits the duration of dues-
checkoffs to the duration of a CBA.” Id. at 875. The court described
Sec. 302(c)(4) as “surplusage” if Congress intended dues checkoff to
terminate upon the expiration of a contract. Id. In Tribune Publishing,
the District of Columbia Circuit reasoned that Sec. 302 “does not re-
quire a written collective bargaining agreement” for dues checkoff to be
lawful, but merely an employee’s “written consent that is revocable
after a year.” 564 F.3d at 1335.
We are cognizant of conflicting circuit court decisions on this issue,
some of which are cited by the Respondent on brief. See, e.g., U.S.
Can Co. v. NLRB, 984 F.2d 864, 869–870 (7th Cir. 1993); McClatchy
Newspapers, Inc. v. NLRB, 131 F.3d 1026, 1030 (D.C. Cir. 1997), cert.
denied 524 U.S. 937 (1998). For the reasons discussed above, we
respectfully disagree with those decisions (most of which relied in part
on Bethlehem Steel). Moreover, neither the Seventh Circuit in U.S.
Can Co. nor the District of Columbia Circuit in McClatchy Newspapers
was presented with the issue of whether dues checkoff survives contract
expiration. Nor, significantly, was the Supreme Court in Litton Finan-
cial Printing, supra; the Court merely noted that it was the Board’s
position that checkoff did not survive. 501 U.S. at 199.
17 Further support for our interpretation of Sec. 302(c)(4) is found in
its legislative history. Sec. 302(c)(4) was enacted in 1947 as part of the
Taft-Hartley Amendments to the Act. Senator Taft, Chairman of the
Senate Labor Committee, spoke in support of this amendment and
explained its purpose as it related to the then-prevailing industry prac-
tice concerning dues checkoff. Clearly, Senator Taft was of the view
that Sec. 302(c)(4) permitted dues checkoff to continue indefinitely
until revoked by an individual employee:
If [an employee] once signs such an assignment [authorizing dues
checkoff] under the collective-bargaining agreement, it may continue
indefinitely until revoked, and it may be irrevocable during the life of
the particular contract, or for a period of 12 months. That, I think, is
substantially in accord with nine-tenths of all check-off agreements,
Congress’ treatment of employer payments to employ-
ee trust funds further illustrates that Congress contem-
plated that dues-checkoff arrangements could survive
contract expiration. In addition to exempting dues
checkoff, Section 302(c) exempts a variety of trust fund
payments from the general prohibition against employer
payments to unions. Pertinently, Section 302(c)(5)–(8)
provides that this exemption applies only if “the detailed
basis on which such payments are made is specified in a
written agreement with the employer” (emphasis added).
Congress’ explicit decision to condition the lawfulness of
trust fund payments on a “written agreement with the
employer”—but the conspicuous absence of this re-
quirement in Section 302(c)(4)—is evidence that Con-
gress did not intend the viability of a dues-checkoff ar-
rangement to depend on the existence of an unexpired
collective-bargaining agreement.18
Moreover, while Section 302(c)(5)–(8) conditions the
lawfulness of trust fund payments on the existence of a
“written agreement,” the law is clear that under Katz, an
employer’s obligation to make these payments does not
terminate upon expiration of a collective-bargaining
agreement that establishes that obligation. See Laborers
Health & Welfare Trust Fund for Northern California v.
Advanced Lightweight Concrete Co., 484 U.S. 539, 544
fn. 6 (1988) (citing, inter alia, Peerless Roofing Co. v.
NLRB, 641 F.2d 734 (9th Cir. 1981)). To the contrary,
the “written agreement” requirement in Section
302(c)(5)–(8) is satisfied by an expired collective-
bargaining agreement establishing trust fund payments,
together with the underlying trust agreements. Id. at 736;
Made 4 Film, Inc., 337 NLRB 1152, 1152 fn. 2 (2002).
An employer accordingly has an obligation, pending ne-
gotiations, to honor contractually established trust fund
payments until the parties have reached a successor
agreement or a valid impasse. See Advanced Light-
weight Concrete, 484 U.S. at 544 fn. 6. Thus, even if
Section 302(c)(4) could be read as making dues-checkoff
arrangements dependent on the existence of a collective-
bargaining agreement, parity of reasoning would require
a finding that dues-checkoff arrangements can survive
the expiration of such an agreement.

and simply prohibits a check-off made without any consent whatever
by the employees.
93 Cong.Rec. 4876 (1947), reprinted in 2 NLRB, Legislative History of
the Labor Management Relations Act, 1947, at 1311 (1948) (emphasis
added).
18 See Russello v. U.S., 464 U.S. 16, 23 (1983) (“[W]here Congress
includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or exclu-
sion.”).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II.
As the foregoing discussion makes clear, the policies
of the Act strongly support a finding that dues checkoff
should be included with the overwhelming majority of
terms and conditions of employment that remain in effect
even after the contract containing them expires. We now
turn to the Board’s contrary holding in Bethlehem Steel.
The principal issues before the Board in Bethlehem
Steel were whether the employer had violated Section
8(a)(5) by unilaterally ceasing to observe and implement
both the union-security and the dues-checkoff provisions
of the parties’ expired contract. The Board first held—
quite correctly—that both union security and dues
checkoff involve wages, hours, and terms and conditions
of employment that are mandatory subjects of bargain-
ing. 136 NLRB at 1502. Even so, the Board held that
the employer acted lawfully in unilaterally ceasing to
honor the contractual union-security clause. In reaching
that conclusion, the Board relied on the proviso to Sec-
tion 8(a)(3), which states in relevant part that “nothing in
this Act . . . shall preclude an employer from making an
agreement with a labor organization . . . to require as a
condition of employment membership therein.” The
Board found that because the proviso explicitly condi-
tions the legitimacy of a union-security agreement on the
existence of a contract, parties can impose a union-
security agreement only “[s]o long as such a contract is
in force.” Id. Thus, once a contract expires so, too, does
a union-security agreement established in that contract.
As the Board explained, when an employer, following
contract expiration, refuses to honor a union-security
agreement established in that contract, the employer acts
“in accordance with the mandate of the Act,” and thus
does not violate Section 8(a)(5). Id. This finding, com-
pelled by the Act’s plain language, is not in dispute to-
day.
The Bethlehem Steel Board’s treatment of dues check-
off stands on a different footing. The Board found that
because of “[s]imilar considerations,” dues-checkoff ar-
rangements, like union security, also do not survive con-
tract expiration. Id. In the Board’s view, the dues-
checkoff arrangement “implemented the union-security
provisions” of the parties’ contract, and therefore the
union’s right to checkoff, like its right to impose union
security, was “created by the contracts and became a
contractual right which continued to exist so long as the
contracts remained in force.” Id. In essence, then, the
Board appeared to posit that union-security agreements
and dues-checkoff arrangements are so similar or inter-
dependent that they must be treated alike: because the
Act mandates termination of union-security agreements
following contract expiration, so too must a dues-
checkoff arrangement terminate. The Board further
found that the language of the checkoff clause—“the
Company will, . . . so long as this Agreement shall re-
main in effect, deduct from the pay of such Employee
each month . . . his periodic Union dues for that month”
—linked the employer’s checkoff obligation with the
duration of the contract. Id.19
The Bethlehem Steel Board’s reasoning is flawed in
several respects. First, the Board ignored Section
302(c)(4) —the only provision of the Act that addresses
dues checkoff—which clearly contemplates that checkoff
normally does survive the expiration of a collective-
bargaining agreement. Second, the Board apparently
reasoned that because the checkoff provisions in the con-
tract “implemented” the union-security provisions, the
proviso to Section 8(a)(3) dictated that dues checkoff, as
well as union security, expired upon contract termina-
tion. If so, the Board’s finding is a non sequitur, because
the fact that dues checkoff normally is an arrangement
created by contract simply does not compel the conclu-
sion that checkoff expires with the contract that created
it.20 Although the contracts in Bethlehem Steel contained
both union-security and dues-checkoff provisions, that is
by no means true of all collective-bargaining agreements.
Parties have the option of negotiating either without the
other: they may agree to union security, but not to dues
checkoff, and vice versa.21
Third, the Bethlehem Steel Board mistakenly ignored
that the provisos to Section 8(a)(3) and to Section
302(c)(4)—enacted by the same Congress at the same
time—treat union security and dues checkoff quite dif-
ferently. The language of the 8(a)(3) proviso makes

19 See Quality House of Graphics, supra, 336 NLRB at 511 (adopt-
ing, without comment, judge’s interpretation of Bethlehem Steel’s
rationale that “union-security and dues-checkoff arrangements are so
interrelated, that to enforce dues checkoff in the absence of a contract
would constitute a violation of Sec[.] 8(a)(3) which requires a contract
for the enforcement of union security, even though Sec[.] 8(a)(3) does
not explicitly mention dues checkoff”).
20 As shown, unlike no-strike, arbitration, and management-rights
clauses, a dues-checkoff provision in a collective-bargaining agreement
does not involve the contractual surrender of any statutory or
nonstatutory right by a party to the agreement.
21 The independence of union-security agreements from dues-
checkoff provisions is illustrated most clearly in “right-to-work” States,
which, pursuant to Sec. 14(b), bar union-security agreements. Dues-
checkoff arrangements exist in these States, even though union-security
clauses are prohibited. Notably, that was the circumstance in Tampa
Sheet Metal Co., 288 NLRB 322 (1988). There, the Board held, with-
out explanation, that a dues-checkoff arrangement did not survive con-
tract expiration, even though union security was prohibited under a
State “right-to-work” law. Id. at 326 fn. 15. The facts of Tampa Sheet
Metal demonstrate the fallacy of Bethlehem Steel’s premise that dues
checkoff “implements” a union-security agreement, and exposes the
fundamental infirmity of the Bethlehem Steel holding.
7
LINCOLN LUTHERAN OF RACINE
clear that when Congress wanted to make an employ-
ment term, such as union security, dependent on the ex-
istence of a contract, Congress knew how to do so. Yet
the Section 8(a)(3) proviso does not mention dues
checkoff, let alone limit the effectiveness of a dues-
checkoff provision to the life of a collective-bargaining
agreement. Further, the language and the legislative his-
tory of Section 302(c)(4) unambiguously indicate that
Congress contemplated that dues checkoff would survive
contract expiration.
Fourth, Bethlehem Steel failed to acknowledge another
crucial dissimilarity between dues checkoff and union
security: the fundamental difference between their com-
pulsory and voluntary natures. Under a union-security
agreement, employees are compelled to pay union dues
or agency fees, or face discharge. By contrast, an em-
ployee’s participation in dues checkoff is entirely volun-
tary; “employees cannot be required to authorize dues
checkoff as a condition of employment,” even where a
contract contains a union-security agreement. Bluegrass
Satellite, Inc., 349 NLRB 866, 867 (2007).22 Although
an employee who is subject to a union-security agree-
ment may be more likely to choose dues checkoff, partic-
ipation in dues checkoff still is in no way compelled. An
employee has a right under Section 7 to select or reject
dues checkoff as the method by which to pay union dues,
and may choose to pay dues by another method. Contra-
ry to Bethlehem Steel then, as the Board has since
acknowledged, union security and dues checkoff are
“distinct and separate matters.” American Nurses’ Assn.,
250 NLRB 1324, 1324 fn. 1 (1980).23 As noted above,
the unique administrative nature of a dues-checkoff ar-

22 See also IBEC Housing Corp., 245 NLRB 1282, 1283 (1979)
(“[a]n employee has a Sec[.] 7 right to refuse to sign a checkoff author-
ization as a method [of] fulfilling his membership obligation under a
lawful union-security agreement”); Electrical Workers Local 601
(Westinghouse Electric Corp.), 180 NLRB 1062, 1062 (1970) (an em-
ployee has the “right to select or reject the checkoff system as the
method by which to pay his periodic dues to the Union”).
23 As stated above, the Bethlehem Steel Board seemingly based its
decision in part on the language of the contractual-checkoff clause in
that case, i.e., that checkoff would continue “so long as this Agreement
shall remain in effect[.]” If so, that reasoning is inconsistent with the
long-established principle that any waiver of a statutory right must be
“clear and unmistakable.” Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983). Language such as appeared in Bethlehem Steel’s
contracts has repeatedly been held not to constitute a waiver of the
union’s statutory right to bargain over changes in terms and conditions
of employment after contract expiration. See, e.g., Finley Hospital, 362
NLRB No. 102, slip op. at 3–4 (2015); Allied Signal, Inc., 330 NLRB
1216 (2000), review denied sub nom. Honeywell International, Inc. v.
NLRB, 253 F.3d 125 (D.C. Cir. 2001); General Tire & Rubber Co., 274
NLRB 591, 593 (1985), enfd. 795 F.2d 585 (6th Cir. 1986).
rangement further distinguishes it from a union-security
agreement.24
Last, developments in the Board’s case law since Beth-
lehem Steel cast further doubt on its reasoning. For ex-
ample, if union security and dues checkoff are governed
by “similar considerations,” presumably it would be as
unlawful for an employer, postcontract expiration, to
continue to honor a dues-checkoff arrangement as it
would be to continue to honor a union-security arrange-
ment. Yet the Board has long held that an employer
“does not violate the Act by voluntarily continuing dues
checkoff after a collective-bargaining agreement has ex-
pired,” and that “after a contract has expired and the em-
ployer has terminated dues checkoff, the employer may
lawfully agree to resume deducting union dues.” Trib-
une Publishing, supra, 351 NLRB at 197 fn. 8.25 The
incompatibility of the two lines of cases demonstrates
that the connection between union security and dues
checkoff cannot bear the burden the Board assigned to it
in Bethlehem Steel.
III.
The Respondent and amicus NRWLDF nevertheless
contend that an employer has no duty to check off union
dues in the absence of an existing collective-bargaining
agreement. We turn now to the arguments made by the
Respondent and/or NRWLDF that have not already been
addressed. They do not persuade us.

24 Our dissenting colleagues insist that “dues checkoff is a form of
union security” (emphasis in original), but their effort to equate dues
checkoff and a union-security clause necessarily fails, for reasons al-
ready demonstrated. Dues checkoff is voluntary; union security, com-
pulsory. Dues checkoff can, and does, exist in the absence of a union-
security clause—whether because the collective-bargaining agreement
never contained such a clause or because the clause necessarily expired
with the agreement. Sec. 8(a)(3) governing union-security clauses is
totally removed from Sec. 302(c)(4) governing dues checkoff. Em-
ployees can never be compelled to authorize dues checkoff. If employ-
ees do voluntarily authorize checkoff, they remain free to revoke that
authorization when the collective-bargaining agreement expires. See
Sec. 302(c)(4) (dues-checkoff authorization “shall not be irrevocable
for a period of more than one year, or beyond the termination date of
the applicable collective agreement, whichever occurs sooner”). Here,
of course, we are dealing precisely with the postcontract expiration
period. Requiring the employer to honor dues checkoff for employees
who have authorized it during the postcontract period in no way invol-
untarily compels employees to provide financial support to the union—
in obvious contrast to a union-security clause, which requires only the
agreement of the union and the employer, not the consent of individual
employees. In short, the dissent’s contention—that dues checkoff is a
form of union security—is simply “flaw[ed].” NLRB v. Atlanta Print-
ing Specialties supra, 523 F.2d at 786.
25 See also Lowell Corrugated Container Corp., 177 NLRB 169, 173
(1969), enfd. on other grounds 431 F.2d 1196 (1st Cir. 1970) (employer
did not violate Sec. 8(a)(2) and (3) by continuing to honor unrevoked
checkoff authorizations after contract expiration); Frito-Lay, 243
NLRB 137, 138 (1979).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
First, the Respondent argues that dues-checkoff ar-
rangements do not substantially affect employees’ terms
and conditions of employment. The Respondent charac-
terizes dues checkoff as essentially an administrative
convenience for unions alone, arising out of the relation-
ship between an employer and a union, as opposed to
that between the employer and its employees. This ar-
gument, however, is supported by nothing in the policies
of the Act, or its legislative history, or relevant Board or
court precedent. The asserted dichotomy between “em-
ployer-employee” and “employer-union” arrangements
in this context is a false one. Although checkoff clearly
benefits unions, it also benefits employees by giving
them a simple and reliable means of supporting the un-
ions that represent them, and this is true whether finan-
cial support is mandatory (under a union-security ar-
rangement) or not. That employees benefit from
checkoff is clear from the fact that many employees par-
ticipate in the system, even though participation is entire-
ly voluntary and even in the absence of union security.
Second, the Respondent and NRWLDF contend that
unlike wages, benefits, working hours, and certain other
terms and conditions of employment, which exist in the
absence of collective-bargaining agreements, dues
checkoff comes into existence only through collective-
bargaining agreements, and exists only for the duration
of the contract. As shown, however, the fact that dues
checkoff normally is an arrangement created by con-
tract26 simply does not compel the conclusion that
checkoff expires with the contract that created it. More-
over, the purported distinction between checkoff and
other terms and conditions of employment ignores the
fact that virtually all, if not all, of employees’ terms and
conditions of employment are the result of collective
bargaining between their union and employer. “[T]he
economic terms of a collective-bargaining agreement,
such as wage rates, are no less contractual requirements
than is a dues-checkoff obligation. The agreement is the
only source of the employer’s obligation to provide those
particular wages and benefits.” Hacienda Resort Hotel
& Casino, 355 NLRB at 743 (concurring opinion of
Chairman Liebman and Member Pearce).
Next, NRWLDF asserts that permitting employers not
to collect dues absent a contract protects the Act’s fun-
damental principle of voluntary unionism. In
NRWLDF’s view, forcing employers to continue to im-
plement a dues-checkoff clause when there is no contract

26 This is not always the case, however. See Tribune Publishing Co.
v. NLRB, supra, 564 F.3d at 1335. Interestingly, although the Respond-
ent here resumed checking off union dues in November 2013, there is
no record evidence that it did so pursuant to a successor collective-
bargaining agreement.
in place is inconsistent with the principles of employee
free choice that the Act promotes. NRWLDF further
contends that employees who signed dues-checkoff au-
thorizations merely to comply with union-security claus-
es, and not because they support unions, would not want
employers to continue to deduct dues after a union-
security clause has expired. Finally, NRWLDF argues
that employees’ right to refrain from supporting unions is
not adequately protected by the right to revoke their
dues-checkoff authorizations when the contract expires.
We find no merit in any of these arguments. First,
there is no reason to suppose that employees who volun-
tarily support their unions cease to do so simply because
a collective-bargaining agreement has expired. As for
employees who authorize dues checkoff only to comply
with union-security provisions, Section 302(c)(4) explic-
itly states that they can revoke their authorizations when
the union-security clause expires. And we reject the un-
supported assumption that employees are not capable of
understanding their right to revoke dues-checkoff author-
izations. The language and legislative history of Section
302(c)(4), discussed above, indicate that Congress had
more confidence in employees than that. In any event, as
the Supreme Court put it in another context, “[t]he Board
is . . . entitled to suspicion when faced with an employ-
er’s benevolence as its workers’ champion against their
certified union. . . . There is nothing unreasonable in giv-
ing a short leash to the employer as vindicator of its em-
ployees’ organizational freedom.” Auciello Iron Works,
Inc. v. NLRB, 517 U.S. 781, 790 (1996). In short, there
is no reason why employees who wish to support their
union financially should be denied the administrative
convenience of voluntary dues checkoff, simply because
the collective-bargaining agreement has expired.
IV.
For all the reasons discussed above, we have deter-
mined that Bethlehem Steel and its progeny should be
overruled to the extent they stand for the proposition that
dues checkoff does not survive contract expiration under
the status quo doctrine.27 As shown, the Board’s holding
to that effect in Bethlehem Steel is inconsistent with es-
tablished policy generally condemning unilateral changes
in terms and conditions of employment, is contradicted
by both the plain language and legislative history of the
only statutory provision addressing dues checkoff, and
finds no justification in the policies of the Act. We rec-
ognize, as the Respondent argues, that today’s decision
represents a change in Board policy that has remained
intact for some 50 years. We do not lightly abandon that

27 See Goya Foods of Florida, 356 NLRB No. 184, slip op. at 3
(2011) (explaining decision to overrule precedent).
9
LINCOLN LUTHERAN OF RACINE
policy. But we decline to keep following a course that
has never been cogently explained—and, in our view,
cannot be. Accordingly, we now hold that an employer,
following contract expiration, must continue to honor a
dues-checkoff arrangement established in that contract
until the parties have either reached a successor collec-
tive-bargaining agreement or a valid overall bargaining
impasse permits unilateral action by the employer.28
V.
We must now decide whether to apply our new rule
retroactively, i.e., in all pending cases (including this
one), or only prospectively. The Board’s usual practice
in unfair labor practice cases is to apply new policies and
standards retroactively “to all pending cases in whatever
stage,” unless retroactive application would work a
“manifest injustice.” SNE Enterprises, 344 NLRB 673,
673 (2005). In determining whether retroactive applica-
tion would result in “manifest injustice,” the Board con-
siders “the reliance of the parties on preexisting law, the
effect of retroactivity on accomplishment of the purposes
of the Act, and any particular injustice arising from ret-
roactive application.” Id. at 673.
Having considered these principles, we conclude that
finding a violation under a retroactive application of this
rule would work a manifest injustice. Today’s ruling
definitively changes longstanding substantive Board law
governing parties’ conduct, rather than merely changing
a remedial matter. See SNE Enterprises, supra, 344
NLRB at 673; cf. Kentucky River Medical Center, 356
NLRB No. 8, slip op. at 5 (2010). Employers relied up-
on Bethlehem Steel for 50 years when considering
whether to cease honoring dues-checkoff arrangements
following contract expiration. As the Board has done in
other cases involving departures from longstanding prec-
edent, we conclude that this reliance interest warrants
prospective application only of today’s decision.29 We
therefore shall decide this case and all other cases where
the employer’s unilateral cessation of contractually es-
tablished dues-checkoff arrangements, following contract
expiration, occurred before the date of this decision, un-

28 Today’s holding does not preclude parties from expressly and un-
equivocally agreeing that, following contract expiration, an employer
may unilaterally discontinue honoring a dues-checkoff arrangement
established in the expired contract, notwithstanding the employer’s
statutory duty to maintain the status quo. That is, a union may choose
to waive its postexpiration, statutory right to bargain over this mandato-
ry subject of bargaining. Of course, for such a waiver to be valid, it
must be “clear and unmistakable.” Metropolitan Edison, supra, 460
U.S. at 708.
29 See Piedmont Gardens, 362 NLRB No. 139, slip op. at 6 (2015);
Levitz Furniture Co. of the Pacific, 333 NLRB 717, 729 (2001).
der Bethlehem Steel. Accordingly, we agree with the
judge that the complaint in this case should be dismissed.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. August 27, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA and MEMBER JOHNSOn, dissent-
ing in part.
In 1962, the Supreme Court endorsed the Board’s rule
that an employer violates Section 8(a)(5) of the Act by
unilaterally changing terms and conditions of employ-
ment without first providing the union with notice and an
opportunity to bargain, unless the parties have first
reached lawful impasse. See NLRB v. Katz, 369 U.S.
736 (1962). But the Board has always recognized, as it
must, that not all terms and conditions of employment
are subject to this rule. Indeed, a month before the Court
decided Katz, the Board held in Bethlehem Steel that a
dues-checkoff arrangement was among those excep-
tions.1 While binding for the term of the contract that
contains it, dues checkoff could lawfully be unilaterally
discontinued at contract expiration. For the entire time
that the Katz rule has been in effect, this principle has
been an established part of the collective-bargaining pro-
cess.
The majority today abandons that longstanding prece-
dent and instead subjects dues checkoff, following con-
tract expiration, to the Katz rule requiring postcontract-
expiration bargaining over other terms and conditions of
employment. As explained below, the Bethlehem Steel
exception is justified by statutory and policy considera-
tions that warrant its continuation, and the primary con-

1 Bethlehem Steel Co., 136 NLRB 1500 (1962), remanded on other
grounds sub nom. Shipbuilding v. NLRB, 320 F.2d 615 (3d Cir. 1963),
cert. denied 375 U.S. 984 (1964).
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sequence of this change is to substantially alter the cur-
rent balance that exists between the interests of employ-
ers and unions upon contract expiration. In our view,
this type of change should be the province of the Con-
gress, not the Board. Accordingly, we respectfully disa-
gree with our colleagues’ decision to overrule Bethlehem
Steel. We concur in the outcome only because our col-
leagues refrain from applying their changed standard
retroactively to the parties in the instant case.2
Discussion
The National Labor Relations Act permits, and regu-
lates, union-security arrangements, which obligate em-
ployees to provide financial support to their exclusive
representative as a condition of employment. From the
earliest days of the Act, employers have agreed to pro-
vide payroll deduction services, or “dues checkoff,” as a
method by which employees could satisfy their union-
security obligations.3 Unions and employers found it
mutually advantageous to agree to dues checkoff, where
union security was in place, to reduce the administrative
burden of collecting dues and avoid the burden of dis-
charging employees who become delinquent in their dues
payments.4 Indeed, dues checkoff was arguably the only
reasonable means by which such payments could be
made in the 1930s and 1940s, a time when most house-
holds did not have checking accounts.5 The Board has
always recognized that dues-checkoff obligations are
closely related to an employee’s contractual union-
security obligations, when they exist,6 which makes dues
checkoff a form of union security itself.7

2 The majority concludes, correctly, that the change in the law they
have wrought should not be applied retroactively, and so they dismiss
the complaint. We agree that the complaint should be dismissed, but
for very different reasons.
3 See, e.g., M. T. Stevens & Sons, Co., 68 NLRB 229, 230 (1946);
United States Gypsum Co., 94 NLRB 112, 113 (1951), enfd. as modi-
fied 206 F.2d 410 (5th Cir. 1953), cert. denied 347 U.S. 912 (1954).
4 Electrical Workers Local 20188 (Lockheed Space Operations), 302
NLRB 322, 326 fn. 12 (1991).
5 Only 34 percent of households had checking accounts in 1946.
Klebaner, Benjamin J., American Commercial Banking: A History
(Beard Books, 1990) at 214. In 2013, 88 percent of households had
checking accounts, and 80 percent of those accounts had direct deposit
or automatic debit transactions. 2013 FDIC Survey of Unbanked and
Underbanked Households (October 2014) at 4.
6 Penn Cork & Closures, Inc., 156 NLRB 411 (1965) (where con-
tract included both union-security and dues-checkoff clauses, “it would
be unreasonable to infer that all employees who authorized the checkoff
would have done so apart from the existence of the union-security
provision and the necessity of paying union dues, or to infer that these
same employees would, as a whole, wish to continue their checkoff
authorizations even after the union security provision was inopera-
tive.”), enfd. 376 F.2d 52 (2d Cir. 1967), cert. denied 389 U.S. 843
(1967).
7 Bedford Can Mfg. Co., 162 NLRB 1428, 1431 (1967). See also H.
Report No. 245 on HR 3020 (80th Cong. 1st Sess.) at 29 (Dues
The Board held in Bethlehem Steel that a union-
security clause becomes “inoperative” upon contract ex-
piration as a matter of law, such that it is not an unfair
labor practice for the employer to cease applying it. 136
NLRB at 1502.8 “Similar considerations prevail with
respect to the Respondent’s refusal to continue to
checkoff dues after the end of the contracts,” the Board
ruled. “The Union’s right to such checkoffs in its favor,
like its right to the imposition of union security, was cre-
ated by the contracts and became a contractual right
which continued to exist so long as the contracts re-
mained in force.” Id. And because dues checkoff is “an
implementation” of union security, checkoff authoriza-
tions become revocable regardless of their terms when
employees vote to deauthorize union security. Bedford
Can Mfg. Co., above; see also Penn Cork & Closures,
Inc., above (same). This is true for checkoff authoriza-
tions executed before the union-security clause was in
place as well as those first executed while the union-
security clause was in force. Bedford Can Mfg. Co.,
above.
Other terms and conditions of employment likewise
fail to survive contract expiration. For example, arbitra-
tion clauses are not subject to the Katz postexpiration
bargaining requirement. As the Board recognized in
Indiana & Michigan Electric Co., 284 NLRB 53, 58
(1987),
[t]o conclude otherwise flies in the face of the specific
admonition of the Court and the clear intent of Con-
gress that submission to arbitration is purely a matter of
consent and cannot be mandated by operation of the
Act. Rather, we find, because an agreement to arbitrate
is a product of the parties’ mutual consent to relinquish
economic weapons, such as strikes or lockouts, other-
wise available under the Act to resolve disputes, that
the duty to arbitrate is sui generis. It cannot be com-
pared to the terms and conditions of employment rou-
tinely perpetuated by the constraints of Katz.
No-strike and no-lockout clauses likewise fail to survive
contract expiration, “in recognition of the statutory right
to strike.” Litton Financial Printing Division v. NLRB,
501 U.S. 190, 199 (1991). Finally, the Board has also
exempted management-rights clauses from Katz, on the
theory that such clauses waive the union’s right to bar-
gain, and “[o]nce the clause expires, the waiver ex-

checkoff “is a form of ‘union security’ that is in effect at many plants,
where it has proved popular with employers, employees, and unions,
saving time and trouble for all of them.”), I Legislative History of the
Labor Management Relations Act, 1947 320 (GPO 1985).
8 The majority correctly recognizes that this holding is “compelled
by the Act’s plain language.”
11
LINCOLN LUTHERAN OF RACINE
pires. . . .” Beverly Health & Rehabilitation Services,
335 NLRB 635, 636 (2001), enfd. in relevant part 317
F.3d 316 (D.C. Cir. 2003).
Holding that these contractual provisions do not auto-
matically continue under Katz is consistent with the Act
because it frees the parties to apply economic pressure
during negotiations for a new agreement. See NLRB v.
Insurance Agents’ International Union, 361 U.S. 477,
489 (1960) (“The presence of economic weapons in re-
serve, and their actual exercise on occasion by the par-
ties, is part and parcel of the system that the Wagner and
Taft-Hartley Acts have recognized.”). Similar considera-
tions apply to dues-checkoff clauses, consistent with the
principle that “an employer is not required to finance a
strike against itself. . . .” Texaco, Inc., 285 NLRB 241,
245 (1987).9
Both the District of Columbia and Seventh Circuits
have endorsed Bethlehem Steel.10 The Ninth Circuit has
stated that the dues-checkoff obligation survives contract
expiration in right-to-work states, where, in the court’s
view, “dues checkoff does not exist to implement union
security.”11 However, regarding situations like the in-
stant case, where the collective-bargaining agreement
contained dues checkoff and union-security provisions,
the Ninth Circuit has stated, “[W]e see why the Board
would treat dues-checkoff in the same manner as union
security. . . .”12
Now, the majority overrules this 50-year-old arrange-
ment and holds that employers must continue dues
checkoff after a contract expires, until the parties reach

9 While Texaco involved violations of Section 8(a)(3), we believe
the principle stated above is applicable to the issue presented in this
case as well.
10 See Office Employees Local 95 v. Wood County Telephone Co.,
408 F.3d 314 (7th Cir. 2005); McClatchy Newspapers, Inc. v. NLRB,
131 F.3d 1026, 1030 (D.C. Cir. 1997), cert. denied 524 U.S. 937
(1998); U.S. Can Co. v. NLRB, 984 F.2d 864, 869-870 (7th Cir. 1993);
Microimage Display Division of Xidex Corp. v. NLRB, 924 F.2d 245,
254–255 (D.C. Cir. 1991); Southwestern Steel & Supply, Inc. v. NLRB,
806 F.2d 1111, 1114 (D.C. Cir. 1986).
The Supreme Court has likewise acknowledged the special status of
dues-checkoff provisions as an exception to the Katz rule. See Litton
Financial Printing Division v. NLRB, above, 501 U.S. at 199.
11 Local Joint Executive Board of Las Vegas v. NLRB, 657 F.3d 865,
876 (9th Cir. 2011), denying enf. to Hacienda Resort Hotel & Casino,
355 NLRB 742 (2010) (Hacienda).
12 Id. at 875. We disagree with any implication in the majority opin-
ion that the Ninth Circuit rejected Bethlehem Steel in cases where, as
here, a union-security obligation was in force, or found its holding
“unsupportable” in that context.
As noted herein, dues checkoff is a form of union security even
when the payment of dues is not required as a condition of employ-
ment. For this reason, and for the reasons stated in Members
Schaumber and Hayes’ joint concurrence in Hacienda, we respectfully
disagree with the view of the Ninth Circuit that dues checkoff survives
contract expiration in cases where there is no union-security clause.
impasse or an agreement to discontinue dues checkoff.
The majority suggests this is necessary to protect the
bargaining process, and posits that the “unilateral cancel-
lation” of dues checkoff pursuant to Bethlehem Steel in-
terferes with employees’ ability to maintain their union
membership and undermines the union by cutting off its
“financial lifeline.” Our colleagues further assert that the
other exceptions to the Katz rule involve the waiver of
statutory rights and, finding no such waiver in the case of
dues checkoff, conclude that the Katz rule must apply. In
this regard, our colleagues unreasonably deny that dues
checkoff is itself a form of union security. We believe
they also unreasonably contend that, if dues checkoff
were considered a type of union-security arrangement,
then its postexpiration continuation by employers, on a
voluntary basis, would be as unlawful. We respectfully
disagree with these propositions for several reasons.
First, dues checkoff is a form of union security. Un-
ion-security clauses insure that the exclusive representa-
tive of bargaining unit employees receives a steady
source of funds, by subjecting the employees to dis-
charge if they fail to pay. Dues checkoff serves precisely
the same function, by creating an automatic deduction
from employees’ pay for the benefit of the union. That
wage assignment may lawfully be made irrevocable for
the periods of time defined in Section 302(c)(4), as is the
case with the dues-checkoff authorizations used in this
case.13 During those periods of irrevocability, employees
are contractually required to continue their financial sup-
port of the union much as if a union-security clause were
in place. And dues checkoff provides union-security
benefits even when revocable because the deduction con-
tinues unless and until employees take affirmative action
to cancel it. Congress has plainly stated that dues
checkoff is a form of union security for these very rea-

13 Those forms provided:
You are hereby authorized and directed to deduct from my wages an
amount equal to the initiation fee and dues as those amounts are estab-
lished from time to time by SEIU Healthcare Wisconsin, and to remit
all such deductions so made to SEIU Healthcare Wisconsin no later
than the fifth day of each month immediately following the date of
deduction or following the date provided in the collective bargaining
agreement for such deduction. I authorize these deductions for and in
consideration of the Union’s activities in representing me with respect
to collective bargaining and without regard to my present or future
membership in SEIU. This authorization and assignment shall be ir-
revocable for one year from the date of this authorization or the term
of the applicable collective bargaining agreement whichever is less,
and shall be automatically renewed and irrevocable for successive
yearly or applicable contract periods thereafter, whichever is less, un-
less I revoke by giving written notice to SEIU Healthcare Wisconsin
and my employer at least 30 days immediately preceding any periodic
renewal date of this authorization and assignment.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sons, and our colleagues present no valid reason for their
contrary view.14
Second, we believe our colleagues in the majority in-
correctly reason that dues checkoff involves no waiver of
statutory rights, which therefore makes dues checkoff
“similar to other voluntary checkoff agreements, such as
employee savings accounts and charitable contributions.”
Like union-security agreements, dues-checkoff arrange-
ments limit the Section 7 right of employees to refrain
from supporting a labor organization. As such, a wage
deduction for the purpose of paying union dues and
fees—unlike deductions related to employee savings
accounts, charitable contributions, or health insurance,
for example—violates the Act absent a valid dues-
checkoff authorization as required by the Act. Industrial
Towel & Uniform Service, 195 NLRB 1121 (1977), enf.
denied other grounds 473 F.2d 1258 (6th Cir. 1973).
Moreover, coercing employees to sign a checkoff author-
ization violates the Act. Rochester Mfg. Co., 323 NLRB
260 (1997), affd. sub nom. Cecil v. NLRB, 194 F.3d 1311
(6th Cir. 1999), cert. denied 529 U.S. 1066 (2000);
Steelworkers (American Screw Co.), 122 NLRB 485
(1958) (union unlawfully required employees to travel to
another city to tender dues as only alternative to use of
dues checkoff). Accordingly, dues checkoff cannot val-
idly be compared to deductions from employees’ pay for
other purposes.
It is important to recognize that the majority’s conclu-
sion that Katz exceptions are limited to those provisions
that waive “statutory or nonstatutory rights” is an after-
the-fact recharacterization of Board precedent. Prior
cases have instead focused on the “contractual” nature of
no-strike and arbitration clauses, acknowledging that for
purposes of the Katz rule they are “sui generis” and
therefore “cannot be compared to the terms and condi-
tions of employment routinely perpetuated by the con-
straints of Katz.” Indiana & Michigan Electric Co., 284
NLRB at 58 (reaffirming Bethlehem Steel). Indeed,
submission to dues checkoff, like submission to arbitra-
tion, “is purely a matter of consent and cannot be man-
dated by operation of the Act.” Id. Even accepting at
face value the majority’s newly fashioned “waiver-only”
characterization, however, dues checkoff fits well within
that description because, as discussed above, dues
checkoff does involve a waiver of statutory rights.15

14 The majority’s insistence that dues checkoff and union security are
“distinct and separate matters” severely erodes the holdings in Penn
Cork & Closures, Inc., above, and Bedford Can Mfg. Co., above, and
leaves open the question of whether those cases remain good law in the
majority’s view.
15 It is true that dues checkoff is a waiver of employee Sec. 7 rights,
rather than employer or union rights, but that is no reason to give them
Nor do we agree that Bethlehem Steel erroneously held
dues-checkoff clauses present “similar considerations” to
union-security clauses, which cannot lawfully be given
effect following contract expiration. Of course, neither a
union-security clause nor dues checkoff can exist absent
the employer’s consent. H. K. Porter Co. v. NLRB, 397
U.S. 99 (1970) (Board lacks authority to compel party to
agree to any specific bargaining proposal, including dues
checkoff at issue in that case). Moreover, Congress has
established special rules—not applicable to other terms
and conditions of employment—that pertain to dues
checkoff and union-security clauses.16 Those rules are
not identical, but Bethlehem Steel never stated that they
were. Instead, Congress prohibited employers from con-
senting to postexpiration demands that employees be
discharged for nonpayment of dues. However, dues-
checkoff arrangements involve a ministerial deduction
from wages of dues obligations payable to the union,

less weight. The Supreme Court’s holding in NLRB v. Magnavox Co.
of Tennessee, 415 U.S. 322 (1974), is precisely to the contrary. There,
the Court held that an employer and union could not lawfully agree to
waive employees’ Sec. 7 right to solicit and distribute literature in the
plant absent production considerations necessitating special restrictions.
16 Sec. 8(a)(3) of the Act prohibits discrimination by employers to
encourage or discourage union membership, but with an exception that
permits employers to make an agreement with a union “to require as a
condition of employment membership therein” (subject to various
requirements not relevant here). Sec. 302 of the Labor Management
Relations Act broadly prohibits employers from making payments to
any union, but with an exception in Sec. 302(c)(4) that permits employ-
ers to deduct union dues from employees’ pay and forward them to the
union if the employee has executed a “written assignment which shall
not be irrevocable for a period of more than one year, or beyond the
termination date of the applicable collective bargaining agreement,
whichever occurs sooner.” Sec. 302(c)(4) obviously limits the
postexpiration irrevocability of written dues-checkoff assignments.
This provision also permits employers to continue dues checkoff after
contract expiration, unlike with union-security clauses. But it does not
require employers to do so. Indeed, because Sec. 302(c)(4) is an excep-
tion to the general prohibition on payments by employers to unions, it
would be unreasonable to construe it to require employers to do any-
thing.
The majority’s reliance on Secs. 302(c)(5)-(8) is likewise unavailing.
Those provisions authorize employer payments to union-sponsored
pension and welfare benefit funds under certain circumstances and, as
the majority notes, the obligation to continue such payments survives
contract expiration under Katz. Unlike Sec. 302(c)(4), however, Secs.
302(c)(5)-(8) do not posit the existence of an “applicable collective
agreement” or provide that the obligation to make the payments author-
ized therein becomes revocable when such an agreement expires. In
addition to this critical difference in the statutory text, the nature of the
payments is different as well. The payments to the pension and benefit
plans are the means by which the employer provides the relevant fringe
benefits and thus are part of the Katz status quo obligation to the same
extent as if those benefits were provided by some other method, such as
an employer-sponsored plan. Those payments are “for the sole and
exclusive benefit of the employees,” 29 U.S.C. § 302(c)(5), unlike
payments to the union by employees through dues checkoff, which are
for the direct benefit of the union.
13
LINCOLN LUTHERAN OF RACINE
with no risk of discharge. This makes it understandable
that Congress imposed no absolute bar, after contract
expiration, on an employer’s voluntary continuation of
dues-checkoff deductions. Rather, Congress made the
judgment (in Sec. 302(c)(4) of the Labor Management
Relations Act) that employees were adequately protected
by the requirement that, upon contract expiration, each
employee be permitted to choose to revoke his or her
dues-checkoff authorization.17 Again, as the Board
properly reasoned in Bethlehem Steel, union security and
dues checkoff present similar considerations in that both
implicate employee Section 7 rights and are, accordingly,
subject to comparable restrictions under Federal law.
Although the restrictions are not identical, the differences
in treatment, described above, were clearly within the
province of Congress and do not invalidate the holding in
Bethlehem Steel that neither union security nor dues
checkoff is among the terms and conditions of employ-
ment that cannot be changed, following contract expira-
tion, without bargaining.
Third, we also disagree with the majority’s argument
that the postexpiration discontinuance of dues checkoff
improperly obstructs employees’ ability to maintain un-
ion membership or undermines the union by cutting off
its “financial lifeline.” For one thing, the consequences
of an employer’s discontinuing dues checkoff are no dif-
ferent in regard to the ease or difficulty of paying or col-
lecting dues than the consequences of an employer’s re-
fusal to agree to dues checkoff in the first place. As not-
ed above, the Supreme Court has squarely held that the
Act does not compel an employer to agree to dues
checkoff. H. K. Porter, above.18 Our colleagues’ view
that an employer, having once agreed to dues checkoff,
can never discontinue it without thereby interfering with
employees’ union membership and undermining the un-
ion cannot be reconciled with this principle.19 Addition-
ally, we believe the majority overstates the consequences

17 See fn. 16 supra.
18 In so holding, the Court rejected an underlying court of appeals
opinion that reached the opposite conclusion relying on the same con-
siderations our colleagues advance today. See Steel Workers v. NLRB,
389 F.2d 295, 302 and fn. 15 (D.C. Cir. 1967) (noting that “collection
of dues without a checkoff would have presented the union with a
substantial problem of communication and transportation,” and stating
that “the checkoff provision . . . is likely to be of life or death import to
the fledgling union, while it is of no consequence whatever to the em-
ployer”) (footnotes omitted). Our colleagues resurrect this discredited
position.
19 The majority presumably agrees that an employer may lawfully
cease dues checkoff after bargaining in good faith to impasse, but it is
difficult to see how the prior occurrence of such bargaining would
change the impact that our colleagues claim the cessation of dues
checkoff would have on the “financial lifeline” of unions and employ-
ees’ ability to maintain their union membership.
of discontinuing dues checkoff. As explained below,
employees and unions have many options besides dues
checkoff for the collection of dues in today’s workplace.
And the impact of any employee’s failure to remit dues
in the absence of dues checkoff is solely a consequence
of the employee’s choice or the union’s application of its
own internal rules. It is misdirected to attribute that con-
sequence to the employer, especially given that the em-
ployer agreed to whatever dues-checkoff provisions were
contained in the expired collective-bargaining agreement,
nor do we believe the Board should dictate any particular
treatment of dues-checkoff provisions during the period
in which there is no applicable agreement.
The practical result of the majority’s new rule will be
to increase the difficulties parties will face when attempt-
ing to reach agreements in collective bargaining. For
starters, it bears emphasis that the majority’s new stand-
ard only affects parties that have already enjoyed past
success in bargaining, as reflected in the expiring collec-
tive-bargaining agreement that contains a dues-checkoff
arrangement. Moreover, under the prior Bethlehem Steel
standard (a) most employers do not propose to change or
discontinue dues checkoff in their initial proposals, and
most employers do not immediately stop dues checkoff
once the agreement expires; (b) the employer retains the
right at any time—in the event of protracted bargaining
without an agreement, for example—to unilaterally dis-
continue dues checkoff, which obviously is much less
destructive to employees than a lockout; and (c) any new
agreement will contain a dues-checkoff provision unless
the employer has taken the unusual step of formulating,
presenting and engaging the union in bargaining over the
discontinuation of dues checkoff.
By comparison, our colleagues’ new standard will
have the short-term consequence of mandating the indef-
inite continuation of dues checkoff upon contract expira-
tion unless and until the employer has taken the “unusual
step” described in the preceding paragraph (i.e., where
the employer formulates, presents and bargains over a
proposal to discontinue dues checkoff). The likely out-
come is entirely predictable: it will adversely affect cur-
rent bargaining practices that, as described above, have
promoted labor relations stability. Regarding point “(a)”
in the preceding paragraph, and in contrast to current
bargaining practice, it is a near-certainty that more em-
ployers will routinely include in their initial proposals
the proposed discontinuation of dues checkoff; and since
dues checkoff is obviously important to the union, such a
proposal will substantially impede bargaining over all
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other issues.20 Regarding point “(b),” overruling Bethle-
hem Steel eliminates the postexpiration discontinuation
of dues checkoff as a form of incremental leverage, leav-
ing the employer with the option of implementing a
lockout, which has much more onerous consequences for
employees, the union, and the employer. Alternatively,
upon reaching an impasse in bargaining, the employer
may lawfully discontinue dues checkoff and make other
unilateral wage and benefit changes, which would also
have a greater adverse impact on employees. Regarding
point “(c),” in contrast to the status quo—where employ-
ers almost never propose the discontinuation of dues
checkoff, which means dues checkoff will continue in
successive new agreements—one can expect to see a
substantial increase in new agreements that do not pro-
vide for dues checkoff because so many more employers
will have already bargained over its discontinuation.
We believe our colleagues’ insistence on this state of
affairs is misguided for another reason: unions now have
more options for collecting union dues without the em-
ployer’s assistance than at any other time in history.
Today, nothing about the collection of dues requires it to
be done through the employer. Most employees have
checking accounts, and a wide variety of direct debit
arrangements are available through which employees
could direct the automatic payment of union dues. These
payment methods would afford unions most, if not all, of
the administrative benefits of employer-provided dues-
checkoff arrangements, including the security of having
such payments continue unless the employee affirmative-
ly acts to stop them.
The majority’s position here is likely to produce a situ-
ation that resembles the dog in Aesop’s fable, which had

20 Our prediction that more employers will routinely include the pro-
posed discontinuation of dues checkoff in their initial bargaining pro-
posals is not random speculation. Rather, this follows directly from
other Board principles that govern good-faith bargaining. Most em-
ployers would be reluctant to incur an indefinite obligation to finance a
union’s potentially lengthy postexpiration labor dispute against the
employer. Under the majority’s new standard, this can be avoided only
if the employer bargains to impasse over an employer-formulated pro-
posal to discontinue dues checkoff when the contract expires (or refuses
to agree to dues checkoff in the first place). Yet, if an employer delays
proposing discontinuation of dues checkoff until some midpoint in
bargaining, this would create a substantial risk that the Board would
find the employer to have engaged in “regressive” proposals (where the
employer formulates more onerous proposals than those preceding
them), which the Board has often viewed as a hallmark characteristic of
bad-faith bargaining that violates Sec. 8(a)(5). See, e.g., Quality House
of Graphics, Inc., 336 NLRB 497, 515 (2001) (“regressive proposal . . .
calling for the elimination of the dues-checkoff clauses” was “strongly
suggestive that the Respondent bargained in bad faith with the Union”
based on the “timing of [the] proposal, its drastic, unprecedented nature
and the fact that the Respondent had not raised this issue previously in
bargaining”).
a self-destructive “desire for more, rather than being con-
tent with what one has.”21 The Board can require parties
to negotiate over mandatory bargaining subjects, but we
cannot impose specific contract terms on parties.22 Con-
sequently, we suspect our colleagues will be disappoint-
ed in the outcome of the bargaining that they now re-
quire: we will have more bargaining over proposals to
eliminate dues checkoff, even though such proposals
have been extremely rare in the past, and we are likely to
see more agreements that have no dues-checkoff provi-
sions, especially given the array of options enabling em-
ployees to directly control whether and how they make
union dues payments. This outcome will depend on the
parties, not the Board, but the process by which parties
sort out these issues is likely to undermine bargaining
relationships and cause more contentious bargaining,
contrary to the Act’s objective of fostering labor relations
stability.23
Our final concern relates to the fundamental nature of
the change our colleagues adopt today. We do not favor
the discontinuation of dues checkoff any more than we
favor strikes, lockouts and other types of threatened or
inflicted economic injury that are protected under our
Act. Our statute protects these types of economic weap-
ons.24 Their availability, combined with their “actual

21 Wikipedia, The Dog and Its Reflection
(http://en.wikipedia.org/wiki/The_Dog_and_Its_ Reflection) (viewed
June 11, 2015) (“If a dog swims across a river carrying a piece of meat
. . . and sees its shadow, it opens its mouth and in hastening to seize the
other piece of meat, it loses the one it was carrying.”) (citation omit-
ted).
22 Sec. 8(d) (duty to bargain “does not compel either party to agree to
a proposal or require the making of a concession”); H. K. Porter Co.,
Inc. v. NLRB, above, 397 U.S. at 107–108 (“It is implicit in the entire
structure of the Act that the Board acts to oversee and referee the pro-
cess of collective bargaining, leaving the results of the contest to the
bargaining strengths of the parties.”).
23 One of the Board’s primary functions is to foster stability in labor
relations, to encourage good-faith negotiation, and to give effect to the
parties’ agreements. See, e.g., Colgate-Palmolive-Peet Co. v. NLRB,
338 U.S. 355, 362–363 (1949) (“To achieve stability of labor relations
was the primary objective of Congress in enacting the National Labor
Relations Act.”); NLRB v. Appleton Electric Co., 296 F.2d 202, 206
(7th Cir. 1961) (“[A] basic policy of the Act [is] to achieve stability of
labor relations.”). Our colleagues do not meet the substance of our
discussion of the predictable consequences of the change they make
today. Instead, they fault us for not offering empirical evidence that
cannot possibly exist, given that the precedent they overrule has been in
place since 1962.
24 There is no merit to the majority’s view that the discontinuance of
dues checkoff authorized by Bethlehem Steel is not a legitimate eco-
nomic weapon simply because it involves a unilateral change in a term
or condition of employment. Unlike the discontinuance of merit pay at
issue in Daily News of Los Angeles, 315 NLRB 1236 (1994), enfd. 73
F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997), cited by
our colleagues, dues checkoff does not involve “wages and benefits”
paid to employees but is instead a provision under which an employer
15
LINCOLN LUTHERAN OF RACINE
exercise on occasion by the parties,”25 has produced vir-
tually all of the agreements reached in the Act’s history.
The Board is entrusted with the “responsibility to adapt
the Act to changing patterns of industrial life.”26 How-
ever, our colleagues do not identify any “changing pat-
tern” that warrants the abandonment of Bethlehem Steel,
which has permitted the unilateral discontinuation of
dues checkoff upon contract expiration for a period ex-
ceeding five decades. As noted previously, this spans the
entire time that the Supreme Court, starting with Katz,
has recognized a statutory obligation to have post-
expiration bargaining over other employment terms.
Shortly before Bethlehem Steel and Katz were decided,
the Supreme Court held it is improper for the Board to
function “as an arbiter of the sort of economic weapons
the parties can use in seeking to gain acceptance of their
bargaining demands.”27 This was reinforced when the
Supreme Court reiterated, shortly after Bethlehem Steel
and Katz, that the Board is not vested with “general au-
thority to assess the relative economic power of the ad-
versaries in the bargaining process and to deny weapons
to one party or the other because of its assessment of that
party’s bargaining power.”28 Absent a compelling reason
for making this change, we believe the majority’s deci-
sion to overrule Bethlehem Steel, though cloaked in the
language of our statute, modifies one of the established
“substantive aspects of the bargaining process to an ex-
tent Congress has not countenanced.” 29

makes its payroll system available to assist the union in collecting dues.
Moreover, their argument that our position “run[s] afoul” of Katz begs
the question by taking as its premise the conclusion it reaches—
namely, that dues checkoff is to be subjected to the rule of Katz. Obvi-
ously, if dues checkoff is held exempt from that rule—as, until today, it
has been for more than 50 years—its unilateral cessation is a lawful
economic weapon.
25 NLRB v. Insurance Agents’ International Union, above, 361 U.S.
at 487–489.
26 NLRB v. J. Weingarten, 420 U.S. 251, 266–267 (1975).
27 Insurance Agents, 361 U.S. at 497.
28 American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965).
29 Insurance Agents, 361 U.S. at 497–498. Indeed, as recognized in
Insurance Agents, when Congress added to the Act Sec. 8(d), which
precludes the Board from imposing substantive contract obligations on
the parties in the guise of enforcing the duty to bargain, this was a
response to the fact that the Board had “gone very far, in the guise of
determining whether or not employers had bargained in good faith, in
setting itself up as the judge of what concessions an employer must
make and of the proposals and counterproposals that he may or may not
make.” Id. at 486 (quoting H.R. Rep. No. 245, 80th Cong., at 19, re-
printed in 1 NLRB, Legislative History of the Labor Management
Relations Act (LMRA Hist.), at 310 (1948)). Significantly, the specific
example referenced in the House Report was the Board’s insistence that
employers violated the duty to bargain if they failed to require employ-
ees “to become and remain members of unions” (commonly referred to
as a “closed shop”). H.R. Rep. No. 245, at 19, reprinted in 1 LMRA
Hist. at 310. Here, instead of requiring employees to “remain members
Conclusion
Congress determined that it furthers the national labor
policy to permit employers and unions to agree to both
union-security clauses, under which an employee is obli-
gated to pay union dues as a condition of employment,
and dues-checkoff arrangements, by which unions can
rely on an employer to collect and transmit union dues.
At the same time, based on the right of employees to
refrain from engaging in protected activity, Congress has
imposed statutory limits on both of these forms of union
security. In our opinion, Bethlehem Steel reflects the
national labor policy Congress has established better than
the alternative our colleagues endorse today. According-
ly, as to these issues, we respectfully dissent.
Dated, Washington, D.C. August 27, 2015
______________________________________
Philip A. Miscimarra, Member
______________________________________
Harry I. Johnson, III, Member
NATIONAL LABOR RELATIONS BOARD
Angela B. Jaenke, Esq., for the General Counsel.
John H. Zawadsky, Esq. (Reinhart, Boerner, Van Deuren, S.C.),
of Madison, Wisconsin, for the Respondent.
DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. This case was tried
in Milwaukee, Wisconsin, on April 28, 2014.1 Service Em-
ployees International Union Healthcare Wisconsin, SEIU-
HCWI (the Union or the Charging Party) filed the charge on
August 13, 2013, and the Regional Director for Region 18 of
the National Labor Relations Board (the Board) issued the
complaint and notice of hearing on December 19, 2013.2 The

of unions,” id., the majority makes it unlawful not to continue post-
contract expiration remittance of union dues deducted from their pay.
For the reasons explained in the text, given the five decades in which
the Bethlehem Steel rule has existed, we believe this is the type of
change that would more appropriately be addressed by Congress and
not the Board.
1 The two witnesses and counsel for the parties were present in Mil-
waukee, Wisconsin. With the agreement of the parties, and given that
stipulations had alleviated the need for all but very brief testimony, I
conducted the hearing by teleconference in the interests of preserving
governmental resources.
2 The complaint as issued on December 19 consolidated a case from
Subregion 30 (Case 30–CA–111099) and a case from Region 18 (Case
18–CA–112504). On March 27, 2014, following a partial settlement
reached by the parties, all the allegations in the complaint that did not
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complaint alleges that Lincoln Lutheran of Racine (the Re-
spondent) violated Section 8(a)(5) and (1) when, on March 19,
2013, it ceased dues checkoff for unit employees after the col-
lective-bargaining agreement between the parties expired. The
Respondent filed a timely answer it which it denied that it vio-
lated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel3 and the Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a nursing home
providing in-patient medical care in Racine, Wisconsin. In
conducting its operations, the Respondent annually derives
gross revenues in excess of $100,000 and purchases and re-
ceives at its facility in Racine, Wisconsin products, goods, and
materials valued in excess of $5000 directly from points outside
the State of Wisconsin. The Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Respondent is a nursing home operator with facilities in
Racine, Wisconsin. Since at least 2007, the Respondent has
recognized the Union as the collective-bargaining representa-
tive of a unit comprised of certified nurse aides, maintenance
employees, laundry employees, housekeeping employees, and
certain other employees. The Union and the Respondent have
entered into successive collective-bargaining agreements cover-
ing the unit, the most recent of which was effective by its terms
from June 1, 2011, to December 31, 2012. The parties agreed
to extend the term of that agreement to February 19, 2013. The
agreement includes a dues-checkoff provision in which the
Respondent agrees to deduct union initiation fees and member-
ship dues from the paychecks of participating unit employees
and to transmit those funds to the Union.4

pertain to the Respondent’s cessation of dues checkoff were dismissed.
In addition, the two cases were severed and the Region 18 case is not
part of the proceeding before me.
3 The Respondent moved to strike portions of the General Counsel’s
brief because “rather than presenting only the General Counsel’s argu-
ment, the General Counsel took advantage of Lincoln Lutheran having
filed its brief earlier in the day by responding to Lincoln Lutheran’s
arguments.” The General Counsel opposed the motion and it is hereby
denied. I set a June 2, 2014, due date for both parties’ briefs, but did
not order that the briefs be filed simultaneously or otherwise foreclose
one party from responding directly to arguments in the other party’s
earlier filed brief. The Respondent cites no authority at all for striking
a brief, in whole or in part, under such circumstances.
4 The provision states as follows:
(a) Upon receipt from a team member, Worksite Leader and/or Union
Representative of a lawfully executed written authorization, Lincoln
Lutheran agrees, until such authorization is revoked in accordance
with its terms, to deduct the initiation fees and the regular monthly
Union membership dues of such team members from the team mem-
On December 17, 2012, the Respondent and the Union began
negotiations for a successor to the expiring contract. The Re-
spondent’s lead negotiator was Butch Patterson, the Respond-
ent’s vice president for human resources. The Union’s lead
negotiator was Bonnie Strauss, a union project director. In the
parties’ written proposals during negotiations for a successor
contract, both the Respondent and the Union proposed the
samee dues-checkoff language that was present in the expiring
contract. In a February 12, 2012 email, Patterson for the first
time informed Strauss that the Respondent was proposing to
terminate the due-checkoff provision effective upon the expira-
tion of the contract on February 19. Patterson stated that the
Respondent was prepared to discuss the dues-checkoff proposal
at the negotiating session scheduled for February 18. Patterson
further stated that the contract’s union-security clause and arbi-
tration provisions would also terminate on February 19. Later
that day, Strauss responded to Patterson by email as follows:
Butch,
So why the heavy hand? This seems out of character given
our working relationship. Please advise.
Patterson responded by email:
Hi Bonnie,
We do have a positive working relationship and I hope it con-
tinues. We simply need to move forward quickly with our
economic proposals because of continued fiscal issues. We
especially need to achieve the projected labor savings regard-
ing the shift reduction proposal. January financials did not
meet budget. I am concerned that further delaying the process
will make the negotiation process even more difficult. I’m
looking forward to a productive session on the 18th.
The parties met to negotiate on February 18. Present for the
Respondent were Patterson and three other company officials,

ber’s first two paychecks of each month and to promptly remit such
deduction to the Union, the list outlining dues payments and initiation
fees will be provided to the Union by electronic mail. The Union will
notify Lincoln Lutheran, in writing, of the exact amount of such regu-
lar monthly membership dues to be deducted. Team members shall
be provided Union authorization forms at time of hire along with the
other appropriate forms of employment. The authorization provided
for by this Section shall conform to all applicable Federal and State
laws.
The Union Agrees to indemnify and hold Lincoln Lutheran
harmless against any and all claims, suits, orders, or judgments
brought or issued against Lincoln Lutheran as a result of any ac-
tion taken or not taken by Lincoln Lutheran pursuant to any writ-
ten communication from the Union under the provisions of this
article.
(b) The Employer agrees to deduct and transmit to SEIU
COPE, $ ____ per pay period, from the wages of those team
members who voluntarily authorize such contributions on the
forms provided for that purpose by SEIU HEALTHCARE
WISCONSIN. These transmittals shall occur for each payroll
period. A list of names shall be sent via electronic mail/media
of those team members for whom such deductions have been
made. The list will include the amount deducted for each
team member.
17
LINCOLN LUTHERAN OF RACINE
one of whom, the Respondent’s chief executive officer, left
early in the meeting. Present for the Respondent were Strauss
and a union staff representative. The session lasted from ap-
proximately 9 a.m. to 4 p.m. The parties did not discuss the
dues-checkoff issue until the end of that period. At that time,
Patterson stated that when the contract expired—which was set
to occur the next day—the Respondent would no longer honor
the union arbitration procedure, and that “after the next bar-
gaining session,” which was set for March 5, “the union securi-
ty and union check off would discontinue.” Strauss responded
to Patterson by stating that this “was not a good way to have a
good relationship, and that it would not in any way, shape or
form change the way that we would represent our members, nor
would it change the way that we would approach the bargain.”
Then Strauss asked Patterson to reconsider. At that point the
management team left the session.5
Patterson subsequently canceled the March 5 bargaining ses-
sion. In a February 28 email to Strauss, he proposed alternative
dates for negotiations in March and April and stated that the
Respondent “proposes the termination of the check off provi-
sion of the Agreement (see art. 18 of the contract) effective on
the next day immediately following the date of our next bar-
gaining session” and that the Respondent “w[ould] be prepared
to discuss this proposal at the next meeting.” The parties held
their next bargaining session for a successor contract on March
14. During that session neither side raised the subject of dues
checkoff or the discontinuation of dues checkoff.
Patterson, in a March 18 email to Strauss, stated that “As
previously notified (2/28/2013), Lincoln Lutheran is confirming
the termination of the union-checkoff provision of the Agree-
ment . . . effective Tuesday, March 19, 2013.” On March 19,
the Respondent carried through with this action, and discontin-
ued checkoff for unit employees. As of that time, the Union’s
written proposal still included the dues-checkoff language con-
tained in the expired agreement. During negotiations, the Re-
spondent never claimed to the Union that administering dues
checkoff was a financial hardship for the Company.

5 Of the persons who attended the meeting, only Strauss and Patter-
son were called to testify. Regarding what Patterson said at the meet-
ing, the testimony of Strauss and Patterson was consistent and I credit
that testimony. I also credit Strauss’ testimony regarding what she said
in response to Patterson, and that is the basis for the version of her
response that is set forth above. Based on Strauss’ demeanor and tes-
timony as a whole, and after considering the documentary evidence
regarding the February 18 meeting, I find that testimony credible.
Patterson’s very minimal testimony on the subject of what Strauss said
does not corroborate Strauss’ testimony, but also does not directly
contradict it. When Patterson was asked whether there was any re-
sponse from the Union to his statement that the Respondent would
cease honoring the arbitration, union security, and dues-checkoff provi-
sions, he testified, “[N]ot regarding the union dues.” This nonspecific
testimony does not directly contradict Strauss’ testimony because
Strauss did not claim that she explicitly mentioned union dues. Patter-
son was not asked to recount exactly what Strauss said to him at the end
of the meeting or to confirm or deny Strauss’ testimony about what she
said.
After March 19, 2013, the parties continued to negotiate for
a successor to the collective-bargaining agreement. On about
November 21, 2013, the Respondent resumed dues checkoff.
III. ANALYSIS AND DISCUSSION
The Respondent stopped following the dues-checkoff provi-
sion in the contract on March 19, 2013, subsequent to the expi-
ration of that contract on February 19, 2013. At the time the
Region issued the complaint in this case, as well as at the time
of trial, the Board’s most recent ruling on the subject was that
an employer’s obligation to adhere to a contractual dues-
checkoff provision continues after the expiration of the con-
tract. See Alamo Rent-A-Car, 359 NLRB No. 149, slip op. at 4
(2013), decision set aside by 2014 WL 2929754 (NLRB June
27, 2014), and WKYC-TV, Inc., 359 NLRB No. 30 (2012). In
WKYC-TV, the Board stated, “[T]hat, like most other terms and
conditions of employment, an employer’s obligation to check
off union dues continues after expiration of a collective-
bargaining agreement that establishes such an arrangement.
Slip op. at 1. The Board acknowledged in WKYC-TV that it
was overturning the rule set forth in Bethlehem Steel,6 and its
progeny, which was that the “obligation to check off union dues
from employees’ wages terminates upon expiration of a collec-
tive-bargaining agreement that establishes such an arrange-
ment.” Id. The Board explained that a coherent explanation for
the Bethlehem Steel rule had never been provided, and noted
that the U.S. Court of Appeals for the Ninth Circuit had recent-
ly refused to enforce a Board decision following the Bethlehem
Steel rule because, in the court’s words, the Board “‘contin-
ue[d] to be unable to form a reasoned analysis in support of’”
that rule. Id., quoting Local Joint Executive Board of Las Ve-
gas v. NLRB, 657 F.3d 865, 867 (9th Cir. 2011).
Subsequently, the U.S. Supreme Court issued its decision in
NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the
Board lacked the quorum necessary for the issuance of deci-
sions from January 4, 2012, through August 4, 2013. Both
Alamo and WKYC-TV, supra, and WKYC-TV, supra, were is-
sued during the period when the Board lacked the necessary
quorum and neither decision is currently valid precedent. I find
that the Board’s prior rule, as set forth in Bethlehem Steel, is
therefore controlling and that the Respondent did not violate
Section 8(a)(5) and (1) on March 19, 2013, by ceasing to follow
the dues-checkoff provision after expiration of the collective-
bargaining agreement.7

6 136 NLRB 1500 (1962), remanded on other grounds sub nom.
Shipbuilding v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375
U.S. 984 (1964).
7 The parties presented evidence going to the question of whether the
Union waived bargaining regarding the Respondent’s discontinuation
of dues checkoff. Given the applicability, at least until further notice,
of the Bethlehem Steel rule, it is not necessary for me to reach the
waiver issue. Nevertheless, in the previous section of this decision, I
have included all the factual findings relating to the waiver issue that
are supported by the record.
I also note that in the stipulation of facts the parties entered into on
April 14, 2014, they stipulated to the following: “[N]o historical in-
formation regarding the parties’ bargaining history on dues check off
has been set forth as it is not relevant to the current discontinuation of
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For the reasons discussed above, the allegation that the Re-
spondent violated Section 8(a)(5) and (1) of the Act when it
discontinued dues checkoff should be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.

dues check off or the Employer’s affirmative defenses thereto.”; and
“[N]o past practices regarding discontinuation of dues check off has
been set forth as it is not relevant to the current discontinuation of dues
check off or the Employer’s affirmative defenses thereto.”
3. The Respondent was not shown to have violated Section
8(a)(5) and (1) of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 11, 2014.

8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.