WHDH-TV

National Labor Relations Board - Board Decisions

Mar 19, 2013

359 N.L.R.B. 671 (N.L.R.B. 2013)

WHDH-TV 671

359 NLRB No. 81
WHDH-TV and American Federation of Television
and Radio Artists, Boston Local. Case 01–CA–
046744
March 19, 2013
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On April 11, 2012, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Acting
General Counsel and the Charging Party each filed ex-
ceptions and supporting briefs, and the Respondent filed
an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions, and to adopt the recommended
Order.
Relying on Bethlehem Steel Co., 136 NLRB 1500,
1502 (1962), affd. in relevant part sub nom. Industrial
Union of Marine & Shipbuilding Workers v. NLRB, 320
F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984
(1964), the judge found that the Respondent did not vio-
late Section 8(a)(5) and (1) of the Act by ceasing to hon-
or employees’ dues-checkoff authorizations after the
expiration of the parties’ collective-bargaining agree-
ment.
After the judge issued his decision, we overruled Beth-
lehem Steel and its progeny “to the extent they stand for
the proposition that dues checkoff does not survive con-
tract expiration.” WKYC-TV, Inc., 359 NLRB N286, 293
(2012). We held in WKYC-TV that “an employer, fol-
lowing contract expiration, must continue to honor a
dues-checkoff arrangement established in that contract
until the parties have either reached agreement or a valid
impasse permits unilateral action by the employer.” Id.
We also decided, however, to apply the new rule pro-
spectively only, and to apply Bethlehem Steel in all pend-
ing cases, such as this one. We therefore adopt the
judge’s finding that, because the Respondent was privi-
leged under Bethlehem Steel to cease honoring the dues-
checkoff arrangement after the parties’ collective-
bargaining agreement expired, the Respondent did not
violate the Act as alleged. We shall dismiss the com-
plaint.
1

1 We agree with the judge’s rejection of the alternative argument of
the Acting General Counsel and the Charging Party, based on Tribune
Publishing Co., 351 NLRB 196 (2007), enfd. 564 F.3d 1330 (D.C. Cir.
2009), that the Respondent tacitly agreed to extend the dues-checkoff
provision by continuing to deduct and remit dues for 11 months after
the contract expired, and thus could not unilaterally cease to do so
thereafter. The Board found in Tribune that the employer unlawfully
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Don C. Firenze, Esq., for the General Counsel.
Robert P. Joy, Esq. and Sean P. O’Connor, Esq., for the Re-
spondent.
James A.W. Shaw, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Boston, Massachusetts, on February 27, 2012. The
complaint essentially alleges that during the hiatus period be-
tween the old and new collective-bargaining agreements, the
Respondent failed to comply with the old contract’s dues-
checkoff provisions.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
The complaint alleges, the answer admits, and I find that the
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. It also is ad-
mitted and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The facts are not in dispute.

Since at least 1980, the Union and the Employer have had a
collective-bargaining relationship covering all persons, staff,
and freelance, who perform before the microphone or camera
for the Employer. The relevant contract expired on December
31, 2008, but was extended by the parties until April 26, 2010.
The contract, at article 17, contained a dues-checkoff clause. It
was stipulated that the Respondent ceased complying with the
checkoff provision on March 30, 2011, and that it resumed
checking off and remitting dues to the Union on August 22,
2011. At a later point, the parties entered into a new contract.

It was agreed that during the hiatus period between the con-
tracts, there were 22 employees who had current dues-checkoff

reneged on an express agreement to allow employees to have their
union dues deducted and remitted to the union through the employer’s
direct deposit system during the hiatus between collective-bargaining
agreements. Here, as the judge found, there is no evidence that the
Respondent and the Charging Party expressly agreed that the Respond-
ent would continue to deduct and remit union dues after the contract
expired. In those circumstances, the Board has held that an employer
does not forfeit its right under Bethlehem Steel to cease checking off
dues merely by continuing to honor a dues-checkoff provision after
contract expiration. See West Co., 333 NLRB 1314, 1319–1320
(2001); see also WKYC-TV, Inc., supra, slip op. at 9 fn. 33, where we
rejected the same argument.
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

authorizations and for whom the Respondent did not deduct
dues from their pay or remit dues to the Union. One employee,
Jonathan Hall, paid his dues directly to the Union.
The General Counsel concedes that under existing law, I
should find that the Respondent did not violate the Act. The
General Counsel is seeking to change the law. The Union ar-
gues an alternative position, which is that because the Employ-
er waited for a long time after the contract’s expiration before
refusing to enforce the checkoff provision, it had acquiesced in
its continuation after expiration. It therefore argues that the
Employer had tacitly agreed to continue it during the hiatus
period.
In Bethlehem Steel Co., 136 NRB 1500, 1502 (1962), enf.
denied on other grounds 320 F.2d 615 (3d Cir. 1963), the Board
held that union-security and dues-checkoff contract provisions
do not survive the expiration of a collective-bargaining agree-
ment. There has been a good deal of recent debate among
Board members as to whether this view of the law should re-
main valid and this has been expressed in a series of cases in-
volving Hacienda Resort Hotel & Casino.1
All of the parties made interesting arguments as to why the
rationale cited in Bethlehem Steel should either be sustained or
overruled. But as I am required to follow existing Board law,2

1 The initial Hacienda case is reported at 331 NLRB 665 (2000),
which was remanded in Local Joint Executive Board of Las Vegas v.
NLRB, 309 F.3d 578, 584–585 (9th Cir. 2002). A later decision was
issued by the Board at 351 NLRB 504 (2007), and this also was re-
manded. The final Board decision in this series was reported at 355
NLRB 742 (2010). That decision was split 2 to 2 on the relevant issue.
2 Waco Inc., 273 NLRB 746, 749 fn. 14 (1984).
these arguments have to be addressed to the Board itself.
I am also unpersuaded that the Union’s alternative theory has
merit. Under current law, a union-security clause and a con-
comitant dues-checkoff clause requires, pursuant to Section
8(a)(3), the existence of a collective-bargaining agreement
containing a provision consistent with what is permitted under
that section of the statute. Here, the contract expired and dur-
ing the hiatus, the Company ceased, for a period of time, to
comply with the dues-checkoff provision of the expired agree-
ment. There is no evidence that the Company made any
agreement, express or implied, to extend that contract provision
after the expiration date in the absence of a new collective-
bargaining agreement. I do not conclude that the mere fact that
the Respondent continued for some time after the contract’s
expiration to deduct and remit dues should be construed either
as some kind of “waiver” or some kind of tacit agreement. See
Tribune Publishing Co., 351 NLRB 196 (2007), enfd. 564 F.3d
1330 (D.C. Cir. 2009).
In light of the above, I conclude that the Respondent has not
violated the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended.3
ORDER
The complaint is dismissed.

3 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.