Thread regarding Dynegy Inc. layoffs

After a collective bargaining agreement expires, an employer generally cannot lawfully change wages, hours, working conditions, or other terms and conditions of employment unless it has either reached agreement with the union to do so or has bargained to impasse in a good faith effort to reach agreement. Unilateral change absent agreement or impasse violates the employer’s duty to bargain in good faith under section 8(a)(5) of the National Labor Relations Act. The NLRB held in 1962 in the Bethlehem Steel case that a dues checkoff provision (under which an employee may voluntarily authorize in writing that the employer withhold union dues from the employee’s pay) in a contract containing a union security clause is an exception to the general rule against unilateral changes. That is, after contract expiration an employer may lawfully cease withholding dues without having bargained with the union to agreement or impasse. The NLRB’s rationale was that a dues checkoff provision is an adjunct to the union security clause. Union security clauses, which require employees to pay union dues as a condition of employment, are authorized under section 8(a)(3) of the Act; employees can be required to pay dues only if a collective bargaining agreement containing a union security clause is in effect. Accordingly, during a period in which no agreement is in effect, an employer cannot lawfully require payment of dues as a condition of employment. Given its view that the dues checkoff provision was directly related to union security, the NLRB decided that no reason existed to require the employer to bargain over cessation of checkoff after contract expiration, because union security was not enforceable during that period.