Hunton Employment & Labor Perspectives

Last week, the National Labor Relations Board (“Board” or “NLRB”) decided that an employer no longer can unilaterally stop union dues deductions from employee pay pursuant to a dues-checkoff clause once a collective-bargaining agreement (“CBA”) expires absent a lawful impasse during negotiations for a successor agreement. Valley Hosp. Med. Ctr., Inc., 371 NLRB No. 160 (2022) (“Valley Hosp. II”). The decision marks another reversal of Board precedent in favor of unions by the Biden NLRB. (We discussed a prior reversal, which concerned employee appearance policies here.)

Yesterday, a California State Assembly Committee killed a bill that would have extended collective bargaining rights to a larger group of state employees – namely, legislative staffers. Existing state law excludes certain state employees from collective bargaining. The Legislature Employer-Employee Relations Act would “provide employees of the Legislature the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.” If passed, the bill would extend collective bargaining rights to nearly 2,000 California legislative employees. California’s Public Employment and Retirement Committee rejected the bill in a 2-3 vote this Wednesday, due to unresolved “procedural, legal, and administrative problems,” according to the Committee Chair.

Often times, the same set of underlying facts will give rise to both a contractual dispute between an employer and a union and an unfair labor practice charge. In these instances, an arbitrator usually decides the contract dispute, while it is the National Labor Relations Board's responsibility to determine the merit of the alleged unfair labor practice. Historically, however, the Board has commonly declined to hear unfair labor practice charges related to contractual disputes, and has instead deferred to arbitrators' earlier contractual rulings. Until recently, the burden fell on the party seeking to avoid Board deferral (usually the union) to prove that deferral was inappropriate. Practically, this ensured that employers could easily avoid addressing the same issues or facts in essentially duplicative litigation.