Earlier this week I introduced a recent NLRB decision that addressed two significant issues for employers. The first issue - related to an employer access rule -was a largely illusory victory for the employer.  Today’s post focuses on the second issue, which related to the employer’s cessation of contributions to a union education fund. The outcome for the employer on this issue was even worse.

When the contract expired, the employer ceased making contributions to the fund.  It argued that language in the union contract as well as the participation agreement and other documents it signed with the fund permitted the unilateral discontinuation of fund contributions upon expiration of the union contract.

The NLRB majority, citing the established rule that requires “clear and unmistakable” language to establish a waiver of the union’s right to bargain over a mandatory subject to bargaining, found that the language cited was not sufficient. Significantly, the majority distinguished between the contractual right to cease payments to the fund and the statutory right of the union to bargain over any such action. The majority held that the language cited did not affect a waiver of the statutory right to bargain.

Member Miscimarra, dissenting, found four separate provisions in the various documents the employer relied upon that made clear the parties’ intent that the fund contribution should cease upon expiration of the collective bargaining agreement. Responding specifically to the majority’s argument regarding contractual versus statutory rights, Member Miscimarra noted the obvious; namely, that “the existence or absence of any post expiration duty remains dependent upon the parties’ intent.” Because the intent was to cease contributions, the union waived its right to bargain over that very action.

For the labor professional, the NLRB’s decision is a good reminder that employers must plan ahead for post-expiration issues. The time to address what happens to an employer’s benefit obligations (among other things) upon expiration of the labor agreement is during negotiations, so that “clear and unmistakable” language directed at both the contractual and statutory right can be included in the agreement.