Employers subject to a collective bargaining agreement (CBA) must proceed cautiously in determining how to handle dues checkoff and employee communications following implementation of any right-to-work laws. A recent decision by an Administrative Law Judge (ALJ) for the National Labor Relations Board (NLRB) declares that contractual dues checkoff provisions are not union security devices and thus may be enforceable despite a right-to-work law. Metalcraft of Mayville, Inc. v. District Lodge No. 10, 18-CA-178322 (2017) (Muhl, ALJ). The ALJ in Metalcraft interpreted Wisconsin’s right-to-work statute such that an employer could not unilaterally refuse to enforce dues checkoff, despite the existence of a state right-to-work law prohibiting such deductions. Instead, the ALJ found that the NLRA pre-empted state law, so dues checkoff remains a mandatory subject of bargaining, governed by federal law, regardless of the existence of a state right-to-work law prohibiting fees being deducted. And so the employer acted unlawfully in unilaterally discontinuing such deductions in violation of §8(a)5 of the NLRA.
Further, the Metalcraft decision also serves as an important reminder to employers to exercise caution in corresponding with employees about right-to-work laws. The ALJ held that a series of notices to employees containing employer-drafted questions and answers about the new right-to-work law violated §§8(a)(1) and (5) of the NLRA by undermining employees’ confidence in the union and directly dealing with employees. In that case, the employer presented no evidence it was responding to actual questions or requests for revocation of dues checkoff from employees; it phrased several questions in a manner disparaging the union; and it requested new authorizations for dues checkoff directly from employees.
The ALJ’s findings are consistent with other recent cases which have addressed the issue. In United Auto., Aerospace & Agric. Implement Workers of Am. Local 3047 v. Hardin Cty., Kentucky, the Sixth Circuit held that a county could not prohibit dues checkoff or hiring hall agreements because they were preempted by the NLRA, regardless of the existence of a valid right-to-work law. 842 F.3d 407, 410 (6th Cir. 2016). Similarly, an appeal is pending before the Seventh Circuit of a District Court decision which held, among other things, that dues checkoff does not amount to compulsory unionism and the NLRA preempts any regulation that imposes more stringent requirements than federal law. Int’l Union of Operating Engineers, Local 399, AFL–CIO v. Vill. of Lincolnshire, Illinois, No. 16 C 2395, 2017 WL 75742, at *11 (N.D. Ill. Jan. 7, 2017).