Alaska Employment Law

The 9th Circuit has applied the “unilateral change doctrine” recognized set out in NLRB v. Katz, 369 U.S. 736 (1962), and held that CBA language providing that benefits “continued in effect” ”during” the term of the CBA doesn’t relieve the employer of the duty to bargain before terminating the benefits when the CBA expires.  The benefits in question were union dues check-offs.

Judge Paez, for the panel, wrote:

The Board argues that because “the dues-checkoff provision itself contains clear language linking dues-checkoff to the duration of the collective-bargaining agreements, as opposed to general duration language elsewhere in the agreement,” the Union explicitly bargained away its rights. We disagree.

Although a general durational clause, without more, does not defeat the unilateral change doctrine, Honeywell Int’l, Inc. v. NLRB, 253 F.3d 125, 131-32 (D.C. Cir. 2001), such language within a specific contractual provision does not necessarily establish that the Union bargained away its rights.  The Board’s precedent has plainly and consistently distinguished between language that states a particular provision applies “during” the contract term, and language that states the relevant benefit will “terminate” at the end of the contract term. Only where the provision states that the benefit will “terminate” has the Board found a clear and unmistakable waiver.

In Cauthorne Trucking, the intra-provision language explicitly stated that all employer obligations under the pension agreement would “terminate” on expiration of the contract.  256 NLRB at 722.  The Board determined that this language expressed a clear intent to relieve the employer of any obligation to make payments after contract expiration. Id.

The Board argues that its position in this case is “consistent” with Cauthorne Trucking because, even though the text of the dues-checkoff clauses is not identical to that found in Cauthorne Trucking, the parties’ intent is nonetheless similarly clear.

This argument is not persuasive. First, as a matter of plain interpretation, the contractual language that an obligation will “terminate” on expiration of an agreement is simply not equivalent to contractual language that an obligation “shall be continued” “during” the agreement. The latter says nothing about what happens after the agreement expires. Second, subsequent Board decisions explicitly reject such elision. In a series of cases, the Board has distinguished Cauthorne Trucking and established that a clear and unmistakable waiver of the obligation to continue providing benefits requires explicit contract language authorizing an employer to terminate its obligations.

Local Joint Exec. Bd. v. NLRB, 2008 WL _______ (9th Cir. Aug. 27, 2008)(footnotes omitted)