The law was on your side when you acted. Then it changed — retroactively. And now you owe $6 million.

The law was on your side when you acted. Then it changed — retroactively. And now you owe $6 million.

Here’s a case from the new Board that will not make employers happy.

In Kroger Texas, L.P. (374 NLRB No. 113, May 20, 2026), Chairman Murphy, and Members Prouty and Mayer affirmed that Kroger unlawfully stopped dues checkoff after its grocery-store contracts expired in late 2020.

Here’s the catch: when Kroger stopped, it was following the law. Under Valley Hospital I (2019), employers could halt dues checkoff once a contract expired. Kroger did exactly that, then resumed deductions when new contracts were signed in 2022.

But in 2022, the Board flipped the rule in Valley Hospital II — holding that dues checkoff survives contract expiration — and applied it retroactively. Result: Kroger is on the hook for every dollar of dues it didn’t collect during a period when its conduct was lawful, with interest, and it’s barred from recouping those amounts from employees. Estimated tab: over $6 million.

Kroger threw everything at it — laches, due process, impasse, “durational” contract language, waiver via side letters. The Board rejected each. General durational language (“during the life of this agreement”) isn’t a clear waiver. A dismissed bad-faith charge doesn’t prove impasse. And announcing the cut as a two-day “fait accompli” wasn’t bargaining.

Notably, two Board members voiced unease — applying the precedent “for institutional reasons” while questioning whether making an employer “pay such a price for actions that were authorized by extant precedent” squares with basic equity.

The takeaway: At the NLRB, today’s lawful action can become tomorrow’s violation. I’ve been burnt by it before, too. When Board law is always in flux, “we followed the rule at the time” may not protect you. Bargain before changing the status quo — and document it.