FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VALLEY HOSPITAL MEDICAL No. 22-1804
CENTER, INC.,
NLRB No.
Petitioner, 28-CA-213783
v.
ORDER AND
NATIONAL LABOR RELATIONS AMENDED
BOARD, OPINION
Respondent,
----------------------------------------
LOCAL JOINT EXECUTIVE
BOARD OF LAS VEGAS,
Intervenor.
NATIONAL LABOR RELATIONS No. 22-1978
BOARD,
NLRB No.
Petitioner, 28-CA-213783
v.
VALLEY HOSPITAL MEDICAL
CENTER, INC.,
Respondent.
2 VALLEY HOSP. MED. CTR., INC. V. NLRB
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted December 6, 2023
Pasadena, California
Filed February 20, 2024
Amended May 6, 2024
Before: Diarmuid F. O’Scannlain and John B. Owens,
Circuit Judges, and Matthew F. Kennelly, District Judge.*
Order;
Opinion by Judge O’Scannlain;
Special Concurrence by Judge O’Scannlain
SUMMARY**
Labor Law
The panel filed (1) an order denying a petition for
rehearing en banc and amending the opinion and special
concurrence filed on February 20, 2024; and (2) an amended
opinion and an amended special concurrence denying Valley
Hospital Medical Center’s petition for review, granting the
National Labor Relations Board’s cross-application for
*
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
VALLEY HOSP. MED. CTR., INC. V. NLRB 3
enforcement, and enforcing the Board’s order finding that
Valley Hospital engaged in an unfair labor practice under the
National Labor Relations Act (“NLRA”) by unilaterally
ceasing union dues checkoff.
The court previously remanded the case to the Board to
explain better its decision that an employer may unilaterally
cease union dues checkoff after the expiration of a collective
bargaining agreement. On remand, the Board changed its
mind, and rendered a new decision (1) readopting its prior
rule prohibiting employers from unilaterally ceasing dues
checkoff after expiration of a collective bargaining
agreement, and (2) finding that Valley Hospital engaged in
an unfair labor practice.
Valley Hospital argued that the Board exceeded its
authority because this court’s mandate authorized the Board
to supplement its reasoning but not to change its
interpretation of the NLRA. As a preliminary matter, the
panel held that it had jurisdiction to consider Valley
Hospital’s argument. The panel held that this court’s
mandate did not clearly foreclose reconsideration of the
Board’s underlying rule regarding dues checkoff after
expiration of the applicable collective bargaining agreement,
and therefore the Board was not bound by its prior decision.
Valley Hospital next argued that the panel should affirm
the Board’s first decision (“Valley Hospital I”) as the most
reasonable interpretation of the NLRA based on the
explanation in the dissenting opinion in the Board’s decision
on remand (“Valley Hospital II”). The panel stated that it
was reviewing the Board’s decision on remand in Valley
Hospital II, not the Board’s decision in Valley Hospital I or
the dissenting opinion in Valley Hospital II. The panel held
that the Board followed a proper decisionmaking process in
4 VALLEY HOSP. MED. CTR., INC. V. NLRB
Valley Hospital II by providing a reasoned explanation for
overruling its prior decision, and applied a permissible
interpretation of the NLRA.
Judge O’Scannlain specially concurred to highlight a
troubling trend where the Board frequently changes its mind
depending on its political composition, as illustrated by its
changing approach in this case to union dues checkoff by
employers pursuant to a collective bargaining agreement.
COUNSEL
Proloy K. Das, I., (argued), Ford Harrison LLP, Hartford,
Connecticut; Thomas Keim, Ford Harrison LLP,
Spartanburg, South Carolina; Tammie Rattray, Ford
Harrison LLP, Tampa, Florida; for Petitioner Valley
Hospital Medical Center, Inc..
Eric Weitz (argued), Attorney; Kira D. Vol, Supervisory
Attorney; David Habenstreit, Assistant General Counsel;
Ruth E. Burdick, Deputy Associate General Counsel; Peter
S. Ohr, Deputy General Counsel; Jennifer A. Abruzzo,
General Counsel; National Labor Relations Board,
Washington, D.C; for Respondent National Labor Relations
Board.
Kimberley C. Weber (argued), McCracken Stemerman &
Holsberry LLP, Oakland, California, for Intervenor Local
Joint Executive Board of Las Vegas.
VALLEY HOSP. MED. CTR., INC. V. NLRB 5
ORDER
The opinion and Judge O’Scannlain’s special
concurrence filed on February 20, 2024, and published at 93
F.4th 1120 (9th Cir. 2024) are amended by the opinion and
respective concurrence filed concurrently with this order.
Judge Owens voted to deny Valley Hospital’s petition
for rehearing en banc, and Judge O’Scannlain and Judge
Kennelly so recommended. The full court has been advised
of the petition for rehearing en banc, and no judge has
requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED. No
further petitions for rehearing or rehearing en banc will be
entertained.
OPINION
O’SCANNLAIN, Circuit Judge:
We previously remanded this case to the National Labor
Relations Board to explain better its decision that an
employer may unilaterally cease union dues checkoff after
the expiration of a collective bargaining agreement. Instead,
the Board changed its mind and rendered a new decision to
the contrary. We must decide whether its new decision
violated our mandate and whether that decision was rational
and consistent with the National Labor Relations Act.
6 VALLEY HOSP. MED. CTR., INC. V. NLRB
I
A
The Local Joint Executive Board of Las Vegas (“the
Union”) represented employees at Valley Hospital Medical
Center (“Valley Hospital”), a hospital in Las Vegas, Nevada.
The Collective Bargaining Agreement (“the Agreement”)
between the Union and Valley Hospital included a checkoff
provision that required Valley Hospital to deduct union dues
from participating employees’ paychecks and remit those
dues to the Union. The Agreement also included a union
security provision that required certain Valley Hospital
employees to be Union members. Because Nevada is a
right-to-work state, the union security provision was not
applicable. Nev. Rev. Stat. § 613.250.
The Agreement expired, and Valley Hospital initially
continued dues checkoff. But about thirteen months later,
Valley Hospital stopped deducting dues, without an
agreement in place and without negotiating with the Union.
The Union filed an unfair labor practice charge, the Board
Regional Director issued a complaint, and an Administrative
Law Judge dismissed the complaint.
On review, the National Labor Relations Board (“the
Board”) also dismissed the complaint. Valley Hosp. Med.
Ctr., Inc., 368 N.L.R.B. No. 139, slip op. at 9 (2019) (“Valley
Hospital I”). The Board overruled its precedent requiring
employers to continue dues checkoff after the expiration of
a collective bargaining agreement and reinstated a
longstanding rule that employers have no such obligation.
Id. at 8-9.
We granted the Union’s petition for review and
remanded the case because the Board’s “contract creation
VALLEY HOSP. MED. CTR., INC. V. NLRB 7
rationale” failed to acknowledge apparent departures from
Board precedent. Local Joint Exec. Bd. v. NLRB, 840 F.
App’x 134, 137 (9th Cir. 2020) (“LJEB V”) (remanding so
that the Board could “explicitly address the prior
decisions”). 1 We did not vacate the Board’s decision
because we recognized that the Board would likely be able
to cure the flaw in its reasoning. Id. at 137-38. But we also
acknowledged that the Board has discretion and “may
change direction.” Id. at 137.
On remand, the Board indeed changed direction. The
Board reversed its decision in Valley Hospital I, readopted
its prior rule prohibiting employers from unilaterally ceasing
dues checkoff after expiration of a collective bargaining
agreement, and found that Valley Hospital engaged in an
unfair labor practice. Valley Hosp. Med. Ctr., Inc., 371
N.L.R.B. No. 160, slip op. at 17 (2022) (“Valley Hospital
II”). Valley Hospital now petitions for review, and the
Board applies for enforcement.
B
The National Labor Relations Act (“NLRA”) requires
employers and unions to bargain collectively over “terms
and conditions of employment,” including dues checkoff. 29
U.S.C. § 158(d); Tribune Publ’g Co. & Graphic Commc’ns
Int’l, 351 N.L.R.B. 196, 197 (2007), enforced, 564 F.3d
1330 (D.C. Cir. 2009). Refusing to bargain over terms and
conditions, known as “mandatory subjects of bargaining,” is
an unfair labor practice. 29 U.S.C. § 158(a)(5); see, e.g.,
1
Several relevant cases have identical names. To minimize confusion,
we refer to these as LJEB I—LJEB V. The first four cases, LJEB I-IV,
concern a different dispute between the Union and a hotel and casino
operator. LJEB I-III are discussed below, and LJEB IV, 883 F.3d 1129
(9th Cir. 2018), addressed the remedy in that dispute.
8 VALLEY HOSP. MED. CTR., INC. V. NLRB
LJEB I, 309 F.3d 578, 581-82 (9th Cir. 2002) (referring to
“mandatory subjects”). An employer violates its duty to
bargain by unilaterally changing terms and conditions of
employment during negotiations. NLRB v. Katz, 369 U.S.
736, 743 (1962); see also Litton Fin. Printing Div. v. NLRB,
501 U.S. 190, 198 (1991) (the same rule applies during
negotiations after the expiration of a collective bargaining
agreement). Under Katz’s “unilateral change doctrine,”
when a collective bargaining agreement expires, its terms
and conditions persist under the NLRA. LJEB II, 540 F.3d
1072, 1078 (9th Cir. 2008).
The unilateral change doctrine has exceptions. See, e.g.,
Litton, 501 U.S. at 199 (collecting exceptions). For example,
union security provisions must expire with the collective
bargaining agreement. Id. For many decades, dues checkoff
was one of these exceptions. In Bethlehem Steel Co., the
Board reasoned that an employer’s obligation to deduct and
to remit dues under a checkoff provision expired with the
agreement because dues checkoff provisions “implemented
the union-security provisions.” 136 N.L.R.B. 1500, 1502
(1962), remanded on other grounds sub nom. Indus. Union
of Marine & Shipbuilding Workers of Am. v. NLRB, 320 F.2d
615 (3d Cir. 1963).
The Board routinely applied Bethlehem Steel until this
court questioned its application in right-to-work states that
prohibit union security provisions. LJEB I, 309 F.3d at 583-
84; LJEB II, 540 F.3d at 1082; LJEB III, 657 F.3d 865, 876
(9th Cir. 2011). After the Board could not reach a decision,
we interpreted the NLRA ourselves and held that, in right-
to-work states where dues checkoff cannot “implement”
union security provisions, dues checkoff is “akin to any other
term of employment that is a mandatory subject of
bargaining,” and cannot be unilaterally changed during
VALLEY HOSP. MED. CTR., INC. V. NLRB 9
negotiations. LJEB III, 657 F.3d at 876. The Board
subsequently overruled Bethlehem Steel. Lincoln Lutheran
of Racine, 362 N.L.R.B. 1655, 1662-63 (2015); see also
WKYC-TV, Inc., 359 N.L.R.B. 286, 293 (2012) (overruling
Bethlehem Steel), invalidated by NLRB v. Noel Canning, 573
U.S. 513 (2014).
That brings us to this dispute. In Valley Hospital I, the
Board overruled Lincoln Lutheran and reinstated the
longstanding rule from Bethlehem Steel. 368 N.L.R.B. No.
139 at 8-9. Then, following our remand, the Board in Valley
Hospital II reversed Valley Hospital I and readopted the rule
from Lincoln Lutheran prohibiting employers from
unilaterally ceasing dues checkoff after expiration of the
collective bargaining agreement. 371 N.L.R.B. No. 160 at
17.
II
Valley Hospital raises two arguments, which we address
in turn. Valley Hospital first argues that the Board exceeded
its authority because our mandate authorized the Board to
supplement its reasoning but not to change its interpretation
of the NLRA. The mandate rule jurisdictionally bars district
courts and agencies from revisiting matters that this court
has decided. United States v. Thrasher, 483 F.3d 977, 981-
82 (9th Cir. 2007) (citing In re Sanford Fork & Tool Co.,
160 U.S. 247, 255-56 (1895)); see also Cal. Pub. Utils.
Comm’n v. FERC, 29 F.4th 454, 462 (9th Cir. 2022)
(applying the mandate rule to agency adjudication). “An
administrative agency may therefore consider on remand
‘any issue not expressly or impliedly disposed of on
appeal.’” Olivas-Motta v. Whitaker, 910 F.3d 1271, 1280
(9th Cir. 2018) (quoting Stacy v. Colvin, 825 F.3d 563, 568
(9th Cir. 2016)).
10 VALLEY HOSP. MED. CTR., INC. V. NLRB
A
As a preliminary matter, we must determine whether we
have jurisdiction to consider Valley Hospital’s argument.
As the Board observes, Valley Hospital did not raise its
mandate rule argument before the Board. Under section
10(e) of the NLRA, we lack jurisdiction to consider
objections that were not raised before the Board, unless
excused by “extraordinary circumstances.” 29 U.S.C.
§ 160(e); see also id. § 160(f) (incorporating same standard);
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645,
665-66 (1982). Yet we have also recognized that “[w]hen
§ 10(e) bars our consideration of a party’s objection . . . the
Board is entitled to enforcement unless the Board has
‘patently traveled outside the orbit of its authority.’ In such
a case, there would be ‘legally speaking no order to
enforce.’” Int’l Union of Painter & Allied Trades v. J & R
Flooring, Inc., 656 F.3d 860, 867 (9th Cir. 2011) (quoting
NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 388
(1946)); see also Polynesian Cultural Ctr., Inc. v. NLRB, 582
F.2d 467, 472 (9th Cir. 1978) (“[J]urisdiction in the sense of
‘power to hear and determine the controversy’ . . . can be
questioned at any time . . . .” (quoting NLRB v. Pappas, 203
F.2d 569, 571 (9th Cir. 1953))).
The mandate rule limits the jurisdiction of district courts
and agencies on remand. If the Board did not follow our
mandate, it would be patently obvious that the Board
exceeded its authority. Accord Carroll Coll., Inc. v. NLRB,
558 F.3d 568, 574 (D.C. Cir. 2009) (“A court can always
invalidate Board action that is patently beyond the Board’s
jurisdiction, even if the jurisdictional challenge was never
presented to the Board.” (citation omitted)); cf. Noel
Canning v. NLRB, 705 F.3d 490, 497-98 (D.C. Cir. 2013) (a
constitutional challenge to the appointments of Board
VALLEY HOSP. MED. CTR., INC. V. NLRB 11
members was an “extraordinary circumstance” that could be
considered for the first time by a circuit court); contra
Quality Health Servs. of P.R., Inc. v. NLRB, 873 F.3d 375,
383 (1st Cir. 2017) (section 10(e) barred consideration of a
challenge to the services of a single officer as opposed to a
challenge to “the Board’s authority to act”). Accordingly,
we have jurisdiction to consider Valley Hospital’s argument.
B
When a case is remanded, an agency is confined by the
clear scope of the mandate, but it is free to decide any issues
not foreclosed by the mandate. Hall v. City of Los Angeles,
697 F.3d 1059, 1067 (9th Cir. 2012) (“The mandate requires
respect for what the higher court decided, not for what it did
not decide.” (cleaned up)). Our earlier mandate did not
clearly foreclose reconsideration of the Board’s underlying
rule regarding dues checkoff after expiration of the
applicable collective bargaining agreement. Using
conditional language, we concluded, “[I]t does not
necessarily follow that the Board’s rule must be vacated,”
and we predicted that the Board “likely will be able to cure
the identified flaw . . . .” LJEB V, 840 F. App’x at 137. We
also noted that the Board “has discretion to adopt its
preferred rule” and “may change direction yet again.” Id.
We never considered whether the Board’s interpretation of
the NLRA was permissible, much less whether it was
required. It would offend the Administrative Procedure
Act’s scheme of “reasoned decisionmaking” to bind the
Board to a decision whose merits neither the Board nor we
adequately considered. Michigan v. EPA, 576 U.S. 743, 750
(2015) (quoting Allentown Mack Sales & Serv., Inc. v.
NLRB, 522 U.S. 359, 374 (1998)). Accordingly, the Board
was not bound by its prior decision.
12 VALLEY HOSP. MED. CTR., INC. V. NLRB
III
Valley Hospital next argues that Valley Hospital I is the
“most reasonable” interpretation of the NLRA, and it asks us
to “affirm” the rule of Valley Hospital I based on the
explanation provided by the dissent in Valley Hospital II.
A
Exactly which decision are we reviewing? Because our
earlier judgment did not prohibit the Board from
reconsidering Valley Hospital I, we cannot reinstate a
decision that the Board itself reversed. Valley Hospital II,
371 N.L.R.B. No. 160 at 17. Nor can we approve a Board
decision on the basis of a dissenting opinion at the Board.
When reviewing agency actions, courts are limited to
considering the agency’s explanation. Alaska Eskimo
Whaling Comm’n v. EPA, 791 F.3d 1088, 1093 (9th Cir.
2015) (citing SEC v. Chenery Corp., 332 U.S. 194, 196
(1947)). We are not aware of any case—and Valley Hospital
does not cite any—relying on a dissenting opinion in an
agency action to justify an earlier action that the agency
reversed.
The law confirms what common sense dictates: a dissent
is not an action by the Board. See 29 U.S.C. § 153(b) (three
members constitute a quorum of the Board unless the Board
has delegated its authority to a three-member panel); New
Process Steel, LP v. NLRB, 560 U.S. 674, 686 (2010) (“[W]e
are not persuaded . . . that we should read the statute to
authorize the Board to act with only two members . . . .”).
And we have rejected Valley Hospital’s approach in the past.
In LJEB III, the Board could not reach a majority decision
and affirmed its rule in Bethlehem Steel on procedural
grounds because the four members were evenly split. 657
F.3d at 867. We interpreted the NLRA ourselves, rather than
VALLEY HOSP. MED. CTR., INC. V. NLRB 13
relying on one of the non-majority opinions, much less
reinstating a prior order of the Board. Id. at 874. In this case,
we review the Board’s decision on remand, Valley Hospital
II.
B
We will enforce a Board order when the Board’s factual
findings are supported by substantial evidence, and the
Board correctly applied the law. NLRB v. Nexstar
Broadcasting, Inc., 4 F.4th 801, 805-06 (9th Cir. 2021)
(citing 29 U.S.C. § 160(e)). The facts are not disputed here,
so we will enforce the Board’s order so long as the Board
followed a proper decisionmaking process and applied a
permissible interpretation of the NLRA. The Board has
primary responsibility for “developing and applying national
labor policy.” NLRB v. Curtin Matheson Sci., Inc., 494 U.S.
775, 786 (1990). Because the NLRA is ambiguous
regarding dues checkoff, LJEB III, 657 F.3d at 874, we defer
to the Board’s interpretation “as long as it is rational and
consistent with the Act,” Curtin Matheson, 494 U.S. at 787;
accord LJEB III, 657 F.3d at 870 (citing Chevron USA, Inc.
v. NRDC, Inc., 467 U.S. 837 (1984)).2
2
In its petition for rehearing en banc, Valley Hospital suggests that we
stay consideration pending the Supreme Court’s decisions in Loper
Bright Enterprises v. Raimondo, U.S. No. 22-451 and Relentless, Inc. v.
Department of Commerce, U.S. No. 22-1219. But Valley Hospital did
not raise this argument earlier and instead asked us to defer to the
Board’s Valley Hospital I interpretation. Even if we interpreted the
statute ourselves, the result would not change. This court has already
independently interpreted the NLRA to prohibit unilateral cessation of
dues checkoff after the expiration of the collective bargaining agreement
in a right-to-work state, and we are bound by that precedent. LJEB III,
657 F.3d at 876. While the Board may reinterpret the statute, see id.
(citing Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545
14 VALLEY HOSP. MED. CTR., INC. V. NLRB
1
We must hold unlawful and set aside agency actions that
are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). When an agency overrules its prior decisions,
it must acknowledge the change and provide a reasoned
explanation. FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009). “[I]t suffices that the new policy is
permissible under the statute, that there are good reasons for
it, and that the agency believes it to be better . . . .” Id. Here,
the Board acknowledged that it departed from the precedent
of Bethlehem Steel and Valley Hospital I and believed that it
was adopting a “better interpretation of the Act and its
policies.” Valley Hospital II, 371 N.L.R.B. No. 160 at 17.
The Board also provided thorough reasoning to support its
new interpretation of the NLRA. The Board weighed policy
considerations and compared dues checkoff to other
exceptions to the unilateral change doctrine. Valley Hospital
has not challenged the Board’s decisionmaking process; we
are persuaded that the Board acted rationally by adequately
considering and explaining its decision.
2
The Board’s interpretation of the NLRA is permissible
so long as it is not “manifestly contrary” to the NLRA. The
Wilderness Soc’y v. U.S. Fish & Wildlife Serv., 353 F.3d
1051, 1059 (9th Cir. 2003) (en banc) (quoting Chevron, 467
U.S. at 844). As a matter of Ninth Circuit law, the Board’s
interpretation was permissible in this case. In LJEB III, we
independently interpreted the NLRA to prohibit the
U.S. 967, 982-83 (2005)), we cannot as a three-judge panel, see, e.g.,
Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc).
VALLEY HOSP. MED. CTR., INC. V. NLRB 15
unilateral cessation of dues checkoff following expiration of
a collective bargaining agreement in a right-to-work state.
657 F.3d at 875-76. LJEB III involved similar terms in the
same right-to-work state, Nevada. See LJEB II, 540 F.3d at
1075-76. The Board’s interpretation, which followed our
own, was permissible under the NLRA, at least as applied to
parties in a right-to-work state.
IV
For the foregoing reasons, we DENY Valley Hospital’s
petition for review, GRANT the Board’s cross-application
for enforcement, and ENFORCE the Board’s order.
PETITION DENIED; CROSS-APPLICATION
GRANTED; ORDER ENFORCED.
O’SCANNLAIN, Circuit Judge, specially concurring:
I write separately to highlight a troubling trend. The
National Labor Relations Board (“the Board”) frequently
changes its mind, seesawing back and forth between
statutory interpretations depending on its political
composition, leaving workers, employers, and unions in the
lurch. See, e.g., Zev J. Eigen & Sandro Garofalo, Less Is
More: A Case for Structural Reform of the National Labor
Relations Board, 98 Minn. L. Rev. 1879, 1887 (2014)
(“[N]ewly constituted Boards have made a practice of
overruling precedent created by past administrations’
Boards, with each Board instituting its own set of
politically-motivated rules.”).
The Board’s ever-changing approach to union dues
checkoff by employers pursuant to a collective bargaining
agreement illustrates well the Board’s instability. For 49
16 VALLEY HOSP. MED. CTR., INC. V. NLRB
years, an employer could unilaterally cease dues checkoff
after the applicable collective bargaining agreement expired.
Bethlehem Steel Co., 136 N.L.R.B. 1500, 1502 (1962),
remanded on other grounds sub nom. Indus. Union of
Marine & Shipbuilding Workers of Am. v. NLRB, 320 F.2d
615 (3d Cir. 1963). After this court questioned that rule’s
application in right-to-work states, see supra, Op. at 4, the
Board scrapped it entirely and held instead that employers
could not unilaterally cease dues checkoff. WKYC-TV, Inc.,
359 N.L.R.B. 286, 293 (2012). That decision was later
invalidated because of a separate Supreme Court ruling,
NLRB v. Noel Canning, 573 U.S. 513 (2014), and the Board
reinstated the prohibition one year later, Lincoln Lutheran of
Racine, 362 N.L.R.B. 1655, 1662-63 (2015). Then the
Board’s composition changed and so did its legal
interpretation. Valley Hosp. Med. Ctr., Inc., 368 N.L.R.B.
No. 139 (2019) (“Valley Hospital I”). After we remanded
Valley Hospital I, the Board’s composition and interpretation
changed once more. Valley Hosp. Med. Ctr., Inc., 371
N.L.R.B. No. 160 (2022) (“Valley Hospital II”). In sum, for
49 years, an employer could unilaterally cease dues checkoff
after the agreement expired; then Lincoln Lutheran
prohibited unilateral cessation for four years; Valley Hospital
I once again allowed it for three years; and now, for the past
two years, Valley Hospital II has prohibited unilateral
cessation.
Union dues checkoff is far from the only subject on
which the Board has vacillating views. See Eigen &
Garofolo, supra, at 1887-1892 (describing the Board’s “flip-
flop problem”); see also Alexander MacDonald, The Labor
Law Enigma: Article III, Judicial Power, and the National
Labor Relations Board, 24 Federalist Soc’y Rev. 304, 328-
29 (2023); Amy Semet, Political Decision-Making at the
VALLEY HOSP. MED. CTR., INC. V. NLRB 17
National Labor Relations Board: An Empirical Examination
of the Board’s Unfair Labor Practice Disputes Through the
Clinton and Bush II Years, 37 Berkeley J. Emp. & Lab. L.
223, 230 (2016) (noting “frequent flip-flops over some of the
most important legal issues coming before the Board”).
Consequently, workers, employers, and unions can only
guess at their rights and obligations under the National Labor
Relations Act (“NLRA”). Eigen and Garofalo, supra, at
1885. To be sure, agency interpretations and policies should
not be set in stone. As the Board handles cases, one would
expect it to learn through experience, building upon
cumulative wisdom in an “evolutional approach.” NLRB v.
J. Weingarten, Inc., 420 U.S. 251, 265-66 (1975). But the
Board is not changing labor law through incremental
progression. Rather, it veers violently left and right, a
windsock in political gusts.
Beyond the practical difficulties it creates, the Board’s
approach also raises fundamental concerns about how courts
interpret the NLRA and other statutes administered by
agencies. See, e.g., Transcript of Oral Argument at 24-25,
74, Loper Bright Enters. v. Raimondo, ___ U.S. ___ (2024)
(No. 22-451). In particular, the Board’s mercurial
interpretation implicates two frequent justifications for
Chevron deference: (1) the need for uniform national
regulatory policy and (2) the subject-matter expertise of
agencies. See generally Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also,
e.g., Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1495 (9th
Cir. 1997) (discussing uniformity and expertise as Chevron’s
“policy underpinnings”). But today, neither justification
compels deference. The Board’s “flip-flop problem” creates
nationally unstable labor policy, consistent from one state to
another but not from one day to the next. Eigen & Garofalo,
18 VALLEY HOSP. MED. CTR., INC. V. NLRB
supra, at 1887; see also Robert Iafolla, NLRB Dials Back
Employers’ Authority to Act Unilaterally, Bloomberg Law
(Aug. 30, 2023),
https://www.bloomberglaw.com/bloomberglawnews/daily-
labor-report/X596N79C000000?bna_news_filter=daily-
labor-report [https://perma.cc/74WQ-AM6U] (describing a
lawyer’s view that “no employer or union can rely on NLRB
precedent because the board is partisan and will flip-flop
after control of the White House changes from party to
party”). And, at best, it is unclear whether the Board
exercises policy expertise or instead vindicates ideological
preferences. See Semet, supra, at 292 (“Expertise [falls] to
the wayside and serves as the smokescreen for political
influence.”). In short, we too often defer to an unstable body
of labor law built on political predilection rather than policy
expertise.
While the Board is notorious for its changes in
interpretation, it is far from the only agency to modify its
legal views alongside its political ones. See Richard J.
Pierce, Jr., The Future of Deference, 84 Geo. Wash. L. Rev.
1293, 1309-12. “[I]t seems wrong in some important sense
to acquiesce in a legal regime that allows myriad changes in
the meaning of legal terms every time a President of one
party replaces a President of the other party.” Id. at 1312.
But that is precisely what our deference doctrines allow.
Perhaps the time has come to reevaluate those doctrines.
Our holding today is narrow. Because the Board
adequately explained its reasoning and reached a result not
at odds with the NLRA, it can require employers to continue
dues checkoff after the expiration of the applicable collective
bargaining agreement—at least until the next time that the
Board changes its mind.