The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 23-137
BOARD,
NLRB Nos.
28-CA-184993
Petitioner,
28-CA-185013
28-CA-189709
v.
28-CA-189730
28-CA-192354
VALLEY HEALTH SYSTEM, LLC
28-CA-193581
DBA DESERT SPRINGS
28-CA-194185
HOSPITAL MEDICAL
28-CA-194194
CENTER; VALLEY HOSPITAL
28-CA-194450
MEDICAL CENTER, INC. DBA
28-CA-194471
VALLEY HOSPITAL MEDICAL
28-CA-194790
CENTER,
28-CA-195235
28-CA-197426
Respondents.
28-CA-201519
OPINION
VALLEY HOSPITAL MEDICAL
CENTER, INC. DBA VALLEY No. 23-640
HOSPITAL MEDICAL CENTER, NLRB Nos.
28-CA-184993
Petitioner, 28-CA-185013
28-CA-189709
v. 28-CA-189730
2 NLRB V. VALLEY HEALTH SYSTEM, LLC
28-CA-192354
NATIONAL LABOR RELATIONS 28-CA-193581
BOARD, 28-CA-194185
28-CA-194194
Respondent, 28-CA-194450
28-CA-194471
---------------------------------------- 28-CA-194790
28-CA-195235
SERVICE EMPLOYEES 28-CA-197426
INTERNATIONAL UNION - 28-CA-201519
LOCAL 1107,
Intervenor.
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
Before: Diarmuid F. O’Scannlain and John B. Owens,
Circuit Judges, and Matthew F. Kennelly, District Judge. *
Opinion by Judge O’Scannlain
*
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
NLRB V. VALLEY HEALTH SYSTEM, LLC 3
SUMMARY **
Labor Law
The panel granted the National Labor Relations Board’s
application for enforcement, denied Valley Hospital Medical
Center, Inc.’s petition for review, and enforced the Board’s
order finding that the Hospitals engaged in an unfair labor
practice by unilaterally ceasing union dues checkoff.
Employees who wished to authorize dues checkoff
signed a written assignment authorizing the Hospitals to
deduct and to remit the employees’ union dues to the
Union. After the collective bargaining agreements expired,
the Hospitals ceased union dues checkoff because the
employees’ written assignments did not include express
language concerning revocability upon expiration of the
collective bargaining agreements. Reversing an earlier
decision, the Board held that the National Labor Relations
Act prohibits employers from unilaterally ceasing dues
checkoff after the expiration of a collective bargaining
agreement. The Board reasoned that the Taft-Hartley Act
did not require specific language in the employees’ written
assignments, so the Hospitals could not rely on that statute
to justify their unilateral action.
The Hospitals argued that they did not engage in an
unfair labor practice because the written assignment signed
by their employees did not comply with the Taft-Hartley
Act. The Taft-Hartley Act prohibits employers from paying
unions, but Section 302(c)(4) creates an exception
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 NLRB V. VALLEY HEALTH SYSTEM, LLC
permitting dues checkoff with the conditions that
participating employees must authorize dues checkoff in a
written assignment and must be given an opportunity to
revoke that assignment at least once a year and upon
expiration of the applicable collective bargaining agreement.
At issue is whether an employee’s checkoff assignment must
reflect section 302(c)(4)’s revocability requirements. The
panel held that nothing in section 302(c)(4)’s language
dictates the terms that must be used in a written assignment.
Accordingly, the Hospitals were not required by the Taft-
Hartley Act to cease dues checkoff, and the Board correctly
applied the law to determine that the Hospitals committed an
unfair labor practice by unilaterally ceasing union dues
checkoff.
COUNSEL
Eric Weitz (argued) and Micah P. Stoltzfus Jost, Attorneys;
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 Petitioner.
Thomas H. Keim, Jr. (argued), Ford Harrison LLP,
Spartanburg, South Carolina; Proloy K. Das, I, Ford
Harrison LLP, Hartford, Connecticut; Tammie Rattray, Ford
Harrison LLP, Tampa, Florida; for Respondents.
Jonah J. Lalas (argued) and Eli Naduris-Weissman, Rothner
Segall & Greenstone, Pasadena, California, for Intervenor
Service Employees International Union – Local 1107.
NLRB V. VALLEY HEALTH SYSTEM, LLC 5
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether written assignments that
authorize union dues checkoff must expressly recite
revocation opportunities guaranteed by the Taft-Hartley Act.
I
A
Service Employees International Union, Local 1107
(“the Union”) represents employees at Desert Springs
Hospital Medical Center and Valley Hospital Medical
Center (“the Hospitals”). The Union and the Hospitals
entered into collective bargaining agreements that included
checkoff provisions requiring the Hospitals to deduct union
dues from participating employees’ paychecks and to remit
those dues to the Union. Employees who wished to
authorize dues checkoff signed a written assignment
authorizing the Hospitals to deduct and to remit the
employees’ union dues to the Union.
After the agreements expired, the Hospitals continued
dues checkoff for several months. Then the Hospitals
notified the Union that the employees’ written assignments
did not include express language concerning revocability
upon expiration of the collective bargaining agreement. The
Hospitals believed this omission violated the Labor
Management Relations Act, also known as the Taft-Hartley
Act. See 29 U.S.C. § 186(c)(4). The employees’
6 NLRB V. VALLEY HEALTH SYSTEM, LLC
assignments (titled “Checkoff Authorization”) stated, in
part:
This authorization shall remain in effect and
shall be irrevocable unless I revoke it by
sending written notice to both the Employer
and the Union by registered mail during a
period from October 1-15 on each year of the
agreement and shall be automatically
renewed as an irrevocable check-off from
year to year unless revoked as hereinabove
provided, irrespective of whether I am a
Union member.
Nine days after notifying the Union, the Hospitals ceased
dues checkoff. The Union filed unfair labor practice
charges, the General Counsel of the National Labor
Relations Board (“the Board”) filed a complaint, and an
Administrative Law Judge determined that the Hospitals had
committed an unfair labor practice by unilaterally ceasing
dues checkoff.
The Board, relying on its decision in a related case,
Valley Hospital I, determined that the Hospitals had no
obligation under the National Labor Relations Act
(“NLRA”) to continue dues checkoff after the collective
bargaining agreements expired. Valley Health Sys., LLC,
369 N.L.R.B. No. 16, slip op. at 3 (2020) (citing Valley
Hosp. Med. Ctr., Inc., 368 N.L.R.B. No. 139 (2019) (“Valley
Hospital I”)). We granted the Union’s petition for review
and remanded the case because the Board failed to explain
adequately its decision in Valley Hospital I. SEIU Local
1107 v. NLRB, 832 F. App’x 514 (9th Cir. 2020).
NLRB V. VALLEY HEALTH SYSTEM, LLC 7
Considering the related case on remand, Valley Hospital
II, the Board reversed its earlier decision and determined that
the NLRA prohibits employers from unilaterally ceasing
dues checkoff after expiration of a collective bargaining
agreement. Valley Hosp. Med. Ctr., Inc., 371 N.L.R.B. No.
160 (2022) (“Valley Hospital II”). Following Valley
Hospital II, the Board in this case concluded that the
Hospitals engaged in an unfair labor practice by unilaterally
ceasing dues checkoff. Valley Health Sys., LLC, 372
N.L.R.B. No. 33, slip op. at 5-6 (2022). The Board reasoned
that the Taft-Hartley Act did not require specific language in
written assignments, so the Hospitals could not rely on that
statute to justify their unilateral action. Id. at 3. The Board
now applies for enforcement, and one of the Hospitals
petitions for review.
B
The 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). An
employer commits an unfair labor practice by unilaterally
changing terms and conditions of employment during
negotiations after a collective bargaining agreement expires.
29 U.S.C. § 158(a); Litton Fin. Printing Div. v. NLRB, 501
U.S. 190, 198 (1991). In a concurrently filed opinion, we
enforced the Board’s order in Valley Hospital II that
concluded an employer commits an unfair labor practice by
unilaterally ceasing dues checkoff after expiration of the
collective bargaining agreement. Valley Hosp. Med. Ctr.,
Inc. v. NLRB, Nos. 22-1804, 22-1978, ___ F.4th ___ (9th
Cir. 2024).
8 NLRB V. VALLEY HEALTH SYSTEM, LLC
II
The Hospitals raise three arguments. Two arguments
concern the Board’s decision and order in Valley Hospital II,
and we addressed such arguments in our concurrently filed
opinion. Id. Accordingly, we consider only the Hospitals’
third argument concerning the Taft-Hartley Act.
The Hospitals argue that they did not engage in an unfair
labor practice by ceasing dues checkoff because the
assignments signed by their employees did not comply with
the Taft-Hartley Act. 1 We review de novo the Board’s
interpretation of the Taft-Hartley Act. Delta Sandblasting
Co., Inc. v. NLRB, 969 F.3d 957, 965-66 (9th Cir. 2020).
The Taft-Hartley Act prohibits employers from paying
unions, 29 U.S.C. § 186(a)(2), and criminalizes willful
violations made with the intent to benefit the employer or
1
We observe, as the Board and the Union note, that the Hospitals’
briefing of this argument does not fully comply with the Federal Rules
of Appellate Procedure. See Fed. R. App. P. 28(a)(5) (a brief must
include a statement of the issues presented for review), 28(a)(8)(B) (a
brief must include the standard of review for each issue). Under Ninth
Circuit Rule 28-1(a), we may strike the argument. We decline to do so
because the Hospitals have sufficiently presented their argument for us
to rule on, and the deficiencies have not misled the other parties or this
court. Bhd. of Locomotive Firemen & Enginemen v. Butte, Anaconda &
Pac. Ry. Co., 286 F.2d 706, 710 (9th Cir. 1961) (discussing requirements
for briefs imposed then by Ninth Circuit Rule 18); see also N/S Corp. v.
Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) (“By and
large, we have been tolerant of minor breaches of one rule or another.”);
Cuevas v. De Roco, 531 F.3d 726, 728 n.1 (9th Cir. 2008) (per curiam)
(declining to strike a brief which “despite some inaccuracies, adequately
states [the litigants’] case”).
NLRB V. VALLEY HEALTH SYSTEM, LLC 9
union, id. § 186(d)(1). Section 302(c)(4) creates an
exception permitting dues checkoff with conditions:
The provisions of this section shall not be
applicable . . . (4) with respect to money
deducted from the wages of employees in
payment of membership dues in a labor
organization: Provided, That the employer
has received from each employee, on whose
account such deductions are made, a written
assignment which shall not be irrevocable for
a period of more than one year, or beyond the
termination date of the applicable collective
agreement, whichever occurs sooner.
29 U.S.C. § 186(c)(4). Section 302(c)(4) requires
participating employees to authorize dues checkoff in a
written assignment, and the statute provides employees an
opportunity to revoke that assignment at least once per year
and upon expiration of the applicable collective bargaining
agreement. NLRB v. Atlanta Printing Specialties & Paper
Prods. Union 527, 523 F.2d 783, 785 (5th Cir. 1975). The
question then becomes whether an employee’s checkoff
assignment must reflect section 302(c)(4)’s revocability
requirements. 2
Nothing in section 302(c)(4)’s language dictates the
terms that must be used in a written assignment. This
omission contrasts with the provision’s statutory neighbor,
section 302(c)(5). There, Congress allowed employers to
contribute to certain employee trust funds, “Provided,
2
Written assignments are often referred to as “authorizations.” We use
the term “assignment” to be consistent with the statute.
10 NLRB V. VALLEY HEALTH SYSTEM, LLC
That . . . (B) the detailed basis on which such payments are
to be made is specified in a written agreement . . . [and] such
agreement provides that the two groups shall agree on an
impartial umpire [to decide certain disputes] . . . and shall
also contain provisions for an annual audit of the trust fund
. . . .” 29 U.S.C. § 186(c)(5). “Where Congress employs
different language in related sections of a statute we presume
these ‘differences in language . . . convey differences in
meaning.’” Lopez v. Sessions, 901 F.3d 1071, 1077-78 (9th
Cir. 2018) (quoting Wis. Cent. Ltd. v. United States, 138 S.
Ct. 2067, 2071 (2018)). Congress knew how to require
specific terms in a document, and it did not require any
specific language in section 302(c)(4).
Interpreting a similar statute, the Supreme Court held
that a dues checkoff agreement could not restrict employees’
statutory revocation opportunities. See Felter v. S. Pac. Co.,
359 U.S. 326, 330 (1959). The Railway Labor Act
authorizes dues checkoff in a provision like section
302(c)(4). See 45 U.S.C. § 152, Eleventh (b). 3 In Felter, the
Court held that an employee’s written revocation was valid,
even though it was not on the form required by the dues
checkoff agreement between the union and the carrier. 359
U.S. at 329-30. The Court reasoned that Congress denied
unions and carriers the authority “to reach terms which
3
The provision permits dues checkoff from carriers to unions:
Provided, That no such agreement shall be effective
with respect to any individual employee until he shall
have furnished the employer with a written assignment
to the labor organization of such membership dues,
initiation fees, and assessments, which shall be
revocable in writing after the expiration of one year or
upon the termination date of the applicable collective
agreement, whichever occurs sooner.
NLRB V. VALLEY HEALTH SYSTEM, LLC 11
would restrict the employee’s complete freedom to revoke
an assignment” when allowed by the Railway Labor Act. Id.
at 333.
Similarly, the Fifth Circuit held that the Taft-Hartley Act
guaranteed employees a revocation opportunity upon
expiration of the original collective bargaining agreement,
even when the employer and the union extended the
agreement. Atlanta Printing, 523 F.2d at 787; see also id. at
788 (“This statutorily guaranteed right may not be abrogated
by the extension of the bargaining agreement by the union
and the employer.”).
The Union and the Hospitals could not modify
employees’ statutory revocation rights, and section
302(c)(4), unlike section 302(c)(5), does not require specific
recitals in written assignments. Thus, we conclude that the
Hospitals were not required by the Taft-Hartley Act to cease
dues checkoff. The Board, relying on Valley Hospital II,
correctly applied the law to determine that the Hospitals
committed an unfair labor practice by unilaterally ceasing
dues checkoff.
III
For the foregoing reasons and those stated in the
concurrently filed opinion, we GRANT the Board’s
application for enforcement, DENY the cross-petition for
review, and ENFORCE the Board’s order in full.
APPLICATION GRANTED; CROSS-PETITION
DENIED; ORDER ENFORCED.