Valley Hospital Medical Center, Inc. v. National Labor Relations Board

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.