FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VALLEY HOSPITAL MEDICAL 

CENTER, INC.,

Petitioner,

 v.

NATIONAL LABOR RELATIONS 

BOARD,

Respondent,

----------------------------------------

LOCAL JOINT EXECUTIVE 

BOARD OF LAS VEGAS,

Intervenor.

No. 22-1804

NLRB No.

28-CA-213783

ORDER AND 

AMENDED 

OPINION

NATIONAL LABOR RELATIONS 

BOARD,

Petitioner,

 v.

VALLEY HOSPITAL MEDICAL 

CENTER, INC.,

Respondent.

No. 22-1978

NLRB No.

28-CA-213783
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 rightto-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 “flipflop 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/dailylabor-report/X596N79C000000?bna_news_filter=dailylabor-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.