FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOCAL JOINT EXECUTIVE BOARD OF 

LAS VEGAS,

Petitioner,

No. 07-73979

ARCHON CORPORATION,

NLRB No. Intervenor,  28-CA-13274

v.

OPINION

NATIONAL LABOR RELATIONS

BOARD,

Respondent. 

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted

June 25, 2008—Pasadena, California

Filed August 27, 2008

Before: William C. Canby, Jr., Susan P. Graber, and

Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

11849
COUNSEL

Michael T. Anderson, Davis, Cowell & Bowe, LLP, San

Francisco, California, for the petitioner. 

LOCAL JOINT EXECUTIVE BD v. NLRB 11851
Julie B. Broido and Gregory P. Lauro, National Labor Relations Board, Washington, D.C., for respondent. 

OPINION

PAEZ, Circuit Judge: 

This is the second time that Petitioner Local Joint Executive Board of Las Vegas, Culinary Workers Union Local 226

and Bartenders Union Local 165 (“the Union”)1 petitions for

our review of a National Labor Relations Board (“NLRB” or

“the Board”) order dismissing its consolidated complaints

against Hacienda Resort Hotel and Casino and Sahara Hotel

and Casino (“the Employers”)2 for unilaterally terminating

dues-checkoff before bargaining to agreement or impasse.

The dispute centers on the Board’s application of the unilateral change doctrine as recognized by NLRB v. Katz, 369 U.S.

736 (1962). Under this doctrine, absent a waiver, an employer

violates sections 8(a)(1) and 8(a)(5) of the National Labor

Relations Act (“NLRA” or “the Act”), 29 U.S.C. § 158(a)(1)

and (5), if it makes a unilateral change in a term or condition

of employment—so-called “mandatory subjects” of

bargaining—without first bargaining over the relevant term.

In our prior decision in this case, Local Joint Executive Bd.

of Las Vegas v. NLRB (LJEB I), 309 F.3d 578 (9th Cir. 2002),

we granted the Union’s petition, vacated the Board’s decision

and remanded to the Board with instructions because we

could not discern the Board’s rationale for excluding, in the

absence of union security, dues-checkoff from Katz’ unilateral

1Petitioner Local Joint Executive Board of Las Vegas is a committee of

two local labor unions, Culinary Workers Union Local 226 and Bartenders

Union Local 165. Local 226 and Local 165 are affiliated with the Hotel

Employees and Restaurant Employees International Union (AFL CIO). 

2Archon Corporation is the Employers’ successor in interest. We

granted Archon Corporation’s motion to intervene pursuant to Fed. R.

Appellate P. 15(d). 

11852 LOCAL JOINT EXECUTIVE BD v. NLRB
change doctrine. In particular, we found that if “[t]he checkoff

is merely a means of implementing union security [as in Bethlehem Steel] . . . such reasoning would not support the rule

that the Board applies in this case.” Id. at 584 (internal quotation marks omitted). We asked the Board to “articulate a reasoned explanation for the rule it adopted, or [to] adopt a

different rule and present a reasoned explanation to support

it.” Id. at 586. 

On remand, the Board reaffirmed its dismissal of the complaint but, reversing field, did not rely on the bright-line rule

articulated in its original decision. See Hacienda Hotel Inc.,

Gaming Corp. (Hacienda II), ___ N.L.R.B. ___, 351 NLRB

No. 32, 2007 WL 2899736, at *1 (Sept. 29, 2007). Instead,

the Board interpreted the collective bargaining agreements

(“the Agreements”) and found, without resolving whether in

the absence of union security dues-checkoff should be

excluded from Katz’ unilateral change doctrine, that the

Union had explicitly waived any right of employees to claim

dues-checkoff after the Agreements expired. Id. at *2-3.

Accordingly, the Board dismissed the Union’s complaint. 

In its petition for review, the Union argues that the Board

side-stepped the issue posed in our remand, but we conclude

that the Board was responsive to our instruction to “adopt a

different rule.” LJEB I, 309 F.3d at 586. The Board’s decision

does not, however, properly apply the rule it adopted. Where

a unilateral change is defended on a claim of contractual right,

the alleged waiver must be—as the Board acknowledges on

appeal—“clear and unmistakable.” Metro. Edison Co. v.

NLRB, 460 U.S. 693, 708 (1983). There is simply no clear and

unmistakable waiver here. We again grant the petition for

review, vacate, and remand. 

I. Background 3

3We restate in part the facts of this case from our prior opinion, see

LJEB I, 309 F.3d at 580-81. 

LOCAL JOINT EXECUTIVE BD v. NLRB 11853
The Employer and the Union had collective-bargaining

relationships for more than thirty years. The 1989-1994 collective bargaining agreements (the “Agreements”) were

embodied in separate, but substantially identical documents.

Each agreement contained the following dues-checkoff provision:

The Check-Off Agreement and system heretofore

entered into and established by the Employer and the

Union for the check-off of Union dues by voluntary

authorization, as set forth in Exhibit 2, attached to

and made part of this Agreement, shall be continued

in effect for the term of this Agreement. 

(emphasis added). Exhibit 2 attached to each agreement provided:

Pursuant to the Union Security provision of the

Agreement between [name of hotel] and [the Union],

the Employer, during the term of the Agreement,

agrees to deduct each month Union membership

dues (excluding initiation fees, fines and assessments) from the pay of those employees who have

authorized such deductions in writing as provided in

this Check-Off Agreement. Such membership dues

shall be limited to amounts levied by the Unions in

accordance with their Constitutions and Bylaws.

Deductions shall be made only for those employees

who voluntarily submit to the hotel employing them

a written authorization in accordance with the “Authorization for Check-Off of Dues” form set forth

below. It is the Union’s responsibility to provide the

employees with this form. 

(emphasis added). The State of Nevada, where the Employers

are located, is a “right-to-work” state.4 As a result, under sec4Nevada’s right-to-work law provides: 

[n]o person shall be denied the opportunity to obtain or retain

11854 LOCAL JOINT EXECUTIVE BD v. NLRB
tion 14(b) of the Labor Management Relations Act

(“LMRA”), 29 U.S.C.§ 164(b), the Agreements legally could

not, and therefore did not, include a union security provision

requiring union membership as a condition of employment.5

The Agreements instead provided that the union-security

clauses would become effective only if state law changed to

allow union security. 

The Agreements expired on May 31, 1994. The Employers

continued to abide by the dues-checkoff arrangement for more

than a year after this expiration date. In June 1995, however,

after notifying the Union, the Employers ceased giving effect

to the dues-checkoff provision in the expired Agreements and

thereafter redirected amounts, which previously had been

deducted and remitted to the Union, to their employees as part

of their regular wages. 

On October 26, 1995, the General Counsel for the Board

issued consolidated complaints alleging that the Employers’

unilateral termination of dues-checkoff, without bargaining to

impasse, constituted an unfair labor practice in violation of

sections 8(a)(1) and 8(a)(5) of the Act. The administrative law

judge (“ALJ”) dismissed the complaints. Relying on the language of the dues-checkoff provision, which stated that duescheckoff would “continu[e] in effect for the term of this

agreement,” the ALJ concluded that “it is unnecessary to

examine the state of the law on checkoff clauses, whether in

employment because of nonmembership in a labor organization,

[n]or shall . . . any corporation, individual or association of any

kind enter into any agreement, written or oral, which excludes

any person from employment or continuation of employment

because of nonmembership in a labor organization. 

Nev. Rev. Stat. § 613.250. 

5Section 14(b) of the LMRA permits states and territories to enact what

are commonly known as “right-to-work” laws prohibiting “agreements

requiring membership in a labor organization as a condition of employment.” 29 U.S.C. § 164(b) 

LOCAL JOINT EXECUTIVE BD v. NLRB 11855
right-to-work [s]tates or otherwise” because “[t]he most reasonable interpretation . . . is that [dues-checkoff] would continue through the duration of the contract but would not

survive thereafter.” 

On review, the Board affirmed the dismissal, but adopted

a different rationale. Hacienda Hotel, Inc. Gaming Corp.

(Hacienda I), 331 N.L.R.B. 665 (2000). Instead of relying on

the language of the dues-checkoff provisions, the Board reasoned that the Employers’ unilateral termination of duescheckoff did not constitute an unfair labor practice under sections 8(a)(1) and 8(a)(5) of the Act because dues-checkoff

was not subject to the Katz prohibition against unilateral

change. Id. at 667. The Board traced its rule excluding duescheckoff from the unilateral change doctrine to its decision in

Bethlehem Steel Co., 136 N.L.R.B. 1500, 1502 (1962),

enforced in pertinent part, Indus. Union of Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 621 (3d Cir. 1963).

Id. at 666. As evidence that the rule was “well-established,”

the Board cited numerous Board and court decisions citing the

holding of Bethlehem Steel for the proposition that an

employer’s checkoff obligation does not survive the contract

that created the obligation. Id. at 666-67. Two members of the

Board dissented, criticizing the Board’s application of the

holding in Bethlehem Steel to cases in which the collective

bargaining agreement contained no union-security provision.

Id. at 667-72. 

The Union petitioned this court for review. On October 28,

2002, we granted review and vacated the Board’s order. LJEB

I, 309 F.3d at 580. We found that we could not discern the

Board’s rationale for excluding dues-checkoff from the unilateral change doctrine in the absence of a union security provision because the “Board’s finding creates substantial

ambiguity in the rationale underlying Bethlehem Steel’s holding regarding dues-checkoff.” Id. at 584. We granted the petition for review, vacated the decision of the Board, and

remanded for the Board to articulate a reasoned explanation

11856 LOCAL JOINT EXECUTIVE BD v. NLRB
for the rule it adopted, or to adopt a different rule and present

a reasoned explanation to support it. Id. at 585. 

On remand, the parties filed position statements and four

years later, on September 29, 2007, the Board reaffirmed its

dismissal of the complaint but again changed course. Returning to the approach first adopted by the ALJ, the Board found

that the dues-checkoff provisions in the collective-bargaining

agreements contained explicit language limiting the Employers’ dues-checkoff obligation to the duration of the Agreements. 

Not only does the dues-checkoff provision state that

it “shall be continued in effect for the term of this

Agreement,” but also Exhibit 2, incorporated by reference in the checkoff provision, explicitly states

that the Respondents agree to deduct monthly union

dues “during the term of the Agreement” [emphasis

added]. 

Hacienda II, 2007 WL 2899736, at *3. The Board determined

that, “[w]here, as here, the dues-checkoff provision itself contains clear language linking dues-checkoff to the duration of

the collective-bargaining agreement, as opposed to general

durational language elsewhere[,] . . . the parties intended that

dues checkoff would not survive expiration of the agreement.” Id. Although the Board did not directly address the

significance of any underlying statutory rights, the Board

apparently concluded that these contractual provisions established that the Union had bargained away any statutory rights

it might have had with respect to dues-checkoff. As the Board

explained, the Union “explicitly waived any right to the continuation of dues checkoff as a term and condition of employment after expiration of the collective-bargaining agreement.”

Id.

6

 Again, two members of the Board dissented, objecting to

6Although the Board’s decision used neither the words “clear and

unmistakable,” nor included citations to the relevant case law, we agree

with the Board’s counsel that the appropriate analysis is whether the

Union “clearly and unmistakably” waived its statutory protection against

post-expiration termination of dues-checkoff. 

LOCAL JOINT EXECUTIVE BD v. NLRB 11857
the majority’s interpretation of the relevant contractual language and arguing that a waiver of statutory protection

against unilateral changes in this context would “effectively

drain the Katz doctrine of any force.” Id. at *6. 

On October 10, 2007, the Union filed a petition for review.

II. Standard of Review

The National Labor Relations Board “has the primary

responsibility for developing and applying national labor policy.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,

786 (1990). Accordingly, we defer to its rules so long as “the

NLRB’s interpretation of the NLRA . . . is rational and consistent with the statute.” United Food & Commercial Workers

Union, Local 1036 v. NLRB, 307 F.3d 760, 766 (9th Cir.

2002) (en banc). 

With respect to collective bargaining agreements, however,

the Supreme Court has stressed that “the Board is neither the

sole nor the primary source of authority in such matters.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 202 (1991); cf.

NLRB v. C & C Plywood Corp., 385 U.S. 421, 428 (1967).

The Board has a limited role in interpreting contracts because

section 301 of the LMRA, 29 U.S.C. § 185, “authorizes federal courts to fashion a body of federal law for the enforcement of . . . collective bargaining agreements.” Litton, 501

U.S. at 202-03 (quoting Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 451 (1957)). Accordingly,

we review de novo the Board’s interpretation of the Agreements. NLRB v. Dist. Council of Iron Workers of Cal. &

Vicinity, 124 F.3d 1094, 1098 (9th Cir. 1997).7

7We need not address whether a different standard of review should

apply if the Board appropriately referred to extrinsic evidence when interpreting a collective bargaining agreement. Here, the Board based its construction of the Agreements solely on the text of the relevant provisions.

11858 LOCAL JOINT EXECUTIVE BD v. NLRB
III. Analysis

[1] Section 8(a)(5) of the NLRA makes it an unfair labor

practice for an employer to “refuse to bargain collectively

with the representatives of his employees.” 29 U.S.C.

§ 158(a)(5). Section 8(d) requires employers to bargain collectively before introducing changes “with respect to wages,

hours, and other terms and conditions of employment.” Id.

§ 158(d). An employer violates section 8(a)(5) by making any

unilateral changes to the mandatory bargaining subjects covered by section 8(d). See NLRB v. Wooster Div. of BorgWarner Corp., 356 U.S. 342, 349 (1958).8

[2] In Katz, the Supreme Court affirmed the Board’s determination that an employer violates sections 8(a)(5) and

8(a)(1) of the Act if it makes a unilateral change in a term or

condition of employment—so-called “mandatory subjects” of

bargaining—without first bargaining to impasse over the relevant term. See, e.g., Litton, 501 U.S. 190. Agreement or

impasse is required because the terms and conditions of

employment continue in effect by operation of the NLRA;

they are no longer agreed upon terms but terms imposed by

law, at least in so far as there is no unilateral right to change

them. See id. at 206-07 (stating that “the obligation not to

make unilateral changes is rooted not in the contract but in

preservation of existing terms and conditions of employment”) (internal quotation marks omitted).9

 The Board has

8A violation of section 8(a)(5) is also a violation of section 8(a)(1),

which makes it an unfair labor practice for an employer to “interfere with,

restrain, or coerce employees in the exercise” of their statutory right to

bargain collectively through representatives of their own choosing. 29

U.S.C. § 158(a)(1); see also Standard Oil Co. of Cal. v. NLRB, 399 F.2d

639, 642 (9th Cir. 1968). 

9Most mandatory subjects of bargaining fall within the prohibition on

unilateral change. The Board has carved out exceptions to the unilateral

change rule including union-security and dues-checkoff provisions, and

arbitration and no-strike clauses, see Litton, 501 U.S. at 198-200. As we

held in LJEB I, however, the Board has not explained that why duesLOCAL JOINT EXECUTIVE BD v. NLRB 11859
recognized, however, that a union can contractually waive

statutory rights, including the right to bargain over changes in

fringe benefits. Gen. Tire & Rubber Co., 274 N.L.R.B. 591,

592 (1985); Cauthorne Trucking, 256 N.L.R.B. 721, 722

(1981). “Such waivers are valid because they ‘rest on the

premise of fair representation’ and presuppose that the selection of the bargaining representative ‘remains free.’ ” Metro.

Edison Co., 460 U.S. at 705 (quoting NLRB v. Magnavox Co.

of Tenn., 415 U.S. 322, 325 (1974)). 

[3] The standard for waiving statutory rights, however, is

high. Proof of a contractual waiver is an affirmative defense

and it is the employer’s burden to show that the contractual

waiver is “ ‘explicitly stated, clear and unmistakable.’ ” Silver

State Disposal Serv. Inc., 326 N.L.R.B. 84, 86 (1998) (quoting Lear Siegler, Inc., 293 N.L.R.B. 446, 447 (1989)); accord

Metro. Edison, 460 U.S. at 708 (declining to “infer from a

general contractual provision that the parties intended to

waive a statutorily protected right unless the undertaking is

‘explicitly stated’ ”). Equivocal, ambiguous language in a bargaining agreement, without more, is insufficient to demonstrate waiver. See Tocco Div. of Park-Ohio Indus. Inc. v.

NLRB, 702 F.2d 624, 626 (6th Cir. 1983). 

Waiver of a statutory right may be evidenced by bargaining

history, but the Board requires “the matter at issue to have

been fully discussed and consciously explored during negotiations and the union to have consciously yielded or clearly and

unmistakably waived its interest in the matter.” JohnsonBateman Co., 295 N.L.R.B. 180, 185 (1989). Because there

checkoff in the absence of union security should be excluded from the unilateral change doctrine. LJEB I, 309 F.3d at 582-84. The Board expressly

declined to provide such an explanation in Hacienda II, but our holding

requires the Board to provide a reasoned basis for its rule excluding duescheckoff from the unilateral change doctrine in the absence of union

security. Should the Board seek to apply that rule following this remand,

our holding remains the law of this case. 

11860 LOCAL JOINT EXECUTIVE BD v. NLRB
is no factual development of such a history here,10 the alleged

waiver is based wholly on the “explicit language limiting the

[Employers’] dues-checkoff obligation to the duration of the

agreements.” Hacienda II, 2007 WL 2899736, at *1. 

Therefore, as the Board recently emphasized in its decision

in Provena Hospitals, the Board has, 

in decisions too numerous to cite . . . applied the

clear and unmistakable waiver analysis to all cases

arising under Section 8(a)(5) where an employer has

asserted that a [contractual] provision authorizes it to

act unilaterally with respect to a particular term and

condition of employment. . . . 

[t]he clear-and-unmistakable waiver standard . . .

requires bargaining partners to unequivocally and

specifically express their mutual intention to permit

unilateral employer action with respect to a particular employment term, notwithstanding the statutory

duty to bargain that would otherwise apply. 

Provena Hosps., ___ N.L.R.B. ___, 350 NLRB No. 64, 2007

WL 2375089 at *4-5 (Aug. 16, 2007) (footnote omitted)

(emphasis added); see also C & C Plywood, 385 U.S. at 430

(approving of the Board’s adoption of the clear-andunmistakable standard). Although the Board has recently

engaged in an internal debate over whether to abandon this

standard, it has “specifically declined” to do so. Provena

Hosps., 2007 WL 2375089 at *5.11 We turn to whether the

10In American Distributing, we noted that such a waiver can occur “by

express contractual provisions, by bargaining history, or by a combination

of the two.” Am. Distrib. Co. v. NLRB, 715 F.2d 446, 450 (9th Cir. 1983).

The Board has never suggested—nor has there been factual development

in the record—that there was relevant bargaining history, union inaction,

or that the parties had bargained to an impasse before the Employers terminated dues-checkoff. 

11The competing standard is the so-called “contract coverage” standard,

which originated in the District of Columbia Circuit and has since been

LOCAL JOINT EXECUTIVE BD v. NLRB 11861
Board properly interpreted the Agreements when it found that

the Union clearly and unmistakably waived its statutory

rights. 

A. “Clear and Unmistakable” Waiver

The Board argues that because “the dues-checkoff provision itself contains clear language linking dues-checkoff to

the duration of the collective-bargaining agreements, as

opposed to general duration language elsewhere in the agreement,” the Union explicitly bargained away its rights. We disagree. 

[4] Although a general durational clause, without more,

does not defeat the unilateral change doctrine, Honeywell

Int’l, Inc. v. NLRB, 253 F.3d 125, 131-32 (D.C. Cir. 2001),

such language within a specific contractual provision does not

necessarily establish that the Union bargained away its rights.

The Board’s precedent has plainly and consistently distinguished between language that states a particular provision

applies “during” the contract term, and language that states

the relevant benefit will “terminate” at the end of the contract

term. Only where the provision states that the benefit will

“terminate” has the Board found a clear and unmistakable

waiver. 

In Cauthorne Trucking, the intra-provision language

explicitly stated that all employer obligations under the pension agreement would “terminate” on expiration of the contract. 256 NLRB at 722.12 The Board determined that this

adopted by the Seventh and First Circuits. See Dep’t of Navy v. Fed. Labor

Relations Auth., 962 F.2d 48 (D.C. Cir. 1992); NLRB v. United States

Postal Serv., 8 F.3d 832 (D.C. Cir. 1993); Chi. Tribune Co. v. NLRB, 974

F.2d 933 (7th Cir. 1992); Bath Marine Draftsmen’s Ass’n v. NLRB, 475

F.3d 14, 25 (1st Cir. 2007). We have not adopted the “contract coverage”

standard and neither party has suggested that we now do so. 

12The relevant provision stated, “It is understood and agreed that at the

expiration of any particular collective bargaining agreement by and

11862 LOCAL JOINT EXECUTIVE BD v. NLRB
language expressed a clear intent to relieve the employer of

any obligation to make payments after contract expiration. Id.

The Board argues that its position in this case is “consistent” with Cauthorne Trucking because, even though the text

of the dues-checkoff clauses is not identical to that found in

Cauthorne Trucking, the parties’ intent is nonetheless similarly clear. 

[5] This argument is not persuasive. First, as a matter of

plain interpretation, the contractual language that an obligation will “terminate” on expiration of an agreement is simply

not equivalent to contractual language that an obligation

“shall be continued” “during” the agreement. The latter says

nothing about what happens after the agreement expires. Second, subsequent Board decisions explicitly reject such elision.

In a series of cases, the Board has distinguished Cauthorne

Trucking and established that a clear and unmistakable waiver

of the obligation to continue providing benefits requires

explicit contract language authorizing an employer to terminate its obligations. 

In KBMS, Inc., the Board found that language requiring that

contributions be made “as long as a Producer is so obligated

pursuant to said collective bargaining agreements” did not

meet the standard under Cauthorne Trucking because this language did not “deal with the termination of the employer’s

obligation to contribute to the funds.” 278 N.L.R.B. 826, 849

(1986) (emphasis omitted and added).13 Similarly, in Schmidtbetween the Union and any Company’s obligation under this Pension

Trust Agreement shall terminate unless, in a new collective bargaining

agreement, such obligation shall be continued.” Cauthorne Trucking, 256

N.L.R.B. at 722. 

13The Board’s attempt to distinguish KBMS on the basis that the same

trust article explicitly provided that it was not intended to alter the applicable CBA is not persuasive, because the KBMS Board specifically found

that the text of the relevant provision “does not purport to deal with the

termination of the employer’s obligation to contribute to the funds.” 278

N.L.R.B. at 849 (emphasis added). 

LOCAL JOINT EXECUTIVE BD v. NLRB 11863
Tiago Constr. Co., 286 N.L.R.B. 342, 366 (1987), the Board

found no contractual waiver and adopted the ALJ’s finding

that the case could be distinguished from Cauthorne Trucking

because the language requiring that employer contributions to

the pension fund be “in accordance with” a Pension Agreement “does not on its face . . . specifically state that Respondent’s obligation to contribute to the pension trust fund ends

with the expiration of the current collective-bargaining contract.”14 See also id. at 345 n.7. In Natico, Inc., 302 N.L.R.B.

668 (1991), the Board again did not find a waiver on the basis

of language almost identical to the language in this case.

There, the provision stated that the parties agreed that the pension program “will remain in effect for the term of this

agreement.” Id. at 684 (emphasis added). The Board adopted

the ALJ’s finding that “[t]he contractual language does not

state that the pension program will terminate on the expiration

of the contract. It appears that language to that effect is

required either in the collective-bargaining agreement or in

the underlying pension agreement to satisfy a waiver condition.” Id. at 685 (emphasis added). 

[6] Further, the Board has refused to infer termination when

the provisions at issue have included language that extends

benefits for a specified period beyond the term or duration of

the contract. In NLRB v. General Tire and Rubber Co., 795

F.2d 585, 588 (6th Cir. 1986) (per curiam) (enforcing Gen.

Tire, 274 N.L.R.B. at 592-93), the court affirmed the Board’s

position that where a provision allowed for “the benefits . . .

[to be] provided for ninety (90) days following termination,”

such language could not be understood as a clear and mistakable waiver with respect to the continuation of benefits

beyond the ninety-day period. The Board found that the rele14The Board also attempts to distinguish Schmidt-Tiago as falling short

of a clear and unmistakable waiver on the basis that the relevant analysis

continued, “[m]oreover . . .” and listed additional reasons that the waiver

was not clear and unmistakable. The import of Schmidt-Tiago here, however, is how the durational language was treated. 

11864 LOCAL JOINT EXECUTIVE BD v. NLRB
vant provision “is silent on the matter of payment of benefits

following the ninety-day period.” Id. (emphasis added). In

other words, far from drawing the inference that after ninety

days the benefits would be terminated, the Board found that

the provision could stand only for the proposition that “the

company would provide an additional ninety days of coverage

beyond the expiration of the agreement.” Id.; see also Gen.

Tire, 274 N.L.R.B. at 593 (“Nowhere in this contract provision is there mention of what is to occur to these supplemental

benefits after the 90 days have expired. In these circumstances, we find no clear and unmistakable waiver of the right

to bargain over these supplemental benefits after the 90-day

period.”). 

[7] In light of the text of the Agreements’ durational provisions and the Board’s clear and consistent position on similar

provisions, the Board’s interpretation of the Agreements here

does not withstand de novo review. The dues-checkoff provisions do not state that checkoff will terminate on expiration

of the Agreements, and the Board’s own precedent demonstrates that it has refused to infer such termination—even

where those provisions purport to continue benefits only for

a limited period of time following the contract expiration. The

durational clauses here simply do not amount to a clear and

unmistakable waiver of the Union’s statutory rights. 

IV. Conclusion

The Union did not clearly and unmistakably waive its claim

to protection from unilateral change following the expiration

of the Agreements. We therefore grant the petition for review,

vacate the decision of the Board, and remand. Although there

is little doubt that the Board’s delay in issuing a decision in

this case is—as the Union vigorously charged—“deplorable,”

we do not agree that such a delay precludes a remand for further proceedings. “It is well established that an agency’s

action must be upheld, if at all, on the basis articulated by the

agency itself.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State

LOCAL JOINT EXECUTIVE BD v. NLRB 11865
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983); see also

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,

374 (1998) (citing SEC v. Chenery Corp., 318 U.S. 80

(1943)). Moreover, with the “clear and unmistakable” escape

hatch closed, the question squarely in front of the Board is

whether dues-checkoff in right-to-work states is subject to

unilateral change, or whether, under such circumstances,

dues-checkoff is a mandatory subject of bargaining. The

Board is the appropriate body for developing and applying

national labor policy and it should resolve such questions in

the first instance. 

We again instruct the Board to explain the rule it adopted

in Hacienda I, or abandon Hacienda I to adopt a different rule

and present a reasoned explanation to support it. The Union’s

petition for review is granted, the decision of the Board is

vacated, and the matter is remanded to the Board. 

PETITION GRANTED; DECISION VACATED;

REMANDED with instructions. 

11866 LOCAL JOINT EXECUTIVE BD v. NLRB