F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

L O C A L J O I

N T E X E C U T I V E B O A

R D O F L A S V E G

A S ; C U L I

N A R Y W O R K E R S U N I O N L O C A L #226; B A R T E N D E R S U N I O N L O C A L 165, Petitioners
,

v

.

N A T I O N A L L A B O R R E L

A T I O N S B O A R D , Respondent
,

A R C H O N C O R

P O R A T I O N , Respondent-Intervenor. N o. 15-72878

NL RB No. 28-CA-013274

OPI NI ON

O n Petition for Review of an Order of the National L a

b or Relations B oard

A rg ued and Submitted November 14, 2017 San F rancisco, California

F iled F ebruary

27, 2018

B e fore: W illiam C. Canby , Susan P. Graber, and Richard A. Paez , Circuit J udg es.
Opinion by J udg e PaezL O C A L J O I N T E X E C

. B D

. V

. NL RB 2

SUMMARY *

National Labor Relations Act

The panel g ranted a U nion’s petition for review, vacated

an order of the National L a bor Relations B o ard, a nd remanded for the B oard to award standard m ake-whole

r e l i e f, in a case arising when the now-defunct Haciend a Resort Hotel and Casino and Sahara Hotel and Casino in L a s Veg as violated section 8(a)(5) of t h e National L abor Relat i o n s Act (“NL RA”) by unilaterally terminating the L ocal J oint Ex ecutive B oard, Culinary Workers Union L ocal 226 and B artenders Union L ocal 165’s dues-checkoff without barg aining to ag reement or impasse.

I n a prior case, this court determined t h a t t h ere w as a violation of the NL RA and rem a n d e d to the B oard to determine what relief was warranted. The B oard declined to award make-whole relief, the s t a n d ard remedy when an employ e r unlawfully ceases union d ues-checkoff. I nstead, the B oard awarded the Union prospective-only relief.

The panel held that the U nion’s arg uments were not premature.

The panel held that the B oard clearly abused its discretion in declining to award the standard reme d y of make-whole relief.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L O C A L J O I N T E X E C

. B D

. V

. NL RB 3

F irst, the panel h eld that the B oard did not provide a valid

ex p lanation f

or departing from its standard r emedy in duescheckoff cases. Specifically
, the panel held t h a t the B oard’s reliance-based ex plana t i o n w as improper, because it was unreasonable for the emp l o y e r s to rely on B oard p recedent that had never been applied in a r e as o n ed manner in the absence of a u nion s ec urity clause, and because the B oard’s other ex planations were similarly erroneous.
Second, the panel held that by ordering prospective-only relief ag a inst defunct entities, the B oard effectively ordered

no relief at all, and therefore did not effectuate the policies o f the NL RA.

COUNSEL

Kimberl ey C.W eber (arg ued) and Richard G. McCracken, McCracken Stemerman & Holsberry L L P, San F rancisco, California, for Petitioners.

Greg P. L auro (arg

ued), A ttorney ; J ulie B

. B roido, Supervisory Attorney ; L inda Dreeben, Deputy A s sociate General Counsel; J ohn H

. F erg uson, Associate General Counsel; J ennifer Abruz z o, Deputy Genera l C o u n s e l ; R i c h a

r d F

. Griffin J r., General Counsel; National L abor Rela t i o ns B oard, W ashing ton, D.C.; for Respondent.

Stephen R. L u eke (arg

ued) a nd Stefan H. B lack
, Fo r d & Harrison L L P, L os Ang el es, California, for RespondentI ntervenor.L O C A L J O I N T E X E C

. B D

. V

. NL RB 4

OP INION

PAEZ , Circuit J udg e:

The L ocal J o i nt Ex ecutive B oard, Culinary W orkers Union L o ca l 226 and B artenders Union L ocal 165 (the “Union”) petitions for r ev iew o f an order of the National L abor Re l at i o n s B oard (“NL RB ” o r the “B oard”) for the fourth time in this d ispute that h as now spanned m o r e t h an two decades. W hen this case was last before the co u r t , we determined that the o perators o f t h e n ow-defunct Hacienda Resort Hotel and Casino a n d Sahara Hotel and Casino in L a s Veg as (the “Employ ers”) 1 violated section 8 (a)(5) of the National L a

bor Relations A c t (“NL RA”), 29 U .S.C. § 158(a)(5), by unilaterally terminating the Union’s duescheckoff without barg aining to ag reement or impasse. Local Joint Exec. Bd. v. NLRB ( LJEB III ), 657 F. 3 d 8 6 5, 876 (9th Cir. 2011). I n lig ht o f that violation, we remanded f or the B oard to determine what relief was warranted.

On remand, the B oard declined to award make-whole

re lief, the standard remedy when an employ er unlawfully

ceases union dues-checkoff. The B oard reasoned that makewhole relief w as not w arranted because, inter alia, the Employ ers had r elied on a B oard rule providi n g t h at duescheckoff is not subject to mandatory barg aining

. I nstead, the B oard awarded the Union prospective-only relief ag ainst the defunct Employ ers and their unidentified successors.

1 A rch o n Co rp o ratio n (“ A rch o n ”) is th e Em p lo y ers’ p aren t co m

p an y

. W e g ran t ed A rch o n ’ s m o tio n to i n t e rv en e p u rsu an t to Fed eral Ru l e of A p pellate P ro ced u re 1 5 (d ).L O C A L J O I N T E X E C

. B D

. V

. NL RB 5

W e conclude, for two reasons, that the B oard clearly abused its discretion in d eclining to award t h e standard remedy of make-whole relief. F irst, the B o a rd did not provide a valid ex planation for departing from its standard

r emedy in dues-checkoff cases. I n p articular, the B o a rd ’s reliance-based ex planation was improper, a s it was unreasonable for the Emplo y e rs to r ely on B oard p recedent that had never been applied in a reasoned m a n n e r in the absence of a union security c l a u s e, and the B oard’s other

ex p lanations were similarly erroneous. Second, by ordering prospec t i v e -only r elief ag ainst defunct entities, the B oard effectively ordered no r elief at all and therefore did not “effectuate the policies of [ the NL RA] .” 29 U.S.C. § 160(c). According ly
, w e g rant the Union’s petition, v acate the B oard’s order, and remand f or the Bo a rd to award standard make-whole relief.

I. 2

The E mploy e r s maintained collective barg aining ag reements (“CB As”) with the Union until 1994. T h e CB A s did not contain union security clauses—clauses that condition employ ment upon union membership—as t h e s e clauses a re prohibited in Nevada, a “rig ht-to-work” state. Nev. Rev. Stat. § 613.250; see also 2 9 U .S.C. § 164(b) (providing that federal law does not authoriz e union security c lauses in rig ht-to-work states). The CB As d id, however, require the Employ ers to deduct union dues from the pay checks of employ ees who h ad authoriz ed s u c h deductions. After the final CB A ex pired in

2 Fo r co n t ex t, w e b rief

ly restate t

h e f acts s et o u t in ou r p rio r o p in io n s in th is case. S

ee LJEB III

, 6 5 7 F.3 d at 8 6 8

– 7 0 ; Lo ca l Jo in t Exec. Bd . v. NLRB ( LJEB II ), 5 4 0 F.3 d 1 0 7 2
, 1 0 7 5

– 7 8 (9 th Cir. 2 0 0 8 ); Lo ca l Jo in t Exec. Bd . v. NLRB (

LJEB I ), 3 0 9 F.3 d 5 7 8 , 5 80

– 8 1 (9 th Cir. 2 0 0 2).L O C A L J O I N T E X E C

. B D

. V

. NL RB 6

May 199 4, the Employ ers continued to honor these “duescheckoff” au t h oriz a tions until J u ne 1995. At that time, the Employ e r s u

n i l a t e r a l l y t e rminated the Union’s dues-checkoff.

The Union filed unfair labor practice charg es ag a inst the Employ ers in Aug ust 1995, and the General Counsel for the NL RB subsequently i ssued consolidated complaints. The Union alleg ed that the Employ e rs’ cessation of dues-checkoff violated the “unilateral chang e” d octrine articulated in NLRB

v

. Katz
, 369 U.S. 736 (1962). Under that doctrine, “ a n employ e r’s u nil a t e ral chang e in conditions of employ ment unde r n e gotiation is

. . . a violation o f § 8(a)(5) [ of the NL RA]
, f

or it is a c ircumvention o f t h e duty to neg otiate

w h i c h frustrates the objectives o f § 8(a)(5) much as does a flat refusal.” Id. at 743.

An administrative l aw judg e (“AL J ”) dismissed the complaints a n d the B oard affirmed, with two members dissenting

. Hacienda Hotel, Inc. Gaming Corp. ( H acienda I ), 331 N.L .R.B

. 665, 667 (2000). T he majority relied o n a thenex isting e x ception to the unilateral c h ang e d o c t r i ne developed in Bethlehem Steel Co.
, 136 N.L .R.B

. 1500 (1962)
, a case i n volving a union security clause, a nd Tampa Sheet Me t a l Co.
, 288 N.L .R.B

. 322 (1988), which applied Bethlehem Steel in a rig ht-to-work state in a footnote and without ex p lanation. Hacienda I

, 331 N.L .R.B

. at 666–67. The U nion filed a petition for review, and w e vacated the B oard’s order. LJEB I
, 309 F .3d at 580. W e remanded the case “so that the B oard c[ ould] either articulate a reasoned ex planation for its rule o r adopt a different rule with a reasoned ex planation to support it.” Id. at 582.

On remand, the B oard abandoned its reliance on Bethlehem Steel but affirmed the AL J ’ s dismissal in anotherL O C A L J O I N T E X E C

. B D

. V

. NL RB 7
split decision, on the g r ound that the Union w aived the rig ht to due s

- checkoff bey ond the ex piration of the CB As. Haciend a Ho tel, Inc. Gaming Corp. ( Hacienda II

), 351 N.L .R.B

. 504, 505 (2007). W e ag ain vacated a nd remanded b ecause there was “simp l y n o c lear a nd unmistakable waiver.” LJEB II , 540 F .3d at 1075.

I n response t o t h e second r emand, the B oard ag ain concluded without ex planation t h at Bethlehem Steel a nd Tampa S h e e t Metal compelled the conclusion that the Employ ers did not violate the NL RA by unilaterally c easing dues-checkoff. Hacienda Hotel, I n c. Gaming Corp. ( H a c i e n d a III )
, 355 N.L .R.B

. 742, 742 (2010). 3 On r eview for the third time, w e reached th e merits and vacated the B oard’s ruling

. LJEB III
, 657 F

. 3 d a t 8 7 6. W e ex p lained that, where “dues-checkoff p rovisions do not implement union security

. . . but instead ex ist as a f r ee-standing
, i n d e p e n d e n t c o n v e n i e n c e t o w i l l i n g l y p a r t i c i p a t i n g employ e es, the reasoning of Bethlehem Steel loses its force.” Id. at 8 75. W e thus “conclude[ d] that in a rig ht-to-work state

. . . dues-checkoff is akin to any o t h e r term of employ ment that is a mandatory subject of b arg aining .” Id. at 876. Althoug h we left open the possibility for “ t he B oard [ to] adopt a different rule in the f uture,” we expressly

stated that the Employ e rs in this case violat e d s ec t ion 8(a)(5) of the NL RA. Id. W e remande d w i t h d irections to the B oard to

3 T h e B o ard d ead lo ck ed 2– 2
, w ith o n e m em b er recu s e d
, o n th e q u estio n o f w

h eth er to o v erru l e Beth leh em S teel an d Ta mp a S h eet Meta l

. Ha cien d a III
, 3 5 5 N.L .R.B

. at 7 42
, 7 45

. B ecau se th e B o ard u n an im o u sly ag reed th at a t h r ee- m em

b er m aj o rity w as n ecessary to o v erru l e ex istin g B o ard p reced en t , th e B oard d id n o t d o so at th e tim e. Id

. at 7 4 3
, 7 4 5

. T h e B o ard su bseq u en t ly o v erru led Beth leh em S t eel f o llo w in g o u r d ecisio n in LJEB III

. S

ee Lin co ln Lu th era n o

f Ra cin e , 3 6 2 N.L .R.B

. No

. 1 8 8
, 2 0 1 5 W L 5 0 4 7 7 7 8 , at * 1 0 (A u g . 2 7 , 2 0 15 ).L O C A L J O I N T E X E C

. B D

. V

. NL RB 8

award appropriate relief and observed that “the parties cannot be ex pected to wait any long er.” Id.

On remand for the third time, the B oard, recog niz ing the section 8(a)(5) violation, ordered the Employ ers a nd t h e ir officers, ag ents, successors, a nd assig ns to (1) cea se a nd desist the unila teral c e ssation of d ues-checkoff; ( 2) b arg ain with t h e U nion; (3) rescind the u nilateral dues-checkoff chang es; and (4) post o r mail remedial notices. T h e fourmember major i t y r ecog niz ed that make-whole relief is the standard remedy in dues-checkoff cases but declined to award such re l i ef in lig ht of the Employ e rs’ reliance on the rule

s t a t e d i n B ethlehem S

teel

. T he B oard a lso noted that makewhole relief w ould requi r e an award of compound interest and that there was “no reason to believe that [ the Employ ers] will not continue to abide b y B o ard law.” Dissenting
, Member H iroz awa arg u ed that the majo r ity in e ffect soug ht to block the retroactive effect of this court’s holding in LJEB III and that its remedy did not effectuate the policies of the NL RA. Mem b e r H iroz awa also noted that the Employ ers’ reliance on Bethlehem Steel was “questionable.”

The Union timely

filed a petition for review.

II.

T h e B oard is vested with “ b road discretion in dev i s i n g remedies to undo the e ffects o f v i o lations of [ the N L RA]

. ” Detroit Edison Co. v

. NLRB
, 440 U.S. 301, 316 (1 9 7 9 ); s ee also 29 U.S.C. § 160(c) (g ranting the B oard the auth o r i t y to order relief “as will effectuate the policies of [ the NL RA] ”). According ly
, w e review the B oard’s remedial orders for a “clear abuse of discretion.” Cal. Pac. Med. Ctr. v

. NLRB
,L O C A L J O I N T E X E C

. B D

. V

. NL RB 9

87 F .3d 304, 308 (9th Cir. 1 996) (quoting NLRB v. C.E. W y lie Constr. Co. , 934 F .2d 234, 236 (9th Cir. 1991)).

“Nonetheless, the rule of deference to the B oard’s choice of remedy does not const i t u t e a blank check f or arbitrary action.” Detroit Edison
, 440 U.S. at 316. The B oard clearly abuses its discretion when its r emedial order is a “p a t e n t attempt to achieve ends other than those which c an f airly be said to effectuate the p o licies of th e [ N L RA] .” Va. Elec. & Power Co. v

. NLRB
, 319 U.S. 533, 540 ( 1943); see a lso Cal. Pac. Med. Ctr. , 87 F

. 3d at 308.

III.

The standard remedy that the B oard awards when an employ e r violates the NL RA by unilaterally ceasing duescheckoff is make-whole relief. 4 A l t h oug h the B oard may
ex e r cise its broad d iscretion to dev i a t e f rom a standard remedy
, it must p rovide a rational ex planation f o r d o ing so, NLRB v. Hartman
, 774 F .2d 1376, 1388 (9th Cir. 1985), a nd the remedy that it does order must “effectuate the policies o f [ the NL RA]
, ” 2 9 U.S.C. § 160(c); Va. Elec. & Power
, 319 U.S. at 540. Here, the prospective-only relief o rdered b y the B oard satisfied ne i t h e r of those requirements. W e first address the B oard’s ex p l a n ations f or declining to award the standard remedy of make-whole r elief, and the n w e turn to the effect of prospective-only relief in this case.

4 In d eed
, as co u

n s el f o r th e NL R

B co n ced ed at o ral arg u m en t, th e

rem ed ial o rd er u n d er rev iew h ere ap p ears to b e th e o n ly in stan ce in w h ich th e B o ard h as d eclin ed to aw a r d m a k e

- w h o le relief f

o r an em plo y er’ s

u n law f u l cessatio n

o f d u es- ch eck o f

f

.L O C A L J O I N T E X E C

. B D

. V

. NL RB 10

A.

The B oard cannot impose different remedies in similar si t uations “[ a] bsent some ex planation for doing so.” Hartman
, 774 F .2d at 1388. S u c h an e x planation must be

“ c onsistent with [ the B oard’s] statutory mandate,” Sheet Metal W orkers’ I nt’l Ass’n, Local No. 355 v. NLRB
, 716 F .2d 1249, 1257 n.3 (9th Cir. 1 983), and factually supportable, see Hartman
, 774 F .2d at 1384. I n particular, the B oard may not depart f rom a standard remedy because o f an employ er’s reliance on prior law where such reliance was unreasonable. Cf. NLRB v. Sav-On D r u g s , Inc.
, 728 F .2d 1 254, 1256 (9th Cir. 1984) (en banc) (concluding that the employ er could not reasonably r e l y o n a reg ional director’s determination because it could be reversed on appeal); NLRB v

. St. L u ke’s Hosp. Ctr.
, 551 F .2d 476, 484 ( 2d Cir. 1976) (“[ T] he presumption ag a inst retroactivity i s desig ned to protect reasonable reliance on p rior settled law

. . . .” (emphasis added)).

H ere, the B oard p rovided three e x planations for i t s de ci s i o n not to award the standard remedy of make-whole relief: (1) the Employ ers reasonably relied on the rule stated in Bethlehem Steel a t the time of the violation; (2) makew h o l e relief would r equire the Employ ers to pay compound interest on dues r eimbursements for the time period covering this protracted litig ation; and (3) there is no reason to believe that the Employ ers will violate the NL RA o r B oard rules in the future. W e address each ex planation in turn.

1.

The B o a rd f irst ex pla i n ed in its remedial o rder that, “[ p] roperly rationaliz ed or not, t he rule in Bethlehem SteelL O C A L J O I N T E X E C

. B D

. V

. NL RB 11

had bee n i n p l a ce for over 50 y ears,” during which time “[ e] mploy ers, like the [Employ ers] here, have relied upon [ it] when considering whether to cease honoring dues -checkoff arrang ements f

ollowing contract ex piration.” The B oard then reasoned that, when the E mploy ers ceased checking off dues in 1 995, they “could not have foreseen the

. . . decision by the court [ of appeals] finding
, c ontrary to B ethlehem Steel and its prog e ny , that the [ Employ ers] committed an unfair labor practice when the y ce ased dues checkoff upon contract

ex p iration.” “I n these circumstances,” the B oard concluded, “it would not be appropriate to order make-whole relief.”

The B oard’s e x p l a n ation r e lies on a false premise. Our decision in LJEB III was n ot contrary to Bethlehem Steel o r its pro g e n y

. As for Bethlehem Steel
, we ex plicitly declined
t o “ex press[ ] a

n opinion on the wisdom of the rule” i n t h at

case. LJEB I

II
, 657 F .3d at 875. Rather, we merely held that the rule in Bethlehem Steel did not apply when, as here, there is no union security clause f or dues-checkoff to implement. Id. at 876. Moreover, our holding was e n t i r e ly consistent with the B oard’s reasoning in Bethlehem Steel
, which linked its r ule to the presence of a union secur i t y clause. See Bethlehem Steel
, 136 N.L .R.B

. at 15 0 2 ( e x plaining that the checkoff provisions were subject to “similar considerations”

as the u nion security p rovisions—which became inoperative upon the termination o f the CB A and were not subject to mandatory barg aining —because the checkoff provi sions “implemented the union-security provisions”).

As for Bethlehem Steel ’s prog eny , “[ t] he B oard has applied its rule in o nly one case in which the col l e c t i ve barg a ining a gr e em ent did not contain a union security p r o v i s ion, but it provided no r ationale f or d oing so bey ond that o ffered in Bethlehem Steel .” LJEB I
, 309 F .3d at 583–84L O C A L J O I N T E X E C

. B D

. V

. NL RB 12

(citing Tampa Sheet M

e t a l Co.
, 288 N.L .R.B

. at 326 n .15). This isolated and unex plained ex tension of the rule in Bethleh em Steel is not a r easonable g round for reliance. A s
we have ex plained, “[ a] lthoug h a B oard rule may be co m e ‘well-established’ throug h repetition, it may ‘come to st a nd for’ a leg al rule only throug h r easoned decisionmaking .” Id.
at 583 ( q uoting Allentown Mack Sales & Serv., Inc. v. NLRB
, 522 U.S. 359, 374 (1998)). T h e rule in Bethlehem S teel was not “well-established” in the absence of a union security clause, no r h a d i t “come to stand for” a leg a l rule in that contex t. See id. at 583–84

. T h e r e fore, any reliance by the E m p loy ers on Bethlehem Steel and Tampa Sheet Metal w a s unreasonable a

nd could not provide a proper basis for the B oard’s departure from standard make-whole relief.

2.

T h e B o ard nex t e x plained that a n award of make-whole relief “would carry w ith it a requirement t h at compound interest be p aid on all amounts due.” 5 T he B oard a ppeared particularly concerned about awarding such interest in lig ht of the fact that the Employ e rs “c o u ld not h ave foreseen the protracted litig ation

. . . before t h e Bo ard and the Ninth Circuit.” I ntervenor A rchon echoes this c oncern, pointing out that “this case h a s been pending for 22 y ears, of which appr o x i m a tely 15 y ears ha[ ve] been spent waiting for the B oard to issue a decision in a case under submiss i o n.”

5 T h e B o ard h as ad o p ted d aily co m p o u n d ed in terest as th e st an d ard f o rm o f in t e r e s t o n aw ard s o f m ak e- w h o l e relief

. See Ja ckso n Ho sp

. Co rp

. , 3 5 6 N.L .R.B

. 6
, 9 (2 01 0 ); see a lso

, e.g

. , Emera ld Green Bld g

. S ervs., LLC
, 3 64 N.L .R.B . No . 1 0 9 , 2 0 1 6 W L 4 5 4 7 5 2 8
, at * 2 (A u g

. 2 6
, 2 0 1 6 ) (o rd erin g d aily co m po u n d ed in terest o n d u es- ch eck off reim b u rsem en ts).L O C A L J O I N T E X E C

. B D

. V

. NL RB 13

Archon arg ues that “it would be unjust to multiply [ its] liability by almost a factor of t e n b ecause of the administrative delay in this case,” and it requests that we toll the accrual period for interest in the event that w e d i r e c t the B oard to order make-whole relief.

Althoug h we are sy

mpathetic to Arch o n ’ s position, we reject the B oard’s ex p lanation reg arding compound i n t e r e st and decline to toll the accrual perio d

. A s the B oard itself

ex p lained in a prior decision addressing compound interest:

There is no force to the arg ument . . . that

c o m p o u n d i n t e r e s t w r o n g l y p e n a l i z e s respondents for the sometimes protracted
nat u r e of unfair labor practice proceeding s. Th e S u preme Court has rejected a similar arg ument with r espect to backpay awards g enerally
, recog niz ing that d e lay injures backpay claimants and t hat the B oard is “not required to place the consequences of its own dela y

. . . upon wrong ed employ ees to the benefit of wrong d oing employ ers.” [ NLRB v

. J. H. Rutter-Rex Mfg. Co. , 396 U.S. 258, 265 (1969)]

. Moreover, as the F ederal courts have observed, during

the period before a backpay award becomes effective, t he respondent enjoy s “an interest-free loan for as long as [ it can] delay pay ing out back wag es.” Clarke v

. Frank , 960 F .2d 1146, 1154 (2d Cir. 1992).

Jackson Hosp. Corp.
, 356 N .L .R.B

. 6, 9 (2010). The B oard’s reasoning in Jackson H

o s p i t al properly applies where, a s he re , a n employ er causes unwarranted loss to a union b y

u nilaterally ceasing to collect and r emit voluntary d u e s

-L O C A L J O I N T E X E C

. B D

. V

. NL RB 14

checkoff pay

ments. A ccording ly
, w e conclude that t he B oard’s consideration of compound interest as a reason n ot to a ward standard make-whole relief in this c ase was improper.

3.

F inally
, the B oard ex pla i n e d that make-whole relief is “not nece s s a r y to effectuate the p urposes of the [ NL RA] ” because “ the [Employ e rs] believed, correctly
, that they were following settled B oard law at the time they acted, and there is no reason to believe that they w ill not continue to abide b y B oard law.” As we ex p lained supra , however, the Employ ers
were not f

ol l o w i ng settled B oard law applicable to this case at the time they acted. Moreover, althoug h deterrence is a proper remedial consideration, t h e main purpose of makewhole r elief is to “recreate the conditions and relationships that would h ave been had there been no unfair labor practice.” E

nter. Leasing Co. of

F la., LLC
, 362 N.L

. R.B

. No. 135, 2015 W L 4179685, at *1 n.1 (J une 26, 2 0 1 5 ) (quoting Local 60, United Bhd. of Carpenters v. NLRB
, 365 U.S. 651, 657 (1961)). T hus, e ven if there w e r e no reason to believe that the Employ ers would vi o l a t e the law in the future, that would not be a sufficient b asis on which to depart f r om the standard remedy of make-whole relief. T he B oard’s decision not to award the standard remedy of make-whole relief, without offering a valid ex plan a t ion, was a clear abuse o f discretion.

B.

The Union arg ues that the B oard also clearly abused its discretion by ordering p rospective-only r elief ag ainst defunct entities. The B oard disag r ees that such relief is i n e ffectiveL O C A L J O I N T E X E C

. B D

. V

. NL RB 15

and further c ontends that the Union prematurely raises f actual issues that must be left for compliance proc e e d i n gs

. W e conclude that the Unio n ’ s arg uments are not premature a nd that the prospective-only relief at issue does not effectuate the policies of the NL RA.

1.

W e first consider whether the Union’s a rg u ment s a

re premature. The B oard asserts that q uestions as to the identity of potential v iable success o r s o f the Employ e rs, “as well a s the specific c ontours o f barg aining
, rescinding the unlawful

c e s s ation of dues checkoff, and posting or mailing n otices, involve[ ] matters to be determined at the compliance phase.” Thus, the B oard contends, the q ues t i o n w hether any viable entity “can carry out the remedies” at issue “involve[ s] issues for a compliance proceeding .” W e disag ree.

W h ereas “ factual issues which relate to the details o f the remedy should be delay ed to the compliance h earing [,]

. . . no
ex h austion is required where the c h alleng e on review is to the underly ing legal basis of the B oard’s remedial order.” Local 512, W arehouse & Office W

orkers’ Union v. NLRB
, 795 F .2d 705, 715 (9th Cir. 1 986) (second emphasis added), a brogated

on o ther grounds by H

offman P lastic C ompounds, Inc. v

. NLRB
, 535 U.S. 137 (2002). Prior to the compliance phase, the B o a r d considers whether a form of relief would “e f f e ctuate the policies of the [ NL RA] ,” but “does not

concern itself with the a moun t o f [ relief] actually owing ” because the “determination of specific liabilities may involve

a protracted c ontest.” NLRB v. Deena Artware, Inc.
, 3 6 1 U.S. 398, 411 (1960) (F rankfurter, J
., concurring ) (discussing back pay ). F or ex ample, “questions relating to the ex act amount o f back pay owing

. . . a r e prematurely raised in [an]L O C A L J O I N T E X E C

. B D

. V

. NL RB 16

enforcement petition,” but “those issues [of back pay , mitig at i o n, and job elimination] may be ex plored in a compliance p roceeding .” NLRB v

. Trident S eafoods Corp.
, 642 F .2d 1148, 1150 (9th Cir. 1981) (quoting Great Chinese Am. S ewing Co. v. NLRB
, 578 F

. 2d 251, 255–56 (9th Cir. 1978) (per curiam)).

Here, the Union does not challeng e specific liabilities or the e x act details of the prospective relief at issue. Rather, the Union arg ues that the B oard failed to effectuate the pol i c ies of the NL RA bec a u se it ordered only prospective forms o f relief that cannot be c a r r i e d out in practice. Althoug h the Union’s arg ument raises predicate factual que s t ions, those questions r elate to the leg al b asis of the B oard’s order, not to the specific contours of the remedy

. See Local 512
, 795 F .2d
at 715. We may review a le g al challeng e to the B oard’s remedial order where, as here, predicate f actual questions a

re capable o f clear r esolution on the record. Cf. NLRB v. Globe Sec. Servs., Inc.
, 548 F .2d 1115, 1118 n

. 2 (3d Cir. 1 977) (ex plaining
, in the contex t of a mootne s s c h a lleng e to an enforcement petition, that courts have left the question o f im possibility of performance for compliance proceeding s usually only “where the rec o r d d i d not c learly show that the employ e r had g one out of bus i n ess”). According ly
, the Union’s leg al challeng e is not prem a t ure. The U nion’s entitlement to effective relief for an unfair labor practice that occurred more than twenty -two y ears ag o cannot be delay ed any further.

2.

The “statutory command” that the B oard’s remedial orders “ ‘effectuate the p o l i c i es o f the [ NL RA] ’

. . . at a

m i n imum

. . . encompasses the requirement that a p rop o s e dL O C A L J O I N T E X E C

. B D

. V

. NL RB 17

remedy be tailored to the unfair labor practice it is intended to redress.” Sure-Tan, Inc. v. NLRB
, 467 U.S. 883, 900 (1984). I n

g eneral, prospective-only relief ordered ag ainst a functioning employ e r f

o r t h e benefit of a union and its members satisfies this r equirement. See H offman Plastic Compounds
, 5 3 5 U .S. at 152. W h ere no such employ er o r representative union continues to ex ist, howeve r , p r o s p e c t i v e

only relief amounts to no relief a t all. See, e .g. , NLRB v

. McMahon
, 428 F .2d 1213, 1214 (9th Cir. 1970) (per curiam) (“Enforcement of an order to barg ain directed to a d e funct org aniz ation would be futil e

. ” ) ; Globe Sec. Servs.
, 548 F .2d

a t 1 1 17 ( “B e cause the L abor B oard’s order directs [t h e employ e r] to b arg ain with a unit that, all ag ree, does not ex ist, enforcement would b e a vain and useless act

. . . .”); NLRB.

v. S c hnell Tool & Die Corp.
, 359 F .2d 39, 44 (6th Cir. 1 966) (“I t is c lear from the face of the order [ including a cease-anddesist provision and other injunctive relief] that enforcement of its pro v i s i o n s , with the ex ception of those calling for the award of back pay , requires the ex isten c e of a functioning employ e r.”).

Here, the B oa rd ordered the Employ ers and their

successors to (1) cease and d e s i s t the unilateral cessation o f dues-checkoff and from interfering with employ ees’ rig hts under th e N L R A “[ i] n any like or related manner”; (2) barg ain with the Union; (3) rescind the unilateral duescheckof f ch a n g es; and (4) post or mail remedial n otices. Althoug h the B oard arg ues that it has “not y et made finding s”

as to whether these remedies can be carried out as a practical matter, the f

ollowing facts are not in dispute. The Employ ers ceased operating wh en they and their hotels w e re sold to A r c h on in 1 995. The same y ear, Archon sold the hot e l s t o

u nrelated businesses; one hotel, the Hacienda, w a s demolished in 1996, while the other, the Sahara, was g utted,L O C A L J O I N T E X E C

. B D

. V

. NL RB 18

massively renovated, and o p ened as a different hotel b etween 2011 and 2014. Archon remains the parent co m p a n y of the Employ ers, but no long er owns hotels or other unioniz ed operations in L as Veg as. 6 F inally
, no party contends that the current o wners of the si t u s p roperties are successors-ininterest or that their employ e es would even have any use for the prospective-only

relief at issue.

Nonethele ss, Archon arg ues that it c an effectively carry out the relief ordered by the B oard. The order to barg ain a nd the o rder to rescind the 19 9 5 dues-checkoff c hang es, however, are specifically linked to the U nion, which h as no relationship to Archon. As for the c ease-and-desist order, the record does not demonstrate that Archon’s current employ ees have any need for such relief. Moreover, we do not see h ow

a cease-and-desist order g overning A rchon’s current operations outside of L as Veg as, in response to t he Employ ers’ cessation of d ues-checkoff over tw e nty -two y ears earlier in L as Veg a s, is at a ll “ tailored to the unfai r l abor practice it is intended to r e d ress.” Sure-Tan
, 467 U.S. at 900. F inally
, because the a

bove remedies are ineffectual, the order directing the Employ ers and thei r s u c cessors to post or mail notice of such remedies is ineffectual as well. 7

6 In pro ceed i n g s bef

ore th e B o a r d o n o u

r th ird rem an d
, th e Un io n p ro d u ced pu

b lic reco rd s su f

f icien t t o estab l i sh t h e f

oreg oin g f

acts. A s th ese f acts are n o t su

b j ect to reaso n ab le d isp u te an d can be accu rately an d read ily determ in ed f

ro m th e p u

b lic reco rd so u rces p resen ted to th e B o ard
, w e tak e j u d icial n o tice o f th em

. S ee Fed . R. Ev id . 2 0 1 (b ).

7 T h e B o ard arg u es th at th e Un io n d id n o t p reserv e its ch allen g es to th e o rd er to b arg ain an d th e o rd er to r e sc in d th e u n law f u l cessatio n of d u es- ch eck of

f b ecau se it f

ailed t o raise th em s p ecif

ically b ef o re th e B o ard

. S ee 2 9 U.S.C. § 1 6 0 (e). T h i s arg u m en t is w i th o u t m erit. T h e Un io n f iled

a b rief b ef

o re th e B o ard req u estin g m ak e- w h o le relief

; at t h at t i m e, th eL O C A L J O I N T E X E C

. B D

. V

. NL RB 19

C.

I n concluding that the B oard clearly abused its r e m edial discretion, w e take note of the reference in the B o ard’s order to Lincoln Lutheran o

f Racine
, 362 N.L .R.B

. No. 188, 2015 W L 5047778 (Aug

. 2 7, 2015). The re, the B oard overruled Bethlehem S

teel but applied its ruling p rospectively only

. Id.
at *10–11. As a result, employ ers who had u n i l aterally ceased du e s

- c heckoff in reasonable reliance on B ethlehem Steel in ca s e s pending at the time of Lincoln Lutheran were
never subjected to a remedial order because they necessarily h a d not violated the NL RA. Such employ ers did not a n d could n ot include the Employ ers in this case because we h ad

a l r e ady determined that, in the a b sence of a union securi t y clause, their unilateral cessation of dues-checkoff wa s n ot g overned by Bethlehem Stee l and their reliance on that decision was unreasonable. They acc o rding ly had v iolated
t h e NL RA and w e ordered the B oard “to determine w hat relief is warranted.” LJEB III , 657 F .3d at 876.

W h en subsequently d e c i d ing this case, the B oard noted that its reasons for a

warding p r ospe c t i v e-only r elief were consistent with the reasons it p r o v i ded in Lincoln Lutheran for o verruling Bethleh e m Steel with prospective-only effect.

Un i o n w as u n d er n o o b li g a t i o n to ch allen g e t h e p ro s p ectiv e- o n ly relief
t h a t h ad n ot y et b een o rd ered b y t h e B o ard

. T h e Un io n th en restated it s req u est f o r m ak e- w

h o l e relief i n i ts m o tio n f

o r reco n sid eratio n , an d arg u ed th at th e cease- an d

- d esist an d n o t ice o rd ers w ere m ean in g less f o r reaso n s th at are eq u ally ap p licab le to th e o rd er to b arg ain an d th e o rd er to rescin d

. Fin ally
, w

h e n d e n y i n g th at m o tio n , th e B o ard co n clu d ed th at i ts en t ire

rem ed ial o r d er w as n o t “ m ean in g less an d m oo t.” T h u s, th e Un io n ch allen g ed th e B o ard ’ s en tire rem ed ial o rd er w ith “ su f f i cien t sp ecif

icity ” to p reserv e its arg u m en ts o n ap p eal. NLRB v. Le g a c y H e a lth S ys. , 6 6 2 F.3 d 1 1 2 4 , 1 1 2 6 (9 th Cir. 2 0 1 1 ).L O C A L J O I N T E X E C

. B D

. V

. NL RB 20

There would b e nothing inappropriate w ith such an observ a t i o n , but for the fact that the B oard’s main

c o n s i d er a t i o n i n b o t h c a s e s w a s t h e e m p l o y e r s ’ reliance—which, as we have ex plained, was unreasonable in the absence of a union security clause.

After the B oard invoked Lincoln Lutheran
, it concluded that, “[ n ] e v er t h eless, [ LJEB III ]

. . . makes it necessary to fashion a remedy .” The B oar d then proceeded to fashion a remedy that, in effect, amounted to n o relief a t all. I n doing
so, the B oard eng a g ed in a “patent attempt to a c h i e v e ends other than those which can fairly be said to effectuate the policies o f the [ N L RA ]

. ” Va. Elec. & Power
, 319 U .S. at 540. We urg e the B oard to move swiftly on remand to award the standard remedy

of make-whole relief. 8

P ETITION G RANTED; ORDER VACATED; REMANDED WITH INSTRUCTIONS. Costs on a ppeal

aw arded to P etitioners.

8 W e leav e th e sp ecif

ic co n to u rs o f m ak e- w h o le relief

f o r th e B o ard to d eterm in e o n rem an d

. A n y disp u tes t h at arise co n cern in g th e calcu latio n o r am o u n t o f relief sh o u ld b e reso lv ed p ro m p tly in co m

p lian ce p ro ceed in g s.