FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOCAL JOINT EXECUTIVE BOARD OF

LAS VEGAS; CULINARY WORKERS

UNION LOCAL #226; BARTENDERS

UNION LOCAL 165,

Petitioners,

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent,

ARCHON CORPORATION,

Respondent-Intervenor.

No. 15-72878

NLRB No.

28-CA-013274

OPINION

On Petition for Review of an Order of the

National Labor Relations Board

Argued and Submitted November 14, 2017

San Francisco, California

Filed February 27, 2018

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

and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez
2 LOCAL JOINT EXEC. BD. V. NLRB

SUMMARY*

National Labor Relations Act

The panel granted a Union’s petition for review, vacated

an order of the National Labor Relations Board, and

remanded for the Board to award standard make-whole

relief, in a case arising when the now-defunct Hacienda

Resort Hotel and Casino and Sahara Hotel and Casino in Las

Vegas violated section 8(a)(5) of the National Labor

Relations Act (“NLRA”) by unilaterally terminating the

Local Joint Executive Board, Culinary Workers Union Local

226 and Bartenders Union Local 165’s dues-checkoff

without bargaining to agreement or impasse.

In a prior case, this court determined that there was a

violation of the NLRA and remanded to the Board to

determine what relief was warranted. The Board declined to

award make-whole relief, the standard remedy when an

employer unlawfully ceases union dues-checkoff. Instead,

the Board awarded the Union prospective-only relief.

The panel held that the Union’s arguments were not

premature.

The panel held that the Board clearly abused its discretion

in declining to award the standard remedy of make-whole

relief. 

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
LOCAL JOINT EXEC. BD. V. NLRB 3

First, the panel held that the Board did not provide a valid

explanation for departing from its standard remedy in duescheckoff cases. Specifically, the panel held that the Board’s

reliance-based explanation was improper, because it was

unreasonable for the employers to rely on Board precedent

that had never been applied in a reasoned manner in the

absence of a union security clause, and because the Board’s

other explanations were similarly erroneous.

Second, the panel held that by ordering prospective-only

relief against defunct entities, the Board effectively ordered

no relief at all, and therefore did not effectuate the policies of

the NLRA.

COUNSEL

Kimberley C.Weber (argued) and Richard G. McCracken,

McCracken Stemerman & Holsberry LLP, San Francisco,

California, for Petitioners.

Greg P. Lauro (argued), Attorney; Julie B. Broido,

Supervisory Attorney; Linda Dreeben, Deputy Associate

General Counsel; John H. Ferguson, Associate General

Counsel; Jennifer Abruzzo, DeputyGeneralCounsel;Richard

F. Griffin Jr., General Counsel; National Labor Relations

Board, Washington, D.C.; for Respondent.

Stephen R. Lueke (argued) and Stefan H. Black, Ford &

Harrison LLP, Los Angeles, California, for RespondentIntervenor.
4 LOCAL JOINT EXEC. BD. V. NLRB

OPINION

PAEZ, Circuit Judge:

The Local Joint Executive Board, Culinary Workers

Union Local 226 and Bartenders Union Local 165 (the

“Union”) petitions for review of an order of the National

Labor Relations Board (“NLRB” or the “Board”) for the

fourth time in this dispute that has now spanned more than

two decades. When this case was last before the court, we

determined that the operators of the now-defunct Hacienda

Resort Hotel and Casino and Sahara Hotel and Casino in Las

Vegas (the “Employers”)1

violated section 8(a)(5) of the

National Labor Relations Act (“NLRA”), 29 U.S.C.

§ 158(a)(5), by unilaterally terminating the Union’s duescheckoff without bargaining to agreement or impasse. Local

Joint Exec. Bd. v. NLRB (LJEB III), 657 F.3d 865, 876 (9th

Cir. 2011). In light of that violation, we remanded for the

Board to determine what relief was warranted.

On remand, the Board declined to award make-whole

relief, the standard remedy when an employer unlawfully

ceases union dues-checkoff. The Board reasoned that makewhole relief was not warranted because, inter alia, the

Employers had relied on a Board rule providing that duescheckoff is not subject to mandatory bargaining. Instead, the

Board awarded the Union prospective-only relief against the

defunct Employers and their unidentified successors.

1 Archon Corporation (“Archon”) is the Employers’ parent company. 

We granted Archon’s motion to intervene pursuant to Federal Rule of

Appellate Procedure 15(d).
LOCAL JOINT EXEC. BD. V. NLRB 5

We conclude, for two reasons, that the Board clearly

abused its discretion in declining to award the standard

remedy of make-whole relief. First, the Board did not

provide a valid explanation for departing from its standard

remedy in dues-checkoff cases. In particular, the Board’s

reliance-based explanation was improper, as it was

unreasonable for the Employers to rely on Board precedent

that had never been applied in a reasoned manner in the

absence of a union security clause, and the Board’s other

explanations were similarly erroneous. Second, by ordering

prospective-only relief against defunct entities, the Board

effectively ordered no relief at all and therefore did not

“effectuate the policies of [the NLRA].” 29 U.S.C. § 160(c). 

Accordingly, we grant the Union’s petition, vacate the

Board’s order, and remand for the Board to award standard

make-whole relief.

I.2

The Employers maintained collective bargaining

agreements (“CBAs”) with the Union until 1994. The CBAs

did not contain union securityclauses—clauses that condition

employment upon union membership—as these clauses are

prohibited in Nevada, a “right-to-work” state. Nev. Rev. Stat.

§ 613.250; see also 29 U.S.C. § 164(b) (providing that federal

law does not authorize union securityclauses in right-to-work

states). The CBAs did, however, require the Employers to

deduct union dues from the paychecks of employees who had

authorized such deductions. After the final CBA expired in

2 For context, we briefly restate the facts set out in our prior opinions

in this case. See LJEB III, 657 F.3d at 868–70; Local Joint Exec. Bd. v.

NLRB (LJEB II), 540 F.3d 1072, 1075–78 (9th Cir. 2008); Local Joint

Exec. Bd. v. NLRB (LJEB I), 309 F.3d 578, 580–81 (9th Cir. 2002).
6 LOCAL JOINT EXEC. BD. V. NLRB

May 1994, the Employers continued to honor these “duescheckoff” authorizations until June 1995. At that time, the

Employers unilaterallyterminated the Union’s dues-checkoff.

The Union filed unfair labor practice charges against the

Employers in August 1995, and the General Counsel for the

NLRB subsequently issued consolidated complaints. The

Union alleged that the Employers’ cessation of dues-checkoff

violated the “unilateral change” doctrine articulated in NLRB

v. Katz, 369 U.S. 736 (1962). Under that doctrine, “an

employer’s unilateral change in conditions of employment

under negotiation is . . . a violation of § 8(a)(5) [of the

NLRA], for it is a circumvention of the duty to negotiate

which frustrates the objectives of § 8(a)(5) much as does a

flat refusal.” Id. at 743.

An administrative law judge (“ALJ”) dismissed the

complaints and the Board affirmed, with two members

dissenting. Hacienda Hotel, Inc. Gaming Corp. (Hacienda I),

331 N.L.R.B. 665, 667 (2000). The majority relied on a thenexisting exception to the unilateral change doctrine developed

in Bethlehem Steel Co., 136 N.L.R.B. 1500 (1962), a case

involving a union security clause, and Tampa Sheet Metal

Co., 288 N.L.R.B. 322 (1988), which applied Bethlehem Steel

in a right-to-work state in a footnote and without explanation. 

Hacienda I, 331 N.L.R.B. at 666–67. The Union filed a

petition for review, and we vacated the Board’s order. LJEB

I, 309 F.3d at 580. We remanded the case “so that the Board

c[ould] either articulate a reasoned explanation for its rule or

adopt a different rule with a reasoned explanation to support

it.” Id. at 582.

On remand, the Board abandoned its reliance on

Bethlehem Steel but affirmed the ALJ’s dismissal in another
LOCAL JOINT EXEC. BD. V. NLRB 7

split decision, on the ground that the Union waived the right

to dues-checkoff beyond the expiration of the CBAs. 

Hacienda Hotel, Inc. Gaming Corp. (Hacienda II),

351 N.L.R.B. 504, 505 (2007). We again vacated and

remanded because there was “simply no clear and

unmistakable waiver.” LJEB II, 540 F.3d at 1075.

In response to the second remand, the Board again

concluded without explanation that Bethlehem Steel and

Tampa Sheet Metal compelled the conclusion that the

Employers did not violate the NLRA by unilaterally ceasing

dues-checkoff. Hacienda Hotel, Inc. Gaming Corp.

(Hacienda III), 355 N.L.R.B. 742, 742 (2010).3 On review

for the third time, we reached the merits and vacated the

Board’s ruling. LJEB III, 657 F.3d at 876. We explained

that, where “dues-checkoff provisions do not implement

union security . . . but instead exist as a free-standing,

independent convenience to willingly participating

employees, the reasoning of Bethlehem Steel loses its force.” 

Id. at 875. We thus “conclude[d] that in a right-to-work state

. . . dues-checkoff is akin to any other term of employment

that is a mandatory subject of bargaining.” Id. at 876. 

Although we left open the possibility for “the Board [to]

adopt a different rule in the future,” we expressly stated that

the Employers in this case violated section 8(a)(5) of the

NLRA. Id. We remanded with directions to the Board to

3 The Board deadlocked 2–2, with one member recused, on the

question of whether to overrule Bethlehem Steel and Tampa Sheet Metal. 

Hacienda III, 355 N.L.R.B. at 742, 745. Because the Board unanimously

agreed that a three-member majority was necessary to overrule existing

Board precedent, the Board did not do so at the time. Id. at 743, 745. The

Board subsequently overruled Bethlehem Steel following our decision in

LJEB III. See Lincoln Lutheran of Racine, 362 N.L.R.B. No. 188, 2015

WL 5047778, at *10 (Aug. 27, 2015).
8 LOCAL JOINT EXEC. BD. V. NLRB

award appropriate relief and observed that “the parties cannot

be expected to wait any longer.” Id.

On remand for the third time, the Board, recognizing the

section 8(a)(5) violation, ordered the Employers and their

officers, agents, successors, and assigns to (1) cease and

desist the unilateral cessation of dues-checkoff; (2) bargain

with the Union; (3) rescind the unilateral dues-checkoff

changes; and (4) post or mail remedial notices. The fourmember majority recognized that make-whole relief is the

standard remedyin dues-checkoff cases but declined to award

such relief in light of the Employers’ reliance on the rule

stated in Bethlehem Steel. The Board also noted that makewhole relief would require an award of compound interest

and that there was “no reason to believe that [the Employers]

will not continue to abide by Board law.” Dissenting,

Member Hirozawa argued that the majority in effect sought

to block the retroactive effect of this court’s holding in LJEB

III and that its remedy did not effectuate the policies of the

NLRA. Member Hirozawa also noted that the Employers’

reliance on Bethlehem Steel was “questionable.”

The Union timely filed a petition for review.

II.

The Board is vested with “broad discretion in devising

remedies to undo the effects of violations of [the NLRA].” 

Detroit Edison Co. v. NLRB, 440 U.S. 301, 316 (1979); see

also 29 U.S.C. § 160(c) (granting the Board the authority to

order relief “as will effectuate the policies of [the NLRA]”). 

Accordingly, we review the Board’s remedial orders for a

“clear abuse of discretion.” Cal. Pac. Med. Ctr. v. NLRB,
LOCAL JOINT EXEC. BD. V. NLRB 9

87 F.3d 304, 308 (9th Cir. 1996) (quotingNLRB v. C.E. Wylie

Constr. Co., 934 F.2d 234, 236 (9th Cir. 1991)).

“Nonetheless, the rule of deference to the Board’s choice

of remedy does not constitute a blank check for arbitrary

action.” Detroit Edison, 440 U.S. at 316. The Board clearly

abuses its discretion when its remedial order is a “patent

attempt to achieve ends other than those which can fairly be

said to effectuate the policies of the [NLRA].” Va. Elec. &

Power Co. v. NLRB, 319 U.S. 533, 540 (1943); see also Cal.

Pac. Med. Ctr., 87 F.3d at 308.

III.

The standard remedy that the Board awards when an

employer violates the NLRA by unilaterally ceasing duescheckoff is make-whole relief.4 Although the Board may

exercise its broad discretion to deviate from a standard

remedy, it must provide a rational explanation for doing so,

NLRB v. Hartman, 774 F.2d 1376, 1388 (9th Cir. 1985), and

the remedy that it does order must “effectuate the policies of

[the NLRA],” 29 U.S.C. § 160(c); Va. Elec. & Power,

319 U.S. at 540. Here, the prospective-only relief ordered by

the Board satisfied neither of those requirements. We first

address the Board’s explanations for declining to award the

standard remedy of make-whole relief, and then we turn to

the effect of prospective-only relief in this case.

4

Indeed, as counsel for the NLRB conceded at oral argument, the

remedial order under review here appears to be the only instance in which

the Board has declined to award make-whole relief for an employer’s

unlawful cessation of dues-checkoff.
10 LOCAL JOINT EXEC. BD. V. NLRB

A.

The Board cannot impose different remedies in similar

situations “[a]bsent some explanation for doing so.” 

Hartman, 774 F.2d at 1388. Such an explanation must be

“consistent with [the Board’s] statutory mandate,” Sheet

Metal Workers’ Int’l Ass’n, Local No. 355 v. NLRB, 716 F.2d

1249, 1257 n.3 (9th Cir. 1983), and factually supportable, see

Hartman, 774 F.2d at 1384. In particular, the Board may not

depart from a standard remedy because of an employer’s

reliance on prior law where such reliance was unreasonable. 

Cf. NLRB v. Sav-On Drugs, Inc., 728 F.2d 1254, 1256 (9th

Cir. 1984) (en banc) (concluding that the employer could not

reasonably rely on a regional director’s determination

because it could be reversed on appeal); NLRB v. St. Luke’s

Hosp. Ctr., 551 F.2d 476, 484 (2d Cir. 1976) (“[T]he

presumption against retroactivity is designed to protect

reasonable reliance on prior settled law . . . .” (emphasis

added)).

Here, the Board provided three explanations for its

decision not to award the standard remedy of make-whole

relief: (1) the Employers reasonably relied on the rule stated

in Bethlehem Steel at the time of the violation; (2) makewhole relief would require the Employers to pay compound

interest on dues reimbursements for the time period covering

this protracted litigation; and (3) there is no reason to believe

that the Employers will violate the NLRA or Board rules in

the future. We address each explanation in turn.

1.

The Board first explained in its remedial order that,

“[p]roperly rationalized or not, the rule in Bethlehem Steel
LOCAL JOINT EXEC. BD. V. NLRB 11

had been in place for over 50 years,” during which time

“[e]mployers, like the [Employers] here, have relied upon [it]

when considering whether to cease honoring dues-checkoff

arrangements following contract expiration.” The Board then

reasoned that, when the Employers ceased checking off dues

in 1995, they “could not have foreseen the . . . decision by the

court [of appeals] finding, contrary to Bethlehem Steel and its

progeny, that the [Employers] committed an unfair labor

practice when they ceased dues checkoff upon contract

expiration.” “In these circumstances,” the Board concluded,

“it would not be appropriate to order make-whole relief.”

The Board’s explanation relies on a false premise. Our

decision in LJEB III was not contrary to Bethlehem Steel or

its progeny. As for Bethlehem Steel, we explicitly declined

to “express[] an opinion on the wisdom of the rule” in that

case. LJEB III, 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 for dues-checkoff to implement. 

Id. at 876. Moreover, our holding was entirely consistent

with the Board’s reasoning in Bethlehem Steel, which linked

its rule to the presence of a union security clause. See

Bethlehem Steel, 136 N.L.R.B. at 1502 (explaining that the

checkoff provisions were subject to “similar considerations”

as the union security provisions—which became inoperative

upon the termination of the CBA and were not subject to

mandatory bargaining—because the checkoff provisions

“implemented the union-security provisions”).

As for Bethlehem Steel’s progeny, “[t]he Board has

applied its rule in only one case in which the collective

bargaining agreement did not contain a union security

provision, but it provided no rationale for doing so beyond

that offered in Bethlehem Steel.” LJEB I, 309 F.3d at 583–84
12 LOCAL JOINT EXEC. BD. V. NLRB

(citing Tampa Sheet Metal Co., 288 N.L.R.B. at 326 n.15). 

This isolated and unexplained extension of the rule in

Bethlehem Steel is not a reasonable ground for reliance. As

we have explained, “[a]lthough a Board rule may become

‘well-established’ through repetition, it may ‘come to stand

for’ a legal rule only through reasoned decisionmaking.” Id.

at 583 (quoting Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359, 374 (1998)). The rule in Bethlehem Steel was

not “well-established” in the absence of a union security

clause, nor had it “come to stand for” a legal rule in that

context. See id. at 583–84. Therefore, any reliance by the

Employers on Bethlehem Steel and Tampa Sheet Metal was

unreasonable and could not provide a proper basis for the

Board’s departure from standard make-whole relief.

2.

The Board next explained that an award of make-whole

relief “would carry with it a requirement that compound

interest be paid on all amounts due.”5 The Board appeared

particularly concerned about awarding such interest in light

of the fact that the Employers “could not have foreseen the

protracted litigation . . . before the Board and the Ninth

Circuit.” Intervenor Archon echoes this concern, pointing out

that “this case has been pending for 22 years, of which

approximately 15 years ha[ve] been spent waiting for the

Board to issue a decision in a case under submission.” 

5 The Board has adopted daily compounded interest as the standard

form of interest on awards of make-whole relief. See Jackson Hosp.

Corp., 356 N.L.R.B. 6, 9 (2010); see also, e.g., Emerald Green Bldg.

Servs., LLC, 364 N.L.R.B. No. 109, 2016 WL 4547528, at *2 (Aug. 26,

2016) (ordering daily compounded interest on dues-checkoff

reimbursements).
LOCAL JOINT EXEC. BD. V. NLRB 13

Archon argues that “it would be unjust to multiply [its]

liability by almost a factor of ten because of the

administrative delay in this case,” and it requests that we toll

the accrual period for interest in the event that we direct the

Board to order make-whole relief.

Although we are sympathetic to Archon’s position, we

reject the Board’s explanation regarding compound interest

and decline to toll the accrual period. As the Board itself

explained in a prior decision addressing compound interest:

There is no force to the argument . . . that

compound interest wrongly penalizes

respondents for the sometimes protracted

nature of unfair labor practice proceedings. 

The Supreme Court has rejected a similar

argument with respect to backpay awards

generally, recognizing that delay injures

backpay claimants and that the Board is “not

required to place the consequences of its own

delay . . . upon wronged employees to the

benefit of wrongdoing employers.” [NLRB v.

J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 265

(1969)]. Moreover, as the Federal courts have

observed, during the period before a backpay

award becomes effective, the respondent

enjoys “an interest-free loan for as long as [it

can] delay paying out back wages.” Clarke v.

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

Jackson Hosp. Corp., 356 N.L.R.B. 6, 9 (2010). The Board’s

reasoning in Jackson Hospital properly applies where, as

here, an employer causes unwarranted loss to a union by

unilaterally ceasing to collect and remit voluntary dues-
14 LOCAL JOINT EXEC. BD. V. NLRB

checkoff payments. Accordingly, we conclude that the

Board’s consideration of compound interest as a reason not

to award standard make-whole relief in this case was

improper.

3.

Finally, the Board explained that make-whole relief is

“not necessary to effectuate the purposes of the [NLRA]”

because “the [Employers] believed, correctly, that they were

following settled Board law at the time they acted, and there

is no reason to believe that they will not continue to abide by

Board law.” As we explained supra, however, the Employers

were not following settled Board law applicable to this case

at the time they acted. Moreover, although deterrence is a

proper remedial consideration, the main purpose of makewhole relief is to “recreate the conditions and relationships

that would have been had there been no unfair labor

practice.” Enter. Leasing Co. of Fla., LLC, 362 N.L.R.B. No.

135, 2015 WL 4179685, at *1 n.1 (June 26, 2015) (quoting

Local 60, United Bhd. of Carpenters v. NLRB, 365 U.S. 651,

657 (1961)). Thus, even if there were no reason to believe

that the Employers would violate the law in the future, that

would not be a sufficient basis on which to depart from the

standard remedy of make-whole relief. The Board’s decision

not to award the standard remedy of make-whole relief,

without offering a valid explanation, was a clear abuse of

discretion.

B.

The Union argues that the Board also clearly abused its

discretion by ordering prospective-only relief against defunct

entities. The Board disagrees that such relief is ineffective
LOCAL JOINT EXEC. BD. V. NLRB 15

and further contends that the Union prematurelyraises factual

issues that must be left for compliance proceedings. We

conclude that the Union’s arguments are not premature and

that the prospective-only relief at issue does not effectuate the

policies of the NLRA.

1.

We first consider whether the Union’s arguments are

premature. The Board asserts that questions as to the identity

of potential viable successors of the Employers, “as well as

the specific contours of bargaining, rescinding the unlawful

cessation of dues checkoff, and posting or mailing notices,

involve[] matters to be determined at the compliance phase.” 

Thus, the Board contends, the question whether any viable

entity “can carry out the remedies” at issue “involve[s] issues

for a compliance proceeding.” We disagree.

Whereas “factual issues which relate to the details of the

remedy should be delayed to the compliance hearing[,] . . . no

exhaustion is required where the challenge on review is to the

underlying legal basis of the Board’s remedial order.” Local

512, Warehouse &Office Workers’ Union v. NLRB, 795 F.2d

705, 715 (9th Cir. 1986) (second emphasis added), abrogated

on other grounds by Hoffman Plastic Compounds, Inc. v.

NLRB, 535 U.S. 137 (2002). Prior to the compliance phase,

the Board considers whether a form of relief would

“effectuate the policies of the [NLRA],” but “does not

concern itself with the amount of [relief] actually owing”

because the “determination of specific liabilities may involve

a protracted contest.” NLRB v. Deena Artware, Inc., 361 U.S.

398, 411 (1960) (Frankfurter, J., concurring) (discussing back

pay). For example, “questions relating to the exact amount of

back pay owing . . . are prematurely raised in [an]
16 LOCAL JOINT EXEC. BD. V. NLRB

enforcement petition,” but “those issues [of back pay,

mitigation, and job elimination] may be explored in a

compliance proceeding.” NLRB v. Trident Seafoods Corp.,

642 F.2d 1148, 1150 (9th Cir. 1981) (quoting Great Chinese

Am. Sewing Co. v. NLRB, 578 F.2d 251, 255–56 (9th Cir.

1978) (per curiam)).

Here, the Union does not challenge specific liabilities or

the exact details of the prospective relief at issue. Rather, the

Union argues that the Board failed to effectuate the policies

of the NLRA because it ordered only prospective forms of

relief that cannot be carried out in practice. Although the

Union’s argument raises predicate factual questions, those

questions relate to the legal basis of the Board’s order, not to

the specific contours of the remedy. See Local 512, 795 F.2d

at 715. We may review a legal challenge to the Board’s

remedial order where, as here, predicate factual questions are

capable of clear resolution on the record. Cf. NLRB v. Globe

Sec. Servs., Inc., 548 F.2d 1115, 1118 n.2 (3d Cir. 1977)

(explaining, in the context of a mootness challenge to an

enforcement petition, that courts have left the question of

impossibility of performance for compliance proceedings

usually only “where the record did not clearly show that the

employer had gone out of business”). Accordingly, the

Union’s legal challenge is not premature. The Union’s

entitlement to effective relief for an unfair labor practice that

occurred more than twenty-two years ago cannot be delayed

any further.

2.

The “statutory command” that the Board’s remedial

orders “‘effectuate the policies of the [NLRA]’ . . . at a

minimum . . . encompasses the requirement that a proposed
LOCAL JOINT EXEC. BD. V. NLRB 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). In general, prospective-only relief ordered against a

functioning employer for the benefit of a union and its

members satisfies this requirement. See Hoffman Plastic

Compounds, 535 U.S. at 152. Where no such employer or

representative union continues to exist, however, prospectiveonly relief amounts to no relief at all. See, e.g., NLRB v.

McMahon, 428 F.2d 1213, 1214 (9th Cir. 1970) (per curiam)

(“Enforcement of an order to bargain directed to a defunct

organization would be futile.”); Globe Sec. Servs., 548 F.2d

at 1117 (“Because the Labor Board’s order directs [the

employer] to bargain with a unit that, all agree, does not exist,

enforcement would be a vain and useless act . . . .”); NLRB.

v. Schnell Tool & Die Corp., 359 F.2d 39, 44 (6th Cir. 1966)

(“It is clear from the face of the order [including a cease-anddesist provision and other injunctive relief] that enforcement

of its provisions, with the exception of those calling for the

award of back pay, requires the existence of a functioning

employer.”).

Here, the Board ordered the Employers and their

successors to (1) cease and desist the unilateral cessation of

dues-checkoff and from interfering with employees’ rights

under the NLRA “[i]n any like or related manner”;

(2) bargain with the Union; (3) rescind the unilateral duescheckoff changes; and (4) post or mail remedial notices. 

Although the Board argues that it has “not yet made findings”

as to whether these remedies can be carried out as a practical

matter, the following facts are not in dispute. The Employers

ceased operating when they and their hotels were sold to

Archon in 1995. The same year, Archon sold the hotels to

unrelated businesses; one hotel, the Hacienda, was

demolished in 1996, while the other, the Sahara, was gutted,
18 LOCAL JOINT EXEC. BD. V. NLRB

massively renovated, and opened as a different hotel between

2011 and 2014. Archon remains the parent company of the

Employers, but no longer owns hotels or other unionized

operations in Las Vegas.6 Finally, no party contends that the

current owners of the situs properties are successors-ininterest or that their employees would even have any use for

the prospective-only relief at issue.

Nonetheless, Archon argues that it can effectively carry

out the relief ordered by the Board. The order to bargain and

the order to rescind the 1995 dues-checkoff changes,

however, are specifically linked to the Union, which has no

relationship to Archon. As for the cease-and-desist order, the

record does not demonstrate that Archon’s current employees

have any need for such relief. Moreover, we do not see how

a cease-and-desist order governing Archon’s current

operations outside of Las Vegas, in response to the

Employers’ cessation of dues-checkoff over twenty-two years

earlier in Las Vegas, is at all “tailored to the unfair labor

practice it is intended to redress.” Sure-Tan, 467 U.S. at 900. 

Finally, because the above remedies are ineffectual, the order

directing the Employers and their successors to post or mail

notice of such remedies is ineffectual as well.7

6

In proceedings before the Board on our third remand, the Union

produced public records sufficient to establish the foregoing facts. As

these facts are not subject to reasonable dispute and can be accurately and

readily determined from the public record sources presented to the Board,

we take judicial notice of them. See Fed. R. Evid. 201(b).

7

 The Board argues that the Union did not preserve its challenges to

the order to bargain and the order to rescind the unlawful cessation of

dues-checkoff because it failed to raise themspecifically before the Board. 

See 29 U.S.C. § 160(e). This argument is without merit. The Union filed

a brief before the Board requesting make-whole relief; at that time, the
LOCAL JOINT EXEC. BD. V. NLRB 19

C.

In concluding that the Board clearly abused its remedial

discretion, we take note of the reference in the Board’s order

to Lincoln Lutheran of Racine, 362 N.L.R.B. No. 188, 2015

WL 5047778 (Aug. 27, 2015). There, the Board overruled

Bethlehem Steel but applied its ruling prospectively only. Id.

at *10–11. As a result, employers who had unilaterally

ceased dues-checkoff in reasonable reliance on Bethlehem

Steel in cases pending at the time of Lincoln Lutheran were

never subjected to a remedial order because they necessarily

had not violated the NLRA. Such employers did not and

could not include the Employers in this case because we had

already determined that, in the absence of a union security

clause, their unilateral cessation of dues-checkoff was not

governed by Bethlehem Steel and their reliance on that

decision was unreasonable. They accordingly had violated

the NLRA and we ordered the Board “to determine what

relief is warranted.” LJEB III, 657 F.3d at 876.

When subsequently deciding this case, the Board noted

that its reasons for awarding prospective-only relief were

consistent with the reasons it provided in Lincoln Lutheran

for overruling Bethlehem Steel with prospective-only effect. 

Union was under no obligation to challenge the prospective-only relief

that had not yet been ordered by the Board. The Union then restated its

request for make-whole reliefin its motion for reconsideration, and argued

that the cease-and-desist and notice orders were meaningless for reasons

that are equally applicable to the order to bargain and the order to rescind. 

Finally, when denying that motion, the Board concluded that its entire

remedial order was not “meaningless and moot.” Thus, the Union

challenged the Board’s entire remedial order with “sufficient specificity”

to preserve its arguments on appeal. NLRB v. Legacy Health Sys.,

662 F.3d 1124, 1126 (9th Cir. 2011).
20 LOCAL JOINT EXEC. BD. V. NLRB

There would be nothing inappropriate with such an

observation, but for the fact that the Board’s main

consideration in both cases was the employers’

reliance—which, as we have explained, was unreasonable in

the absence of a union security clause.

After the Board invoked Lincoln Lutheran, it concluded

that, “[n]evertheless, [LJEB III] . . . makes it necessary to

fashion a remedy.” The Board then proceeded to fashion a

remedy that, in effect, amounted to no relief at all. In doing

so, the Board engaged in a “patent attempt to achieve ends

other than those which can fairly be said to effectuate the

policies of the [NLRA].” Va. Elec. & Power, 319 U.S. at

540. We urge the Board to move swiftly on remand to award

the standard remedy of make-whole relief.8

PETITION GRANTED; ORDER VACATED;

REMANDED WITH INSTRUCTIONS. Costs on appeal

awarded to Petitioners.

8 We leave the specific contours of make-whole relief for the Board

to determine on remand. Any disputes that arise concerning the

calculation or amount of reliefshould be resolved promptly in compliance

proceedings.