Valley Health System LLC, d/b/a Desert Springs Hospital Medical Center, and Valley Hospital Medical

372 NLRB No. 33 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Valley Health System, LLC d/b/a Desert Springs Hospital Medical Center, and Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Med- ical Center and Service Employees International Union, Local 1107. Cases 28–CA–184993, 28– CA–185013, 28–CA–189709, 28–CA–189730, 28– CA–192354, 28–CA–193581, 28–CA–194185, 28– CA–194194, 28–CA–194450, 28–CA–194471, 28– CA–194790, 28–CA–195235, 28–CA–197426, and 28–CA–201519 December 16, 2022 BY MEMBERS RING, WILCOX, AND PROUTY SUPPLEMENTAL DECISION AND ORDER On January 30, 2020, the National Labor Relations Board issued its Decision and Order in this proceeding reversing the administrative law judge, in relevant part, and dismissing the allegations that the Respondents had unlawfully ceased dues-checkoff deductions after the expiration of their collective-bargaining agreements with Service Employees International Union, Local 1107 (the Union).1 In finding the Respondents’ unilateral cessation of dues-checkoff deductions lawful, the Board relied exclusively on its then-recent decision in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Cen- ter (Valley Hospital I), 368 NLRB No. 139 (2019), which it applied retroactively, holding that an employer’s statutory obligation to check off union dues deductions expires with the collective-bargaining agreement estab- lishing the dues-checkoff arrangement. Thereafter, the Union filed a petition for review of the Board’s Order with the United States Court of Appeals for the Ninth Circuit. On December 30, 2020, the Ninth Circuit issued a memorandum disposition granting the Union’s petition for review and remanding the case to the Board. 832 Fed. Appx. 514 (9th Cir. 2020). 1 369 NLRB No. 16. In its Decision and Order, the Board also af- firmed the judge’s findings that the Respondents violated Sec. 8(a)(5) and (1) of the Act by withdrawing recognition from the Union as the bargaining representative of separate bargaining units of registered nurses (RNs) at Respondent Desert Springs Hospital Medical Center (Desert Springs) and Respondent Valley Hospital Medical Center (Val- ley), as well as a “technical” bargaining unit of the technicians and licensed practical nurses at Desert Springs. In addition, the Board affirmed the judge’s findings that the Respondents committed several other 8(a)(1) and (5) violations and also reversed two of the judge’s 8(a)(1) violation findings. No party sought court review of any of the Board’s findings other than the dismissal of the allegations pertaining to the Respondents’ unilateral cessation of dues-checkoff deductions and, accordingly, they are not at issue here. As the Ninth Circuit explained, [i]n a concurrently filed memorandum disposition in the related case, Local Joint Executive Board of Las Vegas v. NLRB, [840 Fed. Appx. 134 (9th Cir. 2020)], we remanded the case . . . [to the Board] with instructions that it address an identified gap in the decisionmaking process [in Valley Hospital I] by which it determined that ‘dues checkoff’ is excepted from the doctrine articulated by the Supreme Court in NLRB v. Katz, 369 U.S. 736, 743 (1962). Id. at 514–515. The court noted that this case presents the same question as in Local Joint Executive Board of Las Vegas regarding the reasonableness of the Board’s deci- sionmaking and that it reached the same result in remanding this case to the Board for the reasons stated in Local Joint Executive Board of Las Vegas. Id. at 515. On February 19, 2021, the court denied the Union’s petition for panel rehear- ing. On March 23, 2021, the Board notified the parties in Local Joint Executive Board of Las Vegas and this pro- ceeding that it had accepted the Ninth Circuit’s remands and invited them to file statements of position with re- spect to the issues raised by the court’s remands. The Acting General Counsel, the Union, and the Respondent filed position statements. On September 30, 2022, the Board issued its decision in Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center (Val- ley Hospital II), which reversed Valley Hospital I; re- turned to the rule set forth in Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), prohibiting an employer from unilaterally ceasing dues-checkoff deductions after the expiration of the applicable collective-bargaining agree- ment; and applied that decision retroactively.2 The Board has delegated its authority in this proceed- ing to a three-member panel. We have carefully reviewed the record and the parties’ statements of position in light of the Ninth Circuit's memorandum remanding. For the reasons explained below, applying the Lincoln Lutheran rule here, we af- firm the judge’s finding that the Respondents violated Section 8(a)(5) and (1) by unilaterally ceasing to deduct dues after the expiration of the parties’ collective- bargaining agreements. The Respondents were obligated 2 371 NLRB No. 160. The Board concluded that “treating contrac- tual dues-deduction provisions comparably with nearly all contractual provisions, which establish terms and conditions of employment that cannot be changed unilaterally after contract expiration, implements the Act’s policy goals of both encouraging the practice and procedure of collective bargaining and of safeguarding employees’ free choice in the exercise of their Sec[.] 7 rights.” Id., slip op. at 17. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 to continue to honor the dues-checkoff arrangements established in their expired collective-bargaining agree- ments with the Union until they either reached successor collective-bargaining agreements or valid overall im- passes in bargaining.3 I. BACKGROUND FACTS For nearly two decades, the Union represented the RNs at Desert Springs and Valley and a third “technical” bar- gaining unit at Desert Springs. The collective-bargaining agreement for the Desert Springs RN unit expired on April 30, 2016, and the collective-bargaining agreements for the Valley RN unit and the Desert Springs “tech- nical” unit expired on May 31, 2016.4 The parties’ collective-bargaining agreements con- tained dues-deduction provisions that, among other things, provided that the Respondents “shall deduct from the wages of employees who have so authorized, and pay over to the [Union], an amount equal to monthly mem- bership dues . . . provided that the employee has individ- ually and voluntarily authorized such deductions to be made.” Unit employees opting to take advantage of dues- checkoff deductions had to sign an authorization form that served as a written assignment of a portion of their paycheck. The signed authorization form that the Re- spondents received from the unit employees stated: This authorization shall remain in effect and shall be ir- revocable unless I revoke it by sending written notice to both the Employer and the Union by registered mail during a period from October 1-15 on each year of the agreement and shall be automatically renewed as an ir- revocable check-off from year to year unless revoked as hereinabove provided, irrespective of whether I am a Union member. The Respondents had made the required remittances to the Union pursuant to these dues-deduction authoriza- tions for the duration of the collective-bargaining agree- ments and for several months after the agreements had expired. However, on September 14, while negotiations for successor collective-bargaining agreements were on- going, the Respondents notified the Union by letter that “[w]e have discovered through a review of some of our 3 As thoroughly explained in Valley Hospital II, and in accordance with the Ninth Circuit’s remand in Local Joint Executive Board of Las Vegas, we reject the dissent’s arguments challenging our conclusion that an employer’s unilateral discontinuance of dues checkoff after a parties’ collective-bargaining agreement has expired, in the absence of an overall bargaining impasse, violates Sec. 8(a)(5) and (1). 4 All dates hereinafter are in 2016 unless otherwise indicated. payroll information that [the Union’s] dues payroll de- duction authorization form does not comply with Section 302 of the [Labor Management Relations Act (LMRA)].”5 The letter continued: The language which is missing from the form con- cerns expiration of a collective bargaining agree- ment. . . . [O]ur conclusion is that we are not proper- ly authorized to make deductions for dues based on the missing language concerning expiration of the applicable collective agreement. . . . We are confident in our position that we do not have appropriate authority to make dues deductions from employee paychecks based on the current au- thorizations [the Union] has in use. Therefore, it is our intention to cease any and all deductions based on the currently used authorizations on the pay date Friday, September 23, 2016. We invite the Union to provide us with any authority, whether statutory, regulatory or case law, which establishes that the current authorization complies with the statutory re- quirements and that dues deductions are permissible. Please provide any such information to us as soon as possible. This revelation is a surprise to us and that is why we are acting on this information now. In the event we receive newly executed, proper authoriza- tion forms, we will begin payroll deduction of dues. On September 19, after the Union informed the Re- spondents that it would consider the Respondents’ uni- lateral cessation of dues-checkoff deductions a violation of the Act that it would pursue all legal action to stop, the Respondents asserted that they did not have valid em- ployee written assignments to deduct union dues and that “[r]efusal to deduct dues based on an invalid authoriza- tion is not a unilateral change.” On September 20, the Respondents notified all unit employees that “[u]pon review of [the Union’s] payroll deduction authorization [forms], the [Respondents have] discovered that the au- thorization lacks specifically required language from the law.” The Respondents also informed employees that, “effective with the September 23, 2016, pay date, [the Respondents] will not be deducting union dues unless we receive valid dues deduction authorizations.” On Sep- tember 22, the Union again asserted that the Respondents 5 Sec. 302(c)(4) of the LMRA permits an employer to deduct union membership dues from an employee’s wages provided that the employ- er has received from the employee “a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner.” 29 U.S.C. § 186(c)(4). VALLEY HEALTH SYSTEM, LLC D/B/A DESERT SPRINGS HOSPITAL MEDICAL CENTER 3 were implementing a unilateral change and demanded bargaining. On September 23, the Respondents unilater- ally ceased the dues-checkoff deductions and, in a letter to the Union, asserted that they were “not making unilat- eral changes to the terms and conditions of the collective bargaining agreements” and that they were “prepared to deduct dues when presented with a validly executed and statutorily compliant authorization.” II. DISCUSSION Under Section 8(a)(5), after the expiration of the appli- cable collective-bargaining agreements, the Respondents were required to maintain the status quo and could not lawfully make unilateral changes to unit employees’ terms and conditions of employment that are mandatory subjects of bargaining, which includes dues-checkoff deductions, in the absence of an overall impasse in bar- gaining. See Valley Hospital II, 371 NLRB No. 160, slip op. at 17 (“[A]n employer, following contract expiration, must continue to honor a dues-checkoff arrangement established in that contract until either the parties have reached a successor collective-bargaining agreement or a valid overall bargaining impasse permits unilateral action by the employer.”); Bottom Line Enterprises, 302 NLRB 373, 374 (1991) (“[W]hen, as here, the parties are en- gaged in negotiations, an employer's obligation to refrain from unilateral changes extends beyond the mere duty to give notice and an opportunity to bargain; it encompasses a duty to refrain from implementation at all, unless and until an overall impasse has been reached on bargaining for the agreement as a whole.”), enfd. mem. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087 (9th Cir. 1994); see also NLRB v. Katz, 369 U.S. 736, 743 (1962). At the time of their unilateral actions, the Respondents were not contending that the parties were at impasse. Rather, because a review of payroll information led them to discover that the form by which employees had authorized dues deductions was purport- edly “missing explicit language required” by Section 302 of the LMRA, the Respondents asserted that they had to immediately cease deducting union dues. We disagree. Section 302(c)(4) of the LMRA provides the Respond- ents no defense to their unilateral conduct. The written assignment of dues deductions—like any other written assignment that employees give to their employer to have a specified amount automatically deducted from their wages and remitted to a third party, such as to make charitable contributions or to repay an outstanding debt—is an agreement between employees and their em- ployers. The assignment does not in any way alter a un- ion’s right, as the unit employees’ bargaining representa- tive, to have the employer maintain the status quo during the parties’ bargaining for a successor collective- bargaining agreement, which therefore prohibits the em- ployer from implementing a unilateral change over a mandatory subject of bargaining like dues-checkoff de- ductions in the absence of an overall impasse in bargain- ing. Moreover, although unit employees must, pursuant to Section 302(c)(4), be able to revoke their written as- signment for dues deductions during a period at least once a year and at the termination of the applicable col- lective-bargaining agreement, the LMRA is silent on what must be expressly stated in the unit employees’ written assignment. As such, it does not require that the written assignment use any specific language or reflect the statutory periods during which employees can revoke their authorization.6 6 Notably, the statutory language in Sec. 302(c)(4) of the LMRA us- es a nonrestrictive clause starting with “which” to describe the revoca- bility period of the written assignment, thereby suggesting that an em- ployee must be able to revoke the written assignment at the statutorily required times, but not that the individual’s written assignment received by the employer must necessarily specify those periods. The dissent claims that this reading suffers from two infirmities: (1) that the “which” could introduce a restrictive clause, not just a nonrestrictive clause; and (2) that the absence of a comma before the “which” makes the clause unambiguously restrictive. In advancing the first argument, the dissent appears to concede, at the very least, that the statutory lan- guage is ambiguous, as it is impossible to know for certain whether the “which” introduces a restrictive or nonrestrictive clause. The dissent argues that it is conceding no such ambiguity but continues by noting that “a restrictive clause may be introduced by which” (first emphasis added). However, the dissent’s use of the word “may,” by definition, demonstrates the possibility of ambiguity where a clause begins with “which.” Moreover, even though “which” may introduce a restrictive clause, the preferred usage—including around the time when Sec. 302 was enacted—is for “which” to introduce a nonrestrictive clause. See William Strunk, Jr. & E.B. White, THE ELEMENTS OF STYLE at 47 (1st ed. 1959) (“That is the defining or restrictive pronoun, which is the non-defining or nonrestrictive.”). Second, to claim that there is no possible ambiguity, the dissent relies solely on the absence of a comma before the word “which.” We cannot subscribe to the dissent’s conten- tion that a comma—or the lack thereof—is essential to construing Sec. 302(c)(4) or, more specifically, that it demonstrates that the dissent’s reading is the one and only way to understand the statutory language, especially given the statute’s use of the word “which.” Even if we accepted our colleague’s position that the presence of a comma would render the clause unambiguously nonrestrictive, it does not follow that the absence of a comma renders the clause unambiguously restrictive. At most, following our dissenting colleague’s logic, the absence of a comma creates an ambiguity regarding whether “which” introduces a restrictive or nonrestrictive clause. As discussed above, we would resolve that ambiguity in light of the preferred usage of “which” to introduce nonrestrictive clauses. But assuming that such an ambiguity does exist, we believe that it is appropriate to interpret the statute in a way that does not void all of the dues-checkoff authorizations at issue in this case. In addition, this ambiguity seriously undercuts the Re- spondents’ assertion that the authorization forms were clearly unlawful under Sec. 302. The authorizations were contractual agreements freely entered into by the Respondents’ employees for their own benefit to facilitate their financial relationship with their collective-bargaining representative. In fact, there is no evidence in this case that any of the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Although the Union’s authorization form provided that employees can revoke their authorizations during a 15- day period on each year of the collective-bargaining agreement, it did not explicitly reference employees’ right to revoke their authorizations at the termination of the applicable collective-bargaining agreement.7 How- ever, this omission did not invalidate the employees’ authorizations or permit the Respondents to unilaterally decide not to honor them. Nor does it mean, in accord- ance with the logic of the dissent, that the Respondents had been violating Section 302 for many years and through multiple collective-bargaining agreements by transferring dues deducted from employee pay on the basis of employee authorizations that it suddenly claimed to be flawed. The employees who signed the Union’s authorization form had granted the statutorily required written assignment to have the Respondents deduct their union dues from their paychecks. At the same time, the expired collective-bargaining agreements provided for voluntary dues-checkoff deductions as a term and condi- tion of employment during the life of the agreements. With the signed authorization forms in their possession, and without any indication of unit employees seeking to revoke their authorization, the Respondents were obli- gated under Section 8(a)(5) to maintain the status quo created under the expired collective-bargaining agree- Respondents’ employees actually sought to have their authorization rescinded, much less that they were denied the opportunity to do so. The dissent then asks why, if not required by the law, unions gener- ally draft their checkoff authorizations to provide that they are revoca- ble for a period at least once a year or at the termination date of the applicable collective-bargaining agreement, whichever occurs sooner, in accordance with the language of Sec. 302(c)(4). However, given that the dissent cites no case where a checkoff authorization has been inval- idated on the grounds advanced by the dissent, it is far from “[c]ommon sense,” as the dissent claims, that unions, or anyone else, read Sec. 302(c)(4) the same way the dissent does. Moreover, this case does not concern union conduct or motivations for drafting the language in their dues-deduction checkoff authorizations one way or another. It is the Respondents’ unilateral change and its failure to offer to bargain—not the dissent’s red herring about the authorization forms—that is what this case is fundamentally about and why the Respondents’ conduct was unlawful. 7 Notwithstanding, the dues-checkoff authorization form states that it can only be revoked during an annual period “on each year of the agreement,” which arguably provides that the limitation on revocation is only applicable when a collective-bargaining agreement is in effect and is terminable at-will at all other times. This reading is consistent with the second half of the sentence stating that the authorization “shall be automatically renewed . . . unless revoked as hereinabove provided.” In other words, the authorization shall be automatically renewed if not revoked when employees have the chance to do so during the specified annual period, which is from October 1–15 in years when a collective- bargaining agreement is in effect. The dissent asserts that we are “ob- viously mistaken” by suggesting this interpretation, but we mention it because it gives effect to the phrase “on each year of the agreement.” ments by not unilaterally ceasing the dues-checkoff de- ductions.8 8 See Quality House of Graphics, Inc., 336 NLRB 497, 498 (2001) (while noting that it is appropriate for the Board to consider the ap- plicability of Sec. 302 as a possible defense to unfair labor practice allegations, the Board found that the employer’s unilateral discontinu- ance of a pension fund checkoff violated Sec. 8(a)(5), even if the em- ployer correctly claimed that the checkoff was proscribed by Sec. 302). Although the dissent claims that the Respondents had to unilaterally cease the dues-checkoff deductions because employees did not have the opportunity to revoke them “upon the termination of the collective- bargaining agreement,” the Respondents’ employees did have such an opportunity under Sec. 302(c)(4), even though it was not spelled out in the authorization forms they signed. Moreover, even if deducting dues pursuant to the authorization forms would have violated Sec. 302(c)(4), the Respondents still would not have been privileged to act unilaterally but instead would have had to discuss the issue with the Union at the bargaining table. As the Board stated in Quality House of Graphics: We reject any contention that the discontinuation of the checkoff was not susceptible to collective bargaining if, as alleged, it was mandated by Sec. 302. In such circumstances, notice of the pro- posed change facilitates open discussion and gives the union no- tice of exactly what might be lost and an opportunity to defend the legality of the term and condition of employment at issue. Further, dialogue at the bargaining table could well lead to a mu- tually agreed-upon modification of the term and condition of em- ployment at issue which is entirely consistent with the law. Or, upon close bargaining table scrutiny, the parties might agree that discontinuation of the practice is mandated. Even if the parties agree that discontinuation of the practice is mandated, however, the employer would still be obligated to bargain over the effects of the change on other terms and conditions of employment. An- other possibility is that of deadlock or impasse on the particular proposal at issue. In such circumstances, the employer would be free to unilaterally discontinue the practice if confronted with an exigency of the second type identified in [RBE Electronics, 320 NLRB 80 (1995)]. See id. at 498 fn. 6. The dissent asserts that the Respondents’ failure to immediately cease the dues-checkoff deductions would have been a willful violation of a federal statute subject to criminal sanctions. Yet this is all conjecture, as the dissent does not cite one instance of an employer having ever been prosecuted for continuing to deduct dues checkoffs pursuant to employees’ written assignments. We believe, as did the Board in Quality House of Graphics, that the appropriate—and lawful—way for the Respondents to have resolved any concerns it had regarding the lawfulness of the authorization forms under Sec. 302(c)(4) was through open discussion and collective bargaining with the Union, as intended by the Act. Moreover, contrary to the dissent, “under settled Board law, widely accepted by reviewing courts, dues checkoff is a matter related to wages, hours, and other terms and condi- tions of employment within the meaning of Sec[.] 8(a)(5) and (d) of the Act and is therefore a mandatory subject of bargaining.” Valley Hospi- tal II, 371 NLRB No. 160, slip op. at 6 (internal footnote omitted). The Respondents had a duty to bargain with the Union over employees’ dues-checkoff deductions, regardless of their stated concerns about the wording of the authorization forms or whether the Respondents had properly deducted employees’ dues in the past. Lastly, the dissent notes that the Board in Quality House Graphics recognized that, if both parties agree that a change is mandated to comply with Sec. 302, then the employer would still have to bargain over the effects. From that statement, the dissent points out that the Union never requested effects VALLEY HEALTH SYSTEM, LLC D/B/A DESERT SPRINGS HOSPITAL MEDICAL CENTER 5 To the extent the Respondents were genuinely con- cerned about continuing to deduct union dues pursuant to what they alleged were the Union’s invalid authorization forms, the Respondents had several options that would have demonstrated their good-faith efforts to honor their statutory obligation instead of unilaterally ceasing the deductions. See County Concrete Corp., 366 NLRB No. 64, slip op. at 1 fn. 1 (2018) (employer violated Section 8(a)(5) and (1) by failing to deduct union dues because, even if it was genuinely concerned about the propriety of deducting the dues under the circumstances, the employ- er could have addressed those concerns while still mak- ing a good-faith effort to honor its obligation), enfd. 765 Fed.Appx. 712 (3d Cir. 2019). For instance, the Re- spondents could have sought the Union’s consent for temporarily suspending dues-checkoff deductions, worked jointly with the Union to obtain newly signed authorization forms, or placed the dues in escrow pend- ing resolution of their concerns. See id. In addition, the indemnification clauses in the expired collective- bargaining agreements should have alleviated any good- faith concerns the Respondents actually had about con- tinuing the dues-checkoff deductions.9 Nonetheless, the Respondents’ conduct was not con- sistent with a genuine effort to adhere to their statutory bargaining obligation to refrain from unilateral changes. In the same September 14 letter in which they informed the Union of their surprise in discovering the purported deficiency in the authorization form, the Respondents notified the Union that—just 9 days later on September 23—their intention was to “cease any and all deductions based on the currently used authorizations.” Moreover, the Respondents’ only effort to solicit input from the Union on their unilateral cessation of dues checkoff was to “invite the Union to provide [the Respondents] with any authority, whether statutory, regulatory or case law, which establishes that the current authorization complies with the statutory requirements and that dues deductions are permissible.”10 bargaining. Of course, the Union did not make such a request, as it never agreed that a change was mandated. Nonetheless, the Union did repeatedly request that the Respondents not make any unilateral chang- es. The Respondents ignored those requests and, at the same time, their obligations under the Act. 9 The indemnification clauses in the expired collective-bargaining agreements were in the contract articles on “Employee Deductions” and provided that the Union agreed to “indemnify, defend and hold . . . harmless” the Respondents against “any and all claims or suits that may arise out of or by reason of action taken by [the Respondents] in reli- ance upon authorization cards submitted by the Union.” 10 Citing to BASF Wyandotte Corp., 274 NLRB 978 (1985), enfd. 798 F.2d 849 (5th Cir. 1986), the dissent contends that “the Respond- ents had to stop dues checkoff” under Sec. 302(a)(2). We agree with the BASF Wyandotte Board that it is appropriate to consider arguments In sum, instead of maintaining the status quo, the Re- spondents decided on their own to stop the dues-checkoff deductions. In a matter of days, they repeatedly insisted to the Union that they could unilaterally cease employ- ees’ dues-checkoff deductions based on their sudden conclusion, months after the expiration of the collective- bargaining agreements, that the employees’ current au- thorizations were invalid and that they would only re- sume deducting union dues once they received authoriza- tions that they deemed to be valid. The Respondents then followed through by taking the unilateral action that they said they would. The Respondents’ unilateral cessa- tion of dues-checkoff deductions contravened their duty to negotiate with the Union, especially while the parties were in negotiations for successor collective-bargaining agreements, and frustrated the objectives of Section 8(a)(5) as much as if the Respondents had simply refused to bargain over the matter. See Katz, 369 U.S. at 743 (“We hold that an employer's unilateral change in condi- tions of employment under negotiation is similarly a vio- lation of [Section] 8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the objectives of [Sec- tion] 8(a)(5) much as does a flat refusal.”). Accordingly, the Respondents violated Section 8(a)(5) and (1) by unilaterally ceasing to maintain their dues- checkoff arrangements with the Union after the expira- tion of the applicable collective-bargaining agreements. concerning Sec. 302 when determining whether a party has violated Sec. 8(a)(5). Id. at 978–979. Instructively, in both BASF Wyandotte and National Fuel Corp., 308 NLRB 841, 845 (1992), another case cited by the dissent, the Board found 8(a)(5) violations and rejected the employers’ defenses that they had to implement unilateral changes to comply with Sec. 302. The dissent claims that it is immaterial that the Board found the violations in those cases. However, the Board’s find- ing of the violations in BASF Wyandotte and National Fuel Corp. demonstrates that the dissent has not cited a case in which the Board has adopted the defense urged by the dissent here—that a violation of Sec. 8(a)(5) is excused because of a purported conflict with Sec. 302. Moreover, we disagree with the dissent that the Respondents would have necessarily violated Sec. 302(a)(2) if they had continued to honor their employees’ dues-checkoff authorizations. As we explain, even if the Respondents had legitimate concerns about the propriety of the authorizations, they had other options besides unilaterally changing a term and condition of their employees’ em- ployment. Any reservations the Respondents may have had about their legal authority to make dues-checkoff deductions should have been assuaged by their possession of employees’ written authorizations, which is all that the statute requires of an employer. And there is no dispute that the Respondents had such authorizations, as they had relied on them for years in deducting union dues from employees’ paychecks. Under these circumstances, the Respondents should have maintained the status quo while working with the Union to reach an amicable reso- lution. Instead, the Respondents appear to have used their purported scruples about the authorization forms as a pretext for their unilateral action to gain leverage in their negotiations with the Union over suc- cessor collective-bargaining agreements for the three bargaining units. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 REMEDY Having found that the Respondents have engaged in certain unfair labor practices, we shall order them to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondents violat- ed Section 8(a)(5) by unilaterally ceasing dues-checkoff deductions after the expiration of the parties’ collective- bargaining agreements, we shall order the Respondents to make the Union whole for any dues it would have re- ceived but for the Respondents’ failure to comply with their obligation to not unilaterally change terms and con- ditions of employment.11 See, e.g., W.J. Holloway & Son, 307 NLRB 487, 487 (1992); West Coast Cintas Corp., 291 NLRB at 156; Creutz Plating Corp., 172 NLRB 1, 1 (1968). This order requires only that the Re- spondents make the Union whole for dues it would have received from employees who have individually signed dues-checkoff authorizations. See, e.g., W.J. Holloway, 307 NLRB at 487 fn. 3; Creutz Plating Corp., 172 NLRB at 1. The make-whole remedy shall be remitted to the Union with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). See Space Needle, LLC, 362 NLRB 35, 39 (2015), enfd. on other grounds 692 Fed. Appx. 462 (9th Cir. 2017); W.J. Holloway, 307 NLRB at 491. ORDER A. The National Labor Relations Board orders that Re- spondent Valley Health System, LLC d/b/a Desert Springs Hospital Medical Center, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally ceasing dues checkoff without first bargaining to impasse. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 11 To prevent double recovery by the Union, payment by the Re- spondents to the Union shall be offset by any dues the Union collected during the relevant period on behalf of employees covered by the dues- payment order. See A.W. Farrell & Son, Inc., 361 NLRB 1487, 1487 fn. 3 (2014). In addition, in ordering this remedy, we make clear that the Re- spondents are prohibited from seeking to recoup from the employees any dues amounts the Respondents are required to reimburse to the Union. See Alamo Rent-A-Car, 362 NLRB 1091, 1091 fn. 1 (2015) (“[T]he ‘financial liability for making the Union whole for dues it would have received but for [r]espondent’s unlawful conduct rests entirely on the [r]espondent and not the employees.’”) (quoting West Coast Cintas Corp., 291 NLRB 152, 156 fn. 6 (1988)), enfd. sub nom. Enterprise Leasing Company of Florida v. NLRB, 831 F.3d 534 (D.C. Cir. 2016). 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Remit to the Union, at no cost to employees, dues payments required by the parties’ collective-bargaining agreements for employees who executed checkoff au- thorizations prior to and during the period of the Re- spondent’s unlawful conduct, as described in the remedy section of this decision. (b) Preserve and, within 14 days of a request or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amounts due under the terms of this Order. (c) Post at its Las Vegas, Nevada facility copies of the attached notice marked “Appendix A.”12 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s au- thorized representatives, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall, at its own expense, duplicate the notice and mail copies to all current and 12 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” VALLEY HEALTH SYSTEM, LLC D/B/A DESERT SPRINGS HOSPITAL MEDICAL CENTER 7 former employees employed by the Respondent at any time since September 23, 2016. (d) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. B. The National Labor Relations Board orders that Re- spondent Valley Hospital Medical Center, Inc. d/b/a Val- ley Hospital Medical Center, Las Vegas, Nevada, its of- ficers, agents, successors, and assigns, shall 1. Cease and desist from (a) Unilaterally ceasing dues checkoff without first bargaining to impasse. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Remit to the Union, at no cost to employees, dues payments required by the parties’ collective-bargaining agreement for employees who executed checkoff author- izations prior to and during the period of the Respond- ent’s unlawful conduct, as described in the remedy sec- tion of this decision. (b) Preserve and, within 14 days of a request or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, neces- sary to analyze the amounts due under the terms of this Order. (c) Post at its Las Vegas, Nevada facility copies of the attached notice marked “Appendix B.”13 Copies of the 13 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s au- thorized representatives, shall be posted by the Respond- ent and maintained for 60 consecutive days in conspicu- ous places, including all places where notices to employ- ees are customarily posted. In addition to physical post- ing of paper notices, notices shall be distributed electron- ically, such as by email, posting on an intranet or an in- ternet site, and/or other electronic means, if the Respond- ent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or cov- ered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall, at its own expense, duplicate the notice and mail copies to all current and former employees employed by the Respondent at any time since September 23, 2016. (d) Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. December 16, 2022 _______________________________________ Gwynne A. Wilcox, Member _______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER RING, dissenting. After collective-bargaining agreements between the Respondents and the Union expired, and while the par- ties were negotiating successor agreements, the Re- spondents stopped deducting union dues from employ- ees’ paychecks and remitting them to the Union. For more than half a century, a postexpiration cessation of dues checkoff was perfectly lawful. The Board—with routine approval by the federal courts of appeals—held that the obligation to check off union dues ends when the collective-bargaining agreement containing a dues- checkoff provision expires. Bethlehem Steel, 136 NLRB 1500 (1962).1 Seven years ago, the Board overruled 1 Remanded on other grounds sub nom. Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615 (3d Cir. 1963), cert. denied 375 U.S. 984 (1964). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 Bethlehem Steel in Lincoln Lutheran of Racine,2 but it reinstated the rule of Bethlehem Steel a few years later in Valley Hospital Medical Center, Inc. d/b/a Valley Hospi- tal Medical Center (Valley Hospital I).3 Recently, how- ever, my colleagues reverted to the rule of Lincoln Lu- theran of Racine once again, holding that an employer violates Section 8(a)(5) and (1) of the Act if it unilateral- ly discontinues dues checkoff after the expiration of a collective-bargaining agreement creating that arrange- ment. See Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center (Valley Hospital II).4 But Valley Hospital II differs from Lincoln Lutheran of Racine in a key respect. In Lincoln Lutheran of Racine, the Board applied its new rule prospectively only, while in Valley Hospital II, my colleagues decided to apply it retroactively in all pending cases.5 As explained in my dissent in Valley Hospital II, I strongly disagree with the majority’s decision to resur- rect Lincoln Lutheran of Racine and to apply the rule of that decision retroactively. For the reasons stated there, I would adhere to the rule of Bethlehem Steel and Valley Hospital I, and applying that standard here, I would find that the Respondents did not violate Section 8(a)(5) and (1) of the Act by unilaterally discontinuing dues checkoff after the collective-bargaining agreements expired. But my dissent in this case also rests on a ground inde- pendent of the Valley Hospital II dissent. Even assuming the expiration of the parties’ collective-bargaining agreements did not privilege the Respondents to stop checking off union dues, another circumstance did. In- deed, another circumstance compelled the Respondents to cease dues checkoff. After the agreements expired, the Respondents learned that if they continued checking off dues, they would have violated Section 302(a)(2) of the Labor Management Relations Act (LMRA). Section 302(a)(2) makes it unlawful for an employer to deliver money to a labor organization that represents its employees.6 There are, however, exceptions. One ex- 2 362 NLRB 1655 (2015). 3 368 NLRB No. 139 (2019), corrected February 4, 2020, petition for review granted, remanded mem. sub nom. Local Joint Executive Board of Las Vegas v. NLRB, 840 Fed. Appx. 134 (9th Cir. Dec. 30, 2020). 4 371 NLRB No. 160 (2022). 5 Compare Lincoln Lutheran of Racine, 362 NLRB at 1663, with Valley Hospital II, 371 NLRB No. 160, slip op. at 15-17. 6 LMRA Sec. 302(a)(2) provides as follows: “It shall be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value . . . to any labor organization, or any officer or employee thereof, which represents, seeks to represent, or would admit to membership, any of the employ- ees of such employer who are employed in an industry affecting com- ception, set forth in Section 302(c)(4), concerns “money deducted from the wages of employees in payment of membership dues in a labor organization.” Under Sec- tion 302(c)(4), an employer may deliver such funds to a union, provided the employer “has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner.” As its wording indicates, Section 302(c)(4) requires that “a written assignment”—better known as a checkoff authorization—provide employees two opportunities to revoke: “at least once a year” and “upon the termination of the collective-bargaining agreement.” Atlanta Printing Specialties, 215 NLRB 237, 237 (1974), enfd. 523 F.2d 783 (5th Cir. 1975). As explained below, the checkoff authorizations exe- cuted by the Respondents’ bargaining unit employees did not provide the opportunities to revoke that Section 302(c)(4) mandates. They provide an opportunity to revoke “once a year,” but only during the term of the collective-bargaining agreement. And they provide no opportunity to revoke “upon the termination of the col- lective-bargaining agreement.” Accordingly, the Re- spondents were not shielded by the Section 302(c)(4) exception to liability under Section 302(a)(2). Once they knew as much, continuing to check off dues would have constituted a willful violation, exposing them to criminal sanctions under Section 302(d). Under these circum- stances, the Respondents had to stop dues checkoff, and they did not violate Section 8(a)(5) by doing so without bargaining with the Union because whether to continue checking off dues pursuant to 302(c)(4)-noncompliant authorizations would have been an illegal subject of bar- gaining. See BASF Wyandotte Corp., 274 NLRB 978 (1985), enfd. 798 F.2d 849 (5th Cir. 1986). Unlike my colleagues, who reject this defense, I believe that it is plainly applicable here, and I dissent on this additional ground as well. BACKGROUND The Union represents registered nurses (RNs) in sepa- rate units at Respondent Desert Springs Hospital Medical Center (Desert Springs) and Respondent Valley Hospital Medical Center (Valley) (collectively, the Respondents). The Union also represents a unit of technical employees at Desert Springs. The most recent collective-bargaining agreement for the Desert Springs RN unit was effective from May 1, 2013, to April 30, 2016. The most recent merce . . . .” Sec. 302(d) makes willful violation of this statute a mis- demeanor punishable by a fine of not more than $10,000 or imprison- ment for not more than one year, or both. VALLEY HEALTH SYSTEM, LLC D/B/A DESERT SPRINGS HOSPITAL MEDICAL CENTER 9 collective-bargaining agreements for the Valley RN unit and the Desert Springs technical unit were effective from June 1, 2013, to May 31, 2016. All three agreements contained dues-checkoff clauses providing that the Respondents would deduct unit em- ployees’ union dues from their pay and remit those dues to the Union. Employees who opted to take advantage of dues checkoff signed checkoff authorization forms, which stated in relevant part as follows: This authorization shall remain in effect and shall be ir- revocable unless I revoke it by sending written notice to both the Employer and the Union by registered mail during a period from October 1-15 on each year of the agreement and shall be automatically renewed as an ir- revocable check-off from year to year unless revoked as hereinabove provided, irrespective of whether I am a Union member. On September 14, 2016,7 after all three agreements had expired and while the parties were bargaining for successor agreements, the Respondents notified the Un- ion that their review of a sampling of employees’ checkoff authorizations revealed that the authorizations did not comply with Section 302 of the LMRA. The Respondents explained that the forms did not include language permitting revocation upon the “expiration of the applicable collective agreement.” The Respondents concluded that they did not have “appropriate authority to make dues deductions,” and they announced their in- tent to cease dues deductions on the next pay date, Sep- tember 23. The Respondents, however, “invite[d] the Union to provide . . . any authority, whether statutory, regulatory or case law, which establishes that the current authorization complies with the statutory requirements and that dues deductions are permissible.” The Re- spondents also stated that should they “receive newly executed, proper authorization forms, [they] will begin payroll deduction of dues.” On September 15, the Union rejected the Respondents’ Section 302 argument and declared that it would consider the unilateral cessation of dues checkoff to be a violation of the Act. On September 19, the Respondents replied that discontinuing dues checkoff “based on an invalid authorization is not a unilateral change.” They also pro- vided the Union with sample authorization forms they believed complied with Section 302(c)(4). On Septem- ber 20, the Respondents notified unit employees that their authorization forms were invalid because the forms “[did] not contain the statutorily required language con- 7 All dates hereafter are in 2016. cerning the ability to revoke the authorization at the ter- mination date of the” collective-bargaining agreement. On September 22, the Union demanded that the Re- spondents bargain before they ceased deducting dues. The Respondents ceased dues checkoff on September 23. That same day, the Respondents reiterated to the Union that they were “prepared to deduct dues when presented with a validly executed and statutorily compliant author- ization.” DISCUSSION 1. The Respondents did not violate Section 8(a)(5) be- cause they were not obligated to continue dues checkoff after contract expiration. For all the reasons set forth in my dissent in Valley Hospital II, I would adhere to longstanding precedent, first established in Bethlehem Steel, supra, that an em- ployer’s obligation to check off union dues ends when its collective-bargaining agreement containing a checkoff provision expires. See 371 NLRB No. 160, slip op. at 18–25. Accordingly, I would find that the Respondents acted lawfully when they unilaterally ceased deducting union dues from their unit employees’ pay in September 2016, following the April and May 2016 expiration of the agreements that created those checkoff arrangements. For this reason, I would dismiss the complaint allega- tions that the Respondents’ unilateral cessation of dues checkoff violated Section 8(a)(5) and (1). 2. The Respondents lawfully ceased dues checkoff be- cause employees’ checkoff authorizations rendered dues checkoff illegal under LMRA Section 302. Section 302 of the LMRA makes it unlawful—and punishable by “criminal sanctions”—for an employer to deliver “any money or other thing of value” to a labor organization. NLRB v. Gissel Packing Co., 395 U.S. 575, 607 fn. 26 (1969). Section 302(c)(4) establishes an exception to this criminal prohibition for “payments by employers to union representatives of union dues . . . where an employee has executed a ‘written assignment’ of the dues, i.e., a check-off authorization.” Id. This exception, however, specifies that employees must be afforded opportunities to revoke a checkoff authoriza- tion. Specifically, Section 302(c)(4) mandates that the employer must have “received from each employee, on whose account such deductions are made, a written as- signment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs soon- er.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 Although the Board does not enforce Section 302,8 it is not barred, “in the course of determining whether an un- fair labor practice has occurred, from considering argu- ments concerning Section 302 to the extent they support, or raise a possible defense to, unfair labor practice alle- gations.” BASF Wyandotte Corp., 274 NLRB at 978. Thus, “in considering whether a party has violated Sec- tion 8(a)(5),” the Board “has authority to entertain argu- ments that an unfair labor practice was, or was not, committed because certain contract provisions or practic- es in issue violate Section 302 and thus constitute illegal subjects of bargaining.” Id. at 979.9 The Board in BASF Wyandotte explained that a refusal to consider such ar- guments “would risk placing a party in the position of being required to comply with two conflicting statutory mandates: adhere to the contract provision and violate Section 302 or unilaterally cease to honor the provision and violate Section 8(a)(5).” Id. at 978–979. Moreover, because Congress, in the LMRA, both enacted Section 302 and amended the NLRA, including Section 8, the Board in BASF Wyandotte observed that “it would be particularly incongruous for Section 8 of the National Labor Relations Act to be interpreted and applied in iso- lation from Section 302,” and it cautioned that “provi- sions of the same statute should be interpreted in such a manner that compliance with one does not result in viola- tion of another.” Id. at 979. Accordingly, the Board must consider the Respondents’ argument that the con- tinued remittance to the Union of dues money pursuant to checkoff authorizations that did not conform to the requirements of Section 302(c)(4) would have been ille- gal. As the Board observed nearly 50 years ago, “Section 302(c)(4) guarantees an employee two distinct rights when he executes a checkoff authorization under a col- lective-bargaining agreement: (1) a chance at least once a year to revoke his authorization, and (2) a chance upon the termination of the collective-bargaining agreement to revoke his authorization.” Atlanta Printing Specialties, 8 “Authority to restrain violations of Section 302 and to judge al- leged criminal violations of this section is vested in the United States district courts by Section 302(d) and (e). . . . [T]he Board does not have authority to enforce Section 302.” BASF Wyandotte Corp., 274 NLRB at 978. 9 In BASF Wyandotte, the employer unilaterally discontinued its grant of certain privileges to a union representative, including paying him for worktime spent conducting union business. 274 NLRB at 978 & fn. 2. The Board found it appropriate to consider the employer’s asserted defense that the payments “violated Section 302,” were “illegal and not a mandatory subject of bargaining,” and therefore, that the employer’s unilateral discontinuance of the payments did not violate Sec. 8(a)(5). Id. at 978. 215 NLRB at 237.10 The Board has further explained that limiting these two guaranteed revocation opportuni- ties “to a reasonable escape period, such as between 20 and 10 days before the expiration of either of these peri- ods,” is consistent with Section 302(c)(4). Frito-Lay, Inc., 243 NLRB 137, 138 (1979). The checkoff authorization forms at issue here do pro- vide employees an opportunity, once a year, to revoke their authorization during a 15-day window period. However, the forms specify that this opportunity exists only during the term of the collective-bargaining agree- ment. They state that employees may revoke “during a period from October 1-15 on each year of the agree- ment” (emphasis added). No opportunity to revoke once a year is provided after the agreement expires. And the forms provide no opportunity whatsoever to revoke upon termination of the agreement. Indeed, the forms make clear that employees’ annual right to revoke, limited to the term of the agreement, is the only revocation right employees have. Immediately following the language establishing the right to revoke during a window period “on each year of the agreement,” the forms state that employees’ checkoff authorizations “shall be automati- cally renewed as an irrevocable check-off from year to year unless revoked as hereinabove provided” (emphasis added).11 Accordingly, the checkoff authorizations do not comply with the requirements of Section 302(c)(4). Because the employees’ checkoff authorizations im- pose limits on irrevocability that exceed those permitted by Section 302(c)(4), the payment of dues to the Union pursuant to those noncompliant authorizations would have been unlawful under Section 302(a)(2). See BASF Wyandotte, 274 NLRB at 978 (“Section 302 generally makes it illegal for an employer to pay money or other things of value to a union or union officer, except in lim- ited circumstances.”). Moreover, because the Respond- ents knew that the authorizations did not comply with Section 302(c)(4), they would have violated Section 302(a)(2) willfully had they continued to check off dues, subjecting themselves to criminal sanctions under Sec- tion 302(d). Because continuing dues checkoff would have been unlawful under Section 302(a)(2), whether to continue dues checkoff would have “constitute[d] an 10 See also Stewart v. NLRB, 851 F.3d 21, 24 (D.C. Cir. 2017) (“[T]he Board understands Section 302(c)(4) to establish a statutory right to two opportunities to revoke a checkoff authorization: one tied to the annual anniversary of the authorizations, and the second tied to the expiration of the operative collective bargaining agreement.”). 11 Thus, the majority is obviously mistaken when they interpret the wording of the checkoff authorization as permitting revocation when- ever a collective-bargaining agreement is not in effect. VALLEY HEALTH SYSTEM, LLC D/B/A DESERT SPRINGS HOSPITAL MEDICAL CENTER 11 illegal subject[] of bargaining.” Id.12 Accordingly, the Respondents did not violate Section 8(a)(5) by ceasing dues checkoff unilaterally, i.e., without giving the Union an opportunity to bargain over that decision. The majority reaches the contrary conclusion, but their reasoning is unpersuasive. First, they say that a checkoff authorization is an agreement between employees and their employer, which does not alter the union’s right to insist that the employer maintain the status quo during the parties’ negotiations for a successor agreement. That is true as a general proposition, but that proposition cannot be applied here because to do so places the Respondents in the untenable position of violating the law no matter what they do. My colleagues find that the Respondents violated Section 8(a)(5) by ceasing dues checkoff, even though they would have violated Section 302(a)(2) had they contin- ued dues checkoff. The most basic principles of justice must condemn this outcome, as the Board has recog- nized. See BASF Wyandotte, 274 NLRB at 979 (“Cer- tainly provisions of the same statute should be interpret- ed in such a manner that compliance with one does not result in violation of another.”). Second—and this is the crux of my colleagues’ ra- tionale—the majority claims that Section 302(c)(4) has nothing to do with the wording of checkoff authoriza- tions at all. They acknowledge that under Section 302(c)(4), employees must be able to revoke their written assignment of dues “at least once a year and at the termi- nation of the applicable collective-bargaining agree- ment.” But they assert that Section 302(c)(4) “does not require that the written assignment use any specific lan- guage or reflect the statutory periods during which em- ployees can revoke their authorization.” In support of this remarkable claim, they say that Section 302(c)(4) “uses a nonrestrictive clause starting with ‘which’ to de- scribe the revocability period of the written assignment, thereby suggesting that an employee must be able to re- 12 See also National Fuel Corp., 308 NLRB 841, 842-843 (1992) (recognizing, as a defense to a Sec. 8(a)(5) unilateral-change allegation, the Sec. 302–based argument that the subject matter of the change was “an illegal, rather than mandatory, subject[] of bargaining”); OXY USA, Inc., 329 NLRB 208, 211-212 (1999) (“[T]he Act does not require parties to bargain over illegal subjects . . . .”); First National Mainte- nance Corp. v. NLRB, 452 U.S. 666, 675 fn. 13 (1981) (“A matter that is not a mandatory subject of bargaining, unless it is illegal, may be raised at the bargaining table.”) (emphasis added); Hill-Rom Co. v. NLRB, 957 F.2d 454, 457 (7th Cir. 1992) (“Illegal subjects [of bargain- ing] are simply those proscribed by federal . . . law.”). My colleagues question the application of National Fuel and BASF Wyandotte because the Board in those cases found the Sec. 8(a)(5) violations. But the result the Board reached in those cases is immateri- al. I cite them for the principles they stand for, and those principles clearly apply here. voke the written assignment at the statutorily required times, but not that the individual’s written assignment received by the employer must necessarily specify those periods.” Simply put, the majority reads Section 302(c)(4) as though it contains an invisible comma. That is, they in- terpret it as though it reads as follows: Section 302 shall not be applicable “with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment, which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective agreement, whichever occurs sooner.” Read as such, Section 302(c)(4) requires “a written assignment,” but the limits on its irrevocability need not be reflected in the written assignment. That is how my colleagues read it. This interpretation suffers from two infirmities. First, Section 302(c)(4) contains no such comma. Second, the majority mistakenly assumes that because the clause specifying permissible limits on irrevocability begins with the word which, the clause is nonrestrictive.13 Ac- cording to Merriam-Webster, however, “[y]ou can use either which or that to introduce a restrictive clause . . . .”14 Accordingly, Congress’s use of which to intro- duce the clause at issue here does not require that the clause be read as nonrestrictive, since restrictive clauses may be introduced by either which or that. And two con- siderations compel the conclusion that the clause at issue is restrictive. First, the word which is not preceded by a comma. Second, Section 302 itself demonstrates that Congress uses which to introduce restrictive clauses be- cause elsewhere in Section 302, Congress did precisely that.15 Properly interpreted, then, Section 302(c)(4) does 13 The difference between restrictive and nonrestrictive clauses is easier to illustrate than explain. Assume two cars, one headed up the street, the other down the street. Restrictive clause: “The dog is chas- ing the car that is headed up the street.” Nonrestrictive clause: “The dog is chasing the car, which makes me wonder what it will do if it catches it.” In the first sentence, the clause defines which of two cars the dog is chasing. In the second, the clause does not define anything; it simply adds a further thought. Thus, restrictive and nonrestrictive clauses are also referred to as defining and nondefining clauses, respec- tively. 14 Which vs. That: Correct Usage | Merriam-Webster (last visited Nov. 11, 2022). The leading authority on usage lamented this state of affairs, even as he acknowledged it: “[I]f writers would agree to regard that as the defining relative pronoun, and which as the non-defining, there would be much gain both in lucidity and in ease. Some there are who follow this principle now; but it would be idle to pretend that it is the practice either of most or of the best writers.” H. W. Fowler, A Dictionary of Modern English Usage, 2nd ed. (1965), at 626. 15 See Sec. 302(a)(2): “It shall be unlawful for any employer . . . to pay, lend, or deliver . . . any money or other thing of value . . . to any DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 require that the written assignment itself not make the assignment of dues “irrevocable for a period of more than one year, or beyond the termination date of the ap- plicable collective agreement, whichever occurs soon- er.”16 Citing Quality House of Graphics, Inc., 336 NLRB 497 (2001), the majority claims that even assuming the continued deduction of dues would have been unlawful, the Respondents still would not have been privileged to cease dues checkoff unilaterally. In Quality House, the Board, citing BASF Wyandotte, recognized that “it is appropriate to consider the applicability of Section 302 as a possible defense to unfair labor practice allegations,” but it nevertheless refused to consider an employer’s Section 302 defense on the basis that the employer failed to show that the alleged conflict with Section 302 consti- tuted an extraordinary circumstance compelling prompt action. 336 NLRB at 497-498 (citing, inter alia, RBE Electronics of S.D., 320 NLRB 80 (1995)). That ra- tionale fails here. I can think of no more extraordinary circumstance compelling prompt action than the discov- ery that continuing to checkoff dues would be a willful violation of a federal statute subject to criminal sanc- tions.17 More fundamentally, however, RBE Electronics labor organization . . . which represents, seeks to represent, or would admit to membership, any of the employees of such employer who are employed in an industry affecting commerce . . .” (emphasis added). 16 My colleagues wave away the absence of a comma preceding the word which, declaring that they “cannot subscribe to [my] contention that a comma—or the lack thereof—is essential to construing Sec. 302(c)(4).” They then claim that I “appear[] to concede . . . that the statutory language is ambiguous” because “it is impossible to know for certain whether the word ‘which’ introduces a restrictive or nonrestric- tive clause.” I do not believe that I have created any such appearance, but let me remove all doubt on that score. I do not concede that Sec. 302(c)(4) is ambiguous. Moreover, as explained above, it is the very absence of a comma preceding the word which that makes it unambig- uous. If a comma preceded which, the clause that word introduces would be unambiguously nonrestrictive. Because there is no comma, and because a restrictive clause may be introduced by which, the clause that word introduces is unambiguously restrictive. In other words, the limits on checkoff-authorization irrevocability set forth in Sec. 302(c)(4) must be reflected in the wording of the checkoff authoriza- tion. Indeed, unions typically draft checkoff authorizations, and those authorizations generally are worded so as to comply with the strictures of Sec. 302(c)(4). If the majority is correct, one must ask, Why do unions even bother? After all, it would be much easier to simply draft a checkoff authorization stating, “I authorize my employer to deduct dues from my paycheck and remit them to the union.” Common sense sug- gests the answer: they read Sec. 302(c)(4) the same way I do. 17 My colleagues express skepticism that the Respondents discovered that the checkoff authorizations were 302(c)(4)-noncompliant when they say they did, but there is no record evidence to the contrary. And even if they knew it earlier, they still had no duty to bargain before ceasing dues checkoff. Again, “an unlawful subject is not a mandatory subject”—and “past practice . . . cannot convert a nonmandatory sub- ject into a mandatory one.” 336 NLRB at 499 (then-Chairman Hurt- gen, dissenting in part). concerns exceptions to the rule against unilateral changes in terms and conditions of employment that constitute mandatory subjects of bargaining. Checking off dues pursuant to authorizations that do not comply with Sec- tion 302(c)(4) is unlawful, and “an unlawful subject is not a mandatory subject.” Id. at 499 (then-Chairman Hurtgen, dissenting in part). Accordingly, my col- leagues’ reliance on Quality House of Graphics is mis- placed. Finally, the majority says that if the Respondents “were genuinely concerned about continuing to deduct union dues,” they could have availed themselves of vari- ous options “that would have demonstrated their good- faith efforts to honor their statutory obligation,” and they failed to do so. But this argument assumes that the Re- spondents had a “statutory obligation” to continue check- ing off dues, notwithstanding that continuing to do so would have been a willful violation of Section 302(a)(2) and would have exposed them to criminal sanctions un- der Section 302(d). For the reasons already explained, the Respondents had no such obligation.18 CONCLUSION Unlike my colleagues, I believe that the Respondents had two valid reasons for unilaterally ceasing dues checkoff. First, their obligation to check off dues ended when the collective-bargaining agreements creating that arrangement expired. Second, continuing to check off dues in reliance on authorizations that did not comply with LMRA Section 302(c)(4) would have been unlaw- ful, and therefore the Respondents were privileged to stop checking off dues and to do so unilaterally because whether to continue to do so was an illegal subject of bargaining. Accordingly, for the reasons stated above, I must respectfully dissent from my colleagues’ finding 18 County Concrete Corp., cited by the majority, is not to the contra- ry. The validity under Sec. 302(c)(4) of the checkoff authorizations was not in question in that case. Rather, the Board rejected the em- ployer’s contention that it was privileged to refuse to check off dues on the basis that the union had failed to apprise employees of their General Motors and Beck rights. See 366 NLRB No. 64, slip op. at 1 fn. 1 (2018), enfd. mem. 765 Fed. Appx. 712 (3d Cir. 2019). Although they were under no duty to do so, the Respondents did ex- hibit good faith in their dealings with the Union regarding this matter. They explained to the Union why the authorization forms failed to comply with Sec. 302. They invited the Union to provide any contrary interpretation of Sec. 302. And they provided the Union with examples of checkoff authorizations they believed would comply with Sec. 302. The Union, however, ignored these overtures. My colleagues cite the Board’s comment in Quality House that even if the parties’ bargaining there would have resulted in agreement that the employer’s cessation of checkoff was mandated by Sec. 302, the employer would still have been obligated to bargain over the effects of that change. Id. at 498 fn. 6. But the Union did not request effects bargaining, which, given the Respondents’ good-faith efforts, might have quickly resolved this issue through a simple rewording of the authorizations forms. VALLEY HEALTH SYSTEM, LLC D/B/A DESERT SPRINGS HOSPITAL MEDICAL CENTER 13 that the Respondents’ unilateral cessation of dues checkoff violated Section 8(a)(5) and (1). Dated, Washington, D.C. December 16, 2022 ______________________________________ John F. Ring, Member NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TOEMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT unilaterally cease dues checkoff. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL remit to the Union, at no cost to employees, dues payments required by the parties’ collective-bargaining agree- ments for employees who executed checkoff authorizations prior to and during the period of our unlawful conduct, plus interest. DESERT SPRINGS HOSPITAL MEDICAL CENTER The Board’s decision can be found at www.nlrb.gov/case/28-CA-184993 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. APPENDIX B NOTICE TOEMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT unilaterally cease dues checkoff. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL remit to the Union, at no cost to employees, dues payments required by the parties’ collective-bargaining agree- ment for employees who executed checkoff authorizations prior to and during the period of our unlawful conduct, plus interest. VALLEY HOSPITAL MEDICAL CENTER The Board’s decision can be found at www.nlrb.gov/case/28-CA-184993 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.