In Local Joint Executive Bd. of Las Vegas v. NLRB, __ F.3d __, 2011 WL 4031208 (9th Cir. 2011), the Ninth Circuit Court of Appeals ruled the NLRB’s policy that employers may unilaterally terminate dues checkoff after the expiration of a collective bargaining agreement without first bargaining with the union is irrational when applied in states where union security is prohibited. The court ordered the NLRB to find that the former owner of the Hacienda and Sahara hotels in Las Vegas committed an unfair labor practice in 1995 when it stopped dues checkoff for Culinary Workers Union Local 226 and Bartenders Union Local 165 during a contentious bargaining dispute. The ruling is very unusual and is the product of 16 years of litigation, three NLRB decisions and three Court of Appeals decisions. Ordinarily, the federal courts of appeals do not tell the NLRB how to interpret the NLRA or declare any conduct to be illegal where the NLRB has not found a violation. The court took this step only because the NLRB failed three times to provide a rational explanation for its rule, instead relying solely on the length of time it has been in effect.
