Hacienda Resort Hotel & Casino

National Labor Relations Board - Board Decisions

Jul 7, 2000

331 N.L.R.B. 665 (N.L.R.B. 2000)

HACIENDA RESORT HOTEL & CASINO 665
Hacienda Hotel, Inc. Gaming Corporation d/b/a Ha-
cienda Resort Hotel and Casino and Local Joint
Executive Board of Las Vegas, Culinary Work-
ers Union, Local 226 and Bartenders Union, Lo-
cal 165, affiliated with Hotel Employees and
Restaurant Employees, AFL–CIO

Sahara Nevada Corporation d/b/a Sahara Hotel And
Casino and Local Joint Executive Board of Las
Vegas, Culinary Workers Union, Local 226 and
Bartenders Union, Local 165, affiliated with Ho-
tel Employees and Restaurant Employees, AFL–
CIO. Cases 28–CA–13274 and 28–CA–13275
July 7, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, HURTGEN, AND BRAME
On August 8, 1996, Administrative Law Judge James
M. Kennedy issued the attached decision. The General
Counsel filed exceptions and a supporting brief, an an-
swering brief, and a reply brief. The Charging Party filed
exceptions and a supporting brief, and a combined reply
brief and brief opposing cross-exceptions. The Respon-
dents filed conditional cross-exceptions to be considered
in the event the Board reverses the judge’s decision, and
a brief opposing exceptions. The AFL–CIO and Council
on Labor Law Equality filed amici briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,1
findings, and conclusions, as modified, and to adopt the
recommended Order.
The Respondents, Hacienda Resort Hotel and Sahara
Hotel, are hotels and gambling casinos, which were
owned by Sahara Gaming Inc. until they were sold in the
fall of 1995. The Respondents and the Union had collec-
tive-bargaining relationships for over 30 years. Until
May 31, 1994, the parties embodied their relationships in
separate, but substantially identical, collective-bargaining
agreements. On that date, each agreement expired. The
parties negotiated unsuccessfully for successor agree-
ments through the end of that year. In January 1995, the
Respondents’ attorney requested further bargaining, but
the Union did not respond.
Each of the expired agreements contained an identical
dues-checkoff provision which stated:

1 In the Respondents’ conditional cross-exceptions, they take issue with
the judge’s grant of the General Counsel’s motion in limine to strike all of
the Respondents’ affirmative defenses except waiver, as well as his rejection
of the Respondents’ offers of proof and revocation of the portions of the
Respondents’ subpoena related to the rejected defenses. We agree with the
judge’s striking of these defenses for the reason stated by him at hearing,
that is, because the defenses, if proven, would not affect the result.
ARTICLE 3 UNION SECURITY
3.03. Check-Off
The Check-off Agreement and system heretofore en-
tered into and established by the Employer and the
Union for the check-off of Union dues by voluntary
authorization, as set forth in Exhibit 2, attached to
and made part of this Agreement, shall be continued
in effect for the term of this agreement.
The referenced exhibit stated in pertinent part:
Pursuant to the Union Security provision of the
Agreement . . . the Employer, during the term of the
agreement, agrees to deduct each month Union
membership dues . . . from the pay of those employ-
ees who have authorized such deductions in writing
as provided in this Check-off Agreement.
The exhibit also included a “Payroll Deduction Authori-
zation” form which stated in relevant part that the em-
ployee agreed that the authorization shall remain in ef-
fect, and automatically renew from year to year, and be
irrevocable unless revoked in writing
during a period of fifteen (15) days immediately
succeeding any yearly period subsequent to the date
of this authorization or subsequent to the date of
termination of the applicable contract between the
Employer and the Union, whichever occurs sooner .
. . .
The State of Nevada, where the Respondents are lo-
cated, is a right-to-work jurisdiction,2 and the agreements,
therefore, did not, and legally could not, include union
security clauses requiring union membership as a condi-
tion of employment. The Respondents abided by the
checkoff provisions during the terms of the agreements
and for a period thereafter. In June 1995 the Respondents
notified the Union that they intended to cease checking
off dues and did so, redirecting to the employees in the
form of regular wages the money which was formerly
deducted from employees’ pay and remitted to the Un-
ion.3 The complaint asserted that the Respondents’ dis-
continuance of the checkoff procedure constituted an
unlawful refusal to bargain because it represented a uni-
lateral change in terms and conditions of employment,
thus, violating Section 8(a)(5) and (1) of the Act.4
2 Sec. 14(b) of the Act entitles any state or territory to prohibit the
“execution or application of agreements requiring membership in a
labor organization as a condition of employment.” States with laws
barring union-security agreements are commonly known as “right-to-
work” states or jurisdictions.
3 As the judge noted, there were slight differences in the manners in
which the Respondents implemented the decision to terminate check-
off.
4 Sec. 8 provides, in relevant part:
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the ex-
ercise of the rights guaranteed in section 7;
. . . .
331 NLRB No. 89
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
The judge dismissed the 8(a)(5) and (1) allegation
based solely on his analysis of the language of the collec-
tive-bargaining agreements. The judge concluded that,
after contract expiration, the Respondents were free to
cease honoring the contractual dues-checkoff system at
will without violating the agreements and, therefore, the
Act. In so concluding, the judge discussed, but did not
rely on, Board precedent, discussed infra, holding that an
employer’s obligation to continue a dues-checkoff
arrangement terminates on expiration of the contract that
created the obligation. We agree with the judge’s conclu-
sion that the Respondents did not violate Section 8(a)(5)
and (1) when they unilaterally dishonored the dues-
checkoff provisions of the expired agreements. But we
base our decision on well-established precedent that an
employer’s obligation to continue a dues-checkoff ar-
rangement expires with the contract that created the obli-
gation.
It is beyond dispute that most contractually established
terms and conditions of employment, like any other es-
tablished terms and conditions of employment, are man-
datory subjects of bargaining and cannot be changed uni-
laterally on contract expiration under NLRB v. Katz, 369
U.S. 736 (1962). Some contractually established terms
and conditions of employment, however, have histori-
cally been treated as exceptions to this general rule. See,
e.g., Southwestern Steel & Supply v. NLRB, 806 F.2d
1111, 1114 (D.C. Cir. 1986), enfg. 276 NLRB 1569
(1985) (union-shop, dues-checkoff, and no-strike provi-
sions, except to the extent the correlative arbitration
clause survives, are within the “narrow class of excep-
tional mandatory subjects . . . that do not survive expira-
tion of the collective bargaining agreement”); and Indi-
ana & Michigan Electric Co., 284 NLRB 53, 54–55, 58–
59 (1987) (union-security and dues-checkoff arrange-
ments, and postexpiration arbitration do not survive con-
tract expiration).
The Board first addressed the issue of the survivability
of dues-checkoff provisions in Bethlehem Steel, 136
NLRB 1500, 1502 (1962), 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). In that case, the Board also addressed the issue of
whether union-security clauses survive contract expira-
tion. The Board held that both union-security and dues-
checkoff provisions involve wages, hours, and other
terms and conditions of employment, and, therefore, are
mandatory subjects of bargaining. The Board in Bethle-
hem Steel, supra, however, held that special statutory
considerations dictated that a contractual union-security
provision expired on the expiration of the contract under
which it legally came into being. In this regard, the
Board stated that because the acquisition and mainte-

(5) to refuse to bargain collectively with the representatives
of his employees.
nance of union membership cannot be a condition of
employment except under a contract which conforms to
the proviso to Section 8(a)(3) (setting forth the condi-
tions under which such agreements are permitted),5 the
parties may require union membership as a condition of
employment only so long as a contract with a union-
security provision is in effect. Id. The Board then further
held that the dues-checkoff provisions at issue were sub-
ject to “similar considerations,” and “[t]he Union’s right
to such checkoffs in its favor, like its right to the imposi-
tion of union security, was created by the contracts and
became a contractual right which continued to exist so
long as the contracts remained in force.” Id. The Board
concluded that the employer was “free of its checkoff
obligations to the Union” when its collective-bargaining
agreement ended. Id. The Board also noted that the lan-
guage of the provisions themselves linked the checkoff
obligation with the duration of the contracts. Id.
Since 1962, the holding of Bethlehem Steel that an
employer’s checkoff obligation terminates with contract
expiration has been cited numerous times in Board deci-
sions. See Teamsters Local 70 (Sea-Land of California),
197 NLRB 125, 128 (1972), enfd. per curiam 490 F.2d
87 (9th Cir. 1973); Peerless Roofing Co., 247 NLRB
500, 505 (1980), enfd. 641 F.2d 734 (9th Cir. 1981);
Ortiz Funeral Home Corp., 250 NLRB 730, 731 fn. 6
(1980), enfd. on other grounds 651 F.2d 136 (2d Cir.
1981), cert. denied 455 U.S. 946 (1982); Robbins Door
& Sash Co., 260 NLRB 659, 659 (1982); Petroleum
Maintenance Co., 290 NLRB 462, 463 fn. 4 (1988);
R.E.C. Corp., 296 NLRB 1293, 1293 (1989); Xidex
Corp., 297 NLRB 110, 118 (1989), enfd. 924 F.2d 245,
254–255 (D.C. Cir. 1991); AMBAC, 299 NLRB 505, 507
fn. 8 (1990); U.S. Can Co., 305 NLRB 1127, 1127
(1992), enfd. 984 F.2d 864, 869 (7th Cir. 1993); J. R.
Simplot Co., 311 NLRB 572, 572 (1993), enfd. mem. 33
F.3d 58 (1994), cert. denied 513 U.S. 1147 (1995); Sonya
Trucking, Inc., 312 NLRB 1159. 1160 (1993); Katz’s
Deli, 316 NLRB 318, 334 fn. 23 (1995), enfd. on other
grounds 80 F.3d 755 (2d Cir. 1996); Sullivan Bros.
Printers, 317 NLRB 561, 566 fn. 15 (1995), enfd. 99
F.3d 1217, 1231 (1st Cir. 1996); Spentonbush/Red Star
5 Sec. 8(a)(3) states in relevant part:
. . . nothing in this Act . . . shall preclude an employer from mak-
ing an agreement with a labor organization (not established,
maintained, or assisted by any action defined in section 8(a) of
this Act as an unfair labor practice) to require as a condition of
employment membership therein on or after the thirtieth day fol-
lowing the beginning of such employment or the effective date
of such agreement, whichever is later, (i) if such labor organiza-
tion is the representative of the employees as provided in section
9(a), in the appropriate collective-bargaining unit covered by
such an agreement when made, and (ii) unless following an elec-
tion held as provided in section 9(e) within one year preceding
the effective date of such agreement, the Board shall have certi-
fied that at least a majority of the employees eligible to vote in
such election have voted to rescind the authority of such labor
organization to make such an agreement[.]
HACIENDA RESORT HOTEL & CASINO 667
Cos., 319 NLRB 988, 990 (1995), enf. denied on other
grounds 106 F.3d 484 (2d Cir. 1997); 87-10 51st Ave.
Ownership Corp., 320 NLRB 993 (1996); Talaco Com-
munications, Inc., 321 NLRB 762, 763 (1996); Able
Aluminum Co., 321 NLRB 1071, 1072 (1996); Valley
Stream Aluminum, Inc., 321 NLRB 1076, 1077 (1996).
Various circuit court decisions have specifically en-
dorsed the proposition that an employer’s obligation to
check off dues terminates at contract expiration. See,
e.g., Marine & Shipbuilding Workers, supra, 320 F.2d at
619; Southwestern Steel, supra, 806 F.2d at 1114; Xidex
v. NLRB, supra, 924 F.2d at 254–255; U.S. Can Co. v.
NLRB, supra, 984 F.2d at 869; Sullivan Bros. Printers,
Inc. v. NLRB, supra, 99 F.3d at 1231. This well-
established holding has also been recognized by the Su-
preme Court in Litton Business Systems v. NLRB, 501
U.S. 190, 198–199 (1991). Most often, the holding is
stated broadly by the Board and courts for the well-
settled proposition that an employer’s dues-checkoff ob-
ligation does not survive contract expiration, and is not
tied to any discussion of union security. In Tampa Sheet
Metal, 288 NLRB 322, 326 fn. 15 (1988), the Board ex-
plicitly applied this line of precedent in a right-to-work
context where dues checkoff could not lawfully be linked
with union-security arrangements to find that the check-
off obligation therein did not survive contract expira-
tion.6
Although we do not base our decision on the language
of the dues-checkoff provisions of the agreements in this
case, we are compelled to note, as the judge did, that the
provisions at issue clearly tie the checkoff agreement to
the duration of the contracts. It is axiomatic that contract
negotiations occur in the context of existing law, and,

6 We note and take issue with the judge’s characterization of this
area of the law as “very confusing.” Other cases involving different
legal issues are consistent with the principle that an employer’s obliga-
tion to continue dues checkoff ends with the contract term. E.g., Frito-
Lay, Inc., 243 NLRB 137 (1979) (the Board held that a union did not
violate Sec. 8(b)(1)(A) and (2) when it requested that an employer
continue to deduct dues during a contractual hiatus and an employer did
not violate Sec. 8(a)(3) and (1) by aquiescing to that request when
employees attempted to untimely revoke their checkoff authorizations);
Chemical Workers Local 143 (Lederle Laboratories), 188 NLRB 705
(1971) (the Board held that a union’s claiming right to checkoff after
contract expiration did not violate Sec. 8 (b)(1)(A)); and Lowell Corru-
gated Container Corp., 177 NLRB 169, 173 (1969), enfd. on other
grounds 431 F.2d 1196 (1st Cir. 1970) (the Board adopted judge’s
finding that an employer’s continuing to honor an unrevoked dues-
checkoff authorization after contract expiration did not contravene Sec.
8(a)(3), and (1)). Cases cited by the judge as standing for the proposi-
tion that it has been held a violation of Sec. 8(a)(2) to continue checkoff
after contract expiration are clearly distinguishable. In Stainless Steel
Products, 157 NLRB 232, 233 (1966), the Board found under the cir-
cumstances that continuing checkoff after contract expiration was part
of a pattern of “numerous and various activities” assisting an incumbent
union in violation of Sec. 8(a)(2). In Guy’s Foods, Inc., 158 NLRB 936,
947(1966), affd. on other grounds sub nom. Bakery & Confectionery
Workers Local 245 v. NLRB, 379 F.2d 160 (D.C. Cir. 1969), the Board
adopted the finding that an employer’s checkoff and other actions vio-
lated Sec. 8(a)(2) where no binding contract had ever come into effect.
therefore, a contract provision must be read in light of
the law in existence at the time the agreement was nego-
tiated. Mastro Plastics Corp. v. NLRB, 350 U.S. 270,
279 (1956); and NLRB v. Southern California Edison
Co., 646 F.2d 1352, 1365 (9th Cir. 1981). Thus, the lan-
guage linking the checkoff system to the duration of the
agreements here reflects the established law and also
supports the conclusion that the precedent was known
and understood by the parties to the agreements.
In sum, although the precedent that checkoff does not
survive contract expiration initially developed in the con-
text of a contract containing both union security and dues
checkoff, it has clearly come to stand for the general rule
that an employer’s dues-checkoff obligation terminates at
contract expiration. This well-established rule has been
cited and relied on in numerous Board and court deci-
sions. Further, practitioners have come to rely on that
principle, as the judge recognized in this case. Thus, this
bright-line rule has been the law for 38 years and is both
well settled and well understood. Absent compelling
reasons to do so, which are not present here, we see no
reason to deviate from it. We therefore conclude, in
agreement with the judge and existing precedent, that the
Respondents did not violate the Act when they unilater-
ally ceased checkoff after the contracts here expired, and
that the complaint should be dismissed. 7
ORDER
The complaint is dismissed.

MEMBERS FOX AND LIEBMAN, dissenting.
Contrary to our colleagues, we would find that the Re-
spondents violated Section 8(a)(5) and (1) when, after
their collective-bargaining agreement with the Union had
expired but while negotiations for a new agreement were
still underway, they unilaterally ceased checking off dues
for employees who, so far as the record shows, had valid
checkoff authorizations on file. In our view, there is no
statutory or policy justification for excepting dues
checkoff from the general rule that following the expira-
tion of a collective-bargaining agreement, an employer is
obliged to maintain the status quo with regard to em-
ployees’ terms and conditions of employment until the
parties agree on changes or bargain to impasse. We
7 In addition to the above rationale, Member Hurtgen notes that a
checkoff clause, although a mandatory subject, is a unique one. It is
simply a mechanism for employees to pay dues to the union. And, in
this case, these dues are not even a condition of employment. Thus, the
clause, while a mandatory subject, does not really set the wages, hours,
and conditions under which employees work. In Member Hurtgen’s
view, some rather unique mandatory matters are subject to rules that
differ from those pertaining to more common mandatory subjects. For
example, a McClatchy Newspapers clause, 321 NLRB 1386 (1996), is
mandatory, but it is not subject to the “implementation upon impasse”
rule. Similarly, the instant clause, while mandatory, is not necessarily
subject to the “survive the contract” rule. For this reason, and those
stated by the majority, Member Hurtgen concurs with the longstanding
principle that a checkoff clause ordinarily does not survive the expira-
tion of the contract.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
would therefore overrule as contrary to the Act those
Board cases that hold that an employer’s obligation to
checkoff dues terminates as a matter of law when the
collective-bargaining agreement containing the dues-
checkoff provision expires.
It is well established that an employer violates its obli-
gation to bargain under Section 8(a)(5) and (d) of the Act
if, without bargaining to impasse, it effects a unilateral
change of an existing term or condition of employment.
NLRB v. Katz, 369 U.S. 736 (1962). The obligation to
refrain from unilateral changes applies not only in situa-
tions where, as in Katz, the union is newly certified and
the parties have not yet reached an initial agreement, but
also in cases where, as here, an existing agreement has
expired and negotiations on a new one have not been
completed. Litton Financial Printing Division v. NLRB,
501 U.S. 190, 198 (1991). Thus, as a general rule, con-
tractually established terms and conditions that are man-
datory subjects of bargaining must be continued in effect
after the contract has expired until the parties negotiate a
new agreement or bargain to impasse. Id. This rule
plays an essential role in giving effect to the statutory
right of employees to bargain with their employers
through their chosen representatives, for as the Supreme
Court has stated, “[A]n employer’s unilateral change in
conditions of employment under negotiation . . . is a cir-
cumvention of the duty to negotiate which frustrates the
objectives of 8(a)(5) much as does a flat refusal” to bar-
gain. Katz, supra, 369 U.S. at 743.
In a line of Board cases beginning with Bethlehem
Steel, 136 NLRB 1500 (1962), 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), the Board has treated contractually es-
tablished dues-checkoff arrangements as one of a small
number of terms and conditions of employment that are
excepted from the Katz rule and therefore are not re-
quired to be continued in effect after the contract has
expired, even though they are mandatory subjects of bar-
gaining.1 The Board has never, however, advanced a
defensible rationale for this exception.2
In Bethlehem Steel, supra, the Board had before it alle-
gations regarding unilateral changes on a number of dif-
ferent subjects,3 and it singled out two—union security
and dues checkoff—as exceptions to the general rule of

1 The others are union-security clauses, no-strike clauses (except to
the extent other dispute resolution methods survive expiration of the
agreement), and arbitration clauses. See Litton Financial Printing
Division, supra at 198.
2 For a critique of explanations that have been offered for this excep-
tion, see Weeks, Continuing Liability Under Expired Collective
Bargaining Agreements: Part 1, 15 Okla. City U. L. Rev. 1, 38–39 &
fn. 108 (1990).
3 The complaint had alleged that following the expiration of its con-
tracts with the union covering various different groups of employees,
the employer had made unilateral changes in preferential seniority,
grievance procedures, union security, and dues checkoff.
postexpiration survivability. Preliminarily, the Board
acknowledged that both were mandatory subjects of bar-
gaining, in that they related to terms and conditions of
employment covered by Section 8(d). With regard to
union security, the Board next observed that the proviso
in Section 8(a)(3) which permits employers and unions to
enter into union-security agreements also restricts their
application; specifically, that “the acquisition and main-
tenance of union membership cannot be made a condi-
tion of employment except under a contract which con-
forms to the proviso.” Id.4 The Board then reasoned that
because the statute made union-security requirements
dependent on the existence of a contract conforming to
the proviso, unions and employers can lawfully impose
such requirements only so long as such a contract is in
force. Once the contract expires, the union-security pro-
visions become inoperative and there is no longer a law-
ful basis on which union membership can be required as
a condition of employment. Thus, the Board concluded,
when the employer, following expiration of its contracts
with the union, refused to continue to require employees
to comply with the union-security requirements, it was
“acting in accordance with the mandate of the Act” and
therefore did not violate Section 8(a)(5).
Dues-checkoff arrangements, whereby an employer,
pursuant to voluntary authorizations executed by indi-
vidual employees, deducts union dues from the employ-
ees’ wages and remits them to the union, are not covered
by the proviso to Section 8(a)(3) because they do not
compel union membership or financial support as a con-
dition of employment,5 and, as we discuss below, nothing
in the statute or Board decisional law requires that they
be specified in a contract in order to be lawful. Never-
theless, the Board went on to conclude—without ac-
4 Sec. 8(a)(3) make it an unfair labor practice for an employer “by
discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in
any labor organization. “ The proviso to that section provides in perti-
nent part (emphasis added):
[N]othing in this Act . . . shall preclude an employer from making
an agreement with a labor organization . . . to require as a condi-
tion of employment membership therein on or after the thirtieth
day following the beginning of such employment or the effective
date of such agreement, whichever is later, (i) if such labor or-
ganization is the representative of the employees as provided in
section 9(a), in the appropriate collective-bargaining unit covered
by such an agreement when made, and (ii) unless following an
election held as provided in section 9(e) within one year preced-
ing the effective date of such agreement, the Board shall have cer-
tified that at least a majority of the employees eligible to vote in
such election have voted to rescind the authority of such labor or-
ganization to make such an agreement[.]
5 “The dues checkoff section of the Act, far from being a union secu-
rity provision, seems designed as a provision for administrative conven-
ience in the collection of union dues . . . . The Supreme Court has made
it clear that union security devices and checkoff arrangements are sepa-
rate entities, and that the latter are a matter of ‘individual freedom of
decision’ for the employee. Felter v. Southern Pacific Co., 359 U.S.
326 (1959).” NLRB v. Atlanta Printing Specialties, 523 F.2d 783, 786
(5th Cir. 1975).
HACIENDA RESORT HOTEL & CASINO 669
knowledging these fundamental distinctions—that “simi-
lar considerations prevail” with respect to the employer’s
refusal to continue to check off dues after the end of the
contracts, and that this also was not a violation of the
Act. The only explanation it gave for this conclusion
was that the checkoff provisions in the expired agree-
ments “implemented the union-security provisions” and
that the union’s right to the checkoffs, like the right to
union security, was “created by the contracts.” Id.
Over the years, the Bethelehem Steel holding has been
converted to a broad rule, now well established in Board
case law, that dues-checkoff provisions, like union-
security provisions, do not survive the expiration of the
contract. Ironically, although the primary rationale given
by the Board for the holding in Bethlehem Steel itself
was that the dues-checkoff clauses merely “imple-
mented” the union-security provisions, the Board has
since held that an employer may unilaterally cease
checking off dues after contract expiration even where
the contract contained no union-security provisions and
indeed even where, as here, union-security provisions are
affirmatively prohibited by State law.6 See, e.g., Tampa
Sheet Metal, 288 NLRB 322, 326 fn. 15 (1988). The
Board has never acknowledged that the result in these
cases cannot be justified under the original Bethlehem
Steel rationale, nor has it ever attempted to articulate a
substitute rationale that would justify the broader rule the
majority reaffirms today.7 In our view, however, even
where a contract contains both a union-security provision
and a dues-checkoff provision, there is no valid basis for
excepting dues checkoff from the prohibition against
unilateral changes.
Dues-checkoff arrangements, as we have noted, are es-
sentially different in nature from union-security ar-
rangements. When a union and an employer enter into a
union-security agreement, they agree that all employees
in the bargaining unit will be required to pay dues to the
union, and that any employee who fails to do so will be
discharged. In contrast, when an employer and a union
agree to a dues-checkoff provision, no obligations are
imposed on employees. The employer merely agrees, as
a matter of administrative convenience to the union and

6 The State of Nevada, where the employees covered by the expired
agreement are employed, has a “right-to-work” law, authorized under
Sec. 14(b) of the Act, prohibiting the enforcement of any union-security
clause in the State.
7 In Hudson Chemical Co., 258 NLRB 152, 157 (1981), the adminis-
trative law judge justified an employer’s refusal to continue checking
off dues following contract expiration partly on grounds that because
Sec. 302(c)(4) provides that checkoff authorizations shall not be irrevo-
cable beyond the termination date of the applicable collective bargain-
ing, the checkoff authorization expired when the agreement expired.
Although the Board adopted the judge’s decision on this point without
comment, it has never otherwise suggested that it meant to adopt his
reasoning, which is, in any event, a non sequitur. That a checkoff au-
thorization must be revocable when the contract terminates simply
means that the employee must be able to revoke it. It does not mean
that it is automatically revoked.
individual employees, that it will establish a mechanism
through which employees who choose to do so may pay
their union dues through payroll deductions. Although
the dues that an individual employee authorizes to be
“checked off” during the term of a collective-bargaining
agreement may be dues that the employee is required to
pay pursuant to the terms of a union-security clause, the
existence of a dues-checkoff provision in an agreement is
not dependent on the existence of a union-security provi-
sion. Indeed, dues-checkoff provisions can and fre-
quently do exist in collective-bargaining agreements
where union-security provisions are absent.8 Dues-
checkoff provisions, like automatic payroll deduction
systems for paying insurance premiums, purchasing sav-
ings bonds or making charitable contributions, provide
employees with a convenient method for making a recur-
ring payment, while at the same time providing practical
advantages for the recipients of such payments, whether
they be unions, insurance providers, the U.S. Treasury,
or the local United Way Campaign, because the recipi-
ents are spared the time and effort that would otherwise
have to be expended collecting payments directly from
the employee on a periodic basis. Thus, even where
there is also a union-security provision in the contract, a
dues-checkoff provision does not merely “implement”
the union-security clause, but serves separate and distinct
functions.
For purposes of application of the Katz rule against
unilateral changes, the most significant difference be-
tween union-security clauses and dues checkoff is that
there is no provision in the statute that makes dues-
checkoff arrangements dependent on an extant collec-
tive-bargaining agreement for their legality or enforce-
ability. The language of the 8(a)(3) proviso which was
interpreted by the Board in Bethlehem Steel to prohibit
adherence to a union-security agreement absent an exist-
ing agreement simply has no analogue in the provisions
of the statute pertaining to dues checkoff.
Dues checkoff is regulated under Section 302 of the
Act, which prohibits, and creates criminal penalties for,
unauthorized employer payments to unions. Exceptions
from this general prohibition are carved out for certain
specified types of payments, including dues checkoff.
Section 302(c)(4), the exception for dues checkoff, reads
in pertinent part as follows:
The provisions of this section 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
8 In a 1995 review of collective-bargaining agreements, 95 percent
were found to contain dues-checkoff provisions while only 82 percent
contained union-security provisions. Bureau of National Affairs, Basic
Patterns in Union Contracts 97 (14th ed. 1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
which shall not be irrevocable for a period of more
than a year, or beyond the termination date of the
applicable collective bargaining agreement, which-
ever occurs sooner[.]
Both Section 302(c)(4) and the 8(a)(3) proviso were en-
acted in 1947 as part of the Taft-Hartley amendments to
the Act. However, in contrast to the 8(a)(3) proviso,
Section 302(c)(4) does not in any manner state or indi-
cate that dues-checkoff arrangements must be embodied
in collective-bargaining agreements in order to conform
to statutory requirements.9 It does contain a requirement
that deductions of union dues be made only pursuant to a
“written assignment” from the employee to the employer
authorizing the deductions, but such authorizations are
independent of any contract made between a union and
an employer.10
Not only does Section 302(c)(4) contain no language
making dues-checkoff arrangements dependent on the

9 In contrast, Sec. 302(c)(5), which provides a separate exception
from the general prohibition for employer payments to certain em-
ployee benefit trust funds, specifically provides that that exception is
applicable only if “the detailed basis on which such payments are made
is specified in a written agreement with the employer.” The fact that
Congress included that language in Sec. 302(c)(5) but said nothing
about an agreement with the employer in Sec. 302(c)(4) is further com-
pelling evidence that it did not intend any such requirement to apply to
dues-checkoff arrangements.
We note, moreover, that it is well established that an employer’s ob-
ligation to make payments into benefit funds covered by Sec. 302(c)(5)
does not terminate on the expiration of the collective-bargaining
agreement providing for such payments, but rather continues during the
contract hiatus as part of the employer’s obligation pursuant to the Katz
rule to maintain the status quo. See Laborers Health & Welfare Trust
Funds for Northern California v. Advanced Lightweight Concrete Co.,
484 U.S. 539, 544 fn. 6 (1988) (citing cases). Arguments that because
of the requirement of a “written agreement,” Sec. 302(c)(5) precludes
an employer from making contributions to a trust fund after the collec-
tive-bargaining agreement has expired have been routinely rejected by
the Board and the courts. See, e.g., Producers Dairy Delivery Co. v.
Western Conference of Teamsters Pension Trust Fund, 654 F.2d 625
(9th Cir. 1981); Peerless Roofing Co. v. NLRB, 641 F2d. 734 (9th Cir.
1981); Hinson v. NLRB, 428 F.2d 133, 138–139 (8th Cir. 1970);
Wayne’s Olive Knoll Farms, 223 NLRB 260, 264 (1976); SAC Con-
struction Co., 235 NLRB 1211, 1219 (1978); Starco Farmers Market,
237 NLRB 373, 374 fn. 5 (1978); Turnbull Enterprises, 259 NLRB
934, 940 (1982). Indeed the Board, with court approval, has consis-
tently held that the expired contract is itself sufficient to meet the “writ-
ten agreement” requirement of Sec. 302(c)(5). Concord Metal, 298
NLRB 1096 (1990); Imperial House Condominium, 279 NLRB 1225,
1239 (1986), enfd. 831 F.2d 999 (11th Cir. 1987); Turnbull Enter-
prises, supra at 940; Wayne’s Dairy, supra at 264. Accord: Cuyamaca
Meats, Inc. v. San Diego Butchers Pension Fund, 827 F.2d 491, 498
(9th Cir. 1987), cert. denied 485 U.S. 1008 (1988).
10 A checkoff authorization is a contract between an individual em-
ployee and his employer by which the employee assigns to the union a
portion of his future wages and authorizes the employer to deduct those
amounts from his pay and remit them to the union. Electrical Workers
IBEW Local 2088 (Lockheed Space Operations), 302 NLRB 322, 327–
328 (1991). Accord: NLRB v. Atlanta Printing Specialties, 523 F.2d
783, 785 (5th Cir. 1975); Cameron Iron Works, 235 NLRB 287, 289
(1978). Checkoff authorizations are separate and legally distinct from
dues-checkoff clauses, which are provisions in contracts between union
and employers setting forth the employer’s agreement to honor check-
off authorizations executed by employees.
existence of a contract, its provisions indicate that Con-
gress fully expected that dues-checkoff arrangements
would survive beyond the life of a collective-bargaining
agreement. By requiring that employees be given the
opportunity to revoke their checkoff authorizations on
the termination of the applicable collective-bargaining
agreement, Congress clearly contemplated that employ-
ees who did not choose to revoke their authorizations
would continue to have their dues checked off after the
contract has expired. If it had been Congress’ intent to
have dues checkoff expire automatically at contract expi-
ration, there would have been no reason to require that
employees be given the option at that time whether to
revoke their authorizations or continue to have dues
checked off.
The legislative history of Section 302(c)(4) supports
this interpretation of Congress’ intent. This section of
the Taft-Hartley amendments was added as a floor
amendment to the Senate bill. Senator Taft, Chairman of
the Labor Committee, spoke in support of the amend-
ment,11 explaining its intent as it related to then-
prevailing industry practice concerning checkoff, as fol-
lows:
If [an employee] once signs such an assignment [au-
thorizing checkoff] under the collective-bargaining
agreement, it may continue indefinitely until re-
voked, and it may be irrevocable during the life of
the particular contract, or for a period of 12 months.
That, I think, is substantially in accord with nine-
tenths of all check-off agreements, and simply pro-
hibits a check-off made without any consent what-
ever by the employees.12
Clearly, Senator Taft was of the view that what was
eventually enacted as Section 302(c)(4) permitted check-
off to continue indefinitely until revoked by the individ-
ual employee. Further, he believed that this provision
was substantially in accord with the vast majority of
checkoff arrangements then in existence.
One of the many anomalous consequences of the
Board’s Bethlehem Steel rule as applied to dues checkoff
is that it effectively transfers the right to decide whether
to continue to have dues checked off when the contract
expires from the employee—to whom Congress ex-
pressly gave that right in Section 302(c)(4)—to the em-
ployer. As we have noted, the Board’s rationale in Beth-
lehem Steel for holding that union security provisions do
not survive contract expiration was that the proviso to
Section 8(a)(3) prohibits their enforcement when there is
no agreement in effect, and an employer was therefore
simply “acting in accordance with the mandate of the
Act” when it ceased to require compliance with the pro-
visions as a condition of employment. But the Board has

11 This section was enacted as a part of the Taft-Hartley amendments
and was added as a floor amendment to the Senate bill.
12 II Leg. Hist.1311 (LMRA 1948).
HACIENDA RESORT HOTEL & CASINO 671
never suggested that the Act prohibits employers from
continuing to checkoff dues when the contract expires.
To the contrary, Board law is clear that an employer
may, if it chooses, continue to honor dues-checkoff au-
thorizations after contract expiration without committing
an unfair labor practice. Frito-Lay, Inc., 243 NLRB 137
(1979); Lowell Corrugated Container Corp., 177 NLRB
169, 173 (1969). Thus, when an employer takes advan-
tage of the expiration of the contract to cease honoring its
employees’ valid, unrevoked checkoff authorizations, it
is not “acting in accordance with the mandate of the
Act,” nor is it in any sense freeing employees from a
“compulsion” imposed by the bargaining agreement. It is
simply making a discretionary decision to unilaterally
eliminate an established term and condition of employ-
ment that is subject to negotiation as a mandatory subject
of bargaining. This is precisely the kind of conduct that
the Supreme Court condemned in Katz, and there is no
reason to excuse it.
Finally, we disagree with the judge’s finding, endorsed
by the majority, that even if the Respondents’ obligation
to checkoff dues did not expire as a matter of law when
the contract expired, the language of the dues-checkoff
provisions in the contract at issue—in particular the lan-
guage stating that the dues-checkoff system “shall be
continued in effect for the term of this agreement”—
mandates a conclusion that the Respondents’ obligations
terminated at contract expiration, leaving them free to
cease honoring the parties’ checkoff arrangements. As a
usual matter, all terms and conditions of employment set
forth in a collective-bargaining agreement are specifi-
cally limited to the contract term by the agreement’s du-
ration clause, which normally establishes a fixed date on
which the agreement will expire and the parties’ obliga-
tions under the agreement will end. If such provisions
operated to leave the parties free on contract expiration to
unilaterally change the terms and conditions established
under the agreement, there would be no Katz rule. The
issue here is not whether an employer has a continuing
contractual obligation after contract expiration to honor
its employees’ dues-checkoff authorizations. Clearly it
does not. The issue is whether the employer has a statu-
tory obligation to continue the dues checkoff pursuant to
its obligation to bargain under Section 8(d) and Section
(a)(5). The fact that the checkoff provision includes
standard language limiting the employer’s contractual
obligations to “the term of the agreement” does not de-
termine that question.
In King Radio Corp., 166 NLRB 649, 653 (1967),
enfd. 398 F.2d 14 (10th Cir. 1968), the Board held, with
court approval, that an employer who had had a practice
of allowing employees to purchase U.S. Savings bonds
through payroll deductions, but canceled that practice
after employees voted for union representation without
first bargaining with the union, had made a unilateral
change in working conditions in violation of Section
8(a)(5). We see no reason why an employer’s unilateral
termination of a dues-checkoff arrangement after con-
tract expiration should not also be considered a violation
of Section 8(a)(5). Indeed it seems to us that a rule under
which an otherwise indistinguishable voluntary payroll
deduction arrangement is treated differently merely be-
cause the moneys being deducted are for the employee’s
union dues is contrary to the basic purposes of the Act.
In defense of the rule, the majority offers little more
than the observation that the Board has adhered to the
rule for many years, and that it has been accepted by the
courts. As to the latter point, it is true that no court has
challenged the Board’s treatment of dues-checkoff
clauses as an exception to the Katz rule prohibiting uni-
lateral changes. However, an examination of the court
decisions cited by the majority shows that those courts
which have endorsed the Board’s view either agreed with
the Board that the dues-checkoff clause “merely imple-
mented” the union-security clause13—which could not
explain the result reached by the majority in this case—
or acted under the mistaken assumption that the statute
permits dues-checkoff arrangements only if they are in-
cluded in a valid agreement.14 This assumption, as we
have shown, has no basis in the statute and the Board has
never endorsed it. As to the first point, with due respect
for the importance of stability in the law, we can only say
that in light of the central importance of the Katz rule to
the enforcement of the duty to bargain, the burden is on
those who would make exceptions to that rule to justify
those exceptions on grounds consistent with the language
and policies of the statute. This, we believe, the Board
has never done.
In our view, the ability of the Respondents’ employees
who wish to do so to pay their dues by the convenient
mechanism of checkoff is a term and condition of their
employment which they are entitled to retain following
contract expiration, at least until the Respondents and
their collective-bargaining representative have agreed to
discontinue it or the Respondents have proposed discon-
tinuing it and have reached a valid impasse that permits

13 Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 619 (3d
Cir. 1963), cert. denied 375 U.S. 984 (1964).
14 See, e.g., Southwestern Steel & Supply, Inc. v. NLRB, 806 F.2d
1111, 1114 (D.C. Cir. 1986) (stating that “[t]he well established excep-
tions for union-shop and dues-checkoff provisions are rooted in [Secs.
8(a)(3) and 302(c)(4) of the Act], which are understood to prohibit such
practices unless they are codified in an existing collective bargaining
agreement,” and citing Bethlehem Steel); U.S. Can Co. v. NLRB, 984
F.2d 864, 869 (7th Cir. 1993) (citing Bethlehem Steel and Southwestern
Steel & Supply, supra, for the proposition that “Checkoffs of dues and
other payments from the employer to the union, like the enforcement of
a union-security clause, depend on the existence of a real agreement
with the union. . . . Otherwise the payment of money [violates Sections
8(a)(2) and 8(a)(3).])” See also Litton Business Systems v. NLRB, supra,
501 U.S. at 199 (noting “the Board’s view that union security and dues
check-off provisions are excluded from the unilateral change doctrine
because of statutory provisions which permit these obligations only
when specified by the express terms of a collective-bargaining agree-
ment”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
unilateral action. We would thus find that the Respon-
dents violated Section 8(a)(5) and (d) of the Act by ter-
minating checkoff unilaterally simply because the collec-
tive-bargaining agreements had expired.

Nathan W. Albright, Esq., for the General Counsel.
Norman H. Kirshman & Gary G. Branton (Kirshman, Harris &
Cooper), of Las Vegas, Nevada, for Respondents.
Barry S. Jellison, Esq. (Davis, Cowell & Bowe), with Michael
T. Anderson, Esq., on brief of San Francisco, California,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This
case was tried in Las Vegas, Nevada, on May 13–14, 1996, on
consolidated complaints issued by the Regional Director for
Region 28 of the National Labor Relations Board on October
26, 1995. They are based on unfair labor practice charges filed
by Local Joint Executive Board of Las Vegas, Culinary Work-
ers Union, Local 226 and Bartenders Union, Local 165, affili-
ated with Hotel Employees and Restaurant Employees, AFL–
CIO (the Charging Party or the Union) on August 22, 1995.
The complaint alleges that Hacienda Hotel, Inc. Gaming Cor-
poration d/b/a Hacienda Resort Hotel and Casino and Sahara
Nevada Corporation d/b/a Sahara Hotel and Casino (the Re-
spondents) have engaged in certain violations of Section 8(a)(5)
of the National Labor Relations Act (the Act).
Issue
The principal issue in this case is whether Respondents
committed an unlawful unilateral change of working conditions
when, during a hiatus period between collective contracts, it
dishonored the union dues-checkoff provision of the expired
agreement and thereby committed an act violative of the good-
faith bargaining obligation as set forth in Section 8(a)(5).
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondents are, or were, until they were sold in September
and October 1995 sister companies owned by Sahara Gaming,
Inc., a Nevada corporation.1 They were hotels and gambling
casinos located in Las Vegas. Respondents admit to meeting
the Board’s retail standard for the assertion of jurisdiction and
admit they were, during material times, employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. They further admit the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The facts are largely undisputed. Respondents and the Un-
ion have had a collective-bargaining relationship for at least 30
years. In recent times each hotel had a separate, but nearly
identical, collective-bargaining contract with the Union. The
most recent contracts had an identical duration, beginning June
2, 1989, and ending May 31, 1994. Furthermore, each contract

1 The parent corporation, after the sales, continued to own another
property, the Santa Fe Hotel, located outside Las Vegas, but renamed
itself, consistent with the sale, Santa Fe Gaming, Inc.
contained identical union dues-checkoff provisions, section
3.03 together with Exhibit 2 attached to each contract. Con-
jointly they consist of 14 paragraphs and in essence permit
bargaining unit employees who wish to sign a specified wage
assignment to authorize Respondent to make payments of union
dues directly to the Union. Section 3.03 and the first two para-
graphs of Exhibit 2 are significant to the case and I quote them
here:2
ARTICLE 3 UNION SECURITY
3.03 Check-Off
The Check-off Agreement and system heretofore entered
into and established by the Employer and the Union for
the check-off of Union dues by voluntary authorization, as
set forth in Exhibit 2, attached to and made a part of this
Agreement, shall be continued in effect for the term of this
agreement.
EXHIBIT 2—CHECK-OFF AGREEMENT
1. Pursuant to the Union Security provision of the
Agreement between SAHARA RESORT CORPOR-
ATION dba [name of each hotel] and the [the Union], the
Employer, during the term of the Agreement, agrees to de-
duct each month Union membership dues (excluding ini-
tiation fees, fines and assessments) from the pay of those
employees who have authorized such deductions in writ-
ing as provided by this Check-Off Agreement. Such
membership dues shall be limited to the amounts lev-
ied by the Unions in accordance with their Constitu-
tions and Bylaws. Deductions shall be made only for
those employees who voluntarily submit to the hotel em-
ploying them a written authorization in accordance with
the “Authorization for Check-Off of Dues” form set forth
below. It is the Union’s responsibility to provide the em-
ployees with this form.

2. The required authorization shall be in the following
form:
PAYROLL DEDUCTION AUTHORIZATION
DATE _____________
I, the undersigned, a member of _________________,
hereby request and voluntarily authorize the Employer to
deduct from any wages or compensation due me, the regu-
lar monthly Union dues uniformly applicable to the mem-
bers in accordance with the Constitution and Bylaws of the
Union.
This authorization shall remain in effect and shall be
irrevocable unless I revoke it by sending written notice to
both the Employer and _______________________ by
registered mail during a period of fifteen (15) days imme-
diately succeeding any yearly period subsequent to the
date of this authorization or subsequent to the date of ter-
mination of the applicable contract between the Employer
and the Union, whichever occurs sooner, and shall be
automatically renewed as an irrevocable check-off from
year to year unless revoked as herein-above provided.

Signed______________________________
Social Security No. __________________
2 Additional paragraphs in Exh. 2 describe the mechanics of han-
dling and transmitting the dues to the Union. They are not germane to
any issue in the complaint and are therefore not quoted here.
HACIENDA RESORT HOTEL & CASINO 673
[Emphasis added.]

During the term of the contract, both Respondents honored
and complied with the terms of the checkoff agreement. Nego-
tiations for a new contract in 1994 were unsuccessful and did
not result in a new agreement. The parties allowed the contract
to expire on May 31, 1994, although bargaining continued
through December 14, 1994. Even though the contract lapsed
on its expiration date, Respondents continued to deduct union
dues from its employees’ pay (if they had authorized it) and
transmitted the funds to the Union as it had during the con-
tract’s term.
On January 4, 1995, one of Respondents’ attorneys and ne-
gotiators, Gary G. Branton, wrote the Union a letter seeking to
resume negotiations. The Union did not respond. Six months
later, on June 8, 1995, Branton notified the Union by letter that
Respondents intended to cease checking off dues and would
cease transmitting them to the Union. This, of course, was
more than a year after the contract had ended. Respondents did
in fact stop checking off the dues and thereafter redirected that
money to the employee in the form of regular wages.3 The
Union’s only response was to file the instant charges.
III. ANALYSIS AND CONCLUSIONS
Both the General Counsel and the Charging Party have made
thoughtful and rather elaborate arguments about the law as it
relates to checkoff clauses which expire with the contract and
why the law should not be applied in Nevada, a right-to-work
State. Respondent counters with both factual and legal argu-
ments. First, it asserts that the contract language itself permit-
ted it to do what it did. Second, it asserts that the law permitted
it to do what it did and should not be changed. I make my con-
clusions based on the contract and find that it is unnecessary to
examine the state of the law on checkoff clauses, whether in
right-to-work States or otherwise, with an eye to changing it.
This contract and its checkoff provisions are quite clear.
Section 3.03 constitutes a general directive which governs the
subsequent clauses including those in the attached exhibit. The
language found in the exhibit is quite clearly subordinate to it,
but nonetheless specific. Thus, section 3.03 recognized the
previous existence of a checkoff procedure, but imposed a spe-
cific limitation on it, duration. It specifically says the checkoff
system in effect “shall be continued in effect for the term of this
agreement.” The most reasonable interpretation of that clause
is that the system would continue through the duration of the
contract but would not survive thereafter.
I recognize that there may be a latent ambiguity in the quoted
language to the extent that it may also be interpreted to mean
that it shall continue through the life of the contract, but that it
need not end with the contract. To the extent that such an in-
terpretation may be reasonable, I think that reading is obviated
by the language found in section 1 of Exhibit 2. It states: “Pur-
suant to the Union Security provision of the Agreement be-
tween SAHARA RESORT CORPORATION d/b/a [name of
each hotel] and the [the Union], the Employer, during the term

3 Due to the timing of payroll periods, the employees at the two ho-
tels were treated a little differently. Sahara employees had been dis-
tributed checks on June 8, showing the deduction had been taken. On
June 22, the payroll department issued each of them paychecks for their
regular hours in the following pay period, plus an amount equal to the
deduction taken on June 8. The Hacienda employees pay periods were
a little different and no reimbursement procedure was necessary. Ex-
planation slips accompanied the paychecks.
of the Agreement, agrees to deduct each month Union member-
ship dues (excluding initiation fees, fines, and assessments)
from the pay of those employees who have authorized such
deductions in writing as provided by this Check-Off Agreement
. . . .” The pertinent language (emphasis added) is even more
specific than section 3.03. It says that the “Employer” has
agreed, during the life of the agreement to deduct union dues
from those employees who have authorized such deductions. It
omits the reference to the Union seen in section 3.03, suggest-
ing that the decision regarding what to do about the system
during a contract hiatus, is left solely to the Employer. Fur-
thermore, it specifically omits any reference to what the Em-
ployer’s duty would be on the expiration of the contract. It is
omitted, clearly, because there was no duty to continue to de-
duct. If there were, the parties would have said so.4
That contract negotiations left hiatus matters entirely in the
hands of the Employer is no real surprise, particularly given the
legal atmosphere surrounding dues-checkoff authorizations. It
is a very confusing area and has contributed to legal consterna-
tion for many years. Traditionally, the Board has said that
checkoff clauses expire with the contract which created the
obligation. Specifically, see Bethlehem Steel, 136 NLRB 1500,
1502 (1962), remanded on other grounds 320 F.2d 615 (3d Cir.
1963), cert. denied 375 U.S. 984 (1964), and Robbins Door &
Sash Co., 260 NLRB 659 (1980) (“It is well settled that an
employer’s duty to check off union dues is extinguished on the
expiration of the collective bargaining contract which created
that duty”).5 In fact, it has even been held that it is an unfair
labor practice under Section 8(a)(2) to continue to check off
dues after the collective-bargaining contract has expired. Stain-
less Steel Products, 157 NLRB 232, 233 (1966), and Guy’s
Foods, 158 NLRB 936, 947 (1966), affd. sub nom. American
Bakery & Confectionery Workers v. NLRB, 379 F.2d 160 (D.C.
Cir. 1969) (specific legal point not appealed). Also, see Boyle’s
Corned Beef v. NLRB, 400 F.2d 154, 171 (8th Cir. 1968), which
cites the holdings of those cases approvingly in another context.
I therefore have no difficulty in concluding that parties bar-
gaining over dues-checkoff clauses would specifically negotiate
a clause which would expire with the contract or at the very
least leave the deductions in the hands of the Employer during
hiatus periods. Leaving it in the hands of the Employer has the
advantage for the Union, taken here for over a year, that the
Employer would continue to check off dues during the hiatus,
at least so long as the negotiations for a new contract avoided
bitterness. As most contracts are amicably renegotiated, even
with a hiatus, such an approach is entirely normal. Moreover,
in the event of a negotiation breakdown resulting in a strike or
other self-help to obtain a new agreement, the parties do not
truly expect the dues-checkoff clause to operate during such
4 The authorization signed by each individual employee really has no
impact on an 8(a)(5) analysis. Although it uses language suggesting it
is irrevocable except for an annual escape period (consistent with Sec.
302(c)(4) of the Act) the form is clearly subject to the efficacy of the
enabling clauses. It would appear that if not revoked according to its
terms, it would simply become dormant during a hiatus and be revived
on a new contract containing identical terms.
5 See also Tampa Sheet Metal, 288 NLRB 322, 326 fn. 15 (1988)
(which occurred in Florida, a right-to-work State). Accord: Ortiz Fu-
neral Home, 250 NLRB 730, 731 fn. 6 (1980), affd. 651 F.2d 136 (2d
Cir. 1981); Peerless Roofing Co., 247 NLRB 500 (1980), affd. 641
F.2d 734 (9th Cir. 1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
strife. Indeed, the expectation is quite the opposite. During a
strike or a lawful lockout, they choose the acts of economic
warfare which the Act permits, knowing full well that will in-
clude cessation of dues transmittal as part of that clash. Thus
not only does a clause like the instant one authorize the em-
ployer to cease deduction/transmittal of dues at the end of the
contract, it allows for a permissive system during a contract
hiatus, yet one which is expected to collapse on the develop-
ment of a significant dispute.
I should note here that when a union strikes or is locked out
during a contract dispute, unions are always free to collect the
dues their constitutional members may owe. That usually must
be done by mail or in-person collection. They may even law-
fully resort to a lawsuit. The Charging Party here is in a posi-
tion no different from any union which finds itself in a dispute
where the parties must rely on (lawful) self-help for resolution
of their differences.
In this case, the contract ended on May 31, 1994. It was not
until a year later, and 6 months after the Union declined to re-
sume negotiations, that Respondent decided to exercise its right
to cease deducting and transmitting the dues. It was obviously
an effort to use one of the economic tools, already contem-
plated by the parties, available to participants in a labor dispute.
In fact, it was a fairly tempered response to the Union’s per-
ceived intransigence. Respondent’s request of 6 months earlier
to resume bargaining had not even brought a response. Stop-
ping the checkoff was less than a lockout and therefore was
aimed not at triggering a loss of employment-related remunera-
tion, but was principally designed to get the Union’s attention,
to induce it to face contract issues. It did not succeed, for the
Union only filed the instant charge.
In a fact pattern such as this, the General Counsel’s argument
that cessation of the checkoff procedure constitutes an unlawful
unilateral change within the meaning of the Katz6 doctrine
really begs the question. I certainly do not take issue with the
question of whether or not a dues-checkoff system is a manda-
tory subject of bargaining. For the purpose of insertion into the
contract, it certainly is. U.S. Gypsum Co., 94 NLRB 112, 113
(1951), 97 NLRB 889 (1951), modified 206 F.2d 410 (5th Cir.
1953), cert. denied 347 U.S. 912 (1954). However, because its
operation is governed by laws other than Section 8(d), it is not
fully subject to Katz concerns in the postcontract term. I have
already mentioned the 8(a)(2) limitations which the Board has
imposed. Moreover, the first proviso to Section 8(a)(3) cer-
tainly has an impact when checkoff is in support of a union-
security clause, as does Section 302(c)(4) which governs the
nature of the authorization. In a nonright-to-work State, a un-
ion-security clause expires with the contract.7 It followed,
symmetrically, that the dues checkoff system set forth in con-
tracts and which assisted the union-security clause, likewise
expired with the contract. See Bethlehem, supra, Robbins, supra
and the cases cited in fn. 5. (As a result, there are no cases
directly holding that hiatus cancellations of the system violate
the Katz precepts.) Combined with Board case law, it is appar-
ent that at least during contract hiatus periods, a checkoff sys-
tem set up by the expired contract is rendered only permissive

6 NLRB v. Katz, 369 U.S. 736 (1961).
7 That doctrine began with the passage of the Taft-Hartley Act in
1947. The first case which held that union shop clauses do not survive
the expiration of the contract was Colonie Fibre Co., 69 NLRB 589
(1947), 71 NLRB 354 (1947), enfd. 163 F.2d 65 (2d Cir. 1947). There
have been a myriad of cases since.
for purpose of its enforcement under Section 8(a)(5).8 (Obvi-
ously this analysis does not pertain during the life of such a
contract; there, normal Katz analysis would apply).9
However, my discussion of the status of the law set forth
above is not intended as the rationale for this decision. It is
intended mainly to explore the difficulties one has when ana-
lyzing checkoff issues and to point out that practitioners have
uniformly come to the conclusion that dues-checkoff clauses
expire with the contract and have, therefore, allowed for con-
tract clauses, such as this, which leave hiatus dues transmission
to the Employer. This sort of language is no accident and is
itself the rationale for the conclusion that no violation has oc-
curred. It has benefits which the Union wants (transmission of
dues where no obligation exists) and has little downside except
that which one sees in every contract dispute which goes bad.
I therefore conclude that Respondent had the right, based on
the language of the expired collective-bargaining contract, to
cease honoring the dues-checkoff system when the contract
expired on May 31, 1994. Having that right, Respondent was
free to exercise it whenever it wanted to without violating the
contract, nor did the cessation change the terms and conditions
established by that contract through the operation of Section
8(d) when it stopped deducting dues from its employees in June
1995. The complaint should be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in
an industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has not committed the unfair labor practices
of which it is accused in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended10
8 This analysis is quite similar to that of the Supreme Court in Nolde
Bros. v. Bakery Workers Local 358, 430 U.S. 243 (1977), with respect
to arbitration clauses. There the Court observed that arbitration is a
creature of the collective-bargaining contract which normally expires
with the contract. In that event arbitration of a postcontract event be-
comes a permissive matter, even though all would agree that the arbi-
tration clause is a mandatory subject for the new collective-bargaining
contract. (Nolde, of course, went on to add that an employer continues
to be obligated to arbitrate, under the expired clause, events which
occurred during the life of the expired contract.)
9 I should observe that the analysis undertaken here in no way inter-
feres with the Board’s analysis under Sec. 8(a)(3) or Sec. 8(b)(1)(A)
involving attempts by individuals to revoke their checkoff authorization
forms. The 8(a)(5) concerns are entirely discrete from those seen under
Electrical Workers IBEW Local 2088 (Lockheed Space Operations),
302 NLRB 322 (1991), and similar cases. I do note, however, that at
least one case in the line which Lockheed reconsidered, held that it was
a violation of Sec. 8(b)(1)(A) for a union to receive checked off dues on
behalf of resignees for the hiatus period where the checkoff authoriza-
tion had not been revoked and did not even rely on the previous con-
tract because that contract did not contain a checkoff clause. See Car-
penters (Campbell Industries), 243 NLRB 147, 149, 152 (1979). Lock-
heed’s modification did not clearly affect this issue. Query: Would it
have been an unlawful unilateral change under Katz had the employer
there discontinued checking off those dues? Under the General Coun-
sel’s theory here it would. Such theories, it seems to me, fly in the face
of one another. Because the statute cannot be interpreted as being
internally inconsistent, I do not believe an 8(a)(5) violation can be
justified here.
HACIENDA RESORT HOTEL & CASINO 675

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ORDER
The complaint is dismissed in its entirety.