Nat'l Labor Relations Bd. v. Nexstar Broad., Inc.

• Decision Date: 12 July 2021
• Docket Number: No. 20-71480,20-71480
• Citation: 4 F.4th 801
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, National Association of Broadcast Employees & Technicians, The Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO, Intervenor, v. NEXSTAR BROADCASTING, INC., d/b/a KOIN-TV, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

4 F.4th 801

NATIONAL LABOR RELATIONS BOARD, Petitioner,National Association of Broadcast Employees & Technicians, The Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO, Intervenor,

v.NEXSTAR BROADCASTING, INC., d/b/a KOIN-TV, Respondent.

No. 20-71480

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2021 Portland, Oregon

Filed July 12, 2021

Eric Weitz (argued) and Brady Francisco-Fitzmaurice, Attorneys; Usha Dheenan, Supervisory Attorney; David Habenstreit, Associate General Counsel; Ruth Burdick, Acting Deputy Associate General Counsel; Alice B. Stock, Deputy General Counsel; Peter B. Robb, General Counsel; National Labor Relations Board, Washington, D.C.; for Petitioner.

Anne I. Yen (argued) and David A. Rosenfeld, Weinberg Roger & Rosenfeld, Alameda, California, for Intervenor.

Charles W. Pautsch (argued), Associate Counsel, Nexstar Media Group Inc., Irving, Texas, for Respondent.

Before: Kim McLane Wardlaw and Andrew D. Hurwitz, Circuit Judges, and Susan R. Bolton,^* District Judge.

HURWITZ, Circuit Judge:

The management of a television station and the union representing the station's employees entered into a collective bargaining agreement ("CBA"). When the CBA expired, management made two unilateral changes to the existing terms and conditions of employment. Subsections 8(a)(1) and (5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(a)(1), (5), provide that such unilateral changes made before bargaining over a new CBA reaches an impasse are unfair labor practices. See Litton Fin. Printing Div. v. NLRB , 501 U.S. 190, 198, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991).

Management nonetheless asserts that it was entitled to make the changes under the "contract coverage" doctrine. See MV Transp., Inc. , 368 NLRB No. 66, 2019 WL 4316958, at *2 (Sept. 10, 2019). Rejecting that argument, the NLRB applied its longstanding rule that after a CBA has expired, unilateral changes by management are permissible during bargaining only if the CBA "contained language explicitly providing that the relevant provision" permitting such a change "would survive contract expiration." Nexstar Broad. Inc. , 369 NLRB No. 61, 2020 WL 1986474, at *3 (Apr. 21, 2020). Finding that decision "rational and consistent with" the NLRA, Local Joint Exec. Bd. of Las Vegas v. NLRB , 515 F.3d 942, 945 (9th Cir. 2008) (cleaned up), we grant the NLRB's petition for enforcement.

I

The employees of the KOIN television station in Portland, Oregon are represented by The National Association of Broadcast Employees & Technicians, the Broadcasting and Cable Television Workers Sector of the Communications Workers of America, Local 51, AFL-CIO ("the Union"). When Nexstar Broadcasting purchased the station in January 2017, it adopted the operative CBA. Between June and September of that year, Nexstar and the Union unsuccessfully attempted to negotiate a new CBA, and the agreement expired on September 8.

Later that month, Nexstar began requiring employees to complete an annual motor vehicle and driving history background check. Under the "Employee Guidebook" referenced in Article 10.1 of the CBA, these background checks were previously required only of employees involved in a motor vehicle accident while on the job. And in February 2018, Nexstar began posting employee work schedules two weeks in advance. Although Article 8.1 of the CBA only required that work schedules be posted "two (2) weeks in advance of the commencement of the workweek," since at least 1993 station managers had posted schedules four months in advance pursuant to Article 8.1's other requirement that they be posted "as soon as they are known."

The Union filed charges with the NLRB alleging that these two unilateral changes to existing terms and conditions of employment constituted unfair labor practices; the NLRB's general counsel issued a complaint. The parties stipulated to the facts and submitted the dispute to an administrative law judge ("ALJ") for decision.

The ALJ held that the unilateral changes violated NLRA § 8(a)(1) and (5) because the Union had not "clearly and unmistakably waived" its right to bargain over them. The ALJ declined to apply the "contract coverage" standard, under which a CBA's terms are analyzed "to determine whether action taken by an employer was within the compass or scope of contractual language granting the employer the right to act unilaterally." See MV Transp., Inc. , 2019 WL 4316958, at *2.

The NLRB rejected Nexstar's exceptions to the ALJ's ruling. Although the NLRB had previously applied the "contract coverage" standard, which does not require explicit CBA language to authorize unilateral changes in terms of conditions of employment, to unexpired CBAs, it declined to apply the doctrine to an expired CBA. Instead, it found that "provisions in an expired collective-bargaining agreement do not cover postexpiration unilateral changes unless the agreement contained language explicitly providing that the relevant provision would survive contract expiration." Nexstar Broad., Inc. , 2020 WL 1986474, at *3. Finding no express language in the CBA permitting the changes, the NLRB found that Nexstar was required to "maintain the status quo" during negotiations. Id . at *4 (citing NLRB v. Katz , 369 U.S. 736, 743, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962) ). The NLRB ordered Nexstar to rescind the changes, bargain with the Union before imposing further changes, and post remedial notices. The NLRB then petitioned this Court for enforcement of those orders.

II

Although the federal courts are the "principal sources of" CBA interpretation, NLRB v. Strong , 393 U.S. 357, 360–61, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969), the NLRB regularly interprets CBAs in deciding allegations of unfair labor practices. Id . at 361, 89 S.Ct. 541 ; NLRB v. C&C Plywood Corp. , 385 U.S. 421, 428, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967). When reviewing NLRB orders, see 29 U.S.C. § 160(e) and (f), we must uphold the agency's decision if it "correctly applied the law and its factual findings are supported by substantial evidence." Glendale Assocs. v. NLRB , 347 F.3d 1145, 1151 (9th Cir. 2003). The NLRB's interpretation of the NLRA "is accorded considerable deference as long as it is ‘rational and consistent’ with the statute." Local Joint Exec. Bd. of Las Vegas , 515 F.3d at 945 (quoting NLRB v. Calkins , 187 F.3d 1080, 1085 (9th Cir. 1999) ). Similarly, the Board's interpretation of a CBA is "entitled to deference" if it is "reasonable and not inconsistent with the Act's policies." NLRB v. Int'l Brotherhood of Elec. Workers, Local 11 , 772 F.2d 571, 575 (9th Cir. 1985).

III

A

A CBA is interpreted "according to ordinary principles of contract law, at least when those principles are not inconsistent with federal labor policy." M&G Polymers USA, LLC v. Tackett , 574 U.S. 427, 435, 135 S.Ct. 926, 190 L.Ed.2d 809 (2015). One such familiar principle is that "contractual obligations will cease, in the ordinary course, upon termination of the [CBA]." Litton , 501 U.S. at 207, 111 S.Ct. 2215. But, after a CBA expires, the "terms and conditions [of employment] continue in effect by operation of the NLRA. They are no longer agreed-upon terms; they are terms imposed by law, at least so far as there is no unilateral right to change them." Id . at 206, 111 S.Ct. 2215. NLRA § 8(a)(1) and (5) demand a "continuation of the status quo" during negotiations over a successor CBA, Katz , 369 U.S. at 746, 82 S.Ct. 1107, absent "explicit" agreement to the contrary, Litton , 501 U.S. at 207, 111 S.Ct. 2215.

The statutory scheme recognizes that allowing an employer to make unilateral changes to the terms and conditions of employment during negotiations creates an untenable power imbalance infringing the employees’ § 5 rights to bargain and their § 1 rights to organize. See Litton , 501 U.S. at 198, 111 S.Ct. 2215 ; 29 U.S.C. § 158(a)(1), (5) ; Queen Mary Rest. Corp. v. NLRB , 560 F.2d 403, 410 (9th Cir. 1977). "[I]t is difficult to bargain if, during negotiations, an employer is free to alter the very terms and conditions that are the subject of those negotiations." Litton , 501 U.S. at 198, 111 S.Ct. 2215. Accordingly, Katz found that an employer violated the NLRA by imposing unilateral changes to employees’ sick leave and merit policies without first bargaining to impasse, holding that § 8(a)(5) and (1) require a "continuation of the status quo" during initial CBA negotiations. 369 U.S. at 746, 82 S.Ct. 1107. Litton then applied this rule to expired CBAs, making clear that CBA "terms and conditions continue in effect by operation of the NLRA" upon expiration, absent explicit agreement that contract rights and obligations will survive. 501 U.S. at 206–07, 111 S.Ct. 2215.

Applying this doctrine, we have held that an employer could not stop making payments to employee healthcare and pension trust funds after a CBA expired, because the "status quo" at the time of expiration included those payments. NLRB v. Carilli , 648 F.2d 1206, 1214 (9th Cir. 1981) ("[T]he collective bargaining agreement survives its expiration date for purposes of marking the status quo as to wages and working conditions."). Similarly, we enforced an NLRB order finding violations of § 8(a)(5) and (1) when an employer stopped paying into an employee health and welfare fund and reduced wages after the CBA expired. NLRB v. Auto Fast Freight, Inc. , 793 F.2d 1126, 1129–31 (9th Cir. 1986).

The same rule applies with respect to employment practices. "[E]ven if not required by a [CBA]," such practices, if "regular and long-standing, rather than random or intermittent, become terms and conditions of unit employees’ employment, which cannot be altered without offering their collective-bargaining representative notice and an opportunity to bargain over the proposed change." Sunoco, Inc. , 349 NLRB 240, 244 (2007) ; see NLRB v. Merrill & Ring, Inc. , 731 F.2d 605, 608 (9th Cir. 1984) (hold...