The management of the KOIN television station and the union representing the station’s employees, the National Association of Broadcast Employees & Technicians (the Union), entered into a collective bargaining agreement (CBA). After the CBA expired, management made two changes to the terms and conditions of employment. First, management began requiring employees to complete an annual motor vehicle and driving history background check. Under the Employee Guidebook referenced in the CBA, these background checks were only required for employees who were involved in an on-duty motor vehicle accident. Second, management began posting employee work schedules two weeks in advance. While this was consistent with the expired CBA, since at least 1993, station managers had posted schedules four months in advance. The Union filed charges with the National Labor Relations Board (NLRB) alleging these two unilateral changes constituted unfair labor practices.
The NLRB noted that after a CBA has expired, unilateral changes are permissible during bargaining only if the CBA “contained language explicitly providing that the relevant provision” that permitted the change “would survive contract expiration.” Because there was no such language in this CBA, the NLRB concluded the television station violated the National Labor Relations Act (NLRA). The NLRB ordered the television station to rescind the changes, bargain with the Union before imposing further changes, and post remedial notices. The NLRB then petitioned the Ninth Circuit Court of Appeals for enforcement of those orders.
On appeal, management asserted that it was entitled to make the changes under the “contract coverage” doctrine. The “contract coverage” doctrine is a method of contract interpretation that analyzes whether the contract’s language granted the employer the right to act unilaterally. The Ninth Circuit disagreed. The court reasoned that the NLRA recognizes that an employer’s unilateral changes during negotiations create “an untenable power imbalance infringing on the employees’ rights to bargain and their rights to organize.” As a result, the NLRA freezes the terms and conditions of employment upon expiration of the CBA, until negotiations reach an impasse unless the parties explicitly agree to a waiver. The Ninth Circuit, therefore, reasoned that because the CBA did not allow management to make unilateral changes to terms and conditions of employment in “clear and unmistakable language,” management’s changes violated the NLRA. Thus, the Ninth Circuit ordered the television station to comply with the NLRB’s order.
Nat’l Lab. Rels. Bd. v. Nexstar Broad., Inc., 2021 WL 2909026 (9th Cir. July 12, 2021).
Note:
While the NLRA does not apply to public agencies, this case offers valuable guidance. LCW attorneys can help agencies determine whether they are able to implement changes after the expiration of an MOU.
