NLRB v. Nexstar Broad., Inc.

NLRB v. Nexstar Broad., Inc.

Opinion

 [*804]  HURWITZ, Circuit Judge:

The management of a television station and the union representing [**3]  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.

 [*805]  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 [**4]  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."

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