Nexstar Broadcasting, Inc. d/b/a KOIN-TV

National Labor Relations Board - Board Decisions

Apr 21, 2020

369 N.L.R.B. 61 (N.L.R.B. 2020)

369 NLRB No. 61
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Nexstar Broadcasting, Inc. d/b/a KOIN-TV and Na-
tional Association of Broadcast Employees &
Technicians, the Broadcasting and Cable Televi-
sion Workers Sector of the Communications
Workers of America, Local 51, AFL‒CIO.1 Cases
19−CA−219985 and 19−CA−219987
April 21, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On February 27, 2019, Administrative Law Judge Rob-
ert A. Giannasi issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the Gen-
eral Counsel filed an answering brief, and the Respondent
filed a reply brief. The Charging Party filed cross-excep-
tions and a supporting brief, to which the Respondent filed
an answering brief.
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, find-
ings, and conclusions as modified and to adopt the recom-
mended Order as modified and set forth in full below.2
The principal issue in this case is whether the “contract
coverage” standard applies to unilateral changes made af-
ter a collective-bargaining agreement has expired, where
the expired agreement did not provide that the employer
would retain a relevant right of unilateral action post-ex-
piration. For the reasons explained below, we conclude
that it does not.
I. FACTS
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 or NABET-
CWA) represents two bargaining units of employees at
KOIN-TV, a CBS-affiliated television station in Portland,
Oregon. One unit is comprised of engineers and produc-
tion employees, and the other of creative service
1 We have corrected the caption in the judge’s decision.
2 We shall amend the judge’s conclusions of law to add that the Re-
spondent’s unfair labor practices affect commerce. We shall modify the
judge’s recommended Order to conform to the Board’s standard reme-
dial language, and we shall substitute a new notice to conform to the
Order as modified.
The Union requests various extraordinary remedies, including notice
reading, an extended notice-posting period, and an apology, among oth-
ers. We deny these requests because the Board’s traditional remedies are
employees and web producers. On July 29, 2015, the Un-
ion and LIN Television Corporation, a Media General
Company, doing business as KOIN-TV (LIN Television),
executed a collective-bargaining agreement covering both
units, effective from that date to July 28, 2017.
The agreement contained three provisions relevant to
this proceeding. The first, article 1, addressed manage-
ment rights and provided as follows:
NABET-CWA recognizes the exclusive right and re-
sponsibility of the Company to direct the working force
and to direct the operations of the Company. The Com-
pany’s rights shall include, but not be limited to, those
necessary to maintain order and efficiently manage the
Company, and to discharge, suspend, or discipline Em-
ployees for just cause and to establish working rules and
to control station operations, provided, however, that the
exercise of such rights does not violate the terms and
provisions of this Agreement.
The second, article 8.1, addressed hours of work and
provided as follows:
The “normal work week” shall be defined as commenc-
ing at 12:00 a.m. Monday and ending at 11:59 p.m. on
Sunday. All work schedules, continuing hours of work
and days off will be prepared and posted two (2) weeks
in advance of the commencement of the workweek. The
Employer will post work schedules as soon as they are
known to the Employer.
The third, article 10.1, addressed travel and provided as
follows:
Automobile travel by Employees shall be covered by the
Vehicle Use Policy in the Company’s Employee Guide-
book. It is understood that under no circumstances shall
an Employee be required to use their car under this Ar-
ticle.
Employees who are ticketed for a moving violation for
which they are responsible while driving on Company
business must pay the fine for such ticket, whether the
moving violation occurred while driving a Company-
owned vehicle or their own vehicle.
Around January 17, 2017, the Respondent purchased
LIN Television. It hired as a majority of its workforce
employees formerly employed by LIN Television and
sufficient to effectuate the policies of the Act. The Union also requests
that the notice be distributed via email, mail, and posting on the Respond-
ent’s intranet and public website. In accordance with J. Picini Flooring,
356 NLRB 11 (2010), we shall require the Respondent to distribute the
notice through various electronic means if it customarily communicates
with its employees by such means. These means of distributing the no-
tice are sufficient, and we deny the Union’s request for additional means.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
continued to operate the business in essentially unchanged
form. At some point thereafter, the Respondent and the
Union agreed to extend the collective-bargaining agree-
ment to September 8, 2017, at which time the agreement
expired.3
The parties stipulated that they were engaged in or were
preparing to engage in bargaining for a successor collec-
tive-bargaining agreement at all material times. That bar-
gaining appears to have begun as early as June 2017, when
the Respondent proposed to eliminate any requirements
regarding the advance posting of employee work sched-
ules. The Union rejected the proposal, and there is no ev-
idence the parties subsequently reached agreement on the
issue.
After the parties’ extended agreement expired, the Re-
spondent made two changes. On or about September 21,
2017, it implemented a new requirement that employees
complete a motor vehicle/driving history background
check (hereinafter referred to as a “driver-background
check”) annually on their anniversary dates. Previously,
employees completed driver-background checks only if
they were involved in a vehicular accident on the job. In
February 2018, the Respondent began posting employees’
work schedules 2 weeks in advance. Previously, the Re-
spondent had posted schedules 4 months in advance, a
practice the parties stipulated had been followed since
1993 at the latest. The Respondent stipulated that it did
not provide the Union with notice or an opportunity to bar-
gain over either change.
II. THE JUDGE’S DECISION
The judge found that the Respondent violated Section
8(a)(5) and (1) by unilaterally implementing the annual
driver-background check and changing when it posted
work schedules. On two grounds, the judge rejected the
Respondent’s argument that the changes were lawful un-
der the contract coverage standard: first, that standard was
not extant law, and second, even if it were, contract cov-
erage would not apply to the changes at issue because they
3 The parties presented this case to the judge for decision based on a
joint stipulation of facts. The parties stipulated that following its pur-
chase of LIN Television, the Respondent became a successor employer
to both units represented by the Union. While the stipulation does not
specifically indicate that the Respondent adopted the 2015‒2017 collec-
tive-bargaining agreement between LIN Television and the Union, a
finding that it did is consistent with other provisions of the stipulation
and the positions of the parties. Thus, the parties stipulated that the
2015‒2017 agreement was in effect from July 29, 2015, to August 18,
2017, and was extended to September 8, 2017. That extension occurred
after the Respondent purchased LIN Television. The fact that the Re-
spondent agreed to extend the contract necessarily implies that the Re-
spondent adopted it. In addition, the Respondent asserts in its brief in
support of exceptions that it assumed the agreement, the judge did not
find otherwise, and the General Counsel does not claim otherwise.
were made after the collective-bargaining agreement ex-
pired. The judge also found the Respondent did not estab-
lish that the Union clearly and unmistakably waived its
right to bargain over the changes. Finally, the judge re-
jected the Respondent’s arguments that the changes were
lawful because they were consistent with the expired
agreement or, alternatively, that they should be deferred to
arbitration.4
III. ANALYSIS
A. Collective-Bargaining Agreement Provisions Do Not
Survive the Expiration of the Agreement, Absent Explicit
Contractual Language to the Contrary.
After the judge issued his decision, the Board adopted
the contract coverage standard in MV Transportation, Inc.,
368 NLRB No. 66 (2019), and decided to apply that stand-
ard retroactively to all pending cases, id., slip op. at 2. Un-
der the contract coverage standard, the Board will “exam-
ine the plain language of the collective-bargaining agree-
ment 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.” Id. In
conducting that inquiry, the Board will apply “ordinary
principles of contract interpretation.” Id. “Where contract
language covers the act in question, the agreement will
have authorized the employer to make the disputed change
unilaterally, and the employer will not have violated Sec-
tion 8(a)(5).” Id., slip op. at 11.
Whether the contract coverage standard applies to
changes made after a collective-bargaining agreement ex-
pires is an issue of first impression for the Board. For the
reasons discussed below, we hold that provisions in an ex-
pired collective-bargaining agreement do not cover post-
expiration unilateral changes unless the agreement con-
tained language explicitly providing that the relevant pro-
vision would survive contract expiration. Because that ex-
ception is not established here, we find that the expired
agreement does not cover the changes at issue.5
4 The Respondent does not except to the judge’s findings that both
changes in this case were made after the parties’ collective-bargaining
agreement expired, were contrary to established past practice, were made
without prior notice to the Union and without giving it an opportunity to
bargain, and were substantial and material.
5 The Respondent also argues that the Union waived its right to bar-
gain over the changes, that the matter should be deferred to arbitration,
and that the judge should have applied the sound arguable basis standard
because the dispute is one of contract interpretation. We agree with the
judge, for the reasons he stated, that the Union did not clearly and un-
mistakably waive its statutory right to bargain over the changes. We also
agree with the judge that deferral to grievance arbitration is inappropriate
because the changes were made after the parties’ agreement expired. See
Litton Financial Printing Div. v. NLRB, 501 U.S. 190 (1991). We do not
rely, however, on his rationale that “[e]ven assuming that deferral might
otherwise apply to the clear violations here, there was never a contract
KOIN-TV 3
The provisions of a collective-bargaining agreement are
enforceable in federal court, see Labor Management Re-
lations Act § 301(a), 29 U.S.C. § 185(a) (vesting federal
district courts with jurisdiction of “[s]uits for violation of
contracts between an employer and a labor organization”),
and courts (along with arbitrators) are “the principal
sources of contract interpretation,” NLRB v. Strong, 393
U.S. 357, 360‒361 (1969). As the Supreme Court has rec-
ognized, however, the Board has authority to interpret col-
lective-bargaining agreements when doing so is necessary
to decide an unfair labor practice case. See NLRB v. C&C
Plywood Corp., 385 U.S. 421 (1967); NLRB v. Strong, su-
pra at 361.
Collective-bargaining agreements are interpreted “ac-
cording to ordinary principles of contract law, at least
when those principles are not inconsistent with federal la-
bor policy.” M&G Polymers USA, LLC v. Tackett, 574
U.S. 427, 435 (2015). One such principle is that “‘con-
tractual obligations will cease, in the ordinary course,
upon termination of the bargaining agreement.’” Id. at
441‒442 (quoting Litton, 501 U.S. at 207). Thus, “an ex-
pired contract has by its own terms released all its parties
from their respective contractual obligations, except obli-
gations already fixed under the contract but as yet unsat-
isfied.” Litton, 501 U.S. at 206. Although the parties may
agree that a particular provision survives the contract’s ex-
piration, any such agreement must be stated “in explicit
terms.” Id. at 207; accord Tackett, 574 U.S. at 442.
After a collective-bargaining agreement expires, differ-
ent principles govern the obligations of parties to a bar-
gaining relationship. In NLRB v. Katz, 369 U.S. 736
(1962), the Supreme Court held that an employer violates
Section 8(a)(5) of the Act if, without first bargaining to
impasse, it unilaterally changes a term or condition of em-
ployment constituting a mandatory subject of bargaining.
Id. at 743. Katz involved parties that were bargaining for
an initial collective-bargaining agreement, but the Court
subsequently made clear that the rule of Katz also applies
after an agreement has expired while the parties are bar-
gaining for a successor agreement. See Litton, 501 U.S.
grievance filed over the changes.” See, e.g., Caritas Good Samaritan
Medical Center, 340 NLRB 61, 63 fn. 5 (2003) (“[T]he filing of a griev-
ance is not a prerequisite to deferral.”). We also find the sound arguable
basis standard inapplicable because it applies only where the issue is
whether the employer modified an existing collective-bargaining agree-
ment—not where, as here, the issue is whether the Respondent unilater-
ally changed employment terms constituting mandatory subjects of bar-
gaining after the expiration of the agreement. See Bath Iron Works, 345
NLRB 499, 501 (2005), affd. sub nom. Bath Marine Draftsmen Assn. v.
NLRB, 475 F.3d 14 (1st Cir. 2007).
6 The Katz doctrine is subject to certain limited exceptions, none of
which is relevant here. See RBE Electronics of S.D., 320 NLRB 80, 81‒
82 (1995); Bottom Line Enterprises, 302 NLRB 373, 374 (1991), enfd.
at 198.6 Thus, after a labor contract expires, an employer
has a duty to maintain the status quo. Although the status
quo is ascertained by looking to the substantive terms of
the expired contract, see, e.g., PG Publishing Co., Inc.
d/b/a Pittsburgh Post-Gazette, 368 NLRB No. 41, slip op.
at 3 (2019), the obligation to maintain the status quo arises
out of the Act, not the parties’ contract. After a contract
expires, “terms and conditions continue in effect by oper-
ation of the NLRA. They are no longer agreed-upon
terms; they are terms imposed by law.” Litton, 501 U.S.
at 206.7
Consistent with the foregoing principles, the parties’ ex-
pired collective-bargaining agreement cannot provide a
defense for the Respondent’s allegedly unlawful unilateral
actions. The contact coverage standard is based on “ordi-
nary principles of contract interpretation,” MV Transpor-
tation, 368 NLRB No. 66, slip op. at 2, which, as shown,
include the principle that “contractual obligations will
cease, in the ordinary course, upon termination of the bar-
gaining agreement,” Tackett, 574 U.S. at 441‒442 (inter-
nal quotation marks omitted). We find that this principle
applies with equal force to contractual rights, including
provisions granting the employer the right to act unilater-
ally. This conclusion is consistent with the underlying ra-
tionale for the contract coverage standard. As the Board
explained in MV Transportation, that standard respects the
agreement reached by the parties as expressed in the plain
language of the contract, including “the limits—or ab-
sence of limits—upon which the parties themselves have
agreed.” 368 NLRB No. 66, slip op. at 10. The Board
emphasized that contract coverage would ensure that “the
parties are firmly in control of negotiating the parameters
of unilateral employer action, as they should be.” Id. (em-
phasis in original). Duration is an important limit to any
contractual right or obligation, as the Supreme Court
clearly held in Litton and Tackett, and our holding today
respects the right of parties to set that limit by declining to
extend contractual rights of unilateral action beyond the
contract’s agreed-upon expiration date absent an explicit
agreement to do so.8
mem. sub nom. Master Window Cleaning, Inc. v. NLRB, 15 F.3d 1087
(9th Cir. 1994).
7 As the Board recently reiterated, however, some contractual terms
are not “imposed by law” post-expiration, including management-rights
clauses granting the employer a right to act unilaterally. See Valley Hos-
pital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368
NLRB No. 139, slip op. at 2 (2019).
8 In MV Transportation, the Board also explained that the contract
coverage standard was necessary to avoid undermining parties’ collec-
tive-bargaining agreements and to promote “contractual repose.” Id.,
slip op. at 5‒6. It was also necessary to support “the Congressional pol-
icy of encouraging the use of grievance arbitration to resolve contractual
disputes” and to discourage the forum-shopping that results when unions
bypass arbitration procedures to file unilateral change allegations with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Further, the provisions of the parties’ expired collec-
tive-bargaining agreement, set forth above, do not contain
language extending the rights of unilateral action to post-
expiration conduct or otherwise beyond the term of the
contract. Indeed, they do not mention post-expiration con-
duct at all. Accordingly, they cannot cover the Respond-
ent’s unilateral changes to driver-background checks or
advance posting of work schedules. Instead, under Katz,
the Union has a statutory claim to continuance of the sta-
tus quo with respect to those practices.
B. The Unilateral Changes Altered the Status Quo.
The Respondent alternatively contends that even if the
expired contract did not cover its unilateral actions, those
actions were consistent with the status quo as defined by
the terms of the expired agreement and thus did not con-
stitute unilateral changes. We disagree.
The evidence shows that the Respondent’s practice re-
garding posting of work schedules was to post the sched-
ules 4 months in advance. This uninterrupted past prac-
tice, which started in 1993 or earlier, was continued by the
Respondent after it succeeded LIN Television as the em-
ployer of the unit employees in January 2017, and main-
tained thereafter for 13 months until February 2018. In-
deed, the Respondent maintained the practice for 5 months
after the parties’ agreement expired, which contradicts the
Respondent’s suggestion that it made no change but rather
maintained the status quo of the expired contract. The sta-
tus quo at the time of the change was therefore to post
schedules 4 months in advance.9
For the driver-background checks, the evidence is sim-
ilarly clear that the status quo did not include annual
the Board. Id., slip op. at 7. These justifications, while perfectly valid
during the term of an agreement, do not justify the standard’s application
after the agreement’s expiration, when there is no “contractual repose”
to protect and the arbitration procedure is generally not available. See
Litton, 501 U.S. at 206‒207 (no obligation to arbitrate disputes that arise
after contract expires absent explicit provision to the contrary).
We acknowledge that the United States Court of Appeals for the Dis-
trict of Columbia Circuit has applied contract coverage in assessing the
lawfulness of a postcontract expiration unilateral change. See Wilkes-
Barre Hospital Co. v. NLRB, 857 F.3d 364, 376‒377 (D.C. Cir. 2017);
see also Tramont Mfg., LLC v. NLRB, 890 F.3d 1114, 1120 (D.C. Cir.
2018) (characterizing Wilkes-Barre as having applied the “contract-cov-
erage standard to the terms of a collective-bargaining agreement that had
expired but that continued to define the status quo between the parties”)
(alterations and internal quotation marks omitted). However, the court
did not address the analytically prior question of whether the contract
coverage standard should be applicable postexpiration absent express
language extending a contractual right of unilateral action beyond the
contract’s term, and there is no indication in the court’s decision that the
parties presented that question for the court to decide. Moreover, the
court found that the expired contract did not cover the post-expiration
change at issue, so the outcome was the same as it would have been had
the court deemed the standard inapplicable.
9 Moreover, the practice was consistent with the hours-of-work pro-
vision cited by the Respondent in art. 8 of the expired collective-
checks. The parties stipulated that the past practice
through the date the contract expired was that such checks
were required only when an employee was involved in an
automobile accident on the job, and the expired contract
did not address driver-background checks.10 The status
quo at the time of the change was therefore to require
driver-background checks not annually but only when on-
the-job driving accidents occurred.
Accordingly, for all of the reasons stated above, we find
that the Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally changing its schedule-posting practices
and driver-background check requirements.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2: “The
Respondent’s unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.”
ORDER
The Respondent, Nexstar Broadcasting, Inc. d/b/a
KOIN-TV, Portland, Oregon, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees by changing schedule-posting prac-
tices and implementing a new requirement that employees
complete a motor vehicle/driving history background
check on their anniversary dates without first notifying the
Union and giving it an opportunity to bargain.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
bargaining agreement. We recognize that art. 8 included language that
provided for schedule posting 2 weeks in advance. However, art. 8 also
required that schedules be posted “as soon as they are known to the Em-
ployer.” That the Respondent posted work schedules 4 months in ad-
vance from January 2017 to February 2018 demonstrates that schedules
were known to the Respondent that far in advance during that time, and
there is no evidence or contention that the change in schedule posting
was based on changed circumstances that affected the Respondent’s abil-
ity to schedule work 4 months out. But even if there were such a change,
this would not affect our determination that posting schedules 4 months
in advance was the status quo or alter the Respondent’s bargaining obli-
gations under Katz and Bottom Line Enterprises.
10 The Respondent relies on the automobile travel provision in art.
10.1 set forth above. That sec. covers three topics: (1) whether employ-
ees must use their personal vehicles for company travel, (2) moving vio-
lations, and (3) the terms contained in the Respondent’s Vehicle Use Pol-
icy. The first two topics do not address background checks; the Vehicle
Use Policy is not in the record. Therefore, so far as the record shows,
art. 10.1 does not address driver-background checks. The Respondent
also cites the management-rights clause of the expired contract for both
changes, but that clause expired with the agreement, and there is no evi-
dence of similar changes under the clause that could have become part
of the status quo. See Holiday Inn of Victorville, 284 NLRB 916, 916‒
917 (1987).
KOIN-TV 5
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the change in the terms and conditions of
employment for its unit employees that was unilaterally
implemented on or around September 21, 2017, when it
implemented a new requirement that employees complete
a motor vehicle/driving history background check on their
anniversary dates.
(b) Rescind the change in the terms and conditions of
employment for its unit employees that was unilaterally
implemented in February 2018, when it changed its sched-
ule-posting practices by posting schedules 2 weeks in ad-
vance rather than 4 months in advance.
(c) Before implementing any further changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining units:
All regular full-time and regular part-time engineers and
production employees, but excluding chief engineer, of-
fice clericals, professionals, guards, and supervisors as
defined in the Act, and all other employees of KOIN-
TV.
All regular full-time and regular part-time news, creative
services employees, and web producers, but excluding
news producers, IT employees, on-air talent (aka “per-
former”), office clericals, professionals, guards, and su-
pervisors as defined in the Act and all other employees
of KOIN-TV.
(d) Within 14 days after service by the Region, post at
its Portland, Oregon facility copies of the attached notice
marked “Appendix.”11 Copies of the notice, on forms pro-
vided by the Regional Director for Region 19, after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable steps
shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
If the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
employed by the Respondent at any time since September
21, 2017.
(e) Within 21 days after service by the Region, file with
the Regional Director for Region 19 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. April 21, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT change your terms and conditions of em-
ployment without first notifying the Union and giving it
an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
WE WILL rescind the change in the terms and conditions
of employment for our unit employees that was unilater-
ally implemented around September 21, 2017, when we
implemented a new requirement that employees complete
a motor vehicle/driving history background check on their
anniversary dates.
WE WILL rescind the change in the terms and conditions
of employment for our unit employees that was unilater-
ally implemented in February 2018, when we changed our
schedule-posting practices by posting schedules 2 weeks
in advance rather than 4 months in advance.
WE WILL, before implementing any further changes in
wages, hours, or other terms and conditions of employ-
ment of unit employees, notify and, on request, bargain
with the Union as the exclusive collective-bargaining rep-
resentative of our employees in the following bargaining
unit:
All regular full-time and regular part-time engineers and
production employees, but excluding chief engineer, of-
fice clericals, professionals, guards, and supervisors as
defined in the Act, and all other employees of KOIN-
TV.
All regular full-time and regular part-time news, creative
services employees, and web producers, but excluding
news producers, IT employees, on-air talent (aka “per-
former”), office clericals, professionals, guards, and su-
pervisors as defined in the Act and all other employees
of KOIN-TV.
NEXSTAR BROADCASTING, INC. D/B/A KOIN-TV
The Board’s decision can be found at
http://www.nlrb.gov/case/19-CA-219985 or by using the
QR code below. Alternatively, you can obtain a copy of
the decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
1 The stipulation includes attached exhibits, which together with the
stipulation itself, constitute the entire record in this case.
J. Dwight Tom, Esq., for the General Counsel.
Charles W. Pautsch, Esq., for the Respondent.
Anne I. Yen, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, ADMINISTRATIVE LAW JUDGE. This
case was submitted to me upon a joint motion and stipulation of
facts pursuant to Section 102.35(a)(9) of the Board’s Rules and
Regulations. Based on charges filed by the Charging Party Un-
ion (hereafter the Union), which is the bargaining representative
of a group of Respondent’s employees, the General Counsel is-
sued the consolidated complaint in this case. The complaint al-
leges that Respondent violated Section 8(a)(5) and (1) of the Act
by implementing a new requirement for employees to complete
a motor vehicle/driving history background on their anniversary
date; and changing how it formerly posted employees’ work
schedules. Respondent filed an answer denying the essential al-
legations in the complaint. The parties filed briefs in support of
their positions.1 Based on the stipulation and the stipulated rec-
ord, as well as the briefs of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of busi-
ness in Portland, Oregon, where it operates a television station.
I find, as Respondent admits, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also find, as Respondent further admits, that
the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Facts
On about January 17, 2017, Respondent purchased the busi-
ness of LIN Television Corporation, a Media General Company,
d/b/a KOIN-TV (Media General KOIN-TV), and, since then, has
continued the business of that entity in basically unchanged form
and employed a majority of that entity’s previous employees.
Respondent is thus a successor of Media General KOIN-TV in
the following appropriate bargaining units represented by the
Union:
The first, as certified by the National Labor Relations Board,
consists of
all regular full-time and regular part-time engineers and pro-
duction employees, but excluding chief engineer, office cleri-
cals, professionals, guards and supervisors as defined in the
Act, and all other employees of KOIN-TV.
The second, as voluntarily recognized by the parties, consists
of all regular full-time and part-time news, creative services
employees, and web producers, but excluding news producers,
IT employees, on-air talent (a/k/a “performer”), office clericals,
J
KOIN-TV 7
professionals, guards and supervisors as defined in the Act and
all other employees of KOIN-TV.
At all material times until January 17, 2017, the Union had
been the exclusive bargaining representative in the above units
and recognized as such by Media General KOIN-TV as embod-
ied by successive bargaining agreements, the most recent of
which was in effect from July 29, 2015, to August 18, 2017, with
a short extension to September 8, 2017. That agreement has ex-
pired and there is no evidence that the agreement or any of its
terms was to continue beyond the expiration of the agreement.
At all material times, Respondent and the Union were either
preparing to engage or actually engaged in bargaining for a new
agreement. Indeed, the parties were apparently bargaining even
before the existing agreement expired. During a bargaining ses-
sion in June 2017, Respondent proposed eliminating “any ad-
vance schedule posting,” which the Union rejected. The existing
practice was that that work schedules would be posted 4 months
in advance. That practice had been in effect in the applicable
units since 1993 in order to better manage work and vacation
schedules.
According to the stipulation (p. 9, No. 39), in February 2018,
while bargaining was ongoing for a successor bargaining agree-
ment, Respondent “changed” how it posted work schedules. It
posted the work schedules about 2 weeks in advance instead of
continuing its past practice of posting about 4 months in advance.
Respondent did not provide the Union with advance notice or the
opportunity to bargain regarding the change in the posting of
work schedules.
Also, in accordance with the stipulation (p. 6, No. 20), in Sep-
tember of 2017, Respondent implemented a “new requirement”
that employees complete a motor vehicle/driving history back-
ground check on their anniversary date. Prior to such implemen-
tation, the unit employees were neither asked nor required to
complete a motor vehicle/driving history background check un-
less they were involved in a motor vehicle accident on the job.
Prior to the implementation of this change, which was described
as “a requirement of employment,” Respondent did not provide
the Union with advance notice or the opportunity to bargain
about the matter.2
Statement of Issues
The parties agree that the legal issues to be resolved in this
matter are as follows: Whether Respondent has violated Section
8(a)(5) and (1) of the Act by (1) implementing a new requirement
for employees to complete a motor vehicle/driving history back-
ground check on their anniversary date, without first having pro-
vided the Union with notice and an opportunity to bargain over
the matter; and (2) implementing a change by posting employ-
ees’ work schedules about 2 weeks in advance of the workweek,
rather than continuing its past practice of such posting about 4
months in advance, without providing the Union with advance
notice or opportunity to bargain over the matter.
2 The stipulation states that implementation of the change was “[o]n
a date better known to Respondent in about September 2017.” On Sep-
tember 17, 2017, Respondent sent the first of a series of emails notifying
some employees of the change as their anniversary dates were nearing.
Analysis
It is well settled that an employer who makes substantial and
material changes to existing terms and conditions of employment
without giving notice to the union that represents its employees
and giving it an opportunity to bargain over the matter violates
Section 8(a)(5) and (1) of the Act. NLRB v. Katz, 369 U.S. 736
(1962). That principle, which essentially outlaws unilateral
changes, applies as well after the expiration of a bargaining
agreement and during negotiations for a new agreement that have
not been completed. Litton Financial Planning Division v.
NLRB, 501 U.S. 190, 198 (1991). Under Katz, existing terms
and conditions continue in effect not because they may be em-
bedded in the expired contract, but under the Act’s requirement
that the employer must maintain the status quo for mandatory
subjects of bargaining. E.I. Du Pont De Nemours, 364 NLRB
No. 113, slip op. 4 (2016), discussing at length the Supreme
Court’s decision in Litton Financial, supra. It is also settled that
the status quo is defined by past practices. “An employer’s past
practices, even if not required by a collective-bargaining agree-
ment, which are regular and long-standing, rather than random
or intermittent, become terms and conditions of unit employees’
employment, which cannot be altered without offering their col-
lective-bargaining representative notice and opportunity to bar-
gain over the proposed change.” Sunoco, Inc., 349 NLRB 240,
244 (2007), citing applicable authorities. A past practice is one
that occurs “with such regularity and frequency that employees
could reasonably expect the ‘practice’ to continue or reoccur on
a regular and consistent basis.” Ibid.
The stipulated facts make clear that Respondent’s changes to
its motor vehicle/driving record requirements and to its work
schedule posting procedure were contrary to existing past prac-
tices on those subjects. They were admittedly made without
prior notice to the Union and without giving it an opportunity to
bargain over the changes. Respondent does not dispute that the
changes here were substantial and material conditions of em-
ployment and thus bargainable issues. Accordingly, the viola-
tions are established, at least as an initial matter.
Except for two technical defenses that will be discussed later,
Respondent’s substantive defense in this case is a jumble of three
different points (R. Br. 6): (1) the Union waived any right to bar-
gain over the changes; (2) the changes were not unilateral be-
cause they were “consistent” with the expired bargaining agree-
ment; and (3) the expired agreement covered the changes under
the so-called “contract coverage” standard or theory. None of
those defenses, either separately or in combination, can avail Re-
spondent here.
As Respondent recognizes (R. Br. 11), it has the burden of
proving the Union waived its right to bargain over the changes
in this case, namely that the Union “knowingly and voluntarily”
relinquished its bargaining rights. Such a waiver is not easily
proven for it must be “clear and unmistakable.” Metropolitan
Edison Co. v. NLRB, 460 U.S. 693, 702 (1983).
Stipulation pp. 6‒7, No. 23. This was clearly after the expiration of the
collective-bargaining agreement and the Respondent does not assert oth-
erwise.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The stipulated facts in this case do not show or establish a
clear and unmistakable waiver based on the expired agreement
or any other conduct of the Union. As mentioned above, the
touchstone of a Katz violation is a change in the status quo, as
reflected in past practice, especially after the expiration of a con-
tract. Thus, Respondent’s reliance for a Union waiver on spe-
cific expired contract terms is completely without merit. Nor
does the stipulation provide any support for a waiver by conduct
other than those expired terms.
Indeed, the contract terms do not trump the contrary estab-
lished past practices set forth in the stipulation. The rather gen-
eral travel provision of the expired contract cited by Respondent
(R. Br. 10) says nothing about background checks, although it
does provide that employees who are ticketed for a “moving vi-
olation” when on company business “must pay the fine for such
ticket.” Exhibit G, p. 11. It is conceded that the existing past
practice was that employees who drive as part of their jobs were
required to submit vehicle or driving reports only when they
were involved in accidents on the job. It is also conceded that
Respondent’s change required employees to submit an annual
vehicle or driving report, whether or not an accident was in-
volved. This clearly shows a significant unilateral change.
Respondent’s reference (R. Br. 10) to the expired contract pro-
vision on work schedule posting likewise does not refute the stip-
ulated change. The applicable contract language is not clear.3
But what is clear from the stipulation, despite what the contract
provision states, is that the established past practice was that the
work schedule was posted 4 weeks in advance and that practice
had been in effect for decades. But, in February 2018, Respond-
ent started posting schedules 2 weeks in advance. Thus, there is
no doubt that, here again, there was a significant unilateral
change. Indeed, Respondent recognized that posting work
schedules or changing them was a bargaining issue. In bargain-
ing negotiations, Respondent submitted a proposal to eliminate
any advance posting of work schedules, and the Union rejected
it.
To the extent that Respondent relies on the management rights
clause or the zipper clause in the expired agreement to support a
waiver of bargaining rights (R. Br. 12‒13, 15), that reliance is
completely misplaced. It is settled law that management rights
clauses do not survive the expiration of a bargaining agreement
in the absence of a contrary intent, which is not present here. Du
Pont, supra, 364 NLRB No. 113, slip op. 5, and cases there cited.
The same applies to Respondent’s contention about the zipper
clause since zipper clauses are creatures of contract and the zip-
per clause in this case is inextricably tied to the expired agree-
ment itself. Thus, the clause would not apply because the agree-
ment itself had expired before the unilateral changes were imple-
mented.
Respondent’s lengthy discussion in its brief of the “contract
coverage” theory of waiver, which appears to be a variation of
its assertion that the admitted changes were “consistent” with the
expired contract, is unavailing. First of all, that theory is not rec-
ognized Board law, as Respondent clearly acknowledges (R. Br.
3 The applicable contract provision is found at p. 8 of Exhibit G. Alt-
hough the first sentence of the provision states that work schedules would
be posted 2 weeks in advance, the next sentence states that they would
6‒10). See Provena St. Joseph Medical Center, 350 NLRB 808,
810‒815 (2007), which reaffirms the clear and unmistakable
standard for waiver of bargaining rights and rejects the contract
coverage theory. Nor, in any event, would the contract coverage
theory apply to permit Respondent’s unilateral changes in this
case. The contract that contained whatever coverage Respondent
relies upon had expired before the changes took place. The
changes are thus bargainable not because of any application or
nonapplication of contract coverage, but because they affected
existing terms and conditions of employment as established by
past practices that amounted to the status quo.
Respondent’s other defenses also lack merit. For example,
Respondent asserts (R. Br. 17‒19) that the unilateral changes
should be deferred to the grievance-arbitration clause of the ex-
pired agreement that is set forth at p. 6 of Exhibit G to the stipu-
lation. But there are problems with that assertion. Even assum-
ing that deferral might otherwise apply to the clear violations
here, there was never a contract grievance filed over the changes.
Indeed, there could be none. That is because the unilateral
changes in this case were changes to established past practices,
not changes to the expired contract. Moreover, it is well settled
that arbitration clauses do not survive the expiration of a bargain-
ing agreement, at least in the circumstances presented here where
the changes took place after the expiration of the agreement. Lit-
ton Financial, supra, 501 U.S. at 200‒201, 204‒206. See also
W.H. Froh, Inc., 310 NLRB 384, 386 (1993); and Buck Creek
Coal, 310 NLRB 1240 fn. 1 (1993). Respondent apparently rec-
ognizes the point because it cites Litton Financial for the same
proposition, while erroneously asserting that the non-existent
grievances in this case arose under the expired agreement (R. Br.
18).
Respondent also asserts that the complaint allegation about
the change in the motor vehicle/driving history background
check requirement is time-barred under Section 10(b) of the Act
and should be dismissed because a charge with the Board was
not filed on the issue within 6 months of implementation of the
change. Respondent’s position is based on its claim (R. Br. 5)
that a representative of Respondent sent emails to some employ-
ees about the change as they were nearing their anniversary dates
and that the Union thereby had “constructive notice” of the al-
leged change. It is clear that Respondent has the burden of prov-
ing that a charging party had actual or constructive notice of a
violation more than 6 months prior to the filing of a charge. See
Nursing Center at Vineland, 318 NLRB 337, 339 (1995).
The Respondent had not met its burden here. According to
the stipulation, none of the employees who received email noti-
fications was a representative of the Union and Respondent of-
fers nothing further to show why the Union should reasonably
have known that there was a change in Respondent ‘s policy on
background checks. No representative of the Union was notified
of the change until a unit employee who received an email about
the new requirement several days before notified a representative
of the Union on February 8, 2018. The Union thereafter de-
manded that Respondent rescind its new requirement, but the
be posted “as soon as they are known to the Employer,” indicating that
they could be posted earlier.
KOIN-TV 9
Respondent refused to do so. The Union filed its first charge on
the matter on May 9, 2018, well within 6 months of the time
when the Union learned of the change. Here the Union acted as
soon as it was notified and pressed its bargaining rights even be-
fore it filed its charge with the Board. Thus, I reject Respond-
ent’s assertion that the charge was untimely filed.
Nothing in Respondent’s defenses overcomes the established
violations in this case. Accordingly, I find that Respondent’s
unilateral changes violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent violated Section 8(a)(5) and (1) of the Act
by unilaterally implementing changes it its motor vehicle/driving
history reporting requirements and its work schedule posting
procedure without notifying the Union in advance and affording
it the opportunity to bargain over such changes.
2. The above violations constitute unfair labor practices
within the meaning of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative actions designed to effectuate the
policies of the Act. Requesting the traditional remedy for the
violations found in this case, the General Counsel submitted a
proposed order requiring a restoration of the pre-existing past
practices as well as a proposed notice posting. I shall issue the
order and notice essentially as proposed by the General Coun-
sel.4
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
Respondent, Nexstar Broadcasting, Inc. d/b/a KOIN-TV., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain in good faith with the Un-
ion by making unilateral changes to the terms and conditions of
employment, including those involving schedule posting and an-
nual Motor Vehicle Records check, for Respondent’s bargaining
unit employees in the following two bargaining units at Re-
spondent’s Portland, Oregon location:
The first, as certified by the National Labor Relations Board,
consists of all regular full-time and regular part-time engineers
and production employees, but excluding chief engineer, office
clericals, professionals, guards, and supervisors as defined in
the Act, and all other employees of KOIN-TV.
The second, as voluntarily recognized by the parties, consists
of all regular full-time and regular part-time news, creative ser-
vices employees, and web producers, but excluding news
4 The Union’s brief (U. Br. 14‒16) asks for a number of additional
remedies, mostly with respect to the notice to employees, including a
reading of the notice. I do not find that the violations in this case warrant
anything more than the traditional remedy that the General Counsel
seeks.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
producers, IT employees, on-air talent (aka “performer”), office
clericals, professionals, guards, and supervisors as defined in the
Act and all other employees of KOIN-TV.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act:
(a) Restore the past practice of posting Units’ employees
work schedules on Schedule Base with at least 4 months of visi-
bility.
(b) Restore the Units’ employees’ requirements regarding
Motor Vehicle Records check to as it was prior to September
2017.
(c) Within 14 days after service by Region 19, post at its Port-
land, Oregon facility copies of the attached notice marked “Ap-
pendix.” 6 Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the pen-
dency of these proceedings, the Respondent has gone out of busi-
ness or closed the facilities involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondent at any time since September 21, 2017.
(d) Within 21 days after service by the Region, file with the
Regional Director for Region 19 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that Respondent has taken to comply with the terms of
this Order.
Dated, Washington, D.C. February 27, 2019
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
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.
6 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the Notice reading “Posted byOrderof the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
National Association of Broadcast Employees & Technicians,
the Broadcasting and Cable Television Workers Sector of the
Communications Workers of America, Local 51, AFL‒CIO
(“Union”), is the representative of the following two bargaining
units at our Portland, Oregon location:
The first, as certified by the National Labor Relations Board,
consists of all regular full-time and regular part-time engineers
and production employees, but excluding chief engineer, office
clericals, professionals, guards, and supervisors as defined in
the Act, and all other employees of KOIN-TV.
The second, as voluntarily recognized by the parties, consists
of all regular full-time and regular part-time news, creative ser-
vices employees, and web producers, but excluding news pro-
ducers, IT employees, on-air talent (aka “performer”), office
clericals, professionals, guards, and supervisors as defined in
the Act and all other employees of KOIN-TV.
WE WILL NOT refuse to bargain with the Union as your exclu-
sive collective-bargaining representative.
WE WILL NOT change our past practice of posting your work
schedule on Schedule Base, with at least 4 months of visibility,
without first notifying and bargaining, upon request, with the
Union.
WE WILL post your schedules at least 4 months in advance on
Schedule Base.
WE WILL NOT require you to complete an annual Motor Vehi-
cle Records check as a condition of employment without first
notifying and bargaining, upon request, with the Union.
WE WILL rescind our requirement that you complete an annual
Motor Vehicle Records check as a condition of employment and
restore our policy that only required a Motor Vehicle Records
check after an on the job vehicle accident.
WE WILL NOT, in any like or related manner, interfere with
your rights under Section 7 of the Act.
NEXSTAR BROADCASTING, INC. D/B/A KOIN-TV
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/19-CA-219985 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273-1940.