MV Transportation, Inc.

National Labor Relations Board - Board Decisions

Sep 10, 2019

368 NLRB No. 66 (N.L.R.B. 2019)

368 NLRB No. 66
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.
MV Transportation, Inc. and Amalgamated Transit
Union Local #1637, AFL–CIO, CLC. Case 28–
CA–173726
September 10, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN,
KAPLAN AND EMANUEL
In this case, we once again visit an issue that has repeat-
edly sown division among the members of the National
Labor Relations Board and between the Board and review-
ing courts of appeals. That issue is whether a “clear and
unmistakable waiver” standard or a “contract coverage”
standard should apply when considering whether an em-
ployer’s unilateral action is permitted by a collective-bar-
gaining agreement. When the full Board last visited this
issue in Provena St. Joseph Medical Center, 350 NLRB
808 (2007), a majority reaffirmed adherence to the “clear
and unmistakable waiver” standard. Today, for reasons
that follow, we overrule Provena St. Joseph and adopt the
“contract coverage” standard.
I. INTRODUCTION
The National Labor Relations Act (the Act) imposes on
employers and unions the mutual duty to bargain in good
faith concerning wages, hours, and other terms and condi-
tions of employment. The resulting collective-bargaining
agreement imposes obligations and confers rights on the
parties to the agreement, as well as on the employees it
covers. The terms of the agreement represent the parties’
bargained-for deal, arrived at through the give-and-take of
negotiations, and the parties are entitled to the benefit of
their bargain based on the language they agreed to include
in their contract. As the provisions of a collective-bar-
gaining agreement come to be applied to the particulars of
everyday workplace life, however, unanticipated circum-
stances inevitably arise. Despite the most diligent bar-
gaining and most careful drafting, there are times during

1 Postal Service, 306 NLRB 640, 643 (1992).
2 See Sec. 10(f) of the Act: “Any person aggrieved by a final order
of the Board granting or denying in whole or in part the relief sought may
obtain a review of such order in any United States court of appeals in the
circuit wherein the unfair labor practice in question was alleged to have
been engaged in or wherein such person resides or transacts business, or
in the United States Court of Appeals for the District of Columbia . . . ”
(Emphasis added.).
3 NLRB v. Postal Service, 8 F.3d 832, 838 (D.C. Cir. 1993) (“[I]t is
clear that service reductions are within the compass” of contract provi-
sion granting employer certain rights of unilateral action.); Department
of Justice v. FLRA, 875 F.3d 667, 674 (D.C. Cir. 2017) (“[W]hat matters
the term of a collective-bargaining agreement that the
agreement must be interpreted in order to ascertain the
parties’ respective rights and obligations.
It is well established that an employer does not violate
the Act if the collective-bargaining agreement does, in
fact, grant the employer the right to take certain actions
unilaterally (i.e., without further bargaining with the un-
ion). The question presented in this case concerns the
standard the Board should apply to determine whether a
collective-bargaining agreement grants the employer that
right. As noted, the Board currently applies the “clear and
unmistakable waiver” standard, under which the employer
will be found to have violated the Act unless a provision
of the collective-bargaining agreement “specifically refers
to the type of employer decision” at issue “or mentions the
kind of factual situation” the case presents.1 This is not
the standard applied by courts (or arbitrators) when inter-
preting collective-bargaining agreements, and several
courts of appeals have expressly rejected the Board’s
“clear and unmistakable waiver” standard and adopted in-
stead a “covered by the contract” or “contract coverage”
standard. Importantly, these courts include the United
States Court of Appeals for the District of Columbia Cir-
cuit, which, by statute, has plenary jurisdiction to review
Board decisions.2 Recognizing that “a collective bargain-
ing agreement establishes principles to govern a myriad of
fact patterns,” the D.C. Circuit will find that an employer’s
unilateral change in a term or condition of employment is
covered by the contract if the change is “within the com-
pass” or “scope” of a contract provision that grants the em-
ployer the right to act unilaterally.3 In making this deter-
mination, the D.C. Circuit applies “‘ordinary principles of
contract law’”4 and “‘give[s] full effect to the plain mean-
ing of such provision.’”5
After careful consideration, we decide today to abandon
the “clear and unmistakable waiver” standard and to adopt
the “contract coverage” standard. For the reasons ex-
plained below, we conclude that the contract coverage
standard is more consistent with the purposes of the Act
than the clear and unmistakable waiver standard.
is whether the policy falls within the scope of the collective bargaining
agreement in light of the . . . policy of encouraging such agreements by
fostering their stability and repose.”); see also NLRB v. Solutia, Inc., 699
F.3d 50, 67 (1st Cir. 2012) (determining whether the language of the
management-rights clause contained in the parties’ agreement “encom-
pass[ed]” the disputed unilateral change).
4 Wilkes-Barre Hospital Co., LLC v. NLRB, 857 F.3d 364, 373 (D.C.
Cir. 2017) (quoting M & G Polymers USA, LLC v. Tackett, 135 S. Ct.
926, 933 (2015)).
5 Id. at 376 (quoting Local Union No. 47, IBEW v. NLRB, 927 F.2d
635, 641 (D.C. Cir. 1991)).
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Under contract coverage, the Board will examine the
plain language of the collective-bargaining agreement 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. For ex-
ample, if an agreement contains a provision that broadly
grants the employer the right to implement new rules and
policies and to revise existing ones, the employer would
not violate Section 8(a)(5) and (1) by unilaterally imple-
menting new attendance or safety rules or by revising ex-
isting disciplinary or off-duty-access policies.6 In both in-
stances, the employer will have made changes within the
compass or scope of a contract provision granting it the
right to act without further bargaining. In other words,
under contract coverage the Board will honor the parties’
agreement, and in each case, it will be governed by the
plain terms of the agreement.
On the other hand, if the agreement does not cover the
employer’s disputed act, and that act has materially, sub-
stantially and significantly changed a term or condition of
employment constituting a mandatory subject of bargain-
ing, the employer will have violated Section 8(a)(5) and
(1) unless it demonstrates that the union clearly and un-
mistakably waived its right to bargain over the change7 or
that its unilateral action was privileged for some other rea-
son.8 Thus, under the contract coverage test we adopt to-
day, the Board will first review the plain language of the
parties’ collective-bargaining agreement, applying ordi-
nary principles of contract interpretation, and then, if it is
determined that the disputed act does not come within the
compass or scope of a contract provision that grants the
employer the right to act unilaterally, the analysis is one
of waiver.
We also conclude, in accordance with the Board’s usual
practice, that it is appropriate to apply the standard we
adopt today retroactively. Accordingly, we will apply the
contract coverage standard in this case and in all pending
unilateral-change cases where the determination of
whether the employer violated Section 8(a)(5) turns on
whether contractual language granted the employer the
right to make the change in dispute.

6 Provided, of course, that no other provision of the agreement limits
the employer’s right of action. For example, if the agreement contains a
matrix of progressive discipline for safety violations that must be fol-
lowed, the general contractual right to revise existing policies would not
privilege the employer to dispense with progressive discipline for safety
violations.
7 A clear and unmistakable waiver may be found even where the con-
tract does not cover the disputed change because a waiver of the right to
bargain may be established through extra-contractual evidence. Waiver
II. BACKGROUND
Upon a charge filed April 8, 2016, by Amalgamated
Transit Union Local #1637, AFL–CIO, CLC (the Union),
and an amended charged filed by the Union on July 29,
2016, the General Counsel issued a complaint and notice
of hearing on August 10, 2016, alleging that MV Trans-
portation, Inc. (the Respondent) violated Section 8(a)(5)
and (1) of the Act by implementing five policies affecting
unit employees’ terms and conditions of employment
without first bargaining with the Union to impasse (the
“unilateral-change allegations”). The complaint also al-
leges that the Respondent violated Section 8(a)(5) and (1)
of the Act within the meaning of Section 8(d) when it im-
plemented five other policies related to unit employees’
terms and conditions of employment and, in so doing,
modified the collective-bargaining agreement without the
Union’s consent (the “contract-modification allegations”).
On August 24, 2016, the Respondent filed an answer in
which it denied the unilateral-change and contract-modi-
fication allegations and asserted various affirmative de-
fenses.
On October 11, 2016, the Respondent, the Union, and
the General Counsel filed a joint motion to waive a hear-
ing by an administrative law judge and to submit this case
to the Board for a decision based on a stipulated record.
On March 9, 2017, the Board granted the parties’ joint mo-
tion. Thereafter, the Respondent and the General Counsel
filed briefs, and the Respondent filed an answering brief.
III. FACTS
At all material times, the Respondent has been a corpo-
ration with an office and place of business in Las Vegas,
Nevada (the Las Vegas facility or Respondent’s facility),
and has been engaged in the operation of a fixed route
transit system. In conducting its business operations dur-
ing the 12-month period ending April 8, 2016, the Re-
spondent derived gross revenues in excess of $250,000,
and purchased and received at its Las Vegas facility goods
valued in excess of $50,000 directly from points outside
the State of Nevada. At all material times, the Respondent
has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. At all
material times, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
can be established through bargaining history and past practice as well
as through the provisions of a collective-bargaining agreement. See
American Diamond Tool, 306 NLRB 570 (1992). And even where a
contract does not cover the disputed change, contractual language still
may be relevant to a waiver analysis together with bargaining history and
past practice. See E. I. DuPont de Nemours & Co., 367 NLRB No. 145
(2019).
8 See, e.g., RBE Electronics of S.D., 320 NLRB 80 (1995) (holding
that compelling economic considerations may justify unilateral action).
MV TRANSPORTATION, INC. 3
Since May 24, 2013, the Respondent has recognized the
Union as the exclusive collective-bargaining representa-
tive of a unit of its employees. The Union and the Re-
spondent negotiated and concluded a collective-bargain-
ing agreement effective January 1, 2015 through August
31, 2018 (the Agreement).
On February 19, 2016, the Respondent sent the Union a
letter announcing its intent to implement new and revised
work policies and, pursuant to the terms of the Agreement,
asking for the Union’s input prior to implementation.9
The Union responded on February 26, 2016, accepting
some policies, rejecting some, and proposing revisions to
others. On February 29, 2016, the Respondent agreed to
some of the Union’s proposed revisions and rejections.
That same day, the Respondent presented new and revised
policies to its employees by posting a memorandum on all
bulletin boards at the Respondent’s facility and on its in-
ternal website. On March 26, 2016, the Respondent uni-
laterally implemented new and revised policies, 10 of
which are at issue in this case.
IV. CONTENTIONS OF THE PARTIES
Regarding the unilateral-change allegations, the Gen-
eral Counsel contends that the Respondent violated Sec-
tion 8(a)(5) and (1) when it implemented 5 of the 10 poli-
cies at issue here on the basis that the Respondent should
have first bargained with the Union to impasse before im-
plementing them. The General Counsel acknowledges
that language in the parties’ Agreement generally grants
the Respondent the right to issue, amend and revise poli-
cies, rules, and regulations. But the General Counsel as-
serts that under the applicable clear and unmistakable
waiver standard, this language is insufficiently specific to
demonstrate that the Union waived its statutory right to
bargain over these changes, and therefore the Respondent
violated the Act when it implemented them unilaterally.
As to the remaining five disputed policies, the General
Counsel contends that the Respondent violated the Act un-
der a different theory. Specifically, the General Counsel
asserts that when the Respondent implemented these pol-
icies, it modified the Agreement without the Union’s con-
sent and thereby failed to continue in effect all the terms
of the Agreement as required by Section 8(d) in violation
of Section 8(a)(5) and (1) of the Act.

9 See Agreement sec. 5.4 (the Respondent will “obtain input from the
Union prior to implementation of policy, rules, and regulations”); Sec.
14.5 (the Respondent “may obtain input from the Union prior to imple-
mentation of policy, rules and regulations”). These provisions and other
pertinent provisions of the Agreement are discussed in greater detail be-
low.
10 It is well established that “work rules, especially those involving the
imposition of discipline, constitute a mandatory subject of bargaining.”
Toledo Blade Co., 343 NLRB 385, 387 (2004). Workplace safety, train-
ing, and unit employees’ job duties and work assignments are also
Concerning the unilateral-change allegations, the Re-
spondent argues that it had no obligation to bargain over
some of those five policies because implementing them
did not materially, substantially, and significantly change
employees’ terms and conditions of employment. The Re-
spondent also contends that the Agreement authorized it
to implement those policies unilaterally, and it asks the
Board to assess the merits of this defense under the con-
tract coverage test rather than the clear and unmistakable
waiver standard. Applying contract coverage, the Re-
spondent argues that the Agreement granted it the right to
implement these policies unilaterally. Thus, according to
the Respondent, the Union had already exercised its right
to bargain with respect to those matters, and the Respond-
ent had no further obligation to bargain before implement-
ing these policies. Turning to the contract-modification
allegations, the Respondent argues that implementing
those policies was not unlawful within the meaning of
Section 8(d) because doing so did not modify the Agree-
ment.
V. DISCUSSION
A. The Unilateral-Change Allegations
Sections 8(a)(5) and (d) require an employer to bargain
with the union representing its employees “with respect to
wages, hours, and other terms and conditions of employ-
ment,” commonly referred to as “mandatory” subjects of
bargaining. NLRB v. Borg-Warner Corp., 356 U.S. 342,
349 (1958). The duty to bargain continues during the term
of a collective-bargaining agreement with respect to man-
datory subjects of bargaining not covered by the agree-
ment. See Jacobs Mfg. Co., 94 NLRB 1214, 1217–1218
(1951), enfd. 196 F.2d 680 (2d Cir. 1952). An employer
violates Section 8(a)(5) and (1) if it makes a material, sub-
stantial, and significant change regarding a mandatory
subject of bargaining without first providing the union no-
tice and a meaningful opportunity to bargain about the
change to agreement or impasse, absent a valid defense.
NLRB v. Katz, 369 U.S. 736, 747 (1962); Litton Financial
Printing Division v. NLRB, 501 U.S. 190, 198 (1991); Al-
amo Cement Co., 281 NLRB 737, 738 (1986).10
mandatory subjects of bargaining. See, e.g., Alamo Cement Co., 277
NLRB 320, 323–324 (1985) (duties and assignments); Voith Industrial
Services, 363 NLRB No. 109, slip op. at 17 (2016) (workplace safety);
Southern California Gas Co., 346 NLRB 449, 449 (2006) (training). The
unilateral-change allegations at issue here involve new or revised poli-
cies concerning work assignments, safety, discipline, and training. Thus,
it is clear, and the parties do not dispute, that the policies put at issue by
the unilateral-change allegations concern mandatory subjects of bargain-
ing.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1. The clear and unmistakable waiver standard
One such valid defense is that the union waived its right
to bargain. When an employer asserts that language in a
collective-bargaining agreement authorized it to change a
term or condition of employment constituting a mandatory
subject of bargaining, the Board has traditionally applied
the clear and unmistakable waiver standard. See Provena
St. Joseph Medical Center, 350 NLRB 808 (2007) (reaf-
firming the clear and unmistakable waiver standard). This
standard “is predicated on the union’s waiver of its right
to insist on bargaining,” and it “requires bargaining part-
ners to unequivocally and specifically express their mu-
tual intention to permit unilateral employer action with re-
spect to a particular employment term, notwithstanding
the statutory duty to bargain that would otherwise apply.”
Id. at 811 (emphasis in original). The Board has explained
that the waiver standard “reflects [its] policy choice,
grounded in the Act, in favor of collective bargaining con-
cerning changes in working conditions that might precip-
itate labor disputes.” Id.
Waiver may be based on express contractual language,
bargaining history, the parties’ past practice, or a combi-
nation thereof. American Diamond Tool, 306 NLRB at
570. For express contractual language to establish waiver,
the Board has required that the language in question be
“sufficiently specific.” Johnson-Bateman Co., 295 NLRB
180, 189 (1989); see also Allison Corp., 330 NLRB 1363,
1365 (2000) (“[T]he Board looks to the precise wording
of the relevant contract provisions in determining whether
there has been a clear and unmistakable waiver.”) (empha-
sis added).11 This statement—that contract language must
be “sufficiently specific” to establish a waiver of the un-
ion’s right to bargain—was a minor masterpiece of under-
statement. The D.C. Circuit long ago observed that the
clear and unmistakable waiver standard “is, in practice,
impossible to meet.” Department of Navy v. FLRA, 962
F.2d 48, 59 (D.C. Cir. 1992). Board cases applying this
standard vindicate the court’s observation. See infra fn.
17.
In Provena, the panel majority explained the rationale
of the waiver standard and defended the Board’s insist-
ence that contractual language be specific in order to es-
tablish waiver:
The waiver standard . . . effectively requires the parties
to focus on particular subjects over which the employer

11 For bargaining history to constitute evidence of waiver, the Board
requires the “matter at issue to have been fully discussed and consciously
explored during negotiations and the union to have consciously yielded
or clearly and unmistakably waived its interest in the matter.” Johnson-
Bateman Co., 295 NLRB at 185.
12 See Sec. 8(d) of the Act.
seeks the right to act unilaterally. Such a narrow focus
has two clear benefits. First, it encourages the parties to
bargain only over subjects of importance at the time and
to leave other subjects to future bargaining. Second, if a
waiver is won—in clear and unmistakable language—
the employer’s right to take future unilateral action
should be apparent to all concerned.
350 NLRB at 813.
2. The clear and unmistakable waiver standard does not
effectuate the policies of the Act
a. The waiver standard results in the Board impermissi-
bly sitting in judgment upon contract terms
Interpreting and applying Section 8(d) of the Act, the
Supreme Court has held that the “Board may not, either
directly or indirectly, compel concessions or otherwise sit
in judgment upon the substantive terms of collective bar-
gaining agreements.” NLRB v. American National Insur-
ance Co., 343 U.S. 395, 404 (1952). But that is just what
the Board does when it applies the clear and unmistakable
waiver standard: it sits in judgment upon the substantive
terms of a collective-bargaining agreement. In every case
in which a contract provision is cited as authorizing uni-
lateral action, the parties will have already bargained,
reached an agreement, and reduced that agreement to writ-
ing, as Congress envisioned.12 Under the clear and unmis-
takable waiver test, however, the Board will refuse to give
effect to contract provisions granting rights of unilateral
action to the employer unless those provisions meet the
exacting standards imposed by the Board. Again, those
standards require the contract provision to “unequivocally
and specifically express [the parties’] mutual intention to
permit unilateral employer action with respect to a partic-
ular employment term.” Provena, 350 NLRB at 811 (em-
phasis added). As the cases cited below in footnote 17
demonstrate—and they are just the tip of the iceberg—the
clear and unmistakable waiver standard “is, in practice,
impossible to meet,” or virtually so. Department of Navy
v. FLRA, 962 F.2d at 59. Since application of the clear
and unmistakable waiver standard typically results in a re-
fusal to give effect to the plain terms of a collective-bar-
gaining agreement, the Board in applying that standard ef-
fectively writes out of the contract language the parties
agreed to put into it. Doing so, the Board sits “in judgment
upon the substantive terms of collective bargaining agree-
ments,” thereby exercising a power it does not possess.13
13 The Provena Board asserted that the waiver standard was justified
all the same as a “policy choice” in favor of “bargaining over changes in
working conditions.” Provena, 350 NLRB at 811. This justification,
however, presumes that the bargaining that has taken place, and the
agreement that has been reached, did not authorize the disputed change,
which is the very issue to be decided in these cases.
MV TRANSPORTATION, INC. 5
b. The waiver standard undermines contractual stability
Even assuming the Board’s application of the clear and
unmistakable waiver standard does not result in decisions
that exceed the Board’s statutory powers, that standard re-
mains subject to criticism on several grounds. To begin
with, and ironically enough, Provena’s defense of the
clear and unmistakable waiver standard throws into sharp
relief one of its principal defects. The Provena majority
defended clear and unmistakable waiver on the ground
that it “encourages the parties to bargain only over sub-
jects of importance at the time and to leave other subjects
to future bargaining.” 350 NLRB at 813. In other words,
clear and unmistakable waiver results in perpetual bar-
gaining at the expense of contractual stability and repose.
It does so because the level of specificity demanded under
that standard requires “near-supernatural prescience for
the parties to have foreseen . . . what . . . issues would
arise.” Department of Navy v. FLRA, 962 F.2d at 59. In-
deed, the very premise of the clear and unmistakable
waiver standard is that parties will not achieve such pres-
cience but rather will limit their negotiations for a collec-
tive-bargaining agreement to matters of immediate con-
cern and leave everything else to “future bargaining,” as
the Provena majority candidly acknowledged.
To be sure, Section 1 of the Act declares that it is the
policy of the United States to promote industrial peace by
“encouraging the practice and procedure of collective bar-
gaining,” and that policy was the first thing the Provena
majority cited in support of the clear and unmistakable
waiver standard. Provena, 350 NLRB at 810–811 (“The
clear and unmistakable waiver standard is firmly
grounded in the policy of the National Labor Relations Act
promoting collective bargaining.”). But collective bar-
gaining is a means to an end, not an end in itself. Section
1 of the Act provides that it is the policy of the United
States to encourage collective bargaining “for the purpose
of negotiating the terms and conditions of [employees’]
employment.” In other words, the purpose of collective
bargaining is to reach a collective-bargaining agreement.
Moreover, Section 8(d) of the Act demonstrates Congress’
intent to stabilize such agreements by imposing multiple
requirements on any party that seeks to modify or termi-
nate them.14
The misconception at the heart of the clear and unmis-
takable waiver standard is that almost no matter what

14 Sec. 8(d) provides that no party shall terminate or modify a labor
contract unless it (i) serves 60-days’ written notice on the other party to
the contract, (ii) offers to meet and confer with the other party, (iii) timely
notifies the Federal Mediation and Conciliation Service and any state or
territorial counterpart, and (iv) continues in effect, without resorting to a
strike or lockout, all the terms and conditions of the existing contract for
60 days after notice of the proposed termination or modification is given
rights of unilateral action the union bargains and contrac-
tually agrees to grant the employer, it has the right to de-
mand further bargaining. But “the duty to bargain under
the [Act] does not prevent parties from negotiating con-
tract terms that make it unnecessary to bargain over sub-
sequent changes in terms or conditions of employment,”
and a union “‘may exercise its right to bargain about a par-
ticular subject by negotiating for a provision in a collec-
tive bargaining contract that fixes the parties’ rights and
forecloses further mandatory bargaining as to that sub-
ject.’” Postal Service, 8 F.3d at 836 (quoting Local Union
No. 47, IBEW v. NLRB, 927 F.2d 635, 640 (D.C. Cir.
1991)). By all appearances, however, the Provena Board
was indifferent to the values of contractual stability and
repose. Indeed, the Provena majority defended clear and
unmistakable waiver precisely on the ground that it weak-
ens the parties’ incentive to seek a comprehensive agree-
ment.15
The Court of Appeals for the District of Columbia Cir-
cuit has repeatedly criticized the clear and unmistakable
waiver standard on this very ground, and we cannot im-
prove upon the penetrating accuracy of its critique. Dec-
ades ago, the D.C. Circuit (in a case arising under the stat-
ute administered by the Federal Labor Relations Author-
ity) stated that once an agreement has been reached, ap-
plying the clear and unmistakable waiver standard to re-
quire further bargaining “out of purported concern for the
preservation of ‘statutory rights’” actually “undermin[es]
the stability of the very collective bargaining process those
rights exist to nourish” because it “guards the building
blocks of collective bargaining at the expense of the edi-
fice itself,” i.e., the collective-bargaining agreement. IRS
v. FLRA, 963 F.2d 429, 440 (D.C. Cir. 1992). Twenty-
five years later, the D.C. Circuit amplified this theme, ex-
plaining how the waiver standard, by requiring perpetual
bargaining, in fact undermines collective bargaining by
discouraging parties from trying to negotiate comprehen-
sive labor contracts in the first place:
[C]onstruing collective bargaining agreements as cover-
ing only those outcomes the parties concretely foresaw
would make extensive future bargaining inevitable, re-
moving the parties' incentive to try to comprehensively
bargain in the first place. Promotion of contractual re-
pose is needed to avoid discouraging parties from engag-
ing in the effort, as part of negotiation of their basic
or until the expiration date of the contract, whichever occurs later. If the
employer is a healthcare institution, more exacting requirements apply.
15 See 350 NLRB at 813 (citing as one of the “clear benefits” of the
clear and unmistakable waiver standard that “it encourages the parties to
bargain only over subjects of importance at the time and to leave other
subjects to future bargaining”).
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
collective bargaining agreement, to foresee potential la-
bor-management relations issues, and resolve those is-
sues in as comprehensive a manner as practicable. . . .
We have therefore consistently held that whether the
parties intended a particular outcome does not resolve
the “covered-by” analysis. Instead, what matters is
whether the policy falls within the scope of the collective
bargaining agreement in light of the . . . policy of encour-
aging such agreements by fostering their stability and re-
pose.
Department of Justice v. FLRA, 875 F.3d at 674 (internal
quotations and alterations omitted).
c. The waiver standard alters the parties’ deal reached
in collective bargaining
In addition, the collective-bargaining process envi-
sioned by Congress is one in which the parties exchange
proposals in an effort to reach an agreement that will com-
promise their differences, Reed & Prince Mfg. Co., 96
NLRB 850 (1951),16 and an evenhanded approach to re-
solving disputes over the interpretation of such agree-
ments is therefore necessary to support that process. How-
ever, the clear and unmistakable waiver standard under-
mines this process by imposing exacting scrutiny solely
on those contract provisions that grant the employer the
right to act unilaterally, even though such provisions are
part and parcel of an agreement that represents the parties’
compromise, reached through the give-and-take of nego-
tiations. Application of the waiver standard typically ends
with the Board impermissibly “abrogat[ing] a lawful
agreement merely because one of the bargaining parties is
unhappy with a term of the contract and would prefer to
negotiate a better arrangement.” Postal Service, 8 F.3d at
836.
As courts have noted, this undermining of the parties’
agreement favors the union because the heightened scru-
tiny is directed exclusively to those parts of the collective-

16 Enfd. 205 F.2d 131 (1st Cir. 1953), cert. denied 346 U.S. 887
(1953).
17 Board decisions applying clear and unmistakable waiver attest to
the accuracy of the D.C. Circuit’s observation. See, e.g., Graymont PA,
Inc., 364 NLRB No. 37 (2016) (finding, despite management-rights
clause granting the employer the “sole and exclusive rights to manage;
to direct its employees; . . . to evaluate performance, . . . to discipline and
discharge for just cause, to adopt and enforce rules and regulations and
policies and procedures; [and] to set and establish standards of perfor-
mance for employees,” that the union did not waive bargaining over the
employer’s changes to certain work rules and to its attendance and pro-
gressive discipline policies); Miami Systems Corp., 320 NLRB 71, 71-
72, 74 (1995) (finding, despite management-rights clause granting the
employer the “sole” right “to schedule and assign work to employees . .
. [and] to hire, layoff or relieve employees from duties,” that the union
did not waive its right to bargain over the employer’s unilateral elimina-
tion of a third shift, which resulted in employees either being laid off or
bargaining agreement that authorize unilateral employer
action. See, e.g., Enloe Medical Center v. NLRB, 433 F.3d
834, 837 (D.C. Cir. 2005) (the waiver standard “imposes
an artificially high burden on an employer”); Chicago
Tribune Co. v. NLRB, 974 F.2d 933, 937 (7th Cir. 1992)
(observing that the waiver standard “tilts [the] decision in
the union’s favor”). As the D.C. Circuit stated in IRS v.
FLRA, supra, under clear and unmistakable waiver, “the
union would almost invariably prevail in duty to bargain
cases, because it almost always could find some ambiguity
in the relevant contractual language.”17 This one-sided ju-
risprudence hardly serves to foster the practice and proce-
dure of collective bargaining.
d. The waiver standard results in conflicting contract in-
terpretations between the Board and the courts
Moreover, the inescapable result of this exacting Board
scrutiny of contractual management-rights language under
the clear and unmistakable waiver standard is that in uni-
lateral-change cases, collective-bargaining agreements
will likely be given one interpretation by the Board and a
completely different interpretation by the court—and the
court will accord the Board’s interpretation no deference.
Section 301 of the Labor-Management Relations Act
(LMRA) “‘authorizes federal courts to fashion a body of
federal law for the enforcement of . . . collective bargain-
ing agreements.’” Litton Financial Printing Division v.
NLRB, 501 U.S. 190, 202 (1991) (quoting Textile Workers
v. Lincoln Mills of Alabama, 353 U.S. 448, 451 (1957))
(ellipsis and emphasis in Litton). “Although the Board has
occasion to interpret collective-bargaining agreements in
the context of unfair labor practice adjudication,” it “is
neither the sole nor the primary source of authority in such
matters.” Rather, “[a]rbitrators and courts are still the
principal sources of contract interpretation.” Id. (internal
quotation omitted). The Court in Litton explained:
reassigned to other shifts), enf. denied in relevant part sub nom.
Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284 (6th Cir.
1997) (rejecting the view that “collective bargaining agreements must
catalog every conceivable permutation of a decision to lay off”); Elliot
Turbomachinery Co., 320 NLRB 141 (1995) (finding, despite manage-
ment-rights clause granting the employer the right to “decide location of
its plant, and to relocate the same,” that the union did not waive its right
to bargain over the employer’s unilateral decision to relocate a manufac-
turing plant); Postal Service, 306 NLRB 640 (1992) (finding, despite
management-rights clause granting the employer the “exclusive right to
. . . transfer [and] assign . . . employees . . . maintain the efficiency of the
operations entrusted to it . . . [and] determine the method, means and
personnel by which such operations are to be conducted,” that the union
did not waive its right to bargain over the employer’s decision to reduce
window service hours, close facilities on Saturdays, and discontinue
Sunday mail processing and collection work), enf. denied 8 F.3d at 832.
MV TRANSPORTATION, INC. 7
We would risk the development of conflicting principles
were we to defer to the Board in its interpretation of the
contract, as distinct from its devising a remedy for the
unfair labor practice that follows from a breach of con-
tract. We cannot accord deference in contract interpreta-
tion here only to revert to our independent interpretation
of collective-bargaining agreements in a case arising un-
der § 301.
501 U.S. at 203. Simply put, the “Board is not an expert in
contract interpretation,” nor was it intended to be. Chicago
Tribune, 974 F.2d at 937; see also NLRB v. IBEW Local Un-
ion 16, 425 F.3d 1035, 1039 (7th Cir. 2005) (stating that the
Board has “no special expertise” in interpreting contracts).
Congress cannot possibly have envisioned, much less in-
tended, the spectacle of the Board and the courts adopting
completely different interpretations of the same contract pro-
visions.18
e. The waiver standard undermines grievance
arbitration
The clear and unmistakable waiver standard also under-
mines the Congressional policy of encouraging the use of
grievance arbitration to resolve contractual disputes. This
well-established policy is made explicit in LMRA Section
203(d), which relevantly provides that “[f]inal adjustment
by a method agreed upon by the parties is declared to be
the desirable method for settlement of grievance disputes
arising over the application or interpretation of an existing
collective-bargaining agreement.”19 As the Supreme
Court has explained, “the grievance machinery under a
collective bargaining agreement is at the very heart of the
system of industrial self-government,” and “arbitration is
the means of solving the unforeseeable by molding a sys-
tem of private law for all the problems which may arise
and to provide for their solution in a way which will gen-
erally accord with the variant needs and desires of the par-
ties.” Warrior & Gulf Navigation Co., 363 U.S. at 581.
In American Mfg., the Court similarly stated that “[a]rbi-
tration is a stabilizing influence only as it serves as a ve-
hicle for handling any and all disputes that arise under the
agreement.” 363 U.S. at 567 (emphasis added).
The clear and unmistakable waiver standard runs coun-
ter to this strong federal policy in favor of resolving

18 We recognize that the courts will not defer to the Board’s contract
interpretations under the contract coverage standard, either, but the fact
that we will be giving effect to the plain meaning of the contract and
applying the same standard as the D.C. Circuit in particular will neces-
sarily reduce the potential for conflicting interpretations.
19 The labor policy declared in LMRA Sec. 203(d) was underlined by
the Supreme Court in the so-called Steelworkers trilogy. See United
Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960);
United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574
(1960); United Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960).
disputes over “the application or interpretation of an exist-
ing collective-bargaining agreement” through grievance
arbitration. Indeed, as former Chairman Battista recog-
nized in his separate opinion in Provena, the clear and un-
mistakable waiver standard encourages unions to bypass
arbitration and bring their unilateral-change claims to the
Board, see 350 NLRB at 817, where the waiver standard
tilts the playing field in their favor, Chicago Tribune, 974
F.2d at 937. Even though a union has contractually agreed
to a grievance-arbitration procedure, it will naturally pre-
fer that the Board determine the lawfulness of an em-
ployer’s disputed unilateral action because “the Board
[will] start with the proposition that the unilateral change
is unlawful, unless the right to bargain has been ‘clearly
and unmistakably’ waived.” Id. And as case after case
demonstrates, a union is far more likely to receive a favor-
able determination from the Board than from an arbitrator
given the “near-supernatural prescience” required to for-
mulate contract language that achieves the degree of spec-
ificity required under the clear and unmistakable waiver
standard. Department of Navy v. FLRA, 962 F.2d at 59.
f. The waiver standard has become indefensible and
unenforceable
The Board’s dogged adherence to the clear and unmis-
takable waiver standard has become an exercise in futility.
Based on the “fundamental and long-running disagree-
ment” between the D.C. Circuit and the Board concerning
this issue20 and the Board’s “obstinacy” and “bad faith” in
continuing to defend the clear and unmistakable waiver
standard in enforcement actions before that court, the D.C.
Circuit finally sanctioned the Board by ordering it to re-
imburse an employer for its costs of opposing the Board’s
position. See Heartland Plymouth Court MI, LLC v.
NLRB, 838 F.3d 16, 19–20, 27 (D.C. Cir. 2016) (granting
employer’s motion for attorneys’ fees). Thus, if the Board
finds an 8(a)(5) unilateral-change violation applying clear
and unmistakable waiver, and the employer files a petition
for review in the D.C. Circuit, the Board must yield its
position or suffer a further sanction—and every employer
on the losing end of a Board decision can petition for re-
view in the D.C. Circuit. Thus, the clear and unmistakable
waiver standard has become indefensible. Except for the
rare case in which an 8(a)(5) unilateral-change violation
The Board has also recognized that effectuation of the national labor pol-
icy demands that it “give hospitable acceptance to the arbitral process as
part and parcel of the collective bargaining process itself . . . .” Interna-
tional Harvester Co., 138 NLRB 923, 927 (1962) (internal quotations
omitted), enfd. sub nom. Ramsey v. NLRB, 327 F.2d 784 (7th Cir. 1964),
cert. denied 377 U.S. 1003 (1964). This “hospitable acceptance” in-
cludes a policy of deferring to an arbitrator’s award that satisfies certain
criteria. See Spielberg Mfg. Co., 112 NLRB 1080, 1082 (1955).
20 Heartland Plymouth Court MI, LLC v. NLRB, 650 Fed.Appx. 11,
12 (D.C. Cir. 2016) (citation omitted).
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would be found under either clear and unmistakable
waiver or contract coverage, every Board decision in
which the waiver standard is applied will likely be denied
enforcement.
3. The contract coverage test
Three courts of appeals have rejected the clear and un-
mistakable waiver standard in favor of a standard com-
monly referred to as contract coverage, while a fourth has
rejected the clear and unmistakable waiver standard in fa-
vor of a framework that embraces contract coverage prin-
ciples. As the D.C. Circuit has explained, when parties
have already bargained and agreed to contractual lan-
guage that covers the change in dispute, asking whether
the union has waived its right to bargain simply misses the
point:
“A waiver occurs when a union knowingly and volun-
tarily relinquishes its right to bargain about a matter; but
where the matter is covered by the collective bargaining
agreement, the union has exercised its bargaining right
and the question of waiver is irrelevant.”
Postal Service, 8 F.3d at 836 (quoting Department of Navy v.
FLRA, 962 F.2d at 57) (emphasis in Department of Navy). In
Postal Service, the court more fully explained that “the duty
to bargain under the [Act] does not prevent parties from ne-
gotiating contract terms that make it unnecessary to bargain
over subsequent changes in terms or conditions of employ-
ment,” and therefore a “‘union may exercise its right to bar-
gain about a particular subject by negotiating for a provision
in a collective bargaining contract that fixes the parties’ rights
and forecloses further mandatory bargaining as to that sub-
ject.’” 8 F.3d at 836 (quoting Local Union No. 47, IBEW,
927 F.2d at 640). Thus, when parties “bargain about a subject
and memorialize that bargain in a collective bargaining
agreement, they create a set of rules governing their future
relations,” and “[u]nless the parties agree otherwise, there is
no continuous duty to bargain during the term of an agree-
ment with respect to a matter covered by the contract.” Id.
To determine if a disputed unilateral change is covered by the
contract and therefore lawful, the D.C. Circuit “give[s] full
effect to the plain meaning” of the agreement and determines
whether the change at issue is “within the compass of the
terms of the agreement.” Wilkes-Barre Hospital, 857 F.3d at
376-377 (internal quotations omitted). Unlike clear and un-
mistakable waiver, a contract coverage analysis does not re-
quire that the agreement mention, refer to, or address the spe-
cific action the employer has taken. Id. (citations omitted).

21 Recognizing the conflict between these courts and itself, the Board
has sometimes applied both clear and unmistakable waiver and, in the
alternative, contract coverage. See, e.g., Tramont Mfg. LLC, 365 NLRB
The Seventh and First Circuits have also adopted the
contract coverage test. See Chicago Tribune Co. v. NLRB,
974 F.2d at 937 (“We agree, therefore, that ‘where the
contract fully defines the parties’ rights as to what would
otherwise be a mandatory subject of bargaining, it is in-
correct to say that the union has ‘waived’ its statutory right
to bargain; rather the contract will control and the ‘clear
and unmistakable’ intent standard is irrelevant.”) (quoting
Local Union No. 47, IBEW, 927 F.2d at 641); Bath Marine
Draftsmen’s Assn. v. NLRB, 475 F.3d 14, 25 (1st Cir.
2007) (“[W]e adopt the District of Columbia Circuit’s
contract coverage test to determine whether the [u]nions
have already exercised their right to bargain. . . . If so, the
waiver standard is meaningless.”).21
The Second Circuit has adopted a somewhat modified
framework, but one that also rejects the Board’s clear and
unmistakable waiver standard as applied by the Board.
See Electrical Workers Local 36 v. NLRB, 706 F.3d 73 (2d
Cir. 2013), cert. denied 134 S.Ct. 2898 (2014). Under its
framework, the Second Circuit first determines “whether
the issue is clearly and unmistakably resolved (or ‘cov-
ered’) by the contract. If so, the question of waiver is in-
apposite because the union has already clearly and unmis-
takably exercised its statutory right to bargain and has re-
solved the matter to its satisfaction.” Id. at 83–84. Only
if the disputed change is not covered by the contract does
the court proceed to determine “whether the union has
clearly and unmistakably waived its right to bargain.” Id.
(emphasis in original). The court explained that when the
Board’s
determination regarding waiver is based upon an inter-
pretation of a contract, we begin by making a threshold,
de novo determination of whether a matter is ‘covered’
by the contract—meaning that the parties have already
bargained over the matter and set out their agreement in
the contract. Only if we conclude as a matter of law that
the matter was not covered by the contract can we con-
sider whether the Board’s finding regarding waiver was
supported by substantial evidence.
Id. at 83 (emphasis in original). In support, the court cited
approvingly to Bath Marine Draftsmen’s Assn. v. NLRB, su-
pra.
These courts are by no means alone in their embrace (or
partial embrace, for the Second Circuit) of a contract cov-
erage standard. Several former Board members also
No. 59, slip op. at 2 (2017), petition for review granted in part and denied
in part 890 F.3d 1114 (D.C. Cir. 2018).
MV TRANSPORTATION, INC. 9
would have adopted contract coverage.22 Commentators,
too, have questioned the viability of the waiver standard.23
4. Adoption of the contract coverage test
Having carefully considered this important issue, we
have decided to adopt the contract coverage test. We be-
lieve that the contract coverage test is more consistent with
the purposes of the Act and sound labor policy than is the
clear and unmistakable waiver standard.
Contract coverage supports the practice and procedure
of collective bargaining, in alignment with Section 1 of
the Act, by encouraging employers and unions to “en-
gag[e] in the effort . . . to foresee potential labor-manage-
ment relations issues, and resolve those issues” through
collective bargaining “in as comprehensive a manner as
practicable.”24 Moreover, by ensuring that all provisions
of the parties’ agreement are given effect, the contract
coverage test will end the Board’s practice of selectively
applying exacting scrutiny only to those provisions of a
labor contract that vest in the employer a right to act uni-
laterally. The contract coverage test will also end the
Board’s practice of sitting in judgment on certain provi-
sions of the parties’ agreement—contrary to the authorita-
tive teaching of the Supreme Court—by refusing to give
effect to those provisions unless a standard of specificity
is met that is, in practice, all but impossible to meet. By
adopting contract coverage, we will also ensure that the
Board’s contract interpretations remain within the Board’s
limited authority to interpret collective-bargaining agree-
ments in the exercise of our primary jurisdiction to admin-
ister the Act, but because we will apply the same standard
the courts apply, our interpretations will predictably align
with theirs as well. Finally, adopting contract coverage
will discourage forum shopping. Since the Board will re-
solve unilateral-change disputes under the same standard
that arbitrators apply, there will no longer be any incentive
to bypass grievance arbitration, and such disputes will be
channeled into the “method agreed upon by the parties,”
as Congress intended.25
Because it gives effect to the plain meaning of language
in collective-bargaining agreements, the contract coverage
standard we adopt today is fully consistent with recent

22 See Exxon Research & Engineering Co., 317 NLRB 675, 676–677
(1995) (Mbr. Cohen, dissenting in part), enf. denied on other grounds 89
F.3d 228 (5th Cir. 1996); Dorsey Trailers, Inc., 327 NLRB 835, 836–
837 (1999) (Mbr. Hurtgen, dissenting in part), enf. granted in part and
denied in part 233 F.3d 831 (4th Cir. 2000); California Offset Printers,
349 NLRB 732, 737–739 (2007) (Mbr. Schaumber, dissenting);
Provena, 350 NLRB at 816–818 (Chairman Battista, dissenting); Centu-
rylink, 358 NLRB 1192, 1194–1195 (2012) (Mbr. Hayes, dissenting in
part).
23 See Lahey, I Thought We Had a Deal?!: The NLRB, the Courts,
and the Continuing Debate over Contract Coverage vs. Clear and
Supreme Court precedent. In M & G Polymers USA, LLC
v. Tackett, 135 S.Ct. 926, 933 (2015), the Court stated:
We interpret collective-bargaining agreements . . . ac-
cording to ordinary principles of contract law, at least
when those principles are not inconsistent with federal
labor policy. See Textile Workers v. Lincoln Mills of
Ala., 353 U.S. 448, 456–457 (1957). “In this endeavor,
as with any other contract, the parties’ intentions con-
trol.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559
U.S. 662, 682 (2010) (internal quotation marks omitted).
“Where the words of a contract in writing are clear and
unambiguous, its meaning is to be ascertained in accord-
ance with its plainly expressed intent.” 11 R. Lord, Wil-
liston on Contracts § 30:6, p. 108 (4th ed. 2012) (internal
quotation marks omitted).
Under contract coverage, the Board will ascertain and give
effect to the parties’ intent “plainly expressed” in a collective-
bargaining agreement, in alignment with the standard the Su-
preme Court articulated in M & G Polymers, properly limited
to “the context of unfair labor practice adjudication,” as the
Court has also instructed. Litton, 501 U.S. at 202.
Likewise, nothing in our holding today is inconsistent
with prior Supreme Court decisions addressing waiver in
the collective-bargaining context, specifically NLRB v. C
& C Plywood Corp., 385 U.S. 421 (1967), and Metropol-
itan Edison Co. v. NLRB, 460 U.S. 693 (1983). In C & C
Plywood, the Board found that a union did not waive its
right to bargain over an employer’s unilateral implemen-
tation of a premium pay schedule. See C & C Plywood
Corp., 148 NLRB 414 (1964), enf. denied 351 F.2d 224
(9th Cir. 1965). However, the Supreme Court granted cer-
tiorari to consider a different issue: whether the Board had
the authority to interpret a collective-bargaining agree-
ment that did not contain an arbitration clause. 385 U.S.
at 425–426. The Court held that the Board did have the
authority to interpret the contract. Id. at 430. It then con-
sidered the employer’s argument that the collective-bar-
gaining agreement had waived the union’s right to bargain
over the premium pay schedule. The Court stated that it
“[could not] disapprove of the Board’s approach” in ap-
plying the waiver standard, which it noted was based on
Unmistakable Waiver, 25 ABA J. Lab. & Emp. L. 37 (2009); Carron &
Broughton, When Is “No” Really “No”?—the NLRB’s Current Position
on the Freedom of Contract, Management Rights and Waiver, 13 Lab.
Law. 299 (1997).
24 Department of Justice v. FLRA, 875 F.3d at 674.
25 LMRA Sec. 203(d). We recognize that some unilateral-change dis-
putes involve an alleged change to an extra-contractual past practice and
do not depend for their resolution on interpretation of a collective-bar-
gaining agreement. We refer here to those that do.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Board’s “experience with labor relations and the Act’s
clear emphasis upon the protection of free collective bar-
gaining.” Id. at 430. The Court did not expound further
upon its views of the waiver standard.
In Metropolitan Edison, the Court considered a “narrow
question”: whether an employer violated Section 8(a)(3)
of the Act when it disciplined union officials more se-
verely than other employees for engaging in a work stop-
page that violated a no-strike clause. 460 U.S. 693, 695–
697, 700 (1983). The Court held that Section 8(a)(3) pro-
hibited this disparate treatment of union officials and, in
so doing, it rejected a waiver defense asserted by the em-
ployer. See id. at 706–708. Specifically, the employer
argued that the parties’ earlier contract included a general
no-strike clause that had been interpreted by arbitrators to
impose a higher duty on union officials. Id. at 708. By
remaining silent concerning these arbitral decisions during
subsequent contract negotiations, the employer argued,
the union implicitly waived union officials’ statutory right
not to be disparately treated. Id. The Court rejected this
defense, stating, “[W]e will not infer from a general con-
tractual provision that the parties intended to waive a stat-
utorily protected right unless the undertaking is ‘explicitly
stated.’ More succinctly, the waiver must be clear and un-
mistakable.” Id.
These Supreme Court decisions do not detract from our
holding that the contract coverage test better promotes the
purposes and policies of the Act than does the clear and
unmistakable waiver standard. In C & C Plywood, the
principal issue before the Court was whether the Board has
authority to interpret collective-bargaining agreements,
not how the Board should do so. Although the Court
stated that it could not disapprove of the waiver standard,
it did so in deference to the Board’s experience and exper-
tise. Since deciding C & C Plywood, the Board has had a
great deal of experience applying the clear and unmistak-
able waiver standard, and as explained at length above,
that experience has made the drawbacks of that standard
starkly apparent. Accordingly, we have relied on the
Board’s experience to adopt a different approach—an ap-
proach, moreover, that is consistent with the Court’s
words of caution that Board interpretation of contracts
should go “only so far as [is] necessary.” C & C Plywood,
385 U.S. at 428; see also id. at 427 (noting Congress’s re-
fusal to give the Board “generalized power to determine
the rights of the parties under all collective agree-
ments”).26 Metropolitan Edison is also not to the contrary.
The waiver defense asserted in Metropolitan Edison did
not even involve interpretation of collectively bargained

26 For these reasons, we reject the dissent’s claims that we have not
“adequately come to terms with the Supreme Court’s decision in C & C
Plywood” or that C & C Plywood “forecloses” today’s decision.
language, and in approving the waiver standard, the Court
had no opportunity to consider the circuit court decisions
that inform our decision today, all of which postdated Met-
ropolitan Edison.
We reject any claim that the contract coverage test re-
moves any meaningful limits on unilateral employer ac-
tion. Rather, this test rightly gives effect to the limits—or
absence of limits—upon which the parties themselves
have agreed. Under contract coverage, the parties are
firmly in control of negotiating the parameters of unilat-
eral employer action, as they should be. We are not adopt-
ing a test that allows employers to do just as they wish,
and no court would endorse such a test. Indeed, courts
applying contract coverage have not acted as a rubber
stamp for unilateral employer action. They have not hes-
itated to reject spurious contract coverage defenses, and
we find the reasoning in these decisions persuasive.
For example, in Regal Cinemas, Inc. v. NLRB, the D.C.
Circuit considered whether an employer had the contrac-
tual authority to unilaterally convert its facilities into man-
ager-operated theaters. This change eliminated the need
for projectionists, a bargaining-unit position, by transfer-
ring that unit work to managers. 317 F.3d 300, 306–307
(D.C. Cir. 2003). The employer argued that a manage-
ment-rights clause in the parties’ contract authorized this
unilateral action. That clause granted the employer the
“right to introduce new or improved work methods, facil-
ities, equipment, machinery, processes and procedures of
work and to change or eliminate existing methods, facili-
ties, equipment, machinery, processes and procedures or
work.” Id. at 304.
The court found that the contract did not cover the em-
ployer’s unilateral change, and it criticized the employer
for “advocat[ing] a more expansive reading of a much nar-
rower management rights clause” than was at issue in
Postal Service. Id. at 313. The court explained:
Regal . . . fashions its “covered by” argument around the
language giving it the authority to change or eliminate
existing methods, procedures “or work.” . . . But Regal's
actions here are not embraced by the literal language of
the management rights clause. . . . [T]he record shows
that Regal's decision involved no change in the “meth-
ods” or “procedures” of projection and no elimination of
“work.” Rather, Regal merely transferred to managers
work that was previously done by projectionists. . . .
[W]e are loath to conclude that a union would know-
ingly agree to a clause that would effectively permit the
MV TRANSPORTATION, INC. 11
employer to unilaterally extinguish the bargaining unit
altogether.
Id. (internal quotations and citations omitted).
Applying contract coverage, the First Circuit also re-
jected an employer’s attempt to give a management-rights
clause a breadth of construction that the language of the
agreement would not reasonably bear. In NLRB v. Solutia,
Inc., the court considered whether an employer had the
contractual authority to consolidate two product testing
labs at different locations into one lab, which resulted in a
reduction in unit positions and unit work. 699 F.3d 50, 55
(1st Cir. 2012). The management-rights clause provided
that “the operation of the plant, including but not limited
to the right to employ, promote, lay-off, discipline or dis-
charge for just cause, and to judge the qualifications and
competency of all employees, are reserved by and vested
in the Company.” Id. at 66. The court found that the list
of rights reserved to management merely covered routine
employment actions, and the “plain language of the man-
agement rights clause would not suggest to any reader that
the geographical allocation of work had been one of the
bargaining topics” between the parties. Id. at 67. The
court concluded that the “language of the management-
rights clause clearly does not encompass cross-plant work
consolidation and elimination of unit positions.” Id.27
In sum, consistent with the D.C., First, and Seventh Cir-
cuits, and for all the reasons set forth above, we adopt to-
day the contract coverage standard.28 In doing so, we em-
phasize that the interests of contractual stability and re-
pose are better protected by the contract coverage test, and
that protecting those interests is perfectly consistent with
the policy of encouraging “the practice and procedure of
collective bargaining.” As the D.C. Circuit has explained,
a union’s statutory right to bargain does not prevent the
union from exercising that right “by negotiating for a pro-
vision in a collective bargaining contract that fixes the par-
ties’ rights and forecloses further mandatory bargaining as
to that subject.” Postal Service, 8 F.3d at 836 (internal
quotations omitted). Accordingly, when parties “bargain
about a subject and memorialize that bargain in a collec-
tive bargaining agreement, they create a set of rules gov-
erning their future relations,” and “[u]nless the parties
agree otherwise, there is no continuous duty to bargain
during the term of an agreement with respect to a matter
covered by the contract.” Id. In such a case, to apply clear
and unmistakable waiver, which almost invariably gives

27 Based on the foregoing precedent, we note that it is at least argua-
ble, if not likely, that a violation would have been found in C & C Ply-
wood even if the Board had applied a contract coverage analysis. See C
& C Plywood Corp., 148 NLRB 414, 416-417 (1964) (wage clause grant-
ing employer “the right to pay a premium rate to ‘reward any particular
employee for some special fitness, skill, aptitude, or the like’” did not
rise to a “continuous duty to bargain” notwithstanding the
parties’ agreement, is to “guard[] the building blocks of
collective bargaining at the expense of the edifice itself.”
IRS v. FLRA, 963 F.2d at 440.
5. The Board’s contract coverage test
An allegation that an employer has violated Section
8(a)(5) by unilaterally changing a term or condition of em-
ployment may be defended against on several grounds.
The employer may deny that it changed a term or condi-
tion of employment at all. It may acknowledge that it
made a change but deny that it acted unilaterally, or that
the change involved a mandatory subject of bargaining, or
that it was material, substantial, and significant. We do
not address these potential defenses here, all of which re-
main available. We solely address those cases in which
an employer defends against an 8(a)(5) unilateral-change
allegation by asserting that contractual language privi-
leged it to make the disputed change without further bar-
gaining. In such cases, we shall evaluate the merits of the
allegation by applying contract coverage.
Although arbitrators and courts remain the “primary
sources of contract interpretation,” Postal Service, 8 F.3d
at 837, the Board will assess the merits of this defense by
undertaking the more limited review necessary to deter-
mine whether the parties’ collective-bargaining agreement
covers the disputed unilateral change (or covered it, if the
disputed change was made during the term of an agree-
ment that has since expired). In doing so, the Board will
give effect to the plain meaning of the relevant contractual
language, applying ordinary principles of contract inter-
pretation; and the Board will find that the agreement co-
vers the challenged unilateral act if the act falls within the
compass or scope of contract language that grants the em-
ployer the right to act unilaterally. In applying this stand-
ard, the Board will be cognizant of the fact that “a collec-
tive bargaining agreement establishes principles to govern
a myriad of fact patterns,” and that “bargaining parties
[cannot] anticipate every hypothetical grievance and . . .
address it in their contract.” Postal Service, 8 F.3d at 838.
Accordingly, we will not require that the agreement spe-
cifically mention, refer to or address the employer deci-
sion at issue. See Wilkes-Barre Hospital, 857 F.3d at 377.
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 Section 8(a)(5).
authorize the employer to unilaterally change the compensation of a
group of employees from an hourly wage to production-based pay) (em-
phasis added), enf. denied 351 F.2d 224 (9th Cir. 1965), reversed 385
U.S. 421 (1967).
28 Accordingly, we overrule Provena, supra, and other prior decisions
to the extent inconsistent with this decision.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
If an agreement does not cover a disputed unilateral
change, the Board will next consider whether the union
waived its right to bargain over the change. In such cases,
the Board will ascertain whether the union “surrender[ed]
the opportunity to create a set of contractual rules that bind
the employer, and instead cede[d] full discretion to the
employer on that matter.” Wilkes-Barre, 857 F.3d at 377
(citations omitted). Under those circumstances, the
waiver must be “clear and unmistakable.” Honeywell In-
ternational v. NLRB, 253 F.3d 125, 133 (D.C. Cir. 2001).
Accordingly, if the contract coverage standard is not met,
the Board will continue to apply its traditional waiver
analysis to determine whether some combination of con-
tractual language, bargaining history, and past practice es-
tablishes that the union waived its right to bargain regard-
ing a challenged unilateral change. See Omaha World-
Herald, 357 NLRB 1870, 1871 (2011); American Dia-
mond Tool, 306 NLRB at 570.
6. Retroactive application of the contract coverage test
Finally, we find it appropriate to apply the contract cov-
erage test retroactively. The Board’s “usual practice is to
apply new policies and standards retroactively ‘to all
pending cases in whatever stage.”’ SNE Enterprises, 344
NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture
Co., 121 NLRB 995, 1006–1007 (1958)). The Supreme
Court has instructed that in determining whether to apply
a change in law retroactively, the Board must balance any
ill effects of retroactivity against “‘the mischief of produc-
ing a result which is contrary to a statutory design or to
legal and equitable principles.’” Id. (quoting Securities &
Exchange Commission v. Chenery Corp., 332 U.S. 194,
203 (1947)). In other words, the Board will apply a new
rule “to the parties in the case in which the new rule is
announced and to parties in other cases pending at the time
so long as [retroactivity] does not work a manifest injus-
tice.” Id. (internal quotations omitted). In determining
whether retroactive application will work a manifest

29 The dissent opposes retroactive application, but we are not per-
suaded by her arguments. In addition to the reasons articulated above,
we note that the Board applied its decision in Deklewa retroactively,
which worked a far more extensive change than our decision to apply
contract coverage retroactively here; and retroactive application in
Deklewa was upheld on review by the court of appeals. See John
Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom. Intern. Assn.
of Bridge, Structural & Ornamental Iron Workers, Local 3 v. NLRB, 843
F.2d 770 (3d Cir. 1988). Among other things, Deklewa made Sec. 8(f)
collective-bargaining agreements binding and enforceable for the dura-
tion of their term, whereas under pre-Deklewa precedent, an 8(f) agree-
ment “[could] be repudiated by either party, at any time, for any reason,
and it [could] not be enforced through Section 8(a)(5) or Section
8(b)(3).” Id. at 1378. Here, in contrast, retroactivity does not bind par-
ties to agreements they previously could have repudiated; it simply holds
parties to the terms of agreements to which they are indisputably bound.
injustice, the Board considers the reliance of the parties on
preexisting law, the effect of retroactivity on accomplish-
ment of the purposes of the Act, and any particular injus-
tice arising from retroactive application. Id.
After considering these factors, we find that applying
the instant decision retroactively would not work a mani-
fest injustice. Reliance interests are exceptionally weak
here. By the time the Respondent recognized the Union
(2013) and the parties entered into their collective-bar-
gaining agreement (2015), the clear and unmistakable
waiver standard had been subjected to sustained judicial
criticism for more than 20 years, including by the D.C.
Circuit, which has plenary jurisdiction to review—and re-
fuse to enforce—Board decisions. Accordingly, the par-
ties could not have justifiably relied on the Board contin-
uing to adhere to that standard, nor could the parties in any
pending case. Moreover, for the reasons already ex-
plained herein at length, the contract coverage standard
better promotes the purposes and policies of the Act than
does the clear and unmistakable waiver standard. In par-
ticular, applying contract coverage retroactively will ac-
complish the purposes of the Act by promptly ending the
Board’s practice, under clear and unmistakable waiver, of
selectively refusing to give effect to contract provisions
that grant employers a right to act unilaterally and in this
way sitting in judgment on those contract terms, contrary
to Supreme Court precedent interpreting Section 8(d) of
the Act. Finally, we do not believe that retroactive appli-
cation would give rise to any particular injustice in this or
other pending cases. To the extent unions may have relied
on the clear and unmistakable waiver standard to ensure
they would have further opportunities to bargain and thus
to discount the importance of negotiating management-
rights language, such reliance was unjustified, as we have
explained. For these reasons, we will follow the Board’s
usual practice and apply the contract coverage test retro-
actively to all pending cases in whatever stage.29
The dissent cites several cases for the proposition that “[t]he Board
has not hesitated . . . to apply new rules only prospectively, when cir-
cumstances warrant.” In all but one of those cases, however, retroactive
application either certainly or probably would have resulted in a finding
that the employer was guilty of committing an unfair labor practice for
action that was lawful at the time it was taken. See Total Security Man-
agement Illinois 1, LLC, 364 NLRB No. 106 (2016) (retroactive applica-
tion of new rule requiring employers to bargain with newly elected un-
ions before imposing discipline would have put employer in violation of
Sec. 8(a)(5), where at the time the employer discharged three employees,
applicable precedent—Fresno Bee, 337 NLRB 1161 (2002)—did not re-
quire pre-discharge bargaining); Loomis Armored US, Inc., 364 NLRB
No. 23 (2016) (retroactive application of new rule barring withdrawal of
recognition from a mixed-guard union at CBA expiration would have put
employer in violation of Sec. 8(a)(5) for action lawful at the time under
32-year-old precedent); Lincoln Lutheran of Racine, 362 NLRB 1655
(2015) (retroactive application of new rule barring discontinuation of
MV TRANSPORTATION, INC. 13
7. Response to dissent
Our dissenting colleague criticizes the contract cover-
age standard and our decision to adopt it in this case. Tak-
ing aim at management-rights clauses, she asserts that “[a]
statute intended to encourage collective bargaining as a
way to avoid labor disputes necessarily must disfavor uni-
lateral employer action.” She minimizes judicial hostility
to the clear and unmistakable waiver standard and con-
tends that the Board should refuse to acquiesce to the
many decisions rejecting it. The dissent also believes that
adopting contract coverage will destabilize collective bar-
gaining and promote industrial strife. We reject these crit-
icisms for the reasons stated above and those set forth be-
low.30
As an initial matter, the contract coverage standard does
not favor and will not encourage unilateral employer ac-
tion, as our dissenting colleague suggests. Rather, it will
give parties the benefit of their bargain based on the terms
they agreed to and included in their collective-bargaining
agreement.31 This is the best way to promote stability in
collective bargaining and industrial peace.32
Notably, the hostility expressed by the dissent towards
unilateral action based on management-rights clauses is
not new. Years ago, the Board attempted to prohibit em-
ployers from bargaining over management-rights clauses

dues checkoff after CBA expires would have put employer in violation
of Sec. 8(a)(5) for action lawful at the time under 53-year-old precedent);
Levitz Furniture, 333 NLRB 717 (2001) (retroactive application of new
rule requiring actual loss of majority status at time recognition is with-
drawn probably would have put employer in violation of Sec. 8(a)(5) for
withdrawal of recognition lawful at the time under 50-year-old prece-
dent). In the remaining case the dissent cites, retroactive application
would have deprived the employer of the benefit of a favorable arbitral
award to which the Board would have deferred under the standards ap-
plicable at the time of that award. See Babcock & Wilcox Construction,
361 NLRB 1127 (2014). Here, in contrast, retroactive application puts
no party in violation of the Act; it secures to the Respondent collectively
bargained rights of unilateral action; and it takes no rights from the Union
that it did not voluntarily agree to cede in collective bargaining.
Our colleague's position on retroactive application here is also diffi-
cult to reconcile with her position in BFI Newby Island Recyclery
(Browning-Ferris), 362 NLRB 1599 (2015), affd. in part and revd. in
part 911 F.3d 1195 (D.C. Cir. 2018), where she was part of a Board ma-
jority that radically transformed the joint-employer landscape—a well-
settled landscape long relied upon by American businesses in structuring
their contractual relationships—and applied its new standards retroac-
tively, with little comment other than that retroactive application is “[t]he
Board's established presumption in representation cases.” 362 NLRB at
1600. The change we make here is far less disruptive, considering that
every employer in the United States may turn to the D.C. Circuit from an
adverse Board decision, and therefore contract coverage has been woven
into the context of private-sector collective bargaining ever since that
court’s Postal Service decision in 1993.
30 As a preliminary matter, we reject our colleague’s oft-repeated
charge that we wrongfully overrule precedent here without public notice
and an invitation to file briefs. We find it unnecessary to solicit addi-
tional input in light of the fact that the relevant arguments have been
on the premise that “bargaining for a clause under which
management retains initial responsibility for . . . a ‘condi-
tion of employment,’ for the duration of the contract is an
unfair labor practice because it is ‘in derogation of’ em-
ployees’ statutory rights to bargain collectively as to con-
ditions of employment.” NLRB v. American National In-
surance Co., 343 U.S. at 407–408. The Supreme Court
rejected this premise, holding instead that
[w]hether a contract should contain a clause fixing
standards for such matters as work scheduling or should
provide for more flexible treatment of such matters is an
issue for determination across the bargaining table, not
by the Board. If the latter approach is agreed upon, the
extent of union and management participation in the ad-
ministration of such matters is itself a condition of em-
ployment to be settled by bargaining.
Id. at 409. Rather than view with disfavor unilateral em-
ployer action pursuant to a management-rights clause all par-
ties have agreed to, as our colleague does, we agree with the
Supreme Court that the extent of the parties’ participation in
such matters is “to be settled by bargaining.” This, of course,
is precisely what the contract coverage standard promotes.
We agree with the dissent that the Board is not required
to acquiesce in adverse decisions of the circuit courts.
repeatedly and forcefully articulated. Moreover, the Board has fre-
quently overruled or modified precedent without supplemental briefing,
including in decisions in which our colleague participated when she was
in the majority. See, e.g., E.I. Du Pont de Nemours, 364 NLRB No. 113
(2016) (overruling 12-year-old precedent in Courier-Journal, 342 NLRB
1093 (2004), and 52-year-old precedent in Shell Oil Co., 149 NLRB 283
(1964), without inviting briefing); Graymont PA, Inc., 364 NLRB No.
37 (2016) (overruling 9-year-old precedent in Raley’s Supermarkets &
Drug Centers, 349 NLRB 26 (2007), without inviting briefing); Loomis
Armored U.S., Inc., 364 NLRB No. 23 (2016) (overruling 32-year-old
precedent in Wells Fargo Corp., 270 NLRB 787 (1984), without inviting
briefing); Lincoln Lutheran of Racine, 362 NLRB 1655 (2015) (overrul-
ing 53-year-old precedent in Bethlehem Steel, 136 NLRB 1500 (1962),
without inviting briefing); Pressroom Cleaners, 361 NLRB 643 (2014)
(overruling 8-year-old precedent in Planned Building Services, 347
NLRB 670 (2006), without inviting briefing); and Fresh & Easy Neigh-
borhood Market, Inc., 361 NLRB 151 (2014) (overruling 10-year-old
precedent in Holling Press, 343 NLRB 301 (2004), without inviting
briefing). Our colleague offers post hoc justification in each of the cited
cases for not inviting briefing, but that is beside the point. As stated
above, the Board had no legal obligation to justify the failure to invite
briefing in those or any of the many other cases over the decades in which
it has overruled precedent without amicus briefing.
31 See generally Sec. 8(d).
32 As the D.C. Circuit observed, once an agreement has been reached,
applying the clear and unmistakable waiver standard to require further
bargaining “out of purported concern for the preservation of ‘statutory
rights’” actually “undermin[es] the stability of the very collective bar-
gaining process those rights exist to nourish” because it “guards the
building blocks of collective bargaining at the expense of the edifice it-
self.” IRS v. FLRA, 963 F.2d at 440.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
See, e.g., D.L. Baker, Inc., 351 NLRB 515, 529 fn. 42
(2007) (“The Board generally applies its ‘nonacquies-
cence policy’ . . . and instructs its administrative law
judges to follow Board precedent, not court of appeals
precedent, unless overruled by the United States Supreme
Court.”). We are not, however, simply acquiescing to the
position of those federal appellate courts that have chosen
to adopt the contract coverage standard. Rather, for all the
reasons articulated above, we agree with those courts that
a change in Board law is warranted because the contract
coverage standard is more consistent with the purposes of
the Act. We have explained why this is so.
The dissent disagrees with our reasoning, but her claim
that we have failed to engage in reasoned decisionmaking
is simply wrong. See NLRB v. Curtin Matheson Scientific,
Inc., 494 U.S. 775, 787 (1990) (“[A] Board rule is entitled
to deference even if it represents a departure from the
Board’s prior policy” as long as it is “rational and con-
sistent with the Act.”); Auto Workers Local 1384 v. NLRB,
756 F.2d 482, 492 (7th Cir. 1985) (observing that the
Board “is free to change its mind on matters of law that
are within its competence to determine, provided it gives
a reasoned analysis in support of the change”). Inasmuch
as our fully explained reasons for a change from prior pol-
icy are consistent with and based upon the views of at least
four circuit courts of appeals, we are comfortable in the
belief that the change is rational and consistent with the
Act. Our colleague’s contrary view is apparently that
there can only be one rational and consistent interpretation
of the Act, even when its terms are ambiguous with respect
to the issue presented. Obviously, we disagree.
Notably, our dissenting colleague also looks to the
courts of appeals to support her position—but in so doing,
she overstates judicial support for the clear and unmistak-
able waiver standard by portraying deference as full-
throated endorsement.33 These courts, like the Supreme
Court in C & C Plywood, merely acknowledge the narrow
scope of their review of Board policies they find rational.
See, e.g., Tocco Division of Park-Ohio Industries v.

33 Disputing this proposition, the dissent suggests that several courts
of appeals have held that Supreme Court precedent “forecloses applica-
tion of a less stringent standard,” i.e., contract coverage. A sampling of
cases she cites from various circuits reveals that those courts were not
addressing the question of “contract coverage” versus “clear and unmis-
takable waiver,” and in some cases were not even dealing with the right
to bargain at all. See Furniture Rentors of America, Inc. v. NLRB, 36
F.3d 1240, 1245 (3d Cir. 1994) (addressing whether management-rights
clause survived expiration of the collective-bargaining agreement); East
Tennessee Baptist Hospital v. NLRB, 6 F.3d 1139, 1144–1145 (6th Cir.
1993) (addressing whether hospital had waived its right to restrict access
to confidential information concerning nonunit employees); Carpenters
Local 2848 v. NLRB, 891 F.2d 1160, 1163–1164 (5th Cir. 1990) (ad-
dressing whether union waived its right to enforce the terms of a pension
plan through the grievance procedure); NLRB v. Scherr, 883 F.2d 69 (4th
NLRB, 702 F.2d 624, 627 (6th Cir. 1983) (waiver standard
is “reasonably defensible”); Local Joint Executive Board
of Las Vegas v. NLRB, 540 F.3d 1072, 1078 (9th Cir.
2008) (the court will defer to the Board where its rules are
rational). For example, our colleague emphasizes that the
Ninth Circuit, where this case arises, has “not adopted the
‘contract coverage’ standard.” Local Joint Executive
Board of Las Vegas v. NLRB, 540 F.3d at 1080 fn. 11. In
Local Joint Executive Board, however, the Ninth Circuit
merely deferred to the Board’s continued adherence to the
waiver standard, noting that neither party had suggested it
should adopt contract coverage. Id. Here, a party has re-
quested that we do so. And one court that has continued
to apply the clear and unmistakable waiver standard after
the D.C. Circuit’s decision in Postal Service criticized the
Board’s tendency to apply that standard in a way that “ex-
alts form over substance by suggesting that collective bar-
gaining agreements must catalog every possible permuta-
tion” of a right contractually entrusted to management in
order to effect a clear and unmistakable bargaining waiver.
See Uforma/Shelby Business Forms, Inc. v. NLRB, 111
F.3d 1284, 1290 (6th Cir. 1997). In sum, three courts have
expressly adopted the contract coverage standard; one
court has made it the first step in a two-step standard that
resembles the standard we adopt today; and a fifth court,
while adhering to the clear and unmistakable waiver
standard, has criticized the Board for applying it in an ex-
cessively narrow and exacting manner. This criticism
suggests the possibility of retaining the waiver standard
and revising the way it is applied. Unfortunately, that op-
tion must be rejected. As case after case has demon-
strated, and as our colleague’s dissenting opinion in this
case confirms, in the Board’s hands the clear and unmis-
takable waiver standard cannot be separated from a deep-
seated and indeed principled hostility to management-
rights language.34 Therefore the standard itself must be
abandoned if collectively bargained and agreed-upon lan-
guage is to be enforced as written and not emptied of
meaning.35
Cir. 1989) (per curiam) (addressing whether union waived its right under
Sec. 9(a) to be present at adjustment of grievances). Moreover, the point
is not whether contract coverage is “less stringent” than clear and unmis-
takable waiver. The point is that to ask whether the union has waived
bargaining is to ask the wrong question when the parties have already
bargained and reached an agreement, and the issue is whether the lan-
guage of that agreement covers a disputed unilateral change.
34 As our colleague states, “[a] statute intended to encourage collective
bargaining as a way to avoid labor disputes necessarily must disfavor
unilateral employer action.”
35 Our colleague notes that prior to its decision in Postal Service, the
D.C. Circuit applied the clear and unmistakable waiver standard “to sit-
uations in which contract terms arguably affected the parties’ obligations
under [S]ection 8(a)(5).” Road Sprinkler Fitters Local 669 v. NLRB,
600 F.2d 918, 922 (D.C. Cir. 1979). Our colleague faults the D.C. Circuit
MV TRANSPORTATION, INC. 15
Finally, we reject our colleague’s dire prediction that
this decision, in tandem with Raytheon Network Centric
Systems, 365 NLRB No. 161 (2017), will destabilize col-
lective bargaining because unions will decide that they are
simply better off without a collective-bargaining agree-
ment.36 A moment’s reflection shows the improbability of
that prediction coming to pass. For starters, union-secu-
rity arrangements are statutorily required to be contrac-
tual;37 dues, as our colleague herself has said, are unions’
“financial lifeline”;38 and no employer would enter into a
naked union-security agreement that was not part of a
broader collective-bargaining agreement. Additionally,
many employee benefits, such as pension, health and wel-
fare, vacation, and training are paid through employer
contributions to union funds, and those contributions must
commence with a written agreement in order to be law-
ful.39 Moreover, it is difficult to imagine how a union
could organize employees without holding out the pro-
spect of contractual wages, contractual benefits, and a
contractual mechanism for resolving workers’ grievances.
Absent a collective-bargaining agreement containing a
grievance-arbitration provision, the only way to resolve
workers’ complaints (when bargaining fails to secure a
satisfactory outcome) is through direct economic action,
and strikes raise the specter of replacement, possibly per-
manent replacement.
Given these realities, no rational union would forswear
the goal of obtaining a collective-bargaining agreement,
and no reasonable workers would vote for a union that did.
It may turn out that as a result of our decision, unions will
bargain harder over management-rights clauses, and bar-
gaining parties may be forced to state their agreement in
such clauses more clearly. But that is precisely where the

for its “unexplained about-face” in Postal Service, criticizes the court’s
“inconsistency,” and questions whether, under the court’s law-of-the-cir-
cuit standard, Postal Service properly overruled the court’s earlier appli-
cation of the waiver standard.
These musings are all beside the point, since contract coverage is
“firmly established as the law of the District of Columbia Circuit,” as the
dissent concedes. That court has expressed no concerns about the doc-
trine’s antecedents, which are in any event much firmer than the dissent
acknowledges. Prior to Postal Service, the D.C. Circuit had yet to con-
sider the merits of the Board’s waiver standard. Rather, that court, like
others, simply deferred to the Board’s application of that standard. See
International Union, UAW v. NLRB, 381 F.2d 265, 267 (D.C. Cir. 1967)
(applying the waiver standard and explaining that “[t]he Board has said
that a union will not be held to have waived a statutory right unless the
waiver is ‘clear and unmistakable’”), cert. denied 389 U.S. 857 (1967).
When it examined the issue, however, the court in Postal Service con-
cluded otherwise and provided a convincing explanation for its adoption
of the contract coverage standard, and it has consistently applied that
standard ever since. See, e.g., Regal Cinemas, Inc. v. NLRB, 317 F.3d at
300; Heartland Plymouth v. NLRB, 650 Fed.Appx. 11 (D.C. Cir. 2016).
Accordingly, although the court did not explicitly overrule Road Sprin-
kler Fitters, it is undisputed that the court has squarely held that waiver
is irrelevant where the disputed change is within the compass or scope of
scope of a union’s continuing right to bargain during the
term of a collective-bargaining agreement should be re-
solved: in collective bargaining, not by application of a
waiver standard to negate contractual language to which
the parties voluntarily agreed. In sum, we believe that
contract coverage better supports labor relations stability
by encouraging employers and unions to foresee potential
issues and resolve them through comprehensive collec-
tive-bargaining agreements.
8. Application of the contract coverage test to the unilat-
eral-change allegations
The Respondent argues that the following contractual
provisions granted it the right to implement the five new
and revised policies put at issue by the unilateral-change
allegations of the complaint.
Section 5 of the Agreement, “Management Rights,”
provided, in relevant part, as follows:
5.1 Management Rights
Except to the extent expressly abridged by a provision
of this Agreement, the Company reserves and retains,
solely and exclusively, all of its rights to manage its busi-
ness. Among those rights, and by no means a wholly
inclusive list, is the right to determine staffing size, to
decide and assign all schedules, work hours, work shifts,
machines, tools, equipment and property to be used to
increase efficiency; to hire, promote, assign, transfer, de-
mote, discipline and discharge for just cause; and to
adopt and enforce reasonable work rules.
. . .
contractual language that grants the employer the right to act unilaterally,
and we agree with the court’s rationale.
36 In Raytheon, the Board held that a past practice continues as a term
and condition of employment after the expiration of a collective-bargain-
ing agreement, even if that past practice developed pursuant to a “man-
agement-rights clause authorizing unilateral action.” Id., slip op. at 16.
Our colleague asserts that employers will now “be free to change em-
ployees’ terms and conditions of employment at will during the term of
the agreement and after, [and] the duty to bargain created by the National
Labor Relations Act will effectively be set aside.” That charge is base-
less. First, nothing in our decision today permits employers to change
employees’ terms and conditions “at will.” Second, as explained at
length in that decision, Raytheon merely ensures that terms and condi-
tions of employment created by past practice during the life of the con-
tract are maintained after the contract expires, along with other status quo
terms and conditions of employment. See id., slip op. at 11. Neither
Raytheon nor this decision speaks to the status of contract provisions au-
thorizing unilateral employer action after the contract containing the pro-
visions has expired.
37 See NLRA Sec. 8(a)(3).
38 Lincoln Lutheran of Racine, 362 NLRB at 1657.
39 See Labor Management Relations Act Sec. 302(c)(5), (6).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5.4 The Company shall have the right to issue, amend
and revise policies, rules and regulations and the issu-
ance, amending or revision of such policies, rules and
regulations shall not violate the terms of this Agreement.
The Company will obtain input from the Union prior to
implementation of policy, rules and regulations.
Such revisions and amendments will be given to the Un-
ion not less than ten (10) business days prior to the in-
tended implementation date and posted to the employees
not less than seven (7) calendar days prior to the in-
tended implementation date. These timeframes will be
followed unless shorter notice is given by the client for
implementation.
Section 14 of the Agreement, “Discipline and Discharge
Procedures,” included a provision on Work Rules provid-
ing, in relevant part, as follows:
14.5 Work Rules
The Company shall have the right to issue, amend and
revise policies, rules, and regulations and the issuance,
amending or revision of such policies, rules and regula-
tions shall not violate the terms of this Agreement. Any
Company rule, policy, or regulation that conflicts with
the CBA - the terms of the CBA shall prevail. The Com-
pany may obtain input from the Union prior to imple-
mentation of policy, rules and regulations.
The Company at least twenty (20) business days prior to
the implementation of said rule, regulation or addendum
will copy each employee and the Union of any changes
to policies, rules and regulations. The twenty (20) day
time limit is waived when safety concerns demand im-
mediate address.
Disputes in relation to rules, regulations, and policies
may be subject to the grievance and arbitration process
should they violate the Collective Bargaining Agree-
ment.
For the reasons explained below, we find that each of
the changes at issue here falls within the compass or scope

40 Each of the new or revised policies was effective March 26, 2016.
Unless otherwise stated, because we find that the Respondent’s new and
revised policies were covered by the Agreement, we do not reach the
Respondent’s additional argument that it did not violate Sec. 8(a)(5) and
(1) because some of its new and revised policies did not result in mate-
rial, substantial, and significant changes in employees’ terms and condi-
tions of employment. In addition, as noted above, the Agreement re-
quired the Respondent to afford the Union opportunity to provide “input”
prior to the Respondent’s implementation of policies, rules and regula-
tions. The General Counsel does not allege that the Respondent failed to
honor this requirement.
of language in the Agreement that granted the Respondent
the right to act unilaterally. Accordingly, the Agreement
covered each of the Respondent’s unilateral changes, and
the Respondent did not violate Section 8(a)(5) and (1) as
alleged.40
a. Procedure No. O-25: Acceptable Assignments for
Employees on Temporary Modified Work Status
(“Light Duty Policy”)
The Respondent has maintained this policy since Janu-
ary 2014, the purpose of which is to “ensure that an em-
ployee in a temporary modified work status is given a pro-
ductive [light duty] assignment that is within any physical
restrictions the employee may have.” In March 2016, the
Respondent revised this policy by adding the following
additional task to a list of suggested assignments for em-
ployees on light duty: “Update MSDS binders for Mainte-
nance department(s) (Report to QA Manager).”41
We find that the Respondent’s addition of this sug-
gested light duty assignment was covered by section 5.1
of the Agreement. Section 5.1 relevantly granted the Re-
spondent the “sole[] and exclusive[]” right “to manage its
business,” including the right to “assign all schedules,
work hours, work shifts” and “to . . . assign” employees.
The Respondent’s addition of MSDS binder work as a
suggested light duty assignment involved the assignment
of employees—i.e., employees on temporary modified
work status could now be assigned to update MSDS bind-
ers. The revision of the Light Duty Policy was within the
compass or scope of language that granted the Respondent
the right to act unilaterally. Accordingly, the Agreement
authorized the Respondent to unilaterally revise the Light
Duty Policy to add an additional suggested work assign-
ment for employees on temporary modified work status,
and the Respondent did not violate Section 8(a)(5) and (1)
as alleged.42
b. Procedure No. S-21: Safety Policy
The Respondent implemented this new policy in March
2016, the purpose of which was to “maintain a workplace
free of hazards and [to maintain] employees that exercise
safe practices . . . in their daily execution of job functions.
. . . [T]his Safety Policy shall cover areas that are not
41 Neither the record nor the parties’ briefing provides any further ex-
planation what this work entails.
42 Cf. Postal Service, 8 F.3d at 838 (finding that employer’s imple-
mentation of service reductions (reduced weekday retail hours, Saturday
closures, and adjustment of processing and collection hours) was “well
within the scope of” contract language granting the employer the “exclu-
sive right” to “transfer and assign employees . . . [t]o determine the meth-
ods, means, and personnel by which [its] operations are to be conducted
[and to] maintain the efficiency of the operations entrusted to it”).
MV TRANSPORTATION, INC. 17
addressed in the Accident/Incident Reporting Procedures
to ensure our employees will provide service to the public
in the safest manner possible.” This policy classifies var-
ious safety incidents into three categories (major, moder-
ate, and minor), provides a nonexclusive list of safety in-
cidents for each category, sets forth a disciplinary sched-
ule for each of the three categories,43 and grants the Re-
spondent the right to require retraining after an incident
and to impose additional discipline, up to and including
termination, for an employee’s failure to complete retrain-
ing.
The General Counsel contends that the Respondent vi-
olated Section 8(a)(5) and (1) by unilaterally “implement-
ing new safety standards, including reclassifying major,
moderate and minor safety incidents, under threat of dis-
cipline,” and by unilaterally adding “a retraining require-
ment, including discipline for a failure to complete the
training requirement.” We disagree. We find that the Re-
spondent’s unilateral implementation of this new policy
was covered by the Agreement.
Section 5.1 of the management-rights clause granted the
Respondent the “sole[] and exclusive[]” right to “disci-
pline and discharge for just cause[,] and to adopt and en-
force reasonable work rules.” Section 5.4 of the manage-
ment-rights clause provided that the Respondent “shall
have the right to issue, amend and revise policies, rules
and regulations” so long as such action does “not violate
the terms of this Agreement.”44 Read together, these pro-
visions demonstrate that the parties bargained and agreed
to vest in the Respondent the exclusive right to discipline
and discharge employees for just cause and to issue rea-
sonable new and revised work rules and policies. These
provisions evidence the parties’ intent to grant the Re-
spondent the exclusive right to establish reasonable poli-
cies related to employee discipline.
Section 14.5 of the Agreement confirms this interpreta-
tion. Section 14 addressed “Discipline and Discharge Pro-
cedures,” and section 14.5 granted the Respondent the
“right to issue, amend and revise policies, rules, and regu-
lations.” By granting the Respondent the right to issue
policies, and by doing so in the very section of the

43 The Safety Policy provides that employees involved in a “major”
incident “will be subject to discharge.” Employees involved in “moder-
ate” incidents receive (i) retraining and a 2-day suspension without pay
for a first violation, and (ii) discharge for a second violation in a rolling
18-month period. Employees involved in “minor” incidents are subject
to a progressive disciplinary schedule: verbal warning, written warning,
suspension with retraining, and written discharge.
44 The General Counsel does not allege that the Safety Policy or any
of the Respondent’s other disputed unilateral changes violated the terms
of the Agreement or were unreasonable.
45 The dissent reaches the same result with respect to the Schedule
Adherence Policy and the Security Sweep/Breach Policy, applying a
Agreement governing discipline and discharge proce-
dures, section 14.5 further demonstrated that the parties
agreed to grant the Respondent the right to issue the Safety
Policy at issue here, including the disciplinary conse-
quences of violating that policy. Put differently, the new
Safety Policy was within the compass or scope of sections
5.1, 5.4, and 14.5 of the Agreement, as explained above.
That none of those sections specifically referred to
“safety” standards or “retraining” as a type of discipline
does not “detract from the clarity of [the Agreement’s]
meaning.” Chicago Tribune, 974 F.2d at 937; see also id.
at 935–936 (contract language granting employer the “ex-
clusive right . . . to establish and enforce reasonable rules
and regulations relating to the operation of its facilities and
to employee conduct” gave employer “carte blanche to
impose rules relating to employee conduct,” including dis-
puted rule establishing employee alcohol and drug stand-
ards). Accordingly, we find that the Agreement author-
ized the Respondent to unilaterally implement its Safety
Policy, and the Respondent did not violate Section 8(a)(5)
and (1) as alleged.
Our dissenting colleague would find that the Respond-
ent’s unilateral implementation of the Safety Policy vio-
lated the Act under a clear and unmistakable waiver stand-
ard because the contract provisions did not specifically
waive the Union’s right to bargain about any disciplinary
policy imposed to implement any new safety rules validly
adopted.45 The position advanced by our colleague here
demonstrates the shortcomings of the clear and unmistak-
able waiver standard. The parties have negotiated an
agreement that the Respondent can unilaterally issue a
new policy or revise an existing policy, including a disci-
plinary policy, during the term of the contract.46 Yet the
clear and unmistakable waiver standard that our colleague
would apply effectively negates the Respondent’s bar-
gained-for unilateral rights by holding that the Respondent
could not act unilaterally unless there was a negotiated un-
derstanding of what specific disciplinary consequence
would ensue from a specific new policy, even if the policy
change was not contemplated when the parties negotiated
their agreement over a year earlier. Our colleague’s view
similar analysis. In all other respects, the dissent concurs in our disposi-
tion of the allegations in this case, albeit on different grounds in some
instances.
46 To repeat, the Respondent’s “right to issue, amend and revise poli-
cies, rules, and regulations” is specifically referenced in the section of
the Agreement dealing with discipline, in addition to a separate provision
regarding work rules in the section of the Agreement addressing man-
agement rights. The dissent unjustifiably fails to give any significance
to the fact that the parties specifically included this separate provision in
sec. 14 of their Agreement.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of the result compelled by the clear and unmistakable
waiver standard perfectly demonstrates why that standard
“is, in practice, impossible to meet.” Department of Navy
v. FLRA, supra, 962 F.2d at 59, and further justifies our
decision to abandon it.
c. Procedure No. O-26: Schedule Adherence Policy
The Respondent has maintained the Schedule Adher-
ence Policy since February 2014. The purpose of this pol-
icy is threefold: “to ensure that all coach operators are
performing their assigned schedules with maximum effi-
ciency,” “to help identify coach operators that are under
performing their scheduled work assignments,” and “to
ensure consistency and due process when issuing disci-
pline to coach operators for schedule adherence viola-
tions.”
Under a prior version of this policy, the “level of disci-
pline” issued to an employee for failing to adhere to an
assigned schedule was “based on the total number of vio-
lations committed by [the employee] in a rolling six (6)
month period,” and the progression of discipline was (1) a
“documented verbal” for a first violation, (2) a written
warning for a second violation, (3) a 1-day suspension for
a third violation, and (4) possible termination for a fourth
violation. In March 2016, the Respondent revised this pol-
icy to eliminate the 6-month rolling period and to provide
that a third violation results in a “written” suspension47 and
a fourth violation in a “written discharge” rather than pos-
sible termination. The General Counsel argues that the
Respondent’s failure to bargain over its “modification of
discipline for schedule non-adherence” violated Section
8(a)(5) and (1).
We find that the Respondent’s revisions to the Schedule
Adherence Policy were covered by the Agreement. For
the reasons discussed in connection with the Respondent’s
implementation of its Safety Policy, the Agreement estab-
lished that the parties bargained and agreed to vest in the
Respondent the right to discipline employees and to issue,
amend, and revise reasonable rules and policies related to
that right. The Respondent’s revisions to its Schedule Ad-
herence Policy—eliminating the rolling 6-month period
and modifying the prescribed discipline for third and
fourth violations of the policy—plainly fell within the
compass of these contractual rights. Moreover, Section
5.1 granted the Respondent the sole and exclusive right to
assign schedules and to adopt and enforce reasonable
work rules, and the Respondent’s revisions to the Sched-
ule Adherence Policy were also within the compass of
those rights: the stated purpose of the Schedule

47 Other than the fact that it is written, the record does not establish
whether a “written” suspension materially differs from the prior “one-
day” suspension.
Adherence Policy is to ensure employees perform “their
assigned schedules,” and no party contends that the Re-
spondent’s revisions to that policy were unreasonable.
Accordingly, we find that the Respondent did not violate
Section 8(a)(5) and (1) as alleged.
d. Procedure No. S-20: Security Sweep/Breach Policy
This policy, newly implemented in March 2016, re-
quires employees “to complete a security sweep of the
coach at the end of each . . . route and before coming back
to the [Respondent’s] facility.” It specifies the tasks a se-
curity sweep includes and establishes a progressive disci-
plinary matrix for failures to complete a security sweep
(verbal warning, written warning, written suspension,
written discharge). The policy also establishes a more
stringent disciplinary progression (2-day unpaid suspen-
sion, discharge) for security breaches, defined as “serious
infraction[s] that compromise[] the security of the prop-
erty and the safety of everyone that works at the . . . facil-
ity.” The General Counsel argues that the Respondent’s
failure to bargain over its implementation of this new pol-
icy violated Section 8(a)(5) and (1) because it involved a
“new work assignment . . . under penalty of discipline.”
For the reasons explained above, we find that the Re-
spondent’s implementation of its Security Sweep/Breach
Policy was covered by the Agreement. The Agreement
granted the Respondent the right to assign employees, to
discipline employees, and to issue reasonable rules and
policies related to employee discipline. The Security
Sweep/Breach Policy, in the General Counsel’s own
words, involves those very matters: a new work assign-
ment under penalty of discipline. Accordingly, the Re-
spondent did not violate Section 8(a)(5) and (1) when it
implemented this policy unilaterally.
e. Procedure No. S-19: DriveCam Policy
The purpose of the DriveCam Policy is to “provide a
standard to remediate improper driver behaviors while op-
erating [the Respondent’s] vehicles . . . [including] to pro-
actively identify unsafe behaviors and improve them
through coaching, retraining, and if necessary, discipli-
nary measures in accordance with the . . . Collective Bar-
gaining Agreement.” The policy defines DriveCam as an
“event recorder used to identify unsafe behavior that can
lead to an accident, in order to correct those behavior pat-
terns.” Under this policy, “[a]ll DriveCam events will be
reviewed and evaluated for compliance with the com-
pany’s policies and defensive driving standards. Drivers
found acting in an improper and/or unsafe manner shall be
coached towards behavior improvement and if necessary
MV TRANSPORTATION, INC. 19
retrained and/or disciplined.” The policy further provides
that the “heart of the DriveCam program is the counseling
and retraining process.”
A prior version of this policy included a section titled
“Remedial actions.” This section explained that “[r]eme-
dial actions for improper behaviors identified via the
DriveCam event record shall, generally, be progressive in
nature and based on the ‘Event Score Risk,’ taking in[to]
account both the individual event score and the cumulative
score earned by the driver for a specified period of time.”
Remedial action for “Individual Events” where employees
had an “event risk score” of 9 or more included “Refresher
Training.” Remedial action for a “Rolling 30 day period”
where employees had an “event risk score” of 24 or more
also included “Refresher Training.”
In March 2016, the Respondent replaced the “Remedial
actions” section of the DriveCam Policy with one titled
“Remedial/Disciplinary actions.”48 The General Counsel
contends that this new section “create[s] a new require-
ment that employees complete re-training,” and that by
“creating a new requirement that employees complete re-
training, [the] Respondent made a unilateral change re-
garding a mandatory subject of bargaining and thereby vi-
olated Section 8(a)(5) and (1) of the Act.”49
We do not find a violation as alleged because the Gen-
eral Counsel has failed to establish that the Respondent’s
March 2016 revisions constituted a material, substantial,
and significant change in employees’ terms and conditions
of employment. Although the General Counsel claims
that the revisions created “a new requirement that employ-
ees complete re-training,” the Respondent’s existing pol-
icy already required retraining—i.e., “refresher train-
ing”—for improper or unsafe driving. Moreover, the Re-
spondent’s 2016 revisions left unchanged that the Re-
spondent will rely on DriveCam footage to determine

48 This new section provides as follows:
1. Retraining for Improper behaviors identified via the DriveCam event
recorder shall be based on: event risk score (9 points or more), repeated
unsafe behaviors in a 30-day period, and unsafe behaviors that lead to
a near avoidable collision.
2. Follow up trail check by a road supervisor 1 to 2 weeks from event
retraining to ensure the unsafe behavior has been corrected.
3. If the unsafe behavior identified by the DriveCam event recorder has
not been corrected, progressive discipline will follow.
4. Disregard of traffic laws (i.e. running a red light/stop sign, exceeding
the speed limit, and driving on the roadway without a seat belt), will
move directly to progressive discipline. Use of cellular device while
operating a motor vehicle will be addressed in the MV's cellular device
policy.
49 In the Background section of his brief, the General Counsel states
that this new section modified the prior one by “provid[ing] for retraining
and discipline.” The General Counsel’s theory of a violation, however,
solely concerns retraining.
whether employees should be “retrained and/or disci-
plined,” and those revisions also left unchanged the
“heart” of the policy, “counseling and retraining.” Con-
trary to the General Counsel, these unchanged provisions
establish that the Respondent has always required employ-
ees to complete re-training should DriveCam footage re-
veal they have engaged in improper or unsafe driving.
More specifically, the prior version required “Refresher
Training” for (i) employees whose individual infractions
resulted in a risk score of 9 or more, and (ii) employees
whose cumulative infractions, during a rolling 30-day pe-
riod, added up to a risk score of 24 or more. Contrary to
the General Counsel’s suggestion, the revised policy con-
tains virtually identical retraining requirements. The 2016
revisions cited by the General Counsel require “Retraining
for Improper behaviors identified via the DriveCam event
recorder” for “event risk score (9 points or more) [and]
repeated unsafe behaviors in a 30-day period.” The Gen-
eral Counsel has not explained how the revised language
materially differs from the prior language, and we per-
ceive no meaningful difference. For these reasons, we
find that the Respondent did not violate Section 8(a)(5)
and (1) as alleged.
Assuming arguendo the Respondent’s revisions were
material, substantial, and significant, we would still find
that the Respondent did not violate Section 8(a)(5) and (1).
Again, the Agreement granted the Respondent the right to
discipline employees and to issue reasonable rules and
policies related to employee discipline. The Respondent
exercised those very rights when it revised the training re-
quirements for improper or unsafe behavior revealed
through DriveCam footage, since those revisions involved
employee discipline and policies related to discipline. Ac-
cordingly, the revisions to the DriveCam Policy were cov-
ered by the Agreement.50
50 Although we need not reach whether the Union waived its right to
bargain over any of the Respondent’s new and revised work policies, we
note that language in the Agreement indicates that it did. Sec. 5.4 of the
management-rights clause stated that the Respondent would “obtain in-
put from the Union prior to implementation of policy, rules and regula-
tions” (emphasis added). Sec. 14.5 provided that the Respondent “may
obtain input from the Union prior to implementation of policy, rules and
regulations,” and 20 days before implementation, it must “copy each em-
ployee and the Union of any changes to policies, rules, and regulations”
(emphasis added). It is significant that the parties chose the phrase “ob-
tain input” rather than the word “negotiate” or “bargain” and simply re-
quired that the Respondent “copy” the Union—i.e., give the Union no-
tice—of any changes. Had the parties intended to preserve the Union’s
right to bargain over new or revised policies, rules, and regulations, they
would have used the term “negotiate,” as they did elsewhere in the
Agreement. Specifically, sec. 3, “Recognition,” provided that “[t]he
Company will notify the Union of any newly created job classifications
. . . and upon request of the Union the parties will negotiate in an effort
to reach agreement on the appropriate scope, duties, and the applicable
wage for the new job classification” (emphasis added). See Omaha
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Contract-Modification Allegations
The General Counsel alleges that five of the Respond-
ent’s new and revised policies modified the Agreement
within the meaning of Section 8(d), in violation of Section
8(a)(5) and (1). Section 8(d) provides, in relevant part,
that “where there is in effect a collective-bargaining con-
tract . . . no party to such contract shall terminate or modify
such contract.” As the Board has explained, unilateral-
change cases and contract-modification cases
are fundamentally different in terms of principle, possi-
ble defenses, and remedy. In terms of principle, the
“unilateral change” case does not require the General
Counsel to show the existence of a contract provision;
he need only show that there is an employment practice
concerning a mandatory bargaining subject, and that the
employer has made a significant change thereto without
bargaining. The allegation is a failure to bargain. In
the “contract modification” case, the General Counsel
must show a contractual provision, and that the em-
ployer has modified the provision. The allegation is a
failure to adhere to the contract. In terms of defenses, a
defense to a unilateral change can be that the union has
waived its right to bargain. A defense to the contract
modification can be that the union has consented to the
change. In terms of remedy, a remedy for a unilateral
change is to bargain; the remedy for a contract modifi-
cation is to honor the contract.
Bath Iron Works Corp., 345 NLRB 499, 501 (2005) (empha-
sis in original), affd. sub nom. Bath Marine Draftsmen’s
Assn. v. NLRB, 475 F.3d 14 (1st Cir. 2007). The Union here
did not consent to any of the alleged contract modifications.
To determine whether an employer has modified, i.e.,
failed to adhere to the contract, the Board applies the
“sound arguable basis” standard. Id. at 501–502. Under
that standard, if an employer has a “sound arguable basis
for its interpretation of the contract and is not motivated
by animus or . . . acting in bad faith,” the Board will not
find a violation. Id. at 502 (internal quotations omitted).
The employer’s interpretation need not be the only reason-
able interpretation in order to pass muster under the
“sound arguable basis” standard. If an employer has a
sound arguable basis for its interpretation and the General
Counsel also presents a reasonable interpretation of the
relevant contractual language, the Board will not seek to
determine which interpretation is correct. See NCR Corp.,
271 NLRB 1212, 1213 (1984). Under those

World-Herald, 357 NLRB at 1871 (parties’ use of the terms “discuss”
and “explain” instead of “bargain over,” used elsewhere in their agree-
ment, evinced waiver); Ingham Regional Medical Center, 342 NLRB
1259, 1262 (2004) (parties’ use of the term “discuss” instead of
circumstances, the employer will not have violated the
Act. See id.
1. Procedure No. O-21: Operator Fails to Log-in
to AMDT
This Respondent has maintained Procedure No. O-21
since January 2014. This policy is “designed to ensure
that all coach operators are logged in to the onboard
AMDT [Automated Manual Data Terminal] system and
that radio dispatchers are aware of how to monitor Orbital
and identify operators that are not logged in to the AMDT
system and report repeat offenders for possible discipli-
nary action.”51 The policy established a progressive dis-
cipline procedure based on a “rolling six (6) month pe-
riod”: (1) first incident–documented verbal, (2) second
incident–written warning, (3) third incident–1-day unpaid
suspension, and (4) fourth incident–possible termination.
In March 2016, the Respondent revised this policy in
three ways. First, it removed the word possible from the
phrase “possible disciplinary action.” The policy now
provides that it is “designed to ensure that all coach oper-
ators are logged in to the onboard AMDT system and that
radio dispatchers are aware of how to monitor Orbital and
identify operators that are not logged in to the AMDT sys-
tem and report repeat offenders for disciplinary action.”
Second, the Respondent eliminated the 6-month rolling
period. Third, it made the fourth and final step in the pro-
gressive disciplinary procedure “written discharge” rather
than “possible termination.”
The General Counsel contends that these revisions un-
lawfully modified the progressive discipline steps set forth
in section 14.1 of the Agreement. The Respondent argues
that it did not modify the Agreement because the Agree-
ment’s management-rights clause gave it the right to es-
tablish work rules and procedures related to discipline,
and it exercised that right in making these revisions.
We find that the Respondent had a sound arguable basis
for its interpretation of the Agreement. Contrary to the
General Counsel’s claim that the Respondent modified the
progressive discipline steps in section 14.1, the changes
the Respondent made to Procedure No. O-21 actually
aligned that policy with the contractual provision the Gen-
eral Counsel claims the Respondent modified. section
14.1 provided that the “normal steps of progressive disci-
pline are first, verbal warning; second, written warning;
third, written suspension; and fourth, written discharge,”
and section 14.1 did not establish any rolling period. The
Respondent’s original version of Procedure No. O-21
“bargain,” used elsewhere in the agreement, demonstrated waiver on un-
ion’s part).
51 The record does not reveal what “Orbital” is.
MV TRANSPORTATION, INC. 21
deviated from section 14.1. It included a 6-month rolling
period and “possible termination” at the fourth step. As
revised, Procedure No. O-21 omits the rolling period and
provides for “written discharge” at the fourth disciplinary
step, in conformity with section 14.1. In addition, as dis-
cussed above, sections 5 and 14.5 of the Agreement
granted the Respondent the right to revise policies related
to employee discipline, a right that it exercised when it re-
vised Procedure No. O-21. In short, the Respondent ad-
hered to the Agreement when it revised this policy, and we
therefore dismiss the allegation that it modified the Agree-
ment within the meaning of Section 8(d), in violation of
Section 8(a)(5) and (1).
2. Procedure No. A-38: Bereavement Pay
The Respondent implemented a new Bereavement Pay
policy in March 2016. This policy establishes a “Proce-
dure for Determining Bereavement Pay Eligibility,” under
which an employee “must be full-time and non-probation-
ary” to receive bereavement pay. The policy also requires
that employees submit an “Employee Absence Request”
form and, upon return from bereavement leave, provide
“proof of death” and “proof of relationship to deceased”
to receive bereavement pay.
The General Counsel contends that this policy unlaw-
fully modified section 10.12 of the Agreement, “Bereave-
ment Leave.” The General Counsel argues that this policy
departs from section 10.12 in two ways: (1) it limits be-
reavement pay to full-time, nonprobationary employees,
and (2) it implements new documentation procedures by
requiring employees to submit an “Employee Absence
Request” form and provide proof of death and proof of re-
lationship to a decedent.
The Respondent argues that it lawfully implemented
this policy because the Agreement did not guarantee em-
ployees “any specific right to bereavement pay and [left]
that issue to the discretion of the Company.” According
to the Respondent, it was entitled to establish procedures
for bereavement-pay requests under section 10.12 pursu-
ant to its rights under the Agreement’s management-rights
clause.
Section 10.12 provided as follows:
A full-time employee may be granted three (3) paid
workdays for bereavement days in the event of the death
of a member of their immediate family. For employees
needing to travel five-hundred (500) miles or more one
way, an additional two (2) paid work days as bereave-
ment days may be granted. (Normal days off are ex-
cluded.)
For purposes of this section, immediate family shall be
defined as spouse, domestic partner, mother, father,
legal guardian, brother, sister, child, step-child, current
mother-in-law or father-in-law, grandparent, grandchild,
step-parent, foster-child, foster-parent, and child's cur-
rent spouse. An additional two (2) days of unpaid be-
reavement leave will, upon request, be granted provided
that the request is made at either the commencement of
or during the paid bereavement leave and the two (2) ad-
ditional days directly follow the paid bereavement leave.
We find that the Respondent had a sound arguable basis
for interpreting the Agreement as giving it the right to im-
pose the bereavement-related documentation require-
ments. Section 10.12 stated that requests for bereavement
leave “may be granted.” Thus, section 10.12 arguably
gave the Respondent discretion to decide whether to grant
bereavement leave at all, which arguably included the
lesser discretion to determine the circumstances under
which such leave would be granted, including documen-
tation requirements. Section 10.12 also restricted be-
reavement leave to employees who have experienced “the
death of a member of their immediate family.” This lan-
guage arguably implied a right for the Respondent to re-
quire verification of this sad fact.
We find, however, that the Respondent lacked a sound
arguable basis for interpreting the Agreement as giving it
the authority to limit bereavement leave eligibility to full-
time, non-probationary employees. Section 10.12 explic-
itly provided that a “full-time employee” may receive paid
bereavement leave. The category of full-time employees
includes full-time probationary employees. Nothing in
section 10.12 limited eligibility for bereavement leave to
full-time nonprobationary employees. Accordingly, sec-
tion 10.12 cannot be colorably interpreted to permit the
Respondent to exclude full-time probationary employees
from bereavement leave. By doing so, the Respondent
failed to adhere to the Agreement.
Our finding in this regard is bolstered by other provi-
sions of the Agreement showing that the parties were fully
aware of the distinction between probationary and non-
probationary employees and knew how to limit certain
benefits solely to the latter. For example, section 10.2 of
the Agreement granted paid time off to “[p]ost probation-
ary employees.” Section 11.2 granted medical and work-
ers’ compensation leave to “[p]ost probationary employ-
ees.” Section 12.1 granted vacation time to “all employ-
ees” upon “completion of probation.” And section 23.1
granted medical, dental, and other benefits to “full-time,
post-probationary employees.” In light of these other sec-
tions of the Agreement, an interpretation of section 10.12
that would permit nonprobationary employees to be ex-
cluded sub silentio from eligibility for bereavement leave
cannot be reasonably maintained.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For all these reasons, we conclude that the Respondent
lacked a sound arguable basis to interpret the Agreement
as authorizing it to limit bereavement leave to full-time,
non-probationary employees. Accordingly, to this extent,
the Respondent unlawfully modified the terms of the
Agreement within the meaning of Section 8(d) in violation
of Section 8(a)(5).
3. Procedure No. A-44: CDL Reimbursement Policy
The Respondent implemented this new policy in March
2016, the purpose of which is to “provide detailed instruc-
tions for requesting and processing CDL [commercial
driver’s license] reimbursement requests per Section 26 of
the CBA.” This policy provides that an employee “must
be currently employed, active full-time and [in a] non-pro-
bationary status” to receive reimbursement. It requires
employees to submit a reimbursement request form and
provide documentation (a receipt and copy of the license)
to the Respondent’s payroll department “within two (2)
weeks of their one (1) year anniversary with the Company
to be eligible for payment.”
The General Counsel claims that these provisions are
inconsistent with section 26 of the Agreement, “Li-
censes.” Specifically, the General Counsel contends that
Procedure No. A-44 unlawfully modified section 26.1 in
three respects: (1) it limits reimbursement eligibility to
currently employed, active, full-time, and non-probation-
ary employees, rather than extending reimbursement eli-
gibility to all employees; (2) it requires employees to sub-
mit requests for reimbursement within 2 weeks of their 1-
year anniversary; and (3) it requires employees to submit
a specific form with supporting documentation to receive
reimbursement.
Section 26.1 of the Agreement provided that
[t]he cost of obtaining and renewing an employee's com-
mercial driver license (CDL) will be borne by the em-
ployee. Employees who work for the Company for one
(1) year will receive a one-time reimbursement for the
cost of their CDL in the pay period immediately follow-
ing the employee's first anniversary.
The Respondent argues it lawfully implemented the
CDL Reimbursement Policy because section 26.1 was “si-
lent as to the procedure for processing CDL reimburse-
ments,” and the policy “simply clarifies the reimburse-
ment process and does not place any restrictions on the
employees’ right to obtain reimbursement for the cost of
the CDL license.” The Respondent does not argue that the
management-rights clause granted it the right to imple-
ment this policy.
We find that the Respondent has failed to present a
sound arguable basis for its position that the Agreement
gave it the right to limit CDL reimbursement eligibility to
currently employed, active, full-time, and nonprobation-
ary employees. Section 26.1 explicitly provided that “em-
ployees” are eligible for CDL reimbursement. Except for
the requirement that employees must work for 1 year to
receive a one-time reimbursement, section 26.1 did not
limit employees’ eligibility to receive CDL reimburse-
ment. Accordingly, the Respondent failed to adhere to
section 26.1 when it implemented a policy that limited el-
igibility for CDL reimbursement to certain employees and
rendered other employees ineligible.
Moreover, as noted above in connection with the Re-
spondent’s Bereavement Pay policy, other provisions of
the Agreement showed that the parties were fully aware
that they could limit various benefits to certain categories
of employees when they wished to do so. In addition to
the examples discussed above, which limited certain ben-
efits to non-probationary employees and others to full-
time, nonprobationary employees, Section 29.6 of the
Agreement limited retroactive wage increases to “all ac-
tive employees.” These other sections of the Agreement
make it all the more apparent that section 26.1, which ex-
tended eligibility for CDL reimbursement to “employees”
generally, cannot reasonably be read to permit the Re-
spondent to limit eligibility for CDL reimbursement to
currently employed, active, full-time, nonprobationary
employees. Accordingly, we find that by doing so, the
Respondent unlawfully modified the Agreement.
We find, however, that the Respondent had a sound ar-
guable basis for interpreting the Agreement to permit it to
impose the timeframe and documentation requirements.
Section 26.1 provided that “the cost of obtaining and re-
newing [a CDL] will be borne by the employee,” but the
employee would receive a one-time reimbursement from
the Respondent “in the pay period immediately following
the employee’s first anniversary.” The provision to em-
ployees of the CDL reimbursement benefit reasonably im-
plied a right to require from employees a completed reim-
bursement request form (for recordkeeping purposes),
verification that a CDL has, in fact, been obtained or re-
newed, and proof of the amount of reimbursement the em-
ployee is claiming. Thus, we find that the Respondent had
a plausible contractual basis for requiring employees to
submit these documents. Moreover, the Respondent’s re-
quirement that employees submit this documentation
within 2 weeks of their anniversary date is consistent with
the agreed-upon timeline established in section 26.1,
which provided that employees would receive reimburse-
ment within 2 weeks of their 1-year anniversary.
4. Procedure No. O-40: Customer Service
When adopted in July 2015, the Customer Service pol-
icy established a five-step progressive discipline
MV TRANSPORTATION, INC. 23
procedure for “[v]alid customer complaints received
within a rolling twelve (12) month time frame”: (1) one
complaint–coaching, (2) two complaints–verbal counsel-
ing, (3) three complaints–written warning, (4) four com-
plaints–final written warning and 3-day suspension, and
(5) five complaints–termination. In March 2016, the Re-
spondent eliminated the 12-month rolling period and re-
vised the progressive discipline procedure to include six
steps: (1) one complaint–coaching, (2) two complaints–
coaching–Union will be notified, (3) three complaints–
verbal warning, (4) four complaints–written warning, (5)
five complaints–written suspension–2-day suspension,
and (6) six complaints–written discharge.
The General Counsel argues that the Respondent unlaw-
fully modified the Agreement by restructuring the pro-
gression of discipline established in the prior policy. The
Respondent argues that in revising the Customer Service
policy, it exercised its right, under section 14 of the Agree-
ment, to establish policies and procedures related to disci-
pline.
We find that the Respondent had a sound arguable basis
for its position that the Agreement authorized its revisions
of the Customer Service policy. As discussed in detail
above in connection with the Respondent’s Safety Policy
and other unilateral-change allegations involving em-
ployee discipline, sections 5 and 14 of the Agreement
granted the Respondent the right to issue reasonable poli-
cies related to disciplinary and discharge procedures. The
Respondent’s revisions of its Customer Service policy
plainly involve disciplinary and discharge procedures.
Accordingly, we find that the Respondent did not unlaw-
fully modify the Agreement by eliminating the Customer
Service policy’s 12-month rolling period and altering the
policy’s progressive discipline procedure.
5. Procedure No. O-41: Required Extra
Assignments Policy
The Respondent implemented this new policy in March
2016, the purpose of which is to “establish written policy
and procedures for Operators who require approval to
miss a required extra assignment as outlined in the CBA.”
For employees seeking to be excused from a required ex-
tra assignment, this policy requires that they complete a
“Required Extra Assignment Form,” provide a “detailed
explanation of why they are requesting to be excused from
their forced work assignment,” and “attach documentation
as needed, such as copies of proof of travel, medical pro-
cedures, etc.” Finally, this policy requires that employees
submit these materials to a manager “forty eight (48) hours
in advance of the forced work assignment.”
Pertinently, section 31.14 of the Agreement (referenced
in the Required Extra Assignments Policy) provided that
[i]n the event an Operator is issued a required extra as-
signment, such Operator will be excused from perform-
ing such work by demonstrating a need compelling
enough to be excused to an Operations Manager, prefer-
ably in advance.
The General Counsel argues that the Respondent’s pol-
icy unlawfully modified section 31.14 by (1) requiring
employees to complete the Required Extra Assignment
Form and the requisite detailed explanation and support-
ing documents when seeking to be excused from a re-
quired extra assignment, and (2) requiring employees to
submit those materials 48 hours in advance of a scheduled
extra assignment. The Respondent argues that these re-
quirements are consistent with section 31.14 because they
simply provide “a form for employees to complete to pro-
vide information related to the ‘compelling’ reason lan-
guage in section 31.14.”
We find that the Respondent had a sound arguable basis
for interpreting the Agreement to permit it to impose the
documentation requirements established in this policy.
Section 31.14 provided that an employee will be excused
from performing a required extra assignment only if he or
she can “demonstrat[e] a need compelling enough to be
excused.” Because this language placed a burden on em-
ployees to prove that their excusal requests were meritori-
ous, we find that the Respondent had a reasonable contrac-
tual basis for requiring employees to submit a form, a writ-
ten explanation, and supporting materials on the basis of
which the Respondent can judge the merits of such re-
quests.
We find, however, that the Respondent lacked a sound
arguable basis for imposing the requirement that employ-
ees submit these materials 48 hours in advance of a sched-
uled extra assignment. Section 31.14 required that an em-
ployee demonstrate a compelling need to be excused from
a required extra assignment, “preferably in advance.” The
Respondent’s policy requires that documentation of a
compelling need be submitted “forty-eight (48) hours in
advance of the forced work assignment.” The Agreement
is flexible as to when the compelling need is to be demon-
strated; the Required Extra Assignments Policy eliminates
this agreed-upon flexibility. Accordingly, in this regard,
we conclude that the Respondent unlawfully modified the
Agreement within the meaning of Section 8(d), in viola-
tion of Section 8(a)(5).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Amalgamated Transit Union Local #1637, AFL–
CIO, CLC is a labor organization within the meaning of
Section 2(5) of the Act.
3. By limiting bereavement leave eligibility to full-
time, nonprobationary employees; by limiting commer-
cial driver’s license reimbursement eligibility to currently
employed, active, full-time, and nonprobationary employ-
ees; and by requiring employees seeking to be excused
from performing a required extra assignment to submit
documentation 48 hours in advance of the forced work as-
signment, the Respondent modified the parties’ collective-
bargaining agreement without the Union’s consent within
the meaning of Section (8)(d) of the Act, in violation of
Section 8(a)(5) and (1) of the Act.
4. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that the
Respondent unlawfully modified the parties’ collective-
bargaining agreement without the Union’s consent, we
shall order the Respondent to restore the status quo ante
and to continue in effect all terms and conditions of em-
ployment contained in the expired collective-bargaining
agreement unless and until it bargains with the Union to
agreement or impasse on different terms and conditions.
We shall also order the Respondent to make whole the
unit employees for any loss of earnings and other benefits
suffered as a result of its unlawful actions. Such amounts
shall be computed in the manner set forth in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6
(2010), minus tax withholdings required by State and Fed-
eral law. Additionally, we shall order the Respondent to
compensate the unit employees for any adverse tax conse-
quences of receiving a lump-sum backpay award and to
file a report with the Regional Director for Region 28 al-
locating the backpay awards to the appropriate calendar
year(s) for each employee. AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the Re-
spondent, MV Transportation, Inc., Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall

52 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
1. Cease and desist from
(a) Failing to continue in effect all the terms and condi-
tions of its collective-bargaining agreement with Amalga-
mated Transit Union Local #1637, AFL–CIO, CLC (the
Union) without the Union’s consent by limiting bereave-
ment leave eligibility to full-time, non-probationary em-
ployees; limiting commercial driver’s license reimburse-
ment eligibility to currently employed, active, full-time,
and nonprobationary employees; and requiring employees
seeking to be excused from performing a required extra
assignment to submit documentation 48 hours in advance
of the forced work assignment.
(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.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Restore the status quo ante as it existed prior to
March 26, 2016, and continue in effect all the terms and
conditions of employment contained in the expired collec-
tive-bargaining agreement unless and until the Respond-
ent bargains with the Union to agreement or impasse on
different terms and conditions.
(b) Make whole the unit employees for any loss of earn-
ings and other benefits suffered as a result of the Respond-
ent's unlawful actions in the manner set forth in the rem-
edy section of this decision.
(c) Within 14 days after service by the Region, post at
its Las Vegas, Nevada facility copies of the attached no-
tice marked “Appendix.”52 Copies of the notice, on forms
provided by the Regional Director for Region 28, after be-
ing 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, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable 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 em-
ployees employed by the Respondent at any time since
March 26, 2016.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
MV TRANSPORTATION, INC. 25
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 28 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. September 10, 2019
______________________________________
John F. Ring, Chairman
Marvin E. Kaplan, Member
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, concurring in part and dissenting in
part.
Breaking with 70 years of precedent—and yet again
overruling precedent without notice or public participa-
tion1–the majority today abandons “one of the oldest and
most familiar of Board doctrines”: the clear-and-unmis-
takable waiver standard, and in its place imposes a new
standard that gives employers wide berth to make

1 This step has now become an unfortunate hallmark of the current
Board, departing from past practice. See, e.g., Bexar County Performing
Arts Center, 368 NLRB No. 46, slip op. at 1 fn. 2 (2019) (dissenting
opinion) (collecting cases).
It should be obvious that public participation would be helpful to the
Board’s decisionmaking here. This case involves an important issue of
public policy, as reflected in multiple Board, Supreme Court, and appel-
late court decisions. Rather than offer a rationale for rejecting public
participation here (and elsewhere), the majority simply asserts that the
Board “has frequently overruled or modified precedent without supple-
mental briefing.” But the six cases the majority cites are all distinguish-
able from this one. In none of the cases cited by the majority did the
Board refuse to request briefing over the objection of one or more Board
members or overrule 70-year old precedent and abandon a Board doc-
trine that has been approved by the Supreme Court and eight federal
courts of appeals. See cases cited at fn. 30.
Moreover, in two of the cases cited by the majority, Loomis and Lin-
coln Lutheran, amicus briefs were actually filed. See Loomis Armored
U.S., Inc., 364 NLRB No. 23 (2016) (amicus brief filed by SEIU urging
the Board to overrule Wells Fargo Corp., 270 NLRB 787 (1984)); Lin-
coln Lutheran of Racine, 362 NLRB 1655 (2015) (amicus brief filed by
National Right to Work Legal Defense Foundation urging the Board not
to overrule Bethlehem Steel, 136 NLRB 1500 (1962)).
Both E.I. Du Pont de Nemours, 364 NLRB No. 113 (2016) and Gray-
mont PA, Inc., 364 NLRB No. 37 (2016), meanwhile, were the culmina-
tion of long-running discussions of the precedent they ultimately
unilateral changes in represented employees’ terms and
conditions of employment without first bargaining with
their union.2
The National Labor Relations Act, of course, is ex-
pressly intended to “encourag[e] the practice and proce-
dure of collective bargaining.”3 The Act imposes a duty to
bargain on employers where employees have chosen un-
ion representation,4 and the Supreme Court has made clear
that an “employer’s unilateral change in conditions of em-
ployment” is a “circumvention of the duty to negotiate
which frustrates the objectives of Section 8(a)(5) much as
does a flat refusal.”5 Until today, consistent with these
principles, the Board has always held that an employer
cannot make unilateral changes affecting mandatory sub-
jects of bargaining, based on the asserted authority of a
contract provision, unless it can demonstrate that the par-
ties “unequivocally and specifically express[ed] their mu-
tual intention to permit unilateral employer action with re-
spect to a particular employment term, notwithstanding
the statutory duty to bargain that would otherwise apply.”6
As the Board has explained, this waiver standard “reflects
the Board’s policy choice, grounded in the [National La-
bor Relations] Act, in favor of collective bargaining con-
cerning changes in working conditions that might precip-
itate labor disputes.”7 The Supreme Court approved the
Board’s waiver standard more than 50 years ago in C & C
Plywood.8 Indeed, when the Board mistakenly strayed
from the waiver standard, it was rebuked by the United
States Court of Appeals for the District of Columbia
overruled. In Du Pont, the Board accepted a remand from the United
States Court of Appeals for the District of Columbia Circuit for the ex-
press purpose of deciding between two conflicting branches of prece-
dent. See E.I. Du Pont de Nemours and Co. v. NLRB, 682 F.3d 65, 70
(D.C. Cir. 2012. Lincoln Lutheran of Racine, 362 NLRB 1655 (2015),
in turn, was the culmination of a 15-year dialogue with the United States
Court of Appeals for the Ninth Circuit about Bethlehem Steel. See
WKYC-TV, Inc., 359 NLRB 286, 286 (2012) (discussing history).
The other three cases were substantively far better disposed to resolu-
tion without briefing. Graymont PA, Inc., 364 NLRB No. 37 (2016),
presented a purely procedural question concerning pleading standards;
Pressroom Cleaners, 361 NLRB 643 (2014), involved reversal of an
anomalous holding concerning remedies that was in conflict with long-
standing Board law; Fresh & Easy Neighborhood Market, Inc., 361
NLRB 151 (2014), similarly reversed a Board decision because the de-
cision could not be harmonized with long-standing precedent.
2 Provena St. Joseph Medical Center, 350 NLRB 808, 810
(2007). The waiver standard was first adopted by the Board in 1949. See
id. at 811–812, citing Tide Water Associated Oil Co., 85 NLRB 1096
(1949).
3 Sec. 1, 29 U.S.C. §151.
4 29 U.S.C. §158(a)(5).
5 NLRB v. Katz, 369 U.S. 736, 743 (1962).
6 Provena, supra, 350 NLRB at 811.
7 Id.
8 NLRB v. C & C Plywood, 385 U.S. 421 (1967).
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Circuit, in a 1979 decision (Road Sprinkler Fitters) that
appears never to have been overruled.9
Today, the majority discards the waiver standard and
adopts the so-called “contract coverage” standard devised
by the District of Columbia Circuit after it had approved
the waiver standard (and long after the Supreme Court had
done so). In its 1993 Postal Service decision, the D. C.
Circuit framed the issue in cases like this one entirely as a
matter of contract interpretation—and thus made it easier
for an employer to claim that its unilateral action was per-
mitted by the collective-bargaining agreement.10 But in
Road Sprinkler Fitters, supra, the same court had already
rejected an approach that “abolishe[d] any presumption
against the loss of [S]ection 8(a)(5) rights, and reduce[d]
the question to a simple matter of contract interpreta-
tion.”11
This unexplained about-face by the D.C. Circuit has
proved unpersuasive to the Board, which properly rejected
the “contract coverage” standard. Meanwhile, decisions
from the Second, Third, Fourth, Sixth, Seventh, Eighth,
Ninth, and Tenth Circuits have applied the Board’s “clear
and unmistakable waiver” standard.12
As I will explain, none of the reasons offered by the ma-
jority today for abandoning the waiver standard after 70

9 Road Sprinkler Fitters Local Union No. 669, United Ass’n of Jour-
neymen v. NLRB, 600 F.2d 918, 921-923 (D.C. Cir. 1979). The court
cited three of its own earlier decisions in which it had “applied the ‘clear
and unmistakable’ test to situations in which contact terms arguably af-
fected the parties’ obligations under [S]ection 8(a)(5),” including Inter-
national Union, UAW v. NLRB, 381 F.2d 265, 267 (D.C. Cir. 1967). Un-
der District of Columbia Circuit precedent, a panel decision may not be
overruled by a later panel decision, but only by the full court. See
LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc)
(explaining law-of-the-circuit doctrine).
10 NLRB v. Postal Service, 8 F.3d 832, 837 (D.C. Cir. 1993) (“In a
case such as this one, where the employer acts pursuant to a claim of
right under the parties’ agreement, the resolution of the refusal to bargain
charge rests on an interpretation of the contact at issue.”).
11 600 F.2d at 921.
12 See, e.g., Local Joint Executive Board of Las Vegas v. NLRB, 540
F.3d 1072, 1079–1080 (9th Cir. 2008); Capitol Steel & Iron Co. v. NLRB,
89 F.3d 692, 697 (10th Cir. 1996); Bonnell/Tredegar Industry v. NLRB,
46 F.3d 339, 346 fn. 6 (4th Cir. 1995); Olivetti Office U.S.A., Inc. v.
NLRB, 926 F.2d 181, 187 (2d Cir. 1991), cert. denied 502 U.S. 856
(1991); Ciba-Geigy Pharmaceuticals Division v. NLRB, 722 F.2d 1120,
1127 (3d Cir. 1983); American Distributing Co. v. NLRB, 715 F.2d 446,
449-450 (9th Cir. 1983), cert. denied 466 U.S. 958 (1984); Tocco Divi-
sion v. NLRB, 702 F.2d 624, 626–627 (6th Cir. 1983); American Oil Co.
v. NLRB, 602 F.2d 184, 188–189 (8th Cir. 1979); Murphy Diesel Co. v.
NLRB, 454 F.2d 303, 307 (7th Cir. 1971).
Unlike the District of Columbia Circuit, the Second, Third, Fourth,
Sixth, Eighth, Ninth, and Tenth Circuits have consistently deferred to the
Board’s application of the clear and unmistakable waiver standard as a
rationale and permissible interpretation of the Act. Beyond mere defer-
ence to the Board’s choice of legal standard, moreover, these courts ap-
pear to have recognized that Supreme Court precedent forecloses appli-
cation of a less stringent standard. Indeed, the Second Circuit has held
that the failure of some Courts of Appeals to “defer[] to the Board’s
years withstand scrutiny. Nor does the majority ade-
quately come to terms with the Supreme Court’s decision
in C & C Plywood, which forecloses any contention that
this long-established standard is somehow contrary to the
Act. To the extent that the majority feels compelled to ac-
quiesce in the current view of the District of Columbia
Circuit, it is mistaken, particularly in light of that court’s
conflicting precedent and significant contrary judicial au-
thority. The Board is the agency charged with developing
and applying federal labor policy, and the appropriate re-
sponse to the D.C. Circuit’s shift in position is to adhere
to the Board’s traditional view and, as necessary, to seek
Supreme Court review.
Instead, the majority makes it easier for employers to
unilaterally change employees’ terms and conditions of
employment–wages, hours, benefits, job duties, safety
practices, disciplinary rules, and more – in a manner that
will frustrate the bargaining process, inject uncertainty
into labor-management relationships, and ultimately in-
crease the prospect for labor unrest. This unfortunate out-
come will be made worse by another recent majority deci-
sion overruling Board precedent, Raytheon,13 which held
that employers may lawfully continue making unilateral
changes authorized by a management-rights clause, even
standard when the unfair labor practice turns solely on the interpretation
of a labor contract . . . is inconsistent with” the Supreme Court’s holdings
in Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983), and Mas-
tro Plastics Corp. v. NLRB, 350 U.S. 270, 283, 287 (1956), that contrac-
tual waivers of statutory rights must be “clear and unmistakable” and
“explicitly stated.” Electrical Workers Local 36 v. NLRB, 706 F.3d 73,
84–85 (2d Cir. 2013), cert. denied 573 U.S. 958 (2014). See also Capitol
Steel & Iron Co. v. NLRB, supra, 89 F.3d at 697 (citing Metropolitan
Edison, supra, for the proposition that contractual waivers of statutory
bargaining rights must be “clear and unmistakable in order for courts to
enforce them”) (internal quotation marks omitted); Bonnell/Tredegar In-
dustry v. NLRB, supra, 46 F.3d at 346 fn. 6 (same); Furniture Rentors of
America, Inc. v. NLRB, 36 F.3d 1240, 1245 (3d Cir. 1994) (same); East
Tennessee Baptist Hospital v. NLRB, 6 F.3d 1139, 1144 (6th Cir. 1993)
(same); Resorts Intl. Hotel Casino v. NLRB, 996 F.2d 1553, 1559 (3d
Cir. 1993) (same); United Bhd. of Carpenters & Joiners of Am. v. NLRB,
891 F.2d 1160, 1164 (5th Cir. 1990) (same); International Bhd. of Team-
sters v. Southwest Airlines, 875 F.2d 1129, 1135 (5th Cir. 1989) (en banc)
(same), cert. denied 493 U.S. 1043 (1990); NLRB v. Scherr, 883 F.2d 69
(4th Cir. 1989) (table) (same). See also Heartland Plymouth Court MI,
LLC v. NLRB, 838 F.3d 16, 20 (D.C. Cir. 2016) (recognizing that “the
Sixth Circuit embraces the Board’s ‘clear and unmistakable’ standard”),
citing Beverly Health and Rehabilitation Services v. NLRB, 297 F.3d
468, 480 (6th Cir. 2002).
Meanwhile, the Seventh Circuit, although adopting the contract cov-
erage standard, has acknowledged that “[t]here are strong arguments in
favor of” the clear and unmistakable standard. Columbia College Chi-
cago v. NLRB, 847 F.3d 547, 555 (7th Cir. 2017), citing Provena, supra.
See also Beverly California Corp., 227 F.3d 817, 838 (7th Cir. 2000)
(“The Board was correct to conclude that waivers of statutorily protected
rights must be clearly and unmistakably articulated.”), cert. denied 533
U.S. 950 (2001).
13 Raytheon Network Centric Systems, 365 NLRB No. 161 (2017).
Along with Member Pearce, I dissented in that case. Id., slip op. at 21.
MV TRANSPORTATION, INC. 27
after the collective-bargaining agreement expires. In en-
acting the National Labor Relations Act, Congress did not
intend to discourage collective bargaining, but that is the
result of today’s decision, among others recently.14
I.
This important case must be understood in light of the
basic principles that govern the Board’s application of fed-
eral labor law and policy, as well as long-established
Board doctrine interpreting an employer’s duty to bargain
under Section 8(a)(5) of the Act.
A.
To begin, Congress has charged the Board with the task
of administering a statute which declares it
to be the policy of the United States to eliminate the
causes of certain substantial obstructions to the free flow
of commerce and to mitigate and eliminate these ob-
structions when they have occurred by encouraging the
practice and procedure of collective bargaining and by
protecting the exercise by workers of full freedom of as-
sociation, self-organization, and designation of repre-
sentatives of their own choosing, for the purpose of ne-
gotiating the terms and conditions of their employment
or other mutual aid or protection.
Act, Section 1, 29 U.S.C. §151 (emphasis added).
The close relationship between collective bargaining
and the Act’s central goal of industrial stability is obvious
from the language and the structure of the Act itself. Ex-
plicit in the Act is Congress’ understanding that fostering
the practice and procedure of collective bargaining is es-
sential to reducing and eliminating the causes of industrial
strife. As the Supreme Court has observed:
One of the primary purposes of the Act is to promote the
peaceful settlement of industrial disputes by subjecting
labor-management controversies to the mediatory

14 In a series of other significant decisions, the majority has held that
employers lawfully failed or refused to engage in collective bargaining.
See, e.g., Oberthur Technologies of America Corp., 368 NLRB No. 5,
slip op. at 7 (2019) (dissenting opinion); Metalcraft of Mayville, Inc., 367
NLRB No. 116, slip op. at 9 (2019) (dissenting opinion); Ridgewood
Health Care Center, Inc., 367 NLRB No. 110, slip op. at 12 (2019) (dis-
senting opinion).
15 29 U.S.C. §158(a)(5).
16 29 U.S.C. §158(d).
17 NLRB v. Katz, supra, 369 U.S. at 743.
18 See, e.g., St. Vincent Hospital, 320 NLRB 42, 42 (1995), citing Mil-
waukee Spring Division, 268 NLRB 601, 602 (1984), affd. 765 F.2d 175
(D.C. Cir. 1985).
19 The right to refuse to negotiate over a proposal, of course, is not a
right to act unilaterally with respect to the subject matter of the proposal.
Sec. 8(d) creates a shield, not a sword, for the parties to a collective-
bargaining agreement. See C & S Industries, Inc., 158 NLRB 454, 457–
458 (1966). As I will explain, the District of Columbia Circuit
influence of negotiation. The Act was framed with an
awareness that refusals to confer and negotiate had been
one of the most prolific causes of industrial strife.
Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203,
211 (1964) (citations omitted).
In furtherance of these statutory objectives, Section
8(a)(5) of the Act makes it an unfair labor practice for an
employer “to refuse to bargain collectively with the repre-
sentatives of his employees.”15 Section 8(d) broadly de-
fines the term “bargain collectively” as the mutual obliga-
tion of the employer and the union to “meet . . . and confer
in good faith with respect to wages, hours, and other terms
and conditions of employment, or the negotiation of an
agreement, or any question arising thereunder.”16 An em-
ployer violates Section 8(a)(5) and (1) if it changes terms
and conditions of employment that are mandatory subjects
of bargaining, without providing the union representing its
employees with prior notice and the opportunity to bar-
gain.17
Where a specific term and condition of employment is
incorporated in a collective-bargaining agreement, the
employer must honor the agreement and may not change
the term unless the union consents.18 Section 8(d) of the
Act prohibits the nonconsensual mid-term modification of
a collective-bargaining agreement, while also permitting
either party to refuse to negotiate over the other’s bargain-
ing proposal to make a mid-term change to the agree-
ment;19 in other words, the agreement fixes those terms
and conditions “contained in” the agreement.20 Where a
specific term and condition is not “contained in” the agree-
ment, the employer’s statutory duty to bargain still ap-
plies, but a change can be made if the employer bargains
to impasse with the union first.21 Accordingly, the Board
distinguishes between (1) unfair labor practice allegations
that an employer has made a unilateral change with respect
to a mandatory subject of bargaining, and (2) allegations
fundamentally misunderstood C & S Industries in devising the “contract
coverage” standard.
20 Sec. 8(d) provides in relevant part that the duty to bargain “shall
not be construed as requiring either party to discuss or agree to any mod-
ification of the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before such terms and
conditions can be reopened under the provisions of the contract.” 29
U.S.C. §158(d) (emphasis added). Before the National Labor Relations
Act was amended by the Taft-Hartley Act, an employer was under a con-
tinuous duty to bargain with the union as to terms and conditions of em-
ployment, whether or not the subject matter to be discussed was con-
tained in an existing collective-bargaining agreement. See NLRB v.
Sands Mfg. Co., 306 U.S. 332, 342 (1939).
21 See, e.g., Milwaukee Spring Division, supra, 268 NLRB at 602 (“If
the employment conditions the employer seeks to change are not ‘con-
tained in’ the contract, . . . the employer’s obligation remains the general
one of bargaining in good faith to impasse over the subject before insti-
tuting the proposed change.”).
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the employer made a unlawful mid-term modification
of the collective-bargaining agreement.22
B.
This case involves several alleged unilateral changes,
and one potential employer defense in such cases is that
the union waived its right to bargain over the change.23
The waiver standard–as the Board explained in Provena,
its most recent defense of that standard—is “based on the
long-established proposition that the duty to bargain cre-
ated by . . . the Act continues during the term of a collec-
tive-bargaining agreement.”24 The Board has recognized
that these cases do not “involve merely a question of con-
tract interpretation, in the sense of determining what the
contract means and whether it has been breached;” but ra-
ther consideration of whether the statutory duty to bargain
during the term of an existing agreement has been
breached.25
The Provena Board traced the waiver standard to a 1949
Board decision, Tide Water Associated Oil,26 and ob-
served that “[s]ince then, in decisions too numerous to
cite, the Board has applied the clear and unmistakable
waiver analysis to all cases arising under Section 8(a)(5)
where an employer has asserted that a general manage-
ment-rights provision authorizes it to act unilaterally with
respect to a particular term and condition of employ-
ment.27 (To read the majority’s opinion here, one might
imagine that the waiver standard began in 2007 with
Provena, but that is far from the case, and so it is fair to
say that the majority today overrules “decisions too nu-
merous to cite.”28)
Those decisions necessarily include C & C Plywood,
which culminated in the Supreme Court’s 1967 decision
endorsing the waiver standard. It illustrates how firmly

22 See, e.g., Bath Iron Works Corp., 345 NLRB 499, 501 (2005), affd.
475 F.3d 14 (1st Cir. 2007). The Bath Iron Works Board explained that:
The “unilateral change” case and the “contract modification” cases are
fundamentally different in terms of principle, possible defenses, and
remedy. In terms of principle, the “unilateral change” case does not re-
quire the General Counsel to show the existence of a contract provision;
he need only show that there is an employment practice concerning a
mandatory bargaining subject, and that the employer has made a signif-
icant change thereto without bargaining. The allegation is a failure to
bargain.
. . .
In terms of defenses, a defense to a unilateral change case can be that
the union has waived its right to bargain.
. . .
In terms of remedy, a remedy for a unilateral change is [an order] to
bargain. . . .
345 NLRB at 501 (emphasis in original).
23 Id.
24 Provena, supra, 350 NLRB at 811, citing Jacobs Mfg. Co., 94
NLRB 1214, 1217-1218 (1951), enfd. 196 F.2d 680 (2d Cir. 1952).
25 Provena, supra, 350 NLRB at 814.
established the waiver standard is–and why the rival “con-
tract coverage” standard has little solid foundation.29 The
case is thus worth examining in detail.
C & C Plywood was a unilateral-change case. The em-
ployer unilaterally implemented a premium pay schedule
for a classification of employees, citing a wage clause in
the collective-bargaining agreement as its authority to do
so. The union objected and ultimately filed an unfair labor
practice charge, which led the General Counsel to issue a
complaint alleging a violation of Section 8(a)(5). The
Board’s trial examiner (i.e., administrative law judge) rec-
ommended dismissing the complaint, but the Board re-
jected his rationale that the “dispute … involved only a
disagreement as to the meaning of terms of a collective-
bargaining contract.”30 The Board explained that the
“[u]nion was complaining not of a violation of its contract
with [the employer], but of the invasion of its statutory
right as collective-bargaining representative of employees
. . . to bargain about any change in the terms and condi-
tions of employment. . . .”31 “Prima facie,” the Board ob-
served, the employer’s unilateral change violated the Act,
but the “statutory right . . . to bargain may be waived by
the union,” and the employer had raised this “affirmative
defense,” citing the union’s actions during contract nego-
tiations and the contract’s wage clause.32 A waiver “to be
effective must be ‘clear and unmistakable,’” the Board ex-
plained, and an “intent” to permit unilateral employer ac-
tion “should not be inferred unless the language of the
contract . . . clearly demonstrates this to be a fact.”33 The
Board saw “nothing in . . . [the] contract to establish that
the [u]nion intended to waive its statutory right to bargain
26 Tide Water Associated Oil, supra, 85 NLRB 1096. Observing that
it was “reluctant to deprive employees of any of the rights guaranteed
them by the Act in the absence of a clear and unmistakable showing of a
waiver of such rights,” the Tide Water Board rejected an employer’s ar-
gument that its unilateral changes to a pension plan were privileged by a
“Management Functions” clause in the collective-bargaining agreement.
Id. at 1098 (footnote omitted).
27 Provena, supra, 350 NLRB at 811–812 (footnote collecting cases
omitted).
28 As one leading labor-law treatise observes:
The Labor Board has long held that a waiver of a statutory right will
not readily be inferred: it must be “clear and unmistakable.” The Su-
preme Court has endorsed that test, and the Board has consistently ap-
plied it. . . .
Robert A. Gorman & Matthew W. Finkin, Labor Law §20.16 at 737
(2013) (“Waiver of the Duty to Bargain”) (footnotes omitted).
29 C & C Plywood Corp., 148 NLRB 414 (1964), enf. denied 351 F.2d
224 (9th Cir. 1965), reversed 385 U.S. 421 (1967).
30 148 NLRB at 415.
31 Id.
32 Id. at 415–416.
33 Id. at 416.
MV TRANSPORTATION, INC. 29
over the matter in dispute,” and so found a violation of
Section 8(a)(5).34
The Ninth Circuit reversed the Board, in line with its
view that the Board lacked jurisdiction over cases where
an unfair labor practice depended upon the interpretation
of a collective-bargaining agreement.35 In such situations,
the Ninth Circuit had held, the case must be resolved in
arbitration (if provided for) or by the federal or state courts
(under Section 301 of the Act), because the Board “‘may
not . . . sit in judgment upon the substantive terms of col-
lective bargaining agreements.’”36
The Supreme Court, in turn, endorsed the Board’s view,
reversing the Ninth Circuit and directing it to enforce the
Board’s order. The Court explained that the Board’s deci-
sion was properly focused on the issue of whether the un-
ion had waived the statutory duty to bargain by agreeing
to the wage clause in the collective-bargaining agreement,
on which the employer had relied to make a unilateral
change in pay:
[T]he Board has not construed a labor agreement to de-
termine the extent of the contractual rights which were
given the union by the employer. It has not imposed its
own view of what the terms and conditions of the labor
agreement should be. It has done no more than merely

34 Id. at 417.
35 NLRB v. C & C Plywood Corp., 351 F.2d 224 (9th Cir. 1965), citing
Square D Co. v. NLRB, 332 F.2d 360 (9th Cir. 1964).
36 Id. at 227–228, quoting NLRB v. American National Insurance Co.,
343 U.S. 395, 404 (1952).
Sec. 301 provides that “[s]uits for violation of contracts between an
employer and a labor organization representing employees … may be
brought in any district court of the United States having jurisdiction of
the parties. . . . 29 U.S.C. §185. But a unilateral-change allegation under
Sec. 8(a)(5) of the Act is not a claim that the collective-bargaining agree-
ment has been violated, but rather that the employer has violated its stat-
utory duty to bargain.
Unfair labor practice charges must be brought to the Board, which is
solely responsible for administering the Act. See Act, Sec. 10, 29 U.S.C.
§160. Notably, Sec. 10(a) of the Act provides that the Board’s “power
[to redress unfair labor practices] shall not be affected by any other
means of adjustment or prevention that has been or may be established
by agreement, law, or otherwise.” 29 U.S.C. §160(a).
37 385 U.S. at 430.
38 Id.
39 Id.
40 Sixteen years later, the Supreme Court reaffirmed its approval of
the Board’s waiver standard in Metropolitan Edison Co. v. NLRB, supra,
460 U.S. 693. There, the Court considered whether a contractual no-
strike clause waived the protection afforded union officials against the
imposition of more severe sanctions for participating in an unlawful
work stoppage. In rejecting the employer’s argument that the right had
been waived, the Court explained that it would
not infer from a general contractual provision that the parties intended
to waive a statutorily protected right unless the undertaking is ‘explic-
itly stated.’ More succinctly, the waiver must be clear and unmistaka-
ble.
enforce a statutory right which Congress considered
necessary. . . The Board’s interpretation went only so
far as necessary to determine that the union did not
agree to give up these statutory safeguards.
385 U.S. at 564 (emphasis added). But the Court did not stop
there. It also addressed the “remaining question . . . whether
the Board was wrong in concluding that the contested provi-
sion in the collective agreement gave the [employer] no uni-
lateral right to institute its premium pay plan.”37 On this ques-
tion, too, the Court upheld both the Board’s approach and its
conclusion. The Court explained that the “law of labor agree-
ments cannot be based upon abstract definitions unrelated to
the context in which the parties bargained and the basic reg-
ulatory scheme underlying the context.”38 It noted that the
Board had “relied upon its experience with labor relations
and the Act’s clear emphasis upon the protection of free col-
lective bargaining” to find that the union had not waived its
statutory right to bargain.39 No later decision of the Court
casts doubt on the continuing viability of C & C Plywood.40
C.
The Provena Board correctly observed that the “con-
tract coverage “standard “is a relatively recent judicial in-
novation,” adopted by a minority of appellate courts.41
Id. at 708. An arbitration decision may be relevant to establish-
ing waiver, the Court observed, but only if the arbitrator found that the
relevant contract language was clear and unmistakable. Absent such a
statement, “the arbitration decision would not demonstrate that the union
specifically intended to waive the statutory protection otherwise af-
forded its officials.” Id. at 709, fn. 13.
Since Metropolitan Edison, the Supreme Court has continued to apply
the principle that a waiver of statutory rights under a collective-bargain-
ing agreement must be “explicitly stated” and “clear and unmistakable.”
See, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 251, 258, 274 (2009)
(finding that collective-bargaining agreement “clearly and unmistaka-
bly” required union members to arbitrate Age Discrimination in Employ-
ment Act claims); Wright v. Universal Maritime Service Corp., 525 U.S.
70, 79–80, 82 (1998) (reiterating requirement that waiver of statutory
rights under a collective-bargaining agreement must be “explicitly
stated” and “clear and unmistakable,” and finding that collective-bar-
gaining agreement did not contain waiver of employees’ right to a judi-
cial forum for federal claims of employment discrimination).
41 350 NLRB at 811. In addition to the District of Columbia, the First
and Seventh Circuits have adopted a “contract coverage” analysis. See
Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d 14, 25 (1st Cir. 2007);
Chicago Tribune Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992).
The majority states that the Second Circuit also rejected the waiver
standard and embraced the contract coverage standard in Electrical
Workers Local 36 v. NLRB, supra, 706 F.3d 73. That characterization is
incorrect. In Electrical Workers Local 36, the Second Circuit adopted
“a two-step framework to decide whether there has been a valid waiver
of the right to bargain over a particular decision or its effects,” pursuant
to which it determines “whether the issue is clearly and unmistakably
resolved (or ‘covered’) by the contract,” and if it is not, “whether the
union has clearly and unmistakably waived its right to bargain.” Id. at
84–85 (emphasis in original). In adopting this framework, the Second
Circuit firmly rejected the contract coverage standard devised by the
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This case arises in the Ninth Circuit, which has applied the
waiver standard and which has described the Supreme
Court’s decision in C & C Plywood as “approving of the
Board’s adoption of the clear-and-unmistakable stand-
ard.”42
As already noted, the theory of “contract coverage”
originated with the District of Columbia Circuit, decades
after C & C Plywood was decided. The Circuit’s seminal
1993 decision in Postal Service is notable both for its fail-
ure to address the Supreme Court’s decision in C & C Ply-
wood and for its inconsistency with Circuit precedent en-
dorsing the Board’s waiver standard. Postal Service drew
not on those decisions, but rather on a then-recent Circuit
decision involving federal-sector labor law. As one care-
ful student of the issue has observed, the foundations of
the “contract coverage” standard are questionable—which
is not to deny that by now, it is firmly established as the
law of the District of Columbia Circuit.43
In Postal Service, the District of Columbia Circuit re-
jected the Board’s application of the waiver standard and
held the Board was required to apply the “contract cover-
age” standard. The court explained the difference between
the two standards this way:
[T]he “covered by” and “waiver” inquiries are analyti-
cally distinct: “A waiver occurs when a union knowingly
and voluntarily relinquishes its right to bargain about a
matter; but where the matter is covered by the collective
bargaining agreement, the union has exercised its bar-
gaining right and the question of waiver is irrelevant.”
. . .
[W]hen [the] employer and union bargain about a sub-
ject and memorialize that bargain in a collective bargain-
ing agreement, they create a set of rules governing their
future relations. Unless the parties agree otherwise,
there is no continuous duty to bargain during the term of

District of Columbia Circuit and adopted by the majority today, stating
that it is inconsistent with the Supreme Court’s holding in Metropoli-
tan Edison, “undermines our national labor policy that disfavors waivers
of statutorily protected rights,” and can lead to the unwitting relinquish-
ment of rights. Id. at 84. Rather than retreating from the waiver standard,
moreover, the court held that any “contractual indicia of exercise of the
right to bargain or proffered proof of waiver must clearly and unmistak-
ably demonstrate the coverage or waiver sought to be proved.” Id.
42 Local Joint Executive Board, supra, 540 F.3d at 1080. The Ninth
Circuit pointed out that it “had not adopted the ‘contract coverage’ stand-
ard” and that “neither party ha[d] suggested that [it] . . . do so.” Id. at fn.
11. There would seem to be a direct conflict between the Ninth Circuit,
insofar as it has recognized that the Board is free to follow the waiver
standard in light of the Supreme Court’s decision in C & C Plywood, and
the District of Columbia Circuit, which views the waiver standard as im-
permissible.
an agreement with respect to a matter covered by the
contract.
. . .
[T]he courts attempt to interpret collective bargaining
agreements so as to respect the agreements reached by
the parties who made them. Accordingly, questions of
“waiver” normally do not come into play with respect to
subjects already covered by a collective bargaining
agreement.
8 F.3d at 836 (emphasis in original), quoting Department of
Navy v. FLRA, 962 F.2d 48, 57 (D.C. Cir. 1992).
The court’s holding rested on two grounds. First, in set-
ting up an analytical distinction between waiver and “con-
tract coverage,” the court relied on its own recent prece-
dent in Department of Navy, supra, which had reversed a
decision of the Federal Labor Relations Authority (FLRA)
applying the Federal Labor-Management Relations Stat-
ute.44 Second, in rejecting the Board’s choice of standard,
the court relied on the primacy of Federal courts in inter-
preting collective-bargaining agreements. The court stated
that the unfair-labor-practice issue turned “on an interpre-
tation of the contract” and observed that it would “accord
no deference to the Board’s interpretation of labor con-
tracts.”45
There is no acknowledgement in Postal Service that the
waiver doctrine was (even then) long and firmly estab-
lished in Board law, no acknowledgement that the District
of Columbia Circuit had previously rejected the Board’s
deviation from the waiver standard, and no acknowledge-
ment that the Supreme Court had approved the Board’s
application of the waiver standard in C & C Plywood. In-
deed, there are striking similarities between Postal Service
and the Ninth Circuit’s decision in C & C Plywood, which
the Supreme Court reversed.46 The analysis deployed in
Postal Service, by contrast, was developed in Department
43 William E. Persina, “Waiver” vs. “Covered By”—Time to End the
Confusion, 60 Labor Law Journal, No. 4 (Dec. 2009), 2009 WESTLAW
10449004.
44 8 F.3d at 836.
45 Id. at 837, citing Litton Financial Printing Division v. NLRB, 501
U.S. 190, 202 (1991).
46 In C & C Plywood, the Ninth Circuit held that the Board lacked
jurisdiction to decide the case, because the unfair labor practice turned
on the interpretation of the collective-bargaining agreement, a matter for
the courts. 351 F.2d at 227. The Postal Service court did not question the
Board’s jurisdiction, but similarly treated the dispositive issue as a con-
tractual one, over which the courts had primacy. 8 F.3d at 837. In C &
C Plywood, the Ninth Circuit accused the Board of improperly judging
the substantive terms of the collective-bargaining agreement, to the un-
ion’s benefit. 351 F.2d at 227. The Postal Service court similarly ob-
served that the Board could not “abrogate a lawful agreement merely be-
cause one of the bargaining parties is unhappy with a term. . . .” 8 F.3d
at 836.
MV TRANSPORTATION, INC. 31
of Navy, a federal-sector case. While the Federal-Labor
Management Relations Statute reflects some basic simi-
larities with the National Labor Relations Act, it obviously
has a very different history and imposes far fewer bargain-
ing obligations on federal agencies than the Act imposes
on private-sector employers.47
A careful examination of the Department of Navy deci-
sion shows that there, too, the District of Columbia Circuit
failed to examine the long history of the waiver doctrine
in Board law, its own precedent under the National Labor
Relations Act, and the Supreme Court’s C & C Plywood
decision. The court’s analysis of bargaining doctrine un-
der the Act—invoked in the course of rejecting the
FLRA’s interpretation of federal-sector labor law—relies
on inapposite Board decisions in asserting that the
FLRA’s approach was “patently inconsistent with private
sector law.”48 Notably, the court elsewhere in the decision
cites a leading treatise on the Act that actually describes,
in detail, the Board’s longstanding waiver analysis, where
the issue is whether a contractual provision has given the

47 As one commentator points out, “one major difference between the
federal and private sector schemes is that under the [federal-sector stat-
ute], Congress created a statutory management rights clause,” and “as to
almost all of these management rights, agency employers cannot waive
them by negotiating them away at the bargaining table” Persina, supra,
“Waiver” vs. “Covered By,” 60 Labor L. J. No. 4 at fns. 9-10, citing 5
U.S.C. §7106(a). Under Secs. 8(a)(5) and 8(d) of the Act, in contrast,
employers are statutorily required to bargain over a broad range of man-
datory subjects, unless (and only to the extent that) the union has con-
tractually waived its statutory right to require bargaining.
48 962 F.2d at 61. The District of Columbia Circuit relied primarily on
C & S Industries, supra, which did not involve an employer’s Sec. 8(a)(5)
unilateral change in an employment term, based on a contractual provi-
sion arguably authorizing unilateral action. Instead, the case involved the
application of Sec. 8(d) of the Act to an employer’s mid-term modifica-
tion of a collective-bargaining agreement, following the union’s privi-
leged refusal to bargain over the proposal.
In C & S Industries, decided in 1966, the parties had reached a collec-
tive-bargaining agreement, which set out an hourly wage rate, but said
nothing about an incentive wage system. 158 NLRB at 455. During the
term of the agreement, the employer raised with the union the possibility
of instituting an incentive wage system, offering to bargain. Id. The un-
ion refused, citing the employer’s failure to seek such a system during
the negotiations that culminated in the existing agreement. Id. The em-
ployer then instituted the incentive system unilaterally. Id.
The Board found that this step violated the employer’s duty to bar-
gain. Applying Sec. 8(d) of the Act—which, as explained, governs mid-
terms modifications of a collective-bargaining agreement—the Board re-
jected the employer’s defense that its initial offer to bargain, coupled
with the union’s refusal, privileged the employer to act unilaterally. Id.
at 456. The Board explained that a party such as the union “does not
violate its bargaining obligation when it refuses to discuss changes pro-
posed by the other party in the terms of an existing contract.” Id. at 457
(footnote omitted). In turn, an employer violates the Act “when he uni-
laterally modifies contractual terms or conditions of employment during
the effective period of a contract.” Id. (emphasis added). In the case be-
fore it, the Board observed, the employer’s implementation of the
employer authority to unilaterally change a given employ-
ment term.49
From this flawed analytical foundation, the D.C. Circuit
reached a flawed result imposing a new test that leading
labor law scholars have criticized. Those scholars observe
that the Board’s waiver standard is “more consistent with
the policy of the Act” and that statutory policy “is better
realized when bargaining over real and pressing matters is
not held hostage to linguistic contests over hypothetical
future contingencies.”50
II.
Today, the majority nonetheless acquiesces in the view
of the District of Columbia Circuit, abandoning the waiver
standard and adopting the “contract coverage” standard in
its place. It explains that:
Under contract coverage, the Board will examine the
plain language of the collective-bargaining agreement to
determine whether the action taken by an employer was
within the compass or scope of contractual language
granting the employer the right to act unilaterally.
incentive system “operated as [an impermissible] ‘modification’ of con-
tract terms, within the meaning of Section 8(d).” Id. at 459. Because the
union had not consented to such a modification, it was unlawful. Id. at
460.
The Board also rejected the employer’s argument that it should have
deferred to arbitration, observing that the resolution of the unfair-labor-
practice issue did not “primarily turn on an interpretation of specific con-
tractual provisions of ambiguous meaning.” Id. Unilateral-change cases
involving management-rights clauses, of course, do involve contract in-
terpretation in this sense, as the District of Columbia Circuit emphasized
in Postal Service.
The contrast between C & S Industries, a case involving contract-
modification under Sec. 8(d), and C & C Plywood, an 8(a)(5) unilateral-
change case, from the same period, implicating the waiver standard,
should be apparent. It was not to the Department of Navy court, which
quoted language from C & S Industries out of context. The Board, how-
ever, has continued to recognize the difference between the two classes
of cases, as already explained. See Bath Iron Works, supra, 345 NLRB
at 501.
49 Department of Navy cites Professor Gorman’s 1976 treatise for its
discussion of cases involving an issue quite distinct from unilateral-
change cases like this one: whether an employer is required to bargain
with the union during the contract term when the union proposes a mid-
term modification of the collective-bargaining agreement. 962 F.2d at
57, citing Robert A. Gorman, Basic Text on Labor Law 458-463 (1976).
Some pages later, however, the Gorman treatise actually discusses the
waiver standard and its application to cases where the employer invokes
a management-rights clause to defend against a unilateral-change allega-
tion. Basic Text at 466–472. Professor Gorman notes that the “traditional
test for union waiver of the right to bargain during the contract term is a
most exacting one,” i.e., the waiver must be clear and unmistakable. Id.
at 467. Indeed, the treatise cites the Supreme Court’s C & C Plywood
decision as illustrating the application of this standard, explaining that
“the Board and courts will not conclude, from an express waiver on one
subject, that the union has waived on others even though closely related.”
Id. at 470 (emphasis added).
50 Gorman & Finkin, supra, Labor Law §20.16 at 741–742.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
. . .
On the other hand, if the agreement does not cover the
employer’s disputed act, and that act has materially, sub-
stantially, and significantly changed a term or condition
of employment constituting a mandatory subject of bar-
gaining, the employer will have violated Section 8(a)(5)
and (1) unless it demonstrates that the union clearly and
unmistakably waived its right to bargain over the change
or that its unilateral action was privileged for some other
reason.
The implication of the majority’s new standard is clear: If a
management-rights provision in a collective-bargaining
agreement is sufficiently general, it will permit an employer
to act unilaterally with respect to any specific term or condi-
tion of employment that plausibly fits within the general sub-
ject matters of the provision. (And under the unfortunate rule
of Raytheon, supra, the employer will be able to continue a
“past practice” of making unilateral changes even after the
agreement expires.)
As the majority explains, the Board “will not require
that the agreement specifically mention, refer to or address
the employer decision at issue.” Employers may well gain
broad power to act unilaterally to change employees’
terms and conditions of employment—based, it seems, en-
tirely on unspecific language in the collective-bargaining
agreement. This approach is just what the Supreme Court
condemned in C & C Plywood: basing the “law of labor
agreements . . . upon abstract definitions unrelated to the
context in which the parties bargained and the basic regu-
latory scheme underlying the context.”51 The applicability
of the waiver standard will be correspondingly narrow. As
Professors Gorman and Finkin have pointed out, “[i]nas-
much as the [contract coverage] approach applies to the
language of the typical express management-rights clause
. . ., it is difficult to fathom what management powers
could be left for a ‘waiver’ to concern.”52
The majority’s adoption of the “contract coverage”
standard is fundamentally inconsistent with the purposes
of the Act and federal labor policy as declared by Con-
gress. In the words of the Supreme Court, the majority has
“entirely failed to consider an important aspect of the
problem” that the Board, as the administrative agency
charged with applying the National Labor Relations Act,
must address—namely, the need to promote labor peace.53
A statute intended to encourage collective bargaining as a
way to avoid labor disputes necessarily must disfavor uni-
lateral employer action. That, of course, is the core

51 385 U.S. at 430.
52 Gorman & Finkin, supra, Labor Law §20.16 at 739.
53 Motor Vehicle Mfrs. Assn. v. State Farm Auto Mutual Insurance
Co., 463 U.S. 29, 43 (1983). The Administrative Procedure Act applies
principle reflected in the Board’s 70-year-old waiver
standard, which requires that a contractual provision be
“clear and unmistakable” before the Board will interpret it
to authorize the employer to act unilaterally. “In light of
the great importance of protecting the union’s representa-
tive status, . . the Board has been anxious to assure that
‘waiver’ of the duty to bargain is done by the union con-
sciously and clearly.”54
As the Provena Board explained, the waiver standard
better promotes productive collective bargaining and min-
imizes the potential for labor disputes caused by employer
unilateral action:
The waiver standard . . effectively requires the parties to
focus on particular subjects over which the employer
seeks the right to act unilaterally. Such a narrow focus
has two clear benefits. First, it encourages the parties to
bargain only over subjects of importance at the time and
to leave other subjects to future bargaining. Second, if a
waiver is won—in clear and unmistakable language—
the employer’s right to take future unilateral action
should be apparent to all concerned.
350 NLRB at 813–814. By contrast, unilateral employer ac-
tion—changing employees’ terms and conditions of employ-
ment without engaging in collective bargaining—tends to
lead to labor disputes. A “contact-coverage” standard “cre-
ates an incentive for employers to seek contractual language
that might be construed as authorizing unilateral action on
subjects of no present concern, requires unions to be wary of
agreeing to such provisions, and invites future disputes about
the scope of the contractual provision.” Id.
The majority’s decision also fails to meet the threshold
standards for reasoned decisionmaking. When an admin-
istrative agency changes its position on an issue (as the
Board does here), it must provide a reasoned explanation
for the change that justifies “disregarding facts and cir-
cumstances . . that underlay . . . the prior policy.”55 The
majority’s decision does not satisfy this test, for several
reasons. First, the majority fails to explain why it is com-
pelled to acquiesce to the District of Columbia Circuit’s
“contract coverage” test when the adoption of that test was
not based on the court’s authoritative interpretation of
plain statutory language, but instead is grounded in a pol-
icy judgement in an area where the Board has primary ex-
pertise. Second, the majority improperly disregards both
the Board’s many-decades-long adherence to the waiver
standard and the Supreme Court’s clear endorsement of
to Board adjudications. See Allentown Mack Sales & Service v. NLRB,
522 U.S. 359, 364 (1998).
54 Gorman, supra, Basic Text on Labor Law §15 at 466.
55 Encino Motorcars, LLC v. Navarro, --- U.S. ---, 136 S.Ct. 2117,
2125–2126 (2016).
MV TRANSPORTATION, INC. 33
that standard in C & C Plywood. Third, on their own
terms, the reasons given by the majority for abandoning
the waiver standard are untenable. They are inconsistent
with the Board’s actual experience applying the waiver
standard for 70 years, unsupported by empirical evidence,
contradicted by common sense, and contrary to Board law
in important respects. Finally, as the Provena Board per-
suasively demonstrated, the policy implications of the ma-
jority’s approach cannot be reconciled with the Act.
A.
The Supreme Court “has emphasized often that the
NLRB has the primary responsibility for developing and
applying national labor policy.”56 The Board’s “special
competence in [the] field [of labor relations] is the justifi-
cation for the deference accorded its determination” of la-
bor policy issues.57 The long-established, consistently-ap-
plied waiver standard reflects the Board’s discharge of this
responsibility.
In contrast, the “contract coverage” standard, as shown,
is an innovation of the District of Columbia Circuit, de-
veloped first under a different statute administered by a
different federal agency. In rejecting the Board’s waiver
standard, the D.C. Circuit did not exercise its authority to
construe the statutory language of the NLRA and deter-
mine that the Board had acted contrary to Congressional
command; instead, the court’s decision is clearly based in
a policy judgment about what approach to management-
rights provisions best serves the goals of the Act.58
These policy judgments are properly left to the Board,
as the Supreme Court recognized when it overruled the
Ninth Circuit’s similar decision in C & C Plywood. While
the District of Columbia may have broad jurisdiction to
review the Board’s decisions and would certainly have the
authority to definitively construe unambiguous statutory

56 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990).
57 NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975).
58 The majority claims that the waiver standard “cannot be separated
from a deep-seated and indeed principled hostility to management-rights
language.” I do not harbor any particular antipathy toward negotiated
management-rights clauses, which in the give-and-take of bargaining
may be the product of legitimate “horsetrading” by both sides. See Endo
Laboratories, Inc., 239 NLRB 1074, 1075 (1978) (recognizing the “the
kind of ‘horsetrading’ or ‘give-and-take’ that characterizes good-faith
bargaining”). But, as previous Boards have correctly recognized, man-
agement-rights provisions involve the consensual surrender of a funda-
mental statutory right: the right to bargain collectively. It is therefore
imperative that the parties “unequivocally and specifically express their
mutual intention to permit unilateral employer action with respect to a
particular employment term.” Provena, supra, 350 NLRB at 811.
59 For reasons already explained—and as the Supreme Court’s deci-
sion in C & C Plywood demonstrates—it is no answer to invoke the un-
controversial principle that the federal courts have primary authority to
interpret collective-bargaining agreements, as the District of Columbia
Circuit has done. Indeed, the Ninth Circuit has explained that although it
reviews the Board’s interpretation of a particular collective-bargaining
language in the NLRA, the court does not have the “spe-
cial competence” in steering the policy of labor relations
that the Board possesses. Today, the majority arbitrarily
reverses the roles of the Board and the court, deferring to
the court in an area where it is the court that should have
deferred to the Board. By definition, this is not reasoned
decisionmaking by an administrative agency.59
B.
Second, in embracing the “contract coverage” standard,
the majority also fails to properly acknowledge both the
Board’s long adherence to the waiver standard and the Su-
preme Court’s endorsement of that standard.
The majority today effectively treats the waiver stand-
ard as if it had been invented by the Provena Board in
2007, not established as early as 1949. In some areas of
labor-law doctrine, to be sure, the Board’s “policy oscilla-
tion” has been notable,60 but not with respect to the
Board’s treatment of managements-rights clauses. Until
today, the waiver standard had stood the test of time. The
Board has never deliberately abandoned that test.61 Nor,
in the more than 25 years since it was devised by the Dis-
trict of Columbia Circuit, has the Board ever endorsed the
“contract coverage” test. What this means, among other
things, is that the Board, “in explaining its changed posi-
tion, … must be cognizant that longstanding policies may
have “engendered serious reliance interests that must be
taken into account.”62
Just as serious, if not more so, is the majority’s failure
to come to terms with the Supreme Court’s decision in C
& C Plywood endorsing the Board’s waiver standard (as
the Ninth Circuit and labor-law scholars have recognized).
The majority grudgingly acknowledges both that the Su-
preme Court did not disapprove the waiver standard and
that the Court’s decision reflected “deference to the
agreement de novo, it nevertheless applies the waiver standard in inter-
preting the agreement itself, deferring to the Board’s rule in line with
Supreme Court precedent. Local Joint Executive Board, supra, 540 F.3d
at 1078–1080, citing Curtin-Matheson Scientific, supra, 494 U.S. at 786.
60 See generally Samuel Estreicher, Policy Oscillation at the Labor
Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163 (1985).
61 As noted, when the Board strayed from the waiver standard, it was
judicially rebuked—ironically, by the District of Columbia Circuit. See
Road Sprinkler Fitters Local 669, supra, 600 F.2d at 921–923.
62 Encino Motor Cars, supra, 136 S.Ct. at 2120, quoting FCC v. Fox
Television Stations, 556 U.S. 502, 515 (2009). The majority touches on
these interests only in deciding that the “contract coverage” standard
should be retroactively applied—a separate error—and its reasoning is
circular. The majority dismisses the possibility of reasonable reliance on
the Board’s waiver standard in the face of the District of Columbia Cir-
cuit’s adoption of the “contract coverage” standard. In effect, then, the
majority asserts that the Board should adopt the “contract coverage”
standard because the court has. But this is arbitrary, illustrating again
the abdication of the Board’s role as the agency responsible for adminis-
tering the Act.
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board’s experience and expertise.” But the majority in-
sists that “nothing in [its] holding today is inconsistent
with” C & C Plywood, because in abandoning the waiver
standard, the majority now relies on “experience” gained
after the Court’s 1967 decision, which has “made the
drawbacks of [the waiver] standard starkly apparent.”
That claim is effectively refuted by the majority’s deci-
sion itself. It makes clear that the change in position here
is not based on the Board’s own experience, but rather on
the intervening “contract coverage” decisions of the Dis-
trict of Columbia Circuit. The majority cannot properly
justify a policy reversal of this magnitude based on nega-
tive “experience” defending its decisions in three of
twelve federal courts of appeals, rather than on an exercise
of the Board’s own policy expertise.
C.
Even if the majority had genuinely framed today’s de-
cision as a choice between two permissible options still
open to it after C & C Plywood, the reasons given for
adopting the “contract coverage” standard cannot with-
stand scrutiny. All of these reasons are grouped under the
remarkable assertion that the waiver standard “does not
effectuate the policies of the Act,” despite the Supreme
Court’s endorsement of the standard. Clearly the Court be-
lieved that the waiver standard did effectuate statutory
policy. The majority makes a half-dozen claims: (1) that
the waiver standard “results in the Board impermissibly
sitting in judgment upon contract terms;” (2) that the
waiver standard “undermines contractual stability;” (3)
that the waiver standard “alters the parties’ deal reached

63 For example, in The Academy of Magical Arts, Inc., 365 NLRB No.
101, slip op. at 1, fn. 2 (2017), the Board adopted the judge’s finding that
the union waived its right to bargain over the shortening of shifts and the
creation of new shifts with the remaining hours, by agreeing to contract
language authorizing the employer “to schedule and change working
hours, shifts and days off”.
In Chemical Solvents, Inc., 362 NLRB 1469, 1474 (2015), the Board
found that the union waived the right to bargain over subcontracting of
unit work by agreeing to contract language stating that the employer re-
tained the right “[t]o transfer any or all of its . . . work . . . to any other
entity”, despite the fact that the contract language did not include the
precise word “subcontract.” Id. The Board observed that although the
language did not “refer to subcontracting by name,” it necessarily in-
cluded subcontracting, which “cannot be accomplished without transfer-
ring work to another entity.” Id.
In Omaha World-Herald, 357 NLRB 1870, 1870 (2011), the Board
found that the union clearly and unmistakably waived its right to bargain
over changes to a pension plan, based on “an amalgam of factors,” even
though none of the factors, standing alone, was sufficient to establish
waiver under existing precedent. Specifically, the Board relied on un-
bargained language in pension plan documents providing that the “Em-
ployer shall have the right at any time to amend the Plan;” language in
the parties’ collective-bargaining agreement expressly excluding
changes to the pension plan from the parties’ grievance and arbitration
procedures; and additional language in the collective-bargaining agree-
ment stating that the employer “will advise the Union of proposed
in collective bargaining;” (4) that the waiver standard “re-
sults in conflicting contract interpretations between the
Board and the courts;” (5) that the waiver standard “un-
dermines grievance arbitration;” and (6) that the waiver
standard “has become indefensible and unenforceable.”
As I will explain, these claims are unfounded.
1.
The first three of the majority’s reasons, which all in-
voke the need to protect the collective-bargaining process,
can be treated together. To begin, it is easy to dismiss the
claim that the waiver standard has the Board “impermissi-
bly sitting in judgment upon contract terms.” That asser-
tion (as noted earlier) was made by the Ninth Circuit in C
& C Plywood, but the Supreme Court reversed the lower
court— – and found nothing impermissible about the
waiver standard. Having conceded as much, the majority
can hardly argue otherwise.
Insofar as the majority’s claim is an empirical one, it
turns on the assertion, echoing the District of Columbia
Circuit, that the waiver standard “is, in practice, impossi-
ble to meet.” That claim is false. There is no shortage of
Board decisions finding that the waiver standard has, in-
deed, been satisfied.63 These cases demonstrate that un-
ions and employers can and do draft contract language that
clearly and unmistakably waives the statutory right to bar-
gain over particular employment terms. That the waiver
standard may be difficult to meet, of course, has been pre-
cisely the Board’s policy point, as the Ninth Circuit has
observed.64 And to agree with that policy, in any case, is
not to say that the Board’s application of the waiver
changes [to the pension plan] and meet to discuss and explain changes if
requested.” Id. at 1870–1872.
In Cincinnati Paperboard, 339 NLRB 1079, 1079 fn. 2 (2003), the
Board found that the union waived the right to bargain over the elimina-
tion of employees’ long-standing practice of swapping partial shifts by
agreeing to contract language conferring on the employer the “sole re-
sponsibility” to direct the work force, including the “rights to hire, sched-
ule, and assign work.”
In United Technologies, 287 NLRB 198, 198 (1987), enfd. 884 F.2d
1569 (2d Cir. 1989), the Board found that the union waived the right to
bargain over changes in the progressive disciplinary procedure by agree-
ing to contract language conferring on the employer “the sole right and
responsibility to direct the operations of the company,” including “the
right to make and apply rules and regulations for production, discipline,
efficiency, and safety.”
And for a sample of additional cases where the Board has found a
contractual waiver of bargaining rights, see California Pacific Medical
Center, 337 NLRB 910, 910 fn. 1, 914 (2002); Good Samaritan Hospital,
335 NLRB 901, 901–902 (2001); Allison Corp., 330 NLRB 1363,1365
(2000); United Technologies Corp., 300 NLRB 902, 902 (1990); Amer-
ican Stores Packing Co., 277 NLRB 1656, 1658 (1986); Emery Indus-
tries, 268 NLRB 824, 824, 827–828 (1984); Cauthorne Trucking, 256
NLRB 721, 722 (1981), enf. granted in part denied in part 691 F.2d 1023
(D.C. Cir. 1982)
64 Local Joint Executive Board, supra, 540 F.3d at 1079 (noting that
because the “standard for waiving statutory rights . . . is high,” “[p]roof
MV TRANSPORTATION, INC. 35
standard in every case has always led, or always will lead,
to the correct finding.65
There is no merit in the majority’s contention that the
waiver standard “undermines contractual stability.” The
majority insists that the standard “results in perpetual bar-
gaining at the expense of contractual stability and repose.”
But the majority cites no empirical evidence at all for this
claim. If it were true, the majority should be able to sup-
port it by pointing to the actual experience of unions and
employers, in the real world of labor relations. The waiver
standard, after all, is 70 years old. Instead of pointing to
evidence, however, the majority rests on the unsupported
assertions made by the District of Columbia Circuit. The
Supreme Court has made clear, in applying the Adminis-
trative Procedure Act, that an administrative agency must
do better than this. It “must examine the relevant data and
articulate a satisfactory explanation for its action includ-
ing a rational connection between the facts found and the
choice made.”66 The majority has made no effort even to
discover “relevant data” here, much less tried to connect
that data to its adoption of the “contract coverage” stand-
ard. Perhaps data would have been forthcoming, if the ma-
jority had issued a public notice and invitation to file
briefs, announcing that it was prepared to reconsider the
waiver standard. But here, as in many other cases, the ma-
jority has rejected the option of seeking public participa-
tion in its decisionmaking.
Meanwhile, the majority fails to consider the destabiliz-
ing threat of the “contract coverage” standard, which pre-
dictably will encourage employers to seek broadly-
worded management-rights provisions, which unions just
as predictably will resist. Such conflicts diminish the like-
lihood of reaching any collective-bargaining agreement at
all.67 Unions may well decide that they, and the employ-
ees they represent, are better off resting entirely on the
statutory right to bargain created by the Act. That result
is hardly a recipe for stable, dispute-free workplaces. It

of a contractual waiver is an affirmative defense and it is the employer’s
burden to show that the contractual waiver is ‘explicitly stated, clear and
unmistakable’”).
65 “[N]o doubt, there are cases where the Board’s tilt toward bargain-
ing may seem stretched.” Gorman & Finkin, supra, Labor Law §20.16 at
741 (footnote omitted). As I have previously stated, “Board law requires
only that the parties’ intent to waive a right be clear and unmistakable,
not that the waiver be stated with lawyerly perfection.” Staffco of Brook-
lyn, LLC, 364 NLRB No. 102, slip op. 6–7 (2016) (dissenting opinion),
enfd. 888 F.3d 1297 (D.C. Cir. 2018).
66 State Farm Auto, supra, 463 U.S. at 43.
67 Employees already face tremendous employer opposition when
they try to form or join a union. Even when they succeed in gaining
representation, they face additional challenges when they try to negotiate
a first contract with their employer. A 2004 study showed that only 14
percent of union organizing drives that had the level of worker support
needed to petition for a representation election resulted in a first contract
within 1 year of certification. The same study showed that 34 percent of
represents exactly the regime of “perpetual bargaining”
that the majority hopes to avoid.68
There is no support either for the majority’s assertion
that the waiver standard “alters the parties’ deal reached
in collective bargaining.” The waiver standard is a rule for
determining what “deal” the parties reached. For the last
70 years, every collective-bargaining agreement reached
by parties who are covered by the National Labor Rela-
tions Act has been subject to the waiver standard. Ex-
pressed in the majority’s terminology, the waiver standard
is necessarily part of the deal. The danger to labor rela-
tions stability is far more likely to come from an em-
ployer’s unilateral changes in employees’ terms and con-
ditions of employment than it is from collective bargain-
ing over employer-desired changes, occasioned by the
waiver standard. The majority insists that the waiver
standard is “one sided” and favors unions. What the stand-
ard favors is collective bargaining. With respect to
changes in terms and conditions of employment–changes
that only an employer has the power to make–the Act im-
poses a duty to bargain on employers and grants unions a
corresponding right to demand bargaining. This frame-
work reflects the reality of the workplace, as well as the
overarching goal of the statute. It is “one sided” only in
the sense that it redresses an imbalance in power that ex-
isted before the Act was passed.
2.
The majority argues that the waiver standard must be
abandoned because it “results in conflicting contract inter-
pretations between the Board and the courts,” but this ar-
gument suffers from three obvious flaws. First, as ex-
plained, the Federal appellate courts that apply the
Board’s waiver standard outnumber those that apply the
“contract coverage” standard.69 Second, for all the rea-
sons that the majority’s adoption of the “contract cover-
age” standard is erroneous, so, too, should the Circuits that
union election victories had not resulted in a first contract after 2 or even
3 years of bargaining. John-Paul Ferguson, The Eyes of the Needles: A
Sequential Model of Union Organizing Drives, 1999-2004, 62 Indus. &
Lab. Rel. Rev. 5, 6 (2008) (a study of 22,382 organizing drives that filed
election petitions between 1999 and 2004). The majority’s adoption of
the contract coverage standard will only add to the considerable chal-
lenges employees already face when they attempt to bargain collectively
with their employer over their terms and conditions of employment.
68 The majority dismisses this concern too quickly. It is a particularly
viable possibility in the context of renegotiation of existing contracts.
Unions may decide, upon expiration of an existing contract, that rather
than executing a new contract with a management rights clause that
would be read under today’s decision to broadly waive the union’s bar-
gaining rights, they are better off relying on the employer’s statutory ob-
ligation to maintain the status quo as to most terms and conditions of
employment (i.e., wages, benefits, dues checkoff, and benefit contribu-
tions).
69 See supra, fn. 12.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
have adopted the “contract coverage” standard return to
the waiver standard—including the District of Columbia
Circuit, whose prior decisions endorsing the waiver stand-
ard have never been overruled.70 Notably, the Circuit also
has never had occasion to address the interplay of the
“contract coverage” standard and the Board’s new rule in
Raytheon, supra, permitting an employer to continue a
“past practice” of unilateral changes, based on a manage-
ment-rights clause, even after the contract expires. Ap-
plied together, the “contract coverage” standard and the
Raytheon rule will give employers wide latitude to make,
and keep making, unilateral changes—threatening labor
disputes and disrupting the collective-bargaining process.
The Raytheon rule might well prompt the D.C. Circuit to
reconsider its adoption of the “contract coverage” stand-
ard. Third, even accepting the dubious view that unilat-
eral-change cases should turn on whether a federal court
defers to the Board’s interpretation of a collective-bar-
gaining agreement,71 conflicting interpretations may result
regardless of what standard the Board uses to determine
whether the contract authorizes unilateral employer ac-
tion.
3.
The majority’s argument that the waiver standard “un-
dermines grievance arbitration” is baseless. Essentially

70 See supra, fn. 9.
71 As the Board explained in Provena,
The waiver standard . . . does not involve merely a question of contract
interpretation, in the sense of determining what the contract means and
whether it has been breached. Rather, the waiver standard reflects the
Board’s interpretation of the statutory duty to bargain during the term
of an existing agreement. . . . Stated somewhat differently, while the
Board’s interpretation of a collective-bargaining agreement may not be
entitled to judicial deference, the Board’s interpretation of the Act and
the duty to bargain is.
350 NLRB at 814.“Congress assigned to the Board the primary task
of construing [Secs. 8(a)(5) and 8(d) of the Act] in the course of adjudi-
cating charges of unfair refusals to bargain.” Ford Motor Co. v. NLRB,
441 U.S. 488, 495 (1979). Because the Board has “the primary respon-
sibility of marking out the scope of the statutory language and of the
statutory duty to bargain,” its construction of these provisions is “entitled
to considerable deference.” Id. at 495–496. The Board has determined
that the policies underlying the Act in general, and Secs. 8(a)(5) and 8(d)
in particular, strongly support the application of the clear and unmistak-
able waiver standard in cases were an employer asserts a contractual de-
fense to a charge of unilateral action.
72 350 NLRB at 815 (emphasis in original), citing Smurfit-Stone Con-
tainer Corp., 344 NLRB 658, 660 fn. 4 (2005). See Weavexx, LLC, 364
NLRB No. 141, slip op. at 2 (2016); Southern California Edison Co.,
310 NLRB 1229, 1231 (1993) (arbitral award “can be susceptible to the
interpretation that the arbitrator found a waiver even if the arbitral award
does not speak in [terms of clear and unmistakable waiver]”), affd. sub
nom. Utility Workers Local 246 v. NLRB, 39 F.3d 1210 (D.C. Cir. 1994).
See also Gorman & Finkin, supra, Labor Law §20.16 at 737 (“[O]ver
time, the Board has come to express a preference to have union charges
of unilateral action during the contract term processed through the
the same argument was refuted by the Provena Board,
which explained that the Board applies the waiver stand-
ard “only where there is no basis for deferral to arbitra-
tion” and noted that the Board will defer to an arbitrator’s
decision “even where the arbitrator did not apply the
Board’s waiver standard.”72 The majority challenges nei-
ther of these points. Meanwhile, its suggestion that unions
somehow manage to circumvent arbitration, and do so to
gain the benefit of the Board’s waiver standard, is unsup-
ported. Here, for example, the employer did not seek de-
ferral to arbitration. In any case, arbitrators themselves
have applied the waiver standard, if not uniformly, and the
leading treatise on arbitration recognizes the waiver stand-
ard.73 In short, the Board’s waiver standard in no way con-
flicts with the federal labor policy favoring arbitration.
4.
The majority’s final proffered reason for abandoning
the Board’s waiver standard is that it “has become inde-
fensible and unenforceable” in the face of the District of
Columbia Circuit’s rejection of the standard and the fact
that any waiver decision by the Board may be reviewed in
that Circuit. As a factual matter, aggrieved parties can and
do seek review in other Circuits,74 and the Board, too, can
seek enforcement in other Circuits.75 But the short answer
to the majority’s argument is that the Board is not required
grievance and arbitration provisions of the parties’ contract when that
would be capable of disposing of the dispute.”).
73 Compare Bakery Confectionary Tobacco Workers and Grain Mil-
lers International Union Local 366-G v. Nestle Purina Petcare Co., 2016
WL 10649399 (2016) (applying clear and unmistakable waiver stand-
ard); International Brotherhood of Teamsters v. Rock Island Integrated
Services, 2004 WL 5841301 (2004) (same); In re Russell, 2000 WL
36177202 (2000) (same) with Minneapolis Automobile Dealers’ Associ-
ation Rudy Luther Toyota v. Garage Maintenance, Machine Warehouse-
men, Repairmen, Inside Men, Helpers and Plastic Employees, Local No.
974, 2011 WL 11540128 (2011) (applying “contract coverage” stand-
ard). See also Elkouri & Elkouri, How Arbitration Works, Ch. 13.2.A.i.d
(7th ed. 2012) (“To establish a waiver of the statutory right to negotiate
over mandatory subjects of collective bargaining, there must be a clear
and unmistakable relinquishment of that right. Management-rights lan-
guage that merely reserves to the employer the authority to create and
enforce reasonable rules does not rise to the level of a waiver.”).
74 See Sec. 10(f) of the Act: “Any person aggrieved by a final order of
the Board granting or denying in whole or in part the relief sought may
obtain a review of such order in any United States court of appeals in the
circuit wherein the unfair labor practice in question was alleged to have
been engaged in or wherein such person resides or transacts business, or
in the United States Court of Appeals for the District of Columbia . . . ”
75 Since the D.C. Circuit adopted the contract-coverage standard in
1993 in Postal Service, a significant number of Board decisions involv-
ing the waiver standard have been reviewed in other circuits. See, e.g.,
Finley Hospital v. NLRB, 827 F.3d 720 (8th Cir. 2016); Electrical Work-
ers Local 36 v. NLRB, 706 F.3d 73 (2d Cir. 2013), cert. denied 573 U.S.
958 (2014); Local Joint Executive Board of Las Vegas v. NLRB, 540 F.3d
1072 (9th Cir. 2008); Bath Marine Draftsmen’s Assn. v. NLRB, 475 F.3d
14 (1st Cir. 2007); Mississippi Power Co. v. NLRB, 284 F.3d 605, 612–
613 (5th Cir. 2002); Georgia Power Co., 325 NLRB 420, 420-421
MV TRANSPORTATION, INC. 37
to acquiesce in the Circuit’s view—as the Circuit itself
acknowledges—but is instead free to seek Supreme Court
review.76 As the Provena Board noted, the “Board has a
long-established policy of refusing to acquiesce in the ad-
verse decisions of the appellate courts.”77 This case, as
other waiver-standard decisions, “involves an issue on
which there is an inter-circuit conflict and on which the
Board’s position accords with the majority view.”78 As
Circuit Judge Skelly Wright pointed out decades ago, it
would be “unwise” to oppose the Board’s nonacquiesence
policy “in light of the instances in which positions taken
by the Board were first repeatedly rejected by a large num-
ber of circuits, then accepted by others, and later accepted
by the Supreme Court.”79 Here, of course, the Board’s po-
sition on the waiver standard has already been accepted
by the Supreme Court, more than 50 years ago, in C & C
Plywood—as the majority acknowledges. Its argument
that the Board should acquiesce in lower court decisions
that are contrary to Supreme Court precedent is supremely
irrational.
. . .
In sum, then, not one of the half-dozen reasons ad-
vanced by the majority for abandoning the waiver stand-
ard has substance. Some reasons are plainly foreclosed by
the Supreme Court’s decision in C & C Plywood. Others
amount to empirical claims for which the majority cites no
evidence—and has deliberately avoided seeking any. Still
others reflect a clear misunderstanding of well-established
Board law and policy, as well as the basic aims of the

(1998), enfd. mem. 176 F.3d 494 (11th Cir. 1999), cert. denied 528 U.S.
1061; Bonnell/Tredegar Industry v. NLRB, 46 F.3d 339, 346 fn. 6 (4th
Cir. 1995); NLRB v. Hi-Tech Cable Corp., 25 F.3d 1044 (5th Cir. 1994).
76 See Enloe Medical Center v. NLRB, 433 F.3d 834, 838 (D.C. Cir.
2005).
77 350 NLRB at 814, citing, inter alia, Insurance Agents (Prudential
Insurance Co.), 119 NLRB 768, 773 (1957), set aside 260 F.2d 736 (D.C
Cir. 1958), affd. 361 U.S. 477 (1960).
78 Heartland Plymouth Court MI, LLC v. NLRB, supra, 838 F.3d at 30
(Millett, C.J., dissenting).
79 Yellow Taxi Co. v. NLRB, 721 F.2d 366, 385 (D.C. Cir. 1983)
(Wright, C.J., concurring).
80 See, e.g., Total Security Management Illinois 1, LLC, 364 NLRB
No. 106, slip op. at 11–12 (2016) (new rule requiring employers to bar-
gain with newly-elected unions before imposing discretionary discipline,
not applied retroactively because the law was uncertain at the time of
employer’s alleged unilateral discipline); Loomis Armored US, Inc., 364
NLRB No. 23, slip op. at 2, 7 (2016) (new rule barring withdrawal of
recognition from a unit of guards not applied retroactive, because em-
ployers had relied on pre-existing law permitting such withdrawal); Lin-
coln Lutheran of Racine, 362 NLRB 1655, 1663 (2015) (new rule that
dues-checkoff requirement would not terminate with expiration of col-
lective-bargaining agreement not applied retroactively, because employ-
ers had relied on preexisting law); Babcock & Wilcox Construction, 361
NLRB 1127, 1139–1140 (2014) (new standard of deferral to arbitration
not applied retroactively, because unions and employers had relied on
National Labor Relations Act. Taken as a whole, the ma-
jority’s decision falls far short of what the Supreme Court
requires when an administrative agency makes a radical
break from precedent.
III.
The majority compounds its error by deciding to apply
its new “contract coverage” standard retroactively. The
Board has not hesitated, however, to apply new rules only
prospectively, when circumstances warrant.80 There is no
dispute about what factors the Board must consider under
its own precedent: (1) “the reliance of the parties on preex-
isting law”; (2) “the effect of retroactivity on accomplish-
ment of the purposes of the Act”; and (3) “any particular
injustice arising from retroactive application.”81 Here, all
three factors weigh heavily against retroactive application.
First, as the Board has recognized in a similar case ig-
nored by the majority,82 applying the new standard in
pending cases would be manifestly unjust to parties that
have relied on the current standard in negotiating collec-
tive-bargaining agreements. The Provena Board correctly
explained that adopting the “contract coverage” standard
would have “threaten[ed] to upset the settled expectations
of parties to existing collective-bargaining agreements.”83
Its observation applies here to the issue of retroactivity:
Because the waiver standard has been settled Board law
for . . . decades (and its reasonableness has been estab-
lished by the Supreme Court . . .), it would be sensible to
assume that a collective-bargaining agreement negoti-
ated during that period was reached with the waiver
previous rule in negotiating contracts), review denied sub nom. Beneli v.
NLRB, 873 F.3d 1094 (9th Cir. 2017); Levitz Furniture, 333 NLRB 717,
729 (2001) (applying new, “significantly more lenient” standard pro-
spectively when the previous standard “was the law for nearly half a cen-
tury”).
81 SNE Enterprises, Inc., 344 NLRB 673, 673 (2005).
82 See Babcock & Wilcox, supra, 361 NLRB at 1139–1140.
My colleagues cite John Deklewa & Sons, 282 NLRB 1375, 1389
(1987), in support of their decision to apply the new standard retroac-
tively. However, the Board in Deklewa found that retroactive application
was permissible, in part, because the precedent that it overruled was “un-
settled and confusing,” and the “[t]he infirmities and uncertainties in cur-
rent law” made it unlikely that a party had acted in reliance on the prior
standard. Id. Stated otherwise, the new rule announced in Deklewa
merely filled a void in an unsettled area of law. In contrast, the new
standard adopted today represents an abrupt departure from “one of the
oldest and most familiar of Board doctrines.” Provena, 350 NLRB at
810. The Board in Deklewa also noted that, to the extent the retroactive
application of the Board’s new Sec. 8(f) principles imposed on parties’
obligations and liabilities they would not have incurred under existing
law, the additional burden would be “borne only for the duration of the
contract involved.” Id. As discussed above, however, together with the
majority’s recent decision in Raytheon, the practical effect of the adop-
tion of the “contract coverage” standard is to impose a near-perpetual
waiver of statutory bargaining rights on nonconsenting unions.
83 350 NLRB at 813.
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
standard in mind. Any attempt to give effect to the inten-
tions of the parties therefore would entail continuing to
analyze those agreements under the waiver standard.
Changing the standard, in contrast, would create a sig-
nificant and unbargained-for shift of rights to employers
and away from employees and unions, who previously
thought they were assured of the right to bargain over
matters that were not explicitly waived.
350 NLRB at 813 (footnote omitted; emphasis added).84
Second, the failure to apply the new standard retroac-
tively would in no way undermine the purposes of the Act.
As the Board has explained, in declining to apply a new
standard retroactively where that would affect existing
contracts, “a principal purpose of the Act is to promote
collective bargaining, which necessarily involves giving
effect to the bargains the parties have struck in concluding
collective-bargaining agreements.”85
Third, the immediate imposition of the “contract cover-
age” standard would be particularly unjust, because it
would defeat the expectations of unions that previously
thought they were assured the right to bargain collectively
over matters that were not explicitly waived. And, this
injustice would have continuing consequences in light of
the majority’s Raytheon decision, which permits employ-
ers to keep making unilateral changes even after a collec-
tive-bargaining agreement expires, as the supposed con-
tinuation of a past practice developed under the contract.86
Given the majority’s acquiescence to the District of Co-
lumbia Circuit, finally, it is worth noting that this case
arises in the Ninth Circuit, which not only applies the
waiver standard, but which has analyzed the retroactivity
of Board decisions in a way that makes it unlikely that the
majority’s decision here would be sustained.87

84 The majority is therefore incorrect in its assertion that retroactive
application of today’s decision “takes no rights from the Union that it did
not voluntarily agree to cede in collective bargaining.”
To the extent the majority suggests that the reliance interests of un-
ions, as opposed to employers, are irrelevant in determining whether ret-
roactive application of a new rule will work a manifest injustice, I disa-
gree.
85 Babcock & Wilcox, supra, 361 NLRB at 1140.
86 My colleagues argue that it is “difficult to reconcile” my opposition
to retroactivity here with my support for retroactive application of the
revised joint-employer standard in BFI Newby Island Recyclery, 362
NLRB 1599 (2015). But that case presented nothing like the “particular
injustice” created by the majority today. The Browning Ferris Board
clarified the applicable standard in an unsettled area of the law by
reestablishing longstanding prior precedent that had been altered without
explanation. By contrast, the majority today overturns a 70-year old doc-
trine that has been approved by a majority of the Circuit Courts and the
Supreme Court. Further, and importantly, unlike the current majority,
the Browning Ferris Board provided advance notice to the parties and
the public that it was considering revising the joint-employer standard
and invited briefing from all concerned. Thus, the parties there-- unlike
IV.
It is a cardinal principle of contract interpretation that a
contract must be construed in the light of the applica-
ble law at the time it was executed. Thus, changes in the
law subsequent to the execution of a contract are not
deemed to become part of the agreement unless its lan-
guage clearly indicates that to have been intention of par-
ties. 11 Williston on Contracts § 30:23 (4th ed.) At the
time the Agreement in this case was negotiated, the Board
and a majority of Circuit Courts, including the Ninth Cir-
cuit where this case arises, applied the waiver standard.
Nothing in the Agreement or the specific facts of this case
suggests that the parties intended to avoid that standard.
Applying the waiver standard, I would find, contrary to
the majority, that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally implementing the Safety
Policy, the Schedule Adherence Policy, and the Security
Sweep/Breach Policy. As argued by the General Counsel
in his brief, those policies imposed significant changes in
discipline affecting employees’ conditions of employ-
ment. Even if the Respondent were correct in its assertion
that general language in the parties’ collective-bargaining
agreement referencing the Respondent’s right “to adopt
and enforce reasonable work rules” and “to issue, amend
and revise policies, rules and regulations” constituted a
waiver of the Union’s right to bargain over new and re-
vised policies governing safety, schedules, and security,
nothing in those provisions or elsewhere in the collective-
bargaining agreement clearly and unmistakably waived
the Union’s right to bargain over the discipline to be im-
posed for violating such policies.88
In all other respects, I agree with the results reached by
the majority. Thus, I find that the Respondent violated
here--at least had an opportunity to address the consequences of potential
revisions before they were made.
87 See Beneli v. NLRB, 873 F.3d 1094, 1099–1011 (9th Cir. 2017). In
Beneli, the Ninth Circuit affirmed the Board’s decision in Babcock &
Wilcox to apply its new rule on deferral to arbitration only prospectively,
because existing collective-bargaining agreements had been drafted in
light of the old rule. As factors weighing against retroactivity, the court
cited the fact that the Board’s decision was an “abrupt departure from
well-established practice” and that the employer had relied on the
Board’s old rule. Id. The court observed that “[o]ne of the Board’s pri-
mary functions is to foster stability in labor relations, to encourage good-
faith negotiation, and to give effect to the parties’ agreements”—all con-
siderations that supported prospective-only application. Id. at 1011.
88 See, e.g., Windstream Corp., 352 NLRB 44, 50 (2008), affd. and
incorporated by reference 355 NLRB 406 (2010) (management-rights
clause referencing employer’s right “to establish reasonable rules and
regulations” did not clearly and unmistakably waive the union’s right to
bargain over changes in the level of discipline the employer could impose
for work rule violations); Dorsey Trailers, Inc., 327 NLRB 835, 835–
836 (1999) (management-rights clause referencing employer’s right to
make “reasonable rules, not in conflict with this agreement” did not
clearly and unmistakably waive the union’s right to bargain over
MV TRANSPORTATION, INC. 39
Section 8(a)(5) and (1) of the Act by implementing the
Bereavement Pay Policy, the CDL Reimbursement Policy,
and the Required Extra Assignments Policy. The majority
found that by implementing those policies, the Respond-
ent modified the parties’ collective-bargaining agreement
within the meaning of Section 8(d), and that it lacked a
“sound arguable basis” for believing that the collective-
bargaining agreement authorized its unilateral action. See
Bath Iron Works, supra, 345 NLRB at 501-502 (2005). I
express no opinion on whether Bath Iron Works was cor-
rectly decided, but I agree that under this standard the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
modifying the collective-bargaining agreement without
the Union’s consent.
I also concur in the majority’s dismissal of the unilat-
eral-change allegations concerning the Acceptable As-
signments for Employees on Temporary Modified Work
Status Policy and the DriveCam Policy, but only because
I find that those policies did not result in “material, sub-
stantial, and significant” changes in employees’ terms and
conditions of employment. Crittenton Hospital, 342
NLRB 686, 686 (2004); Bath Iron Works Corp., 302
NLRB 898, 901 (1991). I further concur in the dismissal
of the contract-modification allegations concerning the
Respondent’s implementation of the Operator Fails to
Log-in to AMDT Policy and the Customer Service Policy,
but only because I find that the General Counsel failed to
identify a provision in the collective-bargaining agree-
ment that was modified.
V.
Today’s decision presents a grave threat to the practice
of collective bargaining in the United States. Coupled with
the new Raytheon rule that permits employers to continue
a “past practice” of unilateral changes when the contract
expires, the “contract coverage” standard creates a power-
ful incentive for employers to insist on sweeping manage-
ment-rights provisions in collective-bargaining agree-
ments. With such contractual language in place, employ-
ers will be free to change employees’ terms and conditions
of employment at will during the term of the agreement
and after, the duty to bargain created by the National La-
bor Relations Act will effectively be set aside, and Amer-
ican workplaces risk returning to the era before 1935 when
employers could, and did, exercise their power unchecked.

discipline-linked changes to attendance policy), enfd. in relevant part 233
F.3d 831 (4th Cir. 2000). Cf. United Technologies Corp., 287 NLRB
198, 198 (1987) (Board found that management-rights clause which spe-
cifically referenced the employer’s “right to make and apply rules and
regulations for . . . discipline” constituted a waiver of the union’s right
to bargain about changes in disciplinary procedures for absenteeism),
enfd. 884 F.2d 1569 (2d Cir. 1989).
Alternatively, unions may decide that they and the
workers they represent are better off without a collective-
bargaining agreement that strips them of a crucial statu-
tory right. With no contract in place, the statutory duty to
bargain will still apply, and the union will be able to de-
mand that the employer bargain to impasse over all man-
datory subjects of bargaining, whenever they come up.
This is not the regime that Congress envisioned, where la-
bor disputes would be replaced by collective-bargaining
agreements. In short, the majority makes a bad mistake
here. Worse, the error is unforced. Nothing requires the
Board, against its better judgment, to acquiesce in a court
of appeals decision that is contrary to Supreme Court prec-
edent and that contradicts the policies of the National La-
bor Relations Act. Because the waiver standard is a bed-
rock principle of Federal labor law that the Board should
defend, not abandon, I dissent.
Dated, Washington, D.C. September 10, 2019
______________________________________
Lauren McFerran, Member
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 vio-
lated 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 fail to continue in effect the terms and
conditions of the collective-bargaining agreement with
Amalgamated Transit Union Local #1637, AFL–CIO,
My colleagues’ argument that the Respondent’s “right to issue, amend
and revise policies, rules, and regulations” is referenced in the section of
the Agreement dealing with discipline is unavailing, since that language
appears in a subsection entitled “Work Rules” and there is no specific
reference to discipline in that subsection.
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CLC (the Union) without the Union’s consent by limiting
bereavement leave eligibility to full-time, non-probation-
ary employees; limiting commercial driver’s license reim-
bursement eligibility to currently employed, active, full-
time, and nonprobationary employees; and requiring em-
ployees seeking to be excused from performing a required
extra assignment to submit documentation 48 hours in ad-
vance of the forced work assignment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL restore the terms of the collective-bargaining
agreement as it existed prior to March 26, 2016, and con-
tinue in effect all the terms and conditions of employment
contained in the expired collective-bargaining agreement
unless and until we bargain with the Union to agreement
or impasse on different terms and conditions.
WE WILL make whole our unit employees for any loss
of earnings and other benefits suffered as a result of our
unlawful actions, with interest.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Direc-
tor for Region 28, within 21 days from the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar year(s) for each employee.
MV TRANSPORTATION, INC.
The Board’s decision can be found at
https://www.nlrb.gov/case/28-CA-173726 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.