Omaha World-Herald

National Labor Relations Board - Board Decisions

Dec 30, 2011

357 N.L.R.B. 1870 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 156
1870
Omaha World-Herald and Teamsters District Coun-
cil 2, Local 543M, affiliated with International
Brotherhood of Teamsters. Case 17–CA–024389
December 30, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
The question presented in this case is whether the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
implementing changes to benefit plans without giving the
Union an opportunity to bargain.1 Specifically, on Janu-
ary 1, 2009, the Respondent froze the accrual of benefits
in its pension plan and, on April 1, 2009, ceased match-
ing contributions to employee 401(k) plan accounts. The
judge rejected the Respondent’s argument that the Union
waived its right to bargain over these changes, finding
that, in both instances, the Respondent violated the Act
as alleged.
As discussed below, a majority of the Board (Members
Becker and Hayes) reverses the judge’s determination
that the Respondent’s change to its pension plan violated
Section 8(a)(5) and (1), finding that, under all the cir-
cumstances of this case, the Union waived its right to
bargain over those changes during the term of the con-
tract. A different majority (Chairman Pearce and Mem-

1 On March 26, 2010, Administrative Law Judge James M. Kennedy
issued the attached decision and, on April 7, 2010, he issued an erra-
tum. The Respondent filed exceptions and a supporting brief, the Gen-
eral Counsel filed an answering brief, and the Respondent filed a reply
brief.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge’s rulings,
findings, and conclusions only to the extent consistent with this Deci-
sion and Order. We have amended the remedy and conclusions of law,
and have modified the judge’s recommended Order to conform to our
findings. We shall also substitute a new notice to conform to the Order
as modified.
In his recommended Order, the judge included broad language re-
quiring the Respondent to cease and desist from violating the Act “in
any other manner.” We have modified the Order to include the narrow
injunctive language “in any like or related manner,” consistent with the
judge’s recommended notice to employees, as we find that a broad
order is not warranted under the circumstances of this case. See Hick-
mott Foods, 242 NLRB 1357 (1979).
We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
Some of the Respondent’s exceptions allege that the judge’s rulings,
findings, and conclusions demonstrate bias and prejudice. On careful
examination of the judge’s decision and the entire record, we are satis-
fied that the Respondent’s contentions are without merit.
The Respondent has requested oral argument. This request is denied
as the record, exceptions, and briefs adequately present the issues and
positions of the parties.
ber Becker), adopts the judge’s conclusion that the Union
did not waive its right to bargain over the change to the
401(k) plan. Consistent with extant Board precedent,
they find that the Respondent was not privileged to make
this change because it occurred after the parties’ contract
and attendant waivers had expired.
I. THE PENSION PLAN CHANGE2
Contrary to the judge, we conclude that the Respond-
ent has established that the Union clearly and unmistaka-
bly waived its right to bargain during the term of the con-
tract over changes to the employee pension plan. In so
concluding, we rely on an amalgam of factors that sup-
port a finding of waiver even though none of the factors,
standing alone, is sufficient to establish waiver under
existing precedent cited by the General Counsel.3
First is the collective-bargaining agreement language
addressing the pension plan.4 Article 28 of that agree-
ment provides:

The Company acknowledges that bargaining unit em-
ployees are eligible to participate in the retirement plan,
group hospital, loss of time and life insurance programs
provided the requirements for participation are met.
The Company will advise the Union of proposed
changes and meet to discuss and explain changes if re-
quested. Inasmuch as the plans cover all employees,
not just bargaining unit employees, changes in these
plans are not subject to Article Five of the Agreement
[the grievance and arbitration clause]. Employees may
retire at age 65.

2 Members Becker and Hayes join in this part of the opinion except
where noted.
3 Because this combination of factors plainly establishes waiver,
Member Hayes finds it unnecessary to decide whether, singly, any of
the factors would do so. He also finds that the Respondent was privi-
leged to make the change under either the Board’s “clear and unmistak-
able” waiver standard or the “contract coverage” analysis applied by
the U.S. Courts of Appeals for the D.C. and Seventh Circuits. See
Chicago Tribune Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992); Depart-
ment of the Navy v. FLRA, 962 F.2d 48 (D.C. Cir. 1992); NLRB v.
Postal Service, 8 F.3d 832 (D.C. Cir. 1993). Accordingly, he finds it
unnecessary to decide at this time whether to adopt the “contract cover-
age” analysis instead of the “clear and unmistakable” waiver standard.
Member Hayes further observes that the Board has recognized that an
employer’s unilateral change does not violate Sec. 8(a)(5) where, as
here, it is made pursuant to a “well-established past practice” accepted
by a union. See, e.g., Courier-Journal, 342 NLRB 1093, 1094 (2004).
Because he agrees with Member Becker that waiver is established even
without considering evidence of past practice, he does not reach the
issue of the weight such evidence should be accorded in determining
whether bargaining was required in the instant case.
4 When the Respondent made the January 2009 change to the pen-
sion plan, the parties’ collective-bargaining agreement remained in
effect. The agreement expired on February 5, 2009. At the time of the
hearing, in July 2009, the parties had not reached a successor agree-
ment nor had they agreed to extend the expired agreement.
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All parties concede that the agreement’s reference to
“the retirement plan” is to the Employer’s unilaterally
created pension plan. That pension plan is not described
in the agreement and thus the reference can only be un-
derstood by examining the plan’s prior operation and the
governing plan documents. Although not directly quoted
in the judge’s decision, the plan documents include res-
ervation of rights language, which expressly provides
that the “Employer shall have the right at any time to
amend the Plan,” including “determin[ing] all questions
relating to the eligibility of Employees to participate or
remain a Participant hereunder and to receive benefits
under the Plan.” The Board previously has held that sim-
ilar contractual language—i.e., language providing that
unit employees would participate in the company’s bene-
fits programs on the same basis as all other employees—
was too ambiguous, standing alone, to demonstrate a
union’s assent to an employer’s right to make unilateral,
companywide changes to benefits plans affecting repre-
sented employees, even when the plan documents con-
tained a similar reservation of rights clause.5 Here, how-
ever, the contractual reference to an existing plan, the
governing documents of which contain a reservation-of-
rights clause, is not the only evidence of waiver.
The second factor contributing to our finding of a
waiver is the existence of language in the collective-
bargaining agreement expressly excluding changes to the
retirement plan (and other company-wide, unilaterally
established plans) from the parties’ grievance and arbitra-
tion procedure. Although the Board has held that the
mere exclusion of a subject from a contractual griev-
ance/arbitration system does not constitute a clear and
unmistakable waiver of a union’s right to bargain con-
cerning the subject,6 the contract here goes further and
explains that changes to the benefit plans are excluded
from the grievance and arbitration procedure because the
plans cover all employees, not simply represented ones.
This explanation suggests that the Respondent was at-
tempting to preserve its authority to make uniform

5 See, e.g., Rockford Manor Care Facility, 279 NLRB 1170, 1172–
1173 (1986) (no waiver where agreement provided that unit employees
“will participate in the [c]ompany’s [benefits] programs on the same
basis as other employee members of the group.”); Trojan Yacht, 319
NLRB 741, 742–743 fn. 5 (1995) (no waiver where agreement provid-
ed that benefits “will be maintained in the same manner and to the same
extent such plans are generally made available and administered on a
corporate basis”).
6 See, e.g., Bonnell/Tredegar Industries, 313 NLRB 789, 791 (1994),
enfd. 46 F.3d 339 (4th Cir. 1995) (parties’ “exclusion of certain benefit
provisions from the grievance-arbitration procedure is open to any
number of possible inferences, including the likelihood that the parties
simply preferred to resolve disputes over these subjects in other fo-
rums”).
changes in the plans as they applied to both represented
and unrepresented employees.
Third, the collective-bargaining agreement states that
the Respondent “will advise the Union of proposed
changes [to the pension plan] and meet to discuss and
explain changes if requested.” The judge found that this
clause alone was insufficient to constitute a clear and
unmistakable waiver. In combination with the language
discussed above, however, the clause supports such a
finding. It is surely significant that the parties chose the
terms “discuss” and “explain” rather than “bargain over.”
Indeed, had the parties intended to convey a bargaining
obligation with respect to changes to the pension plan,
they likely would have used the term “bargain,” as they
did elsewhere in the agreement.7 For that matter, if the
Union had not agreed to waive its statutory right to bar-
gain about changes to the plan, there was no need to in-
clude any language about a lesser contractual right.
In our view, the foregoing factors establish waiver in
this case and set it apart from other Board decisions in
which no clear and unmistakable waiver was found. The
contract, including article 28, was in effect when the
change to the pension plan occurred (in contrast to the
change to the 401(k) plan, discussed below). The parties
agreed that employees would be covered by a unilaterally
established pension plan covering all the Respondent’s
employees, both unit and nonunit. The agreement did
not describe the pension plan, which could only be un-
derstood by reference to the plan documents and existing
practice. The plan documents contained express reserva-
tion of rights language permitting the Respondent to uni-
laterally change the plan. The parties agreed that chang-
es in the plan were excluded from the contractual griev-
ance/arbitration system. The parties agreed to that exclu-
sion on the express ground that the plan covered unit and
nonunit employees. Finally, the parties agreed that the
Respondent would advise the Union and, upon request,
“meet and discuss” changes to the plan, rather than bar-
gain over them. In combination, we conclude that these
facts demonstrate that the Union clearly and unmistaka-
bly waived its right to bargain about changes to the pen-
sion plan during the contract’s term. See Columbus
Electric Co., 270 NLRB 686, 686 (1984), enfd. sub nom.
Electrical Workers Local 1466 v. NLRB, 795 F.2d 150
(D.C. Cir. 1986) (clear and unmistakable evidence of the
parties’ intent to waive a duty to bargain “is gleaned
from an examination of all the surrounding circumstanc-

7 For example, art. Four (“Jurisdiction”) of the parties’ agreement
provides, inter alia: “The company recognizes the Union as the sole
and exclusive collective bargaining agent for the purpose of collective
bargaining concerning wages, hours and other conditions of employ-
ment for employees covered by this agreement.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1872
es including but not limited to bargaining history, the
actual contract language, and the completeness of the
collective-bargaining agreement”).
Corroborating our finding of waiver is the fact that the
Union did not object to a similar, prior unilateral change
by the Respondent during the term of the contract. Spe-
cifically, in 2005, the Respondent modified its pension
plan by removing all employees under age 50 from the
plan. The Union neither objected to the change nor re-
quested bargaining. The Board has previously held that a
union’s acquiescence in an employer’s prior unilateral
changes, without more, generally does not constitute a
waiver of the right to bargain over such changes for all
time.8 However, this prior uncontested unilateral change
does suggest that past practice under article 28 has been
consistent with a waiver of the right to bargain over mod-
ifications to the pension plan.
Our dissenting colleague finds the evidence cited
above insufficient to establish a waiver under the clear
and unmistakable standard. He observes that the Board
previously has found the factors we rely upon insuffi-
cient, individually, to prove waiver, and contends they
are wanting in combination as well. The dissent contends
that, in finding otherwise, our decision “dilutes or aban-
dons” the Board’s established waiver standard. We re-
spectfully disagree.
Plainly, the language of article 28 cited above, the res-
ervation of rights clause in the plan documents, and the
parties’ past practice all are relevant to the question of
whether the record supports a finding of waiver. We
have appropriately, and consistent with extant precedent,
considered the cumulative weight of this evidence. Co-
lumbus Electric Co., supra. No prior decisions have in-
volved the unique combination of factors that exists in
this case.9 Accordingly, we have neither diluted nor

8 See, e.g., Register-Guard, 339 NLRB 353, 356 (2003); Johnson-
Bateman Co., 295 NLRB 180, 188 (1989). Moreover, the Board has
previously held that a union’s acquiescence in prior unilateral changes–
even together with reservation of rights language similar to that in the
instant case–was insufficient to establish a waiver. See, e.g., Southern
Nuclear Operating Co., 348 NLRB 1344, 1352 (2006), enfd. in part,
vacated in part 524 F.3d 1350 (D.C. Cir. 2008); Amoco Chemical Co.,
328 NLRB 1220, 1222 fn. 6 (1999), enf. denied 217 F.3d 869 (D.C.
Cir. 2000). These decisions are not inconsistent with our conclusion
here, however, as our finding of a waiver rests upon a combination of
other factors.
9 See, e.g., Amoco, supra (reservation of rights provision did not es-
tablish waiver where simply mentioned in collective-bargaining agree-
ments as general source of information about plans; unlike this case
there were no terms obligating employer to “discuss and explain chang-
es” or explaining that disputes over the plan were excluded from griev-
ance arbitration); Southern Nuclear, supra at 1356 (reservation of rights
provision did not establish waiver where collective-bargaining agree-
ments did not even mention plan at issue; recognizing, however, that
language stating employer “shall provide a comprehensive group major
abandoned the clear and unmistakable waiver standard,
but have instead applied it to the totality of the circum-
stances presented.
II. THE 401(K) PLAN CHANGE10
After the expiration of the parties’ collective-
bargaining agreement, the Respondent unilaterally im-
plemented the change to its 401(k) plan described above.
In finding that this change violated Section 8(a)(5) and
(1), the judge rejected the Respondent’s argument that
the Union waived its right to bargain about this change.
In its exceptions, the Respondent continues to assert this
waiver argument, relying on the above cited contractual
provisions, additional contractual provisions relating
solely to the 401(k) plan,11 and 401(k) plan documents.12
We need not address whether these facts would be suffi-
cient to establish waiver if the agreement remained in
force at the time of the unilateral change. Under well-
settled Board law, “the waiver of a union’s right to bar-
gain does not outlive the contract that contains it, absent
some evidence of the parties’ intentions to the contrary.”
Ironton Publications, 321 NLRB 1048, 1048 (1996).
This principle applies both to collective-bargaining
agreements and to reservation of rights language embod-
ied in outside plan documents incorporated by reference.
See E. I. Du Pont de Nemours, Louisville Works, 355
NLRB No. 176, slip op. at 2 (2010). Because there is no
evidence that the parties intended any relevant provision
of the agreement to continue in force beyond its expira-
tion, any waiver that might be shown by the contract
language or plan documents cited by the Respondent
ended when the contract expired. See Paul Mueller Co.,
332 NLRB 312, 313 (2000).13

medical insurance program-covering employees who comply with the
eligibility and qualification requirements” “appears to constitute a
waiver” with respect to that plan).
10 Chairman Pearce and Member Becker join in this part of the opin-
ion.
11 Sec. 28 of the parties’ agreement provides that “[t]he Company
agrees that if the Omaha World-Herald Newspaper board of directors
approves the implementation of a 401(k) plan for its employees, bar-
gaining unit employees will be eligible to participate in such a plan the
same as all other employees based on the provisions of the plan adopt-
ed.”
12 Art. II (“Contributions”) of the 401(k) Summary Plan Description
provides that the Respondent has the discretion to determine, if any, the
percentage of matching contributions.
13 We also reject, for the reasons stated by the judge, the Respond-
ent’s argument that the parties’ past practice privileged its April 2009
unilateral change to the 401(k) plan.
The Respondent argues that the judge erred by not placing rejected
exhibits–related to the Respondent’s past practice argument–in a reject-
ed exhibits file. While we agree that the judge erred by not placing
these exhibits in a rejected exhibits file, we find that this error was not
prejudicial and therefore does not require reversal of the judge’s deci-
sion or remand.
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1873
In arguing that this change should be found lawful, our
dissenting colleague concedes that well-established prec-
edent dictates otherwise. In the dissent’s view, the reser-
vation of rights language here, standing alone, authorized
unilateral action on the Respondent’s part both during the
contract term and indefinitely thereafter. However, as
the Board recently reiterated in E. I. Du Pont, a reserva-
tion of rights clause is not, in itself, a term or condition
of employment that continues in force under Section
8(a)(5) as part of the status quo. See 355 NLRB No. 176
at 3 fn. 9 (citing Holiday Inn of Victorville, 284 NLRB
916, 916 (1987)). Rather, when incorporated by refer-
ence in a collective-bargaining agreement,14 a reservation
of rights clause is a waiver of a union’s statutory right to
bargain over such matters and, thus, like any waiver,
expires with the contract absent evidence of a clear and
unmistakable intent to the contrary. Holiday Inn, 284
NLRB at 916. No evidence exists in this case to suggest
that the parties intended the reservation of rights lan-
guage in the 401(k) plan documents to continue postcon-
tract expiration.
For all the foregoing reasons, we adhere to Board
precedent and adopt the judge’s conclusion that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
making its April 2009 change to the 401(k) plan.
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusion of Law 4 and renumber
the remaining paragraph.
AMENDED 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. We shall order the
Respondent, upon request of the Union, to bargain with
the Union, as the exclusive collective-bargaining repre-
sentative of the unit, with respect to matching contribu-
tions to employees’ 401(k) plan accounts. We shall also
order the Respondent to rescind the unlawful change in
the 401(k) plan that it made on April 1, 2009, restore the

14 Here, the collective-bargaining agreement did not, with sufficient
specificity, incorporate by reference the 401(k) plan and its governing
documents, including any reservation of rights language included there-
in. See Amoco Chemical, supra, 328 NLRB 1220; Trojan Yacht, supra,
319 NLRB 741. We find that, even under the more lenient standard
applied by the U.S. Court of Appeals for the D.C. Circuit, the parties’
agreement did not incorporate by reference the 401(k) plan documents.
See, e.g., Southern Nuclear Operating Co. v. NLRB, 524 F.3d 1350
(2008). The 401(k) plan and its governing documents were created
after the parties negotiated their collective-bargaining agreement.
Therefore, the Union cannot be said to have acceded to the reservation
of rights language in the plan documents merely by referencing, in the
agreement, the possibility that a 401(k) plan might be created in the
future.
401(k) plan that existed before the unlawful change, and
make unit employees whole for any losses they suffered
as a result of the unlawful change in the manner set forth
in Merryweather Optical Co., 240 NLRB 1213 (1979).
ORDER
The National Labor Relations Board orders that the
Respondent, Omaha World-Herald, Omaha, Nebraska,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively and in
good faith with Teamsters District Council 2, Local
543M, affiliated with the International Brotherhood of
Teamsters as the exclusive collective-bargaining repre-
sentative in the following unit by unilaterally ceasing
matching contributions to unit employees’ 401(k) plan
accounts. The unit is:
All regular full-time and regular part-time journeyman
pressmen and apprentice pressman, including leadmen,
employed by the Employer at its facility in Omaha,
Nebraska, but excluding office clerical employees, pro-
fessional employees, guards and supervisors as defined
in the Act, and all other employees.
(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) On request, bargain with the Union as the exclusive
representative of the employees in the unit with respect
to matching contributions to employees’ 401(k) plan
accounts until agreement or good-faith impasse is
reached, and reduce to writing and sign any agreement
reached as a result of such bargaining.
(b) Rescind the unilateral change made to unit em-
ployees’ 401(k) plan on April 1, 2009, restore the 401(k)
plan that existed before the unlawful change, and make
unit employees whole for any losses suffered as a result
of the unlawful change, in the manner set forth in the
amended remedy section of this decision.
(c) Within 14 days after service by the Region, post at
its Omaha, Nebraska facility copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms
provided by the Regional Director for Region 17, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including

15 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1874
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 proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since April 1, 2009.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 17 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

CHAIRMAN PEARCE, dissenting in part.
I dissent from the dismissal of the complaint allegation
that the Respondent violated Section 8(a)(5) and (1) of
the Act by unilaterally freezing accrual of pension bene-
fits for unit employees. The Respondent argues, and the
majority holds, that the Union waived its right to bargain
over that subject based on a combination of factors, in-
cluding unilateral language in the underlying pension
plan document, ambiguous contractual language, and the
Union’s acquiescence in an allegedly similar prior
change. In agreement with the judge, I find that these
factors, even considered in combination, do not evince a
“clear and unmistakable” waiver of the Union’s right to
bargain about changes to the pension plan.
As the Board has often explained, granting an employ-
er the right to act unilaterally with respect to employment
terms that are subject to bargaining under the Act “is so
contrary to labor relations experience that it should not
be inferred unless the language of the contract or the his-
tory of negotiations clearly demonstrates this to be a
fact.” Provena St. Joseph Medical Center, 350 NLRB
808, 813 (2007), quoting C & C Plywood Corp., 148
NLRB 414, 417 (1964), enf. denied 351 F.2d 224 (9th
Cir. 1965), reversed 385 U.S. 421 (1967). For that rea-
son, the Board, with court approval, has required “clear
and unmistakable” evidence of waiver and has construed
waivers narrowly. Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 708 (1983). The “clear and unmistakable”
waiver standard “requires bargaining partners to une-
quivocally and specifically express their mutual intention
to permit unilateral employer action with respect to a
particular employment term, notwithstanding the statuto-
ry duty to bargain that would otherwise apply.” Provena,
supra at 811.
The primary factor that the majority and the Respond-
ent contend supports a finding of waiver is language in
the underlying pension plan document stating that the
Respondent reserves “the right at any time to amend the
Plan,” including “determin[ing] all questions relating to
the eligibility of Employees to participate or remain a
Participant hereunder and to receive benefits under the
Plan.” The majority’s reliance on this language stands in
stark contrast to previous Board decisions holding that
reservation of rights language contained in outside plan
documents will not support a finding of waiver unless the
plan documents are expressly incorporated by reference
into the parties’ collective-bargaining agreement. Amoco
Chemical Co., 328 NLRB 1220 (1999), enf. denied 217
F.3d 869 (D.C. Cir. 2000); Trojan Yacht, 319 NLRB
741, 742 fn. 5 (1995). The Respondent in this case uni-
laterally created the underlying pension plan document,
including the reservation of rights language. The parties
never bargained over the document and it was not incor-
porated by reference into the collective-bargaining
agreement. The record does not reveal when the Re-
spondent first introduced the reservation of rights lan-
guage. Hence, we do not know whether it was intro-
duced before or after the parties negotiated the 2005–
2009 collective-bargaining agreement, which was in ef-
fect when the Respondent made the unilateral change at
issue here. Regardless of when it was introduced, how-
ever, there is no evidence that the language was “fully
discussed and consciously explored” or that “the union
consciously yielded or clearly and unmistakably waived
its interest in the matter.” Georgia Power Co., 325
NLRB 420, 420–421 (1998) (“either the contract lan-
guage relied on must be specific or the employer must
show that the issue was fully discussed and consciously
explored and that the union consciously yielded or clear-
ly and unmistakably waived its interest in the matter”),
enfd. 176 F.3d 494 (11th Cir.), cert. denied 528 U.S.
1061 (1999). Indeed, there is no evidence that the Union
was even aware that the language existed prior to the
events that gave rise to these proceedings.
My colleagues attempt to get around these facts by ob-
serving that the pension plan “could only be understood
by reference to the plan documents and existing prac-
tice,” because the collective-bargaining agreement did
not describe the pension plan. However, the Board has
specifically declined to adopt that approach. In Amoco,
the respondent claimed that the union waived its right to
bargain about changes in a medical plan that covered
both its unit and nonunit employees, based on reservation
of rights language in the underlying plan documents. As
OMAHA WORLD-HERALD

1875
in the present case, the collective-bargaining agreements
did not provide a description of the benefits available
under the plan, and the plan documents were the primary
reference for identifying the benefits secured through the
contract. The Board nevertheless found that reservation
of rights language could not be relied upon to establish a
waiver of the union’s right to bargain over changes in the
medical plan because: (1) the outside plan documents
were not expressly incorporated by reference into the
parties’ collective-bargaining agreement; (2) the plan
documents were not collectively bargained; (3) the par-
ties had never discussed or bargained about the reserva-
tion of rights language in the plan documents; and (4)
there was no direct evidence that union officials were
aware of the language. 328 NLRB at 1222 (observing
that “[o]bviously, the AMP summary plan description is
a primary reference for identifying the medical insurance
benefits that the Respondent has contractually agreed to
provide unit employees,” but nevertheless holding “[t]he
record here will not, however, support finding that the
entirety of this non-negotiated corporate document was
part of the parties’ collective-bargaining agreement and
so establishes the Unions’ waiver of their statutory right
to so bargain about the AMP benefits”).
I recognize that the Court of Appeals for the D.C. Cir-
cuit refused to enforce the Board’s order in Amoco.
However, the court applied the “contract coverage” doc-
trine articulated in Postal Service v. NLRB, 8 F.3d 832,
837 (D.C. Cir. 1993), and Department of Navy v. FLRA,
962 F.2d 48, 57 (D.C. Cir. 1992), and rejected the “clear
and unmistakable waiver” standard applied by the Board.
217 F.3d at 873.1 Notwithstanding Amoco and similar
court decisions, the Board has continued to adhere to the
“clear and unmistakable waiver” standard and has de-
clined to adopt the less stringent “contract coverage”
doctrine. Provena, supra at 811 (reaffirming “clear and
unmistakable waiver” standard and rejecting “contract
coverage” doctrine). The majority pays lip service to the
“clear and unmistakable” waiver standard, but their anal-
ysis constitutes a radical departure from it. Compare
Southern Nuclear Operating Co. v. NLRB, 524 F.3d
1350, 1358 (D.C. Cir. 2008), enfg. in part, vacating in
part 348 NLRB 1344 (2006), where the court, although
finding no violation under the “contract coverage” doc-
trine, agreed with the Board that unions did not “clearly

1 As the court explained:
[T]he “covered by” and “waiver” inquiries are analytically 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.
Id. at 873 (quotations and citations omitted, emphasis in original).
and unmistakably” waive their right to bargain over
changes to future retirement benefits for active unit em-
ployees by not challenging reservation of rights language
in outside plan documents, explaining that “[n]othing in
the record suggests that the unions, by not negotiating
over the clauses, contemplated waiving their right to bar-
gain . . . . Absent such indication, we cannot conclude
that the unions clearly and unmistakably decided to
waive their bargaining rights.”
The majority attempts to avoid the precedential author-
ity of Amoco and Trojan Yacht by pointing out that the
reservation of rights language is but one of several fac-
tors in this case that, in their judgment, support a finding
that the Union knowingly waived its interest in bargain-
ing over changes in the pension plan. In this regard, they
cite two provisions in the collective-bargaining agree-
ment that, when considered in conjunction with the res-
ervation of rights language, in their view support a find-
ing that the Union waived its bargaining rights.
The first provision cited by the majority, contained in
article 28 of the collective-bargaining agreement pro-
vides, “Inasmuch as the plans cover all employees, not
just bargaining unit employees, changes in these plans
are not subject to Article Five of the Agreement [the
grievance and arbitration clause].” The second provi-
sion, contained in the same article, provides “The Com-
pany will advise the Union of proposed changes and
meet to discuss and explain changes if requested.” Alone
or in combination, these two provisions fall far short of
establishing that the Union “consciously yielded or clear-
ly and unmistakably waived its interest” in bargaining
over changes to the pension plan. Georgia Power, supra
at 420–421. This conclusion follows from even a curso-
ry examination of Board precedent.
In evaluating whether there has been a contractual
waiver, the Board considers the precise wording of the
relevant contract provisions. Metropolitan Edison Co. v.
NLRB, supra at 708 (“we will not infer from a general
contractual provision that the parties intended to waive a
statutorily protected right unless the undertaking is ‘ex-
plicitly stated.’ More succinctly, the waiver must be
clear and unmistakable”). “To meet the ‘clear and un-
mistakable’ standard, the contract language must be spe-
cific, or it must be shown that the matter claimed to have
been waived was fully discussed by the parties and that
the party alleged to have waived its rights consciously
yielded its interest in the matter.” Allison Corp., 330
NLRB 1363, 1365 (2000); Lear Siegler, Inc., 293 NLRB
446, 447 (1989) (waivers of employee rights must, how-
ever, be explicitly stated, clear and unmistakable). In the
absence of “either an explicit contractual disclaimer or
clear evidence of intentional waiver during bargaining,”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1876
an employer is not authorized to change, unilaterally, a
term or condition of employment that is a mandatory
subject of bargaining. Provena, supra at 815.
Clearly, the provisions cited by my colleagues do not
amount to an “explicit contractual disclaimer” of the
right to bargain over changes in the pension plan. Id.
Nor has the Respondent offered any evidence of bargain-
ing history to show that the meaning and potential impli-
cations of the provisions were “fully discussed and con-
sciously explored” and that, by agreeing to the language,
the Union “consciously yielded or clearly and unmistak-
ably waived its interest” in bargaining over such chang-
es. Georgia Power, supra at 420–421. The provisions
consequently lack the specificity required to support a
finding of waiver. See Bonnell/Tredegar Industries, 313
NLRB 789, 791 (1994), enfd. 46 F.3d 339 (4th Cir.
1995) (similar contractual provision exempting certain
benefits from contractual grievance and arbitration pro-
cedure did not constitute a waiver). See also Trojan
Yacht, supra at 741, 742–743 (contractual provision stat-
ing that pension plan “will be maintained in the same
manner and to the same extent such plans are generally
made available and administered on a corporate basis,”
considered in conjunction with reservation of rights lan-
guage in the underlying plan document, did not waive
union’s right to bargain over the respondent’s decision to
freeze benefit accruals in pension plan covering both unit
and nonunit employees); Rockford Manor Care Facility,
279 NLRB 1170, 1172–1173 (1986) (contractual provi-
sion stating that health and life insurance would be of-
fered to represented employees on the “same basis” as to
nonunit employees “though implying assent to the prin-
ciple of a single unified, company wide program, [did]
not convey an intent on the part of the Union to waive its
right to participate in deliberations about which option
was the more appropriate for all”).
The majority submits that, by specifying that the Re-
spondent is obligated to “discuss” rather than bargain
over changes to the pension plan, the parties intended to
grant the Respondent the right to act unilaterally. How-
ever, the word “discuss” is subject to varying interpreta-
tions. Furthermore, it is preceded by the phrase “pro-
posed changes” (emphasis added). The common under-
standing of the term “propose” in labor-management
relations is to set forth for acceptance or rejection, in an
attempt to reach agreement or mutual consensus on an
issue. The juxtaposition of these two expressions–
“proposed changes” and “discuss”—is, at best, ambigu-
ous. In light of this ambiguity and absent the aid of bar-
gaining history to shed light on the intent of the parties, I
would not interpret the word “discuss” as intended to
operate as a waiver of the Union’s statutory right to bar-
gain. Rather, I would find that the plain meaning of
“proposed” when paired with “discuss” in article 28 fa-
vors the interpretation that the parties intended in some
manner to preserve the Union’s rights to bargain about
changes to the pension plan. All this is irrelevant con-
jecture, though. For, in determining whether there has
been a contractual waiver of a statutory right, the appli-
cable standard is not whether contractual language could
reasonably be interpreted as a waiver, but rather whether
such an interpretation is supported by “clear and unmis-
takable language.” Elliott Turbomachinery Co., 320
NLRB 141, 143 (1995) (“when there are two equally
plausible interpretations of ambiguous contract language,
one granting management an unrestricted right to
[change a mandatory subject of bargaining] and one re-
quiring management to first consult with the Union, . . .
considerations of Federal labor policy militate in favor of
the latter interpretation”); Owens-Brockway Plastic
Products, 311 NLRB 519, 525 (1993) (“The critical
question is not, however, whether . . . [the right to act
unilaterally] might reasonably be inferred from the man-
agement-rights clause; it is whether that interpretation is
supported by “clear and unmistakable language.” ). See
also NLRB v. New York Telephone Co., 930 F.2d 1009,
1011 (2d Cir. 1991) (no waiver will be implied “unless it
is clear that the parties were aware of their rights and
made the conscious choice, for whatever reason, to waive
them. We will not thrust a waiver upon an unwitting par-
ty.”). For the reasons discussed above, the language at
issue here does not meet the clear and unmistakable
standard.
Because the standard is well established, the parties
presumably knew that “clear and unmistakable” language
was necessary to create a waiver of the Union’s statutory
right to bargain over changes to the pension plan. See,
e.g., Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 279
(1956) (collective-bargaining agreement “must be read as
a whole, and in the light of the law relating to it when
made”). If they intended to create such a waiver, they
surely would not have used the language at issue here,
which is far from clear. Indeed, the reservation of rights
clause cited by the majority shows that the Respondent
knew how to draft unambiguous language reserving to
itself the right to make unilateral changes in the pension
plan. As discussed above, however, there is no evidence
that the Union consented to the reservation of rights lan-
guage or to any other language explicitly waiving its
right to bargain.2

2 The majority opines that if “the parties intended to convey a bar-
gaining obligation with respect to changes to the pension plan, they
would have used the term ‘bargain’ rather than ‘discuss’” in art. 28.
They note that elsewhere in the contract, the parties’ used the word
OMAHA WORLD-HERALD

1877
The majority’s reliance on the Union’s failure to object
to a single allegedly similar unilateral change in the pen-
sion plan in 2005 is equally misguided. “It is well estab-
lished that union acquiescence in past changes to a bar-
gainable subject does not betoken a surrender of the right
to bargain the next time the employer might wish to
make yet further changes, not even when such further
changes arguably are similar to those in which the union
may have acquiesced in the past.” Provena, supra at 815
fn. 35, quoting Amoco, supra at 1222 fn. 6. These prin-
ciples have been applied in cases involving facts very
similar those here, that is, cases where an employer ar-
gued that reservation of rights language in an outside
plan document, in combination with a union’s failure to
object to similar changes in the past, established that the
union had waived its right to bargain over changes in the
plan. Amoco, supra at 1222 fn. 6 (rejecting argument
that the union’s failure to object to prior changes, in con-
junction with language in outside plan document, proved
that union had waived its interest in bargaining.3 Georgia
Power, supra at 421 fn. 9 (reservation of rights language
in outside plan document did not establish a waiver).4

“bargain” where they meant to convey that meaning. In this regard,
they point to art. four (“Jurisdiction”), which provides, inter alia: “The
company recognizes the Union as the sole and exclusive collective
bargaining agent for the purpose of collective bargaining concerning
wages, hours and other conditions of employment for employees cov-
ered by this agreement.” In making this argument, the majority over-
looks the fact that pension benefits are a “condition[] of employment”
as to which the Respondent in art. four recognizes the Union’s right to
bargain. More fundamentally, however, the majority’s analysis turns
the clear and unmistakable waiver standard on its head. A union is not
required to secure a contractual commitment in order to preserve statu-
tory rights. As the Board and courts have made clear time and time
again, contractual waiver is an affirmative defense and the burden is on
the party claiming the existence of such a waiver to show that the waiv-
er is “explicitly stated, clear and unmistakable.” Allied Signal Aero-
space, 330 NLRB 1216, 1228 (2000), review denied sub nom. Honey-
well International, Inc. v. NLRB, 253 F.3d 125 (2001). Accord: Prove-
na, supra at 811 (“The clear and unmistakable waiver standard, then,
requires bargaining partners to unequivocally and specifically express
their mutual intention to permit unilateral employer action with respect
to a particular employment term, notwithstanding the statutory duty to
bargain that would otherwise apply.”). Whatever the scope of the Re-
spondent’s contractual obligation, there is no basis for finding that the
Union waived its statutory right to bargain over changes to the pension
plan.
3 The Board explained: “It is well established the ‘union acquies-
cence in past changes to a bargainable subject does not betoken a sur-
render of the right to bargain the next time the employer might wish to
make yet further changes, not even when such further changes arguably
are similar to those in which the union may any acquiesced in the
past.’”
4 The Board further held:
That the Union did not protest or demand to bargain over previous
unilateral changes in retirement benefits does not require a different
result. The Board has consistently held that a union that acquiesces in
an employer’s unilateral changes in terms and conditions of employ-
See also Southern Nuclear Operating Co. v. NLRB, supra
at 1358 (rejecting argument that combination of reserva-
tion of rights language in outside plan document and the
union’s failure to object to similar changes in the past
established a “clear and unmistakable” waiver).5
In sum, the majority’s decision ignores applicable law
and dilutes or abandons the Board’s traditionally strin-
gent test for determining whether there has been a waiver
of a statutory right. I therefore dissent and, like the judge
in this case, I would find that the Respondent violated
Section 8(a)(5) of the Act by failing to provide the Union
with notice and an opportunity to bargain prior to freez-
ing the accrual of future pension benefits.

MEMBER HAYES, dissenting in part.
Under the parties’ collective-bargaining agreement,
unit employees secured the right to participate in the Re-
spondent’s companywide 401(k) plan on the express
condition that the plan would be governed by plan doc-
uments unilaterally created by the Respondent. In addi-
tion to establishing unit employees’ substantive benefits
under the plan, the plan documents clearly reserve to the
Respondent the right to make changes to the plan, includ-
ing the discretion to offer or cease matching contribu-
tions and to set their amount. I disagree with my col-
leagues that the Respondent—after the collective-
bargaining agreement had expired, but while the parties
bargained in good faith for a successor agreement—
violated Section 8(a)(5) and (1) when it exercised this
reserved right by suspending matching contributions.
Fundamental fairness and plain logic dictate that, just as
plan benefits enjoyed by unit employees survive the con-
tract’s expiration, so too must the Respondent’s ability to
exercise its corresponding rights under a company-wide
plan.
The parties here consciously bargained over unit em-
ployees’ participation in several contractual benefits
plans,1 including the Respondent’s 401(k) plan.2 The

ment does not irrevocably waive its right to bargain over such changes
in the future.
5 The court explained: “Each time the bargainable incident occurs
. . . the] Union has the election of requesting negotiations or not.” 524
F.3d at 1358 (citation and internal quotation marks omitted).
1 Art. 28 of the contract provides:
The Company acknowledges that bargaining unit employees are eligi-
ble to participate in the retirement plan, group hospital, loss of time
and life insurance programs provided the requirements for participa-
tion are met. The Company will advise the Union of proposed chang-
es and meet to discuss and explain changes if requested. Inasmuch as
the plans cover all employees, not just bargaining unit employees,
changes in these plans are not subject to article Five of the Agreement
[the grievance and arbitration clause]. Employees may retire at age
65.
2 Art. 28 further provides that “[t]he Company agrees that if the
Omaha World-Herald Newspaper board of directors approves the im-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1878
parties’ agreement does not contain the terms and condi-
tions of the plans, or any of the parties’ attendant obliga-
tions. Rather, these important details are established
entirely in the plans’ governing documents. These doc-
uments include reservation of rights language, which
pertinently provides that the Respondent has the discre-
tion to make matching contributions, “if any,” “equal to a
set percentage . . . which percentage the Employer will
determine each year.”3 I join Member Becker in finding
that the Respondent lawfully implemented unilateral
changes to its pension plan in January 2009 pursuant to
these terms. In my view, the same reasoning compels a
finding that the Respondent also acted lawfully when it
unilaterally changed its 401(k) plan a few months later,
in reliance on these same provisions.
In 2005, the Union did not object when the Respond-
ent implemented the 401(k) plan contemplated by the
collective-bargaining agreement, including the governing
documents at issue here. Following the expiration of the
parties’ collective-bargaining agreement in February
2009, the Respondent was required to maintain the terms
and conditions of the expired agreement until the parties
negotiated a new agreement or bargained in good faith to
impasse.4 Under this duty to maintain the status quo, the
Respondent was thus required to continue to provide unit
employees with the full range of benefits under the
401(k) plan, and to operate the plan in the same manner
as it had during the contract’s term.5 The Respondent’s
compliance with this duty could only be measured by
referring to the plan’s governing documents.
In April 2009, the Respondent modified the 401(k)
plan by suspending matching contributions to employ-
ees’ plan accounts. This action was entirely consistent
with the status quo because, as explicitly established in
the plan documents, the Respondent possessed the dis-
cretion to determine matching contribution rates. My
colleagues nonetheless find that the Respondent violated
the Act by exercising this contractual right. I respectful-
ly disagree.
Concededly, there is extant precedent that supports my
colleagues’ position. Given the particular facts here,
however, applying that precedent represents an inequita-
ble and inconsistent application of the Respondent’s sta-
tus quo obligation. Again, under this obligation, the Re-

plementation of a 401(k) plan for its employees, bargaining unit em-
ployees will be eligible to participate in such plan the same as all other
employees based on the provisions of the plan adopted.”
3 See art. II (Contributions) of the 401(k) Summary Plan Descrip-
tion.
4 See Laborers Health & Welfare Trust Fund v. Advanced Light-
weight Concrete Co., 484 U.S. 539, 544 fn. 6 (1988) (citing NLRB v.
Katz, 369 U.S. 736 (1962)).
5 See Laborers, 484 U.S. at 544 fn. 6.
spondent must maintain the substantive terms of the
401(k) plan, established by its governing documents as
opposed to the expired contract. The Respondent’s re-
served right to make the disputed change here, detailed in
the same documents, is a discrete, specific, and integral
component of the plan and thus inextricably linked to the
very substantive terms the Respondent must honor. Yet,
the majority’s decision punishes the Respondent for
making this change. It hardly advances collective bar-
gaining to require that some portions of the parties’ ne-
gotiated agreements—i.e. those favorable to the union—
survive contract expiration while others—those favorable
to the employer—do not.
In assessing whether an employer has honored its sta-
tus quo obligation, governing plan documents are inte-
gral to the analysis. For example, the Board looks to
such documents to determine whether to include addi-
tional amounts, beyond payments for missed contribu-
tions to a benefit plan, as part of make-whole relief.6
Similarly, the Board has held that an expired contract,
including plan documents referenced in the contract, are
sufficient together to satisfy Section 302(c)(5)’s require-
ment that employer payments into union trust funds must
be detailed in a “written agreement.”7 Following con-
tract expiration, controlling plan documents establish
“the framework under which benefit payments will be
administered and disbursed.”8 Given that the Board re-
lies upon the terms of the plan documents to define an
employer’s continuing status quo obligations, the
Board’s anomalous practice of ignoring those same plan
documents in assessing an employer’s status quo rights,
makes little sense and lacks any persuasive policy justifi-
cation.
To the contrary, the precedent on which my colleagues
rely undermines collective bargaining and industrial sta-
bility. Under the logic of that precedent, the Respondent
and other similarly situated employers who have created
benefit plans on the condition of retained discretion are
forced to “use or lose” their right to make necessary
changes in benefit plans before the contract expires. It
hardly advances the collective-bargaining process to cre-
ate so powerful an incentive for employers to inject such
changes into the collective bargaining mix during the
sensitive period immediately prior to contract expiration,
when the parties should be seeking to narrow their dif-
ferences rather than create new ones.

6 See Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979).
7 Made 4 Film, Inc., 337 NLRB 1152, 1152 fn. 2 (2002) (citing Hin-
son v. NLRB, 428 F.2d 133, 138–139 (8th Cir. 1970)).
8 Hinson v. NLRB, supra at 139.
OMAHA WORLD-HERALD

1879
This precedent also discourages employers from estab-
lishing companywide health and benefit plans. Such
plans offer considerable advantages to both employers
and employees. These large-scale plans create econo-
mies of scale that reduce costs and increase administra-
tive efficiency, allowing employers to offer stronger and
more comprehensive benefit packages. For union-
represented employees, participation in company-wide
plans provides an often attractive alternative to many
grossly underfunded and frequently mismanaged multi-
employer benefit plans. Such plans also help to ensure
benefit parity with nonunit employees. Under the major-
ity’s holding, however, employers will be deterred from
offering these mutually beneficial plans. When contracts
expire and parties bargain for successor agreements, em-
ployers will be required to freeze benefits in place, unit
by unit, creating a patchwork of plans. Faced with this
significant administrative hurdle and the unavoidable
costs that will accompany it, employers will likely con-
sider abandoning such plans, at least in industries with a
union presence.
Accordingly, for these reasons, I would reverse the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by its April 2009 modification
to the 401(k) plan. I would therefore dismiss the com-
plaint in its entirety.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
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
activities.

WE WILL NOT fail and refuse to bargain collectively
and in good faith with Teamsters District Council 2, Lo-
cal 543M, affiliated with the International Brotherhood
of Teamsters, as the exclusive collective-bargaining rep-
resentative of the employees in the unit by unilaterally
ceasing matching contributions to unit employees’
401(k) plan accounts. The unit is:

All regular full-time and regular part-time journeyman
pressmen and apprentice pressman, including leadmen,
employed by the Employer at its facility in Omaha,
Nebraska, but excluding office clerical employees, pro-
fessional employees, guards and supervisors as defined
in the Act, and all other employees.

WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the Union as the
exclusive representative of the employees in the unit with
respect to matching contributions to employees’ 401(k)
plan accounts until agreement or good-faith impasse is
reached, and reduce to writing and sign any agreement
reached as a result of such bargaining.
WE WILL rescind the unlawful change we made to the
401(k) plan on April 1, 2009, and make unit employees
whole, with interest, for any losses they suffered as a
result of our unlawful change.

OMAHA WORLD-HERALD

William F. LeMaster, for the General Counsel.
Glenn E. Plosa and L. Michael Zinser, Esqs. (Zinser Law
Firm), of Nashville, Tennessee, for the Respondent.
David A. Grabhorn, of Fullerton, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Omaha, Nebraska, on July 21–22, 2009, upon a
complaint issued on April 29, 2009, by the Regional Director
for Region 17. The complaint is based upon an unfair labor
practice charge filed on January 22, 2009, later amended, by
Teamsters District Council 2, Local 543M, affiliated with In-
ternational Brotherhood of Teamsters1 (the Union or the Charg-
ing Party). The complaint alleges that Omaha World-Herald
(the Respondent), has committed certain violations of Section
8(a)(5) and (1) of the National Labor Relations Act (the Act).
Respondent denies the allegations in their entirety. All parties
have filed posthearing briefs and they have been carefully con-
sidered.
ISSUES
Although there is little disagreement about the underlying
facts, the two biggest differences concern: (1) whether the
wording of article 28 of the collective-bargaining agreement
establishes that the Union consciously relinquished the right to
engage in midterm bargaining over the pension plan, i.e.,
whether since the collective-bargaining contract had been reo-
pened, Respondent was privileged to ignore the Charging Par-

1 This is the Charging Party’s correct name and the caption has been
corrected to fix an omission in the original caption.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1880
ty’s demand to bargain over pension plan changes; (2) the
viability of past practice as a defense, i.e., whether numerous
previous changes to the pension plan and 401(k) plan constitute
the Union’s waiver of the right to bargain.
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits it is a Delaware corporation with an of-
fice and place of business in Omaha, Nebraska, and is engaged
in the publication and distribution of a daily newspaper, the
Omaha World-Herald. It further admits that during the past
year, in the course and conduct of its business, it has derived
revenues in excess of $200,000, held membership in or sub-
scribed to various interstate news services, and advertised vari-
ous nationally sold products, including AT&T services. Ac-
cordingly, it admits, and I find, that it is an employer engaged
in commerce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.2 In addition,
Respondent admits, and I find, that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For the most part the facts are not in significant dispute. Re-
spondent has had a long collective-bargaining relationship,
through predecessors, with Graphic Communications Union
Local 543-M, which has been affiliated with Teamsters District
Council 2 since September 2004. The bargaining unit is:

All regular full-time and regular part-time journeyman press-
men and apprentice pressman, including leadmen, employed
by the Employer at its facility in Omaha, Nebraska, but ex-
cluding office clerical employees, professional employees,
guards and supervisors as defined in the Act, and all other
employees.

Since the 1996 collective-bargaining agreement, all of the
agreements have included an article 28, titled “Benefits.” In
1996, that article read:

The Company acknowledges that employees are eligible to
participate in the retirement plan, group hospital, loss of time
and life insurance programs provided the requirements of par-
ticipation are met. The Company will advise the Union of
proposed changes and meet to discuss and explain changes if
requested. Inasmuch as the plans cover all employees, not just
bargaining unit employees, changes in these plans are not sub-
ject to Section Five of the Agreement. [The grievance-
arbitration clause.] Employees may retire at age 65.

In the parties’ 1999 collective-bargaining agreement, article
28 reiterated the above paragraph, but added another paragraph
aimed at the possibility that a 401(k) plan might be established.
The new insert says:

The Company agrees that if the Omaha World-Herald News-
paper Board of Directors approves the implementation of a

2 Nutley Sun Printing Co., 128 NLRB 58 (1960).
401(k) Plan for its employees, pressroom employees will be
eligible to participate in such a plan the same as all other em-
ployees based on the provisions of the plan adopted.

In the parties’ most recent collective-bargaining agreement,
executed in 2004, article 28 was slightly revised. In the first
sentence of the first paragraph, the term “employees” was
changed to “bargaining unit employees.” In the second para-
graph, the term “pressroom employees” was changed to “bar-
gaining unit employees.”
The 2004 collective-bargaining agreement was scheduled to
expire on February 5, 2009. On October 3, 2008, the Union
sent Respondent a re-opener letter to begin negotiations for a
new collective-bargaining agreement. Respondent’s corporate
human resources manager, Steve Hoff, replied with a letter
announcing the company’s intent to terminate the collective-
bargaining agreement at 12:01 a.m. on February 5, 2009. This,
of course, set the stage for negotiations.
The parties held their first bargaining session on December
22, 2008. At the time of the hearing, no new contract had been
reached.
B. Unilateral Changes to the Pension Plan
Respondent has provided a pension plan for its employees
since 1947. Since at least 1993, the plan has allowed partici-
pants to accrue benefits on a monthly basis, calculated by years
of service and earnings.
In 2005, Respondent terminated pension plan participation
for all employees under 50 years old, as well as employees who
were over 50 but not yet vested in the plan. As a substitute,
Respondent created a retirement spin-off plan for those affect-
ed. The spin-off plan was both created and dissolved on De-
cember 31, 2005. Upon dissolution of this spin-off, the spun-
off employees were given the opportunity to take their money
in one of four ways:

(1) Cash distribution,
(2) Roll it into a qualified plan such as an IRA,
(3) Roll it into Respondent’s newly created 401(k) plan (dis-
cussed below), or
(4) Have an annuity purchased for them, which would basi-
cally furnish them the same benefit that they had on a month-
ly annuity basis at the time of their retirement.

The Union did not raise any objections to this 2005 unilateral
change. The record does not reflect the choices the employees
made.
Three years later, on November 12, 2008, 5 weeks after the
reopener/cancellation notices, and 5 weeks before bargaining
commenced in late December, Respondent notified Union
Chapel Chairman Patrick Edmunds that it planned to freeze
further accrual in the pension plan for the remaining active
participants, effective December 31, 2008. The cover letter
stated that Respondent had mailed notification of the changes to
all active pension plan participants to inform them of this deci-
sion. The change was, therefore, a fait accompli. Edmunds
promptly notified the Union’s business representative, Mike
Maddock, of Respondent’s decision; Maddock forwarded the
announcement to David Grabhorn, vice president “A” for
OMAHA WORLD-HERALD

1881
Teamsters District Council 2.3 The two union officials are of-
ficed in California.
A short time later, Respondent approached Maddock to ex-
plore the Union’s willingness to agree to a voluntary buy-out
offer to four named senior pressmen. Maddock reported the
approach to Grabhorn. Grabhorn advised Hoff to arrange a
meeting to discuss the buy-out proposals. During the call,
Grabhorn also told Hoff that the Union was now insisting upon
bargaining over Respondent’s plan to freeze further accrual in
the pension plan.
On November 19, 2008, Grabhorn, Edmunds, and Local
President Steve Ryan met with Hoff, Human Resources/In-
house Counsel Sue Loerts and Manager Christy Gerrick. After
discussing the buy-out issue, Grabhorn reiterated the Union’s
insistence on bargaining over the scheduled pension plan
change. Hoff told Grabhorn that the issue had already been
bargained between the parties and Respondent had the right to
make such changes to the pension plan. Grabhorn responded
by denying that there had ever been such bargaining, stating
that any changes needed to be agreed upon at the bargaining
table.
Subsequent to this meeting, Grabhorn and Michael Zinser,
Respondent’s legal counsel, agreed to schedule an initial bar-
gaining session for December 22, 2008. At that session, the
two sides exchanged initial contract proposals and unsuccess-
fully attempted to determine ground rules. On December 29,
Grabhorn wrote a letter to Zinser proposing dates for further
contract negotiations. Additionally, Grabhorn insisted that
Respondent not make any changes to the status quo and not
implement any changes to the pension plan until after bargain-
ing had concluded.
Zinser sent a letter in response, dated December 31, telling
Grabhorn that, under article 28 of the existing collective-
bargaining agreement, Respondent had the right to unilaterally
change the pension plan. He added that the parties had “al-
ready agreed upon the Company’s right to make these changes
during the term of the current contract. Local 543-M was noti-
fied on November 12, 2008, of this change.” Zinser specifical-
ly cited the portion of article 28 that reads: “Inasmuch as the
plans cover all employees, not just bargaining unit employees,
changes in these plans are not subject to Article Five of the
Agreement.” Finally, Zinser wrote that the pension plan itself
reserved the right for Respondent to change the plan. Steve
Hoff later testified consistently with Zinser’s claim when he
stated that Respondent relied on section 2.3 of the plan to inter-
pret the plan, section 8.1 of the plan to amend it, and section 9.1
of the plan to terminate it.
As announced, Respondent did implement the pension plan
change on January 1, 2009. On January 21, Grabhorn protest-
ed, writing that the parties had not agreed that Respondent
could unilaterally make changes to the pension plan. He wrote
that the collective-bargaining agreement did not contain any
waiver of the Union’s statutory negotiating rights, that the law
required Respondent to maintain the status quo while negotia-

3 Grabhorn is also a licensed attorney and served as counsel to the
Union during the hearing.
tions were on-going, and that the Union would file an unfair
labor practice charge concerning the change.
Both agree there have been numerous changes related to the
pension plan over the years. The question is how material these
changes have been and how significant their impact has been
upon the employees. Respondent introduced numerous exhibits
which, it claimed, show a significant history of past practices
that demonstrates a waiver by the Union. However, Federal tax
laws required many of these changes. Meanwhile, those that
were not affected by the tax laws were of minimal importance,
or were internal operational matters having no consequence
upon plan participants. The only change of real significance
was the 2005 change, which, as noted, the Union did not op-
pose.
C. Unilateral Changes to 401(k) Plan
Respondent first allowed a portion of its bargaining unit em-
ployees to participate in a 401(k) plan on January 1, 2006. The
implementation of this plan was based on paragraph 2 of article
28, which states:

The Company agrees that if the Omaha World-Herald News-
paper Board of Directors approves the implementation of a
401(k) Plan for its employees, pressroom employees will be
eligible to participate in such a plan the same as all other em-
ployees based on the provisions of the plan adopted.

To implement this plan, the Omaha World-Herald became a
participant in the Midlands 401(k) Plan, begun by Midlands
Newspapers, Inc., its sister company, which allowed for em-
ployees to invest up to 5 percent of their wages with a 50-
percent match from their employer. On January 1, 2007, the
Midlands plan changed its name to the Omaha World-Herald
401(k) Plan. A year later, on January 1, 2008, Respondent’s
corporate parent consolidated all the 401(k) plans operated by
its subsidiaries and formed a new plan. The new plan adopted a
model created by the Koley Jessen law firm. Each subsidiary
employer now had discretion over the amount its matching
contribution, if any, it would be. Employees who still remained
in the pension plan were not allowed to take part in the match-
ing aspect of the program, though they could open an account
and make deposits. On January 1, 2009, when the pension
accrual freeze went into effect, those employees were made
eligible for the 401(k) matching contribution.
On March 2, 2009, Hoff delivered another missive to Chapel
Chairman Edmunds via the night supervisor. In the letter, Hoff
stated that the letter was intended to give the Union advance
notice that “effective April 1, 2009, the Respondent intended to
suspend its discretionary matching contribution to all employee
401(k) deferrals for the remainder of the 2009 Plan Year.”4
Edmunds immediately informed Grabhorn and Maddock. On
March 3, Respondent posted a notice on a bulletin board at its
facility to inform all participating employees of its decision to
suspend its matching contributions. On April 1, 2009, while
still in the midst of ongoing contract negotiations, Respondent

4 That meant that the newly eligible—those whose pension benefits
had been frozen on December 31, 2008—could only obtain 3 months of
the match in their newly opened 401(k) account.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1882
implemented the change. This all occurred, of course, after the
preceding collective-bargaining contract had ended, but at a
time when bargaining was under way.
III. ANALYSIS AND CONCLUSIONS
Counsel for the General Counsel contends that Respondent
violated Section 8(a)(5) and (1) of the Act by materially
amending the defined benefit pension plan and the 401(k) re-
tirement plan without affording the Union an opportunity to
bargain with Respondent about these changes. Respondent
agrees it unilaterally amended the plans. However, it asserts
that the collective-bargaining agreement, past practice, and the
various plan documents provided it with the explicit right to
make these changes.
A. Pension Plan
Respondent admits to materially amending the pension plan
when it eliminated the future accrual of pension benefits. Re-
spondent contends it had the right to make the changes unilat-
erally because (1) the 2004 collective-bargaining agreement
contained a “clear and unmistakable” waiver in article 28; (2)
this involved a reasonable interpretation of a contract clause,
and since this is a contract dispute, it is beyond the authority of
the Board to deal with it; (3) the Union had waived its right to
bargain due to the past practice of the parties; and (4) the Pen-
sion Plan document reserved Respondent’s right to make uni-
lateral changes because it had been incorporated into the collec-
tive-bargaining agreement.
1. Clear and unmistakable waiver standard
The Act is well settled concerning claimed waivers of statu-
tory rights. The Board has adhered to the clear and unmistaka-
ble waiver standard as far back as 1949.5 Since then, the Su-
preme Court has held that a waiver of employee statutory rights
will not be inferred from general contractual provisions. More-
over, to be recognized, the waiver must be clear and unmistak-
able.6 History, then, establishes that the Board has consistently
utilized this standard.7
Accordingly, Respondent must show that the Union clearly
and unmistakably waived its right to bargain about the pension
plan. Respondent points to the revised article 28, found in the
2004 collective-bargaining agreement, as the clear and unmis-
takable waiver in this case:

Inasmuch as the plans cover all employees, not just bargain-
ing unit employees, changes in these plans are not subject to

5 Tide Water Associated Oil Co., 85 NLRB 1096 (1949). In addi-
tion, Tide Water has special application here, as the plans in question
covered all of Respondent’s employees, not simply the represented
employees. In that circumstance, the Board in Tide Water observed:
“. . . practical difficulties encountered by an employer in negotiating
about a pension plan with the representative of a portion of his employ-
ees, all of whom are covered by a company-wide pension plan, do not
eliminate his duty to bargain within an appropriate unit.”
6 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
7 See Johnson-Bateman Co., 295 NLRB 180 (1989); Provena Hospi-
tals, 350 NLRB 808 (2007); Verizon North, Inc., 352 NLRB 1022
(2008); Quebecor World Mt. Morris II, LLC, 353 NLRB 1 (2008).
Article 5 of the Agreement. [The grievance-arbitration
clause.]

Respondent contends that, since the parties agreed the pen-
sion plan was not grievable and not arbitrable, the clause con-
stitutes a clear and unmistakable waiver of the union’s right to
bargain over any changes to the pension plan.
Furthermore, the sentence prior to the article 5 reference
raises other issues. It states:

The Company will advise the Union of proposed changes and
meet to discuss and explain changes if requested.

The dictionary definition of “discuss” provides multiple po-
tential meanings, including: (a) “to investigate by reasoning or
argument; (b) “to present in detail for examination or consid-
eration . . .”; or (c) “to talk about.”8 Accordingly, the agreement
to “discuss” could mean either (b) or (c). If so, must Respond-
ent simply tell the Union of its plans, or, after telling the Union,
would the issue would be up for debate and negotiation, as one
would see in traditional bargaining? The point is not which
definition applies, but rather, the fact that multiple definitions
could apply. Beyond that, the phrase “meet to discuss and ex-
plain changes” provides separate meanings if the connector
“and” is taken in either the conjunctive or the disjunctive. In
the disjunctive, the discussion and explanation are unrelated. In
the conjunctive, the discussion and the explanation are to occur
simultaneously. These simple linguistic variants also demon-
strate that a finding of a “clear and unmistakable” waiver can-
not be made. There are simply too many choices. According-
ly, the phrase must be deemed ambiguous. In my view, Re-
spondent’s logic is too untethered to conclude that the Union
ever waived its right to bargain.
2. Contract coverage approach
As an alternative theory, Respondent asserts that language in
the collective-bargaining contract authorizes it to make pension
plan changes. This defense is not on waiver grounds, but is
instead a contention that the Union is trying to obtain a benefit
that it could not when it entered into the collective-bargaining
contract. According to this theory of defense, the contract al-
ready governs matters concerning pension plan changes, in the
sense that the Union has, under the expressly bargained-for
terms of the agreement, specifically permitted Respondent to
take the steps that it took. As Respondent readily acknowledg-
es, it seeks to invoke the so-called “contract-coverage” defense,
which has had some limited success at the appellate court level
and has acquired some followers at the Board level. The theory
has not been addressed by the Supreme Court under that name.
Indeed, the proponents of this defense seem to have deliber-
ately ignored Supreme Court law on the point which has specif-
ically adopted the Board’s traditional “clear and unequivocal
waiver” analysis in disputes such as this. A unanimous Court
in NLRB v. C & C Plywood Corp., 385 U.S. 421 (1967), rehear-
ing denied 386 U.S. 939 (1967), an icon case which is well
embedded in Board jurisprudence, rather thoroughly discussed
the appropriate analysis to be applied. Indeed, in my view, it
specifically rejected the model that is now being described as

8 Merriam-Webster Online Dictionary.
OMAHA WORLD-HERALD

1883
the contract-coverage theory. A short discussion will illustrate
the point.
In C & C Plywood, the employer and the union had entered
into a collective-bargaining contract which established specific
wage rates for each job in the plant, the so-called “classified
wage scale.” The contract stated that the issue of wages were
“closed” during the life of the contract. Indeed, although there
was a grievance process, the contract did not provide for arbi-
tration of any dispute. But, the contract did allow the employer
an option to pay a premium rate to any employee who had
shown some special fitness, skill, or aptitude. Less than 3
weeks after the collective-bargaining agreement was signed, the
employer announced that its glue spreader crews would receive
a premium rate if they met certain weekly/monthly production
standards. The union complained that not only was this a de-
parture from the classified wage scale, it was actually a wage
system inconsistent with the negotiated terms, that is, an unlaw-
ful unilateral change. The employer responded by invoking the
premium pay provision as a legitimate justification. It asserted
that the new pay system should be considered a reward for any
employee who had shown some special fitness, skill, or apti-
tude.
Charged as an unfair labor practice under Section 8(a)(5), the
trial examiner dismissed the complaint on the grounds that it
was a contract dispute. The Board reversed, ruling that the
union had not ceded power to the employer to unilaterally
change the wage system from one which permitted particular
employees to receive premium pay for their special skills, to
one which incentivized the higher scale on the level of produc-
tion met by the crew as a whole.
It can readily be seen that C & C Plywood is nearly congru-
ent with the facts adduced here. As in that case, the collective-
bargaining contract here contains a clause which Respondent
asserts permits it to have made the changes in the pension plan,
even though even a casual reading shows that the clause does
not clearly apply—much like the clause in C & C Plywood can
be seen as not addressing what the employer did. In C & C
Plywood, the employer argued that since the contract contained
a provision which might have allowed the employer to institute
the wage plan in question, the Board was powerless to deter-
mine whether that provision did authorize the change. Being
powerless, it argued, the Board had no authority, and the matter
needed to be decided under contract law, most likely Section
301 of the Act.
The Court was not persuaded. It held that the Board was not
construing the collective-bargaining contract in order to deter-
mine the nature of the contractual rights that the agreement
accorded the parties. Instead, it observed that the Board had
“merely enforce[d] a statutory right which Congress considered
necessary to allow labor and management to get along with the
process of reaching fair terms and conditions of employment—
‘to provide a means by which agreement may be reached.’”
Id., at 429. It further observed, relying on its decision in Mas-
tro Plastics Corp. v. Labor Board, 350 U.S. 270 (1956), rehear-
ing denied 351 U.S. (1956), that it might be necessary to con-
strue language of a collective-bargaining agreement in an unfair
labor practice context, and that the Board had the power to do
so. If the Board had no such power, it noted, particularly in
circumstances where arbitration was unavailable, it would be
inconsistent with the legislative scheme, since it would place
obstacles in the way of the Board’s effective enforcement of an
employer’s statutory duties. In other words, if the Board
couldn’t look to the meaning of the contract, that would first
force the union into the court system to obtain a ruling on the
contract dispute, and thereafter require the union to seek statu-
tory vindication before the Board. Clearly, it said, that was not
Congress’s intention. A two-step process such as that was held
to be contrary to Congress’s purpose of rapid, efficient resolu-
tion of labor disputes.
The Court then turned to a question not reached by the appel-
late court’s decision—whether the Board was incorrect in de-
termining that the employer had no unilateral right to make the
change it did. It observed that the Board had “relied upon its
experience with labor relations and the Act’s clear emphasis
upon the protection of free collective bargaining. We cannot
disapprove of the Board’s approach. For the law of labor
agreements cannot be based upon abstract definitions unrelated
to the context in which the parties bargained and the basic regu-
latory scheme underlying that context. [Citation to law review
article omitted.] Nor can we say that the Board was wrong in
holding that the union had not forgone its statutory right to
bargain about the pay plan inaugurated by the respondent.”
(Emphasis added.) C & C Plywood Corp., supra at 430–431.
The Court’s reference to “foregoing a statutory right” is a
specific reference to what is generally referred to as “a clear
and unequivocal waiver.” Justice Stewart and the rest of the
Court well knew that the statutory rights accorded a union un-
der the Act trump ambiguous language found in a collective-
bargaining contract, and require further bargaining to clarify the
parties’ mutual intent—particularly where arbitration is una-
vailable.
Indeed, in the underlying case (C & C Plywood, supra at
416), the Board had specifically utilized the “clear and unmis-
takable waiver” analysis approved by the Court. It relied di-
rectly on its 1961 decision in Proctor Mfg. Corp., 131 NLRB
1166, 1169 (1961), as well as the Sixth Circuit’s decision in
Timken Roller Bearing v. NLRB, 325 F.2d 746 (1963), cert.
denied 376 U.S. 971 (1964). Those cases, in turn, can be traced
to Tide Water Oil, supra, in 1949. Based on that history, I fail
to understand why the “contract coverage” theory of defense
has gained any traction whatsoever. In my view, the theory is
valueless as a legal rationale. It has not been a viable theory
since the Court decided C & C Plywood in 1964.
Thus, Supreme Court and Board precedent remain firmly on
the side of the clear and unmistakable waiver standard.9
Moreover, the contract coverage approach sets traps for the
unwary. Such a doctrine only encourages arguing that the bare
mention of a topic in a collective-bargaining contract would
mean the parties have had a chance to bargain over every aspect
of that subject, and thus the contract is determinative.10 Howev-

9 See Metropolitan Edison Co. v. NLRB, 460 U.S. 693; Provena
Hospitals, 350 NLRB 808 (1983).
10 Provena Hospitals, supra at 818 (2007). (Battista, C. dissenting)
(stating that it is only necessary that provisions be no more than “rele-
vant to the dispute”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1884
er, this approach only leads to greater labor strife and would
grind the collective-bargaining process to a halt.11 Unions
would become perpetually wary of any particular language in
an agreement, and would be forced to deal with the sharp prac-
tice of an employer using a minor detail to declare a subject
“bargained over.” This would transform bargaining into a
game of “gotcha,” and provide employers an incentive to skim
over the details of as many collective-bargaining agreement
clauses as possible because they would have the unfettered
right to implement changes as they saw fit. Such situations
would lead to a greater number of contract disputes flooding
the court system. This is clearly not where Congress instructed
labor and management to go.
Under the clear and unmistakable waiver standard, the focus
of the parties is sufficiently narrowed so that they do not have
to consider every potential iteration of an issue that may or may
not appear down the road. They can focus on the issues that are
at stake, and if a clear and unmistakable waiver does occur,
“the employer’s right to take future unilateral action should be
apparent to all concerned.”12
Thus, contract language should not be allowed to trump the
statutory rights involved, as connected to the obligation to bar-
gain in good faith, unless the contract language or other evi-
dence amounts to a clear and unequivocal waiver. Here, the
question is whether the Union waived its right to bargain over
the pension plan. Much as the Court perceived the Board’s role
in C & C Plywood Corp., in rejecting contract coverage as a
defense, I am simply enforcing the statutory duty to bargain in
good faith.
3. Past practice
Respondent next contends that its past practice, coupled with
the Union’s acquiescence to those past practices, afforded Re-
spondent the right unilaterally to change the pension plan. The
Supreme Court has long held that a unilateral change made
pursuant to a longstanding practice is basically a continuation
of the status quo and not a breach of the bargaining obligation.13
In Courier Journal I,14 the Board found that the respondent
had an established past practice of increasing employees’ con-
tributions for health insurance premiums for all employees.
The Company had made such increases, without formal notice,
in 1992, 1993, 1994, 1999, 2000, and 2001, and the Union had
acquiesced each time.15 The Board held that a subsequent
change in 2002 was implemented pursuant to this well-
established past practice.16
In the instant case, Respondent pointed to a multitude of
changes they have made over the last 10 years. The difficulty
with this evidence is that, taken as a whole, it is a transparent
attempt to flood the record with irrelevant documents. Re-
spondent did introduce documents evidencing changes in the
pension plan, but many of these changes appear to be legisla-
tive or regulatory mandated changes. One such example would

11 Id. at 813.
12 Id.
13 NLRB v. Katz, 369 U.S. 736, 746 (1962).
14 342 NLRB 1093 (2004).
15 Id. at 1094.
16 Id.
be the first amendment, which was pursuant to the government-
mandated Economic Growth Tax Relief Reconciliation Act of
2001. As this is a government requirement, the Union had no
authority to challenge the amendment. Despite that, Respond-
ent cites this government mandate as an example of union ac-
quiescence. I am unpersuaded. Moreover, most of its other
changes deal with minor administrative changes having no
impact on the plan beneficiaries. These cannot amount to evi-
dence of acquiescence, either.
Similarly, Respondent points to changes in other benefits,
including vision and dental insurance, life insurance, and other
medical insurance, as proof of acquiescence. These have no
bearing on the pension plan and I reject them as being irrele-
vant to the pension plan issue presented here.
Both parties can, however, agree to one significant change
prior to their current conflict. In 2005, Respondent froze access
to the pension plan for all employees under 50 years old, and
employees who were over 50 but not yet vested in the plan. As
set forth above, those individuals had four options for how to
take their money, one of which was the Company-sponsored
401(k) plan. The Union did acquiesce in this instance and read-
ily admits to it.
Even so, one instance of acquiescence does not amount to a
waiver in futuro. It is only a single event or transaction, not the
stuff of a past practice. Furthermore, even with this single cir-
cumstance, “[a] union’s acquiescence in previous unilateral
changes does not operate as a waiver of its right to bargain over
such changes for all time.”17 This has been a Board standard
for over 40 years, and applies even when such further changes
arguably are similar to those in which the union may have ac-
quiesced in the past.18 The 2005 incident has not established a
past practice proving any sort of waiver of the right to bargain.
4. Incorporation of the pension plan document
Respondent finally contends the Pension Plan document re-
served the right for Respondent to modify the Pension Plan at
its discretion. As an abstract matter, an outside document, such
as the pension plan document at issue, can be incorporated into
a collective-bargaining agreement. If the parties have agreed to
incorporate such a document, its terms can be considered bar-
gained for, as much as anything in the collective-bargaining
agreement itself.
In Mary Thompson Hospital, 296 NLRB 1245, 1246 (1989),
the collective-bargaining agreement included a section specifi-
cally stating that the pension benefits plan was incorporated
into the collective-bargaining agreement. That plan included a
clause reserving to the Employer the right to terminate the plan.
Likewise, the pension plan here includes a clause allowing for
substantive amendments. Respondent argues, therefore, that
Mary Thompson Hospital should control. However, the case is
clearly distinguishable. In Mary Thompson Hospital the collec-
tive-bargaining agreement explicitly incorporated the pension
plan document itself. That is not true here. Respondent’s col-
lective-bargaining contract with the Union only states that par-
ticipants must meet the plan’s requirements for participation.

17 Owens-Corning Fiberglas Corp., 282 NLRB 609 (1987).
18 NLRB v. Miller Brewing Co., 408 F.2d 12, 15 (9th Cir. 1969).
OMAHA WORLD-HERALD

1885
That is hardly the language of incorporation by reference, for
there must be an express intent to incorporate an outside docu-
ment, such as the pension plan, for the doctrine to be applica-
ble.
It has also been held that, where a collective-bargaining con-
tract explicitly refers to a benefit plan, such a reference
amounts to an incorporation of the terms of that plan. See, e.g.,
B.P. Amoco Corp. v. NLRB, 217 F.3d 869 (D.C. Cir. 2000). In
that case, though, the language in the collective-bargaining
agreement was far more detailed than what has been presented
here. Indeed, the court quoted the operative language, observ-
ing:

The two Texas City, Texas agreements recite that specified
“Employee Benefit Plans,” including the “Amoco Medical
Plan,” “are generally set forth in the current Benefits Plan
Booklet[s],” although “it is understood that certain provisions
in the Booklet have been superseded by negotiation between
the parties.” [Transcript reference and footnote omitted.] The
Wood River, Illinois, and Yorktown, Virginia facilities’
agreements provide: “Benefit plans for the Company . . . will
continue in force during the life of this Agreement with the
understanding that these Plans may be bargained upon but
will not be subject to arbitration.” [Transcript reference and
footnote omitted.] In each case, the quoted language explicit-
ly makes the plans a part of the collective bargaining agree-
ment, subject to specific, negotiated variations. [Emphasis
added.] [Id. at 873–874.]

Here, unlike B.P. Amoco, there is no mention of the outside
plan document in the collective-bargaining agreement. There-
fore, with no express reference to the plan document, it cannot
be said that Respondent’s pension plan has been incorporated
by reference into the collective-bargaining contract. Accord-
ingly, Respondent’s incorporation by reference argument fails.
B. 401(k) Plan
Respondent admits to materially amending the 401(k) plan
when it ceased its matching contributions for plan participants.
Respondent contends it had the right to make unilateral changes
for reasons similar to those invoked with regard to the pension
plan. Respondent grounds its assertions in the second para-
graph of article 28 of the contract, which states:

The Company agrees that if the Omaha World-Herald News-
paper Board of Directors approves the implementation of a
401(k) Plan for its employees, pressroom employees will be
eligible to participate in such a plan the same as all other em-
ployees based on the provisions of the plan adopted.

This section of the article contains significantly less support-
ing language than that featured in the preceding paragraph con-
cerning the pension plan. Once again, there is insufficient sup-
port to find a waiver by the Union, either through the implicit
language or purported past practice.
Aside from the language, the only difference between the
freezing of the pension plan accruals and the cessation of the
matching contribution to the 401(k) plan was that the former
occurred during the course of the contract (though it was open
for negotiations), while the latter occurred after the contract had
been terminated and bargaining was in progress.
An employer violates its duty to bargain if, while negotia-
tions are in progress, it unilaterally institutes changes in exist-
ing terms and conditions of employment.19 Unilateral action by
an employer that modifies mandatory topics of bargaining is a
per se violation of Section 8(a)(5).20 When such unilateralism
occurs during bargaining, it is generally proof that the employer
has not bargained in good faith.21
The exception to this rule is if impasse has been reached in
negotiations. If impasse is reached after good-faith negotia-
tions, “an employer does not violate the Act by making unilat-
eral changes that are reasonably comprehended within his pre-
impasse proposals.”22 The existence of an impasse is a question
of fact, and occurs after good-faith negotiations have exhausted
the prospects of concluding an agreement.23 Furthermore, if
impasse is reached, the impasse can end suddenly with any
changed condition or circumstance that renews the possibility
of fruitful discussion.24
There is no issue of impasse in the current dispute. In Taft
Broadcasting Co., the Board evaluated a bargaining dispute
involving at least 23 separate bargaining sessions and multiple
general mediations. Here, the parties conducted only one bar-
gaining session. This single session, which took place on De-
cember 22, involved the initial exchange of proposals and noth-
ing more. Before the two parties could meet again, Respondent
unilaterally ceased its contribution to the 401(k) plan, in viola-
tion of the Act, hardly the stuff of impasse.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and de-
sist, and to take certain affirmative action designed to effectuate
the policies of the Act. Specifically, it will be ordered to cease
bargaining in bad faith with the Union by making unilateral
changes in the wages and terms and conditions of employment,
specifically the pension and 401(k) benefits.
The affirmative action will include an order making employ-
ees whole for any loss to their pension plan and 401(k) ac-
counts, together with interest. Interest shall be calculated in the
manner set forth in Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1979). Finally, it will be ordered to post a
notice to employees advising them of their rights and describ-
ing the steps it will take to remedy the unfair labor practices
which have been found.
Based upon the foregoing findings of fact, legal analysis, and
the record as a whole, I make the following

19 Taft Broadcasting Co., 163 NLRB 475, 478 (1967).
20 See Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991); Bev-
erly Health & Rehab Services, 317 F.3d 316 (D.C. Cir. 2003), rehear-
ing en banc denied 2003 U.S. App. Lexis 6287.
21 See Visiting Nurse Services v. NLRB, 177 F.3d 52 (1st Cir. 1999),
cert. denied 528 U.S. 1074 (2000); NLRB v. Unbelievable, Inc., 71 F.3d
1434 (9th Cir. 1995).
22 Taft Broadcasting Co., supra at 478.
23 Id.
24 Airflow Research & Mfg. Corp., 320 NLRB 861 (1996); Circuit-
Wise, Inc., 309 NLRB 905 (1992).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

1886
CONCLUSIONS OF LAW
1. Respondent, Omaha World-Herald, is an employer en-
gaged in an industry affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Teamsters District Council 2, Local 543M, affiliated with
International Brotherhood of Teamsters is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following is an appropriate bargaining unit:

All regular full-time and regular part-time journeyman press-
men and apprentice pressman, including leadmen, employed
by the Employer at its facility in Omaha, Nebraska, but ex-
cluding office clerical employees, professional employees,
guards and supervisors as defined in the Act, and all other
employees.

4. On December 31, 2008, Respondent violated Section
8(a)(5) and (1) when, without bargaining with the Union de-
spite the Union’s request that it do so, it froze the accrual of
benefits to those bargaining unit employees who were partici-
pating in the pension plan.
5. On April 1, 2009, Respondent violated Section 8(a)(5)
and (1) when, without bargaining with the Union, it ceased
making its matching contribution to employee accounts.
[Recommended Order omitted from publication.]