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NLRB v. Nexstar Broadcasting, Inc. (9th Cir. 20-71480 7/12/21) NLRA/Unfair Labor Practices 

The panel granted the National Labor Relations Board’s petition for enforcement of its decision holding that management of a television station committed unfair labor practices under subsections 8(a)(1) and (5) of the National Labor Relations Act (“NLRA”) by making two unilateral changes to the existing terms of the conditions of employment after a collective bargaining agreement (“CBA”) expired.

Following expiration of the CBA, management began requiring employees to complete an annual motor vehicle and driving history background check. In addition, management began posting employee work schedules two weeks in advance after it had previously posted schedules four months in advance.

Agreeing with the Board, the panel rejected management’s argument that it was entitled to make changes to the terms and conditions of employment under the “contract coverage” doctrine. The panel held that the Board’s decision was rational and consistent with the NLRA where the Board applied its longstanding rule that after a CBA has expired, unilateral changes by management are permissible during bargaining only if the CBA contained language explicitly providing that the relevant provision permitting such a change would survive contract expiration. The panel concluded that there was no explicit language in the CBA to allow management to make unilateral changes to terms and conditions of employment in the post-expiration period.

The panel rejected management’s argument that the Board should have referred this dispute to arbitration.