UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONAL LABOR RELATIONS No. 20-71480 BOARD, Petitioner, NLRB Nos. 19-CA-219885 NATIONAL ASSOCIATION OF 19-CA-219987 BROADCAST EMPLOYEES & TECHNICIANS, THE BROADCASTING AND CABLE TELEVISION WORKERS OPINION SECTOR OF THE COMMUNICATIONS WORKERS OF AMERICA, LOCAL 51, AFL-CIO, Intervenor,

v. NEXSTAR BROADCASTING, INC., d/b/a KOIN-TV, Respondent.

On Petition for Review of an Order of the National Labor Relations Board

Argued and Submitted June 8, 2021 Portland, Oregon

Filed July 12, 2021 2 NLRB V. NEXSTAR BROADCASTING, INC.

Before: Kim McLane Wardlaw and Andrew D. Hurwitz, Circuit Judges, and Susan R. Bolton,* District Judge.

Opinion by Judge Hurwitz

SUMMARY **

Labor Law

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

The Honorable Susan R. Bolton, United States District Judge for * the District of Arizona, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. NLRB V. NEXSTAR BROADCASTING, INC. 3 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.

COUNSEL Eric Weitz (argued) and Brady Francisco-Fitzmaurice, Attorneys; Usha Dheenan, Supervisory Attorney; David Habenstreit, Associate General Counsel; Ruth Burdick, Acting Deputy Associate General Counsel; Alice B. Stock, Deputy General Counsel; Peter B. Robb, General Counsel; National Labor Relations Board, Washington, D.C.; for Petitioner. Anne I. Yen (argued) and David A. Rosenfeld, Weinberg Roger & Rosenfeld, Alameda, California, for Intervenor. Charles W. Pautsch (argued), Associate Counsel, Nexstar Media Group Inc., Irving, Texas, for Respondent. 4 NLRB V. NEXSTAR BROADCASTING, INC.

OPINION HURWITZ, Circuit Judge:

The management of a television station and the union representing the station’s employees entered into a collective bargaining agreement (“CBA”). When the CBA expired, management made two unilateral changes to the existing terms and conditions of employment. Subsections 8(a)(1) and (5) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1)