888 F.3d 1297
D.C. Cir.2018Background
- StaffCo employed unionized nurses at Long Island College Hospital under a CBA effective May 29, 2011–May 28, 2012, and subsequently signed extensions/interim agreements; the CBA required StaffCo to participate in and contribute to the Union pension plan.
- The pension plan’s trust agreement contained a Policy stating that upon expiration/termination of a CBA (or if contributions were overdue more than two months) an employer’s participation in the Fund would terminate and employees’ service would no longer be credited.
- The parties executed extensions through March 13, 2014, with the last extension expiring May 22, 2014; the hospital ultimately closed later in 2014 and StaffCo stopped making pension contributions after May 22, 2014.
- The Union filed an unfair-labor-practice charge alleging StaffCo unlawfully ceased pension contributions in violation of 29 U.S.C. § 158(a)(5) and (1); an ALJ and a divided NLRB panel found violations and rejected StaffCo’s affirmative defenses.
- StaffCo’s defenses were: (1) the pension Policy constituted a clear and unmistakable express waiver of the Union’s bargaining right; (2) the Union impliedly waived bargaining by failing to timely demand it; and (3) impossibility because the Fund would not have accepted payments absent a valid CBA.
- The D.C. Circuit reviewed the Board’s factual findings for substantial evidence and its legal conclusions de novo, and denied review, enforcing the Board’s order.
Issues
| Issue | StaffCo (Petitioner) Argument | NLRB/Union (Respondent/Intervenor) Argument | Held |
|---|---|---|---|
| Whether the pension Plan Policy constituted a clear and unmistakable express waiver of the Union’s duty-to-bargain over pension contributions | Policy language terminating employer participation at CBA expiration shows an express waiver allowing unilateral cessation of contributions | Policy language is ambiguous and does not explicitly authorize unilateral cancellation; waiver requires clear and unmistakable language | No express waiver; Policy ambiguous and insufficient to meet clear-and-unmistakable standard |
| Whether the Union impliedly waived bargaining by failing to timely request bargaining after notice | Union received notice and failed to diligently demand bargaining, so waiver should be found | Union timely sought extensions and repeatedly requested continuation of contributions; ALJ found Union timely requested bargaining | No implied waiver; Board’s credibility findings that Union timely demanded bargaining are supported by substantial evidence |
| Whether impossibility excused StaffCo’s failure to contribute because the Fund would have refused contributions absent a CBA | Plan would have rejected post-expiration payments, making continued contributions impossible | StaffCo failed to show the Fund would have refused payments or that StaffCo attempted alternatives (e.g., tender/escrow) | Impossibility defense rejected; StaffCo failed to meet burden to prove Fund refusal or impossibility |
| Whether Board’s factual findings are supported by substantial evidence and should be enforced | Board erred in factual findings and legal conclusions on waiver, timeliness, and impossibility | Board’s findings are supported by substantial evidence and its legal application was correct | Court enforces Board order; StaffCo’s petition denied and Board’s cross-application granted |
Key Cases Cited
- NLRB v. Katz, 369 U.S. 736 (recognizing obligation to maintain status quo on mandatory subjects after CBA expiration)
- Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (duty to maintain status quo while negotiating continues after CBA expiration)
- Metro. Edison Co. v. NLRB, 460 U.S. 693 (clear-and-unmistakable waiver standard for statutory rights)
- Oak Harbor Freight Lines, Inc. v. NLRB, 855 F.3d 436 (interpreting pension-plan language as an express waiver where document expressly allowed employer to cancel contributions)
- Regal Cinemas, Inc. v. NLRB, 317 F.3d 300 (union must act with due diligence to request bargaining after notice)
- Prime Serv., Inc. v. NLRB, 266 F.3d 1233 (demand for bargaining need not use particular words but must show indicia of a demand)