20-1163-ag
Int’l Bhd. of Elec. Workers, Local Union 43 v. NLRB
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2020
ARGUED: APRIL 23, 2021
DECIDED: AUGUST 12, 2021
No. 20-1163-ag
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL UNION 43,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
and
ADT LLC,
Intervenor.
________
On Petition for Review of an Order of
the National Labor Relations Board.
________
Before: WALKER, LEVAL, and CHIN, Circuit Judges.
________
2 No. 20-1163-ag
Local Union 43 of the International Brotherhood of Electrical
Workers (the Union) petitions for review of a decision of the National
Labor Relations Board (the Board) dismissing its unfair labor practice
charges against ADT LLC (ADT). The Union alleges that, in
September 2016, ADT violated Sections 8(a)(5) and (1) of the National
Labor Relations Act (NLRA or Act) by refusing to bargain before
implementing a mandatory six-day workweek for nearly all
technicians at its facilities in Albany and Syracuse, New York.
Applying a recently adopted “contract coverage” standard, the Board
dismissed the charges on the basis that the plain language of the
relevant collective-bargaining agreements (CBAs) permitted ADT’s
unilateral change to the schedule.
In this petition, the Union argues that the Board erred in
construing the CBAs by failing to give effect to scheduling provisions
that limit ADT’s rights to mandate overtime. Adopting the contract
coverage standard, we agree. We conclude that the CBAs did not
allow ADT to unilaterally impose a mandatory six-day workweek
and that ADT violated Sections 8(a)(5) and (1) of the Act by refusing
to bargain before implementing the change. We therefore VACATE
the Board’s order and REMAND for further consideration consistent
with this opinion.
________
MANEESH SHARMA (Matthew J. Ginsburg, on the
brief), AFL-CIO Office of the General Counsel,
Washington, District of Columbia; Jonathan D.
Newman, on the brief, Sherman Dunn, P.C.,
Washington, District of Columbia; Kenneth L.
Wagner, on the brief, Blitman & King LLP,
Syracuse, New York; for Petitioner International
Brotherhood of Electrical Workers, Local Union 43.
3 No. 20-1163-ag
GREG P. LAURO (Kira Dillinger Vol, on the brief),
National Labor Relations Board, Washington,
District of Columbia, for Respondent National Labor
Relations Board.
JEREMY C. MORITZ (Norma Manjarrez, on the brief),
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Chicago, Illinois, for Intervenor ADT, LLC.
________
JOHN M. WALKER, JR., Circuit Judge:
Local Union 43 of the International Brotherhood of Electrical
Workers (the Union) petitions for review of a decision of the National
Labor Relations Board (the Board) dismissing its unfair labor practice
charges against ADT LLC (ADT). The Union alleges that, in
September 2016, ADT violated Sections 8(a)(5) and (1) of the National
Labor Relations Act (NLRA or Act) by refusing to bargain before
implementing a mandatory six-day workweek for nearly all
technicians at its facilities in Albany and Syracuse, New York.
Applying a recently adopted “contract coverage” standard, the Board
dismissed the charges on the basis that the plain language of the
relevant collective-bargaining agreements (CBAs) permitted ADT’s
unilateral change to the schedule.
In this petition, the Union argues that the Board erred in
construing the CBAs by failing to give effect to scheduling provisions
that limit ADT’s rights to mandate overtime. Adopting the contract
coverage standard, we agree. We conclude that the CBAs did not
allow ADT to unilaterally impose a mandatory six-day workweek
and that ADT violated Sections 8(a)(5) and (1) of the Act by refusing
to bargain before implementing the change. We therefore VACATE
the Board’s order and REMAND for further consideration consistent
with this opinion.
4 No. 20-1163-ag
BACKGROUND
This case arises from ADT’s decision to implement temporarily
a mandatory six-day workweek for unionized technicians at its
facilities in Albany and Syracuse, New York. We begin by describing
ADT’s relationship with the Union, including the key terms of the
CBAs governing ADT’s right to adjust its technicians’ schedules. We
then explain the facts giving rise to ADT’s decision to impose a six-
day workweek, the Union’s demand that ADT bargain before
implementing the policy, and the prior proceedings before the Board.
We draw this background from the Board’s findings of fact, which,
unless otherwise noted, are supported by substantial evidence. 1
A. The Collective-Bargaining Agreements
ADT installs and services security systems for residential and
commercial property. Like other companies in the industry, ADT
hires local technicians to install and service its systems. At two of
ADT’s facilities—those in Albany and Syracuse, New York—these
technicians have elected to unionize. They formed two bargaining
units (one in Albany and another in Syracuse), both of which are
represented exclusively by the Union. As a general matter, ADT is
required to bargain with the Union regarding employees’ wages,
hours, and other terms and conditions of employment. 2
For decades, ADT and the Union successfully negotiated terms
and conditions of employment for Albany and Syracuse technicians
and memorialized their bargain in their successive CBAs. 3 As a
See NLRB v. Katz’s Delicatessen of Houston St., Inc., 80 F.3d 755, 763 (2d
1
Cir. 1996).
2 See 29 U.S.C. § 157; 29 U.S.C. § 158(a)(5).
3 As relevant here, the CBA for the Albany technicians (Albany CBA)
was effective June 11, 2015 to June 10, 2018. The CBA for the Syracuse
5 No. 20-1163-ag
general matter, the CBAs are broad in scope, addressing issues such
as wages, benefits, safety, and the resolution of disputes. Most
importantly for our purposes, they also contain the following three
sections addressing ADT’s right to set technicians’ schedules.
First, Article 1, Section 2 of the CBAs describes ADT’s
management rights, which include a general right to determine the
“amount” of work required of its technicians. It states, in relevant
part, that “[t]he operation of the Employer’s business and the
direction of the working force including . . . the right to . . . determine
the reasonable amount and quality of work needed . . . is vested
exclusively in the Employer, subject, however to the provisions of this
agreement.” 4
Second, Article 6, Section 1 of the CBAs defines the “Hours of
Work” for Union technicians. It states that “[t]he workweek shall be
forty (40) hours during any one workweek or eight (8) hours during
any workday.” 5 It also describes technicians’ work schedules, which
differ depending on whether the technician is assigned to the Service
Department or the Installation Department. For technicians in the
Service Department, the CBAs provide the following alternative
schedules:
The normal work schedule . . . shall be a shift of eight and
one-half hours . . . comprising of five consecutive days
[5x8 Workweek], Monday through Saturday between the
hours of 8:00 a.m. and 12 midnight. There will also be a
four-day workweek comprised of ten and one half hour
technicians (Syracuse CBA) was effective June 11, 2016 to June 10, 2019.
Unless otherwise noted, the CBA provisions at issue are identical and we
cite only to the Syracuse CBA.
4 Joint App. at 134.
5 Id. at 138.
6 No. 20-1163-ag
shifts [4x10 Workweek] . . . between the hours of 8:00
a.m. and 12 midnight, Monday through Friday. 6
For Technicians in the Installation Department, the CBAs provide a
single schedule: “The Installation Department may be scheduled for
any eight-hour period between 7:00 a.m. and 5:30 p.m. in any given
day between Monday and Friday.” 7
Article 6, Section 1 also provides for limited departures from
the regular schedules. For technicians in the Service Department, the
CBAs provide that “[c]ustomer needs may periodically make it
necessary for work to be performed beginning at 7:00 a.m.” 8 For
technicians in the Installation Department, they provide that
“[c]ustomer needs may periodically make it necessary for work to be
performed on a second shift and/or Saturdays.” 9 Before assigning
work beyond the regular schedule, however, the CBAs require ADT
to follow certain procedures. For technicians in both departments,
they provide, “The Company will first seek qualified volunteers to
perform such work. If there are no qualified volunteers[,] then the
least senior qualified person will be assigned to perform the work.” 10
Third, Article 6, Section 3 of the CBAs describes ADT’s
obligation to pay additional compensation for overtime. It states:
All time worked daily in excess of eight (8) hours in a
scheduled 5 x 8 hour workweek, in excess of ten (10)
hours in a 4 x 10 hour workweek, or weekly in excess of
6
Id.
7
Id.
8 Id.
9 Id. The Albany CBA contains a slight variation of this sentence. It
states: “Customer needs may periodically make it necessary to add an
additional shift for residential installers from Tuesday through Saturday.”
Id. at 161.
10 Id. at 138.
7 No. 20-1163-ag
forty (40) hours, or on scheduled days off shall be
compensated for at one and one-half (1½) times the
employee’s regular straight time hourly rate. 11
B. The Mandatory Six-Day Workweek
In September 2016, the private equity firm Apollo Group
purchased ADT and merged its operations with Protection One, Inc.,
one of ADT’s competitors. At the time, Protection One had a
customer-retention policy of responding to 75 percent of service calls
within 24 hours. Recognizing the increased customer demand for fast
and efficient service, Apollo Group decided to apply that same
customer-retention policy to all of ADT’s branches nationwide.
To meet the new customer service targets, ADT needed to
reduce a backlog of open work orders at several of its locations.
Accordingly, ADT announced on September 6 that it would
implement a mandatory six-day workweek for service and
installation technicians at nine branches in New York and
Pennsylvania, including those in Albany and Syracuse. At the Albany
branch, the new policy would apply to all workweeks. At the
Syracuse branch, the new policy would apply only to the second and
fourth workweeks of every month. 12 In each case, ADT stated that the
mandatory six-day workweeks would begin on September 22 and
continue “until each market achieves the desired [customer service]
target.” 13 While ADT acknowledged that the policy would burden its
technicians, it stated that “the only exception at this time are those
technicians that are currently attending classes and are enrolled in
Id.
11
12 In its email announcing the policy, ADT stated that the bi-weekly
schedule at the Syracuse branch “can change to weekly if needed with no
additional notice.” Joint App. at 131.
13 Id. at 130.
8 No. 20-1163-ag
higher education.” 14
The Union immediately objected to the new policy, demanded
that ADT rescind it, and asserted that ADT violated the NLRA by
failing to bargain with the Union before implementing the new
schedule. Undeterred, ADT implemented the policy as planned,
maintaining a mandatory six-day workweek for two to three months
at its Albany branch and for one month at its Syracuse branch. During
this time, ADT paid its employees overtime. It did not, however, seek
volunteers before scheduling overtime shifts or, in the absence of
sufficient volunteers, allocate shifts based on reverse seniority.
Except for employees pursuing higher education, all service and
installation technicians worked six-days per week as ordered. 15
C. Prior Proceedings
Based on charges filed by the Union, the General Counsel for
the Board issued a complaint alleging, inter alia, that ADT violated
Sections 8(a)(5) and (1) of the Act by implementing the six-day
workweek unilaterally—that is, without affording the Union notice
or an opportunity to bargain. 16 On August 4, 2017, an administrative
law judge issued a decision and recommended order finding that
14
Id.
15
ADT made another exception for an employee with childcare
obligations, a decision the Board concluded violated the NLRA provision
prohibiting direct dealing. See ADT, LLC, 369 N.L.R.B. No. 31, 2020 WL
996271, at *1, 8 (Feb. 27, 2020). That conclusion is not at issue in this petition
for review.
16 See id. at *1. Apart from this unilateral-change allegation, the General
Counsel also asserted charges alleging that ADT modified the CBAs
without the Union’s consent, that ADT unreasonably delayed responding
to information requested by the Union, and that ADT bypassed the Union
when it exempted one Albany technician from the new schedule. Id. Only
the General Counsel’s unilateral-change allegation is at issue in this appeal.
9 No. 20-1163-ag
ADT violated the Act as alleged. 17 ADT filed exceptions to the
recommend order and, on February 27, 2020, the Board reversed.18
Applying a newly adopted “contract coverage” standard, the Board
held that ADT had no duty to bargain with the Union because the
plain language of the CBAs granted ADT the right to impose the six-
day workweek unilaterally. 19
The Board’s analysis of the CBAs was brief. It explained that
“Article 6, [S]ection 3 of the Agreements provided for payment of
overtime wages for work performed ‘weekly in excess of forty (40)
hours, or on scheduled days off,’” and that “Article 1, [S]ection 2 of
the Agreements vested in [ADT] the exclusive right ‘to determine the
reasonable amount . . . of work needed.’” 20 “Read together,” it
reasoned, “these provisions authorized [ADT] to determine the
amount of work it needed the technicians to perform and to require
its technicians to work in excess of 40 hours a week or on scheduled
days off to accomplish that work.” 21 Although the Board
acknowledged that ADT had failed to seek volunteers prior to
assigning overtime, it held that any violations of the scheduling
provisions were immaterial because “performance of the work was
compulsory.” 22
The Union timely petitioned this court for review.
DISCUSSION
On appeal, the Union argues that the Board erred by dismissing
its charges under Sections 8(a)(5) and (1) of the Act on the basis that
17
Id.
18
Id.
19 See id. at *4.
20 Id. (emphasis added by the Board) (quoting the CBAs).
21 Id.
22 Id. at *4 n.9.
10 No. 20-1163-ag
the CBAs permitted ADT’s unilateral change to the schedule. It
emphasizes that the management rights in Article 1, Section 2 are
subject to the express limitations on scheduling in Article 6, Section 1,
and that the overtime provisions in Article 6, Section 3 address ADT’s
obligations, not its rights. Because the CBAs expressly cabin ADT’s
scheduling rights, the Union argues that ADT violated the Act by
failing to bargain before imposing the six-day workweek.
We agree with the Union and therefore vacate the Board’s
decision.
I. Standard of Review
Our review of a Board’s unfair labor practice determination is
limited. 23 As to factual conclusions, we adopt the Board’s factual
findings to the extent they are supported by substantial evidence.24
We will reverse based upon a factual question only “if, after looking
at the record as a whole, we are left with the impression that no
rational trier of fact could reach the conclusion drawn by the Board.” 25
As to legal conclusions, “[t]he judicial role is narrow.” 26 We defer to
the Board’s interpretations of the NLRA—including with respect to
the legal standard governing an unfair labor practice charge—as long
as its interpretations are “rational and consistent with the Act.” 27
See Healthbridge Mgmt., LLC v. NLRB, 902 F.3d 37, 43 (2d Cir. 2018).
23
Id.
24
25 Katz’s Delicatessen, 80 F.3d at 763 (quoting NLRB v. Albany Steel, Inc.,
17 F.3d 564, 568 (2d Cir. 1994)).
26 Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501 (1978).
27 Local Union 36, Int’l Bhd. of Elec. Workers v. NLRB, 706 F.3d 73, 82 (2d
Cir. 2013) (quoting Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v.
NLRB, 501 U.S. 190, 201 (1991)); see also Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 843–44 (1984) (requiring that, where Congress has
delegated regulatory authority to an administrative agency, courts must
defer to that agency’s reasonable construction of the statute it administers).
11 No. 20-1163-ag
We do not, however, defer to the Board’s interpretation of a
contract, including a CBA. 28 “Although the Board has occasion to
interpret collective-bargaining agreements in the context of unfair
labor practice adjudication, the Board is neither the sole nor the
primary source of authority in such matters.” 29 “[T]he interpretation
of contracts falls under the special, if not unique, competence of
courts,” so we afford no deference to the Board in its interpretation of
the CBAs. 30
II. The Contract Coverage Standard
Congress enacted the NLRA to “redress the perceived
imbalance of economic power between labor and management . . . by
conferring certain affirmative rights on employees and by placing
certain enumerated restrictions on the activities of employers.”31
Section 7 of the Act grants employees certain rights, including the
right “to bargain collectively through representatives of their own
choosing.” 32 Section 8(a)(1) prohibits employers from interfering
with those rights, and Section 8(a)(5) specifically makes it an “unfair
labor practice for an employer . . . to refuse to bargain collectively
with the representatives of [its] employees.” 33 As we recently
explained in Healthbridge Management, LLC v. NLRB, 34 an employer
violates Section 8(a)(5) and, by extension, Section 8(a)(1) if it
“discontinues an established policy, resulting in changes to its
employees’ wages, hours, and other terms and conditions of
Local Union 36, 706 F.3d at 82.
28
Litton, 501 U.S. at 202 (citation omitted).
29
30 Local Union 36, 706 F.3d at 82.
31 First Student, Inc. v. NLRA, 935 F.3d 604, 607 (D.C. Cir. 2019) (alteration
in original) (quoting Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316 (1965)).
32 29 U.S.C. § 157.
33 Id. § 158(a)(5).
34 902 F.3d 37 (2d Cir. 2018).
12 No. 20-1163-ag
employment, without first notifying and bargaining with the
employees’ collective bargaining representative.” 35 An employer
does not violate these sections, however, “if the collective-bargaining
agreement . . . grant[s] the employer the right to take [the challenged
action] unilaterally (i.e., without further bargaining with the
union).” 36
While these statutory principles are straightforward, we must
still decide which interpretive method to apply when determining
whether a CBA grants an employer the right to take an action
unilaterally. This inquiry involves a question of law, so we defer to
the Board as long as its approach is rational and consistent with the
Act.
For many years, the Board employed a “clear and unmistakable
waiver” standard for determining whether a CBA permitted an
employer’s unilateral change to an established policy. 37 Under that
standard, we asked whether the text of the CBA “unequivocally and
specifically” permitted the employer’s action such that the union
could be said to have “waived” its right to bargain the issue. 38 If the
CBA contained “sufficiently specific” language authorizing the
employer’s action, the union’s charges under Sections 8(a)(5) and (1)
35
Id. at 46 (alterations and internal quotation marks omitted); see also
Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d 364, 373 (D.C. Cir. 2017) (“[A]n
employer’s violation of [S]ection 8(a)(5)’s duty to bargain also violates
[S]ection 8(a)(1).”).
36 MV Transp. Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *1 (Sept. 10,
2019).
37 See Local Union 36, 706 F.3d at 82 (quoting Fafnir Bearing Co. v. NLRB,
362 F.2d 716, 722 (2d Cir. 1966)); see also Provena St. Joseph Med. Ctr., 350
N.L.R.B. 808, 811 (2007) (describing the “clear and unmistakable waiver”
standard).
38 Provena St. Joseph Med. Ctr., 350 N.L.R.B. at 811.
13 No. 20-1163-ag
would fail. 39 But if the CBA was ambiguous, or if it failed to
“specifically refer[] to the type of employer decision” at issue, there
would be no clear and unmistakable waiver of the union’s right to
bargain the issue and thus the union’s charges could proceed. 40
Recently, however, the Board abandoned its “clear and
unmistakable waiver” standard in favor of a “contract coverage”
test. 41 As the Board explained in MV Transportation, parties to a CBA
have already bargained with respect to any matter “covered by” the
contract. 42 Thus, “where the employer acts pursuant to a claim of
right under the parties’ agreement, the resolution of the refusal to
bargain charge rests on an interpretation of the contract”—not on a
“waiver” analysis. 43 Because the question of waiver is irrelevant, the
standard does not require a CBA to “specifically mention, refer to or
address the employer decision at issue.” 44 Instead, it calls on courts
to “apply[] ordinary principles of contract interpretation,” 45
recognizing that a CBA “establishes principles to govern a myriad of
fact patterns” and “bargaining parties [cannot] anticipate every
hypothetical grievance and . . . address it in their contract.” 46 In short,
39
Johnson-Bateman Co., 295 N.L.R.B. 180, 189 (1989); see also Allison Corp.,
330 N.L.R.B. 1363, 1365 (2000) (“[T]he Board looks to the precise wording
of the relevant contract provisions in determining whether there has been a
clear and unmistakable waiver.”).
40 See U.S. Postal Serv. & Am. Postal Workers Union, AFL-CIO, 306 N.L.R.B.
640, 643 (1992)).
41 MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *1.
42 Id. at *11 (quoting NLRB v. U.S. Postal Serv., 8 F.3d 832, 836 (D.C. Cir.
1993) (“[W]here the matter is covered by the collective bargaining
agreement, the union has exercised its bargaining right and the question of
waiver is irrelevant.”)).
43 Postal Serv., 8 F.3d at 837.
44 MV Transp. Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *17.
45 Id. at *2.
46 Id. at *17 (alterations in original) (quoting Postal Serv., 8 F.3d at 838).
14 No. 20-1163-ag
the contract coverage standard asks only that we “examine the plain
language of the collective-bargaining agreement to determine
whether action taken by an employer was within the compass or
scope of contractual language granting the employer the right to act
unilaterally.” 47
The Board’s opinion in MV Transportation is thorough and
carefully reasoned. As the Board explained, the clear and
unmistakable waiver standard tended to undermine contractual
stability and alter the bargain reached by parties through
negotiations. 48 Moreover, by requiring the Board to deny the effect of
contract provisions that failed to meet the “exacting” requirements for
a waiver, 49 the standard often caused the Board to sit in judgment
upon contract terms—a circumstance specifically prohibited by the
Supreme Court in NLRB v. American National Insurance Co. 50 The
contract coverage standard obviates many of these deficiencies. Most
importantly, it harmonizes the Board’s interpretive approach with
ordinary principles of contract interpretation while preserving
meaningful limits on unilateral employer action. 51 For these reasons,
we defer to the Board and adopt the contract coverage standard as
rational and consistent with the Act. 52
III. The Union’s Unilateral-Change Allegations
Applying the contract coverage standard, we believe that the
plain language of the CBAs did not permit ADT’s unilateral decision
Id. at *2.
47
See id. at *6–8.
48
49 Id. at *6.
50 343 U.S. 395, 404 (1952) (“[T]he Board may not, either directly or
indirectly, compel concessions or otherwise sit in judgment upon the
substantive terms of collective bargaining agreements.”).
51 MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *13, 15.
52 See Litton, 501 U.S. at 201.
15 No. 20-1163-ag
to impose the six-day workweek. We conclude that the scheduling
provisions in Article 6, Section 1 restricted ADT’s right to act
unilaterally, and that the Board erred in construing other provisions
of the CBAs to indicate otherwise.
To begin, Article 6, Section 1 reflects bargained-for restrictions
on technicians’ hours and work schedules. For technicians in the
Service Department, it sets forth two alternative schedules: a
“normal” schedule of eight-hour shifts for “five consecutive days,
Monday through Saturday” (the 5x8 Workweek), and an alternative
schedule of ten-hour shifts over “a four-day workweek, . . . Monday
through Friday” (the 4x10 Workweek). 53 For technicians in the
Installation Department, Article 6, Section 1 sets forth a single
permissible schedule: employees in that department may be
scheduled for “any eight-hour period between 7:00 a.m. and 5:30 p.m.
in any given day between Monday and Friday.” 54 Each provision of
the CBAs uses precise language to describe limited windows in which
technicians may be scheduled. 55 None of these schedules
contemplates a six-day workweek, and nothing in either CBA grants
ADT the right to impose a six-day schedule unilaterally.
Moreover, while the CBAs allow ADT to deviate somewhat
from the regular schedules, Article 6, Section 1 expressly restricts the
ways in which it may do so. For technicians in the Service
Department, Article 6, Section 1 states that “[c]ustomer needs may
periodically make it necessary for work to be performed beginning at
7:00 a.m.” rather than 8:00 a.m. 56 For technicians in the Installation
Joint App. at 138.
53
Id.
54
55 For technicians in the Service Department, this language is overtly
mandatory. See id. (stating that the normal schedule “shall be” a 5x8
Workweek and the alternative schedule “will . . . be” a 4x10 Workweek).
56 Id.
16 No. 20-1163-ag
Department, it states that “[c]ustomer needs may periodically make
it necessary for work to be performed on a second shift and/or
Saturdays.” 57 In either case, the CBAs specify a two-step procedure
that ADT must follow before requiring the specific change in
schedule. First, ADT must “seek qualified volunteers to perform such
work.” 58 Second, “[i]f there are no qualified volunteers,” it must
assign the work to “the least senior qualified person.” 59
ADT cannot justify its unilateral imposition of the six-day
workweek under either of these exceptions. With respect to
technicians in the Service Department, Article 6, Section 1 does
nothing more than permit ADT to begin a technician’s schedule one
hour early. It does not grant ADT the right to schedule work outside
the 5x8 or 4x10 Workweeks described in the CBAs. With respect to
technicians in the Installation Department, the plain language of the
CBAs does allow ADT to impose an “additional shift,” including on
a sixth day of the week. But it does not grant ADT unfettered
discretion to schedule that shift. As the Board noted, ADT did not
comply with the two-step procedure: it did not seek qualified
volunteers and, failing sufficient volunteers, it did not assign unfilled
shifts based on reverse seniority. Instead, ADT decided for itself
which employees would be required to take additional shifts and
exempted all technicians pursuing higher education despite no basis
in the CBAs for taking that approach. 60 Thus, even if the CBAs could
Id. As noted above, the Albany CBA contains a slight variation of this
57
sentence. See id. at 161.
58 Id. at 138.
59 Id.
60 ADT and the Board claim that we lack jurisdiction to consider this fact
because the Union did not invoke it when arguing before the Board. We
disagree. The Union preserved its argument that Article 6, Section 1
controlled this case, and the jurisdictional provisions in 29 U.S.C. § 160(e)
17 No. 20-1163-ag
have granted ADT the right to impose a six-day workweek on some
technicians, it failed to meet the contractual prerequisites for doing so
unilaterally.
The Board’s decision did not address the scheduling provisions
in Article 6, Section 1. Instead, it focused on Article 6, Section 3, which
requires ADT to pay overtime wages for work performed “weekly in
excess of forty (40) hours, or on scheduled days off,” 61 and on Article
1, Section 2, which vests in ADT the exclusive right “to determine the
reasonable amount . . . of work needed.” 62 The Board concluded that,
when read together, these provisions grant ADT broad rights to
determine the appropriate “amount” of work and to schedule
overtime as required to accomplish that work. 63 This construction of
the CBAs was error for at least two reasons.
First, the Board’s interpretation failed to recognize that the
management rights granted to ADT by Article 1, Section 2 are “subject
. . . to the [remaining] provisions of the [A]greement[s],” including the
scheduling provisions in Article 6, Section 1. 64 Thus, while Article 1,
Section 2 grants ADT broad rights to determine the “amount . . . of
work” required, its authority to schedule that work is constrained by
the specific provisions of Article 6, Section 1. 65 As discussed, those
provisions do not permit ADT to require a sixth day of work for
technicians in the Service Department. And while they permit ADT
to periodically assign Saturday shifts to technicians in the Installation
do not prevent counsel from marshalling additional undisputed facts to
support an argument raised below.
61 Joint App. at 138.
62 Id. at 134.
63 ADT, LLC, 369 N.L.R.B. No. 31, 2020 WL 996271, at *4.
64 Joint App. at 134.
65 Id. (emphasis added).
18 No. 20-1163-ag
Department, the CBAs still require compliance with the two-step
procedure.
Even without the express language stating that ADT’s
management rights were “subject . . . to” the remaining provisions of
the CBAs, a broadly worded management right ordinarily will not
give an employer carte blanche to disregard specific limits on that
authority. 66 It is a well-recognized tenet of contract interpretation that
“specific terms and exact terms are given greater weight than general
language.” 67 And it is well settled that courts should not adopt an
interpretation that leaves a provision of a contract without force or
effect. 68 The Board’s interpretation does just that. It elevates general
language to nullify specific contractual terms and renders
meaningless the Union’s negotiation of four- or five-day workweeks,
maximum workday hours, and limited exceptions to the agreed-upon
schedules. We cannot endorse this interpretation.
Second, the Board’s interpretation mistakenly concluded that
Article 6, Section 3 grants ADT a right to mandate overtime work. The
overtime provisions do not grant rights to ADT. Instead, they simply
impose a duty on ADT to pay overtime “at one and one-half (1½)
times the employee’s regular straight time hourly rate” whenever that
employee works “in excess of eight (8) hours in a [5x8 Workweek], in
excess of ten (10) hours in a [4x10 Workweek], or weekly in excess of
66
See MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958 at *2 n.6
(“[I]f the agreement contains a matrix of progressive discipline for safety
violations that must be followed, the general contractual right to revise
existing policies would not privilege the employer to dispense with
progressive discipline for safety violations.”).
67 Aramony v. United Way of Am., 254 F.3d 403, 413 (2d Cir. 2001) (quoting
Restatement (Second) of Contracts § 203(c) (1981)).
68 See Kelly v. Honeywell, Int’l, Inc., 933 F.3d 173, 183 (2d Cir. 2019); LaSalle
Bank Nat’l Ass’n v. Nomura Asset Cap. Corp., 424 F.3d 195, 206 (2d Cir. 2005).
19 No. 20-1163-ag
forty (40) hours, or on scheduled days off.” 69 In other words, the
overtime provisions guarantee that Union employees receive
overtime compensation when they volunteer for additional work
beyond their schedule. Whether viewed independently or in
connection with the management-rights provisions, they do not grant
ADT a right to mandate overtime on whatever schedule it desires.
Despite these two errors in the Board’s analysis, the Board and
ADT advance additional arguments in this petition for review that
they claim support the Board’s construction of the CBAs. They argue
that the Union’s interpretation would leave the management-rights
provisions without force and effect, that the scheduling provisions
were not binding on ADT because they referred only to “normal”
workweeks, and that it would have been a mere formality for ADT to
comply with the two-step procedure. They further argue that the
Union cannot press its unilateral change allegations because they
collapse into its contract modification allegations, which are not the
subject of this appeal. On each of these arguments, we are
unpersuaded.
First, ADT and the Board contend that the Union’s
interpretation, not theirs, would render portions of the CBAs without
force or effect. They argue that, by enforcing the scheduling
provisions of Article 6, Section 1, we would “negate the purpose of
the management-rights and overtime provisions that grant ADT the
right to determine the ‘amount’ of work required and to assign
overtime, including on regular days off.” 70 This argument has it
backwards because the Union’s construction gives effect to each
provision of the CBAs. Once ADT exercises its exclusive right to
determine the “amount” of work needed, it may direct the operations
69
Joint App. at 138.
70 See Resp’t’s Br. 25.
20 No. 20-1163-ag
of the company in numerous ways, including by (1) requiring
overtime in a manner consistent with the scheduling and overtime
provisions, (2) soliciting volunteers to work additional overtime
outside the scheduled hours, or (3) increasing the number of
technicians it employs. ADT could also bargain with the Union to
alter the scheduling provisions. Until then, however, Union
technicians retain their right to work within the range of their
negotiated schedules.
Second, ADT and the Board contend that the scheduling
provisions do not bind ADT because Article 6, Section 1 describes
only “normal” work schedules for Union technicians. This argument
is meritless. As discussed, Article 6, Section 1 uses specific and
restrictive language when describing its technicians’ work schedules.
The phrase “normal work schedule” appears only in the paragraph
setting forth schedules for technicians in the Service Department and,
when read in context, does nothing more than distinguish the
“normal” 5x8 Workweek from the alternative 4x10 Workweek. The
CBAs do not use the word “normal” when describing the work
schedule for technicians in the Installation Department because the
parties agreed to only one schedule for those employees.
Third, ADT and the Board argue that it would have been a mere
formality for ADT to comply with the two-step procedure by seeking
volunteers before assigning Saturday shifts by reverse seniority.
While they acknowledge that the two-step procedure was binding,
they emphasize the Board’s finding that ADT “was in an ‘all hands
on deck’ situation” such that “it was assigning overtime to all of the
technicians, whether they would have volunteered or not.” 71 But this
argument amounts to little more than a futility defense to a breach of
contract; it does not bear on whether the CBAs themselves permitted
71 ADT, LLC, 369 N.L.R.B. No. 31, 2020 WL 996271, at * 5.
21 No. 20-1163-ag
ADT to enact the policy unilaterally. And while we need not go
further, we are not persuaded that the Board’s factual finding on this
issue is supported by substantial evidence. The record shows that
ADT did not assign work to “all of the technicians” because it
exempted all employees enrolled in higher education.
Finally, ADT and the Board argue that we should reject the
Union’s unilateral-change theory because its interpretation of the
CBAs better reflects a contract-modification theory that the Union
waived on appeal. As the Board has explained, there are analytical
distinctions between unilateral-change cases and contract-
modification cases. The issue in a unilateral-change case “is whether
the contract privileges the [employer’s] conduct,” while the issue in a
contract-modification case “is whether the contract forbade the
[employer’s] conduct.” 72 According to the Board, the Union argues
“not that the contract did not privilege ADT’s action,” but rather “that
the schedule provisions forbade the action and that ADT violated the
contract by modifying it mid-term.” 73 We are not convinced.
The distinction the Board draws—whether a contract
“privileges” or “forbids” an employer’s action—is little more than
semantic when the contract coverage standard applies. Under
ordinary contract principles, contractual language that expressly or
impliedly forbids a unilateral action plainly does not privilege it. The
Board itself recognized this when adopting the contract coverage
standard in MV Transportation. It observed that, “if an agreement
contains a provision that broadly grants the employer the right to
[take an action unilaterally], the employer would not violate Section
8(a)(5) and (1) by unilaterally [taking that action] . . . [p]rovided, of
72
Bath Iron Works Corp., 345 N.L.R.B. 499, 502 (2005).
73 Resp’t’s Br. 28 (emphasis added).
22 No. 20-1163-ag
course, that no other provision of the agreement limits the employer’s right
of action.” 74
Moreover, we see no basis to dismiss the Union’s unilateral-
change theory simply because the Union’s allegations are also
consistent with a contract-modification theory. When an employer
defends its failure to bargain by invoking a claim of right under a
CBA, the analysis of a unilateral-change theory may overlap with the
analysis of a contract-modification theory because both theories turn
on ordinary principles of contract interpretation. 75 And while the two
theories offer different remedies, 76 a union may choose which course
to pursue. Here, the Union advanced both theories in the alternative
when litigating before the Board, but it presses only its unilateral-
change theory on this petition for review. Accordingly, we decide
only that ADT violated the Act by refusing to bargain before imposing
the six-day workweek in the manner we have described. We have no
need to decide whether ADT also violated the Act by modifying the
contract mid-term.
74
MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *2 & n.6
(emphasis added); see also Healthbridge, 902 F.3d at 47–48 (finding that
employer violated Section 8(a)(5) of the Act by failing to bargain before
changing a condition of employment where the CBA addressed the issue
and prohibited the employer from changing the condition unilaterally).
75 See Pac. Mar. Ass’n v. NLRB, 967 F.3d 878, 891 (D.C. Cir. 2020)
(observing that the contract coverage analysis “overlap[s]” with the
analysis governing a contract-modification claim).
76 In a unilateral-change case, the remedy is an order requiring the
employer to bargain in good faith. Bath Iron Works, 345 N.L.R.B. at 501. If
the negotiations reach an impasse, the employer’s duty to bargain further
is temporarily suspended and the employer may change the terms and
conditions of employment unilaterally. See Emhart Indus., Hartford Div. v.
NLRB, 907 F.2d 372, 376 (2d Cir. 1990). In a contract modification case, the
remedy is an order requiring the employer to honor the CBA as drafted.
Bath Iron Works, 345 N.L.R.B. at 501.
23 No. 20-1163-ag
* * *
In summary, we adopt the “contract coverage” test as the
governing standard for determining whether a CBA permits an
employer’s unilateral change to an established policy. Applying that
test here, we find that (1) the CBAs did not grant ADT the right to
unilaterally impose a mandatory six-day workweek on technicians in
the Service Department at all, and (2) the CBAs did not grant ADT the
right to unilaterally impose a mandatory six-day workweek on
technicians in the Installation Department without complying with
the two-step procedure. Accordingly, we conclude that ADT violated
Sections 8(a)(5) and (1) of the Act by failing to bargain with the Union
before implementing the change.
CONCLUSION
For the foregoing reasons, we VACATE the Board’s decision
and REMAND for further proceedings consistent with this opinion.