NLRB v. Nexstar Broadcasting, Inc.

FOR PUBLICATION

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), (5), provide that such unilateral
changes made before bargaining over a new CBA reaches an
impasse are unfair labor practices. See Litton Fin. Printing
Div. v. NLRB, 501 U.S. 190, 198 (1991).

Management nonetheless asserts that it was entitled to
make the changes under the “contract coverage” doctrine.
See MV Transp., Inc., 368 NLRB No. 66, 2019 WL
4316958, at *2 (Sept. 10, 2019). Rejecting that argument,
the NLRB 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.” Nexstar
Broad. Inc., 369 NLRB No. 61, 2020 WL 1986474, at *3
(Apr. 21, 2020). Finding that decision “rational and
consistent with” the NLRA, Local Joint Exec. Bd. of Las
Vegas v. NLRB, 515 F.3d 942, 945 (9th Cir. 2008) (cleaned
up), we grant the NLRB’s petition for enforcement.

I

The employees of the KOIN television station in
Portland, Oregon are represented by The National
Association of Broadcast Employees & Technicians, the
Broadcasting and Cable Television Workers Sector of the
 NLRB V. NEXSTAR BROADCASTING, INC. 5

Communications Workers of America, Local 51, AFL-CIO
(“the Union”). When Nexstar Broadcasting purchased the
station in January 2017, it adopted the operative CBA.
Between June and September of that year, Nexstar and the
Union unsuccessfully attempted to negotiate a new CBA,
and the agreement expired on September 8.

Later that month, Nexstar began requiring employees to
complete an annual motor vehicle and driving history
background check. Under the “Employee Guidebook”
referenced in Article 10.1 of the CBA, these background
checks were previously required only of employees involved
in a motor vehicle accident while on the job. And in
February 2018, Nexstar began posting employee work
schedules two weeks in advance. Although Article 8.1 of
the CBA only required that work schedules be posted “two
(2) weeks in advance of the commencement of the
workweek,” since at least 1993 station managers had posted
schedules four months in advance pursuant to Article 8.1’s
other requirement that they be posted “as soon as they are
known.”

The Union filed charges with the NLRB alleging that
these two unilateral changes to existing terms and conditions
of employment constituted unfair labor practices; the
NLRB’s general counsel issued a complaint. The parties
stipulated to the facts and submitted the dispute to an
administrative law judge (“ALJ”) for decision.

The ALJ held that the unilateral changes violated NLRA
§ 8(a)(1) and (5) because the Union had not “clearly and
unmistakably waived” its right to bargain over them. The
ALJ declined to apply the “contract coverage” standard,
under which a CBA’s terms are analyzed “to determine
whether action taken by an employer was within the
compass or scope of contractual language granting the
6 NLRB V. NEXSTAR BROADCASTING, INC.

employer the right to act unilaterally.” See MV Transp., Inc.,
2019 WL 4316958, at *2.

The NLRB rejected Nexstar’s exceptions to the ALJ’s
ruling. Although the NLRB had previously applied the
“contract coverage” standard, which does not require
explicit CBA language to authorize unilateral changes in
terms of conditions of employment, to unexpired CBAs, it
declined to apply the doctrine to an expired CBA. Instead,
it found that “provisions in an expired collective-bargaining
agreement do not cover postexpiration unilateral changes
unless the agreement contained language explicitly
providing that the relevant provision would survive contract
expiration.” Nexstar Broad., Inc., 2020 WL 1986474, at *3.
Finding no express language in the CBA permitting the
changes, the NLRB found that Nexstar was required to
“maintain the status quo” during negotiations. Id. at *4
(citing NLRB v. Katz, 369 U.S. 736, 743 (1962)). The NLRB
ordered Nexstar to rescind the changes, bargain with the
Union before imposing further changes, and post remedial
notices. The NLRB then petitioned this Court for
enforcement of those orders.

II

Although the federal courts are the “principal sources of”
CBA interpretation, NLRB v. Strong, 393 U.S. 357, 360–61
(1969), the NLRB regularly interprets CBAs in deciding
allegations of unfair labor practices. Id. at 361; NLRB v.
C&C Plywood Corp., 385 U.S. 421, 428 (1967). When
reviewing NLRB orders, see 29 U.S.C. § 160(e) and (f), we
must uphold the agency’s decision if it “correctly applied the
law and its factual findings are supported by substantial
evidence.” Glendale Assocs. v. NLRB, 347 F.3d 1145, 1151
(9th Cir. 2003). The NLRB’s interpretation of the NLRA “is
accorded considerable deference as long as it is ‘rational and
 NLRB V. NEXSTAR BROADCASTING, INC. 7

consistent’ with the statute.” Local Joint Exec. Bd. of Las
Vegas, 515 F.3d at 945 (quoting NLRB v. Calkins, 187 F.3d
1080, 1085 (9th Cir. 1999)). Similarly, the Board’s
interpretation of a CBA is “entitled to deference” if it is
“reasonable and not inconsistent with the Act’s policies.”
NLRB v. Int’l Brotherhood of Elec. Workers, Local 11,
772 F.2d 571, 575 (9th Cir. 1985).

III

A

A CBA is interpreted “according to ordinary principles
of contract law, at least when those principles are not
inconsistent with federal labor policy.” M&G Polymers
USA, LLC v. Tackett, 574 U.S. 427, 435 (2015). One such
familiar principle is that “contractual obligations will cease,
in the ordinary course, upon termination of the [CBA].”
Litton, 501 U.S. at 207. But, after a CBA expires, the “terms
and conditions [of employment] continue in effect by
operation of the NLRA. They are no longer agreed-upon
terms; they are terms imposed by law, at least so far as there
is no unilateral right to change them.” Id. at 206. NLRA
§ 8(a)(1) and (5) demand a “continuation of the status quo”
during negotiations over a successor CBA, Katz, 369 U.S.
at 746, absent “explicit” agreement to the contrary, Litton,
501 U.S. at 207.

The statutory scheme recognizes that allowing an
employer to make unilateral changes to the terms and
conditions of employment during negotiations creates an
untenable power imbalance infringing the employees’ § 5
rights to bargain and their § 1 rights to organize. See Litton,
501 U.S. at 198; 29 U.S.C. § 158(a)(1), (5); Queen Mary
Rest. Corp. v. NLRB, 560 F.2d 403, 410 (9th Cir. 1977). “[I]t
is difficult to bargain if, during negotiations, an employer is
8 NLRB V. NEXSTAR BROADCASTING, INC.

free to alter the very terms and conditions that are the subject
of those negotiations.” Litton, 501 U.S. at 198.
Accordingly, Katz found that an employer violated the
NLRA by imposing unilateral changes to employees’ sick
leave and merit policies without first bargaining to impasse,
holding that § 8(a)(5) and (1) require a “continuation of the
status quo” during initial CBA negotiations. 369 U.S. at 746.
Litton then applied this rule to expired CBAs, making clear
that CBA “terms and conditions continue in effect by
operation of the NLRA” upon expiration, absent explicit
agreement that contract rights and obligations will survive.
501 U.S. at 206–07.

Applying this doctrine, we have held that an employer
could not stop making payments to employee healthcare and
pension trust funds after a CBA expired, because the “status
quo” at the time of expiration included those payments.
NLRB v. Carilli, 648 F.2d 1206, 1214 (9th Cir. 1981) (“[T]he
collective bargaining agreement survives its expiration date
for purposes of marking the status quo as to wages and
working conditions.”). Similarly, we enforced an NLRB
order finding violations of § 8(a)(5) and (1) when an
employer stopped paying into an employee health and
welfare fund and reduced wages after the CBA expired.
NLRB v. Auto Fast Freight, Inc., 793 F.2d 1126, 1129–31
(9th Cir. 1986).

The same rule applies with respect to employment
practices. “[E]ven if not required by a [CBA],” such
practices, if “regular and long-standing, rather than random
or intermittent, become terms and conditions of unit
employees’ employment, which cannot be altered without
offering their collective-bargaining representative notice and
an opportunity to bargain over the proposed change.”
Sunoco, Inc., 349 NLRB 240, 244 (2007); see NLRB v.
 NLRB V. NEXSTAR BROADCASTING, INC. 9

Merrill & Ring, Inc., 731 F.2d 605, 608 (9th Cir. 1984)
(holding that a unilateral change to established practice
violates § 8(a)(5) and (1)); see also Queen Mary Rest. Corp.,
560 F.2d at 408 (same).

B

In short, the NLRA freezes the terms and conditions of
employment in place upon expiration of the CBA, until
negotiations reach an impasse, in order to encourage
productive bargaining. Nexstar does not seriously contest
that the two changes at issue in this case departed from the
status quo at the time the CBA expired. In any event, the
NLRB’s finding that they did is supported by substantial
evidence. See Glendale Assocs., 347 F.3d at 1151.

The parties stipulated that the CBA did not require
annual checks of employee motor vehicle histories and that,
under well-established practice, employees were required to
submit to such checks only when involved in an accident on
the job. When the CBA expired, Nexstar began requiring
such checks. 1

The parties similarly stipulated that the practice when the
CBA expired was to post work schedules four months in
advance. Article 8.1 of the CBA required work schedules to
be posted “as soon as they are known to the employer,” but

1
Nexstar’s counsel asserted at oral argument that because Article
10.1 of the CBA did not contain any specific policies regarding driving
background checks, but instead referred to the “Employee Guidebook,”
the status quo included the employees’ continuing obligation to adhere
to the Guidebook’s policies, which were always subject to change. This
does not change the analysis, however, because we focus on the actual
employment practices on the ground as they existed when the CBA
expired. Merrill & Ring, Inc., 731 F.2d at 608.
10 NLRB V. NEXSTAR BROADCASTING, INC.

in any event no less than “two (2) weeks in advance.” The
stipulation included the statement that since “at least as early
as 1993,” station managers had posted work schedules four
months in advance.

C

The status quo rule of § 8(a)(5) and (1) is, however, not
entirely inflexible. The NLRA merely imposes a default rule
that “govern[s] unless actively negated” by agreement to the
contrary. Oren Bar-Gill & Omri Ben-Shahar, Rethinking
Nudge: An Information-Costs Theory of Default Rules,
88 U. Chi. L. Rev. 531, 533 & n.1 (2021).

A union may therefore expressly waive its right to
bargain over specified changes to employment terms. Litton,
501 U.S. at 207; Metro. Edison Co. v. NLRB, 460 U.S. 693,
707–08 (1983). Before MV Transportation, the NLRB
required a “clear and unmistakable waiver” by the union to
permit all unilateral changes by management, whether the
CBA had expired or remained in force. See Provena St.
Joseph Med. Ctr., 350 NLRB 808, 810 (2007). 2 But, in the
wake of two decisions by our sister circuits, see Chicago
Tribune Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992); NLRB
v. U.S. Postal Serv., 8 F.3d 832 (D.C. Cir. 1993), the NLRB
held in MV Transportation that a less demanding “contract
coverage” standard applies to disputes over changes to terms
and conditions of employment arising during the CBA term.
2019 WL 4316958, at *1.

2
Although not relevant to this appeal, we note that other
circumstances justifying unilateral changes have been recognized. See,
e.g., REB Elecs. of S.D. Inc., 320 NLRB 80, 81–82 (1995) (recognizing
that compelling economic considerations might excuse bargaining in
limited situations).
 NLRB V. NEXSTAR BROADCASTING, INC. 11

“Contract coverage theory” is simply a method of
contract interpretation that analyzes “whether the action
taken by an employer was within the compass or scope of
contractual language granting the employer the right to act
unilaterally.” Id. at *36 (Member McFerran, concurring in
part and dissenting in part). “For example, if an agreement
contains a provision that broadly grants the employer the
right to implement new rules and policies and to revise
existing ones, the employer would not violate Section
8(a)(5) and (1)” during the term of the agreement “by
unilaterally implementing new attendance or safety rules or
by revising existing disciplinary or off-duty-access
policies.” Id. at *2 (majority opinion). By reviewing a
contract’s “compass or scope,” instead of demanding
unambiguous language of waiver, this theory favors
management’s ability to make unilateral changes. Compare
id. with Provena St. Joseph Med. Ctr., 350 NLRB at 810. As
articulated in MV Transportation, “contract coverage” is not
a theory of waiver: it is a method of interpreting CBA terms
to determine what rights a party has actually obtained under
the CBA. See MV Transp., Inc., 2019 WL 4316958, at *36;
see also Tramont Mfg., LLC v. NLRB, 890 F.3d 1114, 1118–
20 (D.C. Cir. 2018) (distinguishing “contract coverage”
interpretation from “waiver analysis”).

Nexstar’s central argument is that the NLRB’s shift away
from requiring express language of waiver in disputes
arising during a CBA’s term also should apply to a post-
expiration dispute. In essence, it seeks a theory of waiver
that does not require language in a CBA that expressly
extends management’s right to make unilateral changes
during the post-expiration period. Instead, Nexstar argues,
broad “compass or scope” language in the CBA concerning
management rights effects a waiver. The NLRB responds
that “clear and unmistakable” waiver remains the touchstone
12 NLRB V. NEXSTAR BROADCASTING, INC.

in the post-expiration period. Nexstar Broad., Inc., 2020 WL
1986474, at *3.

The NLRB’s continued insistence on express language
extending management’s right to make unilateral changes
during that period is “rational and consistent” with the
NLRA. Local Joint Exec. Bd. of Las Vegas, 515 F.3d at 945
(cleaned up). The expiration of the CBA makes all the
difference. As the Supreme Court has instructed, “ordinary
principles of contract law” govern CBA interpretation.
Tackett, 574 U.S. at 435. One familiar principle is that
“contractual obligations will cease, in the ordinary course,
upon termination of the bargaining agreement.” Litton,
501 U.S. at 207. When contractual obligations cease, the
NLRA replaces “agreed-upon terms” with “terms imposed
by law”; the statute requires the employer to preserve the
“status quo” terms and conditions of employment during
negotiations. Id. The CBA defines those terms and
conditions only to the extent that it “mark[s] the status quo
as to wages and working conditions.” Carilli, 648 F.2d at
1214. But those status quo conditions also include “regular
and long-standing” practices, “even if not required by” the
CBA. Sunoco, Inc., 349 NLRB at 244; see also Merrill &
Ring, Inc., 731 F.2d at 608.

Thus, the essential issue is whether the CBA gives the
employer the right after the expiration of the contract to
make unilateral changes to the terms or conditions of
employment. It is not enough that the employer may have
had that right during the term of the contract. The contract
is no longer in existence, and the NLRA requires the status
quo to be maintained. The question is whether the CBA
provides that the employer has a contractual right to alter the
status quo as to terms or conditions of employment that
 NLRB V. NEXSTAR BROADCASTING, INC. 13

survives the expiration of the CBA. See Litton, 501 U.S.
at 206; Katz, 369 U.S. at 746.

We assume without deciding that management had the
right to impose the unilateral changes at issue in this case
during the term of the CBA. But an employer may not
excuse itself from its obligation to maintain status quo
working conditions after the CBA’s expiration by simple
reference to the broad compass or scope of expired
contractual terms. Rather, contract rights only survive
expiration if the CBA explicitly so provides. Litton,
501 U.S. at 206.

Contrary to Nexstar’s claims, none of our sister circuits
has found a waiver of post-expiration § 8(a) bargaining
rights by employing a “contract coverage” theory relying on
a CBA’s broad compass or scope. See Wilkes-Barre Hosp.
Co. v. NLRB, 857 F.3d 364, 376 (D.C. Cir. 2017); Tramont
Mfg., LLC, 890 F.3d at 1120. The decision of the District of
Columbia Circuit in Tramont Manufacturing is instructive.
In that case, as here, the NLRB applied a “clear and
unmistakable waiver” standard to changes imposed during
post-expiration CBA negotiations. 890 F.3d at 1120. The
court found that the NLRB was “entitled” reject the contract
coverage standard in this context, and that its decision “as a
policy matter” would be “perfectly reasonable.” Id. The
court remanded to the NLRB merely because that choice
among policy alternatives required a more complete
explanation. Id.; see also Wilkes-Barre Hosp., 857 F.3d
at 377 (finding employer’s unilateral decision to stop
longevity-based pay increases after CBA expired “not
covered” by the CBA, and then applying a clear and
unmistakable waiver standard). Nexstar’s citations to cases
applying the contract coverage theory to unexpired CBAs
are unavailing. See U.S. Postal Serv., 8 F.3d at 833–35;
14 NLRB V. NEXSTAR BROADCASTING, INC.

Chicago Tribune, 974 F.2d at 933; Dep’t of the Navy v.
FLRA, 962 F.2d 48, 50–52 (D.C. Cir. 1992) (interpreting a
contract governed by the Federal Service Labor-
Management Relations Statute); Bath Marine Draftsmen’s
Ass’n v. NLRB, 475 F.3d 14, 25–26 (1st Cir. 2007). These
cases stand for nothing more than the proposition that while
a CBA remains in force, it should be interpreted like a
contract.

If a party to a CBA, either management or labor, wishes
to extend contract rights beyond the expiration of the
agreement, it may negotiate with the other side and attempt
to obtain such an express contractual provision. A familiar
example from the sports world illustrates the basic concept.
Former Major League Baseball All-Star Bobby Bonilla
retired in 2001, yet one of his former employers, the New
York Mets, must pay him approximately $1.19 million every
July 1 through 2035 as part of a deferred compensation
agreement that has become an annual date of note and
ridicule among baseball fans. See Happy Bobby Bonilla
Day! Why Mets pay him $1.19M every July 1, ESPN,
https://www.espn.com/mlb/story/_/id/27078321/happy-bob
by-bonilla-day-why-mets-pay-119m-every-july-1 (last visit
ed June 15, 2021). Now 56 years old, Bonilla is no longer
obligated (or likely welcome) to play Major League
Baseball—the terms of his employment contract ended two
decades ago. Yet because the parties expressly so agreed in
the contract, Bonilla has the right to demand continued
payment, plus interest, notwithstanding the expiration of the
term of his employment agreement.

IV

We therefore review the CBA to determine whether the
Union agreed, in clear and unmistakable language, to allow
management to make unilateral changes to terms and
 NLRB V. NEXSTAR BROADCASTING, INC. 15

conditions of employment in the post-expiration period.
Neither a “general contractual provision” nor “ambiguous
language” is sufficient. Wilkes-Barre, 857 F.3d at 378
(cleaned up). The language must be “explicit.” Litton,
501 U.S. at 207; see S. Nuclear Operating Co. v. NLRB,
524 F.3d 1350, 1357 (D.C. Cir. 2008) (reviewing for
language expressly showing a union “relinquishe[d] its right
to bargain”).

There is simply no such language in this CBA. Nexstar
relies on the contract’s “zipper clause,” which provides:

NABET-CWA recognizes the exclusive right
and responsibility of the Company to direct
the working force and to direct the operations
of the Company. The Company’s rights shall
include, but not be limited to, those necessary
to maintain order and efficiently manage the
Company, and to discharge, suspend, or
discipline Employees for just cause and to
establish working rules and to control station
operations, provided, however, that the
exercise of such rights does not violate the
terms and provisions of this Agreement.

But such “generally worded management rights clauses
. . . will not be construed as waivers of statutory bargaining
rights.” Johnson-Bateman Co., 295 NLRB 180, 184 (1989);
see also Success Vill. Apartments, 348 NLRB 579, 629
(2006), enf’d, 984 F.2d 864 (7th Cir. 1993) (holding that a
zipper clause does not survive expiration); Control Servs.,
303 NLRB 481, 483–85 (1991), enf’d, 961 F.2d 1568 (3d
Cir. 1992). Nexstar’s reliance on the work hours provision
16 NLRB V. NEXSTAR BROADCASTING, INC.

of Article 8.1, 3 the travel policy in Article 10.1, 4 and the
“complete agreement” clause of Article 26.2, 5 fares no
better. None of these provisions states that the employer’s
contractual rights extend beyond the life of the contract.

In any event, we must defer to the NLRB’s interpretation
of the CBA. See NLRB v. S. Cal. Edison Co., 646 F.2d 1352,
1366–67 (9th Cir. 1981) (suggesting the facts “support an
inference that the union waived the right to engage in
sympathy strikes” but finding that inference “insufficient . . .
to overcome the deference due the Board’s interpretation” to
the contrary). The general, and at times boilerplate,
contractual clauses cited by Nexstar provide no basis to
discard the NLRB’s sensible conclusion that the CBA did
not extend any purported right of management to make

3
“The ‘normal work week’ shall be defined as commencing at
12:00 a.m. Monday and ending at 11:59 p.m. on Sunday. All work
schedules, continuing hours of work and days off will be prepared and
posted two (2) weeks in advance of the commencement of the workweek.
The Employer will post work schedules as soon as they are known to the
Employer.”

4
“Automobile travel by Employees shall be covered by the Vehicle
Use Policy in the Company’s Employee Guidebook. It is understood
that under no circumstances shall an Employee be required to use their
car under this Article. Employees who are ticketed for a moving
violation for which they are responsible while driving on Company
business must pay the fine for such ticket, whether the moving violation
occurred while driving a company-owned vehicle or their own vehicle.”

5
“This contract and any accompanying Letters of Understanding
which have been executed by the parties with respect to items of
interpretation is the complete agreement between the parties. It cannot
be modified or terminated except in writing executed by the Parties
hereto.”
 NLRB V. NEXSTAR BROADCASTING, INC. 17

changes to the terms and conditions of employment into the
post-expiration period.

V

We address one additional matter. Nexstar argues that
the NLRB should have referred this dispute to arbitration.
Reviewing for abuse of discretion, see Servair, Inc. v. NLRB,
726 F.2d 1435, 1438–39 (9th Cir. 1984), we disagree.

Litton controls. Where, as here, “the arbitration duty is
a creature of the collective-bargaining agreement . . .
arbitrability must be determined by reference to the
agreement, rather than by compulsion of law.” Litton,
501 U.S. at 204 (cleaned up). Litton held that an
employment dispute arising after expiration of a CBA is not
arbitrable because, like other contractual terms, the
agreement in the CBA to arbitrate expires with the CBA. Id.
A dispute may be arbitrable after the CBA’s expiration when
the dispute concerns “rights which accrued or vested under
the [CBA].” Id. at 209. But that is not the case here. This
dispute is about policy changes imposed after the CBA
expired and has no bearing on any rights that vested before
expiration, such as compensation. See Nolde Bros., Inc. v.
Local No. 358, Bakery & Confectionery Workers Union,
430 U.S. 243, 255 (1977).

VI

At bottom, this is a case about whether management’s
claimed rights under a contract survive the contract’s
expiration. Ordinary contract principles teach that they do
not unless express contractual language so provides. The
NLRB’s decision not to displace those principles is
18 NLRB V. NEXSTAR BROADCASTING, INC.

consistent with the NLRA and precedent. We therefore
grant its petition for enforcement.

PETITION FOR ENFORCEMENT GRANTED.