Compania Cervecera de Puerto Rico, Inc. v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 6, 2025 Decided September 5, 2025

No. 24-1104

COMPANIA CERVECERA DE PUERTO RICO, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 24-1187

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

Giovanna P. Moreno-Lopez argued the cause for

petitioner. With her on the briefs was Maria D. Trelles-

Hernandez.

Barbara A. Sheehy, Attorney, National Labor Relations

Board, argued the cause for respondent. With her on the brief

2

were Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick,

Deputy Associate General Counsel, David Habenstreit,

Assistant General Counsel, and Usha Dheenan, Supervisory

Attorney.

Before: RAO and CHILDS, Circuit Judges, and ROGERS,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge CHILDS.

Dissenting opinion filed by Circuit Judge RAO.

CHILDS, Circuit Judge: The National Labor Relations

Board determined that Compañía Cervecera de Puerto Rico

(Cervecera or the employer) violated sections 8(a)(1), (3) and

(5) of the National Labor Relations Act (the Act) by: taking an

adverse and retaliatory employment action against the

president of the Unión Independiente de Trabajadores de

Cervecería India (the Union), changing a mandatory subject of

bargaining while negotiations for a successor collective

bargaining agreement (CBA) were ongoing, and implementing

a final offer on work schedules in the absence of a good-faith

impasse. The employer petitions for review of that decision

and the Board cross-applies for enforcement of its decision and

order. Because the Board’s determinations and findings are

supported by substantial evidence and are not otherwise

reversible error, we deny the employer’s petition for review

and grant the Board’s cross-application for enforcement of its

decision and order.1

1

Our colleague would grant the petition based on her view that the

Board’s findings are unsupported by substantial evidence and

misinterpret the CBA.

3

I.

A.

The employer is a brewing and bottling company based in

Puerto Rico. From its facility in Mayaguez, Puerto Rico, the

employer ships beer to customers on the island and elsewhere

in the United States. The employer planned to further expand

its sales outside of the island. To do so, it sought a steady

output stream that it believed could be supplied only by a

facility that ran 24 hours a day, 7 days a week.

The employer’s expansion plans, however, hit a

roadblock: its CBA with the Union. The employer has

approximately 220 employees, and around 120 of those

employees form a collective bargaining unit represented by the

Union. For over thirty years, the employer and the Union (“the

parties”) successfully negotiated CBAs. They last signed an

agreement in 2018 (the 2018 CBA). Under the terms of the

2018 CBA, bargaining-unit employees generally worked five

days, forty hours per week, and were not typically required to

work on Saturdays or Sundays. But that work schedule did not

appear to allow the employer to keep its facility running

continuously. Indeed, since 2018, the employer periodically

hired temporary staff to fill gaps in its schedule when around-

the-clock production was necessary.

The negotiations for a successor CBA offered the parties

an opportunity to bargain for a new work schedule that could

meet the employer’s expansion needs. The 2018 CBA was set

to last until September 2021, but the parties extended it to

December 2021 and then to January 2022. The parties held

their first bargaining meeting in July 2021 and later adopted

negotiation rules. Early on in their negotiations, the employer

made clear that changing the work schedule was a priority.

4

Soon after the parties began bargaining, the employer tried

to force its preferred work schedule on the Union. Instead of

negotiating a new schedule, the employer sought to compel the

bargaining unit’s employees to work six consecutive

workdays, which its human resources manager later conceded

was contrary to Article 27 of the still-active 2018 CBA. That

schedule allowed the employer to meet the operational needs

of its expansion plans. But it also deprived all Union

employees from guaranteed leave on weekends. The Union

pushed back and filed a charge with the Board, alleging that the

employer’s attempted imposition of an altered work schedule

was an unfair labor practice.

Before the Board adjudicated that charge, the parties

reached a settlement agreement in March 2022. Under that

agreement, the employer committed to compensate the

impacted employees. In return, the Union agreed to

temporarily adopt, until June 30, 2022, the same six-day work

schedule the employer had tried to impose on the employees.

About a month after entering the settlement agreement, the

employer placed the Union President, Abel Luciano, on an

unpaid leave of absence. Under Article 34 of the 2018 CBA,

the Union President—who is also a full-time employee—may

annually take up to 200 work hours of paid leave for Union

business. At the time he was placed on leave, the Union

President had taken 203 hours. Article 34 provides, in relevant

part, that “[s]hould there be a need for greater time,” the Union

President “shall request a prolonged leave without pay, no less

than six months.” J.A. 747.2 The Union President did not

indicate he needed additional leave for union matters and did

2

The 2018 CBA was written in Spanish. The Board found and the

parties now agree that “shall request a prolonged leave” is a proper

translation of the relevant provision in Spanish.

5

not request prolonged leave before the employer placed him on

unpaid leave. In a prior contract year governed by the 2018

CBA, the employer had not placed the Union President on

unpaid leave even though he exceeded 200 hours.

Even as the employer attempted to impose its preferred

work schedule on the employees and placed the Union’s

president on unpaid leave, the parties pressed on with their

negotiations. Although they had originally planned to address

each CBA article in numerical order, the Union suggested and

the employer agreed to prioritize negotiations over Article 27,

which addressed work schedules. Between November 2021

and June 2022, the parties exchanged proposals on that

provision.

By June 2022, the parties had not reached an agreement

regarding work schedules. Under the terms of the settlement

agreement, at the end of the month, the bargaining unit

employees would return to the 2018 CBA’s work schedule,

which did not allow for continuous production. On June 21,

2022, the employer submitted its “final proposal” on Article

27. J.A. 751. That offer would have required employees to

forego guaranteed weekend leave. The Union rejected the final

offer and responded with a counterproposal, which preserved

weekend leave for most employees and created a designated

shift of weekend employees.

The employer responded by informing the Union that it

believed they had reached an impasse on Article 27 and by

urging the Union to “accept the Company’s last, best[,] and

final offer.” J.A. 751; see also J.A. 502. The Union disagreed,

stressing that it had shown interest in moving the collective

bargaining forward and calling on the employer to reconsider

its declaration of impasse and resume negotiations. The

employer then implemented its final offer on Article 27. That

6

final offer allowed the company to operate its facility around

the clock.

After the employer declared an impasse on Article 27, the

parties negotiated other aspects of the CBA. On the same day

that the employer notified the Union that it would implement

its final offer on Article 27, the Union and the employer

exchanged proposals on Articles 8 and 19.

B.

The Union filed new charges against the employer with the

Board. Following a three-day hearing, at which the employer’s

human resources manager testified, an Administrative Law

Judge (ALJ) determined that the employer had engaged in three

unfair labor practices. First, by placing the Union President on

unpaid leave in retaliation for his protected union activities, the

employer violated sections 8(a)(1) and (3) of the Act. Second,

by placing the Union President on unpaid leave in the absence

of a request by him, the employer unilaterally changed the

terms for union leave—a mandatory subject of bargaining—

that it was required to preserve after the 2018 CBA expired, in

violation of sections 8(a)(1) and (5) of the Act. And third, by

implementing its final offer on work schedules without

reaching an impasse, the employer violated sections 8(a)(1)

and (5) of the Act. A three-member panel of the Board

affirmed the ALJ’s rulings, findings, and conclusions. The

employer then filed this petition for review, and the Board

cross-appealed for enforcement of its order.

II.

We have jurisdiction over the employer’s timely petition

for review of the Board’s final order and the Board’s cross-

application for enforcement. 29 U.S.C. § 160(f). “Our review

7

of the Board’s unfair labor practice decisions is tightly cabined,

and we afford the Board a high degree of deference.” Absolute

Healthcare v. NLRB, 103 F.4th 61, 67 (D.C. Cir. 2024)

(quotations and citation omitted). We uphold the Board’s

determinations “unless it relied upon findings that are not

supported by substantial evidence, failed to apply the proper

legal standard, or departed from its precedent without

providing a reasoned justification for doing so.” Inova Health

Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015) (quotations and

citations omitted). We will not disturb the Board’s findings of

fact “if supported by substantial evidence on the record

considered as a whole,” 29 U.S.C. § 160(e), and “we may not

displace the Board’s choice between two fairly conflicting

views, even though we would justifiably have made a different

choice had the matter been before us de novo.” Regal Cinemas,

Inc. v. NLRB, 317 F.3d 300, 306 (D.C. Cir. 2003) (quotations

and citation omitted). “An ALJ’s credibility findings

contribute to substantial evidence unless hopelessly incredible,

self-contradictory, or patently insupportable.” Circus Circus

Casinos, Inc. v. NLRB, 961 F.3d 469, 484 (D.C. Cir. 2020)

(quotations and citations omitted). We review the Board’s

interpretation of contracts de novo, applying “ordinary

principles of contract law” and deferring “to the Board’s fact-

finding . . . necessary to interpret the meaning of the contract.”

Pac. Mar. Ass’n v. NLRB, 967 F.3d 878, 885 (D.C. Cir. 2020)

(quotations and citations omitted).

III.

We first consider the Board’s determination that the

employer engaged in an unfair labor practice by placing the

Union President on unpaid leave in retaliation for his union-

related activities. An employer violates both sections 8(a)(3)

and (1) of the Act “by taking an adverse employment

action . . . in order to discourage union activity.” Ozburn-

8

Hessey Logistics, LLC v. NLRB, 833 F.3d 210, 217 (D.C. Cir.

2016) (quotations and citation omitted). For such a violation

to exist, the Board must make both “a predicate determination

that an employer took an adverse action” against an employee,

Bellagio, LLC v. NLRB, 854 F.3d 703, 709 (D.C. Cir. 2017),

and a subsequent determination that the adverse action was

motivated by anti-union animus, Napleton 1050, Inc. v. NLRB,

976 F.3d 30, 40 (D.C. Cir. 2020). The employer contends that

the Board erred in determining that placing the Union President

on unpaid leave was an adverse employment action and that

such an action was motivated by anti-union animus. We

disagree with the employer’s contentions.

A.

We start with the Board’s threshold determination that the

employer’s decision to place the Union President on unpaid

leave was an adverse action. “Adverse acts are those that

reduce a worker’s prospects for employment or continued

employment, or worsen some legally cognizable term or

condition of employment.” Bellagio, 854 F.3d at 709. The

employer unilaterally placed the Union President on unpaid

leave and denied him wages during that leave. This action had

“a negative impact on [Luciano’s] employment situation or job

prospects.” Id. at 710; see also Ne. Iowa Tel. Co., 346 NLRB

465, 475 (2006) (“Certain . . . employment actions are

‘adverse’ because they change the terms and conditions of

employment in an unfavorable way and . . . [a] reduction in pay

certainly constitutes a change for the worse.”).

The employer counters that it took no “action” at all, since

the Union President’s unpaid leave was automatically triggered

as soon as he exceeded the 200-hour limit. But the record

shows that placing the Union President on leave required the

employer to make an affirmative decision. In contract year

9

2020-21, after it notified the Union President that he had

exceeded the 200-hour limit and after the Union President took

additional leave hours despite that notice, the employer did not

place the Union President on unpaid leave as it sought “to keep

the good employer-employee relations at that time.” J.A. 748;

see also J.A. 199.

The employer further contends that its decision to place

the Union President on leave was not adverse because it was

authorized by the CBA and because it could have pursued a

more punitive action by terminating the Union President for

“continued . . . violations to [the employer’s] norms and

policies.” Pet’r’s Br. 39. What defines an adverse action,

however, is whether it causes a “negative impact” on an

employee’s conditions of employment. Bellagio, 854 F.3d at

710. Our dissenting colleague suggests that the employer

“acted with leniency” because it chose forced leave over

terminating the Union President. Dissent at 10. However,

disciplinary actions authorized by a CBA and actions that are

less punitive than an alternative can still be adverse if they have

a negative impact on an employee’s conditions of employment.

The employer made a decision to place the Union

President on leave. And that decision harmed the Union

President’s conditions of employment. The Board, therefore,

did not err in determining that the employer took an adverse

employment action against the Union President.

B.

We next turn to the Board’s determination that the

employer’s action was motivated by anti-union animus. To

assess an employer’s motivation for an adverse action, the

Board applies the Wright Line test. See Wright Line, 251

NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981).

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The Wright Line test proceeds in two stages: first, the General

Counsel must make a prima facie case that the adverse action

was motivated by anti-union animus; and second, the burden

shifts to the employer to show it would have taken the same

action in the absence of unlawful motive. See Tasty Baking Co.

v. NLRB, 254 F.3d 114, 125–26 (D.C. Cir. 2001). We consider

and affirm the Board’s findings at each stage of the Wright Line

test.

1.

At the first stage of the Wright Line test, the Board’s

General Counsel must demonstrate that the employee was

engaged in a protected union-related activity, that the employer

was aware of that protected activity, and that the protected

activity was a motivating factor in the employer’s decision to

take an adverse action against the employee. Inova, 795 F.3d

at 80. We afford the Board’s finding of anti-union motivation

a “very high degree of deference,” Hosp. de la Concepcion v.

NLRB, 106 F.4th 69, 76 (D.C. Cir. 2024) (quotations and

citation omitted), “because most evidence of motive is

circumstantial,” Acumen Cap. Partners v. NLRB, 122 F.4th

998, 1003 (D.C. Cir. 2024) (quotations and citation omitted).

Circumstantial evidence of improper motive may include other

anti-union actions by the employer and the timing of the

adverse action. See Novato Healthcare Ctr. v. NLRB, 916 F.3d

1095, 1101 (D.C. Cir. 2019); see also Tasty Baking, 254 F.3d

at 125–26. The Board did not err in finding that the General

Counsel satisfied the first stage of Wright Line.

The Board correctly found that the Union President was

engaged in a protected activity and that the employer was

aware of his engagement. Under Wright Line, “protected

activity” includes “activities for the purpose of collective

bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

11

The Union President engaged in protected activity when he

participated in negotiations for a successor CBA and in

negotiations over the settlement agreement addressing the

employer’s attempted schedule change. And the successor

CBA negotiation rules as well as the settlement agreement

informed the employer that the Union President represented the

Union in the relevant negotiations.

The Board’s finding that the employer’s adverse action

against the Union President was motivated by anti-union

animus is supported by substantial evidence—specifically, the

employer’s prior actions showing anti-union animus and the

temporal proximity between the settlement agreement

addressing those actions and the employer’s decision to place

the Union President on unpaid leave in the absence of a request

for additional union hours.

First, the employer’s conduct during the CBA

negotiations, including its unilateral change to the employee

schedule, evinced anti-union animus. See, e.g., Frazier Indus.

Co., Inc. v. NLRB, 213 F.3d 750, 756 (D.C. Cir. 2000)

(“[E]vidence that an employer has [committed unfair labor

practices] can support an inference of anti-union animus.”)

(citing Parsippany Hotel Mgmt. v. NLRB, 99 F.3d 413, 424

(D.C. Cir. 1996). A month into negotiations for a successor

CBA, the employer unilaterally changed the employees’ work

schedule. By the employer’s own admissions, the modified

work schedule was a material departure from the existing CBA

and the work schedule was one of the critical issues in the

parties’ negotiations. J.A. 749. The Union, led by the Union

President, pushed back by filing a charge with the Board. The

employer and the Union, represented by the Union President,

then engaged in protracted settlement negotiations.

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Second, the temporal proximity—only one month—

between the settlement agreement in March 2022 and the

employer’s decision to place the Union President on unpaid

leave in April 2022 further supports a finding that anti-union

animus motivated the employer’s adverse action. “As a general

principle, the timing of an employer’s adverse action can shed

light on its causes.” Stern Produce Co., Inc. v. NLRB, 97 F.4th

1, 14 (D.C. Cir. 2024) (citation omitted); see also Reno Hilton

Resorts v. NLRB, 196 F.3d 1275, 1283 (D.C. Cir. 1999)

(“[T]iming is a telling consideration in determining whether

employer action is motivated by anti-union animus.”). The

employer placed the Union President on unpaid leave less than

one month after the employer reached a settlement agreement

with the Union. Prior to the settlement agreement, the

employer gave the Union President no advance notice that it

would or could place him on unpaid leave without receiving a

request. The close timing between the two events supports the

Board’s finding that the employer “seized upon [an] available

opportunity . . . to retaliate against” the Union President for his

role in representing the Union’s interests during the settlement

negotiations. Stern Produce, 97 F.4th at 14 (cleaned up).

The employer responds that the Board erred by relying on

the settlement agreement as evidence of animus because, by

doing so, the Board irrationally assumed the employer was

opposed to a settlement agreement, reopened a settled unfair-

labor-practice charge, and departed from precedent barring its

consideration of settlement agreements as evidence of anti-

union animus. The employer misapprehends the focus of the

Board’s inquiry. The Board relied on admissions by the

employer’s human resources manager that the employer

changed the work schedule in July 2021 and that the parties

entered a settlement agreement to resolve the dispute that

followed that change. The Board did not examine the Union’s

settled charge against the employer, it did not make any

13

findings regarding the merits of that early charge, and it did not

evaluate the terms of the settlement agreement. Furthermore,

consistent with its precedent, the Board did not rely exclusively

on the settlement agreement to establish animus. See Sw.

Chevrolet Corp., 194 NLRB 975, 975 (1972) (“The Board has

uniformly held that settlement agreements . . . have no

probative value in establishing that violations of the Act have

occurred and may not be relied on to establish . . union

animus.”). The Board, instead, identified the employer’s

presettlement conduct as evidence of anti-union animus. See

Host Int’l Inc., 290 NLRB 442, 442 (1988) (finding an

employer’s “presettlement conduct may properly be

considered as background evidence” of animus). And that

presettlement conduct further showed that even if the employer

viewed the settlement agreement as a “positive development,”

Pet’r’s Reply Br. 15, the agreement was preceded by protracted

settlement negotiations.

Since the Board’s finding of animus relied on the human

resources manager’s testimony, the employer further objects to

the Board’s credibility determinations relating to her

testimony. The employer disagrees with the Board’s crediting

of portions of her testimony and discrediting of other portions

of her testimony. The employer argues that the manager was

subject to prolonged, hostile and confusing examination, that

the manager lacked expertise, that the manager was asked

questions for which she was unprepared, and that there were

difficulties with translation. But raising only broad

generalizations, the employer has not shown that the Board’s

credibility determinations are “hopelessly incredible, self-

contradictory, or patently insupportable” as to warrant reversal.

Hood River Distillers, Inc. v. NLRB, 130 F.4th 204, 212 (D.C.

Cir. 2025) (quotations and citation omitted).

14

The employer further contends that the Board should have

drawn an adverse inference from the General Counsel’s failure

to call the Union President to testify. Pet’r’s Br. 60-61. The

adverse inference rule “provides that when a party has relevant

evidence within his control which he fails to produce, that

failure gives rise to an inference that the evidence is

unfavorable to him.” Int’l Union (UAW) v. NLRB, 459 F.2d

1329, 1336 (D.C. Cir. 1972). The Board has adopted the

adverse inference rule, noting that “it is settled that when a

party fails to call a witness who may reasonably be assumed to

be favorably disposed to the party, an adverse inference may

be drawn regarding any factual question on which the witness

is likely to have knowledge.” Daikichi Corp., 335 NLRB 622,

622 (2001) (quotations and citations omitted). An adverse

inference is specific to a particular disputed fact and cannot be

“tantamount to a directed verdict” or resolution of the whole

dispute. Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19,

28 (D.C. Cir. 2013). The employer, by contrast, appears to

suggest that the Board should have drawn a sweeping adverse

inference relating to “all the facts alleged in the Complaints”

because “the General Counsel failed to present the [Union

president’s] testimony regarding both charges despite his

incontestable personal knowledge of all the facts.” Pet’r’s Br.

60.

Even if the employer has properly presented an objection

to the Board’s failure to draw an adverse inference, it is without

merit. The Board is not required to draw an adverse inference

from a party’s failure to call a witness where, as here, the party

has otherwise presented sufficient evidence of violations. See

Int’l Union, 459 F.2d at 1344 (“[W]here a party has good

reason to believe he will prevail without introduction of all his

evidence, it would be unreasonable to draw any inference from

a failure to produce some of it”). And we see no reason to

otherwise find that the Board abused its discretion to decline to

15

draw an adverse inference from the absence of testimony by

the Union’s president. See Overnite Transp. Co. v. NLRB, 140

F.3d 259, 266 n.1 (D.C. Cir. 1998) (“[T]he decision of whether

to draw an adverse inference has generally been held to be

within the discretion of the [Board as the] fact finder.”).

Nor is there merit to the employer’s argument that the

Board should have not only drawn an adverse inference from

the General Counsel’s failure to call the Union President but

should have also afforded the human resources manager’s

testimony “absolute credibility” on account of that adverse

inference. Pet’r’s Br. 60–61. The employer’s argument

contradicts its own contention that the Board should have

found that parts of the human resources manager’s testimony

were not credible. Pet’r’s Br. 53–56. The employer does not,

and could not, offer any support for the sweeping proposition

that the Board would have been required to find testimony by

one party’s witness absolutely credible if it had drawn an

adverse inference based on another party’s failure to offer

testimony by another witness.

Because the employer’s other anti-union actions and

temporal proximity to the settlement agreement provide

substantial evidence that placing the Union President on leave

was animated by animus, we do not consider whether other

evidence in the record could support a finding of retaliatory

motive. In finding animus, the Board also considered whether

the decision to place the Union President on leave was a

departure from its practice in the preceding contract year. The

employer objects to the Board’s reliance on a single year—out

of a bargaining relationship of over thirty years—to identify a

break with past practice showing animus. We need not and do

not address the merits of this objection. “The record as a

whole” provides substantial evidence for the Board’s finding

16

of animus. Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348

(D.C. Cir. 2011).

2.

At the second stage of the Wright Line test, “the burden

shifts to the [employer] to show that it would have taken the

same action in the absence of the unlawful motive.” Tasty

Baking, 254 F.3d at 126. The Board’s finding that the

employer did not meet its burden is supported by substantial

evidence and is not reversible error.

The employer argues that in placing the Union President

on unpaid leave it merely enforced the terms of Article 34 of

the 2018 CBA.3 That provision, however, did not require or

authorize the employer’s action. In relevant part, Article 34

provides: “Should there be a need for greater time, the

employee shall request a prolonged leave without pay.” J.A.

747. Article 34’s plain language does not provide the employer

with clear authority to unilaterally impose unpaid prolonged

leave. Instead, the conditional clause—should there be a need

for greater time—combined with the subsequent clause—that

an employee “shall request” prolonged leave if there were such

a need—indicates that the Union President must first assess

whether additional time is necessary and then file a request.

The Union President could decide that greater time is not

necessary, could postpone further union activity until the next

contract year, or could elect to use alternative forms of leave

like vacation time. Without receiving an explicit request, the

employer cannot force the Union President to go on unpaid

3

The employer justifies its decision to place the Union President on

leave only on Article 34. The employer does not claim that it placed

the Union President on leave as a disciplinary action authorized by

any other provision of the CBA.

17

leave once the 200 hours are exhausted. Nor does Article 34

require that, under any circumstances, the employer place the

Union President on leave as soon as he exceeded 200 hours.

The employer’s implementation of Article 34 during contract

year 2020-21, urging the Union President to request extended

leave, did not automatically extend the Union leave period, and

its subsequent approval of such leave requests in excess of 200

hours undermines the employer’s contention that the CBA

“mandated” the Union president’s leave. Pet’r’s Br. 26.

Even if the 2018 CBA did authorize the employer’s

actions, it is the employer’s burden to show not that it could

have taken the same action pursuant to a CBA, but that “it

would have taken the same action in the absence of the

unlawful motive.” RAV Truck & Trailer Repairs, Inc. v. NLRB,

997 F.3d 314, 325 (D.C. Cir. 2021) (emphasis added)

(quotations and citation omitted). Aside from arguing that

Article 34 authorizes its action, the employer offers no

evidence that it would have placed the Union President on

leave if not for animus. The employer, thus, did not meet its

burden.

***

Accordingly, the Board did not err in determining that the

employer’s decision to place the Union President on unpaid

leave was an adverse action motivated by anti-union animus.

IV.

Next, we consider the Board’s determination that the

employer engaged in an unfair labor practice when it placed the

Union President on leave because, in so doing, the employer

changed a mandatory subject of bargaining. “An employer

violates [s]ection[s] 8(a)(5) and (1) if it makes a material,

18

substantial, and significant change regarding a mandatory

subject of bargaining without first providing the union notice

and a meaningful opportunity to bargain about the change to

agreement or impasse, absent a valid defense.” Hosp. de la

Concepcion, 106 F.4th at 76 (quotations and citation omitted).

Mandatory subjects of bargaining include “wages, hours, and

other terms and conditions of employment,” and may include

the number of hours of leave an employee may take for union-

related activities as well as the terms and conditions under

which an employee may request such leave. See 29 U.S.C.

§ 158(d).

Although the employer placed the Union President on

leave about three months after the 2018 CBA had expired,

“[u]pon the expiration of a [CBA], the parties to that agreement

have an ongoing obligation to maintain the status quo as to all

mandatory subjects of bargaining until they reach a new

agreement or an impasse.” Oak Harbor Freight Lines, Inc. v.

NLRB, 855 F.3d 436, 438 (D.C. Cir. 2017) (quotations and

citations omitted); see also NLRB v. Katz, 369 U.S. 736, 743

(1962). To discern the post-expiration status quo, “we look to

the substantive terms of the [expired] CBA.” Wilkes-Barre

Hosp. Co. v. NLRB, 857 F.3d 364, 374 (D.C. Cir. 2017). As

“the Board has the primary responsibility of marking out the

scope of the statutory duty to bargain,” we afford “great

deference” to the Board’s determination that “a party has

violated this statutory duty.” Pac. Mar. Ass’n, 967 F.3d at 884

(cleaned up). The Board correctly found that the employer

changed a mandatory subject of bargaining by unilaterally

placing the Union President on leave and thereby departing

from the terms for union leave set out by Article 34.

Whether the employer modified a mandatory subject of

bargaining turns on the terms of the expired 2018 CBA. Article

34 of the 2018 CBA provided the Union President with the

19

option to “request” prolonged leave, “[s]hould there be a need”

for the Union President to use additional work hours for union

matters. J.A. 747. The employer argues that pursuant to

Article 34 it was required or at least authorized to place the

Union President on leave as soon as he had exceeded the 200-

hour limit. Article 34’s plain language, however, does not

support the employer’s position. By interpreting Article 34 to

allow for the imposition of unpaid leave without receiving a

request from the Union President—an interpretation barred by

the express terms of the provision—and by then unilaterally

placing the Union President on unpaid leave, the employer

impermissibly modified the agreed-upon terms and conditions

for union leave.

The employer’s implementation of Article 34 in contract

year 2020–21 indicates that it had not previously claimed the

authority it now asserts to place the Union President on leave,

in the absence of his request, as soon as he exceeded the 200-

hour limit. By word and action, the employer showed that it

understood the negotiated contract term required the Union

President first submit a request. In contract year 2020-21, the

employer alerted the Union President that he had used more

than 200 hours and stated: “We urge you once again to request

the extended union leave provided by the agreement for these

purposes.” J.A. 433. But the employer did not then suggest

that under Article 34 it would or could impose unpaid leave if

the Union President exceeded the 200-hour limit, instead

urging the Union President to request further leave hours. And

in that contract year, the employer did not ultimately place the

Union President on unpaid leave even after he took twenty-

eight hours beyond the 200-hour limit. By placing the Union

President on leave in 2022 without receiving a request for

unpaid leave, the employer not only departed from the Article

34’s plain text but also from its own prior implementation of

that provision.

20

Relying on Sasol North America, Inc. v. NLRB, 275 F.3d

1106 (D.C. Cir. 2002), the employer maintains that the Board

erred in finding that it modified a mandatory subject of

bargaining when it placed the Union President on leave and

claimed to thereby enforce Article 34. In Sasol, we concluded

that the Board erred in finding that the employer changed an

unwritten leave policy, because the employer was merely

enforcing an existing written policy. Id. at 1110–11. Under

the relevant CBA, union officers could take “reasonable time”

for union-related matters “on [the employer’s] property.” Id.

at 1108. The CBA included “no provision . . . relating to

unpaid leave for union activities.” Id. Following an internal

investigation that revealed that a union officer had taken 36%

of scheduled work hours for off-property union matters, the

employer in Sasol informed the union that it would enforce its

written policy limiting union leave to “reasonable time” on the

employer’s property. Id. at 1108–09. The employer here

contends that, like the employer in Sasol, it cannot be faulted

for enforcing the CBA’s union leave policy, even if it lapsed in

its enforcement of the relevant provision during a single prior

year.

Sasol does not support the employer’s objection. Unlike

the employer in Sasol, this employer did not seek to enforce a

CBA provision that it had previously and unknowingly allowed

employees to ignore without sanction. In contract year 2020-

21, the employer was aware that the Union President had used

more than 200 hours but did not seek to place him on leave by

invoking Article 34. Nor did the employer then indicate that,

pursuant to Article 34, it would or could place the Union

President on leave after exceeding the 200 hours. Again,

Article 34 explicitly specifies that the Union’s president shall

request unpaid leave if necessary. In Sasol, the employer

sought to enforce the terms of the CBA after unknowingly

acquiescing to a practice that was not contemplated by the

21

CBA. In explaining the holding in Sasol, our dissenting

colleague observes that “the objective, written terms of [the]

contract define the status quo.” Dissent at 9 (citing 275 F.3d at

1111). Here, by contrast, the employer undertook an action

that ran contrary to the relevant CBA provision and its prior

implementation of that provision. In doing so, the employer

changed the expired CBA’s terms and conditions for union

leave.

The Board’s determination that the employer changed a

mandatory subject of bargaining it was required to maintain

after the 2018 CBA expired when it placed the Union President

on unpaid leave and thereby departed from Article 34, thus, is

supported by substantial evidence and is not reversible error.

V.

Lastly, we consider the Board’s determination that the

employer engaged in an unfair labor practice when it

implemented its final offer on Article 27, because the parties

had not yet reached an impasse. Section 8(a)(5) prohibits an

employer from “refus[ing] to bargain collectively with the

representatives of [its] employees.” 29 U.S.C. § 158(a)(5).

That bargaining obligation is suspended, however, when the

parties reach a lawful impasse. Serramonte Oldsmobile, Inc. v.

NLRB, 86 F.3d 227, 232 (D.C. Cir. 1996). “The party asserting

impasse bears the burden” to show that an impasse existed.

Wayneview Care Ctr., 664 F.3d at 350. We “defer[] to the

Board’s fact-finding as to the existence of a bargaining

impasse, . . . unless the finding is irrational or unsupported by

substantial evidence.” Id. at 348 (quotations and citations

omitted).

Impasse on a single critical issue can excuse a party’s

bargaining obligation. To assess whether there is a single-issue

22

impasse, the Board applies the three-part CalMat framework.

See CalMat Co., 331 NLRB 1084, 1097 (2000). A party

claiming a single-issue impasse must show that (1) the single

issue involved was critical, (2) a good-faith bargaining impasse

actually existed, and (3) the impasse over the single issue led

to a breakdown in the overall negotiations. See Erie Brush &

Mfg. Corp. v. NLRB, 700 F.3d 17, 21 (D.C. Cir. 2012). The

parties agree that Article 27’s work schedule provision was

critical to the negotiations. But the employer disputes the

Board’s findings that the parties had not reached a good-faith

impasse over Article 27 and that there was no overall

breakdown in negotiations. Both findings are sound.

A.

Whether the parties have reached a good-faith impasse is

a “case-specific inquiry; there is no fixed definition of an

impasse or deadlock which can be applied mechanically to all

factual situations.” TruServ Corp. v. NLRB, 254 F.3d 1105,

1114 (D.C. Cir. 2001) (quotations and citation omitted).

Relevant factors that the Board may consider include “the

bargaining history, the good faith of the parties in

negotiations, . . . and the contemporaneous understanding of

the parties as to the state of negotiations.” Id. (quoting Taft

Broad. Co., 163 NLRB 475, 478 (1967)). The Board properly

considered the parties’ bargaining conduct and

contemporaneous understanding to find that they did not reach

a good-faith impasse.4

4

The Board also considered the parties’ bargaining history, including

“the parties’ many years of negotiating agreements together,” “the

overall length of negotiations[,] and its preparation of over 10

proposals on Article 27,” finding that a productive bargaining history

was unable to “counter-balance . . . [the employer’s] bad-faith

conduct and the fact that the parties did not clearly believe there was

an impasse.” J.A. 759 (internal quotations omitted).

23

A good-faith impasse can “occur[] when ‘good faith

negotiations have exhausted the prospects of concluding an

agreement.’” Id. (emphasis added). “Good faith bargaining

simply means a desire to reach an agreement,” and an employer

is “entitled to insist on certain terms.” Mike-Sell’s Potato Chip

Co. v. NLRB, 807 F.3d 318, 324 (D.C. Cir. 2015). Still, the

“parties must enter into discussions with an open mind and a

sincere intention to reach an agreement.” United Steelworkers

of Am. v. NLRB, 983 F.2d 240, 245 (D.C. Cir. 1993) (quotations

and citation omitted).

The record supports the Board’s finding that the employer

failed to engage in good-faith negotiations over Article 27 and

did not therefore reach a good-faith impasse over that

provision. From the onset of the negotiations, the parties

recognized that Article 27 was going to be a critical issue. The

Union was aware that the employer needed to change the work

schedule to accomplish its expansion plans. Rather than

negotiate in good faith, the employer “undermined the Union’s

bargaining position” over the work schedule. J.A. 759. Within

weeks of starting negotiations, according to testimony by its

human resources manager, the employer unilaterally changed

the employee work schedule. The employer further disrupted

the CBA negotiations by later placing the Union’s president on

unpaid leave. As the settlement agreement’s June 30 deadline

approached, after which the 2018 CBA’s unfavorable work

schedule would go back into effect, the employer declared an

impasse. The employer did so despite the Union’s requests to

keep negotiating.

The contemporaneous understanding of both parties

further supports the Board’s finding that they did not reach a

good-faith impasse. “An impasse occurs only when both sides

have exhausted the prospects of reaching a deal . . . and neither

side is open to compromise, leaving no realistic prospect that

24

further discussions will be fruitful.” Hood River Distillers, 130

F.4th at 212 (cleaned up). The parties continued to exchange

counterproposals on Article 27 up to the employer’s impasse

declaration. The Union’s last response to the employer’s final

offer revisited a “previously abandoned” proposal that would

have allowed the employer to fill its weekend needs by

“hir[ing] new shifts of employees to work exclusively on

Saturdays and Sundays.” J.A. 751. The employer faults the

Union for submitting a previously-rejected proposal, but does

not contend or show that this counterproposal was offered in

bad faith or was regressive. Cf. Hood River Distillers, 130

F.4th at 213 n.3, 214 (finding that the record did not show a

union’s last counterproposal was a regressive bargaining

position as would support a good-faith impasse). Instead of

reconsidering this prior proposal in light of later progress on

other provisions, the employer rejected the Union’s final

counterproposal and implemented its final offer. After the

employer notified the Union that it believed they had reached

an impasse, the Union disagreed and asked that the employer

resume bargaining. When the employer declared an impasse,

therefore, the parties did not both believe they were at “the end

of their rope.” Id. at 212 (quotations and citation omitted).

The employer responds that the Board erred in weighing

the Union’s statements that the parties had not reached an

impasse. According to the employer, we have previously held

that the Board should avoid relying on a union’s “twelfth-hour

protestations and posturing” and “self-serving statement[s]” to

negate “months[ of] fruitless bargaining” culminating in an

impasse, Laurel Bay Health & Rehab. Ctr. v. NLRB, 666 F.3d

1365, 1375, 1376 (D.C. Cir. 2012) (cleaned up). The employer

also contends that the Board cannot find that the parties are “at

an impasse because they were at an impasse about whether they

were at an impasse,” Grove v. NLRB, 140 F.4th 506, 513 (D.C.

Cir. 2025). But unlike Laurel Bay, the Board here did not

25

“ignore[] the parties’ bargaining history” by “focus[ing]

instead on their post-impasse conduct.” Laurel Bay, 666 F.3d

at 1375. And unlike Grove, the Board did not here rely solely

on its finding that “[a]t no time . . . did both parties understand

themselves to be at an impasse.” Grove, 140 F.4th at 513

(quotations and citations omitted). The Board did consider

other factors, particularly the parties’ pre-impasse bargaining

conduct. To the employer’s detriment, however, that

bargaining conduct evinced the employer’s bad-faith approach

to negotiations over Article 27.

B.

Even if there had been a good-faith impasse over Article

27, it would have excused the employer from its duty to bargain

only if such an impasse brought the negotiations to an overall

standstill. There is a distinction “between an impasse on a

single issue that would not ordinarily suspend the duty to

bargain on other issues and the situation in which impasse on a

single or critical issue creates a complete breakdown in the

entire negotiations.” Wayneview Care Ctr., 664 F.3d at 349–

50 (emphasis added) (quotations and citation omitted). As the

Board correctly found, the employer’s declaration of impasse

over Article 27 did not excuse its bargaining duty because it

did not completely breakdown the parties’ negotiations.

The record supports the Board’s finding that there was no

overall breakdown in negotiations for a successor CBA. On

the very morning that the employer implemented its final offer

on Article 27, the parties exchanged counterproposals on

Articles 8 and 19, and the parties subsequently reached an

agreement resolving provisions other than Article 27. While

our dissenting colleague suggests that Erie Brush precipitates

a finding that the Article 27 deadlock caused an impasse even

if the parties continued to “negotiate ancillary issues,” Dissent

26

at 16, there is an obvious distinction between the matters. In

Erie Brush, the union’s chief negotiator testified that he and the

negotiator for the employer agreed they were at an impasse.

700 F.3d at 19. Here, the employer’s human resources

manager testified that, when it declared an impasse over Article

27, the employer believed there was no impasse over any other

provision in the CBA and that additional negotiations over

other provisions were still “possibl[e].” J.A. 760; see also J.A.

163. Indeed, in the negotiation rules they adopted before

bargaining began, the parties agreed to “first sign all the articles

on which there [w]as no difference and then go on to negotiate

those on which there [wa]s a difference.” J.A. 750. Pursuant

to those rules, the parties could have continued negotiating

other CBA provisions and then returned to any provisions—

like Article 27—over which a disagreement remained. The

employer did not meet its burden to show that “the asserted

deadlock over [Article 27] inhibited progress on any other

aspect of the negotiations.” Wayneview Care Ctr., 664 F.3d at

350; see also Atl. Queens Bus Corp., 362 NLRB No. 65, slip

op. at 1 (2015) (finding a single-issue impasse can lead to an

overall breakdown if “there can be no progress on any aspect

of the negotiations” (emphasis in original) (quotations and

citation omitted)).5

5

The Board has repeatedly interpreted the third CalMat factor to

require an overall breakdown in negotiations. See, e.g., Stephens

Media Grp.-Watertown, LLC, 371 NLRB No. 11, slip op. 8 n.51

(2021) (finding no overall breakdown in negotiations because “[t]he

parties also made progress on other bargaining subjects”); Stein

Indus. Inc., 365 NLRB 227, 230 n.10 (2017) (“[T]he parties’

differences on wages did not lead to a complete breakdown in the

overall negotiations that would have prevented them from reaching

agreement on any number of issues.”); Castle Hill Health Care Ctr.,

355 NLRB 1156, 1188 (2010) (finding no overall breakdown in

negotiations because the employer failed “to show that the parties

had reached the sort of stalemate resulting in intractable positions on

27

Citing CalMat, the employer contends that the Board erred

in considering the parties’ post-impasse exchange of

counterproposals to find there was no overall breakdown in

negotiations. The employer’s reliance on CalMat is misplaced.

In CalMat, the Board determined that the parties attempt at

post-impasse negotiations did not rebut a finding of an impasse,

because the negotiations were “unproductive,” “concluded on

a harsh note,” and involved parties that were “skeptical as to

whether anything could be achieved” in the post-impasse

negotiations. CalMat, 331 NLRB at 1099–1100. But here, the

parties’ post-impasse engagements led to agreements over

other provisions of the CBA. And, in any event, the Board

found that there was no overall breakdown in negotiations by

relying principally on the parties’ exchange of proposals

contemporaneous to the declaration of impasse.

***

Accordingly, substantial evidence supports the Board’s

determination that the parties had neither reached a good-faith

impasse over Article 27 nor encountered an overall breakdown

in negotiations.

VI.

For the foregoing reasons, we deny the petition for review

and grant the Board’s cross-appeal for enforcement of its

decision and order.

So ordered.

any issue or group of issues which would render further bargaining

futile”).

RAO, Circuit Judge, dissenting: To find that Compañía

Cervecera de Puerto Rico committed unfair labor practices, the

National Labor Relations Board ignored the plain text of the

collective bargaining agreement, penalized Cervecera’s

reasonable exercise of contractual rights, and misapplied the

standard for finding a bargaining impasse. Because the Board’s

decision ignores basic principles of contract interpretation and

is not supported by substantial evidence, I respectfully dissent.

I.

The majority opinion sets forth the factual background of

this dispute in detail, so I highlight only some key facts. This

case arises from a series of disputes between Compañía

Cervecera de Puerto Rico (Cervecera), a brewing and bottling

company based in Puerto Rico, and the Unión Independiente

de Trabajadores de Cervecería India (the Union), which

represents around 120 of Cervecera’s employees. Cervecera

and the Union began bargaining over a successor collective

bargaining agreement in June 2021, just a few months before

the 2018 collective bargaining agreement (the CBA) expired.

The CBA contained two provisions central to this case. Article

34 granted the Union President up to 200 hours of unpaid

sporadic leave per contract year for union business. It also

granted the Union President the ability to exceed the 200-hour

leave limit by “request[ing] a prolonged leave without pay” of

“no less than six months.” Article 27 governed employee work

schedules.

By June 2021, the month negotiations began, Union

President Abel Luciano had exceeded his 200-hour leave

allowance under Article 34 for the 2020–21 contract year.

Cervecera formally warned him in a May 2021 letter that he

had reached his limit for the contract year and was required to

“request a prolonged leave without pay of not less than six (6)

months” if he needed more union time. Despite this warning,

Luciano took leave in June, July, and August without

2

requesting the mandated extended leave. Cervecera chose not

to enforce the prolonged leave requirement, explaining that

negotiations had just begun and it desired “to keep … good

employer-employee relations at that time.”

As negotiations progressed, a separate disciplinary issue

arose. In August 2021, Luciano violated company policy by

standing at his workstation outside of his scheduled shift in

protest of work schedule changes and refusing to leave when

asked by a manager. For this violation, Cervecera suspended

Luciano without pay for one month and issued him a written

warning advising that any further violation of company rules

could result in his dismissal.

The leave issue arose again during the 2021–22 contract

year. On December 1, 2021, Cervecera warned Luciano that his

“union leave [was] exhausted,” that his absences could not “be

adjudicated to it,” and that he needed “to request the extended

union leave provided by the agreement … so that [his]

disciplinary file related to these unjustified absences” would

not affect him. On April 27, 2022, Luciano exceeded the 200-

hour limit without requesting prolonged leave, in violation of

Article 34. Despite its previous warning that future violations

of company rules could result in termination, Cervecera did not

terminate Luciano but instead placed him on the six-month

leave without pay contemplated by Article 34.

Meanwhile, bargaining over employee work schedules in

Article 27 of the new collective bargaining agreement had

stalled. Due to significant business expansion since the

negotiation of the prior CBA, Cervecera needed to implement

a 24/7 production schedule to meet increased market demand.

Cervecera proposed various employee work schedules that it

believed would meet its operational demands, but none of those

proposals satisfied the Union’s desire for consistency in days

3

off. In June 2022, Cervecera submitted its “final offer” on work

schedules, which the Union rejected a month later. A few days

after that, the Union submitted a counterproposal that was

substantively identical to the one they submitted at the start of

negotiations and that Cervecera had already rejected. Believing

further talks were futile and desiring resolution of this

important issue, Cervecera declared an impasse on Article 27

and implemented its final employee schedule offer on August

15, 2022. Negotiations on other articles continued.

The Union filed charges with the Board, which found that

Cervecera had committed three unfair labor practices. The

Board concluded Cervecera had: (1) unilaterally changed the

terms of union leave, in violation of sections 8(a)(5) and (1) of

the National Labor Relations Act (the Act); (2) placed Luciano

on prolonged leave in retaliation for his union activities, in

violation of sections 8(a)(3) and (1); and (3) implemented its

final offer on work schedules in the absence of an impasse, also

in violation of sections 8(a)(5) and (1). Cervecera petitioned for

review, and the Board cross-petitioned for enforcement.

II.

On a petition for review, we “must evaluate both the

Board’s statements of law and application of law to the facts.”

Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 475 (D.C.

Cir. 2020). “We owe no special deference to the Board’s

interpretation of contract language, but review it de novo,

applying ordinary principles of contract law.” Hosp. de la

Concepcion v. NLRB, 106 F.4th 69, 76 (D.C. Cir. 2024)

(cleaned up); see also Am. Med. Response of Conn., Inc. v.

NLRB, 93 F.4th 491, 496 (D.C. Cir. 2024) (“Courts and the

Board are bound to enforce lawful labor agreements as

written.”) (cleaned up).

4

The Board’s factual findings will be upheld if they are

supported by substantial evidence, which is “such evidence that

a reasonable mind might accept as adequate to support a

conclusion.” NCRNC, LLC v. NLRB, 94 F.4th 67, 72 (D.C. Cir.

2024) (cleaned up). Although our review is deferential, we are

not a mere “rubber stamp.” Circus Circus, 961 F.3d at 484. Our

duty is to ensure the Board’s decisions are “reasonable and

reasonably explained.” Id. at 475 (cleaned up). We will vacate

the Board’s decision if “the Board acted arbitrarily or otherwise

erred in applying established law to the facts of the case.”

NCRNC, 94 F.4th at 72 (cleaned up).

III.

The Board’s first two unfair labor practice findings stem

from a single event: Cervecera’s decision to place Luciano on

prolonged leave after he exceeded the 200-hour limit in Article

34. The Board concluded this action was a unilateral change to

a mandatory subject of bargaining and also anti-union

retaliation. Because Cervecera’s action followed from a

straightforward application of the CBA and company policy,

the Board erred as a matter of law.

A.

Cervecera did not unilaterally change a policy; it gave

Luciano the benefit of the prolonged leave established in

Article 34. An employer does not alter terms and conditions of

employment when it does nothing more than apply a contract’s

bargained-for procedure. The Board’s conclusion that

Cervecera violated section 8(a)(5) by unilaterally changing its

union leave policy rests on two errors. First, the Board

misinterpreted Article 34 of the CBA to prevent Cervecera

from enforcing the 200-hour limit on union leave. Second, the

Board incorrectly found that a single instance of waiving the

5

limit created a binding past practice that overrode the clear

terms of the CBA.

Under section 8(a)(5) of the Act, it is an unfair labor

practice for an employer “to refuse to bargain collectively with

the representatives of his employees.” 29 U.S.C. § 158(a)(5).

In a situation like this one, where a prior collective bargaining

agreement expires while negotiations of a successor agreement

are ongoing, this duty requires an employer to maintain the

status quo by adhering to the terms of the expired agreement

until the parties reach either a final agreement or a good-faith

impasse. Wilkes-Barre Hosp. Co., LLC v. NLRB, 857 F.3d 364,

373–74 (D.C. Cir. 2017). The primary source for defining the

status quo is the text of the expired CBA. See id. at 374 (“In

defining the post-expiration status quo in this case … we look

to the substantive terms of the [expired] CBA.”).

Luciano’s ability to take leave was governed by Article 34

of the CBA and Cervecera’s separate Attendance Policy, which

has been in place since 2010. Article 34 of the CBA granted

the Union President up to 200 hours of unpaid sporadic leave

per year for union business, after which the CBA established a

mandatory procedure for additional time: “the employee shall

request a prolonged leave without pay, no less than six

months.” This special leave program for the Union President

operated alongside the company’s Attendance Policy, which

prohibited absences except for certain justified reasons and

required employees to submit an “Absence Report” before

taking any leave. The Attendance Policy included “Union

leave” as a justified absence but explicitly noted that leave

“cannot exceed the maximum number of hours allowed by the

corresponding collective bargaining agreement” and “must

comply with the conditions settled in the corresponding

collective bargaining agreement.” The Policy defined

6

unexcused absences as cause for discipline up to and including

job dismissal.

Luciano had a documented pattern of violating the

Attendance Policy as well as other company policies. He

routinely took sporadic leave without filing the appropriate

absence forms, and he exceeded his 200-hour leave limit during

the 2020–21 contract year without requesting prolonged leave,

despite repeated warnings from management. His

insubordination arguably peaked in August 2021, when he

showed up to work outside of his shift in protest of a work

schedule change and refused to leave. Cervecera sent Luciano

a letter explaining his “action constitute[d] an act of

insubordination, refusal to follow reasonable work-related

orders, a violation of established work rules, disorderly

conduct, and being unrespectful to management.” Following

the disciplinary policy in the CBA, the company suspended

Luciano without pay for a month and warned that any “relapse

into another discipline related violation” would result in him

being “submitted to what was established in the current

Collective Bargaining Agreement … job dismissal.” Despite

that clear warning, in April 2022, Luciano took additional

union leave that pushed him over the 200-hour limit for the

2021–22 contract year without requesting the prolonged leave

Article 34 required. This violation of the Attendance Policy, as

governed by Article 34, was a dismissible offense when

considered with his previous violations of the Attendance

Policy.

Faced with Luciano’s numerous violations, Cervecera had

several options consistent with the CBA. It could (1) enforce

its warning letter and dismiss Luciano for violating the

Attendance Policy; (2) take Luciano’s absences as a

constructive request for the six-month prolonged leave

contemplated by the CBA; or (3) excuse the violations and

7

waive its right to enforce the contract. Cervecera chose the

middle path. Instead of dismissing Luciano, it gave him the

benefit of a prolonged leave. This action was not a change to

Article 34 but a straightforward application of its terms that

allowed Luciano to avoid being found in violation of the

Attendance Policy and losing his job.

The Board’s conclusion to the contrary, which the majority

affirms, rests on two errors. First, the Board adopted the view

that because Article 34 states the employee “shall request” the

prolonged leave, the employer is powerless to impose it if the

employee fails to make a proper request. See Majority Op. at

16–17. This interpretation, which focuses on the employee’s

duty to request leave, reads the provision in a vacuum and

ignores the employer’s contractual rights to enforce its

bargained-for terms. Article 34 dictates the employee’s

responsibilities and duties. Luciano violated the contract when

he took more than 200 hours of union leave without requesting

prolonged leave. Because of the violation, Cervecera was

entitled to dismiss Luciano or to discipline him in some other

way. In an act of leniency, Cervecera treated the unapproved

absence as a request to use his prolonged leave benefit.

Nothing in the CBA suggests that Cervecera had an all-or-

nothing choice under Article 34 to either fire the Union

President in the middle of negotiations or to ignore his absences

completely. See Circus Circus, 961 F.3d at 480 (“The [NLRA]

does not interfere with the normal exercise of the right of the

employer to select its employees or to discharge them.”)

(cleaned up). Cervecera could have chosen discipline when

faced with Luciano’s disregard of the 200-hour limit. Instead,

it chose to construe Luciano’s absence as a request for an

option already set forth in the CBA, namely an extended period

of unpaid leave for union work.

8

Second, the Board erred by finding that a single, previous

act of leniency created a binding “past practice” of unlimited

leave that amended the CBA’s terms. At the start of

negotiations in 2021, Cervecera allowed Luciano to exceed his

leave allotment for the stated purpose of keeping “good

employer-employee relations.” The Board treats Cervecera’s

decision to refrain from disciplining Luciano in that year as

establishing a binding new policy of unlimited leave.

This conclusion is foreclosed by our precedent. In Sasol

North America Inc. v. NLRB, we squarely rejected the idea that

an employer’s failure to enforce a written leave rule creates a

new contractual right for employees. 275 F.3d 1106, 1111

(D.C. Cir. 2002). In that case, the written rule limited union

leave to a “reasonable time.” Id. at 1108–09. An employee was

permitted to take extensive union leave over the course of a

year and then claimed a change of company policy when the

employer said it expected to approve less leave in the future.

See id. We held that an employer does not “change” its policy

when it is “merely enforcing a pre-existing” written rule, and

we emphasized that allowing an employee to get away with

“lavish leave for a year or so does not establish that there was

ever a general policy of unlimited leave.” Id. at 1110–11. Here

Cervecera excused Luciano’s violation of Article 34 on a single

occasion, which cannot establish a past practice that rewrites

contractual terms. See Wendt Corp. v. NLRB, 26 F.4th 1002,

1014 (D.C. Cir. 2022) (explaining that to establish a past

practice an event must “occur[] with such regularity and

frequency that employees could reasonably expect the practice

to reoccur on a consistent basis”) (cleaned up). Our precedents

repeatedly reaffirm that a one-time exception does not

effectively amend a collective bargaining agreement.

The majority’s attempt to distinguish Sasol is

unpersuasive. It argues that, unlike the employer in Sasol,

9

Cervecera was “aware” it was not enforcing the rule during the

2020–21 contract year. See Majority Op. 20–21. That is a

distinction without a difference. The core holding of Sasol is

that the objective, written terms of a contract define the status

quo, not the employer’s state of mind during a period of non-

enforcement. 275 F.3d at 1111. A one-time, discretionary act

of grace, extended for a specific, articulated business reason,

does not change the terms of a contract.1

Cervercera merely exercised its contractual rights by

responding to Luciano’s violation of Article 34. In concluding

that Cervecera’s actions constituted an unfair labor practice,

the Board erred as a matter of law.

B.

The Board’s conclusion that Cervecera violated section

8(a)(3) of the Act rests on a similar misinterpretation of the

CBA and is unsupported by substantial evidence. Section

8(a)(3) of the Act makes it an unfair labor practice for an

employer to “discriminat[e] in regard to hire or tenure of

employment or any term or condition of employment to

encourage or discourage membership in any labor

organization.” 29 U.S.C. § 158(a)(3). An employer violates

this section when it “terminate[s] or otherwise discipline[s] an

employee because of conduct protected by the Act.” Circus

Circus, 961 F.3d at 480. The Board’s holding here fails for two

independent reasons. First, placing Luciano on prolonged leave

was not an “adverse employment action” under these

1

Reinforcing this conclusion, the record shows that even as they

negotiated a successor agreement, both Cervecera and the Union

agreed to leave the language of Article 34 unaltered. This mutual

agreement demonstrates a shared understanding that the text of

Article 34, and not the prior year’s discretionary leniency, governed

the terms of union leave.

10

circumstances. Second, even if the action was adverse, the

Board failed to properly apply the Wright Line framework.

1.

A finding of unlawful retaliation under section 8(a)(3) of

the Act “requires a predicate determination that an employer

took an adverse action.” Bellagio, LLC v. NLRB, 854 F.3d 703,

709 (D.C. Cir. 2017). “Adverse acts are those that reduce a

worker’s prospects for employment or continued employment,

or worsen some legally cognizable term or condition of

employment.” Id. The inquiry demands a contextual

assessment of the employer’s action, considering the terms of

the CBA and the employee’s conduct.

Cervecera’s action was not an “adverse employment

action.” As explained above, Luciano violated the union leave

limits in Article 34, and he was warned that further violations

could result in dismissal. Cervecera chose not to dismiss

Luciano, but instead to take his action as a constructive request

for the prolonged leave permitted by Article 34. Judged against

the contractual baseline of termination, Cervecera acted with

leniency, which by definition is not an adverse action.

Today’s decision nominally supports the rights of

employees. But by treating an act of leniency as a contractual

violation, the majority may create a perverse incentive for

employers to exercise their contractual rights in full. That is, if

exercising leniency might result in liability for an unfair labor

practice, an employer may instead choose to impose a harsher

contractual sanction.2

2

The majority upholds the Board’s flawed conclusion by focusing

on the fact that Luciano’s leave was unpaid. See Majority Op. 8–9.

11

2.

Even if placing Luciano on leave could be considered an

adverse action, the Board’s finding that it was motivated by

anti-union animus is unsupported by substantial evidence.

When an employer offers a legitimate basis for its action, the

Board applies the Wright Line burden-shifting framework. 251

N.L.R.B. 1083, 1088–89 (1980). Under that standard, “the

general counsel must first establish a prima facie case that

animus against protected activity was a motivating factor in the

employer’s decision.” Circus Circus, 961 F.3d at 480 (cleaned

up). If that burden is met, “the burden of persuasion shifts to

the employer to show it would have taken the same action even

in the absence of the protected conduct.” Id. at 480 (cleaned

up). The Board’s analysis fails at both steps.

At the first stage of the Wright Line test, the Board’s

general counsel must demonstrate that the employee was

engaged in a protected union-related activity, that “the

employer was aware of that protected activity, and” that “the

protected activity was a motivating factor in the employer’s

decision to take [an] adverse action” against the employee.

Inova Health Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015)

(cleaned up). There is no dispute that Luciano was engaged in

a protected union activity and that Cervecera was aware of this.

But the Board’s conclusion that Cervecera was motivated by

animus rests on a trio of flawed inferences.

First, the Board inferred animus from the temporal

proximity between a settlement agreement reached in March

This ignores the relevant context by comparing the unpaid leave as

an alternative to Luciano’s active employment. In these

circumstances, however, the alternative to placing Luciano on

temporary, unpaid leave was not a paid sabbatical; it was

termination.

12

2022 and the April 2022 leave action. The majority endorses

this inference, reasoning that Cervecera was retaliating against

Luciano for forcing the company to settle a protracted dispute.

See Majority Op. 11–13. The inference of animus here fails to

comport with the facts. As Cervecera explains, the settlement

was a positive development for the company because it

amicably ended a pending dispute with the Union. Neither the

Board nor the majority explain how a mutually beneficial

settlement would provoke a company to retaliate against the

union leader who helped achieve it.

Second, the Board inferred animus based on the

company’s unilateral schedule change in July 2021, an action

the Board found to be an unfair labor practice. This reliance on

stale events is similarly flawed. While the Board may in some

cases consider pre-settlement conduct as background evidence

of motive, its probative value diminishes with time and is

negated by a subsequent amicable resolution. Here, any

inference of animus is broken by the nine-month gap between

the schedule change and the placement of Luciano on leave.

See MECO Corp. v. NLRB, 986 F.2d 1434, 1437 (D.C. Cir.

1993) (explaining an eight-month gap “strongly militates

against any inference of anti-union motivation”). Moreover,

the parties’ subsequent amicable settlement extinguishes any

probative value of this past event. The Board again fails to

connect the dots and explain why an employer would be

provoked to retaliate by a nine-month-old dispute that had been

settled to its benefit.

Finally, the Board inferred animus because Cervecera

departed from past practice when it placed Luciano on a six-

month leave after he exceeded the 200-hour sporadic leave

limit. This finding fails for the reasons already explained.

There was no past practice here that modified the terms of the

CBA, and a single, discretionary act of leniency does not create

13

a new, binding policy. See Sasol, 275 F.3d at 1111. The

majority explicitly declines to address the merits of the past

practice argument, finding the other evidence of animus

sufficient. Majority Op. 15–16. But the other evidence does not

logically support an inference of animus, and by sidestepping

this critical issue, the majority avoids confronting the weakness

of the Board’s case.

Finally, even assuming a prima facie case was made, the

Board erred by rejecting Cervecera’s legitimate, non-

discriminatory reason for its action. Under Wright Line’s

second step, an employer can defeat a charge by showing that

it “reasonably believed the employee committed the acts

supporting discipline” and that its decision was “consistent

with the company’s policies and practice.” Circus Circus, 961

F.3d at 481 (cleaned up). Cervecera easily met this burden.

Luciano had committed a terminable offense by taking

unauthorized leave after receiving an explicit final warning.

Cervecera’s response was entirely consistent with the

company’s Attendance Policy and the CBA. Even if the leave

was applied to Luciano as a punishment and not as a benefit,

Cervecera was well within its rights to impose a more lenient

punishment when a harsher punishment would have been

consistent with the CBA and its policies.

IV.

The Board’s final conclusion, that Cervecera violated

section 8(a)(5) of the Act by unlawfully implementing its last

offer on work schedules without reaching a lawful impasse, is

also unsupported by substantial evidence and contrary to this

court’s precedent. An employer may unilaterally implement a

proposal after the parties have bargained in good faith to an

impasse. See TruServ Corp. v. NLRB, 254 F.3d 1105, 1113–14

(D.C. Cir. 2001). When the deadlock is over a single issue, an

14

overall impasse sufficient for unilateral implementation exists

if the issue is of critical importance; the parties have reached a

good-faith impasse as to that issue; and the impasse has caused

a “breakdown in the overall negotiations.” Erie Brush & Mfg.

Corp. v. NLRB, 700 F.3d 17, 21 (D.C. Cir. 2012). The Board

correctly found Article 27 was an issue of critical importance

for both parties, but it erred in finding there was no good-faith

impasse and no overall breakdown in negotiations.

A.

Substantial evidence demonstrates the parties had reached

a good-faith impasse on Article 27. An impasse is reached

when good-faith negotiations have “exhausted the prospects of

concluding an agreement.” Wayneview Care Ctr. v. NLRB, 664

F.3d 341, 347 (D.C. Cir. 2011) (cleaned up). The parties

bargained over Article 27 for nine months, exchanging more

than a dozen proposals with no meaningful progress.

Throughout the negotiations, their positions on the

fundamental structure of the workweek remained diametrically

opposed: Cervecera required a flexible schedule capable of

supporting its 24/7 operations, while the Union insisted on a

schedule that maintained more consistency with regard to days

off. Both parties had repeatedly rejected offers by the other that

attempted to work around these core disagreements, and after

nine months of negotiations, neither party was willing to

budge.

The futility of further talks was confirmed by the final

exchange. After failing to reach any agreement over the critical

terms, Cervecera proposed its “final offer.” The Union rejected

that offer. Then, rather than offer a new compromise, the Union

submitted a counterproposal that was substantively identical to

one Cervecera had rejected eight months prior. Compare J.A.

453, with J.A. 653. This return to a long-rejected offer is a

15

strong indicator that the Union had no real intention of moving

from its position. Given the persistent intractability on the

question of work schedules, Cervecera in good faith concluded

that the prospects for an agreement had been exhausted. An

employer is not required to “engage in fruitless marathon

discussions.” NLRB v. Am. Nat’l Ins. Co., 343 U.S. 395, 404

(1952).

The majority upholds the Board’s contrary finding by

placing undue weight on the Union’s self-serving claim that it

wanted to continue negotiations. Majority Op. 23–25. But an

impasse cannot be defeated by “twelfth-hour protestations and

posturing.” Laurel Bay Health & Rehab. Ctr. v. NLRB, 666

F.3d 1365, 1375 (D.C. Cir. 2012). A union’s “bald statement

of disagreement” is not enough to defeat a good-faith impasse.

TruServ, 254 F.3d at 1117. Otherwise, an employer would

“virtually never be entitled to implement a final offer.” Mike-

Sell’s Potato Chip Co. v. NLRB, 807 F.3d 318, 323 (D.C. Cir.

2015).

B.

The Board also erred in finding the impasse on Article 27

did not lead to a “breakdown in overall negotiations.” Erie

Brush, 700 F.3d at 23. This court has long recognized that a

deadlock on a single, critical issue can cause an overall

breakdown, even if the parties continue to discuss other

matters. See id. If an impasse exists on a critical “make or

break” issue that “pervade[s] the negotiations,” then that

deadlock has “destroyed any opportunity for reaching a

[successor] collective-bargaining agreement.” Id. (cleaned up).

That is precisely the situation here. Article 27 was a critical

issue for both parties, a point that all acknowledge. See J.A.

760 (“Here, there is no dispute, and the record shows, that

Article 27’s work schedule and pay provisions were highly

16

important to both parties.”); Majority Op. 23 (“From the onset

of the negotiations, the parties recognized that Article 27 was

going to be a critical issue.”). Without an agreement on the

fundamental structure of the workweek, no final collective

bargaining agreement was possible. The continued exchange of

proposals on other ancillary articles does not change this

reality. Because the impasse on Article 27 rendered a final

agreement on a successor collective bargaining agreement

impossible, it created a breakdown in the overall negotiations,

entitling Cervecera to lawfully implement its final offer.

The majority’s conclusion that no breakdown occurred

because the parties could still negotiate ancillary issues is in

direct conflict with our holding in Erie Brush. See Majority Op.

25–27. In that case, we held a deadlock on a “make or break”

issue can cause an impasse even if other matters remain open

for negotiation, because neither party would sign a final

contract without agreement on the critical term. Erie Brush,

700 F.3d at 23. The majority’s suggestion that progress on

ancillary issues could somehow break the deadlock on the

foundational issue of work schedules is the type of “rank

speculation” we have rejected. Id. The test for an impasse is not

whether parties might still reach consensus on other minor

items, but whether the deadlock on a critical issue has

“destroyed any opportunity for reaching a [successor]

collective-bargaining agreement.” Id.

Once it was clear that no agreement was possible on the

fundamental structure of the workweek, no final collective

bargaining agreement was achievable. As a result, the Board’s

finding that no impasse existed is contrary to our precedent and

unsupported by the record.

17

***

Because the Board’s decision rests on a misinterpretation

of the CBA and is unsupported by substantial evidence, I would

grant Cervecera’s petition for review.