NBCUniversal Media, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 11, 2016 Decided February 23, 2016

No. 14-1055

NBCUNIVERSAL MEDIA, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1080

On Petition for Review and Cross-Application

for Enforcement of a Decision and Order of

the National Labor Relations Board

Paul A. Salvatore argued the cause for petitioner. On the

briefs were Bernard M. Plum, Michael J. Lebowich, and

Daniel Jerome Davis.

Gregoire Sauter, Attorney, National Labor Relations

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

were Richard F. Griffin, Jr., General Counsel, John H.

Ferguson, Associate General Counsel, Linda Dreeben,

Deputy Associate General Counsel, and Robert J. Englehart,

Supervisory Attorney. Amy H. Ginn, Attorney, entered an

appearance.

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Before: TATEL and MILLETT, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: NBCUniversal Media,

LLC (“NBC” or the “Company”) petitions for review of a

2014 Decision and Order of the National Labor Relations

Board (“NLRB” or the “Board”). The Board cross-petitions

for enforcement. Because, as described below, we are unable

to discern the rationale underlying a significant portion of the

Board’s decision, we remand the case for clarification. We

mean to express no opinion on the merits. Rather, we are

remanding the case because we cannot meaningfully review

the Board’s decision as it now stands.

In 2009 and 2010, the Board received unit clarification

petitions from the National Association of Broadcast

Employees & Technicians (“NABET” or the “Union”) and

several NABET local unions. The petitions requested that the

Board clarify that all NBC employees represented by NABET

under the parties’ 2006-2009 collective bargaining agreement

were part of a single, nationwide bargaining unit. The

petitions also sought to clarify that any persons assigned to

the newly created Content Producer position at NBC were

both covered by the agreement and were part of the

nationwide bargaining unit. The petitions were consolidated

and set for hearing. On October 26, 2011, the Board’s Acting

Regional Director for Region 2 (“ARD”) issued a decision

largely granting NABET’s unit clarification petitions. He

found that all NBC employees represented by the Union were

part of one nationwide bargaining unit and that the Content

Producer position should be included in that unit. Decision on

Unit Clarification Petitions (Oct. 26, 2011), reprinted in Joint

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Appendix (“J.A.”) 548-631 (“Clarification Decision”). On

September 25, 2013, the Board denied NBC’s request for

review of the ARD’s decision. NBC then declined to bargain

over the terms and conditions of employment for Content

Producers.

On October 28, 2013, NABET filed unfair labor practice

charges against NBC. On April 7, 2014, the Board issued a

Decision and Order finding that NBC had violated sections

8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C.

§ 158(a)(1) and (5), by failing and refusing to recognize and

bargain with the Union as the Content Producers’ exclusive

collective bargaining representative, and by failing to provide

the Union with information necessary to the fulfillment of its

duties. NBC Universal, Inc., 360 N.L.R.B. No. 69 (Apr. 7,

2014) (“ULP Decision”). The Board’s unfair labor practice

findings are largely based on the findings made by the ARD

in the Clarification Decision. The Company refused to

comply with the Board’s Order and filed a petition for review

with this court.

NBC’s principal argument is that the Board erred in

adopting the findings of the ARD. NBC contends that the

Clarification Decision rests on the erroneous conclusion that

NABET represents a single, integrated bargaining unit at

NBC. According to NBC, Content Producers cannot be added

to a consolidated unit that does not exist. We cannot decipher

– either from the ARD’s decision or the Board’s decision

adopting the Clarification Decision – how the Board

determined that all NBC employees represented by NABET

are part of a single, nationwide bargaining unit. The

conclusion may or may not be right, but the reasoning

supporting the Board’s judgment – in particular, the ARD’s

application of Board precedent – is incomprehensible. When

an agency’s decision lacks adequate justification because it is

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neither logical nor rational, or because it fails to offer a

coherent explanation of agency precedent, the judgment under

review is wanting for lack of reasoned decisionmaking. See,

e.g., Fox v. Clinton, 684 F.3d 67, 80 (D.C. Cir. 2012). In these

circumstances, we are constrained to remand the case to the

Board for further consideration and an opportunity to explain

the rationale supporting its judgment in a fashion that is

consistent with reasoned decisionmaking.

I. BACKGROUND

A. Creation of the Content Producer Position

The dispute in this case is a by-product of actions taken by

NBC in 2008 and 2009 to reorganize its production methods.

That reorganization resulted in the shift of work previously

assigned to employees working in positions covered by the

parties’ collective bargaining agreement to the Content

Producer position, which, at least as conceived by NBC, was

not a bargaining unit position.

Creation of the Content Producer position was a critical

part of NBC’s overhaul of the news creation and delivery

systems at its local television stations. The Company

implemented its new model in “Content Centers” at local

NBC stations in New York, Chicago, and Los Angeles. The

initiative, which involved the creation of new job

classifications and the integration of new technology into

newly reorganized work spaces, facilitated a significant shift

in editorial focus from the production of broadcast television

news to the production of news content appropriate for

multiple platforms, including internet, cable, mobile devices,

and taxi-casts. NBC also created a Content Center in

Washington, D.C., but NABET representation of the Content

Producers at that location is not at issue here.

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Before the reorganization, various producers oversaw and

coordinated the production of broadcast news stories. These

producers worked closely with Camera Operators and Video

Editors to shoot, select, and assemble visual and audio

materials, and with Newswriters to create scripts. The Camera

Operators, Editors, and Newswriters were indisputably

covered by the 2006-2009 collective bargaining agreement

executed by NBC and NABET. Producers, however, were

excluded.

According to the job description posted by NBC, persons

assigned to the newly created Content Producer position

“‘desktop edit, write, produce and gather content on all . . .

platforms’ and are ‘responsible for the overall coverage of

assigned stories on all platforms throughout the day.’”

Clarification Decision at 27, J.A. 574 (quoting Content

Producer Job Posting, reprinted in J.A. 521). And, according

to NBC’s Vice President of News and Content, Content

Producers have “‘ownership of a story’ which ‘could include

pitching an idea, it could include setting up the story; who’s

going to be interviewed, . . . [i]t could include going an [sic]

shooting the interview and the pictures for the story . . .

[w]riting the story, editing the story, writing the anchor intro

and tag for the story, creating a web version of the story,

pitching a taxi-cast iteration of the story.’” Id. (alterations and

ellipses in original) (quoting Transcript of Hearing 350

(testimony of Vickie Burns, NBC Vice President of News and

Content), reprinted in J.A. 48).

Thus, while NBC conceived of the Content Producer

classification as a non-bargaining unit position, see Request

for Review by Respondent NBCUniversal Media, LLC 2

(Dec. 15, 2011), reprinted in J.A. 637, and Content Producers

are responsible for certain conceptual and supervisory tasks

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that were performed by non-bargaining unit producers before

the Company’s reorganization, the position also includes

bargaining unit work traditionally performed by Editors,

Camera Operators, and Newswriters. And it is undisputed that

the number of Editor and Newswriter positions at NBC’s

local stations decreased dramatically, sometimes altogether

disappearing, as a result of the Company’s reorganization and

creation of the Content Producer positions. Indeed, NBC

actually recruited and hired a number of Content Producers

from within the ranks of its existing Editors and Newswriters.

B. The Collective Bargaining Agreement

The Union and NBC have negotiated numerous collective

bargaining agreements during the course of their nearly 70-

year relationship. The agreement at issue in this case is the

NABET-CWA NBCU Master Agreement 2006-2009

(“Master Agreement”), reprinted in J.A. 206-519, which took

effect on April 1, 2006, and expired on March 31, 2009.

The Master Agreement covers various job classifications

at NBC-owned stations in New York, Chicago, Los Angeles,

and Washington, D.C., and it explicitly states that the parties’

contract is “between NBC Universal, Inc., as the owner and

operator” of the covered TV and radio operations, “and the

National Association of Broadcast Employees and

Technicians, the Broadcasting and Cable Television Workers

Sector of the Communications Workers of America.” Master

Agreement at 1, J.A. 215. Neither NABET local unions nor

any other unions are referenced in the Master Agreement.

The structure of the Master Agreement plays a pivotal role

in the parties’ dispute over whether it is meant to cover one

nationwide bargaining unit. The preamble to the Master

Agreement says that “the intent and purpose of the parties [is]

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to set forth . . . the basic collective bargaining agreements

between [them] in two (2) parts.” Id. Those parts consist of:

(I) GENERAL ARTICLES covering those subjects

which are uniformly applicable to substantially all of

the basic relationships, hours of work and general

conditions of employment, including a procedure for

prompt, equitable adjustment of grievances to the end

that there shall be no work stoppages or other

interferences with operations during the life of these

Agreements; and

(II) INDIVIDUAL ARTICLES which will contain

the description of each bargaining unit, which shall not

be affected hereby, the rates of pay and any unusual

working conditions which have no general application.

Id. The preamble also provides that, “[i]n the event of any

conflict between the General and Individual Articles, the

Individual Articles will prevail.” Id.

In addition to 26 General Articles and 15 Individual

Articles (each titled “Agreement” in the Table of Contents),

the Master Agreement contains numerous “Sideletters” that

supplement or modify the General and Individual Articles.

The only signatories to the Master Agreement are

NABET’s President, John Clark, and NBC’s former Senior

Vice President of Labor Relations and Talent Negotiations,

Day Krolik. Id. at 57, J.A. 271. Their signatures appear at the

end of the General Articles. The Individual Articles and

Sideletters are not separately signed. And there is no evidence

that any NBC representatives of local stations or officials of

NABET local unions signed the Master Agreement.

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The first of the General Articles, Article I Recognition and

Warranty, provides:

The Union represents and warrants, and it is of the

essence hereof, that it represents for collective

bargaining purposes all of the employees of the

Company as defined in the applicable SCOPE OF

UNIT clause, and the Company recognizes the Union

as the exclusive bargaining agent for all such

employees of the Company.

Id. at 1, J.A. 215. As noted in the preamble, the remainder of

the General Articles describe matters applicable to all

employees covered by the Master Agreement, including, inter

alia, work schedules and overtime; seniority, layoffs, and

rehiring; leaves of absence; discharges; severance pay;

vacations; and grievances and arbitration.

The Individual Articles, together, identify all of the job

classifications or positions covered by the Master Agreement.

Individually, each Article describes the various wage rates

agreed to for the positions identified therein and any unusual

working conditions specific to those positions. With the

exceptions of Individual Article A (which encompasses all of

the many covered engineering and technical positions

regardless of location) and Individual Article D (which covers

“new businesses,” i.e., positions involving new work not

previously associated with a job classification), each

Individual Article covers positions specific to a particular

city. For example, Newswriters in Chicago, Los Angeles and

New York are covered by Individual Articles H, M, and N,

respectively.

Some Individual Articles encompass many job

classifications, and some only one. Eleven of the fifteen

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Individual Articles identify the positions or job classifications

covered in a subsection titled “Scope of Unit.” Four

Individual Articles do not contain Scope of Unit sections. One

of those, Individual Article D, as noted above, covers

positions involving new work not previously associated with a

job classification. The remaining three indicate (via an

incorporated Sideletter or agreement) that the job positions

previously identified in each had either been moved into

Individual Article A or eliminated as identifiable positions

subject to bargaining. Throughout the Master Agreement,

“unit,” “units,” “each bargaining unit,” and “any unit”

frequently stand in for or are used to reference groups of job

classifications identified in each Individual Article.

There are three job classifications relevant to the Content

Producer position at issue here: Video Editor and Camera

Operator – both of which are covered by Individual Article A

– and Newswriter, a position covered by Individual Article N

for New York, H for Chicago, and M for Los Angeles.

C. Procedural Background

On September 19, 2008, as NBC was preparing to

establish the first Content Center at WNBC New York, the

Company and NABET Local 11 entered into a written

agreement providing that, except for employees who had

occupied NABET-represented jobs and who chose to remain

represented by the Union, Content Producers at WNBC would

not be covered by the Master Agreement. See Agreement

(Sept. 19, 2008), reprinted in J.A. 522-24. The agreement also

stated that the Union “agrees that it will make no claims to

represent any non-NABET-represented Content Producers

employed by WNBC except in the event such employees elect

NABET-CWA as their bargaining agent in an election

supervised by the NLRB.” Id. at 3, J.A. 524.

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When NBC launched the Content Centers in Chicago and

Los Angeles, NABET locals in those cities refused to sign

agreements similar to the one signed by Local 11. Instead, the

Union and its locals (including Local 11) filed unfair labor

practice charges, as well as the petitions for clarification at

issue here. After initially pursuing the unfair labor practice

charges against NBC, the Board reversed the order of the

proceedings, held the unfair labor practice charges in

abeyance, and informed the parties that it would proceed with

the unit clarification petitions. See Request for Review by

Respondent NBCUniversal, LLC 2-4, J.A. 637-39.

The Board subsequently consolidated the clarification

petitions, and a Board hearing officer took testimony over the

course of several weeks during a two-month period. On the

basis of that testimony, accompanying exhibits, and post-

hearing briefs, the ARD for Region 2 issued the Clarification

Decision that the Board adopted in its subsequent ULP

Decision.

Before the ARD, the principal arguments advanced by

NABET and NBC were largely premised on their differing

views as to whether the NABET employees covered by the

2006-2009 Master Agreement belonged to a single,

nationwide bargaining unit, as NABET contended, or twelve

separate bargaining units defined by the Individual Articles,

as NBC asserted. See Clarification Decision at 54, J.A. 601.

NABET argued that if covered employees belonged to a

single, nationwide unit, application of the “same basic

functions” standard of Premcor, Inc., 333 N.L.R.B. 1365

(2001), was appropriate and would support a finding that

Content Producers belonged within the unit. See Clarification

Decision at 2, 67-68, J.A. 549, 614-15. NBC argued that the

“community-of-interest” accretion standard applied and,

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under that standard, the Content Producer position could not

be added to any of the extant bargaining units. See id.

The ARD resolved the unit clarification question in

NABET’s favor, finding that all employees covered by the

Master Agreement constituted a single unit. In determining

which standard to apply to that single unit – the Premcor

analysis or the community-of-interest accretion analysis – the

ARD “recognize[d] that the instant case differs from

Premcor, in part because the Content Producers have some

responsibilities that do not appear to have been previously

performed by bargaining unit employees.” Id. at 70, J.A. 617.

Nonetheless, the ARD found that Premcor provided the most

appropriate standard, explaining:

[A]pplication of a traditional accretion analysis here is

problematic in light of [NBC’s] contention that such

an analysis cannot compare the Content Producers

with bargaining unit classifications that no longer

exist. Clearly, “community of interest” factors such as

interchange between unit employees and the new

classification, supervision, and even functional

integration, are rendered meaningless, or in any case

are substantially compromised, in circumstances where

the most relevant bargaining unit classifications, here

Newswriters and Editors, have been eliminated as a

result of the very change in [NBC’s] operations that

produced the new classification. This was the case in

Premcor, and it is also the case here.

Id.

The ARD additionally rejected NBC’s argument that the

agreement signed by Local 11 was binding on NABET with

respect to Content Producers in New York. Id. at 62, J.A. 609.

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On this point, the ARD found that “[t]here is nothing in the

NABET-CWA By-Laws tending to establish that Local Union

Presidents have authority to sign agreements with the

Employer concerning who will and will not fall within the

Union’s representation.” Id. The ARD further found that

“there is no evidence that NABET-CWA President Clark even

knew of Local 11 President McEwan’s negotiations with the

Employer, let alone designated Local 11 President McEwan

to negotiate in regard to the representation of the New York

Content Producers on the [sic] his behalf. . . . In short, there is

no evidence to warrant the conclusion that Mr. McEwan had

actual or apparent authority to bind the [Union] in regard to

the unit placement of the Content Producers.” Id. at 63, J.A.

610.

NBC sought Board review of the ARD’s Clarification

Decision. The Board declined. See NBC Universal, Inc., 02-

UC-000619 et al. (Sept. 25, 2013), reprinted in J.A. 677. And

when NABET subsequently sought bargaining information

regarding the Content Producer position and attempted to

bargain with NBC over the position, NBC refused on the

ground that the Clarification Decision was wrongly decided.

NABET then filed unfair labor practice charges and, when

NBC persisted in refusing to bargain, the Board issued a

complaint on those charges. The Board’s General Counsel

filed a motion for summary judgment. NBC responded, again

arguing for review and reversal of the Clarification Decision.

On April 7, 2014, the Board issued the ULP Decision at

issue here. Without elaboration, the Board adopted the ARD’s

Clarification Decision, stating:

The employees described in the scope of unit clauses

of the individual articles of the most recent master

agreement between the Respondent and the Union . . .

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constitute a unit appropriate for the purposes of

collective bargaining . . . within the meaning of

Section 9(b) of the Act[, 29 U.S.C. 159(b)].

ULP Decision, 360 N.L.R.B. No. 69 at 2. Using similarly

concise language, the Board also adopted the ARD’s

conclusion “that [NBC’s] newly created position of content

producer at [its] New York, Chicago, and Los Angeles owned

and operated local stations was properly included in the unit.”

Id. Finally, describing the correspondence between the parties

regarding NBC’s refusal to provide information and bargain,

the Board concluded that NBC was engaging in unfair labor

practices, granted summary judgment against the Company,

and ordered NBC to recognize, provide information to, and

bargain with NABET. See id.at 2-4.

NBC refused to comply with the Board’s order, and

petitioned this court for review. The Board cross-petitioned

for enforcement. This court has jurisdiction under sections

10(e) and (f) of the National Labor Relations Act. 29 U.S.C.

§ 160(e) and (f).

II. DISCUSSION

NBC does not dispute that it refused to bargain with

NABET over the Content Producer position and that it also

refused to provide the Union with information about the new

job classification. In addition, the Company does not now

contest that if the Master Agreement encompasses a single,

nationwide bargaining unit, then the Premcor standard would

apply to determine whether the Content Producer position is

within the unit.

NBC’s principal claim is that the Board’s ULP Decision

must be overturned because it rests on a flawed Clarification

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Decision. In the Company’s view, the ARD erred in ignoring

and misreading clear and unambiguous language in the

parties’ Master Agreement, relying on extrinsic evidence,

misconstruing the history of the parties’ bargaining

relationship, and failing to properly consider and apply Board

precedent. The gravamen of NBC’s argument is that the ARD

improperly looked beyond the words of the Master

Agreement in determining whether employees covered by it

belonged to a single, nationwide bargaining unit or to multiple

individual units, and that he drew the wrong conclusion from

the extrinsic evidence that he considered.

A. Standard of Review

The National Labor Relations Act delegates to the NLRB

the authority to “decide . . . whether, in order to assure to

employees the fullest freedom in exercising the[ir] rights[,]

. . . the unit appropriate for the purposes of collective

bargaining shall be the employer unit, craft unit, plant unit, or

subdivision thereof.” 29 U.S.C. § 159(b). The Supreme Court

long ago recognized that the Board’s “broad” discretion in

this area “reflect[s] Congress’ recognition ‘of the need for

flexibility in shaping the [bargaining] unit to the particular

case.’” NLRB v. Action Auto., Inc., 469 U.S. 490, 494 (1985)

(quoting NLRB v. Hearst Publ’ns, Inc., 322 U.S. 111, 134

(1944)). The “wide deference” afforded the Board in its unit

determinations also reflects the reality that each decision rests

on “a fact-intensive inquiry and a balancing of various

factors.” United Food & Commercial Workers, Local 540 v.

NLRB, 519 F.3d 490, 494 (D.C. Cir. 2008) (citation omitted);

see also Dodge of Naperville, Inc. v. NLRB, 796 F.3d 31, 38

(D.C. Cir. 2015).

Because unit determinations involve such “a large

measure of informed discretion,” a Board decision, “if not

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final, is rarely to be disturbed.” Packard Motor Car Co. v.

NLRB, 330 U.S. 485, 491 (1947). Congress has “delegate[d]

to the Board the responsibility to make a reasonable

determination supported by its own precedent and evidence in

the record. That this Court, or other reasonable people, may

prefer a bargaining unit with different contours is immaterial

as a reviewing court may not substitute its own judgment for a

rationally supported position adopted by the Board.” Country

Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189, (D.C. Cir.

2000) (citation omitted). In other words, we must uphold a

unit determination if it is supported by substantial evidence,

29 U.S.C. § 160(e)-(f), and is “rational and in accord with

past precedent,” Int’l Union of Elec., Radio & Mach.

Workers, 604 F.2d 689, 695 (D.C. Cir. 1979).

The deference we owe the Board in determining the

appropriate size of a bargaining unit prevents us from

reviewing a Board determination on any rationale other than

the one supplied in its decision and order. See Point Park

Univ. v. NLRB, 457 F.3d 42, 49-50 (D.C. Cir. 2006). When

we cannot discern that rationale, we are in no better a position

than when the Board is silent. We cannot guess at what the

Board means to say for to do so would result in the court

improperly filling critical gaps in the Board’s reasoning and

perhaps sustaining the Board’s action on a ground that the

Board did not intend – something which is prohibited. See id.

at 50 (citing SEC v. Chenery Corp., 332 U.S. 194, 196-97

(1947)). In such situations, remand of the case for

clarification is a prerequisite to meaningful judicial review.

See Point Park Univ., 457 F.3d at 51; see also Detroit

Newspaper Agency v. NLRB, 435 F.3d 302, 304-05 (D.C. Cir.

2006) (stating that in the unlawful discharge context, “where

we cannot discern the precise basis upon which the Board

rested in reaching its conclusion, meaningful judicial review

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requires us to remand the case to the Board for clarification”)

(ellipsis, alteration, and citation omitted).

B. The ARD’s Clarification Decision

In analyzing whether employees represented by NABET

are part of a single, nationwide bargaining unit, the

Clarification Decision purports to apply or distinguish five

Board decisions. However, we are unable to follow the thread

of the decision’s reasoning at a number of critical points.

Most fundamentally, we are unable to discern the factual and

precedential bases for the ARD’s rigidly bifurcated approach

to assessing when and how to focus on the terms of the

Master Agreement, the structure of the agreement, and the

parties’ bargaining history in a unit clarification proceeding.

As an initial matter, it is noteworthy that the Clarification

Decision says that because “[n]either party has introduced the

certification(s) of representation, which presumably would

contain a clear statement of the unit or units for which the

Union has been certified as the exclusive collective-

bargaining representative. . . . the parties’ agreement governs

the scope of the unit.” Clarification Decision at 54-55, J.A.

601-02 (citing La. Dock Co., 293 N.L.R.B. 233 (1989), enf’t.

denied on other grounds, 909 F.2d 281 (7th Cir. 1990)). The

ensuing discussion of this point is garbled, to say the least.

Specifically, we do not know what to make of the ARD’s

footnoted acknowledgment that NABET did, in fact, point to

a Board decision certifying it as the representative of a

nationwide unit of NBC engineering and technical employees.

See Clarification Decision at 54 n.82, J.A. 601-02 (citing

Nat’l Ass’n of Broad. Eng’rs & Technicians, 59 N.L.R.B. 478

(1944)). The ARD says that this “tends to support the

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Employer’s position that there exist multiple units, [but] the

case is not conclusive.” Id. The ARD then points out that

the Board has found that even where parties have

initially treated a group of employees at a particular

location as a separate unit, the parties may

subsequently establish a single national unit by a

practice of joint bargaining, repeated negotiation of a

national agreement, and other indicators of such

intention. See Columbia Broadcasting System, Inc.,

208 NLRB 825 (1974).

Clarification Decision at 54 n.82, J.A. 602. This line of

analysis is unilluminating because the Columbia Broadcasting

System (“CBS”) case involved a situation in which the

company and union established a bargaining relationship

pursuant to voluntary recognition. To make matters worse, the

ARD then states that, in this case, “it is unclear” whether

“(any of) the asserted unit(s) here” were established pursuant

to voluntary recognition. Id. at 54 n.83, J.A. 602. And the

ARD does not explain whether this has a bearing on the unit

clarification issue.

We are thus at a loss to understand the Board’s view of

the effect of either the certification decision proffered by

NABET or the apparently indeterminate state of the record

with respect to agreements negotiated pursuant to voluntary

recognition. And the Clarification Decision offers no useful

analytical framework.

In addition, we are unable to understand the precedential

basis for the ARD’s two-step, bifurcated approach to

determining the appropriate unit in a unit clarification

proceeding. Under the ARD’s approach, the parties’ history of

collective bargaining and the structure of their agreement are

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not relevant unless the Board first finds that the literal terms

of the contract are ambiguous. We find little support in the

Board’s decisions for this bifurcated analysis.

It is true that in Louisiana Dock, the Board, citing

Sambo’s Restaurants, Inc., 212 N.L.R.B. 788 (1974), said:

“When there is no clear and unambiguous contract provision

setting forth the parties’ agreement, it may be evidenced by

bargaining history or a pattern of bargaining.” 293 N.L.R.B.

at 234. However, the wholistic approach generally followed

by the Board in cases involving “master agreements” suggests

that the statement in Louisiana Dock may be permissive

(indicating how “bargaining history” may be useful), and not

restrictive as the ARD thought.

There is no doubt here that the Master Agreement covers

all of the groups of job classifications identified in the

Individual Articles. This case is thus plainly distinguishable

from unit clarification cases in which the reach of the parties’

agreement is in dispute. See, e.g., Commonwealth Comm’ns,

Inc. v. NLRB, 312 F.3d 465, 468 (D.C. Cir. 2002). The

question here is not whether the Master Agreement reaches all

of the positions identified in the Individual Articles; rather,

the issue is whether each group identified in the Individual

Articles is a separate bargaining unit or whether all of the

positions covered by the Master Agreement constitute one

nationwide bargaining unit. Obviously, the structure of the

Master Agreement and the parties’ bargaining history may be

highly relevant to the latter inquiry.

Sambo’s Restaurants, on which the ARD rests his

approach, surely does not make textual ambiguity a

prerequisite to examination of the parties’ bargaining history.

In that decision, the Board acknowledged the persuasive

support in the collective bargaining history for a multi-store

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unit. See 212 N.L.R.B. at 788. It concluded, however, that the

support was undermined by a letter written by the union

during the course of collective bargaining negotiations with

the employer. See id. The Board never suggested that

ambiguity in the language of the collective bargaining

agreements was a prerequisite to its review of the parties’

bargaining history.

Columbia Broadcasting Systems, 208 N.L.R.B. 825

(1974), even more explicitly rejects the ARD’s bifurcated

approach. That decision involved a master agreement that,

similar to the one at issue here, consisted of a national

agreement and local supplements. The national agreement

contained language that the Board characterized as “clearly

indicat[ing]” an “expressed intention of recognizing one

comprehensive unit.” Id. at 826 & n.10. Nonetheless, the

Board undertook a detailed examination of the parties’

collective bargaining history and put great weight on that

history in finding the existence of a single unit. See id. at 825-

26 & n.10. Moreover, the Board laid out a number of factors

which it characterized as relevant to determining whether “the

scope and nature of the local bargaining and the resulting

local supplements to the national agreement are not so

substantial as to defeat” the finding of a national bargaining

unit. See id. at 826. Those factors variously involved the

language, structure, and history of the collective bargaining

agreement. See id. And there was no suggestion that the

factors pertaining to the language of an agreement must be

examined and ambiguity found before evidence of the parties’

bargaining history or the structure of the agreement can be

considered. See id.

Moreover, in neither National Broadcasting Co. (“NBC”),

114 N.L.R.B. 1 (1955), nor American Broadcasting Co.

(“ABC”), 114 N.L.R.B. 7 (1955), did the Board make

20

ambiguity in the language of the collective bargaining

agreement a prerequisite to consideration of the parties’

bargaining history. In NBC, the Board first noted the course of

the relationship between the parties prior to the execution of

the master agreement at issue. See NBC, 114 N.L.R.B. at 2. It

then detailed the language of the master agreement. See id. at

2-4. Finally, it weighed that language (which the Board

concluded supported a finding that the master agreement

covered multiple, individual bargaining units) against the

testimony describing a post-agreement course of collective

bargaining that NABET argued supported a finding of a

single unit. See id. at 2, 4-5. In identifying the appropriate

unit, the Board reviewed the language of the relevant general

and individual articles in detail and rested particularly on the

language setting forth the purpose and intent of the parties.

See id. at 4. But it also considered the evidence of bargaining

history. See id. at 4-5.

Following a similar course of analysis, the Board in ABC

first considered the evolution of the parties’ relationship from

consent agreement to initial contract and from initial contract

to the collective bargaining agreement at issue. See ABC, 114

N.L.R.B. at 9. After describing the provisions of that “Master

Contract” in some detail, the Board turned to evidence

showing that the employer was administering the master

contract on the basis of separate units and that the parties had

bargained on the basis of separate units. See id. In view of the

entire record, the Board found that the history of bargaining

for the employees at issue had been on the basis of a separate

unit, previously certified by the Board. See id. Again, there

was no suggestion that the Board looked at the evidence of

the collective bargaining history only because the language of

the Master Contract was ambiguous.

21

The Board’s wholistic approach to the record in ABC and

NBC is hardly surprising given the reliance of both decisions

on American Can Co., 109 N.L.R.B. 1284 (1954). See ABC,

114 N.L.R.B. at 9 n.2; NBC, 114 N.L.R.B. at 4 n.1. In

American Can, the Board was explicit in examining both the

language of the relevant agreements and the evidence of the

parties’ interactions as evidence of “bargaining history,” 109

N.L.R.B. at 1285, bearing on whether multiple plants covered

by the “basic” (or master) contract should be treated as one or

multiple collective bargaining units. See id. at 1285-88.

Setting the pattern for ABC and NBC, the Board considered

evidence of the past and current relationship between the

union and the company, as well as the details of both the

language and structure of past contracts and the contract at

issue. See id. Based on all of those factors, the Board found

that there was “no unequivocal manifestation of an intent” to

create a multi-plant bargaining unit. Id. at 1288.

In light of these decisions, it seems that the ARD’s

bifurcated approach may be attributable to a misreading of

Louisiana Dock and a failure to take account of other Board

precedent. We cannot be sure what the Board meant to say,

however, because it simply adopted the Clarification Decision

without amplification. Thus, we will leave this matter for the

Board to address on remand.

Upon finding that the Master Agreement was

“contradictory and thus ambiguous as to the existence of a

single or multiple units,” the ARD turned to the “extrinsic

evidence bearing on the single unit/multiple units question.”

Clarification Decision at 56, J.A. 603. He pointed to the fact

that only the General Articles of the Master Agreement were

signed and that the only signatories were John Clark

(President of the Union) and Day Krolik (NBC’s Senior Vice

President of Labor Relations and Talent Negotiations). See id.

22

at 56-57, J.A. 603-04. The ARD explained that while each

Individual Article had its own ratification process, ratification

of the entire agreement and ratification of the Individual

Articles were not independent procedures. See id. at 56, J.A.

603. He also noted that there was no indication in the record

that the Individual Articles were negotiated “separately, at a

different time, or by different representatives than those who

negotiated the Master Agreement.” Id. And he observed that

“[t]here is no indication that the Local Union representatives

on the negotiating committee are currently or have in the past

negotiated collective-bargaining agreements or even sub-

agreements such as those contained in the Master Agreement

independently in regard to the ‘unit’ of employees within their

geographic area of responsibility.” Id. at 57, J.A. 604. Finally,

citing CBS and contrasting NBC, he concluded that “the mere

existence of supplemental agreements covering specific

groupings of employees does not undercut the existence of a

single unit where the parties’ course of conduct otherwise

supports a single unit. See Columbia Broadcasting Systems,

Inc., 208 NLRB at 826; but see National Broadcasting

Company, Inc., 114 NLRB 1, 2 (1955).” Clarification

Decision at 57, J.A. 604. We find it difficult to understand

how the ARD meant to apply CBS and NBC to his factual

findings.

The statement of law attributed to CBS is correct, as far as

it goes. But critically, the ARD fails to address the factors that

CBS describes as relevant to determining whether the nature

of bargaining and the resulting supplements to a national

agreement are so substantial as to defeat the conclusion that a

national unit has been agreed upon. See CBS, 208 N.L.R.B. at

826. Were it our place to guess, we would still be at a loss to

comprehend the ARD’s findings because the CBS factors

point in different directions. One factor cited as undermining

a potential finding that the parties’ course of conduct supports

23

a nationwide unit is a “reference in the master agreements to

‘units’ with inclusion of a description of each ‘plant unit.’” Id.

This favors NBC in this case. However, another factor is the

“existence of separate agreements with no master agreement.”

Id. This favors NABET in this case.

With respect to the first factor, the references in the

NABET-NBC Master Agreement to “units” and the Scope of

Unit provisions in each Individual Article suggest that the

ARD’s conclusion that the parties’ course of conduct

supported a nationwide unit may be undermined. However,

because the NABET-NBC collective bargaining agreement is

structured as a master agreement consisting of general and

individual articles, application of the second factor supports

the conclusion that the negotiations for the Individual Articles

did not undermine the ARD’s conclusion. This may be

particularly so because it is not clear that the Individual

Articles here can be characterized as “separate agreements,”

as that term is used in CBS. They are not separately signed

and do not take effect absent ratification of the General

Articles.

If the Board is to be true to its precedent, we believe the

CBS factors must be addressed. And given the fact that they

seem to point toward inconsistent outcomes, we think the

deference we owe the Board weighs in favor of allowing the

Board to explain whether the CBS factors are as relevant as

they appear to be and, if so, to apply the factors in the first

instance.

We also find confusing the ARD’s attempt to distinguish

the Board’s 1955 decision in NBC. This decision is obviously

significant because the NABET-NBC collective bargaining

agreement in force in 1955 was identically structured to the

one here, and it contained a number of identical provisions.

24

The question in NBC was whether the Los Angeles film group

(which was the subject of an Individual Article) had, over the

course of collective bargaining, been made part of a single,

nationwide unit. See 114 N.L.R.B. at 2. As a predicate to that

assessment, the Board concluded that the other groups of

employees covered by the NABET-NBC agreement did not

constitute a single nationwide unit. See id. at 2-5.

In an attempt to distinguish NBC, the ARD states that the

Board relied on the testimony of NABET’s attorney “that,

following the certification of [NABET] as the exclusive

representative of [the Los Angeles film service] employees,

the parties had agreed that the collective-bargaining

agreement covering them would be added to the master

agreement and that bargaining thereafter would be done in

conjunction with nationwide negotiations.” Clarification

Decision at 57 n.87, J.A. 604. The ARD notes that “[i]n this

context, the Board viewed the mere fact of nationwide

negotiations as insufficient to undercut the initial intent of the

parties that the Los Angeles ‘film service’ employees would

exist as a separate unit.” Id. The Clarification Decision

concludes that “[t]here is no comparable evidence here.” Id.

Try as we might, we cannot discern with any certainty

how the ARD meant to distinguish NBC. We can guess that

the “comparable evidence” to which he refers is the

certification of the Los Angeles film service employees. But

we are not at all sure that this is what he intended. And if it is,

then, as earlier indicated, we wonder how the evidence of

certification that the ARD dismissed out-of-hand should be

considered. On remand, the Board must address NBC, and it

must do so in a way that makes more sense than does the

Clarification Decision.

25

Based on American Can, NBC, ABC, and CBS, it appears

that when a unit clarification proceeding involves a “master

agreement” covering a number of divisions of a company, the

parties’ bargaining history and the structure of their

agreement are always relevant. If that is the case, then the

Board’s 1955 decision in NBC, while undeniably relevant, is

not likely dispositive. There has been too much bargaining

history during the decades since that decision issued to treat it

as the final word in a unit clarification proceeding focused on

the 2006-2009 Master Agreement. Just the fact that in 1955

the Board had only 14 years of collective bargaining history

to consider, see NBC, 114 N.L.R.B. at 2, whereas now it has

75 years, may be enough for the Board to conclude that the

1955 decision is not controlling.

III. CONCLUSION

We deny both the petition for review and the Board’s

cross-application for enforcement and remand the case for

clarification consistent with this opinion. The Board adopted

the ARD’s Clarification Decision without explanation or

elaboration. Because we cannot discern how the Clarification

Decision applies relevant Board precedent to the facts of this

case, we are constrained to remand the case to the Board. On

remand, the Board must explain both the principles embodied

in the relevant precedent and how application of those

principles to the facts here supports its resolution of the

parties’ dispute. In addition to resolving the unit clarification

issue, the Board must also address the parties’ dispute over

the Local 11 agreement. The resolution of the Local 11 issue

may depend in part on how the Board resolves the unit

clarification issue. We leave this matter to the Board to

address in the first instance. Nothing in this decision is meant

to foreclose the Board from reopening the hearing record in

26

the event that it determines that additional evidence and

argument are necessary to reach an informed judgment in this

case.

So ordered.