stating a union may waive its statutory right to bargain over a particular term of condition of employment
How later courts described this case
- stating a union may waive its statutory right to bargain over a particular term of condition of employment
- stating the well‐established standards of 42 review
- stating the well-established standards of review
- adopting the Board’s “clear and unmistakable waiver” test
Written by the judges who cited it.
The opinion
STRAUB, Circuit Judge,
concurring:
Because I am in substantial agreement with the majority opinion, I concur. I write separately to note that the majority opinion articulates settled legal doctrine in a novel way, creating a “two-step framework” which I regard as an unnecessary innovation. However, this reformulation *92 does not, in my view, disturb the substance of the established principles that apply to, and dictate the outcome of, this appeal.
The National Labor Relations Board’s (the “Board”) “clear and unmistakable” waiver standard — a product of the Board’s considerable experience in labor-management relations — “requires bargaining partners to unequivocally and specifically express their mutual intention to permit unilateral employment action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply.” Provena Hosps., 350 N.L.R.B. 808 , 811 (2007). Employees’ statutory right to bargain will not be deemed to have been waived based merely on “general contractual provisions.” Id Cf. NLRB v. N.Y. Tel. Co., 930 F.2d 1009, 1011 (2d Cir.1991) (“A clear and unmistakable waiver may be found in the express language of the collective bargaining agreement; or it may ... be implied from the structure of the agreement and the parties’ course of conduct.”).
Although the majority opinion uses the term “coverage” and recasts our precedent as a two-step inquiry, it continues to adhere, as we long have, to the “clear and unmistakable” waiver standard developed by the Board and endorsed by the Supreme Court. See, e.g., Metro. Edison Co. v. NLRB, 460 U.S. 693, 708 , 103 S.Ct. 1467 , 75 L.Ed.2d 387 (1983) (“[W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is explicitly stated. More succinctly, the waiver must be clear and unmistakable.”). In remaining faithful to the “clear and unmistakable” standard, the majority opinion affords the Board’s waiver rule appropriate deference. Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 200 , 111 S.Ct. 2215 , 115 L.Ed.2d 177 (1991) (“[i]f the Board adopts a rule that is rational and consistent with the [National Labor Relations] Act ... then the rule is entitled to deference from the courts”) (quotations omitted). See also Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 787-88 , 116 S.Ct. 1754 , 135 L.Ed.2d 64 (noting the “considerable deference” the Board is due “by virtue of its charge to develop national labor policy”) (quotations omitted); Civil Serv. Emps. Ass’n v. NLRB, 569 F.3d 88, 91 (2d Cir.2009). The majority opinion’s two-step analysis does not depart from the foregoing principles, which, in part, lead it to correctly reject the “contractual coverage” approach of certain of our Sister Circuits.
Indeed, the majority opinion notes that any “contractual indicia of exercise of the right to bargain or proffered proof of waiver must clearly and unmistakably demonstrate the coverage or waiver sought to be proved.” (Maj. Op. at 84.) Therefore, the majority opinion’s new articulation of the long-settled law governing waiver of statutory bargaining rights should not be read as a retreat from the “clear and unmistakable” standard developed by the Board, to which we remain, under binding precedent, required to defer.