20-1163-ag

Int’l Bhd. of Elec. Workers, Local Union 43 v. NLRB

In the

United States Court of Appeals

For the Second Circuit ________

AUGUST TERM 2020

ARGUED: APRIL 23, 2021

DECIDED: AUGUST 12, 2021

No. 20-1163-ag

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,

LOCAL UNION 43,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

and

ADT LLC,

Intervenor.

________

On Petition for Review of an Order of 

the National Labor Relations Board.

________

Before: WALKER, LEVAL, and CHIN, Circuit Judges.

________
2 No. 20-1163-ag

Local Union 43 of the International Brotherhood of Electrical 

Workers (the Union) petitions for review of a decision of the National 

Labor Relations Board (the Board) dismissing its unfair labor practice 

charges against ADT LLC (ADT). The Union alleges that, in 

September 2016, ADT violated Sections 8(a)(5) and (1) of the National 

Labor Relations Act (NLRA or Act) by refusing to bargain before 

implementing a mandatory six-day workweek for nearly all 

technicians at its facilities in Albany and Syracuse, New York. 

Applying a recently adopted “contract coverage” standard, the Board 

dismissed the charges on the basis that the plain language of the 

relevant collective-bargaining agreements (CBAs) permitted ADT’s 

unilateral change to the schedule. 

In this petition, the Union argues that the Board erred in 

construing the CBAs by failing to give effect to scheduling provisions 

that limit ADT’s rights to mandate overtime. Adopting the contract 

coverage standard, we agree. We conclude that the CBAs did not 

allow ADT to unilaterally impose a mandatory six-day workweek 

and that ADT violated Sections 8(a)(5) and (1) of the Act by refusing 

to bargain before implementing the change. We therefore VACATE

the Board’s order and REMAND for further consideration consistent 

with this opinion. 

________

MANEESH SHARMA (Matthew J. Ginsburg, on the 

brief), AFL-CIO Office of the General Counsel, 

Washington, District of Columbia; Jonathan D. 

Newman, on the brief, Sherman Dunn, P.C., 

Washington, District of Columbia; Kenneth L. 

Wagner, on the brief, Blitman & King LLP, 

Syracuse, New York; for Petitioner International 

Brotherhood of Electrical Workers, Local Union 43.
3 No. 20-1163-ag

GREG P. LAURO (Kira Dillinger Vol, on the brief), 

National Labor Relations Board, Washington, 

District of Columbia, for Respondent National Labor 

Relations Board. 

JEREMY C. MORITZ (Norma Manjarrez, on the brief), 

Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 

Chicago, Illinois, for Intervenor ADT, LLC.

________

JOHN M. WALKER, JR., Circuit Judge:

Local Union 43 of the International Brotherhood of Electrical 

Workers (the Union) petitions for review of a decision of the National 

Labor Relations Board (the Board) dismissing its unfair labor practice 

charges against ADT LLC (ADT). The Union alleges that, in 

September 2016, ADT violated Sections 8(a)(5) and (1) of the National 

Labor Relations Act (NLRA or Act) by refusing to bargain before 

implementing a mandatory six-day workweek for nearly all 

technicians at its facilities in Albany and Syracuse, New York. 

Applying a recently adopted “contract coverage” standard, the Board 

dismissed the charges on the basis that the plain language of the 

relevant collective-bargaining agreements (CBAs) permitted ADT’s 

unilateral change to the schedule. 

In this petition, the Union argues that the Board erred in 

construing the CBAs by failing to give effect to scheduling provisions 

that limit ADT’s rights to mandate overtime. Adopting the contract 

coverage standard, we agree. We conclude that the CBAs did not 

allow ADT to unilaterally impose a mandatory six-day workweek 

and that ADT violated Sections 8(a)(5) and (1) of the Act by refusing 

to bargain before implementing the change. We therefore VACATE

the Board’s order and REMAND for further consideration consistent 

with this opinion. 
4 No. 20-1163-ag

BACKGROUND

This case arises from ADT’s decision to implement temporarily 

a mandatory six-day workweek for unionized technicians at its 

facilities in Albany and Syracuse, New York. We begin by describing 

ADT’s relationship with the Union, including the key terms of the 

CBAs governing ADT’s right to adjust its technicians’ schedules. We 

then explain the facts giving rise to ADT’s decision to impose a sixday workweek, the Union’s demand that ADT bargain before 

implementing the policy, and the prior proceedings before the Board. 

We draw this background from the Board’s findings of fact, which, 

unless otherwise noted, are supported by substantial evidence.1

A. The Collective-Bargaining Agreements

ADT installs and services security systems for residential and 

commercial property. Like other companies in the industry, ADT 

hires local technicians to install and service its systems. At two of 

ADT’s facilities—those in Albany and Syracuse, New York—these 

technicians have elected to unionize. They formed two bargaining 

units (one in Albany and another in Syracuse), both of which are

represented exclusively by the Union. As a general matter, ADT is 

required to bargain with the Union regarding employees’ wages, 

hours, and other terms and conditions of employment.2

For decades, ADT and the Union successfully negotiated terms 

and conditions of employment for Albany and Syracuse technicians 

and memorialized their bargain in their successive CBAs.3 As a 

1 See NLRB v. Katz’s Delicatessen of Houston St., Inc., 80 F.3d 755, 763 (2d 

Cir. 1996).

2 See 29 U.S.C. § 157; 29 U.S.C. § 158(a)(5).

3 As relevant here, the CBA for the Albany technicians (Albany CBA) 

was effective June 11, 2015 to June 10, 2018. The CBA for the Syracuse
5 No. 20-1163-ag

general matter, the CBAs are broad in scope, addressing issues such 

as wages, benefits, safety, and the resolution of disputes. Most 

importantly for our purposes, they also contain the following three 

sections addressing ADT’s right to set technicians’ schedules. 

First, Article 1, Section 2 of the CBAs describes ADT’s 

management rights, which include a general right to determine the 

“amount” of work required of its technicians. It states, in relevant 

part, that “[t]he operation of the Employer’s business and the 

direction of the working force including . . . the right to . . . determine 

the reasonable amount and quality of work needed . . . is vested 

exclusively in the Employer, subject, however to the provisions of this 

agreement.”4 

Second, Article 6, Section 1 of the CBAs defines the “Hours of 

Work” for Union technicians. It states that “[t]he workweek shall be 

forty (40) hours during any one workweek or eight (8) hours during 

any workday.”5 It also describes technicians’ work schedules, which 

differ depending on whether the technician is assigned to the Service 

Department or the Installation Department. For technicians in the 

Service Department, the CBAs provide the following alternative 

schedules:

The normal work schedule . . . shall be a shift of eight and 

one-half hours . . . comprising of five consecutive days

[5x8 Workweek], Monday through Saturday between the 

hours of 8:00 a.m. and 12 midnight. There will also be a 

four-day workweek comprised of ten and one half hour 

technicians (Syracuse CBA) was effective June 11, 2016 to June 10, 2019. 

Unless otherwise noted, the CBA provisions at issue are identical and we 

cite only to the Syracuse CBA. 

4 Joint App. at 134. 

5 Id. at 138. 
6 No. 20-1163-ag

shifts [4x10 Workweek] . . . between the hours of 8:00 

a.m. and 12 midnight, Monday through Friday.6

For Technicians in the Installation Department, the CBAs provide a 

single schedule: “The Installation Department may be scheduled for 

any eight-hour period between 7:00 a.m. and 5:30 p.m. in any given 

day between Monday and Friday.”7

Article 6, Section 1 also provides for limited departures from 

the regular schedules. For technicians in the Service Department, the 

CBAs provide that “[c]ustomer needs may periodically make it 

necessary for work to be performed beginning at 7:00 a.m.”8 For 

technicians in the Installation Department, they provide that 

“[c]ustomer needs may periodically make it necessary for work to be 

performed on a second shift and/or Saturdays.”9 Before assigning 

work beyond the regular schedule, however, the CBAs require ADT 

to follow certain procedures. For technicians in both departments, 

they provide, “The Company will first seek qualified volunteers to 

perform such work. If there are no qualified volunteers[,] then the 

least senior qualified person will be assigned to perform the work.”10

Third, Article 6, Section 3 of the CBAs describes ADT’s 

obligation to pay additional compensation for overtime. It states: 

All time worked daily in excess of eight (8) hours in a 

scheduled 5 x 8 hour workweek, in excess of ten (10) 

hours in a 4 x 10 hour workweek, or weekly in excess of 

6 Id.

7 Id.

8 Id.

9 Id. The Albany CBA contains a slight variation of this sentence. It 

states: “Customer needs may periodically make it necessary to add an 

additional shift for residential installers from Tuesday through Saturday.” 

Id. at 161.

10 Id. at 138. 
7 No. 20-1163-ag

forty (40) hours, or on scheduled days off shall be 

compensated for at one and one-half (11⁄2) times the 

employee’s regular straight time hourly rate.11

B. The Mandatory Six-Day Workweek

In September 2016, the private equity firm Apollo Group 

purchased ADT and merged its operations with Protection One, Inc., 

one of ADT’s competitors. At the time, Protection One had a 

customer-retention policy of responding to 75 percent of service calls 

within 24 hours. Recognizing the increased customer demand for fast 

and efficient service, Apollo Group decided to apply that same 

customer-retention policy to all of ADT’s branches nationwide. 

To meet the new customer service targets, ADT needed to 

reduce a backlog of open work orders at several of its locations. 

Accordingly, ADT announced on September 6 that it would 

implement a mandatory six-day workweek for service and 

installation technicians at nine branches in New York and 

Pennsylvania, including those in Albany and Syracuse. At the Albany 

branch, the new policy would apply to all workweeks. At the 

Syracuse branch, the new policy would apply only to the second and 

fourth workweeks of every month.12 In each case, ADT stated that the 

mandatory six-day workweeks would begin on September 22 and 

continue “until each market achieves the desired [customer service] 

target.”13 While ADT acknowledged that the policy would burden its 

technicians, it stated that “the only exception at this time are those 

technicians that are currently attending classes and are enrolled in 

11 Id.

12 In its email announcing the policy, ADT stated that the bi-weekly 

schedule at the Syracuse branch “can change to weekly if needed with no 

additional notice.” Joint App. at 131. 

13 Id. at 130.
8 No. 20-1163-ag

higher education.”14 

The Union immediately objected to the new policy, demanded 

that ADT rescind it, and asserted that ADT violated the NLRA by 

failing to bargain with the Union before implementing the new 

schedule. Undeterred, ADT implemented the policy as planned, 

maintaining a mandatory six-day workweek for two to three months 

at its Albany branch and for one month at its Syracuse branch. During 

this time, ADT paid its employees overtime. It did not, however, seek 

volunteers before scheduling overtime shifts or, in the absence of 

sufficient volunteers, allocate shifts based on reverse seniority. 

Except for employees pursuing higher education, all service and 

installation technicians worked six-days per week as ordered.15

C. Prior Proceedings

Based on charges filed by the Union, the General Counsel for

the Board issued a complaint alleging, inter alia, that ADT violated 

Sections 8(a)(5) and (1) of the Act by implementing the six-day 

workweek unilaterally—that is, without affording the Union notice 

or an opportunity to bargain.16 On August 4, 2017, an administrative 

law judge issued a decision and recommended order finding that 

14 Id.

15 ADT made another exception for an employee with childcare 

obligations, a decision the Board concluded violated the NLRA provision 

prohibiting direct dealing. See ADT, LLC, 369 N.L.R.B. No. 31, 2020 WL 

996271, at *1, 8 (Feb. 27, 2020). That conclusion is not at issue in this petition 

for review. 

16 See id. at *1. Apart from this unilateral-change allegation, the General 

Counsel also asserted charges alleging that ADT modified the CBAs

without the Union’s consent, that ADT unreasonably delayed responding 

to information requested by the Union, and that ADT bypassed the Union 

when it exempted one Albany technician from the new schedule. Id. Only 

the General Counsel’s unilateral-change allegation is at issue in this appeal. 
9 No. 20-1163-ag

ADT violated the Act as alleged.17 ADT filed exceptions to the 

recommend order and, on February 27, 2020, the Board reversed.18 

Applying a newly adopted “contract coverage” standard, the Board 

held that ADT had no duty to bargain with the Union because the 

plain language of the CBAs granted ADT the right to impose the sixday workweek unilaterally.19

The Board’s analysis of the CBAs was brief. It explained that 

“Article 6, [S]ection 3 of the Agreements provided for payment of 

overtime wages for work performed ‘weekly in excess of forty (40) 

hours, or on scheduled days off,’” and that “Article 1, [S]ection 2 of 

the Agreements vested in [ADT] the exclusive right ‘to determine the 

reasonable amount . . . of work needed.’”20 “Read together,” it 

reasoned, “these provisions authorized [ADT] to determine the 

amount of work it needed the technicians to perform and to require 

its technicians to work in excess of 40 hours a week or on scheduled 

days off to accomplish that work.”21 Although the Board 

acknowledged that ADT had failed to seek volunteers prior to 

assigning overtime, it held that any violations of the scheduling 

provisions were immaterial because “performance of the work was 

compulsory.”22

The Union timely petitioned this court for review.

DISCUSSION

On appeal, the Union argues that the Board erred by dismissing 

its charges under Sections 8(a)(5) and (1) of the Act on the basis that 

17 Id.

18 Id.

19 See id. at *4.

20 Id. (emphasis added by the Board) (quoting the CBAs).

21 Id.

22 Id. at *4 n.9.
10 No. 20-1163-ag

the CBAs permitted ADT’s unilateral change to the schedule. It 

emphasizes that the management rights in Article 1, Section 2 are

subject to the express limitations on scheduling in Article 6, Section 1, 

and that the overtime provisions in Article 6, Section 3 address ADT’s 

obligations, not its rights. Because the CBAs expressly cabin ADT’s 

scheduling rights, the Union argues that ADT violated the Act by

failing to bargain before imposing the six-day workweek. 

We agree with the Union and therefore vacate the Board’s 

decision. 

I. Standard of Review

Our review of a Board’s unfair labor practice determination is 

limited.23 As to factual conclusions, we adopt the Board’s factual 

findings to the extent they are supported by substantial evidence.24 

We will reverse based upon a factual question only “if, after looking 

at the record as a whole, we are left with the impression that no 

rational trier of fact could reach the conclusion drawn by the Board.”25 

As to legal conclusions, “[t]he judicial role is narrow.”26 We defer to 

the Board’s interpretations of the NLRA—including with respect to 

the legal standard governing an unfair labor practice charge—as long 

as its interpretations are “rational and consistent with the Act.”27 

23 See Healthbridge Mgmt., LLC v. NLRB, 902 F.3d 37, 43 (2d Cir. 2018).

24 Id.

25 Katz’s Delicatessen, 80 F.3d at 763 (quoting NLRB v. Albany Steel, Inc., 

17 F.3d 564, 568 (2d Cir. 1994)). 

26 Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501 (1978).

27 Local Union 36, Int’l Bhd. of Elec. Workers v. NLRB, 706 F.3d 73, 82 (2d 

Cir. 2013) (quoting Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. 

NLRB, 501 U.S. 190, 201 (1991)); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. 

Council, Inc., 467 U.S. 837, 843–44 (1984) (requiring that, where Congress has 

delegated regulatory authority to an administrative agency, courts must 

defer to that agency’s reasonable construction of the statute it administers).
11 No. 20-1163-ag

We do not, however, defer to the Board’s interpretation of a 

contract, including a CBA.28 “Although the Board has occasion to 

interpret collective-bargaining agreements in the context of unfair 

labor practice adjudication, the Board is neither the sole nor the 

primary source of authority in such matters.”29 “[T]he interpretation 

of contracts falls under the special, if not unique, competence of 

courts,” so we afford no deference to the Board in its interpretation of 

the CBAs.30 

II. The Contract Coverage Standard

Congress enacted the NLRA to “redress the perceived 

imbalance of economic power between labor and management . . . by 

conferring certain affirmative rights on employees and by placing 

certain enumerated restrictions on the activities of employers.”31 

Section 7 of the Act grants employees certain rights, including the 

right “to bargain collectively through representatives of their own 

choosing.”32 Section 8(a)(1) prohibits employers from interfering 

with those rights, and Section 8(a)(5) specifically makes it an “unfair 

labor practice for an employer . . . to refuse to bargain collectively 

with the representatives of [its] employees.”33 As we recently 

explained in Healthbridge Management, LLC v. NLRB,34 an employer 

violates Section 8(a)(5) and, by extension, Section 8(a)(1) if it 

“discontinues an established policy, resulting in changes to its 

employees’ wages, hours, and other terms and conditions of 

28 Local Union 36, 706 F.3d at 82.

29 Litton, 501 U.S. at 202 (citation omitted). 

30 Local Union 36, 706 F.3d at 82. 

31 First Student, Inc. v. NLRA, 935 F.3d 604, 607 (D.C. Cir. 2019) (alteration 

in original) (quoting Am. Ship Bldg. Co. v. NLRB, 380 U.S. 300, 316 (1965)). 

32 29 U.S.C. § 157. 

33 Id. § 158(a)(5).

34 902 F.3d 37 (2d Cir. 2018).
12 No. 20-1163-ag

employment, without first notifying and bargaining with the 

employees’ collective bargaining representative.”35 An employer 

does not violate these sections, however, “if the collective-bargaining 

agreement . . . grant[s] the employer the right to take [the challenged 

action] unilaterally (i.e., without further bargaining with the 

union).”36

While these statutory principles are straightforward, we must 

still decide which interpretive method to apply when determining 

whether a CBA grants an employer the right to take an action 

unilaterally. This inquiry involves a question of law, so we defer to 

the Board as long as its approach is rational and consistent with the 

Act. 

For many years, the Board employed a “clear and unmistakable 

waiver” standard for determining whether a CBA permitted an 

employer’s unilateral change to an established policy.37 Under that 

standard, we asked whether the text of the CBA “unequivocally and 

specifically” permitted the employer’s action such that the union 

could be said to have “waived” its right to bargain the issue.38 If the 

CBA contained “sufficiently specific” language authorizing the 

employer’s action, the union’s charges under Sections 8(a)(5) and (1) 

35 Id. at 46 (alterations and internal quotation marks omitted); see also 

Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d 364, 373 (D.C. Cir. 2017) (“[A]n 

employer’s violation of [S]ection 8(a)(5)’s duty to bargain also violates 

[S]ection 8(a)(1).”). 

36 MV Transp. Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *1 (Sept. 10, 

2019).

37 See Local Union 36, 706 F.3d at 82 (quoting Fafnir Bearing Co. v. NLRB, 

362 F.2d 716, 722 (2d Cir. 1966)); see also Provena St. Joseph Med. Ctr., 350 

N.L.R.B. 808, 811 (2007) (describing the “clear and unmistakable waiver” 

standard). 

38 Provena St. Joseph Med. Ctr., 350 N.L.R.B. at 811. 
13 No. 20-1163-ag

would fail.39 But if the CBA was ambiguous, or if it failed to 

“specifically refer[] to the type of employer decision” at issue, there 

would be no clear and unmistakable waiver of the union’s right to 

bargain the issue and thus the union’s charges could proceed.40

Recently, however, the Board abandoned its “clear and 

unmistakable waiver” standard in favor of a “contract coverage” 

test.41 As the Board explained in MV Transportation, parties to a CBA 

have already bargained with respect to any matter “covered by” the 

contract.42 Thus, “where the employer acts pursuant to a claim of 

right under the parties’ agreement, the resolution of the refusal to 

bargain charge rests on an interpretation of the contract”—not on a 

“waiver” analysis.43 Because the question of waiver is irrelevant, the 

standard does not require a CBA to “specifically mention, refer to or 

address the employer decision at issue.”44 Instead, it calls on courts 

to “apply[] ordinary principles of contract interpretation,”45

recognizing that a CBA “establishes principles to govern a myriad of 

fact patterns” and “bargaining parties [cannot] anticipate every 

hypothetical grievance and . . . address it in their contract.”46 In short, 

39 Johnson-Bateman Co., 295 N.L.R.B. 180, 189 (1989); see also Allison Corp., 

330 N.L.R.B. 1363, 1365 (2000) (“[T]he Board looks to the precise wording 

of the relevant contract provisions in determining whether there has been a 

clear and unmistakable waiver.”). 

40 See U.S. Postal Serv. & Am. Postal Workers Union, AFL-CIO, 306 N.L.R.B. 

640, 643 (1992)). 

41 MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *1.

42 Id. at *11 (quoting NLRB v. U.S. Postal Serv., 8 F.3d 832, 836 (D.C. Cir. 

1993) (“[W]here the matter is covered by the collective bargaining 

agreement, the union has exercised its bargaining right and the question of 

waiver is irrelevant.”)). 

43 Postal Serv., 8 F.3d at 837.

44 MV Transp. Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *17. 

45 Id. at *2. 

46 Id. at *17 (alterations in original) (quoting Postal Serv., 8 F.3d at 838).
14 No. 20-1163-ag

the contract coverage standard asks only that we “examine the plain 

language of the collective-bargaining agreement to determine 

whether action taken by an employer was within the compass or 

scope of contractual language granting the employer the right to act 

unilaterally.”47

The Board’s opinion in MV Transportation is thorough and 

carefully reasoned. As the Board explained, the clear and 

unmistakable waiver standard tended to undermine contractual 

stability and alter the bargain reached by parties through 

negotiations.48 Moreover, by requiring the Board to deny the effect of

contract provisions that failed to meet the “exacting” requirements for 

a waiver,49 the standard often caused the Board to sit in judgment 

upon contract terms—a circumstance specifically prohibited by the 

Supreme Court in NLRB v. American National Insurance Co.50 The 

contract coverage standard obviates many of these deficiencies. Most 

importantly, it harmonizes the Board’s interpretive approach with 

ordinary principles of contract interpretation while preserving 

meaningful limits on unilateral employer action.51 For these reasons, 

we defer to the Board and adopt the contract coverage standard as 

rational and consistent with the Act.52

III. The Union’s Unilateral-Change Allegations

Applying the contract coverage standard, we believe that the 

plain language of the CBAs did not permit ADT’s unilateral decision 

47 Id. at *2. 

48 See id. at *6–8.

49 Id. at *6.

50 343 U.S. 395, 404 (1952) (“[T]he Board may not, either directly or 

indirectly, compel concessions or otherwise sit in judgment upon the 

substantive terms of collective bargaining agreements.”). 

51 MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *13, 15. 

52 See Litton, 501 U.S. at 201.
15 No. 20-1163-ag

to impose the six-day workweek. We conclude that the scheduling 

provisions in Article 6, Section 1 restricted ADT’s right to act 

unilaterally, and that the Board erred in construing other provisions 

of the CBAs to indicate otherwise. 

To begin, Article 6, Section 1 reflects bargained-for restrictions 

on technicians’ hours and work schedules. For technicians in the 

Service Department, it sets forth two alternative schedules: a

“normal” schedule of eight-hour shifts for “five consecutive days, 

Monday through Saturday” (the 5x8 Workweek), and an alternative 

schedule of ten-hour shifts over “a four-day workweek, . . . Monday 

through Friday” (the 4x10 Workweek).53 For technicians in the 

Installation Department, Article 6, Section 1 sets forth a single 

permissible schedule: employees in that department may be 

scheduled for “any eight-hour period between 7:00 a.m. and 5:30 p.m. 

in any given day between Monday and Friday.”54 Each provision of

the CBAs uses precise language to describe limited windows in which 

technicians may be scheduled.55 None of these schedules 

contemplates a six-day workweek, and nothing in either CBA grants 

ADT the right to impose a six-day schedule unilaterally. 

Moreover, while the CBAs allow ADT to deviate somewhat 

from the regular schedules, Article 6, Section 1 expressly restricts the 

ways in which it may do so. For technicians in the Service 

Department, Article 6, Section 1 states that “[c]ustomer needs may 

periodically make it necessary for work to be performed beginning at 

7:00 a.m.” rather than 8:00 a.m.56 For technicians in the Installation 

53 Joint App. at 138.

54 Id.

55 For technicians in the Service Department, this language is overtly 

mandatory. See id. (stating that the normal schedule “shall be” a 5x8 

Workweek and the alternative schedule “will . . . be” a 4x10 Workweek). 

56 Id.
16 No. 20-1163-ag

Department, it states that “[c]ustomer needs may periodically make 

it necessary for work to be performed on a second shift and/or 

Saturdays.”57 In either case, the CBAs specify a two-step procedure 

that ADT must follow before requiring the specific change in 

schedule. First, ADT must “seek qualified volunteers to perform such 

work.”58 Second, “[i]f there are no qualified volunteers,” it must 

assign the work to “the least senior qualified person.”59

ADT cannot justify its unilateral imposition of the six-day 

workweek under either of these exceptions. With respect to 

technicians in the Service Department, Article 6, Section 1 does 

nothing more than permit ADT to begin a technician’s schedule one 

hour early. It does not grant ADT the right to schedule work outside 

the 5x8 or 4x10 Workweeks described in the CBAs. With respect to 

technicians in the Installation Department, the plain language of the 

CBAs does allow ADT to impose an “additional shift,” including on 

a sixth day of the week. But it does not grant ADT unfettered 

discretion to schedule that shift. As the Board noted, ADT did not 

comply with the two-step procedure: it did not seek qualified 

volunteers and, failing sufficient volunteers, it did not assign unfilled 

shifts based on reverse seniority. Instead, ADT decided for itself 

which employees would be required to take additional shifts and

exempted all technicians pursuing higher education despite no basis 

in the CBAs for taking that approach.60 Thus, even if the CBAs could 

57 Id. As noted above, the Albany CBA contains a slight variation of this 

sentence. See id. at 161.

58 Id. at 138.

59 Id.

60 ADT and the Board claim that we lack jurisdiction to consider this fact

because the Union did not invoke it when arguing before the Board. We 

disagree. The Union preserved its argument that Article 6, Section 1 

controlled this case, and the jurisdictional provisions in 29 U.S.C. § 160(e) 
17 No. 20-1163-ag

have granted ADT the right to impose a six-day workweek on some 

technicians, it failed to meet the contractual prerequisites for doing so

unilaterally. 

The Board’s decision did not address the scheduling provisions 

in Article 6, Section 1. Instead, it focused on Article 6, Section 3, which 

requires ADT to pay overtime wages for work performed “weekly in 

excess of forty (40) hours, or on scheduled days off,”61 and on Article 

1, Section 2, which vests in ADT the exclusive right “to determine the 

reasonable amount . . . of work needed.”62 The Board concluded that, 

when read together, these provisions grant ADT broad rights to 

determine the appropriate “amount” of work and to schedule 

overtime as required to accomplish that work.63 This construction of 

the CBAs was error for at least two reasons. 

First, the Board’s interpretation failed to recognize that the 

management rights granted to ADT by Article 1, Section 2 are “subject 

. . . to the [remaining] provisions of the [A]greement[s],” including the 

scheduling provisions in Article 6, Section 1.64 Thus, while Article 1, 

Section 2 grants ADT broad rights to determine the “amount . . . of 

work” required, its authority to schedule that work is constrained by 

the specific provisions of Article 6, Section 1.65 As discussed, those 

provisions do not permit ADT to require a sixth day of work for 

technicians in the Service Department. And while they permit ADT 

to periodically assign Saturday shifts to technicians in the Installation 

do not prevent counsel from marshalling additional undisputed facts to 

support an argument raised below.

61 Joint App. at 138.

62 Id. at 134.

63 ADT, LLC, 369 N.L.R.B. No. 31, 2020 WL 996271, at *4.

64 Joint App. at 134.

65 Id. (emphasis added).
18 No. 20-1163-ag

Department, the CBAs still require compliance with the two-step 

procedure. 

Even without the express language stating that ADT’s 

management rights were “subject . . . to” the remaining provisions of 

the CBAs, a broadly worded management right ordinarily will not 

give an employer carte blanche to disregard specific limits on that 

authority.66 It is a well-recognized tenet of contract interpretation that 

“specific terms and exact terms are given greater weight than general 

language.”67 And it is well settled that courts should not adopt an 

interpretation that leaves a provision of a contract without force or 

effect.68 The Board’s interpretation does just that. It elevates general 

language to nullify specific contractual terms and renders 

meaningless the Union’s negotiation of four- or five-day workweeks, 

maximum workday hours, and limited exceptions to the agreed-upon 

schedules. We cannot endorse this interpretation.

Second, the Board’s interpretation mistakenly concluded that 

Article 6, Section 3 grants ADT a right to mandate overtime work. The 

overtime provisions do not grant rights to ADT. Instead, they simply 

impose a duty on ADT to pay overtime “at one and one-half (11⁄2) 

times the employee’s regular straight time hourly rate” whenever that 

employee works “in excess of eight (8) hours in a [5x8 Workweek], in 

excess of ten (10) hours in a [4x10 Workweek], or weekly in excess of 

66 See MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958 at *2 n.6

(“[I]f the agreement contains a matrix of progressive discipline for safety 

violations that must be followed, the general contractual right to revise 

existing policies would not privilege the employer to dispense with 

progressive discipline for safety violations.”).

67 Aramony v. United Way of Am., 254 F.3d 403, 413 (2d Cir. 2001) (quoting

Restatement (Second) of Contracts § 203(c) (1981)). 

68 See Kelly v. Honeywell, Int’l, Inc., 933 F.3d 173, 183 (2d Cir. 2019); LaSalle 

Bank Nat’l Ass’n v. Nomura Asset Cap. Corp., 424 F.3d 195, 206 (2d Cir. 2005). 
19 No. 20-1163-ag

forty (40) hours, or on scheduled days off.”69 In other words, the

overtime provisions guarantee that Union employees receive 

overtime compensation when they volunteer for additional work 

beyond their schedule. Whether viewed independently or in 

connection with the management-rights provisions, they do not grant 

ADT a right to mandate overtime on whatever schedule it desires.

Despite these two errors in the Board’s analysis, the Board and 

ADT advance additional arguments in this petition for review that 

they claim support the Board’s construction of the CBAs. They argue 

that the Union’s interpretation would leave the management-rights 

provisions without force and effect, that the scheduling provisions 

were not binding on ADT because they referred only to “normal” 

workweeks, and that it would have been a mere formality for ADT to 

comply with the two-step procedure. They further argue that the 

Union cannot press its unilateral change allegations because they 

collapse into its contract modification allegations, which are not the 

subject of this appeal. On each of these arguments, we are 

unpersuaded. 

First, ADT and the Board contend that the Union’s 

interpretation, not theirs, would render portions of the CBAs without 

force or effect. They argue that, by enforcing the scheduling 

provisions of Article 6, Section 1, we would “negate the purpose of 

the management-rights and overtime provisions that grant ADT the 

right to determine the ‘amount’ of work required and to assign 

overtime, including on regular days off.”70 This argument has it 

backwards because the Union’s construction gives effect to each 

provision of the CBAs. Once ADT exercises its exclusive right to 

determine the “amount” of work needed, it may direct the operations 

69 Joint App. at 138.

70 See Resp’t’s Br. 25.
20 No. 20-1163-ag

of the company in numerous ways, including by (1) requiring 

overtime in a manner consistent with the scheduling and overtime 

provisions, (2) soliciting volunteers to work additional overtime 

outside the scheduled hours, or (3) increasing the number of 

technicians it employs. ADT could also bargain with the Union to 

alter the scheduling provisions. Until then, however, Union

technicians retain their right to work within the range of their 

negotiated schedules.

Second, ADT and the Board contend that the scheduling 

provisions do not bind ADT because Article 6, Section 1 describes 

only “normal” work schedules for Union technicians. This argument 

is meritless. As discussed, Article 6, Section 1 uses specific and 

restrictive language when describing its technicians’ work schedules. 

The phrase “normal work schedule” appears only in the paragraph 

setting forth schedules for technicians in the Service Department and, 

when read in context, does nothing more than distinguish the 

“normal” 5x8 Workweek from the alternative 4x10 Workweek. The 

CBAs do not use the word “normal” when describing the work 

schedule for technicians in the Installation Department because the 

parties agreed to only one schedule for those employees. 

Third, ADT and the Board argue that it would have been a mere 

formality for ADT to comply with the two-step procedure by seeking 

volunteers before assigning Saturday shifts by reverse seniority. 

While they acknowledge that the two-step procedure was binding, 

they emphasize the Board’s finding that ADT “was in an ‘all hands 

on deck’ situation” such that “it was assigning overtime to all of the 

technicians, whether they would have volunteered or not.”71 But this 

argument amounts to little more than a futility defense to a breach of 

contract; it does not bear on whether the CBAs themselves permitted 

71 ADT, LLC, 369 N.L.R.B. No. 31, 2020 WL 996271, at * 5. 
21 No. 20-1163-ag

ADT to enact the policy unilaterally. And while we need not go 

further, we are not persuaded that the Board’s factual finding on this 

issue is supported by substantial evidence. The record shows that 

ADT did not assign work to “all of the technicians” because it 

exempted all employees enrolled in higher education.

Finally, ADT and the Board argue that we should reject the 

Union’s unilateral-change theory because its interpretation of the 

CBAs better reflects a contract-modification theory that the Union 

waived on appeal. As the Board has explained, there are analytical 

distinctions between unilateral-change cases and contractmodification cases. The issue in a unilateral-change case “is whether 

the contract privileges the [employer’s] conduct,” while the issue in a 

contract-modification case “is whether the contract forbade the 

[employer’s] conduct.”72 According to the Board, the Union argues 

“not that the contract did not privilege ADT’s action,” but rather “that 

the schedule provisions forbade the action and that ADT violated the 

contract by modifying it mid-term.”73 We are not convinced.

The distinction the Board draws—whether a contract 

“privileges” or “forbids” an employer’s action—is little more than 

semantic when the contract coverage standard applies. Under 

ordinary contract principles, contractual language that expressly or 

impliedly forbids a unilateral action plainly does not privilege it. The 

Board itself recognized this when adopting the contract coverage 

standard in MV Transportation. It observed that, “if an agreement 

contains a provision that broadly grants the employer the right to 

[take an action unilaterally], the employer would not violate Section 

8(a)(5) and (1) by unilaterally [taking that action] . . . [p]rovided, of 

72 Bath Iron Works Corp., 345 N.L.R.B. 499, 502 (2005). 

73 Resp’t’s Br. 28 (emphasis added). 
22 No. 20-1163-ag

course, that no other provision of the agreement limits the employer’s right 

of action.”74 

Moreover, we see no basis to dismiss the Union’s unilateralchange theory simply because the Union’s allegations are also 

consistent with a contract-modification theory. When an employer 

defends its failure to bargain by invoking a claim of right under a 

CBA, the analysis of a unilateral-change theory may overlap with the 

analysis of a contract-modification theory because both theories turn 

on ordinary principles of contract interpretation.75 And while the two 

theories offer different remedies,76 a union may choose which course 

to pursue. Here, the Union advanced both theories in the alternative 

when litigating before the Board, but it presses only its unilateralchange theory on this petition for review. Accordingly, we decide 

only that ADT violated the Act by refusing to bargain before imposing 

the six-day workweek in the manner we have described. We have no 

need to decide whether ADT also violated the Act by modifying the 

contract mid-term.

74 MV Transp., Inc., 368 N.L.R.B. No. 66, 2019 WL 4316958, at *2 & n.6 

(emphasis added); see also Healthbridge, 902 F.3d at 47–48 (finding that 

employer violated Section 8(a)(5) of the Act by failing to bargain before 

changing a condition of employment where the CBA addressed the issue 

and prohibited the employer from changing the condition unilaterally). 

75 See Pac. Mar. Ass’n v. NLRB, 967 F.3d 878, 891 (D.C. Cir. 2020)

(observing that the contract coverage analysis “overlap[s]” with the 

analysis governing a contract-modification claim).

76 In a unilateral-change case, the remedy is an order requiring the 

employer to bargain in good faith. Bath Iron Works, 345 N.L.R.B. at 501. If 

the negotiations reach an impasse, the employer’s duty to bargain further 

is temporarily suspended and the employer may change the terms and 

conditions of employment unilaterally. See Emhart Indus., Hartford Div. v. 

NLRB, 907 F.2d 372, 376 (2d Cir. 1990). In a contract modification case, the 

remedy is an order requiring the employer to honor the CBA as drafted.

Bath Iron Works, 345 N.L.R.B. at 501.
23 No. 20-1163-ag

* * *

In summary, we adopt the “contract coverage” test as the 

governing standard for determining whether a CBA permits an 

employer’s unilateral change to an established policy. Applying that 

test here, we find that (1) the CBAs did not grant ADT the right to 

unilaterally impose a mandatory six-day workweek on technicians in 

the Service Department at all, and (2) the CBAs did not grant ADT the 

right to unilaterally impose a mandatory six-day workweek on 

technicians in the Installation Department without complying with 

the two-step procedure. Accordingly, we conclude that ADT violated 

Sections 8(a)(5) and (1) of the Act by failing to bargain with the Union 

before implementing the change. 

CONCLUSION

For the foregoing reasons, we VACATE the Board’s decision

and REMAND for further proceedings consistent with this opinion.