United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 21, 2017 Decided May 19, 2017

No. 15-1318

WILKES-BARRE HOSPITAL COMPANY, LLC, DOING BUSINESS 

AS WILKES-BARRE GENERAL HOSPITAL,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

PENNSYLVANIA ASSOCIATION OF STAFF NURSES AND ALLIED 

PROFESSIONALS,

INTERVENOR

Consolidated with 15-1384

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Kaitlin Kaseta argued the cause for petitioner. With her 

on the briefs was Bryan T. Carmody. 

Kellie J. Isbell, Attorney, National Labor Relations Board, 

argued the cause for respondent. On the brief were Richard F. 

Griffin, Jr., General Counsel, John H. Ferguson, Associate 
2

General Counsel, Linda Dreeben, Deputy Associate General 

Counsel, Elizabeth Heaney, Supervisory Attorney, and 

Michael R. Hickson, Attorney.

Before: PILLARD, Circuit Judge, and EDWARDS and 

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

SENTELLE, Senior Circuit Judge: Petitioner Wilkes-Barre 

Hospital Company, LLC d/b/a Wilkes-Barre General Hospital 

(the “Hospital”) petitions for review of the National Labor 

Relations Board’s (“NLRB” or the “Board”) decision and order 

finding that the Hospital violated section 8(a)(1) and (a)(5) of 

the National Labor Relations Act (the “Act”), 29 U.S.C. 

§ 158(a)(1), (5), by unilaterally ceasing the payment of 

longevity-based wage increases to its nurses after the 

expiration of the parties’ collective bargaining agreement. See

generally Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 

(1991); NLRB v. Katz, 369 U.S. 736 (1962). The NLRB 

cross-applies for enforcement of its decision and order. The 

Hospital argues that the language of the agreement and the 

parties’ shared understanding of that language demonstrate that 

the Hospital was not obligated to continue paying 

longevity-based increases upon expiration of the agreement. 

Relying on NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), the 

Hospital also challenges the NLRB Regional Director’s 

authority to issue and prosecute the underlying complaint

against the Hospital. For the reasons set forth below, we deny 

the Hospital’s petition for review and grant the NLRB’s 

cross-application for enforcement.
3

I.

The Collective Bargaining Agreements

Petitioner operates an acute care facility in Wilkes-Barre, 

Pennsylvania. The Hospital’s full-time and part-time graduate 

and registered nurses are represented by the Pennsylvania 

Association of Staff Nurses and Allied Professionals, 

AFL-CIO (the “Union”). The Union is the exclusive collective 

bargaining representative for a bargaining unit of

approximately 450 of the Hospital’s nurses.

In or around May 2009, the Union negotiated with the new 

owner of the Hospital a memorandum of agreement that served 

as the parties’ collective bargaining agreement through June 

30, 2009 (“2009 CBA”). The 2009 CBA incorporated by 

reference certain terms of the prior collective bargaining 

agreement between the Hospital’s former owner and the Union 

(“2005 CBA”), including Article 25, which provided nurses 

with annual across-the-board raises and longevity-based wage 

increases. After the 2009 CBA expired on July 1, 2009, the 

parties began negotiations but did not reach a successor 

collective bargaining agreement until April 30, 2011 (“2011 

CBA”). Accordingly, the parties were without a collective 

bargaining agreement from July 1, 2009, to April 30, 2011. No 

wage increases, including the longevity-based increases, were 

paid to the nurses in January 2010 or January 2011.

In response to the Hospital’s failure to pay longevity-based 

increases in January 2010, the Union filed an unfair labor 

practice charge with the NLRB’s Regional Office. The 

NLRB’s Regional Director dismissed the charge and the 

General Counsel upheld the dismissal. The Union did not file 

an unfair labor practice charge in connection with the 
4

Hospital’s failure to pay longevity-based increases in January 

2011. 

The 2011 CBA became effective on April 30, 2011, and 

expired on April 30, 2013. The new CBA, like the 2009 CBA, 

provides that a nurse’s minimum base hourly rate would be 

determined by his/her experience level. The seven experience 

levels were grouped as follows: 0-2 years; 3-4 years; 5-9 years; 

10-14 years; 15-19 years; 20-24 years; and 25+ years. Similar 

to the 2005 CBA and the 2009 CBA, Article 25 and Appendix 

A of the 2011 CBA provide for two types of wage increases: 

across-the-board raises and longevity-based increases.

Sections 1 through 3 of Article 25 describe the 

across-the-board raises, which were provided to nurses on three 

dates certain. After the 2011 CBA became effective on April 

30, 2011, nurses received a catch-up increase in their base 

hourly rate in May 2011. Nurses then received a 2.75% 

increase in base hourly rate on January 27, 2012, and a further 

2.00% increase on January 27, 2013.

Sections 4 and 5 of Article 25 provide for the 

longevity-based increases. Section 4 explains that wage 

minimums were “based upon the employee’s length of 

continuous service as a registered nurse,” and Section 5 states 

that longevity-based increases were to be paid on “January 27th 

of the year following the employee’s anniversary date.” Nurses 

received longevity-based increases as they advanced from one 

experience level to the next (e.g., 0-2 years level to 3-4 years 

level), resulting in an increase in their hourly pay rate the 

following January 27th.

The initial wage scale and the subsequent increases during 

the term of the 2011 CBA were set forth in Appendix A in the 
5

following chart showing minimum hourly wage rates for nurses 

in the seven experience levels:

“Reading across, the chart shows the three annual 

across-the-board raises; reading down, the chart shows the 

longevity-based wage increases.” Wilkes-Barre Hosp. Co., 

362 N.L.R.B. No. 148, at *4 (July 14, 2015).

The Hospital’s Failure to Pay Longevity-Based 

Increases in 2014

The parties began negotiations for a successor collective 

bargaining agreement in February 2013. The 2011 CBA 

expired on April 30, 2013, and the parties bargained without 

impasse through July 2014. Following the expiration of the 

2011 CBA, the Hospital did not pay any wage increases in 

January 2014. The Hospital does not dispute that it neither 

gave the Union prior notice of its intention to cease paying

longevity-based increases in 2014 nor afforded the Union the 

opportunity to bargain over that decision. 

 
6

The Union filed charges with the NLRB’s Regional 

Director, including its contention that the Hospital’s failure to 

pay longevity-based increases in January 2014 violated section

8(a)(1) and (a)(5) of the Act. The Union did not assert that the 

nurses were entitled to additional across-the-board raises. The 

General Counsel, through Dennis P. Walsh, the Regional 

Director of Region 4, issued a consolidated complaint on April 

23, 2014.

The Board Proceedings and Order

An administrative law judge considered charges that the 

Hospital violated section 8(a)(1) and (a)(5) by ceasing to pay

longevity-based increases to nurses in January 2014. See 

Wilkes-Barre Hosp. Co., Case 04-CA-123748, 2014 WL 

6386518 (Nov. 17, 2014). The complaint charged that, under

the rule first articulated in NLRB v. Katz, 369 U.S. 736 (1962), 

when the 2011 CBA expired, the Hospital had a statutory 

obligation to maintain the status quo as to its nurses’ terms and 

conditions of employment. See, e.g., Honeywell Int’l, Inc. v. 

NLRB, 253 F.3d 125, 127, 131 (D.C. Cir. 2001). The Hospital 

argued that, within the status quo, the longevity-based 

increases operated in tandem with the across-the-board raises. 

The Hospital further argued that the evidence established that 

past practice permitted it to pretermit the payment of the 

longevity-based increases after the expiration of the CBA.

The ALJ accepted the General Counsel’s position that the 

across-the-board raises and the longevity-based increases were 

“distinct rights” that did not “go hand-in-hand” and found it

“quite simple” for the Hospital to apply “the terms that already 

existed in the contract and grant[] hourly wage rate increases 

as specified in appendix A” after the agreement’s expiration. 

She therefore concluded that the Hospital violated its statutory 
7

duty to bargain by failing to pay longevity-based increases in 

January 2014.

She explained that the 2011 CBA did not include language

either “specifically limiting the applicability of” the

longevity-based increases to the term of the agreement or 

clearly and unmistakably waiving the nurses’ statutory right to 

receive those increases. Thus, the ALJ held, the 

longevity-based increase provision “continue[d] in effect” after 

the agreement’s expiration. She also rejected the Hospital’s 

past practice argument, finding that the evidence did not 

establish that the parties had a longstanding practice of the 

Hospital’s unilateral changes going unchallenged by the 

Union.

The Hospital also moved to dismiss on the ground that 

Director Walsh had been improperly appointed by an 

unconstitutionally constituted Board and therefore did not have 

the authority to issue the complaint upon which the proceeding 

was held. The ALJ denied this motion, citing the record fact 

that a later, lawfully constituted Board had ratified the 

Director’s appointment. The NLRB summarily affirmed the 

ALJ’s rulings, findings, and conclusions, and adopted her 

recommended order with slight modifications. Wilkes-Barre 

Hosp., 362 N.L.R.B. No. 148, at *1.

The Hospital timely filed the present petition for review,

and the NLRB filed a cross-application for enforcement. We 

have jurisdiction pursuant to 29 U.S.C. § 160(e), (f). 

II.

Before considering the merits of the Board’s order, we 

must address the threshold question raised by the Hospital’s 

motion to dismiss. The Hospital argues that all the acts of 
8

Regional Director Walsh were ultra vires, as his appointment 

was invalid. The NLRB had appointed him as Regional 

Director on March 10, 2013. In NLRB v. Noel Canning, 134 S. 

Ct. 2550 (2014), the Supreme Court invalidated the recess 

appointments of three of the Board’s five members. As a result, 

the Board lacked a valid quorum between January 2012 and 

August 2013. Therefore, argues the Hospital, Walsh had no 

authority to issue the complaints against it. See ManorCare of 

Kingston PA, LLC v. NLRB, 823 F.3d 81, 89 (D.C. Cir. 2016); 

Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 596 

& n.1 (3d Cir. 2016). 

While the Hospital’s argument is correct in its basic 

assumptions, events have overtaken it since the initial 

invalidity of Walsh’s appointment and his unlawful issuance of 

complaints. After the period of invalid Board operation 

recognized in Noel Canning, the President made valid 

appointments to create a quorum on the Board. The 

reconstituted Board ratified the appointment of Walsh as 

Director, among many other actions. Walsh, as Director, 

thereafter ratified his own prior invalid actions. Because both 

the Board and Director Walsh ratified the actions taken during 

the period in which the Board lacked a valid quorum, we 

conclude that the Hospital’s motion was properly denied.

In general, “[r]atification occurs when a principal 

sanctions the prior actions of its purported agent.” Doolin Sec. 

Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 

212 (D.C. Cir. 1998), superseded by statute on other grounds, 

Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, 

122 Stat. 2681 (1998), as recognized in SW Gen., Inc. v. NLRB, 

796 F.3d 67, 70–71 (D.C. Cir. 2015), aff’d 137 S. Ct. 929 

(2017). Our precedents establish that ratification can remedy a 

defect arising from the decision of “an improperly appointed 

official . . . when . . . . a properly appointed official has the 
9

power to conduct an independent evaluation of the merits and 

does so.” See Intercollegiate Broad. Sys., Inc. v. Copyright 

Royalty Bd., 796 F.3d 111, 117–21, 124 (D.C. Cir. 2015)

(citing Doolin Sec., 139 F.3d at 213–14; FEC v. Legi-Tech, 75 

F.3d 704, 708–09 (D.C. Cir. 1996)). Relevant to this case, we 

previously suggested that “a properly constituted Board” could 

ratify the decisions of an improperly constituted Board. See 

Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 

469, 476 (D.C. Cir. 2009); see also Allied Aviation Serv. Co. of 

N.J. v. NLRB, ___ F.3d ___, 2017 WL 1379517, at *6 (D.C. 

Cir. 2017). 

On July 18, 2014, after the Supreme Court’s decision in 

Noel Canning, all five members of a properly constituted Board 

adopted and ratified “all administrative, personnel, and 

procurement matters approved by the Board or taken by or on 

behalf of the Board between January 4, 2012, and August 5, 

2013,” inclusive. Wilkes-Barre Hosp., 362 N.L.R.B. No. 148, 

at *5. The Board expressly authorized Director Walsh’s 

appointment, and Director Walsh affirmed and ratified his own 

actions in a separate order on July 30, 2014.

After considering relevant materials, the properly 

constituted Board expressly ratified its appointment of Director 

Walsh as a Regional Director. The Hospital presents no 

evidence to suggest that the Board failed “to conduct an 

independent evaluation of the merits,” Intercollegiate Broad., 

796 F.3d at 117, or make “a detached and considered 

judgment,” Doolin Sec., 139 F.3d at 213, when it ratified 

Director Walsh’s appointment. The Hospital argues that the 

Board’s ratification was an improper attempt to “insulate the 

Board from the invalidity of the original appointments and the 

actions taken thereunder.” This argument fails. Ratification 

can remedy defects arising from the decisions of improperly 

appointed officials. See, e.g., Intercollegiate Broad., 796 F.3d 
10

at 117–18. Therefore, the properly constituted Board’s 

ratification remedied any defect arising from the quorum 

violation. 

Because he acted as “both the principal and the agent,” the 

propriety of Director Walsh’s ratification of his own actions

presents a more difficult question. See Advanced Disposal, 820 

F.3d at 602–03. After considering the applicable law and the 

facts of this case, we conclude that Director Walsh’s 

ratification was sufficient to remedy the defect. As an initial 

matter, we note that the only evidence presented by the 

Hospital on the invalidity of Director Walsh’s ratification is a 

memorandum from the Board’s Office of Inspector General 

concluding that probable cause existed to find that Director 

Walsh violated the Standards of Ethical Conduct for 

Employees of the Executive Branch by participating in certain 

prohibited fundraising activities. As the violation is unrelated 

to the Hospital or Director Walsh’s issuance of complaints 

during the period in which the Board lacked a quorum, we fail 

to see the relevancy of this information to the question 

presented in this case. 

The Hospital’s primary argument is that Director Walsh’s 

“self-ratification” was improper because “human nature” 

makes it impossible for an individual to be disinterested in his 

own prior decision-making. Although we have not been 

confronted with this precise situation, our precedents shed 

some light on the question. In Doolin Security, for example,

we applied our ratification precedents even though the situation 

was “not easily characterized as between a principal . . . and an 

agent.” See 139 F.3d at 213–14. We further explained in 

Legi-Tech that, “given human nature,” forcing a properly 

appointed official to start at the beginning of the process does 

not necessarily promise a “more detached and ‘pure’ 

consideration of the merits of the case . . . .” 75 F.3d at 709. 
11

We note that other circuits have held that ratification can 

be effective even where the same party is both the agent and 

the principal. In Advanced Disposal, the Third Circuit 

considered the question in a context so directly parallel to the 

present case that the same Director Walsh was the 

agent/principal in both. See 820 F.3d at 602–03. Citing our 

decision in Doolin Security, and analyzing the question that 

lingers, the Third Circuit ruled that Director Walsh’s filing of 

a complaint necessarily affirmed the validity of his earlier 

action. Id. at 605.

Similarly, in CFPB v. Gordon, 819 F.3d 1179 (9th Cir. 

2016), the Ninth Circuit considered the effect of the CFPB 

Director’s ratification of his own prior invalid actions. See id. 

at 1185–86, 1190–91. The Director, like the NLRB in the case 

before us, was serving under an unconstitutional recess 

appointment at the time he made the initial actions. That 

circuit, relying on our decision in Legi-Tech, concluded that 

“even if the subsequent . . . ‘review’ was ‘nothing more than a 

rubberstamp,’” it “resolve[d] any Appointments Clause 

deficiencies.” See id. at 1191–92 (quoting Legi-Tech, 75 F.3d 

at 709); see also Intercollegiate Broad., 796 F.3d at 118 & n.1 

(suggesting that ratification may be sufficient even if the 

subsequent decision rubberstamped the previous decision). 

In this case, the Hospital presented no evidence suggesting 

that Director Walsh failed to make a detached and considered 

judgment or that he was “actually biased” against the Hospital. 

Legi-Tech, 75 F.3d at 709. It also appears that forcing Director 

Walsh to reissue the complaint in this case would likely “do 

nothing but give the [Hospital] the benefit of delay.” See 

Doolin Sec., 139 F.3d at 214. We also note that the Hospital 

has failed to assert any “continuing prejudice” from the 

violation. See Legi-Tech, 75 F.3d at 708–09. Consistent with 
12

precedent, we conclude that “the better course” is to take his 

ratification “at face value and treat it as an adequate remedy.” 

Id. at 709. In short, the bare fact that Director Walsh ratified 

his own actions, without more, does not make his ratification 

insufficient. In any event, it is the General Counsel who has 

final authority over the issuance of complaints, see 29 U.S.C. 

§ 153(d), and Director Walsh was acting on behalf of General 

Counsel Richard Griffin, who had been duly confirmed when 

the complaint against the Hospital issued on April 23, 2014. 

We conclude that Director Walsh’s ratification of his own 

action remedied the defect in his original issuance of the 

complaint. We therefore proceed to review the merits of the 

petition.

III.

A.

Our review of the Board’s unfair labor practice 

determination is limited. Brewers & Maltsters, Local Union 

No. 6 v. NLRB, 414 F.3d 36, 42 (D.C. Cir. 2005). “We . . . must

sustain the Board’s decision unless, reviewing the record as a 

whole, it appears that the Board’s factual findings are not 

supported by substantial evidence, or that the Board acted 

arbitrarily or otherwise erred in applying established law to the 

facts at issue.” S. Nuclear Operating Co. v. NLRB, 524 F.3d 

1350, 1355 (D.C. Cir. 2008) (citation and internal quotation 

marks omitted). We also defer to the Board’s reasonable 

construction of section 8(a)(5) and (d), 29 U.S.C. § 158(a)(5), 

(d). See Brewers & Maltsters, 414 F.3d at 41–42. 

While the Board has authority to interpret collective 

bargaining agreements to resolve unfair labor practice charges, 

NLRB v. U.S. Postal Serv., 8 F.3d 832, 837 (D.C. Cir. 1993),

we owe “no deference to the Board’s interpretation of a 
13

disputed collective bargaining agreement,” Commonwealth 

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

Federal courts, not the Board, are the primary source of 

authority in interpreting collective bargaining agreements. 

Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 202–03 

(1991); Enloe Med. Ctr. v. NLRB, 433 F.3d 834, 837–38 (D.C. 

Cir. 2005); see also Chicago Tribune Co. v. NLRB, 974 F.2d 

933, 937–38 (7th Cir. 1992) (“The Board is not an expert in 

contract interpretation.”). We therefore interpret the 2011 

CBA de novo. See Postal Serv., 8 F.3d at 837. When 

interpreting a collective bargaining agreement, we generally 

apply “ordinary principles of contract law.” M&G Polymers 

USA, LLC v. Tackett, 135 S. Ct. 926, 933 (2015). 

 

B.

The Unilateral Change Doctrine

“Section[] 8(a)(5) and 8(d) of the [Act] require parties in a 

collective bargaining relationship to negotiate in good faith 

over ‘wages, hours, and other terms and conditions of 

employment.’” Daily News of L.A. v. NLRB, 73 F.3d 406, 410 

(D.C. Cir. 1996) (quoting 29 U.S.C. § 158(d)); see also 29

U.S.C. § 158(a)(5). Section 8(a)(1) makes it an unfair labor 

practice for an employer to interfere with its employees’ 

exercise of their rights under the Act. 29 U.S.C. § 158(a)(1). 

Thus, an employer’s violation of section 8(a)(5)’s duty to 

bargain also violates section 8(a)(1). Enter. Leasing Co. of Fla. 

v. NLRB, 831 F.3d 534, 546 (D.C. Cir. 2016).

 

“The Board has taken the position that it is difficult to 

bargain if, during negotiations, an employer is free to alter the 

very terms and conditions that are the subject of those 

negotiations.” Litton Fin., 501 U.S. at 198. Indeed, the 

Supreme Court has equated an employer’s unilateral change to 
14

terms and conditions of employment to “a flat refusal” to 

bargain. NLRB v. Katz, 369 U.S. 736, 743 (1962). 

Accordingly, absent impasse or waiver, an employer violates

both section 8(a)(1) and (a)(5) by unilaterally changing terms 

and conditions of employment. Honeywell Int’l, Inc. v. NLRB, 

253 F.3d 125, 127, 131 (D.C. Cir. 2001) (citing Litton Fin., 501 

U.S. 190; Katz, 369 U.S. 736). This “unilateral change 

doctrine” extends to cases “where, as here, an existing 

agreement has expired and negotiations on a new one have yet 

to be completed.” Id. at 127–28 (quoting Litton Fin., 501 U.S. 

at 198); see also More Truck Lines, Inc. v. NLRB, 324 F.3d 735, 

738–39 (D.C. Cir. 2003); Sw. Steel & Supply, Inc. v. NLRB, 

806 F.2d 1111, 1113 (D.C. Cir. 1986).

 

Status Quo under the 2011 CBA

To avoid running afoul of the unilateral change doctrine, 

an employer must maintain the status quo as to terms and 

conditions of employment after the expiration of a collective 

bargaining agreement. See Laborers Health & Welfare Trust 

Fund for N. Cal. v. Advanced Lightweight Concrete Co., 484 

U.S. 539, 543–44 nn.5–6 (1988). The primary dispute in this 

case concerns the proper determination of the post-expiration 

status quo. Because an employer’s obligation to maintain the 

status quo derives from the Act, not from the agreement, see 

More Truck Lines, 324 F.3d at 738-39; Honeywell Int’l, 253 

F.3d at 128, 131, certain terms of an expired agreement extend 

beyond the agreement’s expiration and continue to “define the 

status quo,” Litton Fin., 501 U.S. at 206 (emphasis omitted). 

Otherwise put, the unilateral change doctrine requires

employers “to honor the terms and conditions of an expired 

collective-bargaining agreement.” Laborers Health & Welfare 

Trust Fund, 484 U.S. at 544 n.6. In defining the post-expiration 

status quo in this case, therefore, we look to the substantive 

terms of the 2011 CBA. See NLRB v. Cauthorne, 691 F.2d 
15

1023, 1025 (D.C. Cir. 1982); E.I. Du Pont De Nemours, 364 

N.L.R.B. No. 113, at *5 (Aug. 26, 2016); see also 

Intermountain Rural Elec. Ass’n v. NLRB, 984 F.2d 1562, 1567 

(10th Cir. 1993) (noting that “the contract language itself . . . 

defines the [post-expiration] status quo”). 

In considering an unfair labor practice charge premised on 

the unilateral change doctrine, “the relevant inquiry . . . is 

whether any established employment term on a mandatory 

subject of bargaining has been unilaterally changed.” Daily 

News, 73 F.3d at 411. In this case, the longevity-based wage 

increase provision was a mandatory subject of bargaining, see

29 U.S.C. § 158(d); More Truck Lines, 324 F.3d at 738–39, and

an established term of the 2011 CBA that survived the 

agreement’s expiration. It is undisputed that the parties did not 

bargain to lawful impasse and that the Hospital did not notify 

the Union of its intention to cease paying longevity-based 

increases. Accordingly, upon expiration of the 2011 CBA, the 

Hospital was obligated to continue paying longevity-based 

increases absent lawful impasse or a new agreement with the 

Union. See Honeywell Int’l, 253 F.3d at 127–28, 131–32.

The Hospital counters that the longevity-based increases 

were paid “exclusively in conjunction with” the 

across-the-board raises, which were expressly limited to the 

term of the agreement and thus cannot define the 

post-expiration status quo. The Hospital argues that during the 

term of the agreement, nurses were given a single wage rate 

increase on each of three specific dates consisting of a

combination of an across-the-board raise and a longevity-based 

increase, if applicable. According to the Hospital, therefore, 

cessation of all wage increases represents the post-expiration 

status quo. The Hospital’s argument misses the mark. 
16

In essence, the Hospital seeks to define the status quo by 

taking a snapshot of each individual nurse’s pay rate at the 

moment the 2011 CBA expired. But the terms of the expired 

agreement define the post-expiration status quo, see, e.g., 

Litton Fin., 501 U.S. at 206; Sw. Steel, 806 F.2d at 1113, not 

each individual employee’s circumstance at the time of 

expiration, see Daily News, 73 F.3d at 409, 412–13 (stating that 

employer must continue merit-increase program after the 

agreement’s expiration even though the increases were 

“discretionary as to the precise amount”). 

The 2011 CBA, through its language and structure, 

establishes two distinct types of wage increases: 

across-the-board raises and longevity-based increases. 

Sections 1, 2, and 3 of Article 25 set forth the across-the-board 

raises. These raises resulted in a percentage increase in each 

nurse’s base minimum hourly rate and were provided to all of 

the Hospital’s nurses on three specific dates during the term of 

the agreement. Sections 4 and 5 of Article 25 provide for the 

longevity-based increases, which were paid to individual 

nurses who advanced from one experience level to the next. 

The longevity-based increases, unlike the across-the-board 

raises, were tied to an individual nurse’s anniversary date, not 

to the term of the agreement. Specifically, the agreement states 

that longevity-based increases were to be paid on “January 27th 

of the year following the employee’s anniversary date.” Thus, 

as the Board held, the across-the-board raises and 

longevity-based increases were “distinct rights,” and nurses 

had a continued “right to wage rate increases when they 

advanced to the next experience level.” Wilkes-Barre Hosp., 

362 N.L.R.B. No. 148, at *7.

 

The Hospital argues that the chart in Appendix A 

illustrates the interplay between the two wage increases, 

asserting that the chart combines the five wage sections in 
17

Article 25 “into one, singular wage increase table.” Appendix 

A, however, does not support the Hospital’s contention. As the 

Board explained: “Reading across, the chart shows the three 

annual across-the-board raises; reading down, the chart shows 

the longevity-based wage increases.” Id. at *4. It is undisputed 

that the wage rates included in the chart froze at the January 

2013 levels upon the agreement’s expiration, meaning that 

nurses were not entitled to an across-the-board raise in their 

base minimum hourly rates in January 2014. Although the 

wage rates froze, each individual nurse could still move up the 

steps of the chart based on his/her experience level until a new

agreement or lawful impasse was reached. Appendix A 

therefore reflected the nurses’ ongoing right to receive 

post-expiration longevity-based increases, as set forth in 

Sections 4 and 5 of Article 25. We agree with the Board that

when a nurse reached one of the milestone work anniversaries,

“the longevity-based scale at appendix A” can easily be applied 

without any “concomitant across-the-board raises.” Id. at *7.

The Hospital also directs our attention to the language 

accompanying the chart, which explains that the wage scale 

and subsequent wage increases set forth in the 2011 CBA 

applied “[d]uring the term of th[e] Agreement.” This 

durational clause, the Hospital argues, removed any 

uncertainty as to whether longevity-based increases survived 

the 2011 CBA’s expiration. But the durational clause in 

Appendix A speaks to the nurses’ contractual rights, not to their 

statutory rights. See, e.g., Litton Fin., 501 U.S. at 207 (noting 

“the distinction between contractual obligations and 

postexpiration terms imposed by the [Act]”). Without more, 

such a general durational clause cannot defeat the unilateral 

change doctrine. See Honeywell Int’l, 253 F.3d at 128, 132–

33.
18

The Hospital makes a secondary argument based on the 

past practice of the parties to the 2011 CBA. An employer may

implement unilateral changes to terms and conditions of 

employment when such changes are in line with its 

longstanding practice. See E.I. Du Pont De Nemours & Co. v. 

NLRB, 682 F.3d 65, 67–70 (D.C. Cir. 2012); Int’l Bhd. of Elec. 

Workers Local 1466 v. NLRB, 795 F.2d 150, 153 (D.C. Cir. 

1986). Rather than constitute an unlawful unilateral change, an 

action taken pursuant to an established practice actually 

preserves the status quo. See Katz, 369 U.S. at 746; E.I. Du 

Pont, 682 F.3d at 67–68; see also Aaron Bros. Co. v. NLRB, 

661 F.2d 750, 753 (9th Cir. 1981) (“Wage changes that merely 

reflect continuations of past company policy are not considered 

changes in existing work conditions, and thus fall outside the 

Katz rule.”). To support its past practice argument, the 

Hospital points to the Union’s failure to file an unfair labor 

practice charge in connection with the Hospital’s non-payment 

of longevity-based increases in January 2011, after the 

expiration of the 2009 CBA. But a union’s one-time failure to 

challenge an employer’s unilateral change does not qualify as 

an established practice. See Brewers & Maltsters, 414 F.3d at 

45. 

In conclusion, the terms of the 2011 CBA establish that the 

payment of longevity-based increases represents the 

post-expiration status quo between the Hospital and the Union. 

The Contract Coverage Doctrine and Waiver

Having concluded that the Act “does not shield” the 

Hospital’s unilateral decision to cease payment of 

longevity-based increases, we turn to the Hospital’s argument 

that the Union “surrendered the[] right to bargain over the . . . 

change[] through either waiver or contract.” S. Nuclear 

Operating, 524 F.3d at 1357. First, invoking the “contract 
19

coverage doctrine,” the Hospital asserts that the parties agreed 

in the 2011 CBA that the payment of all wage increases would 

cease upon the expiration of the agreement. Second, the 

Hospital contends that it demonstrated that the Union clearly 

and unmistakably waived the nurses’ right to post-expiration 

longevity-based increases. We reject both arguments. 

There are important distinctions between the contract 

coverage doctrine and waiver—a point we have repeatedly 

stressed. See generally Heartland Plymouth Court MI, LLC v. 

NLRB, 838 F.3d 16 (D.C. Cir. 2016). Because “the question of 

contractual coverage, one of contractual interpretation, is 

antecedent to the waiver question,” id. at 19 n.1, we first 

consider whether the Hospital’s decision to cease paying 

longevity-based increases was covered by the 2011 CBA. 

 

The duty to bargain does not prevent a union from

“exercis[ing] its right to bargain about a particular subject by 

negotiating for a provision in a collective bargaining contract 

that fixes the parties’ rights and forecloses further mandatory 

bargaining as to that subject.” Postal Serv., 8 F.3d at 836

(quoting Local Union No. 47, Int’l Bhd. of Elec. Workers v. 

NLRB, 927 F.2d 635, 640 (D.C. Cir. 1991)); see also S. Nuclear 

Operating, 524 F.3d at 1358. Thus, pursuant to the contract 

coverage doctrine, an employer is “free to make unilateral 

changes . . . without running afoul of the Act” when those 

changes are “covered by the collective bargaining agreement.” 

Enter. Leasing, 831 F.3d at 547 (citations and internal 

quotation marks omitted). 

A dispute regarding a subject that is “covered by” a 

collective bargaining agreement presents “an issue of contract 

interpretation,” Bath Marine Draftsmen’s Ass’n v. NLRB, 475 

F.3d 14, 23 (1st Cir. 2007) (citing Postal Serv., 8 F.3d at 836–

37), and when parties negotiate for a contractual provision 
20

limiting the union’s statutory rights, “we will give full effect to 

the plain meaning of such provision,” Local Union No. 47, 927 

F.2d at 641; see also Postal Serv., 8 F.3d at 836 (“[T]he courts 

are bound to enforce lawful labor agreements as written . . . .”). 

Importantly, a subject may be covered by an agreement even if 

the agreement does not clearly and unmistakably address that 

particular subject. See Enloe Med., 433 F.3d at 837–38; Postal 

Serv., 8 F.3d at 838; Connors v. Link Coal Co., 970 F.2d 902, 

906 (D.C. Cir. 1992); Local Union No. 47, 927 F.2d at 641. 

Accordingly, in analyzing whether the Hospital’s decision to 

cease paying longevity-based increases upon the expiration of 

the 2011 CBA was covered by that agreement, we consider 

whether that subject was “within the compass of” the terms of 

the agreement. Postal Serv., 8 F.3d at 838.

We begin by noting that the Board improperly collapsed 

the contract coverage and waiver questions. The Board found 

that the 2011 CBA did not “specifically limit[]” the 

applicability of the longevity-based increases to the 

agreement’s term or clearly and unmistakably waive the 

Union’s statutory rights. Wilkes-Barre Hosp., 362 N.L.R.B. 

No. 148, at *6. In determining whether an employer’s 

unilateral decision is covered by a collective bargaining 

agreement, we consistently have rejected the Board’s attempts 

to require the agreement to “specifically mention,” Enloe Med., 

433 F.3d at 839, “specifically refer[]” to, Postal Serv., 8 F.3d 

at 838, or “specifically address,” Connors, 970 F.2d at 906, that 

decision. As we previously explained, the Board’s approach 

fails to recognize that “bargaining parties [cannot] anticipate

every hypothetical grievance and purport to address it in their 

contract,” Postal Serv., 8 F.3d at 838, and “imposes an 

artificially high burden on an employer,” Enloe Med., 433 F.3d 

at 837. 

 
21

Nevertheless, after reviewing the terms of the 2011 CBA, 

we conclude that the Hospital’s decision to cease paying 

longevity-based increases after the agreement’s expiration is 

not covered by the agreement. The Hospital argues that,

because the 2011 CBA expressly limited the across-the-board 

raises to the term of the agreement, the agreement necessarily

limited the Hospital’s statutory obligation to pay 

longevity-based increases to the term of the agreement as well. 

As explained above, however, the across-the-board raises and 

the longevity-based increases are distinct rights that operate 

independently of each other. And unlike the across-the-board 

raises, the longevity-based increases were “not limited to a time 

certain.” See Honeywell Int’l, 253 F.3d at 128, 132–33. The 

durational clause in Appendix A, which stated that the initial 

wage scale and subsequent wage increases applied “[d]uring 

the term of th[e] Agreement,” does not change this conclusion. 

Because the unilateral change doctrine “presupposes the end of 

a collective bargaining agreement,” the standard durational

clause in Appendix A, without more, cannot “‘cover[]’ and 

[thereby] vitiate[] [the] Union’s statutory claim to continued” 

longevity-based increases. See id. at 128, 132–33. We 

therefore conclude that the Hospital’s decision to cease paying 

longevity-based increases in January 2014 is not covered by the 

terms of the 2011 CBA. 

 

The Hospital also argues that the Union clearly and 

unmistakably waived the nurses’ statutory right to receive 

longevity-based increases after the expiration of the 2011 

CBA. “A waiver occurs when a union knowingly and 

voluntarily relinquishes its right to bargain about a matter . . . .” 

Postal Serv., 8 F.3d at 836 (citation and emphasis omitted). By 

waiving the right to bargain over a particular matter, a union 

“surrenders the opportunity to create a set of contractual rules 

that bind the employer, and instead cedes full discretion to the 

employer on that matter.” S. Nuclear Operating, 524 F.3d at 
22

1357 (citation and internal quotation marks omitted). It follows 

that “an employer’s unilateral change to contract terms on that 

subject does not violate the Act.” Enter. Leasing, 831 F.3d at 

546. For this reason, unlike the contract coverage doctrine, a 

waiver “must be ‘clear and unmistakable.’” Honeywell Int’l, 

253 F.3d at 133 (quoting Metro. Edison Co. v. NLRB, 460 U.S. 

693, 703 (1983)).

In determining whether the Union waived its statutory 

rights, we consider the language of the 2011 CBA as well as 

the parties’ course of conduct. See S. Nuclear Operating, 524 

F.3d at 1357–58; Honeywell Int’l, 253 F.3d at 133–34. An 

employer bears the burden of showing that a union clearly and 

unmistakably waived its statutory rights. Sw. Steel, 806 F.2d 

at 1114–15. To satisfy its burden, the Hospital must establish 

that the parties “consciously explored or fully discussed the 

matter on which the union has consciously yielded its rights.” 

S. Nuclear Operating, 524 F.3d at 1357–58 (citation and 

internal quotation marks omitted). 

 

The Hospital contends that the language of the 2011 CBA 

establishes that the Union clearly and unmistakably waived the 

nurses’ right to post-expiration longevity-based increases. 

“[G]enerally speaking, waivers of statutory rights must be 

demonstrated by an express statement in the contract to that 

effect.” Gannett Rochester Newspapers v. NLRB, 988 F.2d 

198, 203–04 (D.C. Cir. 1993) (citations, internal quotation 

marks, and alteration omitted). Consequently, employers 

cannot rely on contractual silence. Id. at 203; S-B Mfg. Co., 

270 N.L.R.B. 485, 490 (1984). Nor can “general contractual 

provision[s],” Gannett Rochester, 988 F.2d at 203, or 

“[e]quivocal, ambiguous language in a bargaining agreement,”

NLRB v. Gen. Tire & Rubber Co., 795 F.2d 585, 588 (6th Cir. 

1986), meet that standard. We also have noted that when a 

particular subject is not “covered by” a collective bargaining 
23

agreement, that agreement generally will not “clearly and 

unmistakably waive bargaining over that matter.” Heartland 

Plymouth, 838 F.3d at 26. This case is no exception. 

 

The Hospital fails to identify any express language in the 

2011 CBA to support its waiver defense, arguing instead that 

the agreement’s language does not affirmatively “point to an 

ongoing statutory obligation” to pay longevity-based increases. 

The Hospital’s argument fails to consider that, pursuant to the 

unilateral change doctrine, wage rates established in a 

collective bargaining agreement continue in effect “even after 

an employer is released from any contractual obligations.” See 

More Truck Lines, 324 F.3d at 738–39; see also Honeywell 

Int’l, 253 F.3d at 134. Moreover, as noted above, the 2011 

CBA’s silence on the Hospital’s statutory obligation to 

continue paying longevity-based increases after the 

agreement’s expiration as part of the status quo is insufficient 

to establish waiver. Gannett Rochester, 988 F.2d at 203. 

While a contract duration clause that expressly authorizes the 

employer to terminate its statutory obligations upon expiration

is sufficient to establish waiver, see Local Joint Exec. Bd. of 

Las Vegas v. NLRB, 540 F.3d 1072, 1080–82 (9th Cir. 2008); 

Honeywell Int’l, 253 F.3d at 133–34; Staffco of Brooklyn, LLC, 

364 N.L.R.B. No. 102, at *2–4 & n.8 (Aug. 26, 2016), the 2011 

CBA does not contain such a clause. The durational clause in 

Appendix A “makes it clear that the Union’s contractual right” 

to longevity-based increases ended on April 30, 2013, but it “is 

silent on the Union’s [post-expiration] statutory rights.” 

Honeywell Int’l, 253 F.3d at 134. Accordingly, the durational 

clause “in no way evinces a clear and unmistakable waiver by 

the Union.” Id.

The Hospital also fails to establish through “other 

contextual factors” that the Union waived the nurses’ statutory 

right to longevity-based increases. See Regal Cinemas, Inc. v. 
24

NLRB, 317 F.3d 300, 312–14 (D.C. Cir. 2003). The record 

does not reveal any evidence concerning the parties’ bargaining 

history. Instead, the Hospital once again relies on the Union’s 

failure to bring an unfair labor practice charge in January 2011, 

arguing that this failure illustrates that the parties agreed that 

the Hospital could cease the payment of longevity-based 

increases upon expiration. But the Union’s one-time failure to 

challenge the Hospital’s cessation of longevity-based increases 

in January 2011 “does not estop subsequent assertion of that 

right.” S. Nuclear Operating, 524 F.3d at 1358; see also 

Brewers & Maltsters, 414 F.3d at 45. We note that the 

Supreme Court has held that two instances of a union’s silence 

did not “establish a pattern of decisions clear enough to convert 

the union’s silence into binding waiver.” See Metro. Edison, 

460 U.S. at 707–10. In sum, nothing in the record establishes 

that the Union fully discussed the nurses’ right to receive 

longevity-based increases after the 2011 CBA’s expiration and 

then “voluntarily relinquished [its] right to bargain over them.” 

S. Nuclear Operating, 524 F.3d at 1358. 

 

* * *

For the reasons stated, we conclude that the Hospital 

violated section 8(a)(1) and (a)(5) by unilaterally ceasing the 

payment of longevity-based wage increases to nurses after the 

expiration of the parties’ collective bargaining agreement. 

Accordingly, we deny the Hospital’s petition for review and 

grant the Board’s cross-application for enforcement. 

 

So ordered.