United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2016 Decided June 21, 2016

No. 15-1062

VERIZON NEW ENGLAND INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

LOCAL 2324, INTERNATIONAL BROTHERHOOD OF ELECTRICAL 

WORKERS, AFL-CIO,

INTERVENOR

Consolidated with 15-1087

On Petition for Review and Cross-Application

for Enforcement of an Order of 

the National Labor Relations Board

Arthur G. Telegen argued the cause for petitioner. With 

him on the briefs was Sarah K. Hamilton. 

Joel A. Heller, Attorney, National Labor Relations Board, 

argued the cause for petitioner. With him on the brief were 

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

Associate General Counsel, Linda Dreeben, Deputy Associate 
2

General Counsel, and Kira Dellinger Vol, Supervisory 

Attorney.

Alfred Gordon O’Connell argued the cause and filed the 

brief for intervenor.

Before: HENDERSON, KAVANAUGH, and SRINIVASAN, 

Circuit Judges.

Opinion for the Court filed by Circuit Judge 

KAVANAUGH, with whom Circuit Judge HENDERSON joins as 

to all but Parts II-A and II-C-1 and with whom Circuit Judge 

SRINIVASAN joins as to Parts I, II-A, II-B, and II-C-1.

Opinion concurring in part and concurring in the 

judgment filed by Circuit Judge HENDERSON.

Opinion concurring in part and dissenting in part filed by 

Circuit Judge SRINIVASAN.

KAVANAUGH, Circuit Judge: When a union and an 

employer enter into a collective bargaining agreement, each 

party may waive certain rights they otherwise would possess 

under the National Labor Relations Act – for example, the 

union members’ right to picket. In a collective bargaining 

agreement, the union and employer also may (and often do) 

agree to have an arbitrator decide disputes arising out of that 

agreement. The National Labor Relations Board may still 

review an arbitration decision in certain circumstances when

the losing party says it has been deprived of a right otherwise 

guaranteed by the National Labor Relations Act. But 

consistent with the national labor policy favoring arbitration, 

the Board reviews arbitration decisions under a highly 

deferential standard, known as the Spielberg-Olin standard. 
3

This case concerns a collective bargaining agreement

between a union and Verizon New England. In the 

agreement, the union waived its members’ right to picket, a 

right the members otherwise would possess under the 

National Labor Relations Act. During a subsequent labor 

dispute, Verizon employees visibly displayed pro-union signs 

in cars that were parked on Verizon property and lined up so 

that passers-by would see the signs. Verizon ordered the 

employees to stop displaying the signs. The union challenged

Verizon’s action. The legal question was this: Did the 

collective bargaining agreement’s waiver of the union

members’ right to picket also waive their right to visibly 

display pro-union signs in cars that were parked on Verizon 

property and lined up so that passers-by would see the signs?

The collective bargaining agreement between the union 

and Verizon provided for arbitration of disputes arising out of 

that agreement. Verizon and the union therefore proceeded to 

arbitration to resolve their dispute about the signs in the cars. 

An arbitration panel interpreted the collective bargaining 

agreement in Verizon’s favor. Not satisfied, the union then 

took the matter to the NLRB. An administrative law judge 

again ruled in favor of Verizon. The union appealed the 

matter to the Board. Although the Board reviews arbitration 

decisions under a highly deferential standard, the Board in a 

2-1 ruling overturned this arbitration decision. The Board 

determined that the union’s waiver of its members’ right to 

picket did not waive their right to visibly display pro-union 

signs in cars on Verizon property.

We conclude that the Board misapplied its highly 

deferential standard for reviewing arbitration decisions. 

Under that standard, the Board should have upheld the 

arbitration decision in this case. The Board acted 

unreasonably by overturning the arbitration decision. 
4

Therefore, we grant Verizon’s petition for review and deny 

the Board’s cross-application for enforcement. 

I

A

Section 7 of the National Labor Relations Act guarantees 

employees the right to engage in certain “concerted activities 

for the purpose of collective bargaining or other mutual aid or 

protection.” 29 U.S.C. § 157.1 Included among the concerted 

activities protected by Section 7 is the right of employees to 

visibly display pro-union signs in employees’ personal 

vehicles parked on an employer’s property. See, e.g., 

International Business Machines Corp., 333 N.L.R.B. 215, 

219-21 (2001), enforced, 31 Fed. Appx. 744 (2d Cir. 2002); 

District Lodge 91, International Association of Machinists &

Aerospace Workers, AFL-CIO v. NLRB, 814 F.2d 876, 879 

(2d Cir. 1987). 

Just as surely as Section 7 protects employees’ right to 

picket and display pro-union signs in their cars, unions may 

waive that right in a collective bargaining agreement. See, 

e.g., American Freight System Inc. v. NLRB, 722 F.2d 828, 

832 (D.C. Cir. 1983) (“It is well settled that a union may 

 1 That provision provides in full: “Employees shall have the 

right to self-organization, to form, join, or assist labor 

organizations, to bargain collectively through representatives of 

their own choosing, and to engage in other concerted activities for 

the purpose of collective bargaining or other mutual aid or 

protection, and shall also have the right to refrain from any or all of 

such activities except to the extent that such right may be affected 

by an agreement requiring membership in a labor organization as a 

condition of employment as authorized in section 158(a)(3) of this 

title.” 29 U.S.C. § 157. 
5

lawfully waive statutory rights of represented employees in a 

collective bargaining agreement.”). Absent a waiver, 

however, Section 8 of the Act makes an employer’s violation 

of a Section 7 right an “unfair labor practice.” 29 U.S.C. 

§ 158(a). 

B

Verizon New England is a well-known 

telecommunications provider that services Massachusetts and 

Rhode Island. It maintains facilities in three towns in 

Massachusetts: Westfield, Springfield, and Hatfield. 

Employees at those facilities are represented by the 

International Brotherhood of Electrical Workers, Local 2324. 

Verizon New England and Local 2324 were parties to a 

collective bargaining agreement valid from August 3, 2003, to

August 2, 2008. 

The parties’ collective bargaining agreement provided for

arbitration – at the union’s option – of disputes arising out of 

the contract. The agreement stated: “If the Union contends 

that the intent and meaning of one or more of the Articles of 

[the] Agreement . . . has been violated by the Company, it 

may demand arbitration.” Joint Appendix at 38. Pursuant to

the agreement, arbitration was to be conducted by a threemember Arbitration Board consisting of one representative 

selected by each party, as well as a mutually agreed-upon 

neutral arbitrator. The agreement provided that a decision of 

the Arbitration Board would be “final and binding on the

Union and the Company.” Joint Appendix at 39. 

As relevant here, the collective bargaining agreement

also contained a waiver of the union members’ right to picket: 

“The Union agrees that during the term of this Agreement, or 

any extension thereof, it will not cause or permit its members 
6

to cause, nor will any member of the Union take part in, any 

strike of or other interference with any of the Company’s 

operations or picketing of any of the Company’s premises.”

Joint Appendix at 42.

In early 2008, a few months before the collective 

bargaining agreement was to expire, Local 2324 planned to 

picket Verizon’s Westfield, Springfield, and Hatfield 

facilities. In March 2008, the union prepared for the picketing 

campaign by distributing pro-union picket signs to employees

at those Verizon facilities. The signs were 22 inches by 28

inches and bore pro-union slogans such as “Verizon, Honor 

Our Existing Contract” and “Honor Our Contract.” 

Employees at the three locations visibly displayed the 

signs in the windshields of their cars while the cars were

parked on Verizon property. In response, Verizon directed 

the employees to stop visibly displaying the signs in their cars

while on Verizon property. The employees complied. But 

after Verizon’s order to stop displaying the signs, the union 

filed unfair labor practice charges with the National Labor 

Relations Board. The union alleged that Verizon had violated 

its members’ Section 7 right to display pro-union signs in 

their cars.

The Board’s Regional Director declined to rule on the 

charges. The Regional Director did so because, in her view, 

the dispute arose “from the contract between the parties,” and 

“contractual grievance-arbitration procedures are available for 

resolving the dispute.” Letter from Rosemary Pye, NLRB 

Regional Director, to Local 2324 (June 18, 2008), Joint 

Appendix at 56. 

The union then submitted to arbitration the issue of 

whether Verizon had violated the collective bargaining 
7

agreement by requiring the employees to stop displaying the 

signs in their parked cars. 

The arbitration panel ruled for Verizon over the dissent of 

the union-selected member of the panel. The arbitration panel

relied on the provision in the collective bargaining agreement 

expressly waiving the union members’ right to picket. The 

panel decided that the term “picketing” included the visible 

display of pro-union signs in the windshields of employees’ 

cars. 

Notwithstanding the arbitration panel’s reading of the 

collective bargaining agreement, the Acting General Counsel 

of the National Labor Relations Board issued a complaint 

alleging that Verizon had committed an unfair labor practice. 

The Acting General Counsel alleged that Verizon had violated

Section 8 of the National Labor Relations Act by ordering the 

employees to stop displaying the pro-union signs in their cars.

Under the Board’s highly deferential Spielberg-Olin

standard (as relevant here), the Board will defer to an 

arbitration award unless the award is “clearly repugnant” to 

the National Labor Relations Act. See Olin Corp., 268 

N.L.R.B. 573, 574 (1984); Spielberg Manufacturing Co., 112 

N.L.R.B. 1080, 1082 (1955).

Applying that standard, the Administrative Law Judge 

upheld the arbitration decision in Verizon’s favor. According 

to the Administrative Law Judge, the arbitration decision was 

not clearly repugnant to the Act because the contractual term 

“picketing” could be read to cover the union activities in 

question here. 

The union appealed to the National Labor Relations 

Board. In a divided 2-1 decision, the Board ruled against 
8

Verizon. Applying the Spielberg-Olin standard, the Board 

concluded that the arbitration decision was “clearly 

repugnant” to the National Labor Relations Act. The Board 

stated that the arbitration panel incorrectly concluded that the 

union’s contractual waiver of the right to picket encompassed

the right to display pro-union signs in cars. The Board 

accepted that a union could waive its members’ Section 7

right to display pro-union signs. But the Board stated that the 

union did not do so in the collective bargaining agreement at 

issue here. 

The Board ordered Verizon to allow employees to

display pro-union signs in their cars. Verizon petitioned this 

Court for review of the Board’s order. The Board crossapplied for enforcement of its order.

Our review is deferential, not de novo. We review the 

Board’s decision for reasonableness, which in this context is 

sometimes referred to as abuse of discretion review. Put 

succinctly, the Board’s decision must be reasonable and 

reasonably explained. See Plumbers & Pipefitters Local 

Union No. 520 v. NLRB, 955 F.2d 744, 750 (D.C. Cir. 1992). 

II

A

Congress has established that labor arbitration agreed 

upon by a union and an employer is “the desirable method for 

settlement of grievance disputes arising over the application 

or interpretation of an existing collective-bargaining 

agreement.” 29 U.S.C. § 173(d). At the same time, Section 

10 of the National Labor Relations Act authorizes the Board

to prevent the commission of “any unfair labor practice” 

notwithstanding “any other means of adjustment or 
9

prevention that has been or may be established by agreement, 

law, or otherwise.” 29 U.S.C. § 160(a). The NLRB therefore 

may review labor arbitration proceedings in cases where 

determining whether an unfair labor practice occurred 

depends in part on whether a party waived a statutorily 

protected right in the collective bargaining agreement, which 

in turn depends on an interpretation of the collective 

bargaining agreement that the arbitrator previously 

interpreted. 

Under Section 10 of the Act, the Board possesses

discretion over how much to defer to arbitration decisions. 

The standard the Board has long used to review arbitration 

decisions – the Spielberg-Olin standard – is highly deferential 

to the arbitrator. The Board adopted that highly deferential 

standard to further the “national policy strongly favor[ing] the 

voluntary arbitration of disputes.” Olin Corp., 268 N.L.R.B.

573, 574 (1984); see also 29 U.S.C. § 173(d). 

The Spielberg-Olin standard calls for Board deference to 

the arbitrator’s decision so long as the following conditions 

are met: (1) the arbitration proceedings appear to have been 

fair and regular; (2) all parties agreed to be bound by the 

arbitration decision; (3) the arbitrator has adequately 

considered the unfair labor practice at issue; and (4) the 

arbitrator’s decision is not “clearly repugnant” to the National 

Labor Relations Act. See Olin Corp., 268 N.L.R.B. at 574; 

Spielberg Manufacturing Co., 112 N.L.R.B. 1080, 1082 

(1955); see also Ralphs Grocery Co., 361 N.L.R.B. No. 9, 

2014-2015 N.L.R.B. Dec. ¶ 15,843 (July 31, 2014); Roadway 

Express, Inc., 355 N.L.R.B. 197, 210 (2010); Turner 
10

Construction Co., 339 N.L.R.B. 451, 455 (2003); Mt. Sinai 

Hospital, 331 N.L.R.B. 895, 898 (2000).2

The only question in this case concerns the fourth

Spielberg-Olin factor: whether the arbitration decision was 

“clearly repugnant” to the National Labor Relations Act. 

In Olin, the Board explained that an arbitrator’s decision

is not “clearly repugnant” unless the decision is “palpably 

wrong, i.e., unless the arbitrator’s decision is not susceptible 

to an interpretation consistent with the Act.” Olin Corp., 268 

N.L.R.B. at 574 (internal quotation marks and footnote 

omitted). That language in Olin is not especially clear, and it 

has caused some confusion in past cases. The “i.e.” in the

sentence appears to be the source of the confusion, because 

what comes after the “i.e.” describes a separate way to 

overturn the arbitrator’s decision, not simply an example or 

another way to describe what comes before the “i.e.” 

To be clear, therefore, the fourth Spielberg-Olin factor 

establishes two ways in which the Board may overturn an 

arbitrator’s decision as “clearly repugnant to the Act”: (i) if 

the arbitrator interpreted the contract to mean that one party 

waived a right that may not be waived under the National 

Labor Relations Act, in which case the “arbitrator’s decision” 

is deemed “not susceptible to an interpretation consistent with 

the Act”; or (ii) if the arbitrator interpreted the contract in a 

“palpably wrong” manner and thereby deprived the losing

party of a right otherwise guaranteed under the Act.

 2

 In December 2014, the Board announced a new, less 

deferential standard of review to be applied prospectively only. See 

Babcock & Wilcox Construction Co., 361 N.L.R.B. No. 132, 201 

L.R.R.M. (BNA) 2057 (Dec. 15, 2014). Because this case was 

pending when the new policy was announced, the Board applied its

Spielberg-Olin deference standard rather than the new standard. 
11

B

An arbitration decision is “not susceptible to an 

interpretation consistent with the Act” when an arbitrator 

interprets a contract to mean that one party waived a right that 

may not be waived under the National Labor Relations Act. 

See, e.g., I.R.S. v. Federal Labor Relations Authority, 963 

F.2d 429, 440 & n.13 (D.C. Cir. 1992); Plumbers & 

Pipefitters Local Union No. 520 v. NLRB, 955 F.2d 744, 754, 

756 (D.C. Cir. 1992); see also Harry T. Edwards, Deferral to 

Arbitration and Waiver of the Duty to Bargain: A Possible 

Way Out of Everlasting Confusion at the NLRB, 46 OHIO ST.

L.J. 23, 30 (1985). 

Put the other way, an arbitration decision finding waiver 

of a right protected by the Act is deemed “susceptible to an 

interpretation consistent with the Act” so long as the right at 

issue in the arbitration proceeding may be waived under the 

Act. See Plumbers & Pipefitters, 955 F.2d at 756 (“[W]here 

the statutory right implicated by a grievance settlement is 

within the category of waivable rights . . . then it is unclear 

why the Board would ever have any choice but to give 

deference, at least so long as the grievance procedures 

through which the settlement is reached are fair and regular 

and the union has not breached its duty of fair 

representation.”) (emphasis and internal quotation marks 

omitted). 

Therefore, to determine whether an arbitration decision is 

“susceptible to an interpretation consistent with the Act,” the 

Board’s task is straightforward: The Board must ask only 

whether the Act permits the Section 7 right at issue to be 

waived in a collective bargaining agreement. If the answer to 

that question is yes, then an arbitrator’s conclusion that the 
12

parties to a contract had, in fact, waived that Section 7 right is 

necessarily “susceptible to an interpretation consistent with

the Act.” 

In this case, that inquiry is simple. All agree that the 

National Labor Relations Act allows a union to waive its 

members’ Section 7 right to display pro-union signs in 

vehicles parked on company property. Here, the arbitration 

panel determined that the union did in fact waive that right. 

The arbitration decision, therefore, was susceptible to an 

interpretation consistent with the Act. 

C

1

Verizon claims that this conclusion – namely, that the 

union waived a waivable statutory right – is the end of the

inquiry under the “clearly repugnant” prong of the SpielbergOlin standard. We disagree. As we read the Board’s 

precedents, the Spielberg-Olin standard allows another (albeit 

narrow) way to show that an arbitration decision is “clearly 

repugnant to the Act”: if the arbitrator interpreted the contract 

in a “palpably wrong” manner and thereby deprived the losing 

party of a right otherwise guaranteed under the Act. 

What does “palpably wrong” mean? The phrase means 

what it suggests. Wrong is not enough. The adverb matters. 

Egregiously wrong, clearly erroneous, badly flawed, totally 

wrong, jumping the rails. Whatever the exact verbal 

formulation – we will use “egregiously wrong” – the basic 

idea remains the same: The Board must afford great 

deference to the arbitrator’s interpretation of the contract. 

See, e.g., Motor Convoy, Inc., 303 N.L.R.B. 135, 137 (1991);

U.S. Postal Service, 275 N.L.R.B. 430, 432 (1985) 
13

(arbitration decision that does not comport precisely with 

Board precedent is not “palpably wrong”).

3

 

To state the obvious, the fact that the Board might read a 

contract term differently than the arbitrator read it does not 

suffice to make an arbitration decision “palpably wrong.” 

Rather, as the Board has previously stated, its highly 

deferential standard of review “recognizes that the parties 

have accepted the possibility that an arbitrator might decide a 

particular set of facts differently than would the Board. This 

possibility, however, is one which the parties have voluntarily 

assumed through collective bargaining.” Andersen Sand & 

Gravel Co., 277 N.L.R.B. 1204, 1205 n.6 (1985); see also 

Dennison National Co., 296 N.L.R.B. 169, 170 (1989). 

 3 The Board’s “palpably wrong” standard is similar to 

(although perhaps a notch less deferential to the arbitrator than) the 

extraordinarily deferential standard applied by federal courts 

reviewing arbitration decisions directly under Section 301(a) of the 

Labor Management Relations Act. 29 U.S.C. § 185. Consistent 

with the national policy favoring labor arbitration, a federal court 

“presiding over a § 301 proceeding seeking enforcement of an 

arbitrator’s award must give the award the greatest deference 

imaginable – the award must be enforced so long as the arbitrator 

purports to be interpreting the contract rather than dispensing ‘his 

own brand of industrial justice.’” Utility Workers Union of 

America, Local 246, AFL-CIO v. NLRB, 39 F.3d 1210, 1216 (D.C. 

Cir. 1994) (quoting United Steelworkers v. Enterprise Wheel & Car 

Corp., 363 U.S. 593, 597 (1960)); see also National Postal Mail 

Handlers Union v. American Postal Workers Union, 589 F.3d 437, 

441 (D.C. Cir. 2009) (The “question is whether the arbitrator was 

even arguably construing or applying the contract.”) (internal 

quotation marks omitted); National Football League Management 

Council v. National Football League Players Association, No. 15-

2801, 2016 WL 1619883 (2d Cir. Apr. 25, 2016).
14

To be sure, we ourselves review the Board’s decision

under a deferential standard. We may overturn the Board’s 

decision only if the Board abused its discretion (that is, acted 

unreasonably) in failing to afford the required deference to the 

arbitration decision. Plumbers & Pipefitters, 955 F.2d at 750; 

American Freight System Inc. v. NLRB, 722 F.2d 828, 832 

(D.C. Cir. 1983). 

2

Here, the Board should have upheld the arbitration 

decision. The arbitration decision was far from egregiously 

wrong. No hard-and-fast definition of the term “picketing” 

excludes the visible display of pro-union signs in employees’ 

cars rather than in employees’ hands, especially when the cars 

are lined up in the employer’s parking lot and thus visible to 

passers-by in the same way as a picket line. Indeed, the 

Board’s own case law on picketing has concluded that the 

term may, under certain circumstances, extend to the display 

of stationary signs – whether in employees’ cars, positioned 

near an entrance to a job site, or even planted in snowbanks –

on or near the employer’s property. See United Mine Workers 

of America, District 2, 334 N.L.R.B. 677, 686 (2001); 

Ironworkers District Council of the Pacific Northwest, 292 

N.L.R.B. 562, 571-76 (1989); Construction & General 

Laborers Union, Local 304, 260 N.L.R.B. 1311, 1316, 1319 

(1982); Lawrence Typographical Union No. 570, 169 

N.L.R.B. 279, 282-84 (1968); Local 182, International 

Brotherhood of Teamsters, 135 N.L.R.B. 851, 856-57 (1962).

In short, there was nothing approaching egregious error

in the arbitration panel’s decision to interpret the ban on 

picketing to encompass the visible display of picket signs in 

employees’ cars on Verizon property. Under a reasonable 
15

application of the Spielberg-Olin standard, the Board should 

have upheld the arbitration panel’s decision. 

* * *

Under the Spielberg-Olin standard, the arbitration panel’s

decision in this case was not clearly repugnant to the Act. 

First, the arbitration panel’s decision was susceptible to an 

interpretation consistent with the Act, because under the Act 

unions may waive their members’ right to display signs in 

cars on the employer’s premises. And second, the arbitration 

panel’s decision was not a “palpably wrong” interpretation of 

the collective bargaining agreement. The Board’s contrary 

decision was unreasonable. We grant Verizon’s petition for 

review and deny the Board’s cross-application for 

enforcement. 

So ordered. 
KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in part and concurring in the judgment: I join Judge 

Kavanaugh in granting Verizon New England’s petition for 

review but write separately to express my doubt about the 

arbitration deferral standard of the National Labor Relations 

Board (Board) as described in the majority opinion. For 

several reasons, I do not agree that “what comes after the ‘i.e.’ 

describes a separate way to overturn the arbitrator’s decision” 

instead of “simply an example or another way to describe 

what comes before.” Maj Op. 10. To begin with, this 

construction deviates from the term’s ordinary definition—

“i.e.” is short for the Latin id est, meaning “that is”; not “or” 

or “alternatively” as my colleagues apparently have it. 

Second, their construction does not comport with the court’s

ordinary usage, by which the term restates what is said before. 

See, e.g., Puckett v. United States, 556 U.S. 129, 135 (2009) 

(“intentionally relinquished or abandoned, i.e., affirmatively

waived”); United States v. Cotton, 535 U.S. 625, 630 (2002) 

(“jurisdiction . . ., i.e., the courts’ statutory or constitutional 

power to adjudicate the case” (internal quotations and 

emphasis omitted)). Third—and, in my view, most salient—

we should not give our own interpretation of what Board 

“orders do not say” when the Agency itself has not 

subsequently done so. Phila. Gas Works v. FERC, 989 F.2d 

1246, 1250–51 (D.C. Cir. 1993) (“FERC, not we (or FERC’s 

appellate lawyers), must” perform task); see also SEC v. 

Chenery Corp., 318 U.S. 80, 88 (1943). Tellingly, the 

majority opinion cites no Board authority for its interpretation 

of the Board’s use of “palpably wrong.” I submit that we 

should ask only whether the arbitrator’s decision is 

susceptible of an interpretation consistent with the National 

Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq. The 

right to picket is a waivable right and we have no independent 

reason to think waiver inconsistent with the NLRA; the 

arbitrator’s conclusion that it was waived, then, passes muster

and our inquiry should be at an end. 
2

But more importantly, my colleagues ignore the two-ton 

elephant in the room, namely, what arbitration deferral 

standard the Board may lawfully apply. May the Board, for 

instance, reject the arbitrator’s interpretation of a collective 

bargaining agreement (CBA) because the Board would not 

have reached the same conclusion in the first instance? In the 

past the Board said no, recognizing “that national policy 

strongly favors the voluntary arbitration of disputes.” Olin 

Corp., 268 N.L.R.B. 573, 574 (1984). Accordingly, it 

rejected only “palpably wrong” or “clearly repugnant” arbitral 

interpretations of a CBA. Id. (ALJ’s failure to defer to 

arbitration award “frustrate[d] the declared purpose of [Board 

policy] to recognize the arbitration process as an important 

aspect of the national labor policy favoring private resolution 

of labor disputes.”). 

This standard—although nebulous—tracks our own 

standard of review of arbitration decisions. See Maj. Op. 13

& n.3 (“The Board’s ‘palpably wrong’ standard is similar to 

(although perhaps a notch less deferential to the arbitrator) the 

extraordinarily deferential standard” we apply). When the 

court is the forum of first review, it enforces the arbitrator’s

CBA interpretation “so long as the arbitrator purports to be 

interpreting the contract rather than dispensing ‘his own brand 

of industrial justice.’ ” Utility Workers Union of Am. v. 

NLRB, 39 F.3d 1210, 1216 (D.C. Cir. 1994) (quoting United 

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 

597 (1960)). Under that review, “whether the arbitrator 

erred—or even seriously erred—in interpreting the contract”

is irrelevant. Nat’l Postal Mail Handlers Union v. Am. Postal 

Workers Union, 589 F.3d 437, 441 (D.C. Cir. 2009). See also

Nat’l Football League Mgmt. Council v. Nat’l Football 

League Players Ass’n, No. 15-2801, 2016 WL 1619883, at *6 

(2d Cir. Apr. 25, 2016) (if arbitrator “misinterprets the 

parties’ agreement,” court cannot “substitute [its] own” 
3

interpretation (citing United Paperworkers Int’l Union v. 

Misco, Inc., 484 U.S. 29, 37–38 (1987))).

1

 But the Board 

has recently jettisoned this standard. It now appears to defer

to the arbitrator’s CBA interpretation only if “Board law 

reasonably permits” it. Babcock & Wilcox Constr. Co., 361 

N.L.R.B. No. 132, 2014 WL 7149039, at *11 (Dec. 15, 

2014).2 If the “Board law” standard in fact replaces the old 

one, it presents the paradox of a Board decision “against 

deferring to an arbitrator’s award” in a setting “when a federal 

court would have been obliged to enforce” it. See Utility 

Workers, 39 F.3d at 1216 (forewarning of paradox). If the 

Board applies its new standard, “both an arbitrator’s award 

 

1 The standard also furthers one goal of the Labor Relations 

Management Act (LRMA), 29 U.S.C. §§ 141 et seq., by which the 

Congress established that “[f]inal adjustment by a method agreed 

upon by the parties is declared to be the desirable method for 

settlement of grievance disputes arising over the application or 

interpretation of an existing collective bargaining agreement,” 29 

U.S.C. § 173(d); see also United Steelworkers of Am. v. Warrior & 

Gulf Navigation Co., 363 U.S. 574, 578 (1960) (“A major factor in 

achieving [the federal policy of] industrial peace is the inclusion of 

a provision for arbitration of grievances in the collective bargaining 

agreement.”).

2

Parenthetically, it is not plain what “Board law” in fact bears 

on contract interpretation. See Litton Fin. Printing Div. v. NLRB, 

501 U.S. 190, 201 (1991) (“[T]he Board is neither the sole nor the 

primary source of authority in [contract interpretation]. Arbitrators 

and courts are still the principal sources of contract interpretation.” 

(internal quotation marks omitted)); Honeywell Int’l, Inc. v. NLRB, 

253 F.3d 119, 124 (D.C. Cir. 2001) (“[T]he Board may interpret a 

contract ‘only so far as necessary to determine’ what statutory 

rights the party has given up by agreeing to a particular contract.” 

(quoting NLRB v. C & C Plywood Corp., 385 U.S. 421, 428 

(1967))). 
4

and a conflicting Board order” could—inconsistently—be 

“enforced simultaneously in the federal courts.” Id. 

If the Board continues to second guess the substance of 

the arbitrator’s CBA interpretation as opposed to, say, only 

his choice of remedy, the paradox will become inevitable. To 

me, it is plain that the Board’s inquiry whether “Board law 

reasonably permits” an interpretation is irreconcilable with 

our review of whether the arbitrator dispensed his “own brand 

of industrial justice.” Id. When the time comes, I believe the 

Board will have to explain why we should accord its decision 

any deference when it fails to defer to an arbitrator’s 

conclusion, to which our “extraordinarily deferential 

standard,” Nat’l Postal, 589 F.3d at 441, must be applied. See

BP Amoco Corp. v. NLRB, 217 F.3d 869, 873 (D.C. Cir. 

2000) (court applied de novo review to labor contract, 

rejecting Board’s interpretation); accord Litton, 501 U.S. at 

203 (“We would risk the development of conflicting 

principles were we to defer to the Board in its interpretation 

of the contract, as distinct from its devising a remedy for the 

unfair labor practice that follows from a breach of contract. 

We cannot accord deference in contract interpretation here 

only to revert to our independent interpretation of collectivebargaining agreements in a case arising under [the 

LRMA].”).3

 

3 My colleagues conclude that we may “overturn the Board’s 

decision only if the Board abused its discretion (that is, acted 

unreasonably) in failing to afford the required deference.” Maj. Op. 

14; see also Dissent Op. 1 (same). Granted, we ordinarily review 

the Board’s application of its arbitration deferral standard in this 

manner. See Am. Freight Sys. Inc. v. NLRB, 722 F.2d 828, 832 

(D.C. Cir. 1983). But here the Board was engaged in contract 

interpretation, see Maj. Op. 13 (discussing whether Board may 

“read a contract term differently than the arbitrator read it.”), and 
5

 

we have said time and again that we accord the Board no deference 

when it is so engaged. See, e.g., McDonnell Douglas Corp. v. 

NLRB, 59 F.3d 230, 234 (D.C. Cir 1995) (“courts owe no deference 

to the Board in its interpretation” of CBA (internal quotations 

omitted)); Int’l Union of Painters & Allied Trades v. NLRB, 309 

F.3d 1, 3 (D.C. Cir. 2002) (“Board interpretations of the CBA . . . 

receive no deference”). My colleagues make no attempt to 

reconcile these conflicting standards; as we must ensure that 

“[a]rbitrators and courts”—not the Board—remain “the principal 

sources of contract interpretation,” Litton, 501 U.S. at 201, 

however, it seems plain to me that “the normal deference we must 

afford the Board’s policy choices does not apply in this context,”

Enloe Med. Ctr. v. NLRB, 433 F.3d 834, 837 (D.C. Cir. 2005) 

(emphasis added), i.e., when the Board reinterprets a contract under

its arbitration deferral standard, our abuse of discretion approach 

should yield. 
SRINIVASAN, Circuit Judge, concurring in part and 

dissenting in part: The underlying question in this case is 

whether the union, in its collective bargaining agreement with 

Verizon, waived the statutorily protected right of employees 

to engage in the conduct at issue: to leave pro-union signs 

displayed in the window of their cars in a company parking 

lot while at work. The relevant provision of the collective 

bargaining agreement waived the employees’ right to engage 

in “picketing.” An arbitration panel, in a divided decision, 

found that the unattended display of pro-union signs in parked 

cars while at work constituted “picketing.” A dissenting 

arbitrator strongly disagreed. The Board overturned the 

arbitration majority’s decision, and we now assess whether 

the Board acted permissibly in doing so.

I concur fully in the court’s explanation of the legal 

standards under which the Board reviews an arbitration 

decision’s interpretation of a collective bargaining agreement. 

As the court sets out, one situation in which the Board may 

set aside an arbitration decision is if an arbitrator reaches a 

“palpably wrong” conclusion that the agreement waives 

employees’ statutory right to engage in the conduct at issue. 

Ante, at 12-13. The “palpably wrong” standard is selfevidently a deferential one. But if the Board, applying that 

deferential standard, concludes that an arbitrator’s 

interpretation is palpably wrong, we in turn apply a 

deferential standard in reviewing the Board’s decision. As the 

court explains, we overturn the Board’s decision only if it is 

an abuse of discretion—that is, only if it is unreasonable. 

Ante, at 14. 

My sole (and narrow) disagreement with the court 

concerns the application of that deferential standard in the 

specific circumstances of this case. In my respectful view, the 

Board’s decision was not unreasonable in setting aside the 

arbitration decision.
2

The arbitration majority determined that, when Verizon 

employees left unattended signs in the windows of their cars 

in company parking lots while they went about their workday, 

the employees were engaged in “picketing.” According to the 

arbitration majority, “placing signs in cars” amounts to 

“picketing” because it “communicates a message.” J.A. 305. 

The Board could reasonably conclude otherwise. As the 

Supreme Court has explained, although written 

communications “may convey the same information” as 

workers “patrolling a picket line,” the “loyalties and 

responses evoked and exacted by picket lines are unlike those 

flowing from appeals by printed word.” Hughes v. Superior 

Court, 339 U.S. 460, 465 (1950). Picketing thus is

“qualitatively different from other modes of communication.” 

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. 

Trades Council, 485 U.S. 568, 580 (1987) (internal quotation 

marks and quotation omitted). 

The Board, for that reason, could find it wrong to deem

the unattended display of signs in parked cars to be

“picketing.” But could the Board find it palpably wrong to do 

so? That is by definition a closer question. I think that, under 

our deferential standard of review, it was at least reasonable 

for the Board to find the arbitration majority’s interpretation 

of “picketing” to be palpably wrong. In other words, it was at 

least reasonable for the Board to find the dissenting arbitrator

to be palpably correct.

The Board has long held that a “necessary condition[] of 

‘picketing’ is a confrontation in some form between union 

members and [persons] trying to enter the employer’s 

premises.” Chi. Typographical Union No. 16, 151 N.L.R.B.

1666, 1669 (1965) (quoting NLRB v. United Furniture 

Workers of Am., 337 F.2d 936, 940 (2d Cir. 1964)). The 

Board could reasonably conclude that, when union members 
3

leave signs behind in their parked cars and enter the 

workplace for the day, they plainly are not engaged in the sort 

of personal “confrontation” with passersby in the parking lot

that could be considered “picketing.” See id. (finding that 

patrolling while carrying placards in shopping centers and 

public buildings lacked the “element of confrontation”

necessary to constitute picketing). To be sure, picketers 

might occasionally set down their signs while taking a 

temporary break or while sitting nearby in their cars to avoid 

rainfall. See, e.g., Constr. & Gen. Laborers Local 304, 260 

N.L.R.B. 1311, 1316 (1982); Gen. Serv. Emps. Union Local 

73, 239 N.L.R.B. 295, 302 (1978); Lawrence Typographical 

Union No. 570, 169 N.L.R.B. 279, 282-83 (1968); Local 182, 

Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & 

Helpers of Am., 135 N.L.R.B. 851, 856 & n.6 (1962). But 

here, the employees left their signs entirely unattended in their 

cars, and they then went to work. I am unaware of any 

decision considering employees to be engaged in picketing 

even while in the workplace carrying out their normal 

functions.

In those circumstances, I believe the Board reasonably 

found the arbitration majority’s interpretation of the 

“picketing” prohibition to be palpably wrong. The Board may 

not have been compelled to reach that conclusion, and the 

Board perhaps also would have acted reasonably had it 

sustained the arbitration decision rather than overturned it. In 

adopting the latter course, though, the Board, in my respectful 

view, did not abuse its discretion.