PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________ 

Nos. 22-2774 and 22-2868

_______________

PG PUBLISHING CO., INC., DBA Pittsburgh Post-Gazette,

 Petitioner in 22-2774

v.

NATIONAL LABOR RELATIONS BOARD,

Petitioner in 22-2868

_______________ 

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor Relations 

Board

(NLRB Case No. 06-CA-233676)

_______________

Argued

June 29, 2023

Before: JORDAN, KRAUSE and SMITH, Circuit Judges

(Filed: September 26, 2023)

_______________
2

Alex R. Beining 

Taylor Brailey

Brian M. Hentosz [ARGUED]

Littler Mendelson

625 Liberty Avenue

EQT Plaza, 26th Fl.

Pittsburgh, PA 15222

Richard C. Lowe

Michael D. Oesterle

King & Ballow

315 Union Street

1100 Union Street Plaza

Nashville, TN 37201

 Counsel for PG Publishing Co., Inc., 

 DBA Pittsburgh Post Gazette

Ruth E. Burdick

Elizabeth A. Heaney

Joel Heller [ARGUED]

National Labor Relations Board

1015 Half Street SE

Washington, DC 20570

 Counsel for National Labor Relations Board

Patrick K. Lemon

Joseph J. Pass

Justin T. Romano

Jubelirer Pass & Intrieri

219 Fort Pitt Boulevard – 1st Fl.

Pittsburgh, PA 15222
3 

Maneesh Sharma [ARGUED] 

AFL-CIO 

815 16th Street NW, 6th Fl.

Washington, DC 20006 

 Counsel for Graphic Communications 

 International Union and GCC International 

 Brotherhood of Teamsters Local 24M 9N 

_______________ 

OPINION OF THE COURT 

_______________ 

JORDAN, Circuit Judge. 

“Never pick a fight with anyone who buys ink by the 

barrel and paper by the ton.”1

 That advice recalls a time when 

newspapers were, as the name suggests, always printed on 

paper. Things are different now. This case arises in the 

aftermath of a decision by PG Publishing Co., Inc. (the “PostGazette” or the “Newspaper”) to forsake the printed page and 

begin the move to an all-digital format. That decision led to 

the termination of two paperhandlers represented by Local 

24M/9N of the Graphic Communications International Union 

(the “Union”). The layoffs took place during negotiations 

1

 The quotation is of uncertain origin and apocryphally 

attributed to the likes of Benjamin Franklin, Mark Twain, and 

H.L. Mencken. See I Never Argue with a Man Who Buys Ink 

by the Barrel, QuoteInvestigator (Apr. 24, 2018) 

https://quoteinvestigator.com/2018/04/24/ink/https://quoteinv

estigator.com/2018/04/24/ink/ (tracing competing claims of 

authorship). 
4

between the Union and the Post-Gazette for a successor to their 

collective bargaining agreement (“CBA”), which, by its terms, 

had ended on March 31, 2017. The paperhandlers were among 

twenty-four Post-Gazette employees covered by a provision of 

the expired CBA that had guaranteed those employees five

shifts per week “for the balance of the Agreement, ending 

March 31, 2017[.]” (J.A. at 217.)

The Union filed a charge of unfair labor practices with 

the National Labor Relations Board, and the Board’s General 

Counsel unsuccessfully pursued the matter before an 

Administrative Law Judge. A divided Board reversed the ALJ, 

finding an unfair labor practice. The matter is now before us, 

with the General Counsel seeking to enforce the Board’s 

decision, and the Post-Gazette petitioning to have it

overturned.

2

 The parties’ arguments implicate two principles 

identified in the Supreme Court’s decisions under the National 

Labor Relations Act (“NLRA”). The first, exemplified by 

Litton Financial Printing Division v. N.L.R.B., is that an 

employer commits an unfair labor practice under the NLRA if, 

after the expiration of a CBA, the employer alters the postexpiration status quo during negotiations for a successor CBA 

without first negotiating with its employees to an overall 

impasse on that successor CBA. 501 U.S. 190, 206-07 (1991). 

The second is that, under First National Maintenance Corp. v. 

N.L.R.B., employers are privileged to make non-bargainable 

entrepreneurial decisions about the scope and direction of their 

2 We will refer to the body whose decisions we are 

reviewing as the Board (e.g., “the Board held ....”) and the 

party appearing before us on the Board’s behalf as the General 

Counsel (e.g., “the General Counsel argues ....”).
5

business and, with respect to such a decision, the employer 

need not bargain with the union about whether to make the 

decision; it need only bargain about the “effects” of the 

decision once made. 452 U.S. 666, 681-82, 684 (1981).

The Board majority held that the five-shift guarantee in 

the expired CBA had become part of the status quo, and the

layoffs, therefore, violated the guarantee and constituted an 

unfair labor practice because the Post-Gazette had not 

bargained to impasse with the Union on a new CBA. The 

majority reached that holding even though it acknowledged 

that the Newspaper’s decision to go to an all-digital format is, 

indeed, a non-bargainable “core entrepreneurial decision.” 

(J.A. at 32 n.18.) The Board dissent, by contrast, concluded 

that the five-shift guarantee was not part of the status quo and

that, instead, First National Maintenance dictated the required 

scope of bargaining – namely bargaining about the effects of 

the all-digital decision – before the Post-Gazette could 

implement its proposed layoffs. 

The dissent had it right. The proper mode of analysis 

requires application of ordinary contract principles to the 

expired CBA to determine whether the parties intended the 

five-shift guarantee to end with the expiration of the CBA. 

Applying those principles, we hold that the five-shift guarantee 

did not become part of the post-expiration status quo, as that

provision makes plain the guarantee was to end when the CBA 

expired. But that does not bring this matter to a close because, 

under its own theory of the case, the Post-Gazette was still 

precluded from implementing the layoffs unless it engaged in 

adequate effects bargaining. We will therefore remand for the 

Board to determine whether the Post-Gazette did so.
6

I. BACKGROUND

A. Legal Principles

The complicated procedural background of this case

may be more understandable with the aid of some background 

on the law governing labor negotiations, which we provide 

before turning to the facts.

1. Post-Expiration Status Quo

The Supreme Court has explained that “[a] fundamental 

aim of the [NLRA] is the establishment and maintenance of 

industrial peace to preserve the flow of interstate commerce.” 

First Nat’l Maint., 452 U.S. at 674. To that end, the NLRA 

grants “[e]mployees ... the right ... to bargain collectively 

through representatives of their own choosing[.]” 29 U.S.C. 

§ 157. Section 8(a)(1) of the NLRA makes it an “unfair labor 

practice for an employer ... to interfere with ... the exercise 

of” that right. 29 U.S.C. § 158(a)(1). Further, Section 8(a)(5), 

with limited exceptions, makes it “an unfair labor practice for 

an employer ... to refuse to bargain collectively with the 

representatives of his employees[.]” 29 U.S.C. § 158(a)(5). 

That same subsection, “as augmented by § 8(d), requires an 

employer to bargain over ‘wages, hours, and other terms and 

conditions of employment.’” Citizens Publ’g & Printing Co. 

v. N.L.R.B., 263 F.3d 224, 233 (3d Cir. 2001) (quoting 29 

U.S.C. § 158(d)).

The parties do not dispute that, in general, an employer 

commits an unfair labor practice, violative of Sections 8(a)(1)

and 8(a)(5) of the NLRA, when, after the expiration of a CBA

and during negotiations for a successor CBA, the employer
7

alters the post-expiration status quo regarding the terms and 

conditions of employment without first negotiating with its 

employees to an overall impasse on the successor CBA. That 

proposition flows from the Supreme Court’s decision in 

N.L.R.B. v. Katz, which held “that an employer’s unilateral 

change in conditions of employment under negotiation is 

similarly a violation of [Section 8(a)(5) of the NRLA, 29 

U.S.C. § 158(a)(5)], for it is a circumvention of the duty to 

negotiate which frustrates the objectives of [Section 8(a)(5)] 

much as does a flat refusal.”3

 369 U.S. 736, 743 (1962); see 

also Bottom Line Enters., 302 NLRB 373, 374 (1991) (citing 

Katz, 369 U.S. 736) (“[W]hen, as here, the parties are engaged 

in negotiations, an employer’s obligation to refrain from 

unilateral changes extends beyond the mere duty to give notice 

and an opportunity to bargain; it encompasses a duty to refrain 

from implementation at all, unless and until an overall impasse 

has been reached on bargaining for the agreement as a 

whole.”).

3 As a technical matter, we have explained that such a 

unilateral change violates Section 8(a)(5) directly, while 

Section 8(a)(1) is violated derivatively because “[b]y 

unilaterally changing the employees’ terms and conditions of 

employment, an employer ‘minimizes the influence of 

organized bargaining’ and ‘emphasiz[es] to the employees that 

there is no necessity for a collective bargaining agent.’” 

Citizens Publ’g, 263 F.3d at 233 (quoting May Dep’t Stores 

Co. v. N.L.R.B., 326 U.S. 376, 385 (1945)). Because that 

distinction makes no difference to the question before us, we 

do not give it further attention.
8

The Supreme Court in Litton made clear that, although 

an expired CBA may “by its own terms release[] all its parties 

from their respective contractual obligations,” the expired 

CBA remains of central importance to the status quo inquiry.

501 U.S. at 206. That is, the terms of the expired CBA “‘retain 

legal significance because they define the status quo’ for 

purposes of the prohibition on unilateral changes.” Id. (quoting 

Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 26 (2d Cir. 

1988). Thus, whether a particular term survives a CBA’s 

expiration depends on the contracting parties’ intent as 

embodied in the CBA. 

2. Right to Make Entrepreneurial Decisions

More than forty years ago, in First National

Maintenance, the Supreme Court considered whether “an 

employer, under its duty to bargain in good faith ‘with respect 

to wages, hours, and other terms and conditions of 

employment,’ ... [must] negotiate with the certified 

representative of its employees over its decision to close a part 

of its business?” 452 U.S. at 667 (quoting 29 U.S.C. §§ 158(d) 

and 158(a)(5)). The Court answered no. Id. at 686. 

In doing so, it noted that the NLRA does not require

employers to bargain over entrepreneurial decisions. The 

Court explained that, while employers and employees are “free 

to bargain about any legal subject,” the congressionally 

mandated duty to bargain is “limited ... to matters of ‘wages, 

hours, and other terms and conditions of employment.’” Id. at 

674-75. These are mandatory subjects of bargaining. And an 

employer’s unilateral change to such matters “violates the 

statutory duty to bargain and is subject to the Board’s remedial 

order.” Id. at 674-75 (citing Katz, 369 U.S. 736). 
9

Nevertheless, the Court made it plain that, “in 

establishing what issues must be submitted to the process of 

bargaining, Congress had no expectation that the elected union 

representative would become an equal partner in the running 

of the business enterprise in which the union’s members are 

employed.” Id. at 676. Instead, “the union must be given a 

significant opportunity to bargain about [the related] matters of 

job security as part of the ‘effects’ bargaining mandated by 

§ 8(a)(5).” Id. at 681. In that way, the union can still play a 

salutary role once the entrepreneurial decision is made. Id. at 

682.

B. Factual Background4

The Post-Gazette publishes a daily newspaper and the 

Union has represented the Newspaper’s pressmen and 

paperhandlers for many years, including all times relevant to 

the petitions before us. The Post-Gazette’s now-expired CBA 

with the Union became effective November 16, 2014. That 

CBA contained a clause providing that the whole agreement 

would terminate on March 31, 2017.5

 During the duration of 

4 The Post-Gazette and General Counsel agreed to 

proceed before the ALJ on a stipulated record, including 

exhibits. Except for the extent of effects bargaining, this case 

does not turn on any dispute of material fact. 

5 The cover page of the expired CBA states: “Effective: 

November 16, 2014” and “Expires: March 31, 2017.” (J.A. at 

209.) On the first page of the body of the expired CBA, in 

Section 1.2, it provides: “This Agreement shall continue in 

force from its effective date until and including the shift 
10

the CBA, the Newspaper published a print edition seven days 

a week. 

Section 10.2 of the expired CBA provides a five-shift 

guarantee and states in pertinent part:

Effective the first payroll week following the 

signing of the collective bargaining agreement, 

all employees listed by name at the time of the 

signing of this Agreement shall be guaranteed a 

five (5) shift mark-up each payroll week for the 

balance of the Agreement, ending March 31, 

2017, except under the following circumstances

....

(J.A. at 217.)6

The Post-Gazette and the Union began negotiating for a 

successor CBA in March 2017, but they have not yet entered 

starting March 31, 2017[,] and from year to year thereafter,” 

unless written notice is given by either party “of its intention 

to open negotiations for a new agreement[.]” (J.A. at 212.) No 

one has argued that the requisite notice was not given.

6 The exceptions in Section 10.2 do not deal with 

extending the duration of the provision. Rather, they deal with 

exceptions to the five-shift guarantee that were available while 

that provision was in effect. No one argues that those 

exceptions are implicated here, as the Post-Gazette has not 

attempted to justify firing Murrio or Jenkins in accordance with 

an exception that would have obtained if the five-shift 

guarantee had remained binding on it.
11

into such an agreement. In June 2018, fifteen months after the 

expiration of the CBA, the Post-Gazette informed the Union 

that the newspaper would undergo a transition to an all-digital 

format, beginning in August 2018 with a reduction from a daily 

print edition to only five print editions each week, and that

there would be consequent layoffs, starting with the 

paperhandlers. It is undisputed that the Post-Gazette engaged 

in some bargaining over the effects flowing from the decision 

to go all-digital, including the layoffs. 

In August 2018, according to plan, the Newspaper 

eliminated its Tuesday and Saturday print editions. Although 

the Post-Gazette and the Union had not bargained to an overall 

impasse on the content of a successor CBA, Messrs. Murrio 

and Jenkins were laid off roughly six weeks later, in October 

2018. 

C. Procedural Background

1. Proceedings Before the ALJ

After those layoffs, the Union filed a charge of unfair 

labor practices with the Board.7

 The Board’s General Counsel

then issued an administrative complaint in March 2020, 

noticing a hearing for June 2020. The Post-Gazette filed an 

answer, including several affirmative defenses. At the parties’ 

joint request, the ALJ accepted factual stipulations and briefing 

without holding a hearing. 

7 The Union filed the unfair labor practice charge on 

January 7, 2019, filing an amended charge on February 14, 

2019. References herein are to the amended charge.
12

In his briefing to the ALJ, the General Counsel argued 

that the Post-Gazette violated the NLRA in two ways.8

 The 

first was “by eliminating the five shift per week guarantee and 

laying off two paperhandlers because it was engaged in 

successor contract negotiations at the time and ... could not 

unilaterally implement layoffs, a mandatory subject of 

bargaining, absent overall impasse.” (J.A. at 369.) The second 

was by laying off Murrio and Jenkins, which, according to the 

General Counsel, “constituted a violation of [the PostGazette’s] statutory duty to maintain the status quo, which 

arguably included the minimum-shift guarantee.” (J.A. at 369

(citing Finley Hosp., 362 NLRB 915 (2015).) The General 

Counsel also asked the Board to overrule the decision he was 

relying on for that point, Finley Hospital.

9

 (J.A. at 369, 377-

80.)

8 Part of the administrative complaint dealt with certain 

information requests from the Union to the Post-Gazette. The 

ALJ upheld the Post-Gazette’s disposition of those requests, 

and the Board affirmed the ALJ on that point. No one has 

challenged that aspect of the Board’s decision, so there is no 

need to discuss it further. 

9 In relevant part, the Board’s Finley Hospital decision 

stands for two propositions. The first is that most terms in an 

expired CBA – at least those touching on a point of mandatory 

bargaining (i.e., wages, hours, and other terms and conditions 

of employment) – continue during the pendency of 

negotiations of a successor CBA by operation of the NLRA.

362 NLRB 915, 916-18 (2015). The second is that, with 

respect to such a term, it is not enough that an expired CBA 

provides that the term is no longer operative as a contractual 

matter. Id. at 917-18. Instead, the CBA must contain “clear 
13

For its part, the Post-Gazette advanced two lines of

argument before the ALJ that are pertinent here. Invoking

First National Maintenance, the Post-Gazette declared that it 

had made a non-bargainable entrepreneurial decision to move 

to an all-digital format, so it needed only to engage in adequate, 

good faith “effects” bargaining regarding the layoffs, and had 

done so. Its second argument was that the five-shift guarantee, 

according to its terms, did not survive the expiration of the 

CBA and so did not become part of the post-expiration status 

quo. In a footnote to that latter argument, the Newspaper 

“agree[d] with the General Counsel’s position that Finley 

Hospital was wrongly decided and should be overturned[.]” 

(J.A. at 329 n.2.)

2. The ALJ’s Decision

The ALJ dismissed the General Counsel’s 

administrative complaint. In so doing, he noted that parties 

negotiating a successor collective bargaining agreement are 

generally required to bargain until they reach an overall 

impasse before either may unilaterally change the status quo;

that the five-shift guarantee was part of the status quo; and that 

the parties had not reached an overall impasse on a new CBA. 

He also thought it obvious that, “as a general matter, layoffs 

proposed during contract negotiations are subject to the ... 

overall-impasse rule.”10 (J.A. at 19.) The ALJ thus reasoned, 

and unmistakable” language sufficient to waive a statutory 

right to prevent the continuation of that term post-expiration. 

Id. at 916.

10 As he explained, under Board precedent, “it is longsettled that the decision to lay off unit employees is a 

mandatory subject of bargaining.” (J.A. at 18 (citing, among 
14

“[e]ven granting, arguendo, the [Post-Gazette]’s premise that 

the section 10.2 [five-shift] guarantee did not continue as part 

of the postexpiration status quo, this would not give the [PostGazette] the right to impose layoffs without bargaining during 

collective-bargaining negotiations for a new agreement.” (J.A. 

at 18 n.7.)

And yet the ALJ recognized the “difficult issue” that, 

“while the [Post-Gazette]’s layoff proposals arose during 

contract negotiations, they arose as a result and effect of the 

[Post-Gazette’s] decision to become a digital news 

organization and reduce print operations.” (J.A. at 19.) 

Although there was no Board precedent directly on point, the 

ALJ concluded that “application of the ... overall-impasse rule 

to bargaining over layoffs that are the effect of a nonbargainable decision is inconsistent with the Board’s approach 

to effects bargaining.”11 (J.A. at 20.) Thus, the ALJ rejected 

the argument that the layoffs constituted an unfair labor 

practice and dismissed it accordingly. He also concluded that 

other things, Tri-Tech Servs., 340 NLRB 894, 895 (2003) (“It 

is well established that the layoff of unit employees is a change 

in terms and conditions of employment over which an 

employer must bargain.”))). 

11 In Bottom Line Enterprises, the Board laid out the 

overall impasse rule, saying, “[w]hen ... the parties are 

engaged in negotiations, an employer’s obligation to refrain 

from unilateral changes extends beyond the mere duty to give 

notice and an opportunity to bargain; it encompasses a duty to 

refrain from implementation at all, unless and until an overall 

impasse has been reached on bargaining for the agreement as a 

whole.” 302 NLRB at 374 (citing Katz, 369 U.S. 736).
15 

the General Counsel had forfeited the separate but related 

theory of liability that the elimination of the five-shift 

guarantee was itself an improper departure from the status quo. 

In essence, the ALJ ruled that only one theory of liability had 

been properly advanced, a theory based on the layoffs. 

3. Proceedings Before the Board 

The General Counsel filed exceptions to the ALJ’s 

decision, and, despite prevailing before the ALJ, the PostGazette filed cross-exceptions.12 The General Counsel’s 

exceptions continued to advance his earlier positions, 

contending that the Post-Gazette engaged in unfair labor 

practices in two ways. First, he argued that the layoffs 

“violated Section 8(a)(5) of the Act because [the Post-Gazette] 

was engaged in successor contract negotiations at the time and

... could not lawfully unilaterally implement layoffs and 

thereby eliminate the minimum shift guarantee, mandatory 

subjects of bargaining, absent overall impasse.” (General 

Counsel’s Br. in Support of Exceptions at 3.) And, second, 

“under Finley Hospital, the layoffs constituted a violation of 

its statutory duty to maintain the status quo, which included a 

guarantee that workers would receive minimum number of 

shifts per week.” (Id.) The General Counsel continued to 

maintain that Finley Hospital ought to be overruled.13 (Id. at 

12 We note that the General Counsel’s brief in support 

of his exceptions was inadvertently omitted from the Joint 

Appendix. But it is publicly available on the Board’s docket 

under Case 06-CA-233676. https://www.nlrb.gov/case/06-

CA-233676 (last visited on Aug. 23, 2023). 

13 During the pendency of the matter before the Board, 

General Counsel Peter Robb (an appointee of former President
16

7.) He argued that “the ALJ wrongfully found that the 

unilateral elimination of the shift guarantee was not an 

independent violation of the Act[.]” (Id. at 6.)

The General Counsel made plain his disagreement with 

the notion that only one theory of liability was before the ALJ 

and that the overall-impasse rule did not apply. The “layoffs 

constituted a unilateral change in terms and conditions of 

employment[,]” the General Counsel said, “[e]ven granting, 

arguendo, [the Post-Gazette’s] premise that the section 10.2 

guarantee did not continue as part of the postexpiration status 

quo[.]” (Id. at 11 (quoting the ALJ’s decision).) He also 

argued “that the ALJ erred in finding that the ... overallimpasse rule is not applicable here ... .”14 (Id. at 10.)

Donald Trump) was removed from office. Acting General 

Counsel Peter Sung Ohr sought to file a supplemental brief to 

withdraw that recommendation, a request the Post-Gazette 

opposed. The request was denied. This apparent change of 

views is not the focus of the briefing before us. Thus, it is not 

further discussed herein and does not play a role in our 

decision. 

14 The General Counsel also questioned the legal basis 

for the ALJ’s conclusion that the overall-impasse rule does not 

apply when an employer makes layoffs based on an 

entrepreneurial decision. For example, the General Counsel 

said that “[t]he ALJ failed to recognize that this area of law is 

unclear, and the Board should clarify what an employer’s 

obligations are in this situation accordingly.” (General 

Counsel’s Br. in Support of Exceptions at 10.) He did not 

dispute that the “decision to move towards a digital news 

organization and reduce print operations by two-days a week 
17

The Post-Gazette advanced fourteen cross-exceptions, 

reiterating its positions that Finley Hospital should be 

overruled, that the five-shift guarantee had expired, and that 

First National Maintenance controls the outcome of this case. 

Additionally, the Post-Gazette urged that the ALJ had erred by 

failing to conclude that, after it had “provided notice and 

offer[ed] to discuss the effects of its non-bargainable decision

[to go digital], [the Post-Gazette] bargained to a lawful impasse 

before lawfully implementing its layoff effects proposal.” 

(J.A. at 395.)

4. The Board Majority’s Decision

The full Board, divided three to two, reversed the ALJ’s 

dismissal and concluded that the Newspaper had, indeed, 

engaged in an unfair labor practice. The Board majority 

rejected the ALJ’s decision in three ways pertinent to this 

appeal. First, it concluded that, “contrary to the [ALJ’s 

determination,] the General Counsel’s brief to the [ALJ] 

confirmed that the General Counsel had raised two theories of 

liability under Section 8(a)(5) of the Act, one of which was that 

the layoffs were unlawful because they constituted a violation 

of the [Post-Gazette]’s statutory duty to maintain the status 

quo, which included a guarantee that workers would receive a 

is a nonbargainable entrepreneurial decision under First 

Maintenance.” (Id. at 12.) Rather he argued that, if “the Board 

finds that [the Post-Gazette] was not bound to the ... overallimpasse rule in these circumstances, the parties did not bargain 

to impasse over the effects of [the Post-Gazette]’s decision, nor 

did the Union clearly and unmistakably waive its right through 

bargaining.” (Id. at 14.)
18

minimum number of shifts per week.” (J.A. at 29.) In other 

words, the Board majority determined that there were two

theories of liability – one premised on the layoffs, the other 

premised on the elimination of the five-shift guarantee – and 

that neither had been forfeited.

Second, the Board majority expressly reaffirmed its 

Finley Hospital precedent and then, under that authority, 

condemned the elimination of the five-shift guarantee. 

According to the majority:

The five-shift guarantee is a mandatory subject 

of bargaining; it was an established term of 

employment under the parties’ collectivebargaining agreement .... It is therefore clear 

that the [Post-Gazette] was barred from 

unilaterally terminating the five-shift guarantee 

at the expiration of the collective-bargaining 

agreement (and thereby laying off employees 

covered by the five-shift guarantee), absent 

either an impasse in bargaining with the Union 

or a waiver by the Union of the right to demand 

compliance with the guarantee on behalf of 

bargaining unit employees. Here, the parties 

stipulated that they were not at an overall 

impasse. And, ... the parties’ collectivebargaining agreement contains no language 

clearly and unmistakably waiving the Union’s 

statutory right to maintenance of the five-shift 

guarantee (unless and until the parties reached an 

impasse in bargaining or a new collectivebargaining agreement). Accordingly, the [PostGazette] violated the [National Labor Relations] 
19

Act by unilaterally failing to abide by the [five]-

shift guarantee with respect to the two 

employees[, Murrio and Jenkins].

(J.A. at 32 (footnotes omitted).)

Third, having concluded that the termination of Murrio 

and Jenkins constituted an unfair labor practice, the Board 

majority declined to discuss whether the overall-impasse rule 

ought to be applied to bargaining over the effects of a nonbargainable decision. The Board majority nevertheless 

acknowledged that the Post-Gazette’s decision to “transition to 

an all-digital format and eliminate 2 days of print publication 

per week was a core entrepreneurial decision over which the 

[Newspaper] had no duty to bargain.” (J.A. at 32 n.18.) But, 

the majority said, “[t]his entrepreneurial decision ... did not 

alter the terms of its preexisting collective-bargaining 

agreement with the Union or the resulting postexpiration status 

quo that it had a statutory obligation to maintain, including the 

five-shift guarantee, independent of any effects-bargaining 

obligation.” (Id.)

5. Board Dissent

Two members of the Board joined in a vigorous dissent. 

They would have held that the five-shift guarantee did not 

survive the expiration of the CBA, that the Board’s Finley 

Hospital precedent was no longer good law, and that the 

Supreme Court’s opinion in First National Maintenance 

dictated a decision in favor of the Post-Gazette. 

On the first point, the dissenting Board members said 

that a contractual obligation ends when a CBA expires and 
20

only becomes part of the post-expiration status quo when the 

expired CBA expressly provides by its terms that it survives. 

In support of this position, which might be called their “express 

condition” argument, the dissenting members quoted the 

Supreme Court’s decision in M & G Polymers USA, LLC v. 

Tackett, 574 U.S. 427 (2015), and said, “contractual

obligations will cease, in the ordinary course, upon termination 

of the bargaining agreement.” (J.A. at 43 (quoting Tackett, 574 

U.S. at 441-42, which in turn quotes Litton, 501 U.S. at 207).) 

The dissenters observed, however, that it was unnecessary to 

go that far to resolve the case. In their view, it was evident

that, based on the text of the CBA, the five-shift guarantee was 

not intended to form part of the post-expiration status quo. 

They described the text of Section 10.2 as “doubly 

reinforc[ing] the durational limitation of the five-shift 

guarantee: not only did the guarantee apply only ‘for the 

balance of the Agreement,’ but section 10.2 also set a specific 

end date for the five-shift guarantee, ‘March 31, 2017.’” (J.A. 

at 43.) Accordingly, the “durational language is properly 

interpreted to terminate the five-shift guarantee for statutory 

purposes[.]” (J.A. at 43.)

As to the second point, the dissent framed the question 

as “whether an employer engaged in negotiations for a 

successor collective-bargaining agreement must refrain from 

implementing layoffs necessitated by a non-bargainable 

decision in the absence of an overall impasse in negotiations.” 

(J.A. at 47.) The dissent concluded that the ALJ had correctly 

answered that question with a “no.” 

But the dissent went on to say that the result the ALJ 

reached was compelled by First National Maintenance, 452 

U.S. 666, rather than being merely derived implicitly from the 
21

Board’s precedent on effects bargaining, as the ALJ had 

concluded.

15 According to the dissent, “subjecting effects 

bargaining to the overall-impasse rule” would permit a union 

to thwart management’s ability to implement a nonbargainable decision if it has the “opportunity for delay[] over 

issues entirely unrelated to the managerial decision in 

question.” (J.A. at 47.)

6. Cross-Petitions

The case has arrived in our Court via the Post-Gazette’s

petition for review of the Board’s decision and the General 

Counsel’s petition for enforcement of the same. The Union has 

filed a brief as intervenor. 

II. DISCUSSION16

A. The Five-Shift Guarantee

The Post-Gazette’s arguments largely track those 

advanced by the Board dissent. Although it endorses the Board 

15 The Supreme Court analogized the “decision[] 

involving a change in the scope and direction of the 

enterprise,” to “the decision whether to be in business at all[.]” 

452 U.S. at 677. Such a decision is non-bargainable and only 

requires the employer to bargain “over the effects of [the] 

decision . . . in a meaningful manner and at a meaningful 

time[.]” Id. at 681-82. 

16 The Board had jurisdiction pursuant to 29 U.S.C. 

§ 160(a), (c) to prevent unfair labor practices under 29 U.S.C. 

§ 158(a)(1), (5). We have jurisdiction to consider a petition for 

enforcement filed by the General Counsel under 29 U.S.C. 
22

dissent’s express condition argument concerning the status of 

expired CBAs,17 the Newspaper does not put all its eggs in that 

basket. Citing the Supreme Court’s decisions in Tackett and 

CNH Indus. N.V. v. Reese, 138 S. Ct. 761 (2018), each of which 

stated that expired CBAs are generally interpreted according to 

ordinary contract principles, the Post-Gazette contends that it 

prevails under the more modest argument that, in light of

Section 10.2’s express statement that “the guarantee would be 

in effect ‘for the balance of the Agreement, ending March 31, 

2017,’” “there is only one way to interpret the five-shift 

guarantee – it ended with the Agreement on March 31, 2017[,]”

§ 160(e). And we have jurisdiction to consider the PostGazette’s petition for review of the Board’s order under 29 

U.S.C. § 160(f). “An order of the Board is customarily entitled 

to enforcement if its findings are supported by substantial 

evidence and the order is consistent with the policies of the 

NLRA.” Int’l Bhd. of Elec. Workers, Loc. 803, AFL-CIO v. 

N.L.R.B., 826 F.2d 1283, 1287 (3d Cir. 1987). And the Board’s 

interpretation of the NLRA will be “upheld unless it represents 

‘an unreasonable or an unprincipled construction of the 

statute[.]’” Id. (quoting Ford Motor Co. v. N.L.R.B., 441 U.S. 

488, 497 (1979)). But we owe the Board no deference on 

matters of contractual interpretation, even when undertaken in 

connection with unfair labor practice proceedings. Litton, 501 

U.S. at 202-03.

17 Again, as noted supra in Section I.C.5, the express 

condition argument contends that, in the absence of express 

contractual language providing that a term survives the 

expiration of the CBA, the term does not become part of the 

post-expiration status quo for statutory purposes under the 

NLRA.
23 

and so never became part of the post-expiration status quo. 

(See, e.g., Opening Br. at 9.) 

The General Counsel responds with a defense of the 

Board’s majority opinion. He says the Board was correct to 

apply a clear-and-unmistakable-waiver standard to determine 

whether the five-shift guarantee became part of the status quo 

and thus survived the CBA’s expiration.18 He also argues that 

nothing in Tackett and Reese overruled or modified Litton’s 

emphasis on the importance of an expired CBA in establishing 

the background status quo for bargaining over a new CBA, as 

those later decisions examined expired CBAs in the context of 

the Employee Retirement Income Security Act of 1974

(“ERISA”), not in an NLRA case. Thus, the General Counsel 

argues, under the waiver standard, the Board correctly 

determined that the five-shift guarantee was part of the postexpiration status quo. The Union’s arguments are effectively 

identical to those advanced by the General Counsel on the fiveshift guarantee issue, so we do not set them out separately. 

The dispute over the five-shift guarantee thus boils 

down to this: whether ordinary contract principles or the 

heightened standard applicable to the waiver of a statutory 

right, i.e., the clear-and-unmistakable-waiver standard, should 

apply in determining whether a provision in an expired CBA 

becomes part of the post-expiration status quo for purposes of 

future labor negotiations. We believe the answer to that 

question inheres in the Supreme Court’s observation in Litton

18 The General Counsel also contends that the PostGazette has abandoned any argument that the clear-andunmistakable-waiver standard was satisfied. 
24

that the terms of an expired CBA “retain legal significance 

because they define the status quo.” Litton, 501 U.S. at 206 

(emphasis added) (quoting Derrico, 844 F.2d at 26, in a 

parenthetical, while citing Derrico more broadly, 844 F.2d at 

25-27). We are thus directed to the language of the CBA in 

question, and to the ordinary principles of contract 

interpretation, to determine whether a particular term forms 

part of the status quo. If the language of the CBA does not 

indicate that the term in question persists as part of the status 

quo, the inquiry ends. If, but only if, the contract indicates in 

some fashion that the term does form part of the postexpiration status quo – and therefore continues to govern the 

parties by operation of the NLRA – then the employer must 

meet the clear-and-unmistakable-waiver standard if it wishes 

to assert that its employees have waived their statutory right to 

the benefits of the contested term.

The Board majority misapprehended the lesson of 

Litton. That lesson is best understood by first considering the 

Second Circuit’s decision in Derrico, which provided a cogent

explanation of “the post-expiration effect of a CBA[,]” and 

which Litton cited with approval.

19 The Second Circuit said it 

19 In Derrico, the plaintiff was a registered nurse who 

was fired after the expiration of a collective bargaining

agreement between his former employer, a hospital, and his 

former union, while that employer negotiated a successor 

agreement with a new union. 844 F.2d at 23. After the Acting 

Regional Counsel for the Board declined to issue a complaint 

under the NLRA as to either of the two charges, the nurse sued

for breach of contract in New York state court. Id. at 24. As 

relevant here, after the case was removed to district court, the 

court construed that claim to proceed on the theory that “the 
25

was a mistake to believe “that federal law preserves the expired 

CBA ‘in full force and effect’ pending an impasse in 

bargaining.” Derrico, 844 F.2d at 26. Rather, there was an 

overarching principle “that the parties must maintain the status 

quo until they have negotiated to impasse, and an employer’s 

unilateral change of terms and conditions of employment 

during this process constitutes” an unfair labor practice. Id. 

(citing Katz, 369 U.S. at 743). And further, there was “[a] 

corollary to this principle[, namely,] that after expiration of a 

CBA and before impasse in bargaining, it is an unfair labor 

practice for an employer unilaterally to alter the status quo

defined by the expired contract.” Id. Consequently, the 

Second Circuit said, in language later quoted in Litton, “[t]he 

terms of an expired agreement ... retain legal significance 

because they define the status quo.” Id. But, of particular 

importance here, the Derrico court went on to observe that 

“[r]ights and duties under a collective bargaining agreement do 

not otherwise survive the contract’s termination at an agreed 

expiration date.” Id. at 26-27.

for-cause limitation in the expired CBA” became part of a 

separately enforceable implied contract under New York law 

between the plaintiff and his employer. Id. The district court 

then dismissed the case “on the ground that the complaint 

raised issues within the primary jurisdiction of the NLRB.” Id. 

The Second Circuit affirmed that removal was proper and that 

the case was indeed preempted by federal law. Id. at 27-29. In 

so doing, the court found it necessary to summarize its 

“understanding of the post-expiration effect of a CBA.” Id. at 

26.
26

The implication here is that not everything in a CBA 

should be taken as constituting the status quo that must be 

honored during later negotiations. Rather, ordinary contract 

principles must be applied to analyze which provisions of an 

expired CBA define the status quo; those provisions then 

continue to have effect, while the rest of the CBA lapses at the 

agreed-upon expiration date. While the Supreme Court, in 

approving the approach laid out in Derrico, said that, “after 

expiration [of a CBA,] most terms and conditions of 

employment are not subject to unilateral change[,]” 501 U.S. 

at 206, it did not suggest that everything in a CBA defines the 

status quo.

The Board majority failed to follow the appropriate

analytical path because it evidently read the word “most” in 

Litton to mean that all subjects of mandatory bargaining 

necessarily form the post-expiration status quo and so continue 

unless the clear-and-unmistakable-waiver standard attendant 

to statutory rights is met. The General Counsel and the Union 

advance that same view before us. 

In their collective reasoning, use of the word “most” 

carves out only non-mandatory subjects of bargaining such as 

“arbitration provisions, no-strike clauses, and union-security 

agreements” from being part of the post-expiration status quo. 

(General Counsel Br. at 13 & n.4.) Or, in the words of the 

Board majority, the five-shift guarantee is not among such

“categorical exceptions” to the prohibition on unilateral 

changes to the status quo, as laid out in the rule enunciated in 

Katz, 369 U.S. at 743, and reiterated in Litton. (J.A. at 32.) 

But “most” does not mean “all.” And simply because 

certain provisions in an expired CBA may address subjects 
27

besides the mandatory-bargaining issues captured in the phrase 

“wages, hours, and other terms and conditions of 

employment,” 369 U.S. at 742-43, that does not mean that all 

other provisions in an expired CBA are necessarily included in 

the post-expiration status quo. Nothing in Supreme Court 

jurisprudence says that any provision touching on subjects of 

mandatory bargaining is by law included in the post-expiration 

status quo without reference to the terms of the expired CBA. 

In Litton, the questions were, first, whether a CBA 

provision dealing with arbitration of certain labor grievances 

survived the CBA’s expiration and covered the period before a 

successor CBA was entered into, and second, if so, whether the

survival of that provision was (i) a contractual matter pursuant 

to the terms of the expired CBA, (ii) a result of the statutory 

obligation not to unilaterally change the status quo, or (iii) 

both. 501 U.S. at 193, 198-99, 203-06. Properly understood, 

Litton was making the non-controversial point that just because 

it had concluded a provision at issue in another case – Nolde 

Bros., Inc. v. Bakery Workers, 430 U.S. 243 (1977) – and it had 

survived as a matter of contract law in the circumstances of that 

case, there was no reason to believe the same would be true in 

every case. As the Litton Court stated:

We agree with the approach of the Board and 

those courts which have interpreted Nolde 

Brothers to apply only where a dispute has its 

real source in the contract. The object of an 

arbitration clause is to implement a contract, not 

to transcend it. Nolde Brothers does not 

announce a rule that post[-]expiration grievances 

concerning terms and conditions of employment 

remain arbitrable.
28

Litton, 501 U.S. at 205.

It was in connection with that last sentence that Litton

uttered the words the Board majority used to dismiss Tackett, 

namely, that “no language in Tackett casts doubt on Litton’s 

teaching that most terms and conditions of employment 

continue, by operation of law, pending impasse or agreement 

over a successor contract.” (J.A. at 35-36 n.30.) But, again,

whether a term doessurvive requires analysis of the contractual 

language. Litton certainly does not suggest that a contract term

providing for its own expiration at the end of the CBA should

not be given effect.

1. Finley Hospital

The proper relationship between ordinary contract law 

principles and the question of the post-expiration status quo 

was aptly illustrated by the Eighth Circuit’s refusal to enforce 

the Board’s decision in Finley Hospital, 362 NLRB 915. In 

that case, the Eighth Circuit dealt with a Board majority’s 

decision that Finley Hospital had violated the NLRA by 

“unilaterally discontinuing annual pay raises negotiated in a 

one-year collective bargaining agreement ... without 

bargaining with” the union representing the hospital’s nurses. 

Finley Hosp. v. N.L.R.B., 827 F.3d 720, 722 (8th Cir. 2016). 

The court held that the Board majority had erred in determining 

“that the one-year-long CBA with the Union established a 

status quo of annual, compounded raises that, under the NLRA, 

must be continued after the agreement’s expiration.”20 Id. at 

20 The analysis is instructive. The Eighth Circuit began 

its analysis with five straightforward points (some specific to 
29

724. The court correctly identified a flaw in the Board 

majority’s analysis: The Board did not bother to “discuss[] 

exactly how the language of [the CBA provision in question] 

established a status quo of annual pay raises[.]” Id. Instead, it 

“simply assumed that because the CBA authorized a one-time 

3% pay raise, annual 3% raises automatically became part of 

the status quo that must be maintained during negotiations.” 

Id. Thus, the court observed, in the words of the Board’s 

dissenting member in that case, the majority ignored the “time 

constraint that was an inherent part of the wage increase 

obligation, ... mak[ing] a time-bound obligation into a 

perpetual one.” Id. at 725.

The Eighth Circuit noted there was no basis offered 

under the NLRA or contract law to support the Board’s 

that CBA): First, under “[t]he unilateral change doctrine ... ‘an 

employer’s unilateral change in conditions of employment 

under negotiation is’” an “unfair labor practice.” Finley Hosp., 

827 F.3d at 724 (quoting Katz, 369 U.S. at 743). Second, “[t]he 

terms and conditions that continue as part of the status quo 

under the unilateral change doctrine ‘are no longer agreedupon terms; they are terms imposed by law.’” Id. (quoting 

Litton, 501 U.S. at 206). Third, the parties agreed that, 

“because the CBA had expired, the Hospital no longer had any 

contractual obligations.” Id. Fourth, that left “[t]he critical 

inquiry[, namely,] whether there existed an established practice 

or status quo that created a statutory obligation of 

compounded, annual raises.” Id. (first alteration in original) 

(cleaned up). And, fifth, “[t]he Board relied solely on its 

interpretation of Article 20.3 of the CBA to conclude that 

continuing 3% pay increases were part of the status quo.” Id.
30

decision. As for the NLRA, “[t]he purpose of the [Act] was 

surely not to make all wage terms in every employment 

agreement last beyond the tenure of the bargained-for 

agreement.” Id. On the question of contract interpretation, the 

court reasoned that “the raise-providing provision[] states that 

it applies only ‘for the duration of this Agreement[,]’ [and t]hat 

phrase, or a slight variation of that phrase, is used three times 

in [that provision], and the parties knew that the CBA expired 

in one year.” Id.

The Eighth Circuit concluded that the provision, by its 

“plain language,” “does not, as the Board states, provide for 

periodic wage increases or annual raises; rather, the language 

sets forth a straight forward, singular pay increase on a 

particular day during the one-year contract.” Id. And, further, 

it was not a situation where a status quo was created absent a 

contractual provision by operation of a “longstanding practice 

of giving such raises.” Id. at 726. Consequently, because the 

Eighth Circuit held that the provision “did not establish a status 

quo of, and thus a statutory right to, annual 3% raises,” that 

ended the matter without necessitating a consideration of 

whether “the [u]nion waived its alleged statutory right to postexpiration raises.” Id. Accordingly, the court set aside the 

Board’s decision on that point, affirming as to non-contested 

ancillary points. Id. at 726-27.

2. Wilkes-Barre Hospital

The decision of the D.C. Circuit in Wilkes-Barre Hosp. 

Co., LLC v. N.L.R.B., 857 F.3d 364 (D.C. Cir. 2017), likewise 

models the proper analysis for determining whether a term in 

an expired CBA forms part of the post-expiration status quo. 

There, the employer, who operated a hospital in Wilkes-Barre, 
31

Pennsylvania, sought review of the Board’s decision that it had 

committed an unfair labor practice “by unilaterally ceasing the 

payment of longevity-based wage increases to its nurses after 

the expiration of the parties’ collective bargaining agreement.” 

Id. at 367. The hospital argued 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.” Id. The D.C. Circuit denied the petition for 

review and enforced the Board’s order. Id.

Helpfully for our purposes, after explaining that the 

“primary dispute in this case concerns the proper determination 

of the post-expiration status quo[,]” the D.C. Circuit examined 

the expired CBA and determined, through the contract’s 

“language and structure, [that it] establishe[d] two distinct 

types of wage increases: across-the-board raises and longevitybased increases.”21 Id. at 374-75. The court concluded that the 

“terms of the ... CBA establish that the payment of longevitybased increases represents the post-expiration status quo,” but 

that was not the case for the across-the-board raises. Id. at 376. 

According to the court, “[t]he longevity-based increases, 

21 The D.C. Circuit did so after observing that, “[i]n 

defining the post-expiration status quo in this case, therefore, 

we look to the substantive terms of the 2011 CBA.” WilkesBarre Hosp., 857 F.3d at 374. Though it does not cite Litton

for that proposition, lines earlier it relied on the pertinent 

portion of Litton, stating “certain terms of an expired 

agreement extend beyond the agreement’s expiration and 

continue to ‘define the status quo[.]’” Id. (quoting Litton, 501 

U.S. at 206).
32

unlike the across-the-board raises, were tied to an individual 

nurse’s anniversary date, not to the term of the agreement.” Id. 

at 375. “Specifically, the agreement state[d] that longevitybased increases were to be paid on ‘January 27th of the year 

following the employee’s anniversary date.’” Id. Only after 

that nuanced examination of the durational language associated 

with the two types of pay increases did the D.C. Circuit 

consider whether the durational language associated with the 

longevity increases was sufficient to constitute a waiver. Id. 

Wilkes-Barre Hospital therefore supports the 

proposition that we are to apply ordinary contract principles to 

assess, in the first instance, whether a term in an expired CBA 

constitutes part of the post-expiration status quo. And, further, 

we read Wilkes-Barre Hospital as teaching that dates supplied 

in a challenged provision are properly considered, before any 

consideration of waiver, to determine whether the parties 

intended that provision to end with the expiration of the CBA. 

Notably, neither Finley Hospital nor Wilkes-Barre 

Hospital suggests that the Supreme Court’s decision in Tackett

represented a sea change. Instead, each cites Tackett for the 

modest proposition that “[w]e interpret collective-bargaining 

agreements ... according to ordinary principles of contract law, 

at least when those principles are not inconsistent with federal 

labor policy.” Finley Hosp., 827 F.3d at 725 (quoting Tackett, 

574 U.S. at 435); see also Wilkes-Barre Hosp., 857 F.3d at 373 

(“When interpreting a collective bargaining agreement, we 

generally apply ‘ordinary principles of contract law.’”)

(quoting Tackett, 574 U.S. at 435). Furthermore, there is no 

indication that either court viewed Tackett – which, as 

previously noted, examined an expired CBA in the context of 

ERISA – as overruling or modifying Litton on the proper 
33

understanding of the NLRA. And Tackett makes no suggestion 

that it does. The same is true of Reese.

22 

Consequently, we do not endorse the more sweeping 

proposition advocated by the Board dissent that the terms in an 

expired CBA form a part of the post-expiration status quo only 

when there is some explicit statement by the parties. We see 

no support for that proposition in Tackett or Reese.

3. Application

With all that in mind, we apply ordinary contract law 

principles to ascertain whether the five-shift guarantee became 

part of the post-expiration status quo. As the Supreme Court 

has explained, the task of contract interpretation does not 

materially differ when that contract is an expired CBA. That 

is, “[i]n this endeavor, as with any other contract, the parties’ 

intentions control.” Tackett, 574 U.S. at 435 (quoting StoltNielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682 

(2010)). Thus, “[w]here the words of a contract in writing are 

clear and unambiguous, its meaning is to be ascertained in 

accordance with its plainly expressed intent.” Id. (quoting 11 

R. Lord, Williston on Contracts § 30:6, p. 108 (4th ed. 2012)). 

We hold that Section 10.2 unambiguously provides that 

the five-shift guarantee ended on March 31, 2017. Again, in 

relevant part, that section provides:

22 Of course, Finley Hospital and Wilkes-Barre Hospital

both preceded Reese and so have nothing to say about it.
34

Effective the first payroll week following the 

signing of the collective bargaining agreement, 

all employees listed by name at the time of the 

signing of this Agreement shall be guaranteed a 

five (5) shift mark-up each payroll week for the 

balance of the Agreement, ending March 31, 

2017, except under the following circumstances

....

(J.A. at 217.)23

We reject the notion espoused by the Board majority 

that the participial phrase “ending March 31, 2017” modifies 

“the Agreement.” That does not comport with good grammar. 

When a comma precedes a participial phrase, the phrase 

typically modifies a word earlier in the sentence, but, if the 

phrase is meant to modify the word immediately preceding it, 

a comma is not used.

24 The comma after the word 

“Agreement” in this provision matters.

23 As noted supra, the exceptions in Section 10.2 do not 

deal with extending the duration of the provision. Instead, they 

deal with exceptions to the five-shift guarantee that were 

available while that provision was in effect. Again, no one 

argues those exceptions are implicated here.

24 See, e.g., Participles, Purdue Univ.,

https://owl.purdue.edu/owl/general_writing/mechanics/gerun

ds_participles_and_infinitives/participles.html (last visited 

Aug. 23, 2023) (“If a participial phrase comes at the end of a 

sentence, a comma usually precedes the phrase if it modifies 

an earlier word in the sentence but not if the phrase directly 

follows the word it modifies.”).
35

Moreover, reading “ending March 31, 2017” in the 

phrase “for the balance of the Agreement, ending March 31, 

2017” to merely apprise the reader – or perhaps remind the 

reader – of when the CBA ends does not comport with the text 

and structure of the CBA or, frankly, common sense. Any 

party reading the expired CBA would be well aware of the 

expiration date long before reaching Section 10.2. Indeed, on 

the cover page, the title begins with: “2014 – 2017 

AGREEMENT.” (J.A. at 209.) On that same cover page it 

states the expired CBA is “Effective: November 16, 2014” and 

“Expires: March 31, 2017.” (J.A. at 209.) Furthermore, as 

noted earlier, the first page of the body of the expired CBA 

provides an automatic renewal mechanism and explains that, if 

not renewed, the expired CBA will “continue in force from its 

effective date until and including the shift starting March 31, 

2017[.]” (J.A. at 212.) Again, as previously noted, no one has 

argued that the requisite notice was not given, or that for some 

other reason the expired CBA did not terminate on March 31, 

2017. 

Additionally, Section 10.2 contains two notable features 

suggesting that the five-shift guarantee was drafted with 

precision as to its commencement and termination. First, the 

five-shift guarantee did not become effective when the CBA

came into force, which was November 16, 2014. Rather, it 

became “[e]ffective the first payroll week following the 

signing of the collective bargaining agreement[.]” (J.A. at 

217.) Second, in both instances where the expired CBA is 

referenced in Section 10.2 – first as “the collective bargaining 

agreement” and second as the “Agreement” – neither the

CBA’s effective date nor its expiration date are stated. (J.A. at 

217.) Instead, the first date referenced in Section 10.2 is the 
36

one indicating that the beginning of the five-shift guarantee is 

keyed to the signing date. It is only after that, in connection 

with language addressing the duration of the guarantee, that the 

date of March 31, 2017 appears. It makes sense to explain with 

specificity when the guarantee will end, because the 

guarantee’s duration is not coextensive with the entire span of 

the CBA. 

One could perhaps quibble with that reasoning if 

Section 10.2’s phrasing were present elsewhere in the expired 

CBA, but it is not. That phrasing – “for the balance of the 

Agreement, ending March 31, 2017” – is unique to Section 

10.2. (J.A. at 217.) Indeed, that is highlighted by the General 

Counsel’s and Union’s unpersuasive attempts to make hay of 

other instances in the CBA where some form of durational 

language is used. None of those instances say both “duration” 

and “ending.” And there is no need to do so. For example, the 

expired CBA prohibits strikes and lockouts “during the term of 

this Agreement.” (J.A. at 237.) But that provision is not 

incongruous with the span of the expired CBA, nor is it unclear 

because it lacks the words “ending March 31, 2017.” Section 

10.2, by contrast, needs and imposes its own, precise endpoint. 

Similarly, there is one instance providing certain retirees with 

a choice to participate in a health insurance stipend program 

“during the life of the 2014-2017 collective bargaining 

agreement[.]” (J.A. at 230.) Nothing in that language casts 

doubt on the meaning of Section 10.2 or the parties’ intent to

provide a specific termination point for the five-shift 

guarantee. 

One final point raised by the Board majority warrants

mention here. The Board majority concluded it was “clear that 

the [five-shift] guarantee, as a contractual matter, was intended 
37

by the parties to be in place ‘for the balance of the 

Agreement[,]’” but the majority then said, “the language does 

not, by its terms, clearly and unmistakably address what 

happens after the ‘balance of the Agreement’ is over[.]” (J.A. 

at 32.) We must disagree. There is no question about what 

happens to the five-shift guarantee after that March 31, 2017; 

it ends, period. There is nothing confusing or odd about that. 

It is not as if the CBA could not exist without the continuation 

of Section 10.2. That provision is not essential to 

comprehending the rest of the CBA or to the functioning of the 

Post-Gazette. It can hardly be said that the notion of a job 

without a five-shift guarantee defies imagination. So, if the 

parties entered into a successor CBA tomorrow that had the 

same substance as the expired CBA but lacked Section 10.2, 

no one could reasonably say that the contract was rendered 

inscrutably vague. 

By its terms, then, the five-shift guarantee did not 

become part of the post-expiration status quo. Rather, in 

accordance with the parties’ express and unambiguous 

agreement, the guarantee ended on March 31, 2017.
38

B. We Will Remand for the Board to Determine 

Whether the Post-Gazette Engaged in 

Adequate Effects Bargaining Before 

Implementing Layoffs

1. We Cannot Enforce the Board’s Order 

in Light of Our Holding that the FiveShift Guarantee did not Become Part of 

the Post-Expiration Status Quo

Having concluded that the five-shift guarantee did not 

become part of the post-expiration status quo, we cannot 

enforce the Board’s order. Although the General Counsel 

advanced two theories of liability before the ALJ and the 

Board, we think it plain that the Board addressed only one of 

those two theories, namely, that the Post-Gazette “violated the 

Act by unilaterally failing to abide by the 5-shift guarantee with 

respect to the two employees.” (J.A. at 32.) The affirmative 

statement of the violation that concludes with the just-quoted 

sentence makes that clear.25 Furthermore, before us, the 

General Counsel framed the Board’s decision as we just have. 

(See, e.g., General Counsel Br. at 5 (“Applying the General 

Counsel’s second theory, the Board held that the unilateral 

elimination of the five-shift guarantee and the layoffs were 

unlawful because the Post-Gazette was required to maintain 

the five-shift guarantee as part of the status quo until reaching 

a new agreement or impasse.”) (citing J.A. at 29).) 

25 Again as noted supra, the Board majority explained 

the violation as follows:
39

In short, having concluded that the sole basis for the 

Board’s finding of a violation does not withstand scrutiny, we 

could not enforce the decision under S.E.C. v. Chenery Corp., 

Application of well-settled principles leads to the 

finding of a violation here. The five-shift 

guarantee is a mandatory subject of bargaining; 

it was an established term of employment under 

the parties’ collective-bargaining agreement; and 

it is not among the categorical exceptions to the 

Katz rule noted in Litton. It is therefore clear that 

the [Post-Gazette] was barred from unilaterally 

terminating the five-shift guarantee at the 

expiration of the collective-bargaining 

agreement (and thereby laying off employees 

covered by the five-shift guarantee), absent 

either an impasse in bargaining with the Union 

or a waiver by the Union of the right to demand 

compliance with the guarantee on behalf of 

bargaining unit employees. Here, the parties 

stipulated that they were not at an overall 

impasse. And, as we will explain, the parties’ 

collective-bargaining agreement contains no 

language clearly and unmistakably waiving the 

Union’s statutory right to maintenance of the 

five-shift guarantee (unless and until the parties 

reached an impasse in bargaining or a new 

collective-bargaining agreement). Accordingly, 

the [Post-Gazette] violated the Act by 

unilaterally failing to abide by the 5-shift 

guarantee with respect to the two employees.

(J.A. at 32 (footnotes omitted).)
40

318 U.S. 80 (1943), even if we thought there were a sound 

alternative basis for it. See Mercy Cath. Med. Ctr. v. 

Thompson, 380 F.3d 142, 151 (3d Cir. 2004) (“[W]e may 

affirm the agency’s decision only on grounds on which the 

agency actually relied, and not on the basis of alternative 

rationales or justifications put forward by counsel on appeal.”) 

(citing Chenery, 318 U.S. at 87); see also Slaughter v. 

N.L.R.B., 794 F.2d 120, 122 (3d Cir. 1986) (“In Sears a 

majority of the Board held that the Act compels the conclusion 

that nonunion employees do not enjoy the rights recognized in 

the Weingarten decision. The reasoning of Sears was 

incorporated by reference into the Board’s decision in this 

case. Thus, if we are to sustain the Board’s action, it must be 

on the basis that no other interpretation of the Act is 

permissible, regardless of whether their order could be 

sustained on other grounds.”) (citing Chenery, 318 U.S. at 87).

But that does not end the case. All along, the PostGazette has contended that it had the right to implement its 

proposed layoffs under First National Maintenance, so long as 

it engaged to impasse in good faith “effects” bargaining. As 

the Union correctly observed at oral argument, however, there 

has never been a determination that the Post-Gazette did in fact

adequately engage in effects bargaining. Even though it 

prevailed before the ALJ, the Newspaper still filed crossexceptions, and one of the bases for its cross-exceptions was 

the ALJ’s failure to affirmatively find it had engaged in 

adequate effects bargaining. 

Thus, it would seem straightforward that we should, 

under the Post-Gazette’s theory, remand to the Board with 

directions to return the matter to the ALJ for a factual finding

on the adequacy of the Post-Gazette’s effects bargaining. And, 
41

if there is a finding of inadequacy of that effects bargaining, 

the ALJ and Board should be given the opportunity to fashion

a proper remedy in keeping with such a violation under First 

National Maintenance. That would be the ordinary course, but 

this is no ordinary case. We must first deal with another 

problem that is well-stated in the General Counsel’s brief: 

“[T]he Board held that this is not an effects-bargaining case” 

under First National Maintenance. (General Counsel Br. at 42 

(emphasis added).)

That remarkable conclusion by the Board was not based 

on the premise that the Newspaper’s decision to go to a digital 

format is something other than a non-bargainable 

entrepreneurial decision. To the contrary, the Board majority

expressly acknowledged that the decision to “transition to an 

all-digital format and eliminate 2 days of print publication per 

week was a core entrepreneurial decision over which the [PostGazette] had no duty to bargain.” (J.A. at 32 n.18.) Despite 

that, the Board majority stated in no uncertain terms that “[t]his 

entrepreneurial decision, however, did not alter the terms of its 

preexisting collective-bargaining agreement with the Union or 

the resulting postexpiration status quo that it had a statutory 

obligation to maintain, including the five-shift guarantee, 

independent of any effects bargaining obligation.” (Id.) The 

Board therefore did not sidestep the First National 

Maintenance question, as the General Counsel has suggested 

before us both in briefing and at argument. Instead, the Board

stated a legal conclusion that is plainly inconsistent with First 

National Maintenance. And because that conclusion addresses 

a purely legal question, we have no obligation under Chenery

to give the Board a second bite at the apple. 
42

That is especially proper here because the Post-Gazette 

has pressed its First National Maintenance argument at every 

stage – before the ALJ, before the Board, and before us.26 We 

are not required under Chenery to turn “judicial review of 

agency action into a ping-pong game.” Ricketts v. Att’y Gen.,

955 F.3d 348, 351 (3d Cir. 2020) (quoting N.L.R.B. v. WymanGordon Co., 394 U.S. 759, 766 n.6 (1969)). So we will not 

return this matter to the Board without first “correct[ing] the 

error of law committed by that body,” and only then will we 

“remand the case to the [agency] so as to afford it the 

opportunity of examining the evidence and finding the facts as 

required by law.”27 Hasan v. U.S. Dep’t of Lab., 545 F.3d 248, 

26 It was in part for this reason that we laid out so fully 

the parties’ arguments in Section 1.D. There is no need to 

reiterate them here. Simply put, we perceive no forfeiture of 

this question. See Geness v. Cox, 902 F.3d 344, 355 & n.6 (3d 

Cir. 2018) (noting that arguments not raised in an appellant’s 

opening brief are forfeited); see also Simko v. U.S. Steel Corp, 

992 F.3d 198, 205 (3d Cir. 2021) (“It is well-established that 

arguments raised for the first time on appeal are not properly 

preserved for appellate review.”). And we do not run afoul of 

the “principle of party presentation.” See generally United 

States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (“[A]s 

a general rule, our system is designed around the premise that 

[parties represented by competent counsel] know what is best 

for them, and are responsible for advancing the facts and 

argument entitling them to relief.” (internal quotation marks 

and citation omitted; second alteration in original)). 

27 Because the applicability of the overall impasse rule 

to effects bargaining is a matter of first impression that neither 

this Court nor any Court of Appeals has addressed, Judge 
43

251 (3d Cir. 2008) (quoting Interstate Com. Comm’n v. Clyde 

S.S. Co., 181 U.S. 29, 32-33 (1901)). 

Accordingly, we turn now to the Board’s First National 

Maintenance error. Although the Supreme Court has held that 

employers need not bargain over changes to “the scope and 

direction” of their businesses, they must “bargain about the 

results or effects” of those entrepreneurial decisions. First 

National Maintenance, 452 U.S. at 677 & n.15. The Board’s 

view – that when an employer decides to change the scope of 

its business during negotiations for a CBA, the employer must 

bargain to an overall impasse before effectuating its

entrepreneurial decision – would render the managerial 

prerogative of First National Maintenance illusory. Unions 

would gain “a powerful tool for achieving delay,” id. at 683, as 

CBA negotiations can take years, see, e.g., J.A. at 4 (observing 

that the Post-Gazette and the Union have been engaged in 

negotiations for a successor CBA since March 2017). And it 

shows no disrespect to unions to observe where their selfinterest lies. They have every incentive to avoid change “as 

long as [the business at issue continues] generating wage 

payments.” Keith N. Hylton, Efficiency and Labor Law, 87 

Nw. U. L. Rev. 471, 516 (1993). Thus, granting unions a 

pocket veto over employers’ entrepreneurial decisions would 

undermine the Supreme Court’s decision in First National 

Maintenance. Cf. Arrow Auto. Indus., Inc. v. N.L.R.B., 853 

F.2d 223, 230 (4th Cir. 1988) (Wilkinson, J.) (“The Supreme 

Court remains the final arbiter of the meaning of the National 

Smith would not rely on Chenery’s futility exception and 

would instead remand without reaching the effects bargaining 

issue.
44

Labor Relations Act, and its decisions are binding on the Board 

no less than on the lower courts.”). 

The Union contends that enabling employers to 

implement entrepreneurial decisions before entering a CBA or 

reaching an overall impasse would frustrate contract 

negotiations by permitting “piecemeal bargaining” that 

“remov[es] issues from the bargaining agenda [and] make[s] it 

less likely for the parties to find common ground.” (The Union

Br. at 24 (quotations omitted).) Yet the Board has previously 

recognized that it is “prudent” for parties to “bargain about 

‘effects’ when it is most meaningful to do so.” Show Indus., 

Inc., 326 N.L.R.B. 910, 912 (1998) (plurality). Accordingly, 

employers and unions should negotiate immediately over 

entrepreneurial decisions, even though “other subjects [will] 

not be[] bargained simultaneously,” because changes in the 

scope of a business will often render other matters “moot or at 

least less critical.” Id. at 913. Those observations track the 

Supreme Court’s statement that “bargaining over the effects of 

a decision must be conducted in a meaningful manner and at a 

meaningful time.” First National Maintenance, 452 U.S. at 

681-82.

Finally, as the ALJ here astutely observed, the typical 

remedy for unilateral changes to the status quo – reinstatement 

of any terminated employees with full backpay – is a poor fit 

for entrepreneurial decisions. The elimination of a line of 

business often results in redundancies, so when an employer 

terminates employees pursuant to an entrepreneurial decision 

without engaging in effects bargaining the Board instead 

orders the employer to resume negotiations and merely provide 

“limited backpay” to the laid-off employees. Transmarine 

Navigation Corp., 170 N.L.R.B. 389, 390 (1968); see also
45

Lapeer Foundry & Mach., 289 N.L.R.B. 952, 957 n.11 (1988) 

(“[R]einstatement with full backpay does not constitute an 

appropriate remedy for an effects-bargaining violation.”). That 

may hold true here, as reinstating employees who were once 

needed and had done fine work still makes no sense when there 

is little or no work for them to do. But we need say no more, 

as there has been no predicate finding of inadequate effects 

bargaining. Should such a finding be made, the ALJ and Board 

may impose a remedy consistent with Transmarine.

III. CONCLUSION

For the foregoing reasons, the General Counsel’s 

petition for enforcement of the Board’s order will be denied. 

The Post-Gazette’s petition for review will be granted, except 

that we will remand for a determination of whether the

Newspaper has indeed engaged in adequate effects bargaining 

and, if not, for the crafting of an appropriate remedy for any 

effects-bargaining violation.