NBCUniversal Media, LLC v. NLRB ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-1177 September Term, 2021
FILED ON: JULY 1, 2022
NBCUNIVERSAL MEDIA, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 21-1184
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Before: HENDERSON and WALKER, Circuit Judges, and RANDOLPH, Senior Circuit Judge
JUDGMENT
We heard this petition for review and cross-application for enforcement on the record from
the National Labor Relations Board and the parties’ briefs. We fully considered the issues and
determined that a published opinion is unnecessary. See D.C. Cir. R. 36(d).
We DENY NBCUniversal Media, LLC’s petition for review and GRANT the NLRB’s
cross-application for enforcement.
* * *
NBCUniversal Media had an annual merit-raise program from 2015 to 2020. Each year,
NBC’s leadership set an overall target for merit-based raises. Then each unit and subunit of NBC
set individual employees’ raises based on their performance. NBC did not guarantee anyone a
raise. But it had never taken one back after giving it.
Shortly before NBC completed the 2020 merit-raise process, employees in the NBC News
Digital subunit unionized. Their representative told NBC that the union was “agreeable to having
1
the Company proceed with its annual evaluation and compensation changes as it would in the usual
course of business.” JA 187. NBC then proceeded with its usual process, giving raises to union
and nonunion employees alike.
But two months later, NBC changed its mind. Over the union’s strenuous objections,
NBC decided to “roll back” the pay raises for all employees who made more than $100,000. JA
214.
In 2021, the National Labor Relations Board found that NBC’s raise rollback violated
the National Labor Relations Act. Under that statute, an employer cannot change the status quo
as to “wages, hours, and other terms and conditions of employment” for unionized employees
without first bargaining with their union. 29 U.S.C. § 158(d); Advanced Life Sys. Inc. v. NLRB,
898 F.3d 38, 41 (D.C. Cir. 2018). However, the status quo includes changes in employment terms
that are consistent with an employer’s “longstanding practice,” so an employer can make those
changes without bargaining. Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d 364, 375 (D.C. Cir.
2017). The NLRB determined that NBC’s wage rollback did not fall within that exception.
NBC challenges the NLRB’s decision on two grounds. Neither is persuasive.
First, NBC claims that its raise rollback was consistent with its longstanding practice of
maintaining discretion not to give merit raises at all. But “there is a human difference between
losing what one has and not getting what one wants.” Willner v. Thornburgh, 928 F.2d 1185, 1190
(D.C. Cir. 1991) (quoting Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1296
(1975)). Even if NBC’s employees knew that NBC did not need to give them raises, they would
not have expected NBC to take back their raises months after awarding them — especially when
NBC had never before done so. See Mike-Sells Potato Chip Co., 368 NLRB No. 145, *6 (2019)
(“To establish the existence of a past practice, it is enough to show that frequent, recurrent, and
similar actions have been taken . . . .”); id. (focusing on employee perception in applying that
standard). Therefore, whether NBC calls its action a pay cut or a raise rollback, the NLRB did not
err when it concluded that NBC changed union employees’ wages without bargaining.
Second, NBC says the union waived its right to bargain. That waiver “must be clear and
unmistakable.” Wilkes-Barre, 857 F.3d at 377 (internal quotation marks omitted). But here, the
union agreed that NBC could implement its annual merit-raise program as it would “in the usual
course of business.” JA 187. That usual course of business did not include rescinding raises. So
the NLRB did not err when it decided that the union did not waive its right to bargain over the
rescissions.
For those reasons, we DENY NBC’s petition for review and GRANT the NLRB’s cross-
application for enforcement.
* * *
This disposition is unpublished. See D.C. Cir. R. 36(d). We direct the Clerk to withhold
this mandate until seven days after resolution of a timely petition for panel or en banc rehearing.
2
See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
3