Compania Cervecera De Puerto Rico, Inc. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2025 Decided September 5, 2025
No. 24-1104
COMPANIA CERVECERA DE PUERTO RICO, I NC.,
PETITIONER
v.
NATIONAL L ABOR RELATIONS BOARD ,
RESPONDENT
Consolidated with 24-1187
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Giovanna P. Moreno-Lopez argued the cause for
petitioner. With her on the briefs was Maria D. Trelles-
Hernandez.
Barbara A. Sheehy, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief

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were Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick,
Deputy Associate General Counsel, David Habenstreit,
Assistant General Counsel, and Usha Dheenan, Supervisory
Attorney.
Before: RAO and C HILDS , Circuit Judges, and ROGERS ,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge CHILDS .
Dissenting opinion filed by Circuit Judge RAO.
CHILDS , Circuit Judge: The National Labor Relations
Board determined that Compañía Cervecera de Puerto Rico
(Cervecera or the employer) violated sections 8(a)(1), (3) and
(5) of the National Labor Relations Act (the Act) by: taking an
adverse and retaliatory employment action against the
president of the Unión Independiente de Trabajadores de
Cervecería India (the Union), changing a mandatory subject of
bargaining while negotiations for a successor collective
bargaining agreement (CBA) were ongoing, and implementing
a final offer on work schedules in the absence of a good-faith
impasse. The employer petitions for review of that decision
and the Board cross-applies for enforcement of its decision and
order. Because the Board’s determinations and findings are
supported by substantial evidence and are not otherwise
reversible error, we deny the employer’s petition for review
and grant the Board’s cross-application for enforcement of its
decision and order.1
1 Our colleague would grant the petition based on her view that the
Board’s findings are unsupported by substantial evidence and
misinterpret the CBA.

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I.
A.
The employer is a brewing and bottling company based in
Puerto Rico. From its facility in Mayaguez, Puerto Rico, the
employer ships beer to customers on the island and elsewhere
in the United States. The employer planned to further expand
its sales outside of the island. To do so, it sought a steady
output stream that it believed could be supplied only by a
facility that ran 24 hours a day, 7 days a week.
The employer’s expansion plans, however, hit a
roadblock: its CBA with the Union. The employer has
approximately 220 employees, and around 120 of those
employees form a collective bargaining unit represented by the
Union. For over thirty years, the employer and the Union (“the
parties”) successfully negotiated CBAs. They last signed an
agreement in 2018 (the 2018 CBA). Under the terms of the
2018 CBA, bargaining-unit employees generally worked five
days, forty hours per week, and were not typically required to
work on Saturdays or Sundays. But that work schedule did not
appear to allow the employer to keep its facility running
continuously. Indeed, since 2018, the employer periodically
hired temporary staff to fill gaps in its schedule when around-
the-clock production was necessary.
The negotiations for a successor CBA offered the parties
an opportunity to bargain for a new work schedule that could
meet the employer’s expansion needs. The 2018 CBA was set
to last until September 2021, but the parties extended it to
December 2021 and then to January 2022. The parties held
their first bargaining meeting in July 2021 and later adopted
negotiation rules. Early on in their negotiations, the employer
made clear that changing the work schedule was a priority.

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Soon after the parties began bargaining, the employer tried
to force its preferred work schedule on the Union. Instead of
negotiating a new schedule, the employer sought to compel the
bargaining unit’s employees to work six consecutive
workdays, which its human resources manager later conceded
was contrary to Article 27 of the still-active 2018 CBA. That
schedule allowed the employer to meet the operational needs
of its expansion plans. But it also deprived all Union
employees from guaranteed leave on weekends. The Union
pushed back and filed a charge with the Board, alleging that the
employer’s attempted imposition of an altered work schedule
was an unfair labor practice.
Before the Board adjudicated that charge, the parties
reached a settlement agreement in March 2022. Under that
agreement, the employer committed to compensate the
impacted employees. In return, the Union agreed to
temporarily adopt, until June 30, 2022, the same six-day work
schedule the employer had tried to impose on the employees.
About a month after entering the settlement agreement, the
employer placed the Union President, Abel Luciano, on an
unpaid leave of absence. Under Article 34 of the 2018 CBA,
the Union President—who is also a full-time employee—may
annually take up to 200 work hours of paid leave for Union
business. At the time he was placed on leave, the Union
President had taken 203 hours. Article 34 provides, in relevant
part, that “[s]hould there be a need for greater time,” the Union
President “shall request a prolonged leave without pay, no less
than six months.” J.A. 747. 2 The Union President did not
indicate he needed additional leave for union matters and did
2 The 2018 CBA was written in Spanish. The Board found and the
parties now agree that “shall request a prolonged leave” is a proper
translation of the relevant provision in Spanish.

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not request prolonged leave before the employer placed him on
unpaid leave. In a prior contract year governed by the 2018
CBA, the employer had not placed the Union President on
unpaid leave even though he exceeded 200 hours.
Even as the employer attempted to impose its preferred
work schedule on the employees and placed the Union’s
president on unpaid leave, the parties pressed on with their
negotiations. Although they had originally planned to address
each CBA article in numerical order, the Union suggested and
the employer agreed to prioritize negotiations over Article 27,
which addressed work schedules. Between November 2021
and June 2022, the parties exchanged proposals on that
provision.
By June 2022, the parties had not reached an agreement
regarding work schedules. Under the terms of the settlement
agreement, at the end of the month, the bargaining unit
employees would return to the 2018 CBA’s work schedule,
which did not allow for continuous production. On June 21,
2022, the employer submitted its “final proposal” on Article
27. J.A. 751. That offer would have required employees to
forego guaranteed weekend leave. The Union rejected the final
offer and responded with a counterproposal, which preserved
weekend leave for most employees and created a designated
shift of weekend employees.
The employer responded by informing the Union that it
believed they had reached an impasse on Article 27 and by
urging the Union to “accept the Company’s last, best[,] and
final offer.” J.A. 751; see also J.A. 502. The Union disagreed,
stressing that it had shown interest in moving the collective
bargaining forward and calling on the employer to reconsider
its declaration of impasse and resume negotiations. The
employer then implemented its final offer on Article 27. That

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final offer allowed the company to operate its facility around
the clock.
After the employer declared an impasse on Article 27, the
parties negotiated other aspects of the CBA. On the same day
that the employer notified the Union that it would implement
its final offer on Article 27, the Union and the employer
exchanged proposals on Articles 8 and 19.
B.
The Union filed new charges against the employer with the
Board. Following a three-day hearing, at which the employer’s
human resources manager testified, an Administrative Law
Judge (ALJ) determined that the employer had engaged in three
unfair labor practices. First, by placing the Union President on
unpaid leave in retaliation for his protected union activities, the
employer violated sections 8(a)(1) and (3) of the Act. Second,
by placing the Union President on unpaid leave in the absence
of a request by him, the employer unilaterally changed the
terms for union leave—a mandatory subject of bargaining—
that it was required to preserve after the 2018 CBA expired, in
violation of sections 8(a)(1) and (5) of the Act. And third, by
implementing its final offer on work schedules without
reaching an impasse, the employer violated sections 8(a)(1)
and (5) of the Act. A three-member panel of the Board
affirmed the ALJ’s rulings, findings, and conclusions. The
employer then filed this petition for review, and the Board
cross-appealed for enforcement of its order.
II.
We have jurisdiction over the employer’s timely petition
for review of the Board’s final order and the Board’s cross-
application for enforcement. 29 U.S.C. § 160(f). “Our review

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of the Board’s unfair labor practice decisions is tightly cabined,
and we afford the Board a high degree of deference.” Absolute
Healthcare v. NLRB, 103 F.4th 61, 67 (D.C. Cir. 2024)
(quotations and citation omitted). We uphold the Board’s
determinations “unless it relied upon findings that are not
supported by substantial evidence, failed to apply the proper
legal standard, or departed from its precedent without
providing a reasoned justification for doing so.” Inova Health
Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015) (quotations and
citations omitted). We will not disturb the Board’s findings of
fact “if supported by substantial evidence on the record
considered as a whole,” 29 U.S.C. § 160(e), and “we may not
displace the Board’s choice between two fairly conflicting
views, even though we would justifiably have made a different
choice had the matter been before us de novo.” Regal Cinemas,
Inc. v. NLRB, 317 F.3d 300, 306 (D.C. Cir. 2003) (quotations
and citation omitted). “An ALJ’s credibility findings
contribute to substantial evidence unless hopelessly incredible,
self-contradictory, or patently insupportable.” Circus Circus
Casinos, Inc. v. NLRB, 961 F.3d 469, 484 (D.C. Cir. 2020)
(quotations and citations omitted). We review the Board’s
interpretation of contracts de novo, applying “ordinary
principles of contract law” and deferring “to the Board’s fact-
finding . . . necessary to interpret the meaning of the contract.”
Pac. Mar. Ass’n v. NLRB, 967 F.3d 878, 885 (D.C. Cir. 2020)
(quotations and citations omitted).
III.
We first consider the Board’s determination that the
employer engaged in an unfair labor practice by placing the
Union President on unpaid leave in retaliation for his union-
related activities. An employer violates both sections 8(a)(3)
and (1) of the Act “by taking an adverse employment
action . . . in order to discourage union activity.” Ozburn-

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Hessey Logistics, LLC v. NLRB, 833 F.3d 210, 217 (D.C. Cir.
2016) (quotations and citation omitted). For such a violation
to exist, the Board must make both “a predicate determination
that an employer took an adverse action” against an employee,
Bellagio, LLC v. NLRB, 854 F.3d 703, 709 (D.C. Cir. 2017),
and a subsequent determination that the adverse action was
motivated by anti-union animus, Napleton 1050, Inc. v. NLRB,
976 F.3d 30, 40 (D.C. Cir. 2020). The employer contends that
the Board erred in determining that placing the Union President
on unpaid leave was an adverse employment action and that
such an action was motivated by anti-union animus. We
disagree with the employer’s contentions.
A.
We start with the Board’s threshold determination that the
employer’s decision to place the Union President on unpaid
leave was an adverse action. “Adverse acts are those that
reduce a worker’s prospects for employment or continued
employment, or worsen some legally cognizable term or
condition of employment.” Bellagio, 854 F.3d at 709. The
employer unilaterally placed the Union President on unpaid
leave and denied him wages during that leave. This action had
“a negative impact on [Luciano’s] employment situation or job
prospects.” Id. at 710; see also Ne. Iowa Tel. Co., 346 NLRB
465, 475 (2006) (“Certain . . . employment actions are
‘adverse’ because they change the terms and conditions of
employment in an unfavorable way and . . . [a] reduction in pay
certainly constitutes a change for the worse.”).
The employer counters that it took no “action” at all, since
the Union President’s unpaid leave was automatically triggered
as soon as he exceeded the 200-hour limit. But the record
shows that placing the Union President on leave required the
employer to make an affirmative decision. In contract year

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2020-21, after it notified the Union President that he had
exceeded the 200-hour limit and after the Union President took
additional leave hours despite that notice, the employer did not
place the Union President on unpaid leave as it sought “to keep
the good employer-employee relations at that time.” J.A. 748;
see also J.A. 199.
The employer further contends that its decision to place
the Union President on leave was not adverse because it was
authorized by the CBA and because it could have pursued a
more punitive action by terminating the Union President for
“continued . . . violations to [the employer’s] norms and
policies.” Pet’r’s Br. 39. What defines an adverse action,
however, is whether it causes a “negative impact” on an
employee’s conditions of employment. Bellagio, 854 F.3d at
710. Our dissenting colleague suggests that the employer
“acted with leniency” because it chose forced leave over
terminating the Union President. Dissent at 10. However,
disciplinary actions authorized by a CBA and actions that are
less punitive than an alternative can still be adverse if they have
a negative impact on an employee’s conditions of employment.
The employer made a decision to place the Union
President on leave. And that decision harmed the Union
President’s conditions of employment. The Board, therefore,
did not err in determining that the employer took an adverse
employment action against the Union President.
B.
We next turn to the Board’s determination that the
employer’s action was motivated by anti-union animus. To
assess an employer’s motivation for an adverse action, the
Board applies the Wright Line test. See Wright Line, 251
NLRB 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981).

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The Wright Line test proceeds in two stages: first, the General
Counsel must make a prima facie case that the adverse action
was motivated by anti-union animus; and second, the burden
shifts to the employer to show it would have taken the same
action in the absence of unlawful motive. See Tasty Baking Co.
v. NLRB, 254 F.3d 114, 125–26 (D.C. Cir. 2001). We consider
and affirm the Board’s findings at each stage of the Wright Line
test.
1.
At the first stage of the Wright Line test, the Board’s
General Counsel must demonstrate that the employee was
engaged in a protected union-related activity, that the employer
was aware of that protected activity, and that the protected
activity was a motivating factor in the employer’s decision to
take an adverse action against the employee. Inova, 795 F.3d
at 80. We afford the Board’s finding of anti-union motivation
a “very high degree of deference,” Hosp. de la Concepcion v.
NLRB, 106 F.4th 69, 76 (D.C. Cir. 2024) (quotations and
citation omitted), “because most evidence of motive is
circumstantial,” Acumen Cap. Partners v. NLRB, 122 F.4th
998, 1003 (D.C. Cir. 2024) (quotations and citation omitted).
Circumstantial evidence of improper motive may include other
anti-union actions by the employer and the timing of the
adverse action. See Novato Healthcare Ctr. v. NLRB, 916 F.3d
1095, 1101 (D.C. Cir. 2019); see also Tasty Baking, 254 F.3d
at 125–26. The Board did not err in finding that the General
Counsel satisfied the first stage of Wright Line.
The Board correctly found that the Union President was
engaged in a protected activity and that the employer was
aware of his engagement. Under Wright Line, “protected
activity” includes “activities for the purpose of collective
bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

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The Union President engaged in protected activity when he
participated in negotiations for a successor CBA and in
negotiations over the settlement agreement addressing the
employer’s attempted schedule change. And the successor
CBA negotiation rules as well as the settlement agreement
informed the employer that the Union President represented the
Union in the relevant negotiations.
The Board’s finding that the employer’s adverse action
against the Union President was motivated by anti-union
animus is supported by substantial evidence—specifically, the
employer’s prior actions showing anti-union animus and the
temporal proximity between the settlement agreement
addressing those actions and the employer’s decision to place
the Union President on unpaid leave in the absence of a request
for additional union hours.
First, the employer’s conduct during the CBA
negotiations, including its unilateral change to the employee
schedule, evinced anti-union animus. See, e.g., Frazier Indus.
Co., Inc. v. NLRB, 213 F.3d 750, 756 (D.C. Cir. 2000)
(“[E]vidence that an employer has [committed unfair labor
practices] can support an inference of anti-union animus.”)
(citing Parsippany Hotel Mgmt. v. NLRB, 99 F.3d 413, 424
(D.C. Cir. 1996). A month into negotiations for a successor
CBA, the employer unilaterally changed the employees’ work
schedule. By the employer’s own admissions, the modified
work schedule was a material departure from the existing CBA
and the work schedule was one of the critical issues in the
parties’ negotiations. J.A. 749. The Union, led by the Union
President, pushed back by filing a charge with the Board. The
employer and the Union, represented by the Union President,
then engaged in protracted settlement negotiations.

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Second, the temporal proximity—only one month—
between the settlement agreement in March 2022 and the
employer’s decision to place the Union President on unpaid
leave in April 2022 further supports a finding that anti-union
animus motivated the employer’s adverse action. “As a general
principle, the timing of an employer’s adverse action can shed
light on its causes.” Stern Produce Co., Inc. v. NLRB, 97 F.4th
1, 14 (D.C. Cir. 2024) (citation omitted); see also Reno Hilton
Resorts v. NLRB, 196 F.3d 1275, 1283 (D.C. Cir. 1999)
(“[T]iming is a telling consideration in determining whether
employer action is motivated by anti-union animus.”). The
employer placed the Union President on unpaid leave less than
one month after the employer reached a settlement agreement
with the Union. Prior to the settlement agreement, the
employer gave the Union President no advance notice that it
would or could place him on unpaid leave without receiving a
request. The close timing between the two events supports the
Board’s finding that the employer “seized upon [an] available
opportunity . . . to retaliate against” the Union President for his
role in representing the Union’s interests during the settlement
negotiations. Stern Produce, 97 F.4th at 14 (cleaned up).
The employer responds that the Board erred by relying on
the settlement agreement as evidence of animus because, by
doing so, the Board irrationally assumed the employer was
opposed to a settlement agreement, reopened a settled unfair-
labor-practice charge, and departed from precedent barring its
consideration of settlement agreements as evidence of anti-
union animus. The employer misapprehends the focus of the
Board’s inquiry. The Board relied on admissions by the
employer’s human resources manager that the employer
changed the work schedule in July 2021 and that the parties
entered a settlement agreement to resolve the dispute that
followed that change. The Board did not examine the Union’s
settled charge against the employer, it did not make any

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findings regarding the merits of that early charge, and it did not
evaluate the terms of the settlement agreement. Furthermore,
consistent with its precedent, the Board did not rely exclusively
on the settlement agreement to establish animus. See Sw.
Chevrolet Corp., 194 NLRB 975, 975 (1972) (“The Board has
uniformly held that settlement agreements . . . have no
probative value in establishing that violations of the Act have
occurred and may not be relied on to establish . . union
animus.”). The Board, instead, identified the employer’s
presettlement conduct as evidence of anti-union animus. See
Host Int’l Inc., 290 NLRB 442, 442 (1988) (finding an
employer’s “presettlement conduct may properly be
considered as background evidence” of animus). And that
presettlement conduct further showed that even if the employer
viewed the settlement agreement as a “positive development,”
Pet’r’s Reply Br. 15, the agreement was preceded by protracted
settlement negotiations.
Since the Board’s finding of animus relied on the human
resources manager’s testimony, the employer further objects to
the Board’s credibility determinations relating to her
testimony. The employer disagrees with the Board’s crediting
of portions of her testimony and discrediting of other portions
of her testimony. The employer argues that the manager was
subject to prolonged, hostile and confusing examination, that
the manager lacked expertise, that the manager was asked
questions for which she was unprepared, and that there were
difficulties with translation. But raising only broad
generalizations, the employer has not shown that the Board’s
credibility determinations are “hopelessly incredible, self-
contradictory, or patently insupportable” as to warrant reversal.
Hood River Distillers, Inc. v. NLRB, 130 F.4th 204, 212 (D.C.
Cir. 2025) (quotations and citation omitted).

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The employer further contends that the Board should have
drawn an adverse inference from the General Counsel’s failure
to call the Union President to testify. Pet’r’s Br. 60-61. The
adverse inference rule “provides that when a party has relevant
evidence within his control which he fails to produce, that
failure gives rise to an inference that the evidence is
unfavorable to him.” Int’l Union (UAW) v. NLRB, 459 F.2d
1329, 1336 (D.C. Cir. 1972). The Board has adopted the
adverse inference rule, noting that “it is settled that when a
party fails to call a witness who may reasonably be assumed to
be favorably disposed to the party, an adverse inference may
be drawn regarding any factual question on which the witness
is likely to have knowledge.” Daikichi Corp., 335 NLRB 622,
622 (2001) (quotations and citations omitted). An adverse
inference is specific to a particular disputed fact and cannot be
“tantamount to a directed verdict” or resolution of the whole
dispute. Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19,
28 (D.C. Cir. 2013). The employer, by contrast, appears to
suggest that the Board should have drawn a sweeping adverse
inference relating to “all the facts alleged in the Complaints”
because “the General Counsel failed to present the [Union
president’s] testimony regarding both charges despite his
incontestable personal knowledge of all the facts.” Pet’r’s Br.
60.
Even if the employer has properly presented an objection
to the Board’s failure to draw an adverse inference, it is without
merit. The Board is not required to draw an adverse inference
from a party’s failure to call a witness where, as here, the party
has otherwise presented sufficient evidence of violations. See
Int’l Union, 459 F.2d at 1344 (“[W]here a party has good
reason to believe he will prevail without introduction of all his
evidence, it would be unreasonable to draw any inference from
a failure to produce some of it”). And we see no reason to
otherwise find that the Board abused its discretion to decline to

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draw an adverse inference from the absence of testimony by
the Union’s president. See Overnite Transp. Co. v. NLRB, 140
F.3d 259, 266 n.1 (D.C. Cir. 1998) (“[T]he decision of whether
to draw an adverse inference has generally been held to be
within the discretion of the [Board as the] fact finder.”).
Nor is there merit to the employer’s argument that the
Board should have not only drawn an adverse inference from
the General Counsel’s failure to call the Union President but
should have also afforded the human resources manager’s
testimony “absolute credibility” on account of that adverse
inference. Pet’r’s Br. 60–61. The employer’s argument
contradicts its own contention that the Board should have
found that parts of the human resources manager’s testimony
were not credible. Pet’r’s Br. 53–56. The employer does not,
and could not, offer any support for the sweeping proposition
that the Board would have been required to find testimony by
one party’s witness absolutely credible if it had drawn an
adverse inference based on another party’s failure to offer
testimony by another witness.
Because the employer’s other anti-union actions and
temporal proximity to the settlement agreement provide
substantial evidence that placing the Union President on leave
was animated by animus, we do not consider whether other
evidence in the record could support a finding of retaliatory
motive. In finding animus, the Board also considered whether
the decision to place the Union President on leave was a
departure from its practice in the preceding contract year. The
employer objects to the Board’s reliance on a single year—out
of a bargaining relationship of over thirty years—to identify a
break with past practice showing animus. We need not and do
not address the merits of this objection. “The record as a
whole” provides substantial evidence for the Board’s finding

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of animus. Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348
(D.C. Cir. 2011).
2.
At the second stage of the Wright Line test, “the burden
shifts to the [employer] to show that it would have taken the
same action in the absence of the unlawful motive.” Tasty
Baking, 254 F.3d at 126. The Board’s finding that the
employer did not meet its burden is supported by substantial
evidence and is not reversible error.
The employer argues that in placing the Union President
on unpaid leave it merely enforced the terms of Article 34 of
the 2018 CBA. 3 That provision, however, did not require or
authorize the employer’s action. In relevant part, Article 34
provides: “Should there be a need for greater time, the
employee shall request a prolonged leave without pay.” J.A.
747. Article 34’s plain language does not provide the employer
with clear authority to unilaterally impose unpaid prolonged
leave. Instead, the conditional clause—should there be a need
for greater time—combined with the subsequent clause—that
an employee “shall request” prolonged leave if there were such
a need—indicates that the Union President must first assess
whether additional time is necessary and then file a request.
The Union President could decide that greater time is not
necessary, could postpone further union activity until the next
contract year, or could elect to use alternative forms of leave
like vacation time. Without receiving an explicit request, the
employer cannot force the Union President to go on unpaid
3 The employer justifies its decision to place the Union President on
leave only on Article 34. The employer does not claim that it placed
the Union President on leave as a disciplinary action authorized by
any other provision of the CBA.

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leave once the 200 hours are exhausted. Nor does Article 34
require that, under any circumstances, the employer place the
Union President on leave as soon as he exceeded 200 hours.
The employer’s implementation of Article 34 during contract
year 2020-21, urging the Union President to request extended
leave, did not automatically extend the Union leave period, and
its subsequent approval of such leave requests in excess of 200
hours undermines the employer’s contention that the CBA
“mandated” the Union president’s leave. Pet’r’s Br. 26.
Even if the 2018 CBA did authorize the employer’s
actions, it is the employer’s burden to show not that it could
have taken the same action pursuant to a CBA, but that “it
would have taken the same action in the absence of the
unlawful motive.” RAV Truck & Trailer Repairs, Inc. v. NLRB,
997 F.3d 314, 325 (D.C. Cir. 2021) (emphasis added)
(quotations and citation omitted). Aside from arguing that
Article 34 authorizes its action, the employer offers no
evidence that it would have placed the Union President on
leave if not for animus. The employer, thus, did not meet its
burden.
* * *
Accordingly, the Board did not err in determining that the
employer’s decision to place the Union President on unpaid
leave was an adverse action motivated by anti-union animus.
IV.
Next, we consider the Board’s determination that the
employer engaged in an unfair labor practice when it placed the
Union President on leave because, in so doing, the employer
changed a mandatory subject of bargaining. “An employer
violates [s]ection[s] 8(a)(5) and (1) if it makes a material,

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substantial, and significant change regarding a mandatory
subject of bargaining without first providing the union notice
and a meaningful opportunity to bargain about the change to
agreement or impasse, absent a valid defense.” Hosp. de la
Concepcion, 106 F.4th at 76 (quotations and citation omitted).
Mandatory subjects of bargaining include “wages, hours, and
other terms and conditions of employment,” and may include
the number of hours of leave an employee may take for union-
related activities as well as the terms and conditions under
which an employee may request such leave. See 29 U.S.C.
§ 158(d).
Although the employer placed the Union President on
leave about three months after the 2018 CBA had expired,
“[u]pon the expiration of a [CBA], the parties to that agreement
have an ongoing obligation to maintain the status quo as to all
mandatory subjects of bargaining until they reach a new
agreement or an impasse.” Oak Harbor Freight Lines, Inc. v.
NLRB, 855 F.3d 436, 438 (D.C. Cir. 2017) (quotations and
citations omitted); see also NLRB v. Katz, 369 U.S. 736, 743
(1962). To discern the post-expiration status quo, “we look to
the substantive terms of the [expired] CBA.” Wilkes-Barre
Hosp. Co. v. NLRB, 857 F.3d 364, 374 (D.C. Cir. 2017). As
“the Board has the primary responsibility of marking out the
scope of the statutory duty to bargain,” we afford “great
deference” to the Board’s determination that “a party has
violated this statutory duty.” Pac. Mar. Ass’n, 967 F.3d at 884
(cleaned up). The Board correctly found that the employer
changed a mandatory subject of bargaining by unilaterally
placing the Union President on leave and thereby departing
from the terms for union leave set out by Article 34.
Whether the employer modified a mandatory subject of
bargaining turns on the terms of the expired 2018 CBA. Article
34 of the 2018 CBA provided the Union President with the

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19
option to “request” prolonged leave, “[s]hould there be a need”
for the Union President to use additional work hours for union
matters. J.A. 747. The employer argues that pursuant to
Article 34 it was required or at least authorized to place the
Union President on leave as soon as he had exceeded the 200-
hour limit. Article 34’s plain language, however, does not
support the employer’s position. By interpreting Article 34 to
allow for the imposition of unpaid leave without receiving a
request from the Union President—an interpretation barred by
the express terms of the provision—and by then unilaterally
placing the Union President on unpaid leave, the employer
impermissibly modified the agreed-upon terms and conditions
for union leave.
The employer’s implementation of Article 34 in contract
year 2020–21 indicates that it had not previously claimed the
authority it now asserts to place the Union President on leave,
in the absence of his request, as soon as he exceeded the 200-
hour limit. By word and action, the employer showed that it
understood the negotiated contract term required the Union
President first submit a request. In contract year 2020-21, the
employer alerted the Union President that he had used more
than 200 hours and stated: “We urge you once again to request
the extended union leave provided by the agreement for these
purposes.” J.A. 433. But the employer did not then suggest
that under Article 34 it would or could impose unpaid leave if
the Union President exceeded the 200-hour limit, instead
urging the Union President to request further leave hours. And
in that contract year, the employer did not ultimately place the
Union President on unpaid leave even after he took twenty-
eight hours beyond the 200-hour limit. By placing the Union
President on leave in 2022 without receiving a request for
unpaid leave, the employer not only departed from the Article
34’s plain text but also from its own prior implementation of
that provision.

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20
Relying on Sasol North America, Inc. v. NLRB, 275 F.3d
1106 (D.C. Cir. 2002), the employer maintains that the Board
erred in finding that it modified a mandatory subject of
bargaining when it placed the Union President on leave and
claimed to thereby enforce Article 34. In Sasol, we concluded
that the Board erred in finding that the employer changed an
unwritten leave policy, because the employer was merely
enforcing an existing written policy. Id. at 1110–11. Under
the relevant CBA, union officers could take “reasonable time”
for union-related matters “on [the employer’s] property.” Id.
at 1108. The CBA included “no provision . . . relating to
unpaid leave for union activities.” Id. Following an internal
investigation that revealed that a union officer had taken 36%
of scheduled work hours for off-property union matters, the
employer in Sasol informed the union that it would enforce its
written policy limiting union leave to “reasonable time” on the
employer’s property. Id. at 1108–09. The employer here
contends that, like the employer in Sasol, it cannot be faulted
for enforcing the CBA’s union leave policy, even if it lapsed in
its enforcement of the relevant provision during a single prior
year.
Sasol does not support the employer’s objection. Unlike
the employer in Sasol, this employer did not seek to enforce a
CBA provision that it had previously and unknowingly allowed
employees to ignore without sanction. In contract year 2020-
21, the employer was aware that the Union President had used
more than 200 hours but did not seek to place him on leave by
invoking Article 34. Nor did the employer then indicate that,
pursuant to Article 34, it would or could place the Union
President on leave after exceeding the 200 hours. Again,
Article 34 explicitly specifies that the Union’s president shall
request unpaid leave if necessary. In Sasol, the employer
sought to enforce the terms of the CBA after unknowingly
acquiescing to a practice that was not contemplated by the

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21
CBA. In explaining the holding in Sasol, our dissenting
colleague observes that “the objective, written terms of [the]
contract define the status quo.” Dissent at 9 (citing 275 F.3d at
1111). Here, by contrast, the employer undertook an action
that ran contrary to the relevant CBA provision and its prior
implementation of that provision. In doing so, the employer
changed the expired CBA’s terms and conditions for union
leave.
The Board’s determination that the employer changed a
mandatory subject of bargaining it was required to maintain
after the 2018 CBA expired when it placed the Union President
on unpaid leave and thereby departed from Article 34, thus, is
supported by substantial evidence and is not reversible error.
V.
Lastly, we consider the Board’s determination that the
employer engaged in an unfair labor practice when it
implemented its final offer on Article 27, because the parties
had not yet reached an impasse. Section 8(a)(5) prohibits an
employer from “refus[ing] to bargain collectively with the
representatives of [its] employees.” 29 U.S.C. § 158(a)(5).
That bargaining obligation is suspended, however, when the
parties reach a lawful impasse. Serramonte Oldsmobile, Inc. v.
NLRB, 86 F.3d 227, 232 (D.C. Cir. 1996). “The party asserting
impasse bears the burden” to show that an impasse existed.
Wayneview Care Ctr., 664 F.3d at 350. We “defer[] to the
Board’s fact-finding as to the existence of a bargaining
impasse, . . . unless the finding is irrational or unsupported by
substantial evidence.” Id. at 348 (quotations and citations
omitted).
Impasse on a single critical issue can excuse a party’s
bargaining obligation. To assess whether there is a single-issue

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22
impasse, the Board applies the three-part CalMat framework.
See CalMat Co., 331 NLRB 1084, 1097 (2000). A party
claiming a single-issue impasse must show that (1) the single
issue involved was critical, (2) a good-faith bargaining impasse
actually existed, and (3) the impasse over the single issue led
to a breakdown in the overall negotiations. See Erie Brush &
Mfg. Corp. v. NLRB, 700 F.3d 17, 21 (D.C. Cir. 2012). The
parties agree that Article 27’s work schedule provision was
critical to the negotiations. But the employer disputes the
Board’s findings that the parties had not reached a good-faith
impasse over Article 27 and that there was no overall
breakdown in negotiations. Both findings are sound.
A.
Whether the parties have reached a good-faith impasse is
a “case-specific inquiry; there is no fixed definition of an
impasse or deadlock which can be applied mechanically to all
factual situations.” TruServ Corp. v. NLRB, 254 F.3d 1105,
1114 (D.C. Cir. 2001) (quotations and citation omitted).
Relevant factors that the Board may consider include “the
bargaining history, the good faith of the parties in
negotiations, . . . and the contemporaneous understanding of
the parties as to the state of negotiations.” Id. (quoting Taft
Broad. Co., 163 NLRB 475, 478 (1967)). The Board properly
considered the parties’ bargaining conduct and
contemporaneous understanding to find that they did not reach
a good-faith impasse.4
4 The Board also considered the parties’ bargaining history, including
“the parties’ many years of negotiating agreements together,” “the
overall length of negotiations[,] and its preparation of over 10
proposals on Article 27,” finding that a productive bargaining history
was unable to “counter-balance . . . [the employer’s] bad-faith
conduct and the fact that the parties did not clearly believe there was
an impasse.” J.A. 759 (internal quotations omitted).

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23
A good-faith impasse can “occur[] when ‘good faith
negotiations have exhausted the prospects of concluding an
agreement.’” Id. (emphasis added). “Good faith bargaining
simply means a desire to reach an agreement,” and an employer
is “entitled to insist on certain terms.” Mike-Sell’s Potato Chip
Co. v. NLRB, 807 F.3d 318, 324 (D.C. Cir. 2015). Still, the
“parties must enter into discussions with an open mind and a
sincere intention to reach an agreement.” United Steelworkers
of Am. v. NLRB, 983 F.2d 240, 245 (D.C. Cir. 1993) (quotations
and citation omitted).
The record supports the Board’s finding that the employer
failed to engage in good-faith negotiations over Article 27 and
did not therefore reach a good-faith impasse over that
provision. From the onset of the negotiations, the parties
recognized that Article 27 was going to be a critical issue. The
Union was aware that the employer needed to change the work
schedule to accomplish its expansion plans. Rather than
negotiate in good faith, the employer “undermined the Union’s
bargaining position” over the work schedule. J.A. 759. Within
weeks of starting negotiations, according to testimony by its
human resources manager, the employer unilaterally changed
the employee work schedule. The employer further disrupted
the CBA negotiations by later placing the Union’s president on
unpaid leave. As the settlement agreement’s June 30 deadline
approached, after which the 2018 CBA’s unfavorable work
schedule would go back into effect, the employer declared an
impasse. The employer did so despite the Union’s requests to
keep negotiating.
The contemporaneous understanding of both parties
further supports the Board’s finding that they did not reach a
good-faith impasse. “An impasse occurs only when both sides
have exhausted the prospects of reaching a deal . . . and neither
side is open to compromise, leaving no realistic prospect that

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24
further discussions will be fruitful.” Hood River Distillers, 130
F.4th at 212 (cleaned up). The parties continued to exchange
counterproposals on Article 27 up to the employer’s impasse
declaration. The Union’s last response to the employer’s final
offer revisited a “previously abandoned” proposal that would
have allowed the employer to fill its weekend needs by
“hir[ing] new shifts of employees to work exclusively on
Saturdays and Sundays.” J.A. 751. The employer faults the
Union for submitting a previously-rejected proposal, but does
not contend or show that this counterproposal was offered in
bad faith or was regressive. Cf. Hood River Distillers, 130
F.4th at 213 n.3, 214 (finding that the record did not show a
union’s last counterproposal was a regressive bargaining
position as would support a good-faith impasse). Instead of
reconsidering this prior proposal in light of later progress on
other provisions, the employer rejected the Union’s final
counterproposal and implemented its final offer. After the
employer notified the Union that it believed they had reached
an impasse, the Union disagreed and asked that the employer
resume bargaining. When the employer declared an impasse,
therefore, the parties did not both believe they were at “the end
of their rope.” Id. at 212 (quotations and citation omitted).
The employer responds that the Board erred in weighing
the Union’s statements that the parties had not reached an
impasse. According to the employer, we have previously held
that the Board should avoid relying on a union’s “twelfth-hour
protestations and posturing” and “self-serving statement[s]” to
negate “months[ of] fruitless bargaining” culminating in an
impasse, Laurel Bay Health & Rehab. Ctr. v. NLRB, 666 F.3d
1365, 1375, 1376 (D.C. Cir. 2012) (cleaned up). The employer
also contends that the Board cannot find that the parties are “at
an impasse because they were at an impasse about whether they
were at an impasse,” Grove v. NLRB, 140 F.4th 506, 513 (D.C.
Cir. 2025). But unlike Laurel Bay, the Board here did not

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25
“ignore[] the parties’ bargaining history” by “focus[ing]
instead on their post-impasse conduct.” Laurel Bay, 666 F.3d
at 1375. And unlike Grove, the Board did not here rely solely
on its finding that “[a]t no time . . . did both parties understand
themselves to be at an impasse.” Grove, 140 F.4th at 513
(quotations and citations omitted). The Board did consider
other factors, particularly the parties’ pre-impasse bargaining
conduct. To the employer’s detriment, however, that
bargaining conduct evinced the employer’s bad-faith approach
to negotiations over Article 27.
B.
Even if there had been a good-faith impasse over Article
27, it would have excused the employer from its duty to bargain
only if such an impasse brought the negotiations to an overall
standstill. There is a distinction “between an impasse on a
single issue that would not ordinarily suspend the duty to
bargain on other issues and the situation in which impasse on a
single or critical issue creates a complete breakdown in the
entire negotiations.” Wayneview Care Ctr., 664 F.3d at 349–
50 (emphasis added) (quotations and citation omitted). As the
Board correctly found, the employer’s declaration of impasse
over Article 27 did not excuse its bargaining duty because it
did not completely breakdown the parties’ negotiations.
The record supports the Board’s finding that there was no
overall breakdown in negotiations for a successor CBA. On
the very morning that the employer implemented its final offer
on Article 27, the parties exchanged counterproposals on
Articles 8 and 19, and the parties subsequently reached an
agreement resolving provisions other than Article 27. While
our dissenting colleague suggests that Erie Brush precipitates
a finding that the Article 27 deadlock caused an impasse even
if the parties continued to “negotiate ancillary issues,” Dissent

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26
at 16, there is an obvious distinction between the matters. In
Erie Brush, the union’s chief negotiator testified that he and the
negotiator for the employer agreed they were at an impasse.
700 F.3d at 19. Here, the employer’s human resources
manager testified that, when it declared an impasse over Article
27, the employer believed there was no impasse over any other
provision in the CBA and that additional negotiations over
other provisions were still “possibl[e].” J.A. 760; see also J.A.
163. Indeed, in the negotiation rules they adopted before
bargaining began, the parties agreed to “first sign all the articles
on which there [w]as no difference and then go on to negotiate
those on which there [wa]s a difference.” J.A. 750. Pursuant
to those rules, the parties could have continued negotiating
other CBA provisions and then returned to any provisions—
like Article 27—over which a disagreement remained. The
employer did not meet its burden to show that “the asserted
deadlock over [Article 27] inhibited progress on any other
aspect of the negotiations.” Wayneview Care Ctr., 664 F.3d at
350; see also Atl. Queens Bus Corp., 362 NLRB No. 65, slip
op. at 1 (2015) (finding a single-issue impasse can lead to an
overall breakdown if “there can be no progress on any aspect
of the negotiations” (emphasis in original) (quotations and
citation omitted)).5
5 The Board has repeatedly interpreted the third CalMat factor to
require an overall breakdown in negotiations. See, e.g., Stephens
Media Grp.-Watertown, LLC, 371 NLRB No. 11, slip op. 8 n.51
(2021) (finding no overall breakdown in negotiations because “[t]he
parties also made progress on other bargaining subjects”); Stein
Indus. Inc., 365 NLRB 227, 230 n.10 (2017) (“[T]he parties’
differences on wages did not lead to a complete breakdown in the
overall negotiations that would have prevented them from reaching
agreement on any number of issues.”); Castle Hill Health Care Ctr.,
355 NLRB 1156, 1188 (2010) (finding no overall breakdown in
negotiations because the employer failed “to show that the parties
had reached the sort of stalemate resulting in intractable positions on

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27
Citing CalMat, the employer contends that the Board erred
in considering the parties’ post-impasse exchange of
counterproposals to find there was no overall breakdown in
negotiations. The employer’s reliance on CalMat is misplaced.
In CalMat, the Board determined that the parties attempt at
post-impasse negotiations did not rebut a finding of an impasse,
because the negotiations were “unproductive,” “concluded on
a harsh note,” and involved parties that were “skeptical as to
whether anything could be achieved” in the post-impasse
negotiations. CalMat, 331 NLRB at 1099–1100. But here, the
parties’ post-impasse engagements led to agreements over
other provisions of the CBA. And, in any event, the Board
found that there was no overall breakdown in negotiations by
relying principally on the parties’ exchange of proposals
contemporaneous to the declaration of impasse.
* * *
Accordingly, substantial evidence supports the Board’s
determination that the parties had neither reached a good-faith
impasse over Article 27 nor encountered an overall breakdown
in negotiations.
VI.
For the foregoing reasons, we deny the petition for review
and grant the Board’s cross-appeal for enforcement of its
decision and order.
So ordered.
any issue or group of issues which would render further bargaining
futile”).

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RAO, Circuit Judge, dissenting: To find that Compañía
Cervecera de Puerto Rico committed unfair labor practices, the
National Labor Relations Board ignored the plain text of the
collective bargaining agreement, penalized Cervecera’s
reasonable exercise of contractual rights, and misapplied the
standard for finding a bargaining impasse. Because the Board’s
decision ignores basic principles of contract interpretation and
is not supported by substantial evidence, I respectfully dissent.
I.
The majority opinion sets forth the factual background of
this dispute in detail, so I highlight only some key facts. This
case arises from a series of disputes between Compañía
Cervecera de Puerto Rico (Cervecera), a brewing and bottling
company based in Puerto Rico, and the Unión Independiente
de Trabajadores de Cervecería India (the Union), which
represents around 120 of Cervecera’s employees. Cervecera
and the Union began bargaining over a successor collective
bargaining agreement in June 2021, just a few months before
the 2018 collective bargaining agreement (the CBA) expired.
The CBA contained two provisions central to this case. Article
34 granted the Union President up to 200 hours of unpaid
sporadic leave per contract year for union business. It also
granted the Union President the ability to exceed the 200-hour
leave limit by “request[ing] a prolonged leave without pay” of
“no less than six months.” Article 27 governed employee work
schedules.
By June 2021, the month negotiations began, Union
President Abel Luciano had exceeded his 200-hour leave
allowance under Article 34 for the 2020–21 contract year.
Cervecera formally warned him in a May 2021 letter that he
had reached his limit for the contract year and was required to
“request a prolonged leave without pay of not less than six (6)
months” if he needed more union time. Despite this warning,
Luciano took leave in June, July, and August without

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2
requesting the mandated extended leave. Cervecera chose not
to enforce the prolonged leave requirement, explaining that
negotiations had just begun and it desired “to keep … good
employer-employee relations at that time.”
As negotiations progressed, a separate disciplinary issue
arose. In August 2021, Luciano violated company policy by
standing at his workstation outside of his scheduled shift in
protest of work schedule changes and refusing to leave when
asked by a manager. For this violation, Cervecera suspended
Luciano without pay for one month and issued him a written
warning advising that any further violation of company rules
could result in his dismissal.
The leave issue arose again during the 2021–22 contract
year. On December 1, 2021, Cervecera warned Luciano that his
“union leave [was] exhausted,” that his absences could not “be
adjudicated to it,” and that he needed “to request the extended
union leave provided by the agreement … so that [his]
disciplinary file related to these unjustified absences” would
not affect him. On April 27, 2022, Luciano exceeded the 200-
hour limit without requesting prolonged leave, in violation of
Article 34. Despite its previous warning that future violations
of company rules could result in termination, Cervecera did not
terminate Luciano but instead placed him on the six-month
leave without pay contemplated by Article 34.
Meanwhile, bargaining over employee work schedules in
Article 27 of the new collective bargaining agreement had
stalled. Due to significant business expansion since the
negotiation of the prior CBA, Cervecera needed to implement
a 24/7 production schedule to meet increased market demand.
Cervecera proposed various employee work schedules that it
believed would meet its operational demands, but none of those
proposals satisfied the Union’s desire for consistency in days

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3
off. In June 2022, Cervecera submitted its “final offer” on work
schedules, which the Union rejected a month later. A few days
after that, the Union submitted a counterproposal that was
substantively identical to the one they submitted at the start of
negotiations and that Cervecera had already rejected. Believing
further talks were futile and desiring resolution of this
important issue, Cervecera declared an impasse on Article 27
and implemented its final employee schedule offer on August
15, 2022. Negotiations on other articles continued.
The Union filed charges with the Board, which found that
Cervecera had committed three unfair labor practices. The
Board concluded Cervecera had: (1) unilaterally changed the
terms of union leave, in violation of sections 8(a)(5) and (1) of
the National Labor Relations Act (the Act); (2) placed Luciano
on prolonged leave in retaliation for his union activities, in
violation of sections 8(a)(3) and (1); and (3) implemented its
final offer on work schedules in the absence of an impasse, also
in violation of sections 8(a)(5) and (1). Cervecera petitioned for
review, and the Board cross-petitioned for enforcement.
II.
On a petition for review, we “must evaluate both the
Board’s statements of law and application of law to the facts.”
Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 475 (D.C.
Cir. 2020). “We owe no special deference to the Board’s
interpretation of contract language, but review it de novo,
applying ordinary principles of contract law.” Hosp. de la
Concepcion v. NLRB, 106 F.4th 69, 76 (D.C. Cir. 2024)
(cleaned up); see also Am. Med. Response of Conn., Inc. v.
NLRB, 93 F.4th 491, 496 (D.C. Cir. 2024) (“Courts and the
Board are bound to enforce lawful labor agreements as
written.”) (cleaned up).

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4
The Board’s factual findings will be upheld if they are
supported by substantial evidence, which is “such evidence that
a reasonable mind might accept as adequate to support a
conclusion.” NCRNC, LLC v. NLRB, 94 F.4th 67, 72 (D.C. Cir.
2024) (cleaned up). Although our review is deferential, we are
not a mere “rubber stamp.” Circus Circus, 961 F.3d at 484. Our
duty is to ensure the Board’s decisions are “reasonable and
reasonably explained.” Id. at 475 (cleaned up). We will vacate
the Board’s decision if “the Board acted arbitrarily or otherwise
erred in applying established law to the facts of the case.”
NCRNC, 94 F.4th at 72 (cleaned up).
III.
The Board’s first two unfair labor practice findings stem
from a single event: Cervecera’s decision to place Luciano on
prolonged leave after he exceeded the 200-hour limit in Article
34. The Board concluded this action was a unilateral change to
a mandatory subject of bargaining and also anti-union
retaliation. Because Cervecera’s action followed from a
straightforward application of the CBA and company policy,
the Board erred as a matter of law.
A.
Cervecera did not unilaterally change a policy; it gave
Luciano the benefit of the prolonged leave established in
Article 34. An employer does not alter terms and conditions of
employment when it does nothing more than apply a contract’s
bargained-for procedure. The Board’s conclusion that
Cervecera violated section 8(a)(5) by unilaterally changing its
union leave policy rests on two errors. First, the Board
misinterpreted Article 34 of the CBA to prevent Cervecera
from enforcing the 200-hour limit on union leave. Second, the
Board incorrectly found that a single instance of waiving the

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5
limit created a binding past practice that overrode the clear
terms of the CBA.
Under section 8(a)(5) of the Act, it is 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).
In a situation like this one, where a prior collective bargaining
agreement expires while negotiations of a successor agreement
are ongoing, this duty requires an employer to maintain the
status quo by adhering to the terms of the expired agreement
until the parties reach either a final agreement or a good-faith
impasse. Wilkes-Barre Hosp. Co., LLC v. NLRB, 857 F.3d 364,
373–74 (D.C. Cir. 2017). The primary source for defining the
status quo is the text of the expired CBA. See id. at 374 (“In
defining the post-expiration status quo in this case … we look
to the substantive terms of the [expired] CBA.”).
Luciano’s ability to take leave was governed by Article 34
of the CBA and Cervecera’s separate Attendance Policy, which
has been in place since 2010. Article 34 of the CBA granted
the Union President up to 200 hours of unpaid sporadic leave
per year for union business, after which the CBA established a
mandatory procedure for additional time: “the employee shall
request a prolonged leave without pay, no less than six
months.” This special leave program for the Union President
operated alongside the company’s Attendance Policy, which
prohibited absences except for certain justified reasons and
required employees to submit an “Absence Report” before
taking any leave. The Attendance Policy included “Union
leave” as a justified absence but explicitly noted that leave
“cannot exceed the maximum number of hours allowed by the
corresponding collective bargaining agreement” and “must
comply with the conditions settled in the corresponding
collective bargaining agreement.” The Policy defined

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6
unexcused absences as cause for discipline up to and including
job dismissal.
Luciano had a documented pattern of violating the
Attendance Policy as well as other company policies. He
routinely took sporadic leave without filing the appropriate
absence forms, and he exceeded his 200-hour leave limit during
the 2020–21 contract year without requesting prolonged leave,
despite repeated warnings from management. His
insubordination arguably peaked in August 2021, when he
showed up to work outside of his shift in protest of a work
schedule change and refused to leave. Cervecera sent Luciano
a letter explaining his “action constitute[d] an act of
insubordination, refusal to follow reasonable work-related
orders, a violation of established work rules, disorderly
conduct, and being unrespectful to management.” Following
the disciplinary policy in the CBA, the company suspended
Luciano without pay for a month and warned that any “relapse
into another discipline related violation” would result in him
being “submitted to what was established in the current
Collective Bargaining Agreement … job dismissal.” Despite
that clear warning, in April 2022, Luciano took additional
union leave that pushed him over the 200-hour limit for the
2021–22 contract year without requesting the prolonged leave
Article 34 required. This violation of the Attendance Policy, as
governed by Article 34, was a dismissible offense when
considered with his previous violations of the Attendance
Policy.
Faced with Luciano’s numerous violations, Cervecera had
several options consistent with the CBA. It could (1) enforce
its warning letter and dismiss Luciano for violating the
Attendance Policy; (2) take Luciano’s absences as a
constructive request for the six-month prolonged leave
contemplated by the CBA; or (3) excuse the violations and

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7
waive its right to enforce the contract. Cervecera chose the
middle path. Instead of dismissing Luciano, it gave him the
benefit of a prolonged leave. This action was not a change to
Article 34 but a straightforward application of its terms that
allowed Luciano to avoid being found in violation of the
Attendance Policy and losing his job.
The Board’s conclusion to the contrary, which the majority
affirms, rests on two errors. First, the Board adopted the view
that because Article 34 states the employee “shall request” the
prolonged leave, the employer is powerless to impose it if the
employee fails to make a proper request. See Majority Op. at
16–17. This interpretation, which focuses on the employee’s
duty to request leave, reads the provision in a vacuum and
ignores the employer’s contractual rights to enforce its
bargained-for terms. Article 34 dictates the employee’s
responsibilities and duties. Luciano violated the contract when
he took more than 200 hours of union leave without requesting
prolonged leave. Because of the violation, Cervecera was
entitled to dismiss Luciano or to discipline him in some other
way. In an act of leniency, Cervecera treated the unapproved
absence as a request to use his prolonged leave benefit.
Nothing in the CBA suggests that Cervecera had an all-or-
nothing choice under Article 34 to either fire the Union
President in the middle of negotiations or to ignore his absences
completely. See Circus Circus, 961 F.3d at 480 (“The [NLRA]
does not interfere with the normal exercise of the right of the
employer to select its employees or to discharge them.”)
(cleaned up). Cervecera could have chosen discipline when
faced with Luciano’s disregard of the 200-hour limit. Instead,
it chose to construe Luciano’s absence as a request for an
option already set forth in the CBA, namely an extended period
of unpaid leave for union work.

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8
Second, the Board erred by finding that a single, previous
act of leniency created a binding “past practice” of unlimited
leave that amended the CBA’s terms. At the start of
negotiations in 2021, Cervecera allowed Luciano to exceed his
leave allotment for the stated purpose of keeping “good
employer-employee relations.” The Board treats Cervecera’s
decision to refrain from disciplining Luciano in that year as
establishing a binding new policy of unlimited leave.
This conclusion is foreclosed by our precedent. In Sasol
North America Inc. v. NLRB, we squarely rejected the idea that
an employer’s failure to enforce a written leave rule creates a
new contractual right for employees. 275 F.3d 1106, 1111
(D.C. Cir. 2002). In that case, the written rule limited union
leave to a “reasonable time.” Id. at 1108–09. An employee was
permitted to take extensive union leave over the course of a
year and then claimed a change of company policy when the
employer said it expected to approve less leave in the future.
See id. We held that an employer does not “change” its policy
when it is “merely enforcing a pre-existing” written rule, and
we emphasized that allowing an employee to get away with
“lavish leave for a year or so does not establish that there was
ever a general policy of unlimited leave.” Id. at 1110–11. Here
Cervecera excused Luciano’s violation of Article 34 on a single
occasion, which cannot establish a past practice that rewrites
contractual terms. See Wendt Corp. v. NLRB, 26 F.4th 1002,
1014 (D.C. Cir. 2022) (explaining that to establish a past
practice an event must “occur[] with such regularity and
frequency that employees could reasonably expect the practice
to reoccur on a consistent basis”) (cleaned up). Our precedents
repeatedly reaffirm that a one-time exception does not
effectively amend a collective bargaining agreement.
The majority’s attempt to distinguish Sasol is
unpersuasive. It argues that, unlike the employer in Sasol,

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Cervecera was “aware” it was not enforcing the rule during the
2020–21 contract year. See Majority Op. 20–21. That is a
distinction without a difference. The core holding of Sasol is
that the objective, written terms of a contract define the status
quo, not the employer’s state of mind during a period of non-
enforcement. 275 F.3d at 1111. A one-time, discretionary act
of grace, extended for a specific, articulated business reason,
does not change the terms of a contract.1
Cervercera merely exercised its contractual rights by
responding to Luciano’s violation of Article 34. In concluding
that Cervecera’s actions constituted an unfair labor practice,
the Board erred as a matter of law.
B.
The Board’s conclusion that Cervecera violated section
8(a)(3) of the Act rests on a similar misinterpretation of the
CBA and is unsupported by substantial evidence. Section
8(a)(3) of the Act makes it an unfair labor practice for an
employer to “discriminat[e] in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
organization.” 29 U.S.C. § 158(a)(3). An employer violates
this section when it “terminate[s] or otherwise discipline[s] an
employee because of conduct protected by the Act.” Circus
Circus, 961 F.3d at 480. The Board’s holding here fails for two
independent reasons. First, placing Luciano on prolonged leave
was not an “adverse employment action” under these
1 Reinforcing this conclusion, the record shows that even as they
negotiated a successor agreement, both Cervecera and the Union
agreed to leave the language of Article 34 unaltered. This mutual
agreement demonstrates a shared understanding that the text of
Article 34, and not the prior year’s discretionary leniency, governed
the terms of union leave.

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circumstances. Second, even if the action was adverse, the
Board failed to properly apply the Wright Line framework.
1.
A finding of unlawful retaliation under section 8(a)(3) of
the Act “requires a predicate determination that an employer
took an adverse action.” Bellagio, LLC v. NLRB, 854 F.3d 703,
709 (D.C. Cir. 2017). “Adverse acts are those that reduce a
worker’s prospects for employment or continued employment,
or worsen some legally cognizable term or condition of
employment.” Id. The inquiry demands a contextual
assessment of the employer’s action, considering the terms of
the CBA and the employee’s conduct.
Cervecera’s action was not an “adverse employment
action.” As explained above, Luciano violated the union leave
limits in Article 34, and he was warned that further violations
could result in dismissal. Cervecera chose not to dismiss
Luciano, but instead to take his action as a constructive request
for the prolonged leave permitted by Article 34. Judged against
the contractual baseline of termination, Cervecera acted with
leniency, which by definition is not an adverse action.
Today’s decision nominally supports the rights of
employees. But by treating an act of leniency as a contractual
violation, the majority may create a perverse incentive for
employers to exercise their contractual rights in full. That is, if
exercising leniency might result in liability for an unfair labor
practice, an employer may instead choose to impose a harsher
contractual sanction.2
2 The majority upholds the Board’s flawed conclusion by focusing
on the fact that Luciano’s leave was unpaid. See Majority Op. 8–9.

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2.
Even if placing Luciano on leave could be considered an
adverse action, the Board’s finding that it was motivated by
anti-union animus is unsupported by substantial evidence.
When an employer offers a legitimate basis for its action, the
Board applies the Wright Line burden-shifting framework. 251
N.L.R.B. 1083, 1088–89 (1980). Under that standard, “the
general counsel must first establish a prima facie case that
animus against protected activity was a motivating factor in the
employer’s decision.” Circus Circus, 961 F.3d at 480 (cleaned
up). If that burden is met, “the burden of persuasion shifts to
the employer to show it would have taken the same action even
in the absence of the protected conduct.” Id. at 480 (cleaned
up). The Board’s analysis fails at both steps.
At the first stage of the Wright Line test, the Board’s
general counsel must demonstrate that the employee was
engaged in a protected union-related activity, that “the
employer was aware of that protected activity, and” that “the
protected activity was a motivating factor in the employer’s
decision to take [an] adverse action” against the employee.
Inova Health Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015)
(cleaned up). There is no dispute that Luciano was engaged in
a protected union activity and that Cervecera was aware of this.
But the Board’s conclusion that Cervecera was motivated by
animus rests on a trio of flawed inferences.
First, the Board inferred animus from the temporal
proximity between a settlement agreement reached in March
This ignores the relevant context by comparing the unpaid leave as
an alternative to Luciano’s active employment. In these
circumstances, however, the alternative to placing Luciano on
temporary, unpaid leave was not a paid sabbatical; it was
termination.

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2022 and the April 2022 leave action. The majority endorses
this inference, reasoning that Cervecera was retaliating against
Luciano for forcing the company to settle a protracted dispute.
See Majority Op. 11–13. The inference of animus here fails to
comport with the facts. As Cervecera explains, the settlement
was a positive development for the company because it
amicably ended a pending dispute with the Union. Neither the
Board nor the majority explain how a mutually beneficial
settlement would provoke a company to retaliate against the
union leader who helped achieve it.
Second, the Board inferred animus based on the
company’s unilateral schedule change in July 2021, an action
the Board found to be an unfair labor practice. This reliance on
stale events is similarly flawed. While the Board may in some
cases consider pre-settlement conduct as background evidence
of motive, its probative value diminishes with time and is
negated by a subsequent amicable resolution. Here, any
inference of animus is broken by the nine-month gap between
the schedule change and the placement of Luciano on leave.
See MECO Corp. v. NLRB, 986 F.2d 1434, 1437 (D.C. Cir.
1993) (explaining an eight-month gap “strongly militates
against any inference of anti-union motivation”). Moreover,
the parties’ subsequent amicable settlement extinguishes any
probative value of this past event. The Board again fails to
connect the dots and explain why an employer would be
provoked to retaliate by a nine-month-old dispute that had been
settled to its benefit.
Finally, the Board inferred animus because Cervecera
departed from past practice when it placed Luciano on a six-
month leave after he exceeded the 200-hour sporadic leave
limit. This finding fails for the reasons already explained.
There was no past practice here that modified the terms of the
CBA, and a single, discretionary act of leniency does not create

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a new, binding policy. See Sasol, 275 F.3d at 1111. The
majority explicitly declines to address the merits of the past
practice argument, finding the other evidence of animus
sufficient. Majority Op. 15–16. But the other evidence does not
logically support an inference of animus, and by sidestepping
this critical issue, the majority avoids confronting the weakness
of the Board’s case.
Finally, even assuming a prima facie case was made, the
Board erred by rejecting Cervecera’s legitimate, non-
discriminatory reason for its action. Under Wright Line’s
second step, an employer can defeat a charge by showing that
it “reasonably believed the employee committed the acts
supporting discipline” and that its decision was “consistent
with the company’s policies and practice.” Circus Circus, 961
F.3d at 481 (cleaned up). Cervecera easily met this burden.
Luciano had committed a terminable offense by taking
unauthorized leave after receiving an explicit final warning.
Cervecera’s response was entirely consistent with the
company’s Attendance Policy and the CBA. Even if the leave
was applied to Luciano as a punishment and not as a benefit,
Cervecera was well within its rights to impose a more lenient
punishment when a harsher punishment would have been
consistent with the CBA and its policies.
IV.
The Board’s final conclusion, that Cervecera violated
section 8(a)(5) of the Act by unlawfully implementing its last
offer on work schedules without reaching a lawful impasse, is
also unsupported by substantial evidence and contrary to this
court’s precedent. An employer may unilaterally implement a
proposal after the parties have bargained in good faith to an
impasse. See TruServ Corp. v. NLRB, 254 F.3d 1105, 1113–14
(D.C. Cir. 2001). When the deadlock is over a single issue, an

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overall impasse sufficient for unilateral implementation exists
if the issue is of critical importance; the parties have reached a
good-faith impasse as to that issue; and the impasse has caused
a “breakdown in the overall negotiations.” Erie Brush & Mfg.
Corp. v. NLRB, 700 F.3d 17, 21 (D.C. Cir. 2012). The Board
correctly found Article 27 was an issue of critical importance
for both parties, but it erred in finding there was no good-faith
impasse and no overall breakdown in negotiations.
A.
Substantial evidence demonstrates the parties had reached
a good-faith impasse on Article 27. An impasse is reached
when good-faith negotiations have “exhausted the prospects of
concluding an agreement.” Wayneview Care Ctr. v. NLRB, 664
F.3d 341, 347 (D.C. Cir. 2011) (cleaned up). The parties
bargained over Article 27 for nine months, exchanging more
than a dozen proposals with no meaningful progress.
Throughout the negotiations, their positions on the
fundamental structure of the workweek remained diametrically
opposed: Cervecera required a flexible schedule capable of
supporting its 24/7 operations, while the Union insisted on a
schedule that maintained more consistency with regard to days
off. Both parties had repeatedly rejected offers by the other that
attempted to work around these core disagreements, and after
nine months of negotiations, neither party was willing to
budge.
The futility of further talks was confirmed by the final
exchange. After failing to reach any agreement over the critical
terms, Cervecera proposed its “final offer.” The Union rejected
that offer. Then, rather than offer a new compromise, the Union
submitted a counterproposal that was substantively identical to
one Cervecera had rejected eight months prior. Compare J.A.
453, with J.A. 653. This return to a long-rejected offer is a

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strong indicator that the Union had no real intention of moving
from its position. Given the persistent intractability on the
question of work schedules, Cervecera in good faith concluded
that the prospects for an agreement had been exhausted. An
employer is not required to “engage in fruitless marathon
discussions.” NLRB v. Am. Nat’l Ins. Co., 343 U.S. 395, 404
(1952).
The majority upholds the Board’s contrary finding by
placing undue weight on the Union’s self-serving claim that it
wanted to continue negotiations. Majority Op. 23–25. But an
impasse cannot be defeated by “twelfth-hour protestations and
posturing.” Laurel Bay Health & Rehab. Ctr. v. NLRB, 666
F.3d 1365, 1375 (D.C. Cir. 2012). A union’s “bald statement
of disagreement” is not enough to defeat a good-faith impasse.
TruServ, 254 F.3d at 1117. Otherwise, an employer would
“virtually never be entitled to implement a final offer.” Mike-
Sell’s Potato Chip Co. v. NLRB, 807 F.3d 318, 323 (D.C. Cir.
2015).
B.
The Board also erred in finding the impasse on Article 27
did not lead to a “breakdown in overall negotiations.” Erie
Brush, 700 F.3d at 23. This court has long recognized that a
deadlock on a single, critical issue can cause an overall
breakdown, even if the parties continue to discuss other
matters. See id. If an impasse exists on a critical “make or
break” issue that “pervade[s] the negotiations,” then that
deadlock has “destroyed any opportunity for reaching a
[successor] collective-bargaining agreement.” Id. (cleaned up).
That is precisely the situation here. Article 27 was a critical
issue for both parties, a point that all acknowledge. See J.A.
760 (“Here, there is no dispute, and the record shows, that
Article 27’s work schedule and pay provisions were highly

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important to both parties.”); Majority Op. 23 (“From the onset
of the negotiations, the parties recognized that Article 27 was
going to be a critical issue.”). Without an agreement on the
fundamental structure of the workweek, no final collective
bargaining agreement was possible. The continued exchange of
proposals on other ancillary articles does not change this
reality. Because the impasse on Article 27 rendered a final
agreement on a successor collective bargaining agreement
impossible, it created a breakdown in the overall negotiations,
entitling Cervecera to lawfully implement its final offer.
The majority’s conclusion that no breakdown occurred
because the parties could still negotiate ancillary issues is in
direct conflict with our holding in Erie Brush. See Majority Op.
25–27. In that case, we held a deadlock on a “make or break”
issue can cause an impasse even if other matters remain open
for negotiation, because neither party would sign a final
contract without agreement on the critical term. Erie Brush,
700 F.3d at 23. The majority’s suggestion that progress on
ancillary issues could somehow break the deadlock on the
foundational issue of work schedules is the type of “rank
speculation” we have rejected. Id. The test for an impasse is not
whether parties might still reach consensus on other minor
items, but whether the deadlock on a critical issue has
“destroyed any opportunity for reaching a [successor]
collective-bargaining agreement.” Id.
Once it was clear that no agreement was possible on the
fundamental structure of the workweek, no final collective
bargaining agreement was achievable. As a result, the Board’s
finding that no impasse existed is contrary to our precedent and
unsupported by the record.

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* * *
Because the Board’s decision rests on a misinterpretation
of the CBA and is unsupported by substantial evidence, I would
grant Cervecera’s petition for review.

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