The opinion
16-52-ag
NLRB v. Nexstar Broadcasting Group, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a
summary order filed on or after January 1, 2007, is permitted and is
governed by Federal Rule of Appellate Procedure 32.1 and this Court’s
Local Rule 32.1.1. When citing a summary order in a document filed with
this Court, a party must cite either the Federal Appendix or an electronic
database (with the notation “Summary Order”). A party citing a summary
order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 12th day of April, two thousand seventeen.
Present:
PETER W. HALL,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. 16-52-ag
NEXSTAR BROADCASTING GROUP, INC. d/b/a WETM-
TV,
Respondent.
For Petitioner: AMY H. GINN, (Usha Dheenan, on the brief), National
Labor Relations Board, Washington, D.C.
For Respondent: CHARLES W. PAUTSCH, Pautsch, Spognardi & Baiocchi
Legal Group LLP, Milwaukee, Wisconsin.
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NLRB v. Nexstar Broadcasting Group, Inc.
Application for enforcement of an order of the National Labor Relations
Board.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for enforcement is GRANTED.
The National Labor Relations Board (“NLRB” or “Board”) petitions for
enforcement of its October 30, 2015 order against Nexstar Broadcasting Group, Inc.
We assume the parties’ familiarity with the underlying facts, the procedural
history, the ALJ’s and the Board’s rulings, and the arguments presented on appeal.
We review the Board’s legal determinations “to ensure that they have a
reasonable basis in law.” NLRB v. Caval Tool Div., 262 F.3d 184, 188 (2d Cir. 2001).
We afford the Board “considerable deference,” id., and will reverse only if the legal
determinations are arbitrary and capricious. Cibao Meat Prods., Inc. v. NLRB, 547
F.3d 336, 339 (2d Cir. 2008).
The Board’s findings of fact are conclusive if they are supported by
substantial evidence. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951). We will accept the Board’s findings of fact unless, “after looking at
the record as a whole, we are left with the impression that no rational trier of fact
could reach the conclusion drawn by the Board.” NLRB v. Katz’s Delicatessen of
Houston St., Inc., 80 F.3d 755, 763 (2d Cir. 1996).
Nexstar’s legal and factual challenges to the Board’s order are unpersuasive.
First, the Board’s legal determinations have ample basis in law. “[O]nce the
bargaining unit is established by the collective bargaining agreement or by NLRB
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action, an employer may not remove a job within the unit without either the
approval of the Board or consent by the union.” NLRB v. United Techs. Corp., 884
F.2d 1569, 1572 (2d Cir. 1989). Indeed, “[a]dherence to a bargaining unit, once it is
fixed, is central to Congress’ purpose of stabilizing labor-management relations in
interstate commerce.” Id. Thus, unilaterally removing an employee from the
bargaining unit violates §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act
(“NLRA”) and constitutes an unfair labor practice. See Taos Health Sys., Inc., 319
NLRB 1361, 1361 n.2 (1995). Nexstar offers no compelling reason to upset that
longstanding precedent.
Although the scope of the bargaining unit is subject to permissive bargaining,
eliminating employees from the bargaining unit mid-contract “interferes with the
required bargaining with respect to rates of pay, wages, hours and conditions of
employment in a manner excluded by the [NLRA].” Douds v. Int’l Longshoremen
Ass’n, 241 F.2d 278, 283 (2d Cir. 1957). Indeed, we have emphasized that “parties
cannot bargain meaningfully about wages or hours or conditions of employment
unless they know the unit of bargaining.” Id. at 282.
Following Nexstar’s argument to a logical conclusion, there is nothing to
prevent an employer from whittling the bargaining unit down to nothing during the
course of a labor contract. This, of course, cannot be. Given the foundational nature
of the scope of a bargaining unit, we continue to recognize that unilateral changes to
that scope are subject to the prohibition of unilateral changes announced in NLRB
v. Katz, 369 U.S. 736 (1962); as subsequent case law makes clear, see, e.g., United
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Techs. Corp., 884 F.2d at 1572, they are not the sorts of changes affecting conditions
of employment considered breaches of contract rather than unfair labor practices
under Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate-Glass Co., 404
U.S. 157 (1971), on which Nexstar exclusively relies.
Further, upon review of the record, we conclude that the Board’s findings are
supported by substantial evidence. Under the 2010 contract, both Doland and
Kastenhuber were in the bargaining unit. A week after the new agreement was
executed, Nexstar unilaterally removed Doland and Kastenhuber from the
bargaining unit without the Union’s consent. Although Nexstar and the Union
agreed to a revised recognition clause in the 2013 contract, both editions excluded
“supervisors” from the bargaining unit. Accordingly, there was no mid-contract
change in the contract language, and no bilateral agreement existed to justify their
removal.
The Board also reasonably found that neither Doland nor Kastenhuber meets
the statutory definition of a “supervisor” under 29 U.S.C. § 152(11). As for Doland,
the record shows that he may give advice or critiques to other videographers, but as
the Board reasonably found, “advice by an experienced employee to a worker with
less time on the job does not constitute Section 2(11) supervisory authority.” Resp.
App’x at 138. As we have said, “authority to direct” that results from “superior
training, skills and experience” does not amount to supervisory authority under the
NLRA. NLRB v. Mt. Sinai Hosp., 8 F. App’x 111, 114 (2d Cir. 2001) (internal
quotation marks omitted). Moreover, although Doland conducted some evaluations
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of other employees and signed them as a “supervisor,” there is no indication that
any employment decisions were made based on the evaluations. And “[e]valuations
that do not affect job status of the evaluated person are inadequate to establish
supervisory status.” New York Univ. Med. Ctr. v. NLRB, 156 F.3d 403, 413 (2d Cir.
1998).
As for Kastenhuber, the NLRB reasonably characterized the work
assignments in which he participated as collaborative endeavors, determining that
Kastenhuber does not “appoint[] an employee to a time” or “giv[e] significant overall
duties” to employees. See In Re Oakwood Healthcare, Inc., 348 NLRB 686, 689
(2006). Moreover, when Kastenhuber does reassign news crews to cover breaking
stories, he does so in a rote manner by redirecting the closest news crew to the
breaking story, presumably to cover it as quickly as possible. It was thus reasonable
for the Board to conclude that those assignments did not constitute a use of his
“independent judgment” as the NLRA requires. Id. at 693. With respect to both
employees, we need not decide whether we would reach the same result as the
Board in the first instance. We need only assure ourselves that the Board’s legal
conclusions were not arbitrary and capricious. Cibao, 547 F.3d at 339.
Finally, we discern no error in the Board’s remedy. The NLRB is empowered
“to take such affirmative action . . . as will effectuate the purposes of the [NLRA].”
29 U.S.C. § 160(c). The Board’s remedial authority “is a broad discretionary one,
subject to limited judicial review.” Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S.
206, 216 (1964). As such, we will uphold a remedial order unless we determine that
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it is “a patent attempt to achieve ends other than those which can be fairly said to
effectuate the policies of the [NLRA].” Id. (internal quotation marks omitted). We
make no such determination here.
Ordering reinstatement of Doland and Kastenhuber simply undoes the
consequences of Nexstar’s unfair labor practice; it is not “forced bargaining,” as
Nexstar contends, because it merely reinstates the terms of the parties’ fairly
negotiated contract. Further, the Board’s decision to order Nexstar to reimburse the
Union for dues lost during the period that Doland and Kasterhuber were excluded
from the bargaining unit is a reasonable remedy. Nexstar’s claim that the payment
is prohibited by 29 U.S.C. § 186(c) is plainly incorrect. That prohibition contains an
explicit exception for payments to a union” “in satisfaction of a judgment of any
court.” Id. § 186(c)(2). The Board’s remedial order, as enforced by this Court, falls
within that exception. In addition, despite Nexstar’s objections, the “make whole”
order is contingent on Doland and Kastenhuber demonstrating economic loss. If
they cannot—which is a possibility because they continued in their jobs at their
previous pay rates—then Nexstar will face no financial obligation.
Simply put, the Board’s factual findings are supported by substantial record
evidence and its legal determinations have a reasonable basis in law. Its remedial
order effectuates the purposes of the NLRA by restoring the status quo ante.
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We have considered Nexstar’s remaining arguments and find them to be
without merit.
Accordingly, the petition for enforcement is GRANTED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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