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.




                                         1
16-52-ag
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



                                          2
16-52-ag
NLRB v. Nexstar Broadcasting Group, Inc.
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



                                          3
16-52-ag
NLRB v. Nexstar Broadcasting Group, Inc.
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



                                          4
16-52-ag
NLRB v. Nexstar Broadcasting Group, Inc.
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



                                          5
16-52-ag
NLRB v. Nexstar Broadcasting Group, Inc.
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.




                                          6
16-52-ag
NLRB v. Nexstar Broadcasting Group, Inc.
      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




                                      7
