Nexstar Media Inc., Authorized to Operate Television Station WROC-TV

373 NLRB No. 88 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Nexstar Media Inc., Authorized to Operate Television Station WROC-TV and National Association of Broadcast Employees & Technicians— Communications Workers of America, AFL– CIO. Case 03–CA–332930 August 29, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS PROUTY AND WILCOX This is a refusal-to-bargain case in which Nexstar Me- dia Inc., Authorized to Operate Television Station WROC-TV (the Respondent)1 is contesting the Union’s certification as bargaining representative in the underly- ing representation proceeding. Pursuant to a charge filed on January 4, 2024, by National Association of Broad- cast Employees & Technicians - Communications Work- ers of America, AFL–CIO (the Union), the General Counsel issued a complaint on April 10, 2024, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bar- gain with the Union following the Union’s certification in Case 03–RC–309322. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer and corrected answer admit- ting in part and denying in part the allegations in the complaint and asserting affirmative defenses. On May 15, 2024, the General Counsel filed a Motion for Summary Judgment. On May 16, 2024, the Board issued an Order Transferring the Proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On May 30, 2024, the Respondent filed a response to the Notice to Show Cause. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits that it has refused to bargain but asserts that it has no duty to bargain and contests the validity of the Union’s certification of representative based on its objections to the election in the underlying representation proceeding and its contention, raised and 1 We have corrected the Respondent’s name to conform to the name used in the representation proceeding. rejected in the underlying representation proceeding, that the bargaining unit includes statutory supervisors.2 All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor has it established any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a cor- poration with an office and place of business in Roches- ter, New York (the Respondent’s facility), and has been operating a television station. Annually, the Respondent, in conducting its business operations described above, derives gross revenues in excess of $100,000 and purchases and receives at its Rochester, New York facility goods and services valued in excess of $5000 directly from points outside the State of New York. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 2 In its answer to the complaint, the Respondent denies the para- graphs alleging the appropriateness of the bargaining unit, the Union’s status as the unit employees’ exclusive collective-bargaining repre- sentative, that it has failed and refused to recognize and bargain with the Union, that it has violated the Act, and that its unfair labor practices affect commerce. In its affirmative defenses, the Respondent admits that it has refused to bargain with the Union to test certification, and claims that in the underlying representation proceeding its objections were improperly overruled; its objections warranted a hearing; and certain unit employees should have been designated Sec. 2(11) supervi- sors. It incorporates the claims from the underlying representation case in its response to the Board’s Notice to Show Cause. Because those issues were fully litigated and resolved in the underlying representation proceeding, we conclude that the Respondent’s denials of the allega- tions in pars. 6(a), 6(c), 7(c), 8, and 9 of the complaint, its affirmative defenses, and the arguments raised in its response to the Board’s Notice to Show Cause do not raise any issues warranting a hearing. Lastly, there is no merit to the Respondent’s affirmative defense that Sec. 10(b) bars some or all of the allegations in the complaint. The charge was filed on January 4, 2024, and the complaint alleges that the Respondent’s refusal to bargain began on December 14, 2023, and is ongoing. 3 The Respondent’s request that the complaint be dismissed is there- fore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following an election conducted by secret ballot on February 15, 2023, the Regional Director issued a Certi- fication of Representative in Case 03–RC–309322 on September 26, 2023, certifying the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit:4 Included: All full-time and regular part-time employ- ees employed in the classifications of Reporter 1, Mul- tiMedia Journalists; Reporter 1, News Anchor; Report- er 1, Sports; Reporter 1, News; Meteorologist 1; An- chor III, News; Assistant 1, News Production; Assistant 1, Production; Designer 1, Graphic; Director 1, Produc- tion; Photographer 1, News; Operator 1, Master Con- trol; Engineer 1, Broadcast; Editor 1, News; Editor I, Assignments; Editor 1, Creative Services Photogra- pher; Engineer 1, Maintenance; Producer 1, News; Digital Content Producer; Producer, Digital Content (NE); Producer 1, Creative Services; Producer 1, Digi- tal; and Paid Interns employed by the Respondent at its Rochester, New York facility. Excluded: Office clerical employees, individuals em- ployed in the classifications of Assistant 1, Administra- tive; Coordinator 1, HR Business; Receptionist; Sales; Chief Engineer; Assistant Chief Engineer; Sports Di- rector; Chief Meteorologist; Chief Photographer; Crea- tive Services Director; Managing Editor; Executive Producer; News Director; Assistant News Director; confidential employees, managers, guards, and supervi- sors as defined by the Act.5 On January 2, 2024, the Board denied the Respond- ent’s request for review of the Regional Director’s deci- sion. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. 4 The Regional Director found that employees in the following clas- sifications were included in the unit: Producer 1, News; Digital Content Producer; Producer, Digital Content (NE); Producer 1, Creative Ser- vices; and Producer 1, Digital. Further, employees in the classification Technician 1, IT System were permitted to vote subject to challenge, but it was unnecessary to resolve their inclusion in or exclusion from the unit because their ballots were not determinative. The Certification of Representative inadvertently failed to reflect these outcomes. We have corrected the unit description accordingly. 5 However, Technician 1, IT System is neither included in nor ex- cluded from the bargaining unit covered by the certification, inasmuch as the parties did not agree on the inclusion or exclusion of Technician 1, IT System but agreed to vote them subject to challenge and resolu- tion of their inclusion or exclusion was unnecessary because their bal- lots were not determinative of the election results. B. Refusal to Bargain About December 14, 2023, and January 2, 2024, the Union, by email, requested that the Respondent bargain with the Union as the exclusive collective-bargaining representative of the unit. Since about December 14, 2023, and continuing to date, the Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about December 14, 2023, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the em- ployees in the appropriate unit, the Respondent has en- gaged in unfair labor practices affecting commerce with- in the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning on the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). In addition, the General Counsel requests that the Re- spondent be required to make its employees whole for the lost opportunity to bargain at the time and in the manner contemplated by the Act. To do so would re- quire overruling Ex-Cell-O Corp., 185 NLRB 107 (1970), and outlining a methodological framework for calculating such a remedy. The Board has decided to sever this issue and retain it for further consideration to expedite the issuance of this decision regarding the re- maining issues in this case.6 See Longmont United Hos- 6 In its response to the Board’s Notice to Show Cause, the Respond- ent opposes the General Counsel’s request that the Board overrule Ex- Cell-O. Because the issue of compensatory relief will be severed for future consideration, the Respondent’s arguments on that matter are no NEXSTAR MEDIA INC 3 pital, 371 NLRB No. 162, slip op. at 2 (2022), enfd. 70 F.4th 573 (D.C. Cir. 2023). The Board will issue a sup- plemental decision regarding a make-whole remedy at a later date. See Kentucky River Medical Center, 355 NLRB 643, 647 fn. 13 (2010); Kentucky River Medical Center, 356 NLRB 6 (2010). ORDER The National Labor Relations Board orders that the Respondent Nexstar Media Inc., Authorized to Operate Television Station WROC-TV, Rochester, New York, and its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with the National Association of Broadcast Employees & Technicians—Communications Workers of America, AFL–CIO (the Union) as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agree- ment: Included: All full-time and regular part-time employ- ees employed in the classifications of Reporter 1, Mul- tiMedia Journalists; Reporter 1, News Anchor; Report- er 1, Sports; Reporter 1, News; Meteorologist 1; An- chor III, News; Assistant 1, News Production; Assistant 1, Production; Designer 1, Graphic; Director 1, Produc- tion; Photographer 1, News; Operator 1, Master Con- trol; Engineer 1, Broadcast; Editor 1, News; Editor I, Assignments; Editor 1, Creative Services Photogra- pher; Engineer 1, Maintenance; Producer 1, News; Digital Content Producer; Producer, Digital Content (NE); Producer 1, Creative Services; Producer 1, Digi- tal; and Paid Interns employed by the Respondent at its Rochester, New York facility. Excluded: Office clerical employees, individuals em- ployed in the classifications of Assistant 1, Administra- tive; Coordinator 1, HR Business; Receptionist; Sales; Chief Engineer; Assistant Chief Engineer; Sports Di- rector; Chief Meteorologist; Chief Photographer; Crea- barrier to granting summary judgment. See Longmont United Hospital v. NLRB, 70 F.4th 573, 581-582 (D.C. Cir. 2023). tive Services Director; Managing Editor; Executive Producer; News Director; Assistant News Director; confidential employees, managers, guards, and supervi- sors as defined by the Act.7 (b) Post at its facility in Rochester, New York, copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. In addition to physi- cal posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Re- spondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 14, 2023. (c) Within 21 days after service by the Region, file with the Regional Director for Region 3 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 7 Technician 1, IT System is neither included in nor excluded from the bargaining unit. 8 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notices must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Re- spondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Dated, Washington, D.C. August 29, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ David M. Prouty, Member ________________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with the National Association of Broadcast Employees & Technicians—Communications Workers of America, AFL–CIO (the Union) as the exclusive collective- bargaining representative of our employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing appropriate bargaining unit: Included: All full-time and regular part-time employ- ees employed in the classifications of Reporter 1, Mul- tiMedia Journalists; Reporter 1, News Anchor; Report- er 1, Sports; Reporter 1, News; Meteorologist 1; An- chor III, News; Assistant 1, News Production; Assistant 1, Production; Designer 1, Graphic; Director 1, Produc- tion; Photographer 1, News; Operator 1, Master Con- trol; Engineer 1, Broadcast; Editor 1, News; Editor I, Assignments; Editor 1, Creative Services Photogra- pher; Engineer 1, Maintenance; Producer 1, News; Digital Content Producer; Producer, Digital Content (NE); Producer 1, Creative Services; Producer 1, Digi- tal; and Paid Interns employed by the Respondent at its Rochester, New York facility. Excluded: Office clerical employees, individuals em- ployed in the classifications of Assistant 1, Administra- tive; Coordinator 1, HR Business; Receptionist; Sales; Chief Engineer; Assistant Chief Engineer; Sports Di- rector; Chief Meteorologist; Chief Photographer; Crea- tive Services Director; Managing Editor; Executive Producer; News Director; Assistant News Director; confidential employees, managers, guards, and supervi- sors as defined by the Act.* * Technician 1, IT System is neither included in nor excluded from the bargaining unit. NEXSTAR MEDIA INC., AUTHORIZED TO OPERATE TELEVISION STATION WROC-TV The Board’s decision can be found at www.nlrb.gov/case/03-CA-332930 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.