Nexstar Broadcasting Group, Inc. d/b/a WETM-TV

National Labor Relations Board - Administrative Judge Opinions

Jan 15, 2015

03-CA-125618 (N.L.R.B. Jan. 15, 2015)

JD(NY)–03–15
Elmira, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
NEXSTAR BROADCASTING GROUP, INC., d/b/a
WETM-TV
and Case 03-CA-125618
INTERNATIONAL ALLIANCE OF THEATRICAL
STAGE EMPLOYEES AND MOVING PICTURE
TECHNICIANS, ARTISTS AND ALLIED CRAFTS
OF THE UNITED STATES, ITS TERRITORIES
AND CANADA, AFL-CIO
Claire T. Sellers, Esq., for the General Counsel.
Charles W. Pautsch, Esq. (Pautsch, Spognardi &
Baiocchi Legal Group, LLP), Buffalo, NY,
for the Respondent.
Samantha Dulaney, Esq., New York, NY, for the Union.
Decision
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on a charge filed on April 1, 20141
by the International Alliance of Theatrical Stage Employees and Moving Picture Technicians,
Artists and Allied Crafts of the United States, its Territories and Canada (Union), a complaint
was issued against Nexstar Broadcasting Group, Inc. d/b/a WETM-TV (Respondent or
Employer) on July 22.
The complaint alleges that on March 26, the Respondent unilaterally removed the
positions of Assignment Editor and Chief Videographer from the collective-bargaining unit
without the Union’s consent. The complaint also alleges that the Respondent unilaterally
removed the bargaining unit work of those positions from the unit without prior notice to the
Union and without affording it an opportunity to bargain with it regarding such conduct. The
remedy sought includes requiring the Respondent to restore the positions and job duties of
Assignment Editor and Chief Videographer to the unit as they existed prior to March 26.
The Respondent’s answer denied the material allegations of the complaint and asserted
that the (a) complaint is barred by Section 10(b) of the Act (b) remedy sought is not authorized
by the Act as it would force it to agree to and implement a term in a collective-bargaining
agreement that it did not agree to and (c) assignment editor and chief videographer are
statutory supervisors and cannot be included in the unit.
On October 6 and 7, a hearing was held before me in Horseheads, New York. On the
entire record, including my observation of the demeanor of the witnesses, and after considering
the briefs filed by all parties, I make the following:

1 All dates hereafter are in 2014 unless otherwise stated.
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Findings of Fact
I. Jurisdiction and Labor Organization Status
The Respondent, a corporation having an office and place of business in Elmira, New
York, has been engaged in the operation of a television station. Annually, the Respondent
derives gross revenues in excess of $100,000 and purchases and receives at its Elmira, New
York facility, goods valued in excess of $5,000 directly from points outside New York State. The
Respondent admits and I find that it is an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
The Respondent also admits and I find that the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. The Facts
1. Background
Television station WETM-TV was purchased by Smith Television in 1986. Ten years
later, in January, 1996, the Union’s predecessor was certified as the exclusive collective-
bargaining representative of Smith Television’s employees in the following unit:
Included: All full-time and part-time assignment editors,
promotions manager, directors, anchors, reporters, producers,
videographers, photographers, maintenance engineers, audio
technicians, assistant chief engineers, master control operators,
traffic persons, production coordinators, and office staff employed
by the employer at its WETM-TV station in Elmira, New York.
Excluded: All other employees, including sales persons, general
managers, account executives, news directors, business
managers, program directors, chief engineers, confidential
employees, and all other managers and supervisors and guards
as defined in the Act.
In 2005, the station was purchased by Clear Channel Communications. It was then
acquired by Newport Television in 2008. In December, 2012, it was purchased by the
Respondent.
Newport had a collective-bargaining agreement with the Union which ran from March,
2010 to March 19, 2013. The Respondent assumed that contract upon its purchase of the
facility, and operated under that agreement until its expiration in March, 2013.
That contract‘s “Recognition - Scope of Jurisdiction” clause is as follows:
The Station recognizes the Union as the exclusive bargaining
representative of all regular full and part-time employees of the
Station engaged in television broadcasting and web streaming at
its television station WETM in Elmira, N.Y. and said station’s
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facilities, excluding all sales managers, general managers,
account executives, department heads, including managing editor,
production manager, traffic manager, promotions manager, station
events coordinator, executive producer, chief meteorologist, news
director, sports director, chief engineer, and all other supervisors
and guards as defined in the Act.
The parties began negotiations for a new contract in February, 2013. They met about
once per month for about seven months. Present for the Respondent were Timothy Busch,
executive vice president and chief executive officer, Scott Iddings, director of creative services
and programming, and Don Hunt, chief engineer. The Union was represented by David Hartnett,
lead negotiator and assistant department director of the Union, David Siskin, Union president,
and John Doland, the chief videographer employed by the Respondent.
Busch testified that of the Respondent’s many proposals relating to language and
economic issues was one to amend the contract’s recognition clause to eliminate the extensive
list of unit exclusions set forth therein.
It was the Employer’s belief that the clause should specifically list which classifications
are included in the unit rather than those excluded therefrom. Busch reasoned that, if the clause
did not identify specifically who was covered, the parties would be unclear as to which other
jobs it would cover. Busch explained that if the Employer acquired another company whose job
classifications are not specifically named as being excluded from this unit, they could
automatically be considered as being part of the unit.
2. The Negotiations
a. The Employer’s Version
At one of the first bargaining sessions in February, 2013, the Employer proposed the
following “Recognition – Scope of Jurisdiction” clause:
The Station recognizes the Union as the exclusive bargaining
representative of all regular full and part-time employees of the
Station engaged in television broadcasting and web streaming at
its television station WETM in Elmira, N.Y. and said station’s
facilities, including only master control operators, videographers,
creative services producer/directors, anchors, reporters, newscast
directors, production assistants and not any supervisor or
managerial roles.
The parties agreed to table a discussion of this proposal until the next meeting. In the
interim, the Respondent gave the Union a list of bargaining unit members it had requested. That
list included the names of John Doland, the chief videographer, and George Kastenhuber, the
assignment editor.
According to Employer official Busch, there was an extensive, one-half day discussion
concerning a statutory supervisor’s responsibilities and the Employer’s intent in changing the
clause. Busch explained to the bargainers his view of a supervisor’s role based on his 30 year
experience in the broadcasting business and as the chief operating officer of the Employer. He
stated that he spoke about the supervisory roles of John Doland, the chief videographer, and
George Kastenhuber, the assignment editor. Nicole Chorney was also mentioned as someone
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who should be excluded from the unit as a confidential employee. Busch’s notes indicate that
production assistant Sydney should be included in the unit.
Busch testified that he “pointed out that John Doland, who was at the table as a
supervisor, has responsibilities and oversight that included training and evaluations …. We
talked about specific folks, we talked about John. We talked about George [Kastenhuber]. We
talked about others that could be supervisors… I specifically talked about John at that table.”
According to Busch, when he was making his presentation, Doland nodded his head when he
characterized him as a supervisor.
Although Busch testified on direct examination that George Kastenhuber was discussed
during bargaining, he testified, inconsistently on cross examination, that Kastenhuber,
specifically, was not referred to during bargaining. “You’re assumption is that George was
thought of during bargaining. That’s not the case. Supervisors were to be excluded from the
bargaining unit. It had nothing to do with any specific person.” He further stated that the
Employer decided to remove the two men from the unit “after the contract was ratified and
signed.” In addition, Busch denied that Kastenhuber was mentioned by name during the
bargaining, noting that Iddings wrote him a note with Kastenhuber’s name at a time when they
were away from the bargaining table.
Busch conceded that he did not know specifically what Doland did each day, but stated
that he is familiar with the duties of a chief videographer based on his knowledge of how a
station is run.
Busch stated that the Union agents asked for a definition of the term “supervisor.”
Busch called his attorney who sent him a memo entitled “The Definition of ‘Supervisor’ Under
the National Labor Relations Act” prepared by the Congressional Research Service. Busch
testified that he read from the memo that Oakwood Healthcare2 “established new definitions for
three key terms that are used to identify supervisors for purposes of the NLRA: to ‘assign’ and
‘responsibly to direct’ employees and to exercise ‘independent judgment.’”
He then told the Union agents that the Respondent’s hierarchy includes general
managers, department heads, supervisors and line staff, and that supervisors cannot be part of
the unit since they direct and assign unit employees.
Busch stated that during the bargaining he wrote on his copy of the memo that he
reviewed it with the Union. He testified that no questions were asked by the Union and no
counterproposals were made by it. His notes state that the Union rejected this proposal, wanted
to retain the “original language,” and offered to provide alternative language.
Apparently, no additional language was proposed by the Union and, according to Busch
and his notes, the Union tentatively agreed to the proposal at the May 10 session.
b. The Union’s Version
According to Doland, a “vast” number of topics were discussed during bargaining. He
conceded that the Employer wanted Chorney removed from the unit and the Union agreed that
she was a confidential employee. Doland testified, however, that there was no specific mention
that he and Kastenhuber would be removed from the unit, adding that their terms and conditions

2 348 NLRB 686 (2006).
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of employment were not discussed.
Union agent Hartnett conceded that the Employer sought a “complete overhaul” of the
contract, its intent being to change the “scope and jurisdiction” language. However, he stated
that the parties discussed only the duties of Chorney, and not those of Doland or Kastenhuber.
Hartnett testified that when the scope of jurisdiction clause was discussed, the parties
did not discuss Doland or Kastenhuber or their removal from the unit, and it was not the parties’
intention to remove them from the unit. He denied that Busch spoke about the Kentucky River3
or Oakwood Healthcare decisions, or described the definition of supervisor discussed therein.
Hartnett further stated that the two men’s terms and conditions of employment were not
spoken about, except that it was agreed that Kastenhuber’s vacation allowance would be
“grandfathered” at four weeks annually. That agreement was set forth in a side letter to the
contract, dated January 31. Agreement was reached because the parties considered moving
the “vacation language” from the Employer’s handbook to the collective-bargaining contract.
Such a change would have resulted in Kastenhuber’s losing one week’s vacation.
3. The Agreed Upon Contract
A tentative agreement was reached on January 31. A draft copy of the new agreement
including all the language in the prior contract that was omitted, and the changes and additions
to the original contract, were sent to the Union for review. The proposed contract was voted on
by the Union membership and ratified.
The renewal contract was executed on March 18. It is effective from February 26, 2014
to February 25, 2017. The unit set forth in the contract, which is the same as that initially
proposed by the Employer one year before, is as follows:
The Station recognizes the Union as the exclusive bargaining
representative of all regular full and part-time employees of the
Station engaged in television broadcasting and web streaming at
its television station WETM in Elmira, N.Y. and said station’s
facilities, including only master control operators, videographers,
creative services producer/directors, anchors, reporters, newscast
directors, production assistants and not any supervisor or
managerial roles.
Busch stated that shortly after the execution of the contract, he directed general
manager Bob Grisson to withdraw Doland and Kastenhuber from the bargaining unit since they
were supervisors, and to withdraw Chorney as the administrative assistant “under the
exclusionary language.”4
Immediately after the renewal contract was signed, Doland and Kastenhuber were
informed on about March 26 by Employer official Iddings that they were no longer included in
the bargaining unit because they were supervisors.

3 NLRB v. Kentucky River Community Care, Inc., 432 U.S. 706 (2001).
4 Busch conceded, however, that the contract does not exclude Chorney’s job title from coverage
therein but rather includes only those titles specifically mentioned.
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Doland called Union agent Hartnett and told him what had just occurred. Hartnett stated
that they were all “shocked” at this turn of events. He immediately phoned Iddings, being “quite
adamant that this was not what was collectively bargained and I would have to look into legal
remedies regarding this.” Hartnett stated that Iddings was shocked that he (Hartnett) was
shocked. Hartnett filed the instant charge on April 1. Hartnett considered the removal of Doland
and Kastenhuber from the unit as an unfair labor practice and not a violation of the contract. He
accordingly did not file a grievance.
Busch stated that the Employer’s objective in amending the contract was not to remove
Doland and Kastenhuber from the unit. Rather, the objective was to remove supervisors from
the unit.
Following their removal from the unit, Doland’s and Kastenhuber’s job duties and
working conditions remained the same. Their compensation also remained the same, except
that no contributions were made to their pensions by the Employer.
4. The Job Duties of John Doland and George Kastenhuber
a. John Doland
Doland has been the chief videographer at the facility since 1996 at which time he
became a member of the Union. In addition to Doland, there are four other videographers -
Chuck Brame, Jesse Martin, Jaran Reid, and Richard Tanner.
Doland testified that his duties include overseeing the equipment and ensuring that it is
workable. He videotapes a story with a reporter, and edits video news stories. He critiques the
videos of the other videographers when he has the time to do so.
Upon arriving at work he checks his emails at another employee’s desk since he does
not have a desk. He visits news websites in order to determine whether the stories he sees
there should be covered by the Employer.
Doland attends the morning meeting run by producer Kaleigh Morrison. In attendance
are Doland, news director Bob Rockstroh, assignment editor Kastenhuber, the videographer
and a reporter. Occasionally, another videographer and more reporters are also present.
Doland testified that Morrison posts what stories the station should be covering that day.
Significantly, the posting, done by Morrison, lists the location, time, and the name of the
videographer and the reporter assigned to the story. Those present discuss the stories.
Employer official Iddings confirmed that at the morning meeting, Doland does not assign
videographers or reporters stories to cover. However, according to Iddings, Doland has the
authority to direct them in the field. For example, where a live shot is done with a live truck, two
people would be assigned to one camera. Doland offers them guidance and advice on making
that shoot.
Following the meeting, each person undertakes his assignment for the day. Doland may
call another source who is aware of a story. He then takes his equipment and leaves the office,
accompanied by a reporter, to cover a story.
Doland shoots about three stories per day, explaining that the duration of the story
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depends on its location. He returns to the station at about 3:00 p.m. when he edits the stories he
shot and other, national stories which he receives from the computer. Two other videographers
who arrive at 3:30 pm. also edit the national stories. Those national stories are “localized” by the
team by interviewing individuals in the community concerning the impact of those news items on
them.
Doland stated that when a “breaking news story occurs,” the person who learns about it
advises the producer who assigns or reassigns the team closest to that story to cover it. Iddings
confirmed that the chief videographer does not reassign individuals to cover such stories.
What follows is the job description of the chief “photographer” which is an alternative title
to that of chief videographer, and Doland’s testimony concerning each task:
(a) With the news director, establish, enforce and update rules and guidelines for proper
use of all video equipment and give the news director an annual report on the state
of the equipment.
Doland testified that he attempts to perform these tasks, but that he does not have
time to establish, enforce and update rules and guidelines.
(b) Maintain a sign-out system for all equipment and vehicles assigned to the news
department.
Doland attempts to maintain a sign-out system for all equipment and vehicles
assigned to the news department. He checks it once per day. Last month, for the first
time in five years, he performed an inventory of cameras, records and other
equipment.
(c) Maintain records of inventory and distribution of tapes. With the news director and
program director, establish needs for tape replacement.
Doland denied performing this task.
(d) Establish programs with the news director and chief engineer for preventive
maintenance programs for video equipment.
If Doland is informed that equipment is faulty he tells the person reporting the matter
to bring it to the shop. Alternatively, the informant takes it to the shop himself. He
usually emails the news director and chief engineer regarding what should be done
with broken equipment.
(e) Meet with each photographer to critique shoots once per month or more as needed.
Doland stated that he does not meet once per month with each photographer
because he does not have the time. However, if he sees poor editing or lighting as
he walks through the editing bay or in a broadcast, or if he sees a poorly shot story,
he gives the videographer “some pointers” on how he can improve. Doland stated
that “nothing would happen” as a result of these “pointers.”
(f) Establish and maintain records with the chief engineer on vehicle maintenance and
cleaning. Establish and oversee programs involving all news personnel for interior
and exterior cleaning of vehicle once per week.
Doland does not do this task which is the province of the engineering department.
(g) Work with the news director on performance evaluation of all photographers and take
responsibility for discipline of photographers, as necessary.
Doland evaluated the videographers in 2013 and 2014. His evaluations are
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discussed below. Doland stated that about two years ago he attempted to discipline
those who “sat around and did nothing” by reporting them to his supervisor, Bob
Grisson, the general manager. However, “nothing happened” to them and they were
not discharged. Grisson’s response was that the lazy employee’s father “brings a lot
of money into the station.”
(h) Establish membership in a press photographers association.
Doland denies performing this task.
(i) Hold seminars annually for photographers and reporters to focus on shooting,
editing, equipment maintenance and related topics.
Doland denies performing this task.
(j) Perform additional duties as assigned by the news director.
Doland performs this task. He does special assignments such as shooting and
editing as assigned by the editor.
Scott Iddings, the director of creative services and programming, testified that he is
familiar with the duties of a chief videographer based on his 20 year history in the broadcasting
industry.
Iddings stated that as the chief videographer, Doland shoots stories, goes in the field
with new videographers or candidates for hire and has the individual shoot a “mock story.”
Doland evaluates how the candidate handles his equipment and interacts with the public.
Doland returns to the studio with the individual and watches while he edits the shoot.
Iddings further stated that Doland observes the individual performing these tasks, getting
a “feel for how he thought he did” and whether he “passes muster on the various skills that are
required for the position.” Doland then makes a recommendation to the news director as to
whether he should be hired. Iddings stated that Doland has made such recommendations on
various occasions at meetings of the station’s department heads, including recommending that
Brame and Martin be hired. Iddings further stated that he believed that, on occasion, Doland
recommended that candidates not be hired, but he could not recall any specific instances. Nor
did he say whether Doland’s negative recommendations were followed.
Doland testified that he worked with videographer Tanner at another station and was
aware of his ability. Tanner applied for a job with the Employer and Doland accompanied him on
a shoot. Doland stated that Tanner “knew what he was doing” and he recommended that
Tanner be hired. Doland did not take Jaran Reid on a shoot but he was hired. Doland
speculated that Reid was hired because his father was the general manager of the station.
Doland took Brame on a shoot and he was also hired, but Doland stated that it was not
his decision that Brame be hired. Doland stated that he did not take Jesse Martin on a shoot
and was not involved in his hire. However, Iddings stated that Doland recommended the hire of
Brame and Martin.
Doland was given the task of performing evaluations for the other videographers for the
first time when the Employer purchased the facility. Doland prepared written performance
evaluations for the four videographers, Brame, Martin, Reid and Tanner, in 2013 and 2014. He
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gave each a score of 4 (exceeds expectations) on a scale of 1 to 5 in five areas of review:5
initiative, performance, communication, knowledge, and dependability. Doland made positive
comments in each of the performance areas for each of the videographers. He also noted their
progress toward goals set six months before, and listed the goals for the next six months. He
further listed their strengths and areas that need improvement. Doland reviewed the evaluation
with the videographer and asked him to sign it. He then signed the form as “supervisor” and
“evaluator,” and then gave the form to Rockstroh. Rockstroh did not testify.
Doland denied that “there is anything more to the evaluation process than filling out the
form.” He also denied that the evaluation led to any benefit such as a raise in pay, promotion or
a bonus. He did not believe that a negative evaluation could lead to the employee being fired,
noting that no one has been fired due to a poor evaluation.
Iddings stated that Doland assigns specific videographic equipment to each
videographer. If a videographer needs equipment for a shoot which is in use by another, Doland
reassigns that gear to the individual in need of that equipment. If equipment is broken, Doland is
notified and the gear is removed from service and either Doland or the videographer takes it for
repair to the engineering department. Iddings stated that Doland gives the order to the
engineering department to have the vehicle cleaned.
Iddings stated that Doland is paid nearly $18.00 per hour, while the other videographers
earn an average of $10.50. Iddings based Doland’s higher salary on the facts that he has long
tenure at the station, his general experience level, and the fact that he is the chief videographer.
In contrast, Doland attributed his higher salary to the fact that when the station was
owned by Clear Channel he informed that company that he was resigning his job, and he
thereafter negotiated a higher wage rate through his own individual contract. He kept the same
rate thereafter and his salary was increased through periodic Union wage raises. Doland denied
that his higher salary was related to his alleged supervisory responsibilities.
b. George Kastenhuber
Kastenhuber has been the assignment editor for 12 years, becoming a member of the
Union in 2002. His duties begin in the evening by locating stories that need to be covered the
following day. He obtains those stories from other staff members, local newspapers,
government agencies and wire services. However, he is not the only person engaged in that
endeavor. It is a “collaborative effort by all… to gather these story ideas.” He sends an email
that evening with a cryptic description of the stories that may be covered the following day.
He described his job as being able to “take what we know exists and be able to assign
crews, take stories, and gather information just to make sure we have a constant workflow
throughout the day.”
The following morning, Kastenhuber checks his emails and faxes. His morning producer,
Zach Wheeler, informs him of any newsworthy stories that occurred the night before, or any
follow-up that needs to be done, which “points him in the right direction.” He then calls police
agencies to learn of any stories, and checks the newspapers and social media sources.
Kastenhuber then prints a “grid” or chart outlining the stories in greater detail, which may

5 Reid received a score of “3” in the area of Performance.
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or may not be covered that day and emails it as an update to the station’s employees. Pursuant
to a request by his producers he updates that list. The list, prepared by the producer, contains
the names of reporters and photographers assigned to those stories.
The stories which may be covered are posted on a board. At the morning meeting, run
by producer Morrison, the stories are discussed with input from everyone present. Morrison
works from the grid that Kastenhuber distributed and asks the participants for suggestions for a
“lead story.” Kastenhuber characterized his job duties as that of a “traffic cop in the newsroom.”
Those present offer their ideas, and the group decides whether the stories on the grid should be
reported. Kastenhuber stated that not all the stories he posts to the grid are covered. He
provides them as an “option.”
Kastenhuber testified that at the meeting, news director Rockstroh and producer
Morrison “assign reporters and videographers to the stories listed in the summaries.”
Employer official Iddings testified that the assignments editor works with the reporters
and videographers, assigning them to various locations to cover news stories. In addition,
Iddings stated that Kastenhuber “is part of that process of let’s assign who goes where. He is
the assignment editor so he is making assignments.” In contrast, Kastenhuber stated that at that
meeting, Morrison and news director Bob Rockstroh assign the reporters and videographers to
the stories listed in the summaries, while Kastenhuber helps the reporters by supplying them
with background facts and figures, and offering ideas and suggestions concerning how to cover
their stories.
Iddings stated that if Morrison or Rockstroh are not present, he believes that
Kastenhuber runs the meeting because he has the highest seniority, having been at the station
for 12 years, and having been in the industry for 30 years. Although he has no personal
knowledge that that has occurred, he reasoned that “someone has to run the meeting.”
Kastenhuber denied leading that meeting at any time.
Following the meeting, Kastenhuber again checks the local newspapers for breaking
news, and also checks other television stations for stories.
At 11:00 a.m., Kastenhuber participates in a brief conference call with the assignment
editors of other Nexstar stations located in other areas of the station’s coverage such as
Burlington, Rochester, Syracuse and Utica. They discuss the stories each will cover that day
and consider running a story that another location has prepared. Following the conference call,
Kastenhuber checks news websites and considers updating the story roster. He helps the
producers or reporters with information they may need.
The Employer is informed of breaking news, which occurs abut twice per week, from
police scanners monitored by Kastenhuber, newspaper websites, and viewers who email the
station. Iddings stated that when a breaking news story occurs, Kastenhuber is informed and he
decides that that story be covered immediately. He then determines which crew is closest to the
breaking story and directs that team to conclude its assignment and cover the breaking story.
Kastenhuber confirmed that he assigns crews in a breaking story by calling the closest
news team and asking them to go to the scene. However, he advises his news director later that
he took such action. He further testified that he, the news director and producer together decide
who is closest to a breaking story and how they need to “shift gears” to have that story covered.
Indeed, he testified that Morrison and Rockstroh decided who to send to cover a breaking story
about area flooding.
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He stated that his role is to try to help Morrison and Rockstroh determine, logistically,
which team is closest to the breaking story. He stated that he can reassign someone to work on
a breaking news story if no one is present in the newsroom to make that assignment.
Kastenhuber noted that when he is in the newsroom in the morning he sends the
morning editor who is already near the scene, with a reporter, but he checks with the news
director in those instances where a morning producer has to be shifted with another producer.
Kastenhuber stated that he is paid $12.67 per hour. Iddings stated that the reporters are
paid from $10.50 to $11.50. Kastenhuber stated that following his removal from the unit his job
duties have not changed, and he received the 1% raise provided in the Union contract.
However, no contributions have been made by the Employer to his Union pension.
In his 2014 evaluation of Kastenhuber, news director Rockstroh stated that Kastenhuber
“helps with staffing and helps keep overtime under control.” Kastenhuber explained that he does
that by making certain that Rockstroh is aware of any situation which may require overtime. For
example, Kastenhuber informs him of an event and inquires “do we want to cover it with
overtime?” Kastenhuber stated that he is not authorized to assign overtime or ask an employee
to perform overtime work without Rockstroh’s consent.
Kastenhuber agreed with his evaluation which characterized him as the “gateway” to the
information that comes into the newsroom. He based that on his experience, his having lived in
the community for nearly 60 years, and his extensive knowledge of the market. He emphasized
that he does not manage the news. Rather, he supplies information to reporters and makes
suggestions as to who the reporters should speak with. He noted that he does not tell the
reporters how to write their stories. Rather, he gives them the information and informs them as
to how to “further” their stories.
Kastenhuber stated that he is not a producer, did no producing, and did not write any
newscasts. He works with a new producer, making certain that he was aware of certain emails
and posts to Facebook. When he is asked to look at a script for suggestions, he gives his
opinion and suggests revisions.
The job description of the “assignments editor or manager,” and Kastenhuber’s
testimony concerning each task follows:
(a) Tracking stories from all sources.
Kastenhuber does that task as part of his evening compilation of news stories to
cover the following day.
(b) Dispatching photographers, reporters and others to cover stories.
Kastenhuber denies performing this task. He stated that this task is the responsibility
of the producer and news director.
(c) Coordinates logistics for news personnel.
Kastenhuber performs these tasks.
(d) Participates in daily story meetings and supplies a comprehensive list of all possible
news stories, and works with the News Director to develop plans for all broadcasts.
Kastenhuber performs these tasks.
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(e) Assists in development, planning and follow-up of all news stories.
Kastenhuber testified that he performs these tasks and explained that occasionally
the news director informs him that he saw a news item and asks Kastenhuber to
gather some information for a story.
(f) Edits video clips as assigned.
Kastenhuber stated that he “very rarely” edits video clips.
(g) Writes stories for the web and other eMedia platforms.
Kastenhuber stated that he is responsible for about two web items. He posts videos
for franchise items and other feature items such as an attorney speaking on a legal
subject.
(h) Interacts with viewers/users on social media sites.
Kastenhuber occasionally, but not generally, interacts with individuals on such sites.
He does not interact with viewers using Facebook or Twitter.
The requirements for the position include a Bachelor’s degree in journalism, or an
equivalent combination of education and work related experience, fluency in English, excellent
communication skills, two years’ experience in news operations, proficiency with computers and
other office equipment, ability to meet deadlines, prioritize assignments and multi-task, and
flexibility to work any shift.
Kastenhuber meets the educational requirement through a combination of education and
work-related experience, and meets all the other criteria.
Analysis and Discussion
I. The Supervisory Status of Doland and Kastenhuber
Section 2(11) of the Act defines a supervisor as:
Any individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
The possession of any one of the above criteria is sufficient to prove the supervisory
status of the disputed individual. The burden of proving that an employee is a statutory
supervisor is on the party which asserts his supervisory status. Oakwood Healthcare, Inc., 348
NLRB 686, 687 (2006); NLRB v. Kentucky River Community Care, 532 U.S. 706, 713 (2001).
The Board has cautioned that the supervisory exemption should not be construed too broadly
because the consequence of such a construction would be to remove individuals from the
protection of the Act. Providence Alaska Medical Center, 320 NLRB 717, 725 (1996).
A. John Doland
Doland has been the chief videographer at the facility for 18 years. His work, shooting
news stories with a reporter which are then aired by the Respondent, is essentially the same as
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that performed by the four other videographers. One of his responsibilities which can arguably
be described as supervisory is occasionally critiquing the video shoots of other videographers
when he has the time to do so, giving “pointers” on making more effective videos. However,
advice by an experienced employee to a worker with less time on the job does not constitute
Section 2(11) supervisory authority. Sears, Roebuck & Co., 292 NLRB 753, 754 (1989);
Sanborn Telephone Company, Inc., 140 NLRB 512, 515 (1963).
Doland performed evaluations of the other videographers twice, in 2013 and 2014. He
stated that he reviewed the evaluation with the employee, signed it as his supervisor, and then
gave the form to supervisor Rockstroh. Rockstroh did not testify. Doland denied that the
evaluation process led to any benefit for the employee being evaluated. The authority to
“evaluate” is not one of the indicia of supervisory status set out in Section 2(11). Elmhurst
Extended Care Facilities, 329 NLRB 535, 536 (1999). “When an evaluation does not, by itself,
affect the wages and/or job status of the employee being evaluated, the individual performing
such an evaluation will not be found to be a statutory supervisor.” Elmhurst, above, at 536. “The
authority simply to evaluate employees without more is insufficient to find supervisory status.”
Passavant Health Center, 284 NLRB 887, 891 (1987).
Other evidence, that Doland’s name appears as “supervisor” on his evaluations of
employees and his higher salary, do not establish that he is a statutory supervisor. Training
School at Vineland, 332 NLRB 1412, 1416 (2000). His undenied testimony that his salary, which
was higher than other videographers, was obtained by agreement with a former employer
similarly does not support a finding that such salary was attributed to his supervisory
responsibilities.
The Respondent also asserts that Doland recommended the hire of certain
videographers. There was some dispute as to whether Doland recommended the hire of Brame
and Martin. Iddings stated that he did but Doland denied doing so.
Doland has a prospective videographer shoot a “mock” story and then recommends to
news director Rockstroh whether he should be hired. Rockstroh did not testify. There is no
evidence as to what weight Rockstroh gave to Doland’s alleged recommendation. Doland’s
participation in part of the interview process is “insufficient to establish supervisory authority
under the Act because there is no evidence that the [disputed supervisor] effectively
recommended that the [candidate] be hired.”North General Hospital, 314 NLRB 14, 16 (1994).
The one instance in which he reported an employee for laziness was dismissed and no
discipline was taken against the employee. Doland does not assign employees to cover
breaking news stories.
The assignment of equipment to a videographer, taking the equipment to be repaired,
directing that vehicles be cleaned, even assuming that Doland performed all those tasks, does
not establish that he is a statutory supervisor where there is no showing that he exercised
independent judgment in the execution of those tasks. Those jobs are simply routine in nature.
B. John Kastenhuber
Kastenhuber has worked as the assignment editor for 12 years. He locates stories which
the Respondent may be interested in covering and circulates those stories to other staff
members. His producer leads a meeting at which those present, including Kastenhuber, give
their opinions as to which stories to report.
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I find, in contrast to Iddings’ testimony, that the news director and producer, and not
Kastenhuber, assign those stories to the reporters and videographers. At most, the assignments
are part of a collaborative effort. Even as Iddings testified, Kastenhuber “is part of that process
of let’s assign who goes where.” It is more likely, as the morning meeting is a group effort of
determining which stories to cover, that the assignments are also part of a combined exercise,
where the two undisputed supervisors, the news director and producer, are actually making the
assignments.
Kastenhuber conceded that he assigns the closest team to a breaking news story.
However, such assignment does not constitute the exercise of independent judgment. Rather,
he mechanically determines which team is geographically closer to the story. Moreover, he later
tells his news director that he took such action. Furthermore, he stated that he only makes such
an assignment if no one else is in the newsroom at that time. Such routine, mechanical
assignments, involving only the determination of which team is closer to a breaking news story,
does not involve the exercise of independent judgment and is not evidence of supervisory
authority. Sears, Roebuck, above, at 754. Kastenhuber is not authorized to assign overtime
work without his news director’s agreement.
In King Broadcasting Co., 329 NLRB 378, 381 (1999), the Board found that assignment
editors working at a television station were not statutory supervisors. Many of their
responsibilities were similar to Kastenhuber’s, including their selection of stories as prospective
news items to be covered and participation in group meetings to determine which stories
should be aired. In King, and here, the editor was described as a “traffic cop” who monitors
information coming into the newsroom.
In King, the Board held that the assignment editor was not a supervisor, notwithstanding
that he made assignments. The Board found that such assignments were not based on the
exercise of independent judgment even though they were based on an assessment of
employees’ skills. 329 NLRB at 381. Here, likewise, there was no evidence that any assignment
made by Kastenhuber was based on his exercise of independent judgment, or his assessment
of the assignee’s skills.
Conclusion
I accordingly find and conclude that John Doland and George Kastenhuber are not
supervisors within the meaning of Section 2(11) of the Act.
II. The Alleged Refusal to Bargain
The complaint alleges that on about March 26, the Respondent unilaterally removed the
positions of assignment editor and chief videographer from the bargaining unit without the
Union’s consent, and also unilaterally removed the bargaining unit work of the assignment editor
and chief videographer from the unit without prior notice to the Union and without affording it an
opportunity to bargain with it with respect to such conduct.
A. Alteration of the Unit’s Scope
In Hill-Rom Co., Inc., v. NLRB, 957 F.2d 454, 457 (7th Cir. 1992), the court defined
permissive subjects of bargaining as those “which fall outside the scope of Section 8(d) of the
Act and cannot be implemented by the employer without union or Board approval.” The court
stated, as adopted by the Board in Hampton House, 317 NLRB 1005, 1005 (1995):
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There is no doubt that the scope of the employees’ bargaining unit
is a permissive subject of bargaining, regardless of whether the
unit has previously been certified by the Board or voluntarily
agreed upon by the parties. Accordingly, once a specific job has
been included within the scope of the bargaining unit by either
Board action or consent of the parties, the employer cannot
unilaterally remove or modify that position without first securing
the consent of the union or the Board. The reason why the law
disfavors unilateral changes in the unit description is as simple as
it is fundamental: if an employer could vary unit descriptions at
will, it would have the power to sever the link between a
recognizable group of employees and its union as the collective
bargaining representative of these employees. This, in turn, would
have the effect both of undermining a basic tenet of union
recognition in the collective bargaining context and of greatly
complicating coherence in the negotiation process.
“If the subject is a permissive one, the other party may refuse to discuss it; a proposal
cannot thereafter be implemented absent an agreement to do so. A proposal to alter the scope
(composition) of an existing bargaining unit is a permissive subject of bargaining. Thus, an
employer cannot unilaterally change a bargaining unit, even after bargaining to impasse.”
Aggregate Industries, 359 NLRB No. 156, slip op. at 3 (2013).
The positions of assignment editor and chief videographer were included within the
scope of the bargaining unit by the consent of the parties.
The job classification of “videographers” was included in the collective-bargaining unit
certified by the Board in 1996. The Union was recognized by two successive employers. The
unit contained in the Respondent’s immediate predecessor’s (Newport) contract, was broad. It
included all the station’s employees, but excluded 14 specific titles, and supervisors. That
contract was assumed by the Respondent which operated pursuant to it from the time it
purchased the Station in December, 2012 until its expiration in March, 2013.
Accordingly, that contract’s unit description which broadly included of all of its
employees, of course included Doland and Kastenhuber. The Respondent claims that they are
supervisors. However, during that period of time, and indeed, during their entire lengthy
employment at the Station, they were admittedly included in that unit and were considered and
treated as unit employees represented by the Union.
Indeed, the Respondent, at the start of negotiations, gave the Union a list of Union
members which included the names of Doland and Kastenhuber.The Respondent apparently
made no claim during their employment that they were statutory supervisors who should be
excluded from the unit. Rather, that claim was made for the first time after the bargaining
concluded and the contract was signed.
As set forth above, immediately following the execution of the renewal contract, the
Respondent informed Doland and Kastenhuber that they were no longer in the bargaining unit.
It is clear that the Respondent did not first secure the consent of the Union when it took such
action. It could not lawfully do so.
Once a specific job has been included within a bargaining unit, the employer cannot
remove it without the consent of the union or action by the Board. Hampton House, 317 NLRB
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1005, 1005 (1995). Where the same employees continue to perform the same work that they
had, an employer may not lawfully attempt to change the scope of the bargaining unit by taking
the position that these represented employees and their work were now outside the bargaining
unit. Bay Shipbuilding Corp., 263 NLRB 1133, 1140-1141 (1982), enfd. 721 F.2d 187 (7th Cir.
1983). An employer may not, under the guise of transferring unit work, alter the scope of the
bargaining unit. Facet Enterprises, Inc. v. NLRB, 907 F.2d 963, 975-976 (10th Cir. 1990);
Aggregate Industries, above, slip op. at 3.
Because the Employer took this action without the Union‘s consent, it violated Section
8(a)(5) and (1) of the Act. Aggregate Industries, above.
In Arizona Electric, 250 NLRB 1132 (1950), the employer withdrew recognition from the
union, during mid-term negotiations, for previously included unit employees on the ground that
they were statutory supervisors. The Board, in finding a violation, stated:
It is axiomatic that parties to a collective-bargaining relationship
cannot bargain meaningfully unless they know the scope of the
unit for which they are to bargain. Thus, it is well established that
the integrity of a bargaining unit cannot be unilaterally attacked,
and that once a unit is certified, it may be changed only by mutual
agreement of the parties or by Board action. 250 NLRB 1132,
1133.
Here, as in, Arizona Electric, “where a contract executed with full knowledge of the
nature of the present duties of the [disputed employees] is currently in force, to permit
Respondent to alter unilaterally the scope of the established bargaining unit would
unnecessarily encourage parties to productive and viable collective-bargaining relationships to
refuse to bargain over wages and other terms and conditions of employment of individuals who
were intended to benefit from these relationships.” 250 NLRB at 1133.
Later cases have affirmed this long-standing policy. In Dixie Electric Membership Corp.,
358 NLRB No. 120, slip op. at 3-4 (2012), affirmed in 361 NLRB No. 107, fn. 1 (2014), the
Board found that the employer violated the Act by modifying the unit’s scope by
eliminating certain positions from the unit without the union’s consent. The Board also found that
the employees, who were removed from the unit allegedly because they were supervisors,
continued to perform essentially the same work as they did prior to their removal. Here, as in
Dixie Electric, it is undisputed that the positions were covered by the expiring collective-
bargaining agreement. NLRB v. Quinn Restaurant Corp., 14 F.3d 811, 815 (1994); Wackenhut
Corp., 345 NLRB 850, 855 (2005); Mt. Sinai Hospital, 331 NLRB 895, 895 fn. 2. (2000).
As discussed above, the Respondent has not met its burden of proving that the
assignment editor and the chief videographer were statutory supervisors. As a result, the
Respondent cannot rely on their alleged supervisory status as a justification for its elimination of
the two disputed positions from the bargaining unit. Wackenhut, above, at 855.
The Respondent withdrew recognition from the Union as the representative of unit
positions assignment editor and chief videographer by unilaterally removing their positions from
the unit. There can be no doubt, as the complaint alleges, that such action was done without the
Union’s consent.
There was no agreement by the Union that those positions be removed from the unit. I
find, as testified by the Union’s witnesses, that there was no discussion during negotiations
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about the two men’s positions. I cannot credit Busch’s less than definitive testimony that the two
men were discussed. Even if there was discussion about supervisory responsibilities, there is no
credible evidence that the Union was on notice, or that it gave its consent to the removal of
Doland and Kastenhuber from the unit. Indeed, Busch testified that he spoke about supervisors
being excluded from the unit, but that “it had nothing to do with any specific person,” and that
the Employer decided to remove the two men from the unit “after the contract was ratified and
signed.”
I accordingly find and conclude, as alleged in the complaint, that the Respondent
violated Section 8(a)(5) and (1) of the Act by the removing the positions of assignment editor
and chief videographer from the bargaining unit without first obtaining the Union’s consent to
such actions.
The Respondent’s argument that the Union consented by participating in negotiations
and signing the contract will be addressed, below.
B. The Unilateral Transfer of Unit Work Outside the Unit
I also find, as alleged in the complaint, that the Respondent unilaterally removed the
bargaining unit work of the assignment editor and chief videographer from the unit. The
Respondent did so with respect to such mandatory subjects of bargaining, without prior notice to
the Union and without affording the Union an opportunity to bargain with it regarding such
conduct.
After the contract was signed, Doland and Kastenhuber were informed that they were
supervisors and were removed from the bargaining unit. It is undisputed that they continued to
perform their duties, under the same working conditions, as they had before they were removed
from the unit.
The Board in Hampton House, 317 NLRB 1005, 1005 (1995) stated:
When an employer promotes an employee to a supervisory
position and the new supervisor continues to perform former
bargaining unit work, however, the work is removed from the
bargaining unit. That is a change in the bargaining unit’s terms
and conditions of employment, giving rise to the employer’s
bargaining obligation under Section 8(d) of the Act. In those
circumstances, the employer must bargain with the union in good
faith and may unilaterally change the bargaining unit’s work only
after a lawful impasse.
No notice was given to the Union that the removal of Doland and Kastenhuber’s work
from the unit was being contemplated or considered by the Respondent. Rather, their
elimination from the unit was presented as a fait accompli, following the execution of the new
contract, which, the Respondent believed would automatically operate to accomplish its goal of
removing their work from the unit. Wire Products Mfg Corp., 328 NLRB 855, 857 (1999).
I accordingly find and conclude, as alleged in the complaint, that by unilaterally removing
the bargaining unit work of the assignment editor and chief videographer form the bargaining
unit, the Respondent violated Section 8(a)(5) and (1) of the Act .
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C. The Respondent’s Defenses
1. Midterm Modification of a Permissive Subject of Bargaining
The Respondent argues that it was permitted to unilaterally change a permissive non-
mandatory subject of bargaining, citing Allied Chemical & Alkali Workers v. Pittsburgh Plate
Glass Co., 404 U.S. 157 (1971) and Star Tribune, 295 NLRB 543 (1989). In Pittsburgh Plate
Glass, the Supreme Court held that a unilateral modification of a contract term is “a prohibited
unfair labor practice only when it changes a term that is a mandatory rather than a permissive
subject of bargaining.” 404 U.S. at 185.
In both cases, the employers modified or implemented a contract term. In Pittsburgh
Plate Glass, it changed retirees’ benefits. In Star Tribune, it sought to implement a drug and
alcohol program. Accordingly, the Respondent’s reliance on those cases is misplaced.
It is not alleged that the Respondent modified a contract term. This is not a case
involving a mid-term modification of a contract. The Respondent did not change a “contract
term.” It changed the scope of the bargaining unit. The “legal principles applicable to a change-
of-unit-scope allegation differ from those applicable to a midterm contract modification.” Walt
Disney World Co., 359 NLRB No. 73, slip op. at 4 (2013).
Here, the Respondent did not modify the recognition clause. That clause remained the
same from the time it was proposed by the Employer in February, 2013 until it was included in
the executed contract one year later. The clause remained intact and unchanged. It was not
modified at all during that time, nor after the contract was executed.
Rather, the scope of the unit contained in the contract was altered by the Respondent
when it unilaterally removed the two positions from that unit. The clause itself was not modified.
Here, the elimination from the unit of the positions of assignment editor and chief
videographer were clearly an alteration of the scope of the unit. Those two positions were
included in the bargaining unit which was recognized by the Employer. The prior contract which
was the subject of renewal bargaining was applied to those two positions. Accordingly, the
Respondent’s elimination of the two positions from the bargaining unit was a change in the
scope of the unit. The Respondent’s argument that the two men occupying those positions were
statutory supervisors is unavailing since, as I have found above, it has not been proven that
they were statutory supervisors.
By eliminating the two disputed positions from the unit the Respondent did not modify a
term of the contract. It changed the scope of the bargaining unit. I accordingly reject the
Respondent’s argument that it lawfully, unilaterally changed a term of the contract.
2. The Alleged Supervisory Positions
The Respondent argues that it was permitted to alter the unit’s scope because the
disputed positions were supervisory. I have found, above, that the positions of assignment
editor and chief videographer are not statutory supervisory positions. Even assuming, arguendo,
that the two positions are supervisory, the Board has held that “where parties to a collective-
bargaining agreement have voluntarily agreed to include supervisors in a bargaining unit, it will
order the application of the terms of the collective-bargaining agreement to such supervisors.”
Dixie Electric Membership Corp., above, slip op. at 3; Arizona Electric, above, at 1133.
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Indeed, here the parties applied the terms of the expired collective-bargaining
agreement to alleged supervisors Doland and Kastenhuber.
3. Waiver
The Respondent argues that it lawfully applied and implemented the terms of the new
contract to Doland and Kastenhuber, and that the Union had an ample opportunity to submit
proposals and counter proposals to the unit proposed by the Employer.
The Respondent also asserts that the Union waived its right to contest the removal of
the two disputed positions from the unit because it participated in lengthy contract negotiations,
it was given all the draft proposals leading up to the new agreement, and it signed the contract.
In this regard, the Employer argues that the changes it made in the scope of the unit
were not unilateral. Rather, they were bilateral because the Union agreed to them by agreeing
to the new “recognition” article in the contract.
It is true that the parties engaged in prolonged negotiations. Discussions began in
February, 2013 and the contract was executed one year later, in March, 2014. In the interval,
they met once per month for seven months. However, it is not the length of the negotiations
which is the key. Rather, the question is whether the parties discussed the matter at issue, and
whether the Union was on notice of the Respondent’s proposed changes.
As noted above, Employer official Busch did not testify that there was a specific
discussion during negotiations in which he identified Doland and Kastenhuber as being
supervisors who therefore must be excluded from the unit. The most that could be said was that
he mentioned that “Doland, who was at the table as a supervisor, has responsibilities and
oversight that included training and evaluations…. We talked about others that could be
supervisors… I specifically talked about John at that table.” His testimony that Doland “nodded”
when he characterized him as a supervisor could only be interpreted as an imprecise
description of Doland’s motion of his head which could have multiple meanings, and certainly
not as Doland’s affirmation that he was a statutory supervisor with all its ramifications.
Although Busch testified that he spoke about Kastenhuber during bargaining, he gave
contradictory testimony by stating that Kastenhuber was not referred to during bargaining.
Rather, he stated that his name came up in a private conversation with Iddings.
In contrast, Union bargainers credibly testified that during the negotiations there was no
mention of the removal of the two men from the unit. Union agent Hartnett further credibly stated
that it was not the parties’ intent to do so.
Hartnett conceded that the Union was given the Respondent’s proposals which changed
the scope of the unit, and which included only certain job titles and eliminated the list of
excluded job titles and “supervisors or managers.” Nevertheless, Hartnett did not believe that
those changes would result in the loss of the positions held by Doland and Kastenhuber
because those job titles were always included in the bargaining unit, and they were not
supervisory. Rather, according to Hartnett, the only person discussed as someone who should
be excluded from the unit was Chorney.
I find that it would have been “unlikely that the Union intended to relinquish the right to
bargain about what traditionally had been a bargaining unit position … with virtually no
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discussion of the issue….” Land O’Lakes, 299 NLRB 982, 982, fn. 2 (1990).
This finding is supported by the Union’s actions when, immediately after being informed
by the two men that they had been removed from the unit, Union agent Hartnett told Iddings that
he was “shocked,” and “adamantly” protested that “this was not what was collectively
bargained” and that he would pursue his legal remedies. He immediately filed a charge. Land
O’Lakes, above, at 982, fn. 2.
In addition, the Respondent could not have believed that the Union would consent to the
removal from the unit of the positions occupied by Doland and Kastenhuber. Doland was at the
bargaining table and took part in all the negotiations. If he was a supervisor he would not have
been present as a member of the Union’s bargaining team.
It is true that the Union did not request bargaining over this issue. It did discuss the
removal of Chorney from the unit as a confidential employee and it agreed to such change.
However, the Union did not request bargaining as to the removal of the two disputed positions
because, as testified by Hartnett, there was no discussion of the subject. The Respondent
presented the Union with a fait accompli. It was not presented with any notice, much less timely
and meaningful notice under circumstances which at least afforded a reasonable opportunity for
counter arguments or proposals. Dixie Electric, above, slip op. at 4.
There was no evidence that the issue of the removal of the two positions had been
mentioned at all during contract negotiations, much less “fully discussed and consciously
explored.” Provena St. Joseph Medical Center, 350 NLRB 808, 810 (2007). The Union was
therefore relieved of its obligation to request bargaining as to the removal of the two positions. If
any request to bargain was necessary, the Union did so in Hartnett’s protest to Iddings and by
its filing of the instant charge. Solutia, Inc., 357 NLRB No. 15, slip op. at 7 (2011), enfd. 699
F.3d 50 (1st Cir. 2012). A waiver of the right to bargain must be clear and unmistakable.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 709 (1983).
The Respondent also asserted the defenses that (a) the complaint is barred by Section
10(b) of the Act and (b) the remedy sought is not authorized by the Act as it would force it to
agree to and implement a term in a collective-bargaining agreement that it did not agree to.
As to the Section 10(b) argument, the charge was filed on April 1, shortly after the
contract’s execution and after the Union was told that Doland and Kastenhuber were being
removed from the unit as supervisors. Thus, the Union filed the charge immediately after such
notice was given to it of this change. It cannot be argued that they had such notice prior to that
time. Accordingly, the charge was filed within six months of the unlawful action taken by the
Respondent.
I also reject the Respondent’s argument that this decision would unlawfully force the
Respondent to agree to and implement a term in the contract that it did not agree to. Here, the
Respondent always treated the positions of assignment editor and chief videographer as being
part of the recognized collective-bargaining unit. This decision does not require the Respondent
to do anything more than to honor its agreement to continue to recognize those job positions.
Conclusions of Law
1. Nexstar Broadcasting Group, Inc., d/b/a WETM-TV, is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
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2. International Alliance of Theatrical Stage Employees and Moving Picture Technicians,
Artists and Allied Crafts of the United States, its Territories, and Canada, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondent constitute a unit appropriate for the
purposes of collective-bargaining within the meaning of Section 9(b) of the Act:
All regular full and part-time employees of the Station engaged in
television broadcasting and web streaming at its television station
WETM in Elmira, N.Y. and said station’s facilities, including only
master control operators, videographers, creative services
producer/directors, anchors, reporters, newscast directors,
production assistants and not any supervisor or managerial roles.
4. By unilaterally removing the positions of assignment editor and chief videographer
from the collective-bargaining unit set forth above, the Respondent has altered the scope of the
unit without the Union’s consent, and has violated Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
5. By unilaterally removing the bargaining unit work of the assignment editor and chief
videographer without prior notice to the Union and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct, the Respondent violated Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
6. The positions of assignment editor and chief videographer are not statutory
supervisory positions within the meaning of Section 2(11) of the Act.
7. The unfair labor practices of the Respondent, found above, affect commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
In order to restore the status quo ante, the Respondent shall be required to rescind its
March 26, 2014 removal of the unit positions of assignment editor and chief videographer and
its consequent removal of the bargaining unit work of those two positions outside the bargaining
unit. The Respondent shall also be ordered to reinstate John Doland and George Kastenhuber
to the bargaining unit.
The Respondent shall also be required to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the employees occupying the positions of
assignment editor and chief videographer, and, upon request, bargain with the Union regarding
those employees’ wages, hours, and other terms and conditions of employment.
The Respondent shall also be required to apply the terms of the collective-bargaining
agreement, effective February 26, 2014 through February 25, 2017, between the Union and the
Respondent, to employees occupying the positions of assignment editor and chief
videographer. However, nothing herein shall be construed to authorize or require the withdrawal
or elimination of any wage increase or other improved benefits or terms or conditions of
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employment, which may have been afforded to the assignment editor and chief videographer
employees, as compared to the wages, benefits, and terms or conditions of employment of
bargaining unit employees.
Although the record does not establish that John Doland or George Kastenhuber
suffered any economic loss as a consequence of the Respondent's actions, it nevertheless shall
be ordered to make them whole, if it can be shown that they have suffered any loss of earnings
and other benefits as a result of the discrimination against them. If backpay is warranted, it shall
be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010), denied on other
grounds sub. nom. Jackson Hospital Corp. v NLRB, 647 F.3d 1137 (D.C. Cir. 2011). In accord
with Tortillas Dan Chavas, 361 NLRB No.10 (2014), my recommended Order also requires the
Respondent to (1) submit the appropriate documentation to the Social Security Administration
so that when backpay is paid to Doland and Kastenhuber, it will be allocated to the appropriate
calendar quarters, and/or (2) reimburse them for any additional Federal and State income taxes
they may be assessed as a consequence of receiving a lump-sum backpay award covering
more than 1 calendar year.
There was testimony that, following the removal of Doland and Kastenhuber from the
bargaining unit, the Respondent ceased making contributions to their pensions. Accordingly, the
Respondent shall be required to remit all contributions it would have made on the employees’
behalf to employee retirement, 401(k), and/or health care funds absent its unlawful unilateral
changes, including any additional amounts due the funds in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 6 (1979). In addition, the Respondent shall reimburse the
employees for any expenses they may have incurred as a result of its failure to make such
benefit fund contributions, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
with interest as prescribed in New Horizons for the Retarded, above.
The Respondent shall also be required to reimburse the Union for any dues that it would
have deducted from Doland and Kastenhuber and remitted to the Union under the collective-
bargaining agreement absent its unlawful unilateral changes. Such sums shall likewise be
calculated in the manner set forth in Ogle Protection Service, above, with interest as prescribed
in New Horizons for the Retarded, above.
In accordance with the Board's decision in J. Piccini Flooring, 356 NLRB No. 9, slip op.
at 5-6 (2010), I shall recommend that the Respondent be required to distribute the attached
notice to members and employees electronically, if it is customary for the Respondent to
communicate with employees and members in that manner. Also in accordance with that
decision, the question as to whether a particular type of electronic notice is appropriate should
be resolved at the compliance stage. J. Piccini Flooring, above, slip op. at 3. See Teamsters
Local 25, 358 NLRB No. 15 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended6

6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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ORDER
The Respondent, Nexstar Broadcasting Group, Inc. d/b/a WETM-TV, Elmira, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally removing the positions of assignment editor and chief videographer from
the following collective-bargaining unit:
All regular full and part-time employees of the Station engaged in
television broadcasting and web streaming at its television station
WETM in Elmira, N.Y. and said station’s facilities, including only
master control operators, videographers, creative services
producer/directors, anchors, reporters, newscast directors,
production assistants and not any supervisor or managerial roles.
(b) Unilaterally removing the bargaining unit work of the assignment editor and chief
videographer without prior notice to the Union and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct.
(c) In any like or related manner interfering with, restraining, 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) Rescind its March 26, 2014 removal of the unit positions of assignment editor and
chief videographer and its consequent removal of the bargaining unit work of those two
positions outside the collective-bargaining unit.
(b) Reinstate John Doland and George Kastenhuber to the bargaining unit represented
by the Union.
(c) Recognize and bargain with the Union as the exclusive collective-bargaining
representative of the employees occupying the positions of assignment editor and chief
videographer, and, upon request, bargain with the Union regarding those employees’ wages,
hours, and other terms and conditions of employment.
(d) Apply the terms of the collective-bargaining agreement, effective February 26, 2014
through February 25, 2017, between the Union and the Respondent, to employees occupying
the assignment editor and chief videographer positions. However, nothing herein shall be
construed to authorize or require the withdrawal or elimination of any wage increase or other
improved benefits and terms or conditions of employment, which may have been afforded the
assignment editor and chief videographer, as compared to the wages, benefits, and terms or
conditions of employment of bargaining unit employees.
(e) Make John Doland and George Kastenhuber whole for any loss of earnings and
other benefits suffered as a result of the discrimination against them, in the manner set forth in
the Remedy section of the decision.
(f) Remit all contributions it would have made on the employees’ behalf to employee
retirement, 401(k), and/or health care funds absent its unlawful unilateral changes, and
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reimburse John Doland and George Kastenhuber for any expenses they may have incurred as
a result of its failure to make such benefit fund contributions, in the manner set forth in the
Remedy section, above.
(g) Reimburse International Alliance of Theatrical Stage Employees and Moving Picture
Technicians, Artist and Allied Crafts of the United States, its Territories, and Canada, AFL-CIO,
for any dues that it would have deducted from Doland and Kastenhuber and remitted to the
Union under the collective-bargaining agreement absent its unlawful unilateral changes, as set
forth in the Remedy section, above.
(h) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
(i) Within 14 days after service by the Region, post at its facility in Elmira, New York,
copies of the attached notice marked “Appendix.”7 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 Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate 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
March 26, 2014.
(j) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C. January 15, 2015
____________________
Steven Davis
Administrative Law Judge

7 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.”
JD(NY)–03–15
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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT unilaterally remove the positions of assignment editor and chief
videographer from the following collective-bargaining unit:
All regular full and part-time employees of the Station engaged in
television broadcasting and web streaming at its television station
WETM in Elmira, N.Y. and said station’s facilities, including only
master control operators, videographers, creative services
producer/directors, anchors, reporters, newscast directors,
production assistants and not any supervisor or managerial roles.
WE WILL NOT unilaterally remove the bargaining unit work of the assignment editor and
chief videographer without prior notice to International Alliance of Theatrical State Employees
and Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and
Canada, AFL-CI0, and without affording the Union an opportunity to bargain with the
Respondent with respect to this conduct.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL rescind our March 26, 2014 removal of the unit positions of assignment editor
and chief videographer and our removal of the bargaining unit work of those two positions
outside the unit.
WE WILL reinstate John Doland and George Kastenhuber to the bargaining unit
represented by the Union.
WE WILL recognize and bargain with the Union as the exclusive collective-bargaining
representative of the employees occupying the positions of assignment editor and chief
videographer, and, upon request, bargain with the Union regarding those employees’ wages,
hours, and other terms and conditions of employment.
JD(NY)–03–15
WE WILL apply the terms of the collective-bargaining agreement, effective February 26,
2014 through February 25, 2017, between the Union and the Respondent, to employees
occupying the assignment editor and chief videographer positions. However, nothing herein
shall be construed to authorize or require the withdrawal or elimination of any wage increase or
other improved benefits or terms or conditions of employment, which may have been afforded
the assignment editor and chief videographer, as compared to the wages, benefits, and terms or
conditions of employment of bargaining unit employees.
WE WILL make John Doland and George Kastenhuber whole for any loss of earnings
and other benefits suffered as a result of the discrimination against them.
WE WILL remit all contributions we would have made on the employees’ behalf to
employee retirement, 401(k), and/or health care funds absent our unlawful unilateral changes,
and reimburse John Doland and George Kastenhuber for any expenses they may have incurred
as a result of our failure to make such benefit fund contributions.
WE WILL reimburse International Alliance of Theatrical Stage Employees and Moving
Picture Technicians, Artist and Allied Crafts of the United States, its Territories, and Canada,
AFL-CIO for any dues that it would have deducted from John Doland and George Kastenhuber
and remitted to the Union under the collective-bargaining agreement absent our unlawful
unilateral changes.
NEXSTAR BROADCASTING GROUP, INC. d/b/a
WETM-TV
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
130 S. Elmwood Avenue
Suite 630
Buffalo, New York 14202
Hours: 8:30 a.m. to 5 p.m.
716-551-4931.
JD(NY)–03–15
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-125618 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 716-551-4946.