National Labor Relations Board v. Nexstar Broadcasting Group, Inc.
687 F. App'x 15
| 2d Cir. | 2017Background
- Nexstar Broadcasting Group and a union had a collective-bargaining relationship covering certain newsroom employees under a 2010 agreement; two employees (Doland and Kastenhuber) were in the bargaining unit under that contract.
- About a week after the 2010 agreement, Nexstar unilaterally removed Doland and Kastenhuber from the bargaining unit without union consent.
- The parties’ 2013 contract included a revised recognition clause excluding "supervisors," but there was no mid-contract bilateral change that would justify removal during the 2010–2013 contract term.
- The NLRB concluded Nexstar’s unilateral removal violated Sections 8(a)(5) and 8(a)(1) of the NLRA, found Doland and Kastenhuber were not statutory supervisors, and ordered reinstatement plus make-whole relief and reimbursement of union dues lost while the employees were excluded.
- Nexstar petitioned the Second Circuit to set aside enforcement, arguing (1) the removals were permissible (or at most contractual breaches), (2) the two employees were supervisors, and (3) the dues reimbursement is barred by 29 U.S.C. § 186(c).
- The Second Circuit granted the NLRB’s petition for enforcement, finding the Board’s factual findings supported by substantial evidence and its legal conclusions within reason.
Issues
| Issue | Petitioner (NLRB) / Board Position | Respondent (Nexstar) Position | Held |
|---|---|---|---|
| Did unilateral removal of employees from an established bargaining unit during a contract violate the NLRA? | Unilateral removal is an unfair labor practice once bargaining unit is fixed. | Employer argued it could remove employees or treat the matter as a contract issue. | Court: Unilateral removal violates §§ 8(a)(5) and 8(a)(1); employer may not erode unit mid-contract. |
| Were Doland and Kastenhuber statutory "supervisors" under 29 U.S.C. § 152(11)? | Board: No—duties were advisory, collaborative, or rote reassignments lacking independent judgment. | Nexstar: Their duties (advice, evaluations, reassignments) indicate supervisory authority. | Court: Substantial evidence supports Board’s finding they were not supervisors. |
| Is the Board’s remedy (reinstatement and make-whole relief) lawful? | Remedy restores status quo ante and effects NLRA purposes. | Nexstar: Remedy constitutes "forced bargaining" and oversteps authority. | Court: Remedy is lawful, non-coercive, and within Board’s broad remedial discretion. |
| Is reimbursement of union dues barred by 29 U.S.C. § 186(c)? | Board: Reimbursement is permitted—falls within the statutory exception for payments in satisfaction of a judgment. | Nexstar: Such payments are prohibited by § 186(c). | Court: Payment is allowed under the exception for satisfaction of a judgment; make-whole contingent on demonstrated loss. |
Key Cases Cited
- NLRB v. Caval Tool Div., 262 F.3d 184 (2d Cir. 2001) (standard for reviewing Board legal determinations)
- Cibao Meat Prods., Inc. v. NLRB, 547 F.3d 336 (2d Cir. 2008) (deference to Board; reversal only if arbitrary and capricious)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial-evidence standard for agency factfinding)
- NLRB v. Katz, 369 U.S. 736 (1962) (prohibition on unilateral changes to bargaining conditions)
- NLRB v. United Techs. Corp., 884 F.2d 1569 (2d Cir. 1989) (employer may not remove jobs within unit without Board approval or union consent)
- Allied Chemical & Alkali Workers Local 1 v. Pittsburgh Plate-Glass Co., 404 U.S. 157 (1971) (distinguishing contract breaches from unfair labor practices)
- New York Univ. Med. Ctr. v. NLRB, 156 F.3d 403 (2d Cir. 1998) (evaluations that do not affect job status insufficient to establish supervisory status)
- Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 206 (1964) (scope of Board’s remedial discretion)