Fox Television Stations, LLC

National Labor Relations Board - Administrative Judge Opinions

Aug 20, 2020

02-CA-246371 (N.L.R.B. Aug. 20, 2020)

JD(NY)-08-20
NEW YORK, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FOX TELEVISION STATIONS, LLC,
and Case No. 02-CA-246371
TELEVISION BROADCASTING STUDIO
EMPLOYEES UNION, LOCAL 794, I.A.T.S.E.
Jacob Frisch, Esq., for the General Counsel
Kevin Casey, Esq. and Thomas E. Casey, Esq.,
of New York, New York, for the Respondent
Hope A. Pordy, Esq. (Spivak Lipton, LLP),
of New York, New York, for the Charging Party
DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. This case was tried before
me in New York, New York, on March 9 and 10, 2020. On August 9, 2019, Television
Broadcasting Studio Employees Union, Local 794, I.A.T.S.E (Local 794 or the Union),
filed the instant charge against Fox Television Stations, LLC (Fox or Respondent). On
November 22, 2019, the Regional Director, Region 2, issued a Complaint and Notice of
Hearing. As amended on the record during the hearing, the Complaint alleges that on
or about February 21, 2019, Fox violated Section 8(a)(1) and (5) of the Act by assigning
its Public Affairs Manager to perform nonlinear editing work covered by its collective
bargaining agreement with Local 794, without notifying or providing the Union with an
opportunity to bargain, and without negotiating with the Union to an overall impasse
regarding a successor agreement. Tr. 326-328; G.C. Ex. 25. Fox filed an Answer on
December 5, 2019 denying the Complaint’s material allegations.
On the entire record, including my observation of the demeanor of the witnesses,
and after considering the briefs filed by Counsel for the General Counsel (General
Counsel) and Fox, I make the following
JD(NY)-08-20
2
Findings of Fact
I. Jurisdiction
5
Fox admits in its Answer to the Complaint and I find that it operates television station
WNYW/WWOR-TV in New York. Fox further admits and I find that during the last 12
months its business operations resulted in gross revenues in excess of $100,000, and
that it received, shipped, sold and/or purchased goods at its facilities in the State of New
York valued in excess of $5,000 directly from points outside of the State of New York. 10
The parties have stipulated and I therefore find that at all material times Fox has been
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Jt. Ex. 1, ¶ 2.
The parties have further stipulated and I find that Local 794 is a labor 15
organization within the meaning of Section 2(5) of the Act. Jt. Ex. 1, ¶ 3.
II. Alleged Unfair Labor Practices
A. The Parties20
Fox operates two local broadcast television stations in the New York City market,
WNYW-TV (Channel 5) and WWOR-TV (Channel 9) (collectively referred to as the
Stations), which broadcast news, syndicated, and public affairs programming. Tr. 31,
76, 79. The parties have stipulated and I find that Eric “Rick” Wheeler, the Stations’25
Regional Vice President of Engineering, and Roselyn Barranda, the Stations’ Human
Resources Director, are agents of the Stations within the meaning of Section 2(13) of
the Act. Lew Leone is the Stations’ general manager. Tr. 140.
For the past 75 years, Local 794 has represented a bargaining unit consisting of 30
technical staff at the Stations, including camera persons, technical directors, floor
managers, technical operations technicians, editors, audio operators, graphic artists,
and maintenance personnel. Tr. 35; Jt. Ex. 2, p. 1, 10, 12-13. At present there are
approximately 115 bargaining unit employees at WNYW/WWOR. Tr. 34-35. The
Union’s Executive Board consists of bargaining unit employees. Nick Kroudis, a 35
Technical Operations Technician, has been the President of Local 794 since 2006. Tr.
31-32. Donna Biglin, a Post-Production Editor, is the Union’s Treasurer. Tr. 121-122.
Dennis Beattie is the Union’s Business Agent, Ryan Priest is its Secretary, and there
are three additional Executive Board members. Tr. 135-136.
40
Nick Kroudis and Donna Biglin testified on behalf of General Counsel at the
hearing. Human Resources Director Roselyn Barranda and Joseph Silvestri, who held
the title of Public Affairs or Community Affairs1 Manager at the time of the hearing,
testified on behalf of Respondent.
1 The parties stipulated that “Public Affairs” and “Community Affairs” are synonymous within the Stations’
organization. Jt. Ex. 1, ¶ 9.
JD(NY)-08-20
3
B. The Collective Bargaining Relationship and Nonlinear Editing
As discussed above, for a number of years Local 794 has represented a
bargaining unit of technical staff at WNYW/WWOR. Fox’s recognition of Local 794 and 5
its sister local, Television Broadcasting Studio Employees Union Local 819, I.A.T.S.E.,
as the exclusive collective bargaining representative of these employees has been
embodied in a series of collective bargaining agreements, the most recent of which was
effective by its terms from October 16, 2008 through October 15, 2011 and was
subsequently extended through May 11, 2012.2 Jt. Ex. 1, ¶¶ 5-7; Jt. Ex. 2. Article 1, 10
Section 1.01 of the collective bargaining agreement describes the bargaining unit in
relevant part as “employees in the classifications hereinafter designated who are
engaged to operate, maintain, repair, modify and re-install equipment covered hereby
used by or at the television broadcasting stations.” Jt. Ex. 2, p. 1. The contract in
subsequent provisions describes the covered job classifications and work in additional15
detail. See Jt. Ex. 1, p. 10, 12-13.
The dispute in this case involves the impact of technological changes in video
and audio editing on the parties’ collective bargaining relationship. In the 1990’s,
magnetic tape was used to record video or audio material, and tape containing images20
and/or sounds was physically edited on two large beta tape decks, which required a
specially trained technician. Tr. 66-67, 227-231, 234; R.S. Ex. 13. However, during the
past 20 years software has been developed that allows material to be recorded as data
on memory or “P2” cards, and then stored and edited via a software program. Tr. 66,
235. Images and sounds are now introduced as data into a database and edited in a25
software program on a personal computer system with external devices (in this case an
AVID system). Tr. 66-67, 235-237; R.S. Ex. 16. Editing can even take place on a
laptop computer. Tr. 68, 237. As a result of these technological changes, writers,
reporters and producers are able to perform editing themselves without the assistance
of a technician. Tr. 68.30
As this new technology developed, the parties sought to address its
ramifications for the work of unit employees through their collective bargaining
relationship. Specifically, the parties agreed to a Sideletter to their collective bargaining
agreement effective October 16, 2005 through October 15, 2008, which stated as 35
follows:
Sideletter #8
Non-Linear Editing:40
The Company recognizes that editing is under the jurisdiction of the
bargaining unit and that non-bargaining unit personnel will supplement
2 The bargaining unit includes the technical staff at two television stations in the Washington, DC area,
WTTG and WDCA, which are not involved in the instant case. See, e.g., Jt. Ex. 2, p. 1.
JD(NY)-08-20
4
bargaining unit editors only as set forth in this Sideletter. Bargaining unit
editors will continue to edit promos and news pieces.
The Union agrees that the number restrictions will be lifted for the life of
this agreement, and will be revisited to see whether its concerns are being 5
met.
Only the following job categories of employees may perform non-linear
editing functions, on non-engineering equipment:
10
(i) Writers
(ii) Producers
(iii) Reporters
(iv) Promotion Producers
(v) Sales department employees, but not for air.15
Under no circumstances will anyone be reclassified to circumvent this
Sideletter. These individuals must have a direct editorial connection to the
non-linear editing assignment and the piece must be one to which they
were assigned. The individual's job, not editing, continues to be the 20
primary job function of these individuals.
In all other circumstances, operation of non-linear editing will be
performed by Technicians. It is not the intent of the Employer to exclude
Employees from editing news features. Nothing herein shall prohibit an 25
Employee from editing in Engineering and non-Engineering areas. The
edit rooms will be updated as needed to expand the creative and the
technical capabilities of these positions. Installation and maintenance of
non-linear equipment in Engineering areas and in non-Engineering areas
shall be performed by Technicians, subject to the provisions of the 30
Agreement.
Editors and ENG/Editors will be trained on non-linear editing equipment
first, and separate from, non-bargaining unit personnel as set forth herein.
Editors and ENG/Editors may be given the opportunity to write and/or 35
produce news material, provided the performance of such function(s)by
Employees is permitted by any applicable collective bargaining
agreements.
Tr. 37-38; G.C. Ex. 20, p. 72-73. None of the job titles listed in Sideletter 8 were 40
managerial. Tr. 37-38.
The parties revisited this issue during negotiations for the collective bargaining
agreement effective by its terms from October 16, 2008 through October 15, 2011.
Kroudis, who was part of the Union’s bargaining committee and attended every45
negotiating session, was the only witness who testified regarding the negotiations. Tr.
JD(NY)-08-20
5
68-69. During these negotiations, the Stations sought to expand the group of non-
bargaining unit employees who were contractually permitted to perform nonlinear
editing, so long as these individuals had an editorial connection to the material being
produced or developed for a particular program. Tr. 71. Ultimately the Union agreed to
expand the group of non-bargaining unit employees allowed to perform editing to 5
include certain managers, as set forth in Section 1.09(b) of the October 16, 2008
through October 15, 2011 contract:
(b) Non-Linear Editing Work Assignments
10
The Company recognizes that editing is under the jurisdiction of the
bargaining unit and that non-bargaining unit personnel will supplement
bargaining unit editors only as set forth in this Section. Bargaining unit
editors will continue to edit promos3 and news pieces.
15
Only the following job categories of employees may perform non-linear
editing functions:
1. News Department Executive Producers, Senior Producers,
Producers, Segment Producers, Writers and Reporters.20
2. Creative Services Managers, Promotion Producers, and
Marketing Producers.
3. Sales Department employees, but not for air.
4. Public Affairs Producers.
25
The above four listed job categories include individuals who are
"upgraded" into such positions as allowed under an applicable collective
bargaining agreement. Under no circumstances will anyone be reclassified
to circumvent the express language contained in this Section 1.09.
30
Any employee, including but not limited to non-represented (Station)
employees, per diem or daily employees and/or temporary employee(s)
assigned to fill in a staffing vacancy in any of the categories (1) through (4)
above may also perform non-linear editing functions under full effect of
this Section 1.09.35
Any individuals described herein must have a direct editorial connection to
the non-linear editing assignment and the piece must be one to which they
are assigned. The individual's job, not editing, continues to be the primary
job function of these individuals.40
Any employee listed in categories (1) through (4) above may edit and then
push to the playback server device. In all other circumstances, operation
3 Kroudis testified without contradiction that a “promo” is a short video element created to promote an
upcoming program, including a news broadcast, a special, or an episode of an ongoing series. Tr. 78-79.
Promos are created by the department responsible for the program being advertised. Tr. 79.
JD(NY)-08-20
6
of non-linear editing will be performed by Technicians. It is not the intent of
the Employer to exclude Employees from editing news material. Nothing
herein shall prohibit an Employee from editing in Engineering and non-
Engineering areas. The edit rooms will be updated as needed to expand
the creative and the technical capabilities of these positions. Installation 5
and maintenance of non-linear equipment in Engineering areas and in
non-Engineering areas shall be performed by Technicians, subject to the
provisions of the Agreement.
Editors and ENG/Editors will be trained on non-linear editing equipment 10
first and separate from, non-bargaining unit personnel as set forth herein.
Editors and ENG/Editors may be given the opportunity to write and/or
produce news material, provided the performance of such function(s)by
Employees is permitted by any applicable collective bargaining
agreements.15
Tr. 101-102; Jt. Ex. 2, p. 9
Kroudis testified that permitting managers to perform nonlinear editing work was
extremely significant for the Union, in that it was opening its jurisdiction to managerial 20
employees for the first time. Tr. 108-109. As a result, Kroudis testified that the Union
gave particular attention to the language of the provision, including which managerial
job titles and functions (News Department Executive Producers and Creative Services
Managers) would be included. Tr. 35-36, 109-110. Kroudis also testified without
contradiction that the requirement of a “direct editorial connection” between the non-25
bargaining unit employee, the non-linear editing assignment and the piece itself was an
important aspect of this provision, in order to protect the job function of editor for the
bargaining unit employees. Tr. 88-89.
At the time of the hearing in this case the parties were bargaining for a successor 30
agreement to the contract effective by its terms from October 16, 2008 through October
15, 2011, which was extended through May 11, 2012. According to Kroudis’
uncontradicted testimony, the parties had last met for negotiations in early February
2020, and were scheduled to meet again. Tr. 33. No overall agreement for a successor
collective bargaining agreement had been reached, and neither party had declared 35
impasse. Tr. 34.
C. The Stations’ Public Affairs Department and the Work of Joseph Silvestri
WNYW and WWOR broadcast programming 24 hours a day, 7 days a week. 40
Respondent’s News Department produces between 40 and 50 hours of news
programming each week. Tr. 76, 214. The Creative Services Department deals with
syndicated programming broadcast by the Stations. Tr. 79-80. Bargaining unit
technicians work in both of these departments, as do non-bargaining unit personnel
such as producers, production assistants, and managers. Tr. 79-83. 45
JD(NY)-08-20
7
As part of their licenses from the Federal Communications Commission, WNYW
and WWOR are required to produce and air programming pertinent to the community in
their market areas. Tr. 286-288. In order to satisfy this obligation, the Stations produce
and broadcast public affairs programming consisting of two weekly half-hour shows –
Good Day Street Talk, which airs on WNYW, and New Jersey Now, which airs on 5
WWOR. Tr. 214-215; R.S. Exs. 19, 20, 36. These programs cover topics affecting the
local community, including the performing arts, health, and community events. See
R.S. Exs. 19, 20, 27, 28, 29, 30, 31, 36. The Stations also produce half-hour public
affairs specials regarding events or topics of interest to the New York City area
population. 10
WNYW and WWOR operate out of two buildings on East 67th Street in
Manhattan. Tr. 41. 205 East 67th Street is the primary building containing the majority
of the Stations’ employees, including its Master Control area, Creative Services, News
and Public Affairs Departments, engineering, graphics, maintenance, and some editing 15
rooms. Tr. 41. 215 East 67th Street, which is connected by a stairwell, also has areas
for technical work, in addition to sales and offices. Tr. 41. The Public Affairs
Department was on the First Floor of 205 East 67th Street until early 2019, when it was
moved to the 4th Floor of the building. Tr. 45, 124.
20
The instant case involves the work of Joseph Silvestri, who at the time of the
hearing held the title of Public of Community Affairs Manager. Silvestri began working
at the Stations in 2005 as a public affairs coordinator. Tr. 142-143, 212-213; R.S. Ex. 1.
In 2007, Silvestri became a public affairs producer. Tr. 144, 213. At that time, there
were two other employees producing public affairs programming – Isaura Nunez and 25
Ronica Harris – both of whom were laid off in 2009. Tr. 166-169, 171, 214; R.S. Exs. 6,
7. Audrey Pass was the Senior Director of Community Affairs and Public Relations from
2007 through April 2015, and was Silvestri’s supervisor in that position. Tr. 43-44, 191-
192, 295.
30
Silvestri had significant experience as a producer prior to his employment with
the Stations, and immediately began producing public affairs programming when he
was hired as public affairs coordinator in 2005. Tr. 212-213; R.S. Ex. 2. Silvestri
testified that when producing programming he selects and researches topics to be
addressed on a show, identifying guests who would be appropriate to discuss the35
issues during the program. Tr. 219-220. He then contacts and books the guests. Tr.
220. He also writes the speaking parts for the talent who will host the show, and
obtains a date for taping, securing the necessary studio and crew time. Tr. 220. On the
day of the taping, he pre-interviews guests to ensure the accuracy of information, and
provides any necessary additions or changes to the show’s host. Tr. 220. Silvestri 40
remains present for the entire studio taping, taking notes, while the video and audio
material is shot by a bargaining unit editor or technician.4 Tr. 220-221. As the
producer, Silvestri is then involved in editing the video and audio material into a final
package so that it conforms to the program time. Tr. 220-221, 225-226. After the final
package is prepared, Silvestri submits it to master control, which times the show and 45
4 The foregoing is roughly consistent with Kroudis’ description of the work of a producer. Tr. 61-63.
JD(NY)-08-20
8
prepares it for airing. Tr. 220. Silvestri then identifies the date that the show will air and
schedules it. Tr. 220.
Silvestri testified without contradiction that he has been producing public affairs
programming, including Good Day Street Talk and New Jersey Now, continuously since 5
the inception of his employment at the Stations, and continues to do so. Tr. 212-214,
219, 290-291. Since 2009, Silvestri has been the Stations’ sole employee producing
public affairs programming for WNEW and WWOR. Tr. 213-214, 290-291. The
websites for WNEW and WWOR have identified Silvestri as a public affairs producer
since 2015. Tr. 254-260; R.S. Ex. 19, 20. Special presentations of public affairs 10
programs aired by WNEW and WWOR identify Silvestri as a producer in their credits,
and Silvestri has received Emmy Award nominations and awards as a producer on
these programs since 2015.5 Tr. 261-273, 300-301 310-311; R.S. Exs. 21-26, 27-31,
36. Silvestri identifies himself to potential guests on Good Day Street Talk and New
Jersey Now as a producer of public affairs programs or “public affairs producer.” Tr. 15
273-275, 279-281, 295-296, 302, 305-306, 314-316, 320-322; R.S. Ex. 32, 33.
Since 2010, Silvestri has been editing the public affairs programs he produces for
WNEW and WWOR. Tr. 221. Prior to that time, the programs were edited by a
bargaining unit editor from the News Department with Silvestri present, because 20
Silvestri had a comprehensive understanding of the material and determined the final
form of the finished program. Tr. 224-226. Silvestri testified that it was difficult to obtain
a bargaining unit editor to work on the public affairs programs because news material
which would be airing on the 5 p.m. show in particular had to take precedence given the
temporal constraints. Tr. 225. As a result, it was difficult for Silvestri to obtain time with 25
a bargaining unit editor, and when working with an editor it was not unusual to be
“bumped” if the editor was required to suddenly work on breaking news material for one
of the daily news broadcasts.6 Tr. 225. Silvestri would then have to find another
bargaining unit editor in the News Department and begin the editing process for the
public affairs program again. Tr. 225.30
On March 5, 2009, Silvestri wrote to Al Shjarback, who at the time was the
Stations’ Vice President of Engineering. Tr. 221-222, 224; R.S. Ex. 11. In his e-mail to
Shjarback, Silvestri asked whether he could receive training on the AVID system to
learn how to ingest, cut, and output video for footage license requests received by the 35
Stations. Tr. 222; R.S. Ex. 11. This material would be used in other productions which
would not air on WNYW or WWOR, but the work itself was performed by bargaining unit
News Department editors. Tr. 222, 316-319; R.S. Ex. 11. Shjarback responded that
Silvestri was not permitted to perform editing work pursuant to the current collective
5 While she was Senior Director of Public Affairs and Public Relations, Audrey Pass received an Emmy
Award nomination as executive producer of Good Day Street Talk in 2013. Tr. 309-311; G.C. Ex. 23. An
executive producer oversees production for the entire program, and individual producers report to them.
Tr. 65, 319-320. Silvestri and Biglin testified that Donna Pisciotta was also listed in credits as an
executive producer when she performed that work for a particular program, although her title at the
Stations is Director of Production. Tr. 128-129, 311.
6 Silvestri testified that has also been “bumped” from editing rooms from News Department personnel
since he began editing public affairs programming himself in 2010. Tr. 308-309.
JD(NY)-08-20
9
bargaining agreement. R.S. Ex. 11. Shjarback stated that during ongoing negotiations
with the Union, the company had “proposed to have all Producer's [sic] no matter what
area they work in edit, ingest, and dub,” but the Union had not agreed to that proposal.
R.S. Ex. 11.
5
On March 25, 2010, Audrey Pass sent Shjarback a copy of the March 2009 e-
mails described above, asking, “Was this issue resolved in the new contract and may
Joe now edit?” R.S. Ex. 11. Shjarback responded that the issue had been resolved an
that “a ‘Public Affairs’ Producer is allowed to edit,” including Section 1.09(b) of the 2008-
2011 collective bargaining agreement. R.S. Ex. 11. Pass forwarded her exchange with10
Shjarback to Silvestri. Tr. 221; R.S. Ex. 11.
Since that time, Silvestri has been editing the public affairs programs Good Day
Street Talk, airing on WNYW, and New Jersey Now, which airs on WWOR. Tr. 220-
221. Silvestri testified that doing the editing himself is more efficient, because he can15
edit at his own convenience, without scheduling editing time and possibly being
interrupted, and because he is not required to convey his intentions for the finished
piece to another person. Tr. 226-227. In order to edit the public affairs programs,
Silvestri brings P2 cards, which are placed into a camera and record video and audio, to
the ingest area. Tr. 237-238. In the ingest area, which is operated by a bargaining unit20
technician, the data from the P2 card is “ingested” and transferred to the computer
server, so that it can then be retrieved for editing via the AVID machines. Tr. 237-238.
Silvestri typically visits the ingest area for approximately 5-10 minutes one afternoon
each week. Tr. 238.
25
The ingest area is located in the 3rd Floor newsroom, immediately adjacent to the
“TOC” area where Kroudis works.7 Tr. 31, 84-85, 238-239. The ingest and TOC areas
are approximately five to ten steps apart, separated by a glass partition. Tr. 84-86, 238-
239, 243-245; R.S. Exs. 17, 18. Thus, individuals in the ingest and TOC areas are able
to see one another, and Kroudis and Silvestri both testified that they had seen one30
another on multiple occasions when Silvestri visited the ingest area to drop off P2 cards.
Tr. 85-87, 239-241. Silvestri testified that he sees Kroudis in the TOC area almost
every time he visits ingest, and they frequently exchange small talk. Tr. 241, 247.
Kroudis confirmed that he saw Silvestri visit the ingest area once or twice a week during
the afternoon for the past several years to hand the ingest workers P2 cards. Tr. 86-87. 35
Silvestri testified that Kroudis had never asked him about his presence in the ingest
area, or asked about his job or title, and never objected to his performing editing work
prior to 2019.8 Tr. 247-249. Kroudis confirmed that although he sometimes spoke with
Silvestri briefly, he never objected to Silvestri editing or discussed his role as producer
of public affairs programming. Tr. 87-88.40
7 Kroudis, a Technical Operations Technician, is responsible for monitoring quality control and connecting
incoming signals into and out of the television station. Tr. 31.
8 Silvestri also testified that he works with bargaining unit photographers in the field when shooting
material for the public affairs programming he produces, who provide him with P2 cards from the shoot
after it is completed. Tr. 250-251. Silvestri testified without contradiction that none of these
photographers objected to his editing public affairs programing. Tr. 251.
JD(NY)-08-20
10
Silvestri and Donna Biglin both testified that Silvestri used a workstation
approximately 5 feet from Biglin’s, in a conference room on the 5th Floor of 215 East 67th
Street, from March 2018 until early 2019. Tr. 137-139, 252-253. Silvestri testified that
Biglin never objected to his editing, asked about his job duties, or asked whether he was5
a manager during that time. Tr. 253. In addition, Silvestri testified without contradiction
that he saw Union Business Agent Dennis Beattie at WWOR’s Secaucus, New Jersey
location while taping public affairs programs from 2013 to 2017. Tr. 252.
It is undisputed on or about July 1, 2015, Silvestri’s job title changed from Public10
Affairs Producer to Community Affairs Manager.9 Tr. 289; Jt. Ex. 1, ¶ 10; G.C. Exs. 4,
5. On August 12, 2015, Human Resources Director Roselyn Barranda wrote to Jean
Fuentes, Senior Vice President of Human Resources, and Joseph Dorrego, then the
Stations’ Senior Vice President and Chief Financial Officer, requesting approval for
“promotions and salary increases,” as follows in relevant part:15
We are requesting your approvals for the following promotions and salary
increases:
 We would like to promote10 Joseph Silvestri, Public Affairs Producer20
to a new title of Public Affairs Manager. Joe has been the “behind-
the-scenes” guru of the department, maintaining our FCC filing, in
addition to producing our stations’ public affairs programming and
working with community leaders on a weekly basis. Currently, Joe
is at ***11 and we would like to increase his salary to ***. This25
increase is well-deserved with the new position; in addition to his
newer responsibilities in managing the department.
***
30
The monies from these requests will come from savings from the
departure of Audrey Pass, Sr. Director of Public Affairs position, as well as
the elimination of the Staff Accountant position. The current projected
savings will come from the Sr. Director of Public Affairs position that will
be eliminated and may be replaced with a coordinator or lesser position. 35
The Sr. Director’s position is budgeted at plus fringe. Even if filled with a
9 The parties stipulated that there are no job descriptions for the Public Affairs Producer or Community
Affairs Manager positions. Jt. Ex. 1, ¶13.
10 Barranda testified that the term “promotion could mean different things. In this case we gave [Silvestri]
a huge bump in salary” and his “reporting structure” or supervisor changed so that he reported directly to
Vice President of Programming Dan Carlin. Tr. 172, 174; G.C. Ex. 6. Barranda testified with respect to
the 2015 change in Silvestri’s job title that “in order to be able to receive the salary increase we have to
label it and put a request for it” and “We needed to change his title in order to justify the huge increase.”
Tr. 172, 195. However, Barranda also testified that she needed approval in order to “assign [Silvestri] the
manager role,” which would entail additional responsibilities. Tr. 195-196.
11 These figures were redacted by agreement of the parties.
JD(NY)-08-20
11
coordinator there will be savings after the two requested salary
promotions.
G.C. Ex. 5; Tr. 164, 175-176. Fuentes and Dorrego approved these requests the same
day. G.C. Ex. 5. Silvestri received a salary increase of 22.60 percent on or about July5
1, 2015 in connection with the change in his title to Community Affairs Manager.12 Tr.
171-172; Jt. Ex. 1, ¶ 11; G.C. Ex. 4, 15. In a subsequent Personnel Action Form for
Silvestri dated September 16, 2015 entitled “Promotion,” Barranda stated that he had
been “Promoted to Community Affairs Manager.” Tr. 196; G.C. Ex. 4. This Form
indicates that Silvestri had recently received a “salary change” due to a “Promotion,”10
and identifies Silvestri’s Community Affairs Manager position as a “mid-level manager,”
which Barranda described as a “managerial role” for EEO and affirmative action
purposes. Tr. 196-197, 198-200; G.C. Ex. 4. The form also identifies Community
Affairs Manager as a manager “job type.” Tr. 197-198. A Performance Evaluation
completed in September 2015 further states that Silvestri “is being promoted to15
Manager of Public Affairs.” G.C. Ex. 15. Subsequent Performance Evaluations also
refer to Silvestri as “Community Affairs Manager,” and refer to his “manag[ing] the
department,” and being “an extremely effective manager.” G.C. Exs. 16, 17, 18, 19.
Silvestri testified that he learned of the change in his job title from Dan Carlin,20
then the Vice President of Creative Services Programming and Public Affairs. Tr. 289.
Silvestri stated that Carlin called him into his office and “notified” Silvestri that he “had
been given a promotion.” Tr. 289. Silvestri testified that he asked Carlin what was
expected of him, and Carlin replied, “keep on doing exactly what you’ve been doing.”
Tr. 290.25
Barranda and Silvestri testified that no public announcement of Silvestri’s
promotion and change in job title was issued, and Silvestri was not provided with new
business cards or letterhead.13 Tr. 53, 173, 290, 293, 311. However, Silvestri updated
his LinkedIn profile to describe his position as the Stations’ “Manager, Public Affairs,”30
“[r]esponsible for managing all aspects of public affairs.” Tr. 312, 324; G.C. Ex. 24.
Barranda and Silvestri testified that Silvestri did not have the authority to hire, discipline
or assign work as a result of his change in job title. Tr. 173, 174-175, 293; G.C. Ex. 6.
In order to perform a public affairs shoot, Silvestri requests that the Director of
Production or the News Operations Manager, who supervise the technical crew, to35
assign bargaining unit staff.14 Tr. 293-294. Silvestri has continued to produce Good
Day Street Talk and New Jersey Now since he became Public Affairs Manager. Tr.
173.
12 Barranda testified that she was required to obtain Fuentes’ approval for salary increases in excess of
three percent. Tr. 194. Barranda testified that she did not have to obtain approval for any of Silvestri’s
other salary increases during his employment with the Stations. Tr. 198. Silvestri’s employment benefits
did not change when his job title changed and salary increased in 2015. Tr. 173, 290.
13 Silvestri’s security credentials continued to identify him as Public Affairs Producer after his job title
changed in 2015; it is apparently not necessary to update the credentials in this manner. Tr. 176-180;
R.S. Ex. 8, 9.
14 Other managers, such as Director of Creative Services Ken Ashley, must follow this procedure as well.
Tr. 312-313.
JD(NY)-08-20
12
Silvestri was not assigned an office when he became Public Affairs Manager in
2015. Tr. 291. Instead, he occupies a workstation near the maintenance engineering
shop. Tr. 291-293; R.S. Ex. 34, 35. Biglin testified that on February 21, 2019, while she
was working late, she encountered Silvestri, who complained to her that he was the only5
manager in the department who was not given an office. Tr. 125-126. Prior to that
time, Biglin had never seen any announcement or press release from the Stations
stating that Silvestri was a manager. Tr. 126-127. Biglin then conferred with Kroudis to
confirm that because Silvestri was a manager, he was not permitted to edit pursuant to
the collective bargaining agreement. Tr. 127. Biglin told Kroudis that Silvestri was10
dissatisfied that despite a recently completed renovation of the 4th Floor of 205 West
67th Street, he would not have his own office as Manager of Public Affairs. Tr. 48-49.
Kroudis reviewed the contract, and concluded that because Public Affairs Manager was
not listed as one of the exceptions in Section 1.09(b), Silvestri was not permitted to edit.
Tr. 49. Kroudis also looked Silvestri up in the directory for the Stations’ internal e-mail15
system, which identified Silvestri as Manager Community Affairs.15 Tr. 49-50; G.C. Ex.
7. Kroudis conferred with Union Business Agent Dennis Beattie, and after Silvestri was
observed editing, they began drafting a grievance to present to the Stations. Tr. 50.
On March 26, 2019, the Union filed a grievance stating that the Stations were20
violating the collective bargaining agreement because Section 1.09(b) did not permit
Silvestri, as Public Affairs Manager, to perform editing work. Tr. 50-51; G.C. Ex. 22.
Kroudis testified that a grievance meeting was conducted in May 2019 with Kroudis and
Beattie present for the Union and Wheeler and Barranda attending for the Stations. Tr.
51. According to Kroudis, the sole witness to address these events, the Stations’25
representatives asked whether the Union objected to Silvestri’s title or the work being
performed, and the Union stated that both were involved, because the job title
determined what work was permissible under Section 1.09(b) of the contract. Tr. 51.
The Union also suggested that changing Silvestri’s title could be one manner of
resolving the issue. Tr. 92, 93. The Stations’ representatives stated that they would 30
look into the matter, confer with labor relations, and contact the Union. Tr. 52.
Kroudis testified that the Union raised the issue again during several meetings
regarding unrelated grievances, and the Stations’ representatives stated that they were
still reviewing the matter and waiting for advice from an attorney. Tr. 52, 89-90. 35
Kroudis testified that during one such meeting in July 2019, Wheeler stated that Silvestri
would cease editing while the Stations’ management consulted with counsel. Tr. 52,
90-91. A day or two later, Silvestri was observed editing again, and Kroudis
immediately contacted Wheeler, who stated that he would take care of it. Tr. 52, 91.
When Silvestri continued to edit over the next two days, Kroudis contacted Wheeler 40
again and told him that the Union would be filing an unfair labor practice charge. Tr. 52-
53, 91. Wheeler suggested that the parties meet the next day, and at the inception of
the meeting Wheeler stated that the Stations intended to deny the Union’s grievance.
Tr. 53, 91-92. Kroudis, Beattie, and Wheeler again discussed Silvestri’s job title and the
15 Kroudis testified that he and Silvestri never e-mailed one another after Silvestri’s job title changed in
2015. Tr. 53-54.
JD(NY)-08-20
13
work he was performing, but the parties could not reach a resolution, and on August 9,
2019, the Union filed the instant charge. Tr. 53.
III. Decision and Analysis
5
A. The Parties’ Contentions
General Counsel alleges in the Complaint that the Stations violated Sections
8(a)(1) and (5) of the Act by transferring bargaining unit nonlinear editing work to a non-
bargaining unit employee without notifying the Union or providing the Union with an 10
opportunity to bargain, and without negotiating to impasse for a successor agreement.
Specifically, General Counsel contends that the Stations unlawfully assigned Silvestri
nonlinear editing work during his tenure as Public Affairs Manager, when that job title
was not encompassed by the exceptions enumerated in Section 1.09(b) permitting
nonlinear editing by certain managerial job titles. General Counsel further argues that 15
the assignment of nonlinear editing to Silvestri was a material, substantial and
significant change in the terms and conditions of employment for the bargaining unit
employees, engendering an obligation on the Station’s part to provide notice and an
opportunity to bargain. General Counsel also contends that the assignment of
bargaining unit work to a non-bargaining unit manager constituted a unilateral change in 20
working conditions after the contract’s expiration, thereby violating Sections 8(a)(1) and
(5).
The Stations assert that they did not violate the Act in the manner alleged. The
Stations contend that the unfair labor practice charge filed by the Union is time-barred 25
pursuant to Section 10(b) of the Act. The Stations further argue that there has been no
change in wages, hours, or other terms and conditions of employment, because
Silvestri has been performing nonlinear editing since 2010 in a manner permitted by the
parties’ collective bargaining agreement. The Stations contend that Silvestri’s change in
job title to Public Affairs Manager was merely “hypertechnical,” with no impact on the 30
terms and conditions of the bargaining unit employees’ employment, as opposed to a
material, substantial and significant change pursuant to the relevant caselaw.
B. Credibility and General Principles Governing Credibility Resolutions
35
Although there is no dispute regarding the majority of the facts at issue here, an
evaluation of witness credibility is required in certain respects. Credibility
determinations involve consideration of the witness’ testimony in context, including
factors such as witness demeanor, “the weight of the respective evidence, established
or admitted facts, inherent probabilities, and reasonable inferences drawn from the 40
record as a whole.” Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi
Sushi, 335 NLRB 622, 623 (2001), enf’d. 56 Fed.Appx. 516 (D.C.Cir. 2003); see also
Hill & Dales General Hospital, 360 NLRB 611, 615 (2014). Corroboration and the
relative reliability of conflicting testimony are also significant. See, e.g.,Precoat Metals,
341 NLRB 1137, 1150 (2004) (lack of specific recollection, general denials, and 45
comparative vagueness insufficient to rebut more detailed positive testimony). It is not
JD(NY)-08-20
14
uncommon in making credibility resolutions to find that some but not all of a particular
witness’ testimony is reliable. See, e.g., Farm Fresh Co., Target One, LLC, 361 NLRB
848, 860 (2014).
In making credibility resolutions here, I have considered the witnesses’ 5
demeanor, the context of their testimony, corroboration via other testimony and
documentary evidence or lack thereof, the internal consistency of their accounts, and
the witnesses’ apparent interests, if any. Any credibility resolutions I have made are
discussed and incorporated into my analysis herein.
10
C. The Instant Unfair Labor Practice Charge is Not Untimely Pursuant to Section
10(b) of the Act
Section 10(b) of the Act provides that “no complaint shall issue based upon any
unfair labor practice occurring more than six months prior to the filing of the charge with 15
the Board.” It is well-settled that the Section 10(b) period begins “only when a party has
clear and unequivocal notice of a violation of the Act.” Taylor Ridge Paving &
Construction, 365 NLRB No. 168 at p. 3 (2017), quoting A & L Underground, 302 NLRB
467, 468 (1991). A respondent raising Section 10(b) as an affirmative defense bears
the burden to establish that the charging party had clear and unequivocal notice of the 20
violation at issue. Id. In order to do so, the evidence must demonstrate that the
charging party had actual or constructive knowledge of the violation – that the conduct
violating the Act was sufficiently “open and obvious” to provide clear notice, or that the
unlawful conduct would have been discovered through the exercise of reasonable
diligence. Broadway Volkswagen, 342 NLRB 1244, 1246 (2004), enf’d. 483 F.3d 628 25
(9th Cir. 2007), quoting Duke University, 315 NLRB 1291, fn. 1 (1995). In settings
involving a collective bargaining relationship, a union need not “aggressively police its
contracts” in order to establish reasonable diligence. Moeller Bros. Body Shop, 306
NLRB 191, 193 (1992). Furthermore, the Section 10(b) period does not apply where a
charging party’s delay in filing is engendered by “conflicting signals or otherwise 30
ambiguous conduct by the other party.” Taylor Ridge Paving & Construction, 365 NLRB
No. 168 at p. 3, quoting A & L Underground, 302 NLRB at 468; see also Regency
Heritage Nursing & Rehabilitation Center, 360 NLRB 794, 809-810 (2014), enf’d. 657
Fed.Appx. 129 (3rd Cir. 2016) (collecting cases); Taylor Warehouse Corp., 314 NLRB
516, 526 (1994), enf’d. 98 F.3d 892 (6th Cir. 1996). 35
The instant charge, filed on August 9, 2019, alleges that the Stations violated
Sections 8(a)(1) and (5) by assigning a manager to perform bargaining unit editing
work. G.C. Ex. 1(a). Respondent argues that because the Union was aware that
Silvestri had been performing nonlinear editing continuously since his promotion to 40
Public Affairs Manager in 2015, the charge was filed well beyond the expiration of the
Section 10(b) period. There is no real dispute that the Union was aware that Silvestri
has been performing nonlinear editing since 2010. However, the Stations have not met
their burden to establish that the Union had actual or constructive notice that Silvestri
had become the Public Affairs Manager before he disclosed this information to Biglin on45
February 21, 2019.
JD(NY)-08-20
15
Specifically, the evidence overall does not establish that the Union would have
had any reason to know that Silvestri became Public Affairs Manager in 2015. The
evidence demonstrates, and the Stations do not dispute, that there was no internal or
external company announcement when Silvestri became Public Affairs Manager. 5
Nothing contradicts Kroudis’ testimony that the Stations did not acknowledge Silvestri’s
promotion in any way, never raised the issue during bargaining, and never provided the
Union with an organizational chart. Tr. 53-55. See, e.g., Print Fulfillment Services,
LLC, 361 NLRB 1243, 1273-1274 (2014) (no constructive notice where unlawful wage
increase was announced only to the employee receiving it, and was therefore not “open 10
or obvious” to anyone else); Mission Foods, 350 NLRB 336, 345 (2007) (no constructive
notice that employer had discontinued “employee-of-the-quarter award” where employer
made no announcement and no evidence adduced that employee union representatives
had learned of the change). Thus, Kroudis and the other Union officers employed at the
Stations received no notice from the Stations that Silvestri’s position had changed from 15
one explicitly enumerated in Section 1.09(b) to a managerial job title that was not
encompassed in the exceptions to the Union’s work jurisdiction applicable to nonlinear
editing.
Respondent argues that the Union failed to exercise due diligence because none 20
of its officers employed at the Stations asked Silvestri about his job title, even though
they had observed him editing on a daily basis since 2010. This argument is
unpersuasive, however, because the contract violation at issue here is not contingent
upon Silvestri’s performing nonlinear editing work but upon the position he held while
doing so. Thus, from 2010 until his promotion to Public Affairs Manager in 2015,25
Silvestri was in fact permitted to perform nonlinear editing pursuant to Section 1.09(b),
as that provision explicitly includes the Public Affairs Producer position. Only after his
job title became Public Affairs Manager was Silvestri contractually prohibited from
nonlinear editing. In these circumstances, there is nothing about Silvestri’s nonlinear
editing work in and of itself that would have alerted the Union to a potential contract 30
violation; such work was only prohibited after Silvestri became Public Affairs Manager.
In the past, the Board has carefully distinguished when evaluating due diligence and
notice of a potential violation for Section 10(b) purposes between the permissible,
established assignment of bargaining unit work to non-bargaining unit employees, and a
prohibited wholesale transfer of bargaining unit work to them. See St. George 35
Warehouse, Inc., 341 NLRB 904, 905, fn. 5, 922-923 (2004), enf’d. 420 F.3d 294 (3d
Cir. 2005) (union awareness of employer’s typical “use of temporary employees” to
perform bargaining unit work did not constitute constructive or discoverable knowledge
of employer’s “transfer” of bargaining unit work to them prior the Section 10(b) period).
40
Furthermore, as discussed above, the evidence establishes that Silvestri’s
promotion from Public Affairs Producer to Public Affairs Manager – both non-bargaining
unit job titles – was not announced by the Stations. As a result, the instant case is
distinct from Board decisions cited by the Stations in which a Union fails to exercise due
diligence because changed conditions affecting bargaining unit employees could have 45
been discovered by “mere observation” or easily obtainable documents pertaining to the
JD(NY)-08-20
16
bargaining unit employees themselves. For example, in Moeller Bros. Body Shop, “a
minimal effort” would have alerted the union that the group of employees performing
bargaining unit work was “at least double the number reported on…fringe benefit forms”
submitted pursuant to the collective bargaining agreement, a “discrepancy” the union
“could have readily discovered…had it visited [the employer’s] shop during operating 5
hours.” 306 NLRB at 192. Similarly, the union in Miramar Sheraton Hotel could have
learned of the wage increases alleged to have violated the Act by requesting wage
information for bargaining unit employees, as it had done multiple times in the past. 336
NLRB 1203, fn. 1, 1252-1253 (2001). Here, by contrast, the legally significant change
engendering a bargaining obligation was a change in title entirely within the purview of 10
the Stations themselves, and not involving the bargaining unit employees. See Moeller
Bros. Body Shop, 306 NLRB at 193 (distinguishing evidence establishing lack of due
diligence from scenarios where “information regarding misconduct is only in the hands
of the employer”).
15
The Stations argue that the Union failed to exercise due diligence in order to
discover Silvestri’s promotion because Silvestri appeared in the company’s employee
directory as “Manager Community Affairs, Community Service,” and updated his
LinkedIn profile to describe himself as the Stations’ “Manager, Public Affairs.” G.C. Exs.
7, 24. I credit Kroudis’ testimony that he and Silvestri had no occasion to e-mail one 20
another after Silvestri was promoted to Public Affairs Manager. Tr. 53-54. Silvestri did
not contradict Kroudis’ testimony in this regard, no e-mails between the two were
produced by the Stations, and there is nothing in the record to indicate that their
respective work required Silvestri and Kroudis to interact beyond the pleasantries they
exchanged when they happened to see one another. Furthermore, as described above, 25
the legally significant change at issue here was entirely an issue of managerial
prerogative involving the promotion of a non-bargaining unit employee who had been
permitted pursuant to the collective bargaining agreement to perform nonlinear editing
for five years. Thus, I find that due diligence did not require the Union to perform
repeated searches of LinkedIn or the Stations’ employee directory over the years to 30
determine whether and how Silvestri’s title had changed, given that the Stations had
declined to disseminate such information entirely.
For all of the foregoing reasons, the Stations have not adduced evidence
sufficient to establish that the Union failed to exercise due diligence to discover the 35
violation alleged here prior to February 21, 2019. As a result, the charge in the instant
case is not barred pursuant to Section 10(b) of the Act.
D. Respondent’s Assignment of Nonlinear Editing Work to Silvestri After His
Promotion to Public or Community Affairs Manager in 2015 Violated Sections 8(a)(5) 40
and (1) of the Act
It is well-settled that where employees are represented by a union, an employer
violates Section 8(a)(1) and (5) of the Act by making unilateral changes with respect to
mandatory subjects of bargaining absent bargaining to impasse. NLRB v. Katz, 369 3045
JD(NY)-08-20
17
U.S. 736 (1962). Where, as here, the union and employer are parties to a collective
bargaining agreement which has expired, the employer is required to “maintain the
status quo” regarding mandatory subjects of bargaining until the parties reach
agreement on a successor contract or reach a good-faith impasse.16 Richfield
Hospitality, Inc., 368 NLRB No. 44 at p. 3 (2019), citing Triple A Fire Protection, Inc., 5
315 NLRB 409, 414 (1994), enf’d. 136 F.3d 727 (11th Cir. 1998); RBE Electronics of SD,
320 NLRB 80 at 81. The status quo is “defined by reference to the substantive terms of
the expired contract.” PG Publishing Co., Inc., 368 NLRB No. 41 at p. 3 (2019), quoting
Hinson v. NLRB, 428 F.2d 133, 139 (8th Cir. 1970); see also Intermountain Rural Elec.
Ass’n. v. NLRB, 984 F.2d 1562, 1567 (10th Cir. 1993). The transfer of bargaining unit 10
work to non-bargaining unit employees constitutes a mandatory subject of bargaining.
Matson Terminals, Inc., 367 NLRB No. 20 at p. 4 (2018), citing Regal Cinemas, Inc.,
334 NLRB 304, 312-313 (2001), enf’d. 317 F.3d 300 (D.C. Cir. 2003); Midwest
Terminals of Toledo International, Inc., 365 NLRB No. 134 at p. 11 (2017). Thus,
absent impasse an employer may not transfer or assign bargaining unit work to non-15
bargaining unit employees without providing the union with notice and the opportunity to
bargain.
Contrary to the Stations’ contention, Section 1.09(b) of the contract plainly does
not permit the Public Affairs Manager to perform nonlinear editing work, even where the20
Public Affairs Manager’s duties encompass programming production. R.S. Post-
Hearing Brief at 27-29. Section 1.09(b) begins with a statement that “editing is under
the jurisdiction of the bargaining unit” and that “non-bargaining unit personnel will
supplement bargaining unit editors only as set forth in this Section.” Section 1.09(b)
proceeds to state that “Only the following job categories of employees may perform 25
non-linear editing functions.” Section 1.09(b) then lists the specific job titles permitted to
perform nonlinear editing, ostensibly grouped by department, in four numbered
paragraphs. When managerial positions, such as Creative Services Managers, are
permitted to perform nonlinear editing work, Section 1.09(b) explicitly states as much.
However, the only Public or Community Affairs employees listed in Section 1.09(b) are 30
“Public Affairs Producers.” Public or Community Affairs Manager is not included, and
no party disputes Kroudis’ testimony that the only managerial job titles contained in
Section 1.09(b) are News Department Executive Producers and Creative Service
Managers. Tr. 56.; see also Tr. 77-78, 101-102. In addition, when all employees in a
particular department are permitted to perform nonlinear editing, Section 1.09(b) 35
specifically so indicates, as paragraph 3 states that “Sales Department employees” may
perform nonlinear editing so long as the material is “not for air.” By contrast, no mention
is made of the Public Affairs department employees overall, as opposed to the
department’s Producers, its sole explicitly enumerated title. For all of the foregoing
reasons, the plain language of Section 1.09(b) does not permit the Public Affairs 40
16 The Stations do not contend that this general obligation was obviated by economic exigencies. See
RBE Electronics of SD, 320 NLRB 80, 81-82 (1995), discussing Bottom Line Enterprises, 302 NLRB 371
(1991). No party contends that an impasse was reached during the still-ongoing negotiations for a
successor collective bargaining agreement. See, e.g., Tr. 34. There is no evidence that the Stations
provided the Union with notice and the opportunity to bargain regarding Silvestri’s performing nonlinear
editing work after he became Public Affairs Manager in 2015.
JD(NY)-08-20
18
Manager to perform nonlinear editing. Thus, pursuant to the collective bargaining
agreement, Silvestri was permitted to perform nonlinear editing during the period that he
held the title of Public Affairs Producer, from 2010 to 2015. However, when he became
Public Affairs Manager in 2015, his title was no longer included in Section 1.09(b)’s
listed positions, and he was no longer contractually permitted to perform nonlinear 5
editing.
The Stations argue that Silvestri’s performance of nonlinear editing work after he
became Public Affairs Manager did not constitute an unlawful unilateral change but
rather simply maintained the “status quo” given that Silvestri had been doing nonlinear 10
editing since 2010. R.S. Post-Hearing Brief at 27. The Stations contend that Silvestri
was permitted to perform nonlinear editing after he became Public Affairs Manager
because the language of Section 1.09(b) permits any non-bargaining unit employee
“performing the job, job function or role of ‘Public Affairs Producer,’” as Silvestri
continued to do, to edit public affairs programming.17 R.S. Post-Hearing Brief at 27. 15
The Stations argue that the language of Section 1.09(b) does not refer to job titles, but
rather that “job categories” denotes “job functions” or “roles,” such that any individual
who performed the work they encompass was permitted to perform nonlinear editing.
R.S. Post-Hearing Brief at 27-28. However, the language of Section 1.09(b) leaves no
doubt that the contract is enumerating specific job titles or job classifications, as 20
opposed to simply describing the work performed by the non-bargaining unit employees
that hold these positions. Thus, for example, paragraph 1 lists “News Department
Executive Producers, Senior Producers, Producers, Segment Producers, Writers and
Reporters,” as “job categories” permitted to perform nonlinear editing, and paragraph 2
lists “Creative Services Managers, Promotion Producers, and Marketing Producers.” 25
This language clearly refers to job titles, and not to the work performed in these
positions, such as identification and selection of topics and guests, research, writing
speaking parts, pre-interviews of guests, and attending tapings, all work performed by
the individual producing the program.18 See Tr. 219-221.
30
Nor does any of the other language of Section 1.09(b) support the Stations’
argument that the “job categories” Section 1.09(b) contains describe work being
17 The Stations introduced evidence establishing that Silvestri has continued to produce Good Day Street
Talk and New Jersey Now, as well as special public affairs programming, since he began performing
nonlinear editing in 2010. The Stations introduced evidence that Silvestri has held himself out to potential
guests in such a manner (R.S. Exs. 32, 33), has been identified in credits and on the Stations’ websites
as such (R.S. Exs. 19, 20, 21-26), and has been nominated for and received professional awards as a
producer (R.S. Exs. 27-31). However, other individuals having managerial titles are also listed in
production credits and receive award nominations based upon their role with respect to the specific
programming involved, as opposed to their position at the Stations. Tr. 128-129, 309-311; G.C. Ex. 23.
Thus, this evidence does not tend to establish that Silvestri’s work as a producer somehow abrogates his
Public Affairs Manager title for the purposes of Section 1.09(b), or that Silvestri’s promotion to Public
Affairs Manager was not a material, substantial and significant change creating a bargaining obligation,
as discussed below.
18 The Stations argue that Kroudis testified that employees perform different work under more than one
job title. R.S. Post-Hearing Brief at 9, 28. However, Kroudis’ testimony in this regard addressed
bargaining unit employees, and not employees outside the bargaining unit or management. Tr. 340-341,
350.
JD(NY)-08-20
19
performed, as opposed to distinct job titles or job classifications. For example, the
material immediately following the four enumerated “job categories” provides that they
include “individuals who are ‘upgraded’ into such positions,” thus describing the
individual entitled to perform such work by job title (“positions”), as opposed to the work
performed.19 The language goes on to state that “Under no circumstances will anyone 5
be reclassified to circumvent the express language” of Section 1.09(b) (emphasis
added). “Reclassified” here clearly refers to job titles, positions, or job classifications, as
opposed to the actual work performed. The next paragraph of Section 1.09(b) refers to
non-bargaining unit employees “assigned to fill in a staffing vacancy” in any of the four
“job categories;” the use of the words “staffing vacancy” connotes specific classifications 10
or positions, and not work performed. All of this language undermines the Stations’
contention that the “job categories” in the four enumerated paragraphs of Section
1.09(b) describes work duties, as opposed to job titles or positions, as well.
Furthermore, the provision requiring a “direct editorial connection to the non-15
linear editing assignment” does not support the Stations’ contention that Silvestri was
contractually permitted to perform nonlinear editing after becoming Public Affairs
Manager by virtue of his continuing to produce public affairs programming. See R.S.
Post-Hearing Brief at 27-28. For the first clause of this sentence explicitly states that it
applies to “Any individuals described here,” specifically referring to the job titles listed in 20
the four enumerated paragraphs which precede it. Thus the requirement that the non-
bargaining unit individual performing nonlinear editing have a “direct editorial connection
to the non-linear editing assignment” applies only to the job titles previously set forth in
Section 1.09(b), the “Only…job categories of employees” that “may perform non-linear
editing functions.” The requirement of a direct editorial connection therefore further 25
circumscribes the group of non-bargaining unit employees permitted to perform
nonlinear editing, as opposed to defining it. Thus, the language of Section 1.09(b) is
consonant with Kroudis’ interpretation that a non-bargaining unit employee must first
hold one of the job titles contained in paragraphs 1 through 4 before a direct editorial
connection to the particular nonlinear editing assignment is even considered. Tr. 103. 30
For all of the foregoing reasons, I find that the language of Section 1.09(b) does
not support the Stations’ argument that that provision permitted Silvestri to continue to
perform nonlinear editing after he became Public Affairs Manager in 2015, or that
Silvestri’s nonlinear editing was the legally operative “status quo” at the time he became 35
Public Affairs Manager.
I further find that the evidence establishes that the assignment of nonlinear
editing work to Silvestri after he assumed his managerial position constituted a material,
substantial and significant change in the bargaining unit employees’ terms and 40
19 The Stations contend that Kroudis’ testimony regarding this language establishes that it refers to “job
functions” or “roles” as opposed to titles. R.S. Post-Hearing Brief at 9, 27-28. However, the locution “step
into the roles and perform the functions” of the listed job classifications was initially used by counsel in his
questions, and not by Kroudis in his testimony. Tr. 82-83. When asked on direct examination whether
the four enumerated paragraphs in Section 1.09(b) referred to “job functions or job titles,” Kroudis
answered, “I would say both.” Tr. 36.
JD(NY)-08-20
20
conditions of employment, such that the Stations were obligated to negotiate with the
Union regarding the issue. The duty to bargain attaches only where the unilateral
change is “material, substantial and significant” and affects the terms and conditions of
employment for the bargaining unit employees. Matson Terminals, Inc., 367 NLRB No.
20 at p. 1, fn. 2 (2018), citing North Star Steel Co., 347 NLRB 1364, 1367 (2001). 5
General Counsel bears the burden to establish that a particular change is “material,
substantial and significant,” thus engendering a bargaining obligation. Id. The Stations
contend that Silvestri’s change in job title to Public Affairs Manager was a
“hypertechnical” modification without practical impact, and that there is no evidence in
the record to establish lost work opportunity or wages with respect to the bargaining unit 10
employees as a result. R.S. Post-Hearing Brief at 29-32.
However, it is well-settled that the transfer of bargaining unit work to employees
outside the bargaining unit inherently constitutes a “material, substantial and significant”
change engendering a bargaining obligation. See, e.g., Matson Terminals, Inc., 367 15
NLRB No. 20 at p. 1, fn. 2, citing Regal Cinemas, 334 NLRB 304 (2001). The Board
has repeatedly found that a transfer of bargaining unit work is material, substantial and
significant even where there is no evidence that bargaining unit employees were laid off
as a result, and no evidence of any impact on their wages and hours. See, e.g., Matson
Terminals, Inc., 367 NLRB No. 20 at p. 1, fn. 2 (no evidence of impact on employee 20
compensation necessary to establish substantial and material change due to transfer of
bargaining unit work); Comau, Inc., 364 NLRB No. 48 at p. 21 (2016) (same); Mi Pueblo
Foods, 360 NLRB 1097, 1097-1099 (2014) (transfer of bargaining unit work material
and substantial even absent layoffs or significant impact on wages and hours for
bargaining unit employees). The Board has stated that it is “plain” that a bargaining unit 25
“is adversely affected whenever bargaining unit work is given away to nonunit
employees, regardless of whether the work would otherwise have been performed by
employees already in the unit or by new employees who would have been hired into the
unit.” Overnite Transportation Co., 330 NLRB 1275, 1276, aff’d. and rev’d. in part, 248
F.3d 1131 (3rd Cir. 2000); see also Matson Terminals, Inc., 367 NLRB No. 20 at p. 1, 30
fn. 2 (General Counsel “met his burden” to establish a substantial and material change
“by showing that the Respondent transferred barge menu work – which had been
exclusively performed by unit employees – to nonunit employees”).20 A change in the
accepted use of non-bargaining unit employees to perform bargaining unit work which
engenders a transfer of unit work and erosion of the bargaining unit also constitutes a 35
material, substantial and significant change sufficient to create an obligation to bargain.
See St. George Warehouse, Inc., 341 NLRB at 905, fn. 5, 923-924.
20 The cases cited by the Stations in support of their argument that the Public Affairs Manager’s nonlinear
editing was not a material, substantial and significant change do not involve the transfer or assignment of
bargaining unit work to non-bargaining unit employees, and are therefore not persuasive. R.S. Post-
Hearing Brief at 29-30; see United Technologies Corp., 278 NLRB 306, 306-307, 308 (1986) (limited-time
program for auditing medical bills which did not affect health insurance benefits); Peerless Food Products,
236 NLRB 161 (1978) (restriction of business agent’s access to production floor for conversations
pertaining to union business only); Rust Craft Broadcasting of New York, Inc., 225 NLRB 327 (1976)
(installation of time clocks to mechanize recording of arrival and departure times, where employees
previously required to enter such information by hand).
JD(NY)-08-20
21
Furthermore, the evidence establishes that the bargaining unit employees did in
fact lose work as a result of Silvestri’s continuing to perform nonlinear editing after his
promotion to Public Affairs Manager. 21 The record establishes that once Silvestri was
promoted to Public Affairs Manager, there were no Public Affairs Producers permitted to
perform nonlinear editing with respect to the weekly Good Day Street Talk and New 5
Jersey Now programs, and intermittent public affairs specials. These programs would
therefore have been edited by a bargaining unit employee had Silvestri not continued to
edit them himself after becoming Public Affairs Manager. While these programs are
only a small portion of the Stations’ weekly broadcasting, they nevertheless would have
involved legally significant bargaining unit nonlinear editing work. See Ruprecht Co., 10
366 NLRB No. 179 at p. 1, n. 1, and at p. 14 (2018) (transfer of bargaining unit work to
“7 temporary employees out of a total complement of about 92 employees” a material,
substantial and significant change requiring bargaining). The evidence also establishes
that both Good Day Street Talk and New Jersey Now air on a weekly basis, so that the
nonlinear editing work they entail is recurring, as opposed to an isolated event. See 15
North Star Steel Co., 347 NLRB at 1367-1368 (single transfer of work involving .006
percent of the Respondent’s total monthly production not a material, substantial and
significant change creating an obligation to bargain).
In addition, Silvestri’s promotion to Public Affairs Manager was not 20
inconsequential, as the Stations suggest. The record establishes that the promotion
entailed not only a change in title, but a 22.60 percent salary increase. This percentage
increase is approximately ten times higher than any other salary increase Silvestri
received, and required Barranda to obtain special approval from the Stations’ Senior
Vice President of Human Resources and Senior Vice President and Chief Financial 25
Officer. As Public Affairs Manager, Silvestri reported directly to Daniel Carlin, then the
Vice President of Creative Services Programming and Public Affairs and now the Vice
President of Programming. Documents prepared by Barranda repeatedly refer to the
change in job title as a “promotion,” and to the Public Affairs Manager position as a
“manager,” and a “managerial role.” Thus, the evidence establishes that Silvestri 30
received a significant promotion when he was named Public Affairs Manager, with a
substantial salary increase and a consonantly altered reporting structure. It was far
from the “hypertechnical” triviality that the Stations claim.22
21 The evidence overall does not establish that Respondent’s Exhibit 10, a compilation of hours worked by
certain employees, accurately reflects the work hours of bargaining unit editors after Silvestri began
performing nonlinear editing in 2010. Barranda testified that the payroll department prepared
Respondent’s Exhibit 10 based upon reports of regular and overtime pay for bargaining unit employees
who had worked as editors, whose names she provided. Tr. 180-183, 186-187. However, Kroudis
testified that some of the individuals listed in the Exhibit were not editors but photographers or ingest
operators, and some were per diem or daily hire employees not included in the bargaining unit. Kroudis
further testified that some bargaining unit editors were omitted from the list. See generally Tr. 329-336.
Thus, the information contained in Respondent’s Exhibit 10 is not probative in terms of evaluating the
Stations’ contention that the bargaining unit’s work and earnings were not affected by the nonlinear
editing performed by Silvestri after he became Public Affairs Manager.
22 The Stations argue that the Union’s suggestion to settle its grievance by changing Silvestri’s title
establishes that Silvestri’s continuing to perform nonlinear editing as Public Affairs Manager was not a
material, substantial and significant change engendering a bargaining obligation. Tr. 92-93. However, as
JD(NY)-08-20
22
Finally, the evidence establishes that the impact of technological changes
permitting nonlinear editing on the work traditionally performed by the bargaining unit
employees was of critical importance to both the Stations and the Union. These issues
were addressed in negotiations for both of the previous contracts. Such bargaining 5
culminated in Sideletter #8 to the October 16, 2005 through October 15, 2008
agreement, a lengthy provision which permitted certain non-bargaining unit job titles to
perform nonlinear editing. The next cycle of contract negotiations resulted in Section
1.09(b) of the October 16, 2008 through October 15, 2011 contract, which further
expanded the group of non-bargaining unit positions permitted to perform nonlinear 10
editing to include managerial employees, as Kroudis put it, “opening up our jurisdiction
to managers for the first time.” Tr. 109. This history of negotiations addressing
exceptions to the Union’s traditional work jurisdiction further emphasizes the material,
significant, and substantial nature of the unilateral change at issue here. As a result,
and for all of the reasons discussed above, the evidence overall establishes that 15
Silvestri’s nonlinear editing work after his promotion to Public Affairs Manager
constituted a material, substantial and significant change in terms and conditions of
employment engendering a bargaining obligation.
For all of the foregoing reasons, the evidence establishes that the Stations 20
assigned nonlinear editing work to their Public Affairs Manager, which was not permitted
pursuant to the parties’ collective bargaining agreement, without notifying or providing
Local 794 with the opportunity to bargain, and without negotiating with the Union to an
overall impasse for a successor agreement. The evidence further establishes that the
assignment of nonlinear editing work to a non-bargaining unit employee constituted a 25
material, substantial, and significant change in terms and conditions of employment
which created an obligation to bargain. As a result, the Stations’ unilateral assignment
of bargaining unit work to a non-bargaining unit employee violated Sections 8(a)(1) and
(5) of the Act.
30
Conclusions of Law
1. Fox Television Stations, LLC is an employer within the meaning of Sections
2(2), (6), and (7) of the Act.
35
2. Television Broadcasting Studio Employees, Local 794, I.A.T.S.E., is a labor
organization within the meaning of Section 2(5) of the Act.
3. Fox Television Stations, LLC, violated Sections 8(a)(1) and (5) of the Act by
assigning bargaining unit nonlinear editing work to non-bargaining unit employees, 40
specifically the Public Affairs Manager, since September 1, 2015, without providing
Local 794 with notice and the opportunity to bargain, and without negotiating to impasse
with Local 794 for a successor collective bargaining agreement.
Kroudis explained, such a resolution was consonant with the Union’s contention that as a Public Affairs
Producer Silvestri would be allowed to perform nonlinear editing pursuant to Section 1.09(b). Tr. 93.
JD(NY)-08-20
23
4. The unfair labor practice described above affects commerce within the
meaning of Section 2(6) and (7) of the Act.
The Remedy
5
Having found that Respondent has engaged in certain unfair labor practices, I
shall order it to cease and desist and take certain affirmative action designed to
effectuate the Act’s policies.
Having found that Respondent violated Section 8(a)(1) and (5) by unilaterally 10
assigning nonlinear editing work subject to its collective bargaining agreement with
Local 794 to non-bargaining unit employees, I shall order Respondent to rescind the
unlawful unilateral assignment and restore the status quo ante by assigning the work to
the Local 794 bargaining unit, and to provide Local 794 with notice and an opportunity
to bargain. I shall also order Respondent to make the bargaining unit employees whole 15
for any loss of earnings and other benefits suffered as a result of the unlawful unilateral
assignment. Backpay shall be computed in the manner prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
compounded daily as prescribed in New Horizons, 283 NLRB 1173 (1987), and
Kentucky River Medical Center, 356 NLRB 6 (2010). In addition, I shall order 20
Respondent to compensate the bargaining unit employees for any adverse tax
consequences of receiving a lump-sum backpay award and to file, within 21 days of the
date the amount of backpay is fixed, a report with the Regional Director for Region 29
allocating the backpay award(s) to the appropriate calendar years for each employee.
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016). 25
On these findings of fact and conclusions of law, and on the entire record, I issue
the following recommended:
Order2330
Fox Television Stations, LLC, its officers, agents, successors and assigns shall
1. Cease and desist from
35
(a) Unilaterally assigning nonlinear editing work covered by its collective
bargaining agreement with Local 794 to non-bargaining unit employees, without first
notifying Local 794 and providing Local 794 with the opportunity to bargain, and without
negotiating with Local 794 to an overall impasse in bargaining for a successor
agreement. 40
(b) 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.
23 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.
JD(NY)-08-20
24
2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Rescind the unlawful unilateral assignment of nonlinear editing work subject
to the collective bargaining agreement with Local 794 to non-bargaining unit employees. 5
(b) Before assigning the work of bargaining unit employees to employees
outside the bargaining unit, notify and, on request, bargain with Local 794 as the
exclusive collective-bargaining representative of employees in the bargaining unit
described in the parties’ collective bargaining agreement. 10
(c) Make whole the bargaining unit employees for any lost wages and benefits
resulting from the assignment of nonlinear editing work subject to the collective
bargaining agreement with Local 794 to non-bargaining unit employees, with interest, in
the manner set forth in the remedy section of this decision. 15
(d) Compensate employees for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is fixed, either by agreement or by a
Board order, a report allocating the backpay award to the appropriate calendar years for 20
each employee.

(e) 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 25
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.
(f) Within 14 days after service by the Region, post at its facility in New York, 30
New York, copies of the attached notice marked “Appendix.” Copies of the notice, on
forms provided by the Regional Director for Region 2, 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 35
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. If Respondent has gone out of business or closed the Manhattan facility,
Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current employees and former employees employed by Respondent at any time since
September 1, 2015. 40
(g) Within 21 days after service by the Region, file with the Regional Director for
Region 2 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that Respondent has taken to comply.
45
JD(NY)-08-20
25
Dated Washington, D.C. August 20, 2020
5
Lauren Esposito
Administrative Law Judge
JD(NY)-08-20
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 assign work subject to our collective bargaining agreement with
Television Broadcasting Studio Employees Union, Local 794, I.A.T.S.E., to non-
bargaining unit employees, without first notifying Local 794 and providing Local 794 with
the opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the unlawful unilateral assignment of nonlinear editing work subject to
the collective bargaining agreement with Local 794, until such time as Local 794 has
been afforded an opportunity to bargain to an agreement or bona fide impasse over the
transfer of such bargaining unit work.
WE WILL before implementing any changes in wages, hours, or other terms and
conditions of employment for bargaining unit employees, notify and, on request, bargain
with Local 794 as the exclusive collective-bargaining representative of employees in the
bargaining unit described in the collective bargaining agreement.

WE WILL make whole bargaining unit employees for any lost wages and benefits
resulting from the unlawful unilateral assignment of nonlinear editing work subject to the
collective bargaining agreement with Local 794, less any net interim earnings, plus
interest.
WE WILL compensate bargaining unit employees for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file with the Regional Director for
Region 2, within 21 days of the of the date that the amount of backpay is fixed by
agreement or Board order, a report allocating the backpay award to the appropriate
calendar year.
JD(NY)-08-20
FOX TELEVISION STATIONS, LLC
_____________________________________
(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.
26 Federal Plaza, Room 3614, New York, NY 10278
(212)264-0300, Hours: 8:30 a.m. to 5:00 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/02-CA-246371 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.
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 (212) 264-0300.