Nexstar Broadcasting, Inc. d/b/a KOIN-TV

National Labor Relations Board - Administrative Judge Opinions

Jun 3, 2020

19-CA-232897 (N.L.R.B. Jun. 3, 2020)

JD–26–20
Portland, OR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, DC
NEXSTAR BROADCASTING, INC.
d/b/a KOIN-TV
Case No. 19-CA-232897

and
NATIONAL ASSOCIATION OF BROADCAST
EMPLOYEES & TECHNICIANS, THE
BROADCASTING AND CABLE TELEVISION
WORKERS SECTOR OF THE COMMUNICATIONS
WORKERS OF AMERICA, LOCAL 51, AFL—CIO
Sarah C. Ingebritsen, Esq.,
for the General Counsel.
Anne I. Yen, Esq.,
for the Charging Party.
Charles W. Pautsch, Esq.,
for the Respondent.
DECISION
Statement of the Case
CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried in Portland,
Oregon on August 13, 2019. The National Association of Broadcast Employees & Technicians,
The Broadcasting and Cable Television Workers Sector of the Communications Workers of
America, Local 51, AFL—CIO (Charging Party, Union or NABET) filed charges in case 19—
CA—232897 on December 17, 2018.1 (GC Exh. 1(a), 1(b).)2 On April 25, 2019, the General
Counsel issued a complaint and notice of hearing for case 19—CA—232897. (GC Exh. 1(c).)
Nexstar Broadcasting, Inc., d/b/a KOIN-TV (the Respondent/KOIN-TV) filed a timely answer to
the complaint denying all material allegations. The Respondent also amended its answer to
1 All dates are in 2018, unless otherwise stated.
2 Where applicable, abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.”
for General Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “CP Exh.” for Charging Party’s
exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for General Counsel’s brief; “R. Br.” for Respondent’s
brief; and “CP Br.” for Charging Party’s brief. My findings and conclusions are based on a review and
consideration of the entire record.
JD–26–20
2
paragraph (5)(d) of the complaint by admitting that at all material times, based on Section 9(a) of
the National Labor Relations Act (the Act/NLRA), the Union has been the exclusive collective
bargaining representative of the units. (Tr. 11-12.)
The complaint alleges that the Respondent violated Sections 8(a)(3) and (1) of the Act 5
when (1) on or about July 12, the Respondent conducted a disciplinary meeting with Hansen
whereby she was issued a written warning alleging she had harassed a coworker during a
conversation; and (2) on or about July 12, the Respondent has failed and refused to furnish the
Union with information it requested on the same date in violation of Sections 8(a)(5) and (1) of
the Act. 10
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel, Charging Party, and the Respondent, I make
the following
15
Findings of Fact
I. Jurisdiction
The Respondent, a corporation, is engaged in the business of operating a television 20
station in Portland, Oregon. During the 12-month period ending December 31, a representative
period, the Respondent has purchased and received goods valued in excess of $50,000 directly
from points outside the state of Oregon and derived gross revenues valued in excess of $100,000.
At all material times, the Respondent has been an employer engaged in commerce within the
meaning of Sections 2(2), (6), and (7) of the Act.25
It is undisputed and I find that the Union at all material times has been a labor
organization within the meaning of Section 2(5) of the Act. The following of the Respondent’s
employees constitute units appropriate for purposes of collective bargaining, and the Union has
been the exclusive collective-bargaining representative of these units:30
All regular full-time and regular part-time engineers and production employees,
but excluding chief engineer, office clericals, professionals, guards and
supervisors as defined in the Act, and all other employees of KOIN-TV.
35
All regular full-time and regular part-time news, creative services employees, and
web producers, but excluding news producers, IT employees, on-air talent (aka
“performer”), office clericals, professionals, guards and supervisors as defined in
the Act, and all other employees of KOIN-TV.
40
(GC Exh. 1(c), 1(e); Tr. 11 - 12.) The Union has represented employees at KOIN-TV for about
fourteen years. During all relevant times until January 17, 2017, the Union had been “the
exclusive collective-bargaining representative of the Units employed by Media General KOIN-
TV, and during that time recognized as such representative by Media General KOIN-TV. This
recognition was embodied in successive collective bargaining agreements, the most recent of 45
which was in effect from July 29, 2015 to July 28, 2017.” Id.
JD–26–20
3
II. Alleged Unfair Labor Practices
A. Overview of Respondent’s Organization5
On or about January 17, 2017, the Respondent bought LIN Television Corporation, a
Media General Company, d/b/a KOIN-TV (Media General KOIN-TV), and has continued to
operate Media General KOIN-TV in virtually unchanged form, employing the majority of the
individuals who were previously employees of Media General KOIN-TV. Based on its 10
operations as described in paragraphs 2(a) and 2(b) of the complaint, the Respondent has
continued as the employing entity and is a successor to Media General KOIN-TV.
The Respondent’s television station in Portland, Oregon employs about 110 employees.3
Patrick Nevin (Nevin) is the Respondent’s vice president and general manager of KOIN-TV in 15
Portland, Oregon. He has oversight of all departments at the facility. During the relevant period,
Rick Brown (Brown) was operations manager and reported to Nevin. Terri Lynn Bush (Bush) is
associate counsel and vice president of human resources. The Respondent’s business
administrator for the past 10 years has been Casey Wenger (Wenger). He is responsible for
business and financial functions within the company, and local human resources administration.20
In his role as human resources administrator, he serves on the management side bargaining team
for contract negotiations with the Union. The Respondent’s news director is Rich Kurtz (Kurtz).
Tim Bush is president of Nexstar.4
B. Hansen and Moore’s Conversation25
The backdrop for this complaint is the contentious negotiations for a successor collective
bargaining agreement (CBA) the parties have been negotiating since June 2017.5 The
Respondent’s negotiating team consists of Nevin, Wenger, Brown, and Kurtz.6 The Union is
represented in bargaining sessions by Carrie Biggs-Adams (Biggs-Adams), president of Local 51 30
and previously union business representative; and Ellen Hansen (Hansen), union executive board
member and employed with the Respondent as a photographer, editor, truck operator. During
the bargaining sessions, Hansen’s role is to take notes while Biggs-Adams, as the chief
negotiator, does the speaking on behalf of the Union.
35
Hansen has been an active and open union supporter since at least 2005 when she served
as a union steward from about 2005 to 2010. In support of the Union, she has worn union
3 Unless otherwise noted, references to the Respondent’s television station or facility are for the
Portland, Oregon location.
4 In order to avoid confusing Tim Bush with Terri Lynn Bush, Tim Bush will be referred to by his
full name.
5 Although there is not a CBA in place, the Respondent’s employees continue to be bound by its
various company policies. The policies relevant to the complaint at issue are: “business code of conduct
policy,” and “non-retaliation protection policy,” and “anti-harassment policy.” (Jt. Exh. 2.)
6 Hansen testified that occasionally Tim Bush would join the Respondent’s team in bargaining
sessions.
JD–26–20
4
apparel to work, discussed contract negotiations with coworkers, and answered their questions
about various union matters. As a union executive board member, Hansen introduces herself to
new employees, welcomes them to a “Union shop,” and advises them to contact her with
questions about the Union. In her initial conversations with new employees, Hansen tries to be
“brief and casual.” (TR. 27.) She normally holds these conversations with new employees in a 5
private area during non-work times. Since the parties do not currently have a CBA, Hansen,
when speaking to employees about joining the Union, informs them there is no contract and
union membership is voluntary.
Benjamin Moore (Moore) had been employed with the Respondent for about 3 years as a 10
dayside photojournalist before transferring in March 2019 to his current television station in
Harrisburg, Pennsylvania. He worked with Hansen at the Portland station from March 2018 to
May 2019. Prior to joining the Portland office, Moore was aware of the ongoing contract
negotiations between management and the Union. He also knew of Hansen before she
introduced herself. 15
In May, Hansen held separate new employee welcome conversations with photographer
Jahad Harvey (Harvey) and Moore. Harvey told Hansen that he did not have questions because
he would be speaking with Brown the following week. It is undisputed that on May 18, Hansen
greeted Moore to talk with him about the advantages of union membership and they engaged in a 20
conversation which lasted about 10 or 15 minutes; and it occurred between 6:00pm to 6:30pm in
the photography area at the editor’s booth with him seated and her standing on the other side of
the half-wall partition. Their agreement on the facts end here.
According to Hansen, she approached Moore to introduce herself and told him that she 25
heard Brown was speaking with new employees about the Union and asked if he had already
spoken with Brown. Moore seemed surprised to her by the question but not offended.
Nevertheless, he told Hansen that he had spoken with Brown but did not want to discuss it.
Hansen responded that was “okay” but if he had any questions about the Union, she would be
happy to answer them. Hansen testified that as she was leaving, Moore said, “well, why don’t 30
you give me your take?” (Tr. 31.) At this point in the conversation, she was in the hallway
headed towards the garage and Moore was seated on the other side of the half-wall partition in
the photography area where employees perform editing tasks. Hansen started telling him the
history of the Union and the reasons she felt a union in the workplace was important. It is
undisputed that Moore either asked if the Union is for “your protection” or responded he 35
understood why “you would want a Union, for protection.” (Tr. 32, 85.) According to Hansen,
the conversation then ended with Moore stating that he would tell her Monday which she
assumed meant whether he would join the Union. She denied asking him if he was going to join
the Union and believes the entire conversation lasted about 10 minutes. Based on Hansen’s
perception of his body language, Moore appeared relaxed to her; and she perceived his 40
conversational tone as casual. Hansen did not recall much more about the conversation with
Moore but acknowledged she probably mentioned management because she usually tells new
employees that management frequently changes and is not always on the side of employees, but
the Union is a stabilizing force. Nothing about her conversation with Moore struck Hansen as
unusual. Hansen did not observe anyone else nearby or within earshot of the conversation.45
JD–26–20
5
According to Moore, after Hansen greeted him with talk about the benefits of joining the
Union, she accused him of having secret meetings with Brown. He testified that Hansen told
him Dean and Brown used this “scheme” to not to tell new people about the Union until they got
“out there” and once “here” the new hires would learn about dues and “other things” which
would frustrate the new hires and turn them against the Union. I will credit Moore on this point. 5
Hansen acknowledged that she mentioned to him that management frequently changes and is not
“always” supportive of its employee; but does not recall her exact words. Moore, on the other
hand, was clear in his recollection. Moreover, his version has the ring of truth because it is not
so far outside the realm of what Hansen admitted to usually telling new employees. Moore also
insists that Hansen continued the conversation by bad mouthing Brown and calling him a “piece 10
of shit” and “rat fuck.” Due to what Moore perceived to be a lot of “foot traffic” in the area
where anyone could hear their conversation, he felt uncomfortable because he did not want it to
get back to Brown that he was “associated” with Hansen’s negative views and “bashing” of
management so Moore claimed that he did not say much in response. Moore labeled Hansen’s
statements to him as a “rant.” Last, Moore acknowledged on cross-examination that he has been15
speaking with Nevin about returning to the Portland, Oregon television station and has an
interest in staying in the Respondent’s good favor.
C. Respondent’s Investigation of Moore’s Allegations and Issuance of Discipline
20
The following Monday or Tuesday after his conversation with Hansen, Moore told
Brown that Hansen had spoken disparagingly about Brown and pressured him to sign papers to
join the Union. Moore claims that he told Brown Hansen called Brown a “piece of shit” and “rat
fuck.” In early June, Nevin learned from Brown about Moore’s allegation. Brown told him
Moore was uncomfortable with the conversation and despite telling Hansen that he wanted to 25
end it, she persisted. Nevin conferred with Brown about involving human resources and decided
to have Wenger investigate the matter. Consequently, Brown contacted Wenger who discussed
the situation with Nevin before beginning the investigation.
According to Wenger, the purpose of the investigation was to determine if Hansen had 30
harassed Moore. Wenger began the investigation with a meeting on June 11 involving himself,
Moore, and Brown. While Wenger took notes, Moore again explained his version of the
discussion with Hansen. (GC Exh. 2; Tr. 121-124.) Wenger is adamant that Moore said Hansen
used the terms “rat” and “piece of shit” to describe Brown as opposed to “rat fuck”. Nevin also
used those terms in his descriptions of Moore’s allegation against Hansen. During the35
investigatory interview, Moore also mentioned that another employee passed them while Hansen
was talking and made “eye contact” with him. Consequently, Wenger interviewed the unnamed
witness alone, and prepared notes of the interview the same day, June 15. Supposedly, the
unnamed witness claimed: (1) she heard Moore tell Hansen that he was not interested in the
conversation; (2) it appeared to the anonymous witness that their conversation was strained; and 40
(3) she thought Moore looked uncomfortable. Wenger believes that the witness requested to
keep her name confidential; and after conferring with Nevin, they agreed. I do not credit any
evidence provided by the anonymous witness because the Charging Party and General Counsel
did not have the opportunity to question the witness and verify the accuracy of the Respondent’s
JD–26–20
6
summary of her statement or test any inconsistencies in her statement.7 Metropolitan Edison
Co., 330 NLRB 107, 107 (1999) (name of informant can be withheld only if employer
establishes a legitimate and substantial confidentiality defense). Moreover, the witness’
statement is hearsay; and the anonymous witness admitted that she “didn’t hear any specifics of
the conversation.” (Tr. 102-103.) Consequently, the statement has no probative value.5
On June 18, Wenger again met with Moore to confirm his prior statements and ask if he
wanted to add information. (GC Exh. 2.) At this meeting, Moore mentioned that Hansen had
not approached him since their May 18 conversation; and “he has not seen or heard of her
approaching other employees.” (GC Exh. 2.) Moore had nothing else to share with Wenger. 10
During the course of the investigation, the Respondent also questioned several employees on
whether Hansen had made statements to them that the Respondent was cutting wages, which
made them uncomfortable. The Respondent admits, however, that no other employees had
complained to managers or supervisors about “uncomfortable” conversations with Hansen.8
15
After the “investigation” Nevin and Wenger contacted Bush, Tim Bush, and the
Respondent’s counsel, Charles Pautsch (Pautsch) to “discuss the next steps in the investigation
regarding this incident.” They decided next to interview Hansen. The Respondent contacted
Hansen to schedule a meeting for her to be interviewed. She was told the meeting would address
“harassment.” She contacted Biggs-Adams to represent her in the meeting. On June 28, Nevin, 20
Wenger, and Hansen met in Nevin’s Portland office with Bush and Biggs-Adams participating
telephonically. The meeting lasted about 20 to 25 minutes. Nevin started the meeting by
explaining to Hansen and Biggs-Adams that management was investigating allegations that
Hansen had engaged in conversations with coworkers which possibly violated company policies.
Reading from a list of questions, Nevin asked Hansen about her recollection of the conversation 25
with Moore, including when and where the conversation occurred and what was said. He also
asked her if she had held other discussions with Moore, union members and, or coworkers about
issues related to CBAs, theoretical pay cuts under potential new owners or used derogatory
comments to refer to coworkers. As part of the interview, Nevin questioned Hansen on whether
she use the terms “rat” and “piece of shit” to describe Brown.9 Although Hansen denied it, 30
Nevin testified that he did not believe her because she “paused” before responding and did not
7 My reasons for rejecting statements attributed to the anonymous witness is discussed in more detail
under the section of the decision which addresses the request for information allegation.
8 Nevin testified that there “may have been one instance” where an employee, Jordan Aleck (Aleck),
complained that Hansen persistently questioned her about joining the Union. Aleck did not testify in
these proceedings. I do not credit Nevin’s testimony on this point. Nevin’s testimony was vague noting
that there “may” have been one instance of Aleck reporting Hansen; and he also did not know when the
alleged conversation occurred. Moreover, it is hearsay because according to Nevin, Aleck actually told
Wenger about the incident. However, Wenger did not offer any corroborating testimony of the alleged
incident; and the Respondent failed to address why it did not produce the best evidence on this point,
Aleck.
9 Hansen testified that Nevin asked her if she had referred to Brown as a “rat bastard.” Moore insists
he told the Respondent that Hansen called Brown a “rat fuck.” While Nevin and Wenger were adamant
that Moore said “rat.” It is irrelevant to my analysis which iteration Hansen allegedly used because they
are all derogatory terms, especially used in conjunction with “piece of shit.” The witnesses agree that
Moore alleged Hansen called Brown “a piece of shit.”
JD–26–20
7
seem credible to him. Nevin, however, admits Hansen told him Moore continued the
conversation by asking her several questions about the Union as she was ending their discussion.
Once Hansen learned that the meeting was about her conversation with Moore on May
18, she was surprised because she felt the interaction was so inconsequential that she did not 5
recall much about it. In the meeting, she was told that the Respondent’s policy is “nobody is
ever to call people names” and was asked if she had ever “called management names.” She
insisted that she did not recall ever using the phrases “rat bastard” and “piece of shit” to describe
Brown and noted they are not phrasings that she normally uses, nor would use. Hansen and
Biggs-Adams were told they would be informed of the investigation’s findings at its conclusion. 10
On or about July 12, Hansen met in-person with Nevin and Wenger. Kevin Wilson
(Wilson), union president, participated telephonically as Hansen’s representative. During the
meeting, Hansen was issued a written warning for harassment and violating company policy
relating to her conversation with Moore. Attached to the letter was the company’s “Business 15
Code of Conduct Policy, Anti-Harassment Policy and the Non-Retaliations Protection Policy”
for her review.10 (Jt. Exh. 2.) Also, there is no evidence in the record of management enforcing
these policies against other employees. Hansen testified that she was also told in the meeting to
“never . . . say anything bad about managers.” (Tr. 40.)
20
It is undisputed that in her years employed with the Respondent, Hansen has never seen a
general manager involved in a disciplinary/investigative meeting similar to the ones conducted
against her. Moreover, she is unaware of any other employee who has received written discipline
for similar conduct. Hansen has heard other employees make disparaging remarks about
management but to her knowledge they were not disciplined. Likewise, Hansen has heard other 25
employees disparage management, but has never known any employee to report to management
about employees who made those remarks.
D. Credibility Determinations
30
I do not credit Moore’s testimony that (1) Hansen “accused” him of having a secret
meeting with Brown; (2) Hansen asked when he was going to sign documents to join the Union;
and (3) Hansen called Brown a “piece of shit” and “rat/rat fuck.” First, I do not credit his
testimony that Hansen pressured him to “sign those papers” and join the Union. (Tr. 86.)
Although, Moore makes the claim about Hansen pressuring him to join the Union, this allegation 35
was not in any of the Respondent’s investigatory notes documenting Moore’s description to
management of his conversation with Hansen. (GC Exh. 2; Jt. Exh. 1; R. Exh. 3.) There is no
evidence to corroborate Moore on this point or to explain the absence of his claim in the
Respondent’s investigation. Despite his claim the he felt Hansen was pressuring him to join the
Union, he admitted that he continued the conversation with her when he asked her “take” on the 40
usefulness of union membership. Likewise, Moore could not explain management’s failure to
mention this significant allegation in any of its investigative notes. Consequently, I credit
Hansen’s testimony that she did not pressure Moore to hurry and join the Union.
10 During the June 28, meeting with management, Hansen and Biggs-Adams asked for a list of the
referenced policies, which are in the employee guidebook. (Tr. 106 – 107; GC Exh. 3; Jt. 2)
JD–26–20
8
Likewise, I find that Hansen is more credible in her denial that she called Brown
derogatory names. Moore admits that he was “just covering for myself” when he reported his
discussion with Hansen because he was afraid Brown would hear about it before he had an
opportunity to give them his “side of things.” (Tr. 86.) He also testified that he had been
speaking with Nevin and trying to stay in “good” with management because he wants to get a job 5
back in the Portland station; and he knew the Union and management were locked in a battle
over negotiating a new CBA. Consequently, he would have more incentive to exaggerate and
misconstrue the remarks Hansen made to him in order to remain in management’s good favor to
ensure his desired transfer to the Portland facility. Further, Moore acknowledged that over his
career he has had contentious conversations with coworkers but, except for Hansen, he did not 10
“report all of those conversations.” Moreover, Nevin admitted that for the past 1½ to 2 years of
observing Hansen in contract negotiations, his impression of her was that of a notetaker. While
in bargaining sessions Biggs-Adams would sometimes use profanity and derogatory terms to
refer to management, Nevin acknowledged that Hansen never used that type of language. He
also agreed that despite Moore’s assertion that he was uncomfortable with the discussion with 15
Hansen, Moore “continued” the conversation with Hansen as she turned to leave by asking her
several questions. Last, there is no evidentiary value to the Respondent’s anonymous witness.
The Respondent’s failure to produce the witness for cross-examination and my inability to assess
her credibility discredits her as a witness. Equally important, the Respondent admits the witness
“didn’t hear any specifics of the conversation.” Consequently, I find Hansen more credible in 20
her denials about using derogatory terms to describe Brown.
E. Charging Party’s Request for Information
In the meeting the Respondent held with Hansen and Biggs-Adams on July 12, Wilson25
asked for the name of the anonymous witness Nevin and Wenger referenced in connection with
their investigation of Moore’s allegations against Hansen. Wilson stated the Union wanted to
conduct its own investigation but Nevin refused. The Union felt the identity of the anonymous
witness would have enabled them to get more information from her and assist the Union in
deciding whether the disciplinary action was supported by the evidence. Following the meeting, 30
Wilson told Biggs-Adams about the witness and asked her to write a letter to the Respondent
requesting the name of the anonymous witness. By letter dated July 12, Biggs-Adams sent a
letter to Wenger which reads in part:
During today’s follow-up to the disciplinary investigation by KOIN-TV of our 35
member Ellen Hansen, Local President Kevin Wilson asked for the name of the
witness to the allegedly inappropriate actions by Ms. Hansen.
On the phone, General Manager, Pat Nevin, refused to provide the name of the
witness. This email is our formal request for information of the name of the 40
witness against Ms. Hansen. The Union is entitled to understand the allegations
and to make our own independent investigation as to the facts of the incident, and
therefore requests the name of the witness.
45
JD–26–20
9
(Jt. Exh. 3.) Wenger forwarded the letter to Bush for a response. Bush wrote in part:
We contacted the witness to inquire whether they would like to voluntarily
disclose their identity and they declined, and they requested that we keep their
identity confidential if possible. Given the disruptive and harassing nature of the 5
behavior in question and the witness’ request to remain unidentified, clearly we
have a legitimate and substantial interest in preserving confidentiality that
outweighs Ms. Hansen’s desire to know the identity of the witness.
Therefore, your request that we disclose the identity of the witness to Ms. 10
Hansen’s policy-violative conduct is denied.
(Jt. Exh. 4.) In the letter, the Respondent does not offer to bargain over an accommodation for
the requested information. There is also no evidence that the Respondent has made a subsequent
offer to bargain over an accommodation to provide the requested information.15
III. Discussion and Analysis
A. Written Warning
20
The General Counsel argues that the Respondent issued Hansen a written warning in
violation of the Act because Hansen engaged in protected conduct that did not lose protection of
the Act; the evidence establishes anti-union animus was a motivating factor in the decision to
issue the written warning; the Respondent’s reason for its action is pretextual; and Hansen is
more credible than Moore. The Respondent counters that its action was based on a good-faith 25
belief that Hansen had engaged in harassing and intimidating conduct towards a coworker; and
Hansen lost protection of the Act because her conduct was abusive and threatening.
According to the General Counsel, the written warning issued to Hansen is unlawful
under three different legal theories: NLRB v. Burnup & Sims, 379 U.S. 21 (1964); Atlantic Steel, 30
245 NLRB 814 (1979); or Wright Line, 251 NLRB 1083, 1089 (1980), enfd. on other grounds
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The General Counsel argues that
under the Burnup & Sims theory, the written warning is unlawful because Hansen’s conversation
with Moore was a union and protected concerted activity; the Respondent cannot show that it
held an honest belief that Hansen engaged in serious misconduct; and assuming arguendo the 35
Respondent’s good-faith belief, the misconduct did not occur. Under the Atlantic Steel analysis,
according to the General Counsel, Hansen’s conversation with Moore was not sufficiently
egregious to lose protection of the Act; and therefore, the basis for the written warning is flawed
and unlawful. Last, the General Counsel contends that under the Wright Line standard, the
Respondent’s affirmative defense fails because it does not have comparators; and Moore was not 40
a credible witness, which makes the Respondent’s decision to issue the written warning to
Hansen unlawful.
The Respondent agrees that the alleged 8(a)(1) and (3) violations should be analyzed
under Burnup & Sims and Wright Line, respectively. However, the Respondent does not 45
mention Atlantic Steel. Under Burnup & Sims, the Respondent insists that its action was lawful
JD–26–20
10
because the evidence clearly shows it had a good-faith belief that during her discussion with
Moore, Hansen engaged in misconduct; and the General Counsel cannot sustain its burden
because Hansen lost protection of the Act. Moreover, the Respondent argues that even assuming
the General Counsel established its initial burden of proof under Wright Line, there is no
violation of the Act because the evidence shows that the Respondent did not harbor nor exhibit 5
any antiunion motivation in its decision to issue the written warning to Hansen.
1. Burnup & Sims analysis
The Board has consistently ruled that 8(a)(1) is violated if an employer takes an adverse 10
action against an employee for “misconduct arising out of a protected activity, despite the
employer’s good faith belief, when it is shown that the misconduct never occurred.” Burnup &
Sims at 23. Under the Burnup & Sims analysis, the General Counsel has the initial burden of
proving that the employee was subjected to an adverse employment action during the course of
protected activity. If the General Counsel sustains its initial burden, the employer must then 15
establish that it held a good-faith belief that the employee engaged in serious misconduct.
Serious misconduct occurs when “the employee’s activity is such that, under the circumstances
existing, it may reasonably tend to coerce or intimidate coworkers.” Aqua-Aston Hosp., LLC, 365
NLRB No. 53, JD slip op at 5 – 6 (2017), (citing Clear Pine Mouldings, 268 NLRB 1044
(1984)). After the employer shows it held a good-faith belief that the employee committed 20
serious misconduct, the burden shifts back to the General Counsel to establish, despite the
employer’s good-faith belief, the misconduct never occurred. Aqua-Aston Hosp., supra. JD slip
op. at 6 (citing numerous authorities).
I find that the General Counsel has met its initial burden. Hansen’s discussion with 25
Moore about the benefits of unionization is the classic definition of union activity. Section 7 of
the Act. It is undisputed that towards the end of the workday Hansen greeted Moore to speak
with him about the advantages of joining the Union. It is also undisputed that Moore was not a
passive participant in the conversation but rather asked Hansen to explain “what the Union
actually does for her. I was pretty curious to ask her if do (sic) you need it for protection.” (Tr. 30
96.) Moreover, the evidence is undisputed that Hansen has been very active in the Union since
at least 2005. It is also undisputed that the Respondent was aware of Hansen’s protected union
activity; and the Respondent admits that it issued Hansen a written warning solely because of the
content of her discussion with Moore.
35
The burden shifts to the Respondent to establish that it held a good-faith belief that
Hansen engaged in serious misconduct. The Respondent contends that Moore “credibly” relayed
to management that Hansen accused him of having a ‘secret” meeting and told him that his
supervisor, Brown, was a “rat” and “piece of shit.” According to the Respondent, it conducted a
thorough investigation that found Hansen made those remarks which it deemed coercive and 40
intimidating in violation of the company’s policies. Since the investigation, in its judgment,
established that Hansen’s remarks to Moore made him feel “uncomfortable” and were
disrespectful towards management, Hansen lost protection of the Act because her remarks
constituted serious misconduct. According to the Respondent, “Hansen’s offensive and vulgar
statements to Moore, in addition to being clear-cut misconduct, do not fall under the protection 45
of the Act . . . .” (R. Br. 12.) Despite my prior credibility determinations that Hansen’s denials
JD–26–20
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about making the remarks are truthful, I will, for the sake of argument, find that the Respondent
established a good-faith belief. The burden shifts back to the General Counsel to show that the
misconduct never occurred.
The General Counsel counters that the misconduct did not happen and even assuming it 5
did take place, Hansen’s action did not rise to the level of serious misconduct. The General
Counsel argues that the Respondent “merely labeling conduct as harassment, . . . does not make
it so.” (GC Br. 24.) In support of its argument, the General Counsel asserts that Moore’s shifting
version of the conversation and his desire to maintain a good relationship with Brown so as to
secure a future transfer undermines his credibility. 10
I find that Hansen did not engage in misconduct, serious or otherwise. Determining
whether Hansen made the statements attributed to her is based in large part on credibility
findings. In this instance I found that based on her demeanor and other evidence Hansen was
more credible than Moore. There is no evidence that Hansen had a history of using profane 15
language when referring to management. Likewise, there is no credible evidence that Hansen
had a reputation for using profanity towards or about management. The record lacks testimony
from Hansen’s coworkers, supervisors, or other management officials attesting to such a pattern
of behavior. Nevin acknowledged that, unlike Biggs-Adams, during the difficult and intense
bargaining sessions, Hansen never spoke, did not use profanity, nor spew vitriolic names at the 20
management team.
Even assuming Hansen made the statements attributed to her, I agree that discussions
about unionization or encouragement of union organizing are protected by the Act “even when it
annoys or disturbs the employees who are being solicited.” (GC Br. 23 citing Consolidated 25
Diesel Co., 332 NLRB 1019, 1020 (2000)); Frazier Industrial Co., 328 NLRB 717 (1999);
Automotive Plastics Technologies, 313 NLRB 462 (1993); Greenfield Die and Mfg. Corp., 327
NLRB 237 (1998) and cases there cited (footnote omitted). Hansen cannot be guilty of serious
misconduct merely for speaking to Moore about the Union, especially since Moore actively
participated in the conversation by asking her questions. Moreover, calling management two 30
derogatory names on one occasion while discussing the alleged tactics the employer uses to
discourage union membership falls far short of the standard for establishing serious misconduct
under Burnup & Sims. Id. Additional facts supporting a finding that Hansen did not engage in
serious misconduct are: (1) the conversation was held in a semi-private location at the end of the
work day; (2) the discussion was brief, lasting about 10 minutes; and (3) as Hansen ended the 35
conversation Moore restarted it by asking her multiple questions. Consequently, the evidence
simply does not support a finding that, even if true, Hansen’s statements rise to a level of serious
misconduct necessary to lose protection of the Act. Nevertheless, I will again emphasize that the
evidence establishes that the misconduct did not occur.
40
Accordingly, I find that under the Burnup & Sims analysis, the Respondent violated the
Act when it issued Hansen the written warning.

2. Wright Line analysis
45
A Wright Line analysis is not appropriate in this case because the Respondent’s motivation is not
at issue. I found that the written warning was issued because of Hansen’s union activity. Phoenix Transit
JD–26–20
12
System, 337 NLRB 510, 510 (2002), enfd. 63 Fed. Appx. 524 (D.C. Cir. 2003) (Wright Line analysis is
not applicable when there is no dispute that the employer acted against the employee because the
employee engaged in protected concerted activity).
Assuming arguendo Wright Line is an appropriate analysis, I find that the General 5
Counsel has established its initial burden. It is undisputed that Hansen engaged in concerted
protected activity. She is on the Union’s executive board and participates in the negotiating
sessions for a new CBA. Moreover, Hansen has been an active and open union supporter since
about 2005 or 2006. More importantly, I previously found that her conversation with Moore
about the benefits of joining a union is quintessential protected union activity. Second, the 10
evidence is clear that the Respondent was aware of Hansen’s protected union activity in that
Moore told management about his conversation with Hansen, management was aware of her
prior discussions with employees about the benefits of union membership, and she participated in
the bargaining sessions with all of the management officials involved in the complaint at issue.
Last, the letter of warning clearly shows that it was issued because of Hansen’s conversation 15
with Moore.
I find that the Respondent has failed to sustain its burden. First, I do not find, as
previously explained, Moore’s version of the incident more credible than Hansen’s testimony of
the encounter. Moreover, there is no comparative or other substantive evidence showing that the 20
issuance of the written warning was not a deviation from past practices. See also Tr. 126 – 127.
The plain language of the written warning is clear Hansen was disciplined for exercising her § 7
rights. Further, throughout the decision, I have rejected the Respondent’s argument that
Hansen’s statements to Moore were serious, egregious or constituted harassment. Last, even
assuming there is no suspicious timing between the conversation and the written warning, there 25
is sufficient evidence, as discussed, to support a finding that the Respondent has failed to sustain
its burden of production.
Accordingly, assuming for the sake of argument that this case is properly analyzed under
Wright Line, I find that the Respondent violated the Act when it issued Hansen the written 30
warning.
3. Atlantic Steel analysis
In Atlantic Steel, the Board established several factors that must be considered in 35
determining whether an employee who is engaged in concerted protected/union activity loses
protection of the Act because of serious misconduct. The factors to consider are: (1) the place of
the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst;
and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.
Atlantic Steel at 816. In NLRB v. Washington Aluminum Co.,11 the court held “concerted activity 40
may be found unprotected when it involves conduct that is unlawful, violent, or otherwise
“indefensible.” Significantly, whether employees have lost the protection of the Act does not
depend on the employer’s “subjective perception” of their behavior. “Rather, the question is an
objective one; i.e. whether the alleged misconduct is so serious that it deprives the employees of
11 370 U.S. 9, 17 (1962).
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13
the protection the Act normally gives for engaging in concerted activity.” Kiewit Power
Constructors Co., 355 NLRB 708, 711 (2010), enfd., 652 F.3d 22 (D.C. Cir. 2011).
The General Counsel contends that Hansen’s action did not lose protection of the Act
under Atlantic Steel because her action did not (1) disrupt the Respondent’s operation; (2) the5
conversation Hansen held with Moore “goes to the very heart of § 7 and Union activity;” and (3)
Hansen’s statements to Moore were not sufficiently egregious to lose protection of the Act.
The record is absolutely devoid of evidence that Hansen’s conversation with Moore
disrupted the Respondent’s operation. Even assuming she characterized Brown as a “rat,” “rat 10
fuck” and “piece of shit”, nothing in the record shows that the Respondent’s operation was
severely or even moderately or minimally affected by it. There is no credible evidence that
anyone heard the conversation. Even if I were to consider the anonymous witness’ statement,
she acknowledged that she could not hear anything “specific.” Also, the evidence failed to show,
and Moore did not complain, that Hansen’s remarks interfered with him or any other employee 15
completing their work assignments. Second, the evidence is clear that Hansen’s discussion with
Moore about the benefits of joining a union goes to “the very heart of § 7 and Union activity.”
The Respondent’s argument notwithstanding, earlier in this decision I found that the evidence
establishes Hansen did not use the derogatory terms attributed to her and even assuming that she
used those terms, it was not a “sufficiently egregious” outburst. Burle Industries, 300 NLRB 498, 20
500, 504 (1990), enfd., 932 F.2d 958 (3d Cir. 1991) (employee called supervisor a “fucking
asshole” without losing protection of the Act); United States Postal Service, 250 NLRB 4 (1980)
(employee did not lose protection of the Act when calling supervisor a “stupid ass”).
Consequently, the fourth factor to consider under Atlantic Steel, whether Hansen’s outburst was
provoked by Respondent’s unlawful activity, is inapplicable. In KHRG Employer, LLC d/b/a 25
Hotel Burnham & Atwood Cafe, 366 NLRB No. 22, 2 (2018), the Board wrote “[w]hen, . . ., an
employer defends a discharge based on employee misconduct that is a part of the res gestae of
the employee’s protected concerted activity, the employer’s motive is not at issue. Instead, such
discharges are considered unlawful unless the misconduct at issue was so egregious as to lose the
protection of the Act. See, e.g., Consumers Power Co., 282 NLRB 130, 132 (1986) (‘[W]hen an 30
employee is discharged for conduct that is part of the res gestae of protected concerted activities,
the relevant question is whether the conduct is so egregious as to take it outside the protection of
the Act . . .’) (footnote omitted). The Board balances employees’ right to engage in concerted
activity, allowing some leeway for impulsive behavior, against employers’ right to maintain
order and respect. Piper Realty Co., 313 NLRB 1289, 1290 (1994); NLRB v. Thor Power Tool 35
Co., 351 F.2d 584, 587 (7th Cir. 1965), enfg. 148 NLRB 1379 (1964).” Id.
Accordingly, I find that under Burnup & Sims, Wright Line, and Atlantic Steel, the
Respondent violated § 8(a)(1) and (3) of the Act when it issued Hansen a written warning.
40
B. Request for Information
In view of my findings above ruling on the merits of this issue is unnecessary.
Nevertheless, I will analyze it for the sake of appeal. Section 8(a) (5) of the Act mandates that
an employer must provide a union with relevant information that is necessary for the proper 45
performance of its duties as the exclusive bargaining representative. NLRB v. Truitt Mfg. Co. 351
JD–26–20
14
U.S. 149, 153 (1956); Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979). “[T]he duty to
bargain unquestionably extends beyond the period of contract negotiations and applies to labor-
management relations during the term of an agreement.” NLRB v. Acme Industrial Co., 385 U.S.
432, 436 (1967). Information requests regarding bargaining unit employees’ terms and 5
conditions of employment are “presumptively relevant” and must be provided. Whitesell Corp.,
352 NLRB 1196, 1197 (2008), adopted by a three-member Board, 355 NLRB 649 (2010), enfd.
638 F.3d 883 (8th Cir. 2011); Southern California Gas Co., 344 NLRB 231, 235 (2005). If the
requested information is not directly related to the bargaining unit, the information is not
presumptively relevant, and the requesting party has the burden of establishing the relevance of 10
the requested material. Disneyland Park, 350 NLRB 1256, 1257 (2007); The Earthgrains Co.,
349 NLRB 389 (2007).
The standard for establishing relevancy is the liberal, “discovery-type standard.” Alcan
Rolled Products, 358 NLRB 37, 40 (2012), citing and quoting applicable authorities; Shoppers 15
Food Warehouse, Corp., 315 NLRB 258, 259 (1994); Bacardi Corp., 296 NLRB 1220 (1989).
In Leland Stanford Junior University, 307 NLRB 75, 80 (1992), the Board summarized its
application of the principles as:
[T]he Board has long held that Section 8(a)(5) of the Act obligates an employer to 20
furnish requested information which is potentially relevant to the processing of
grievances. An actual grievance need not be pending nor must the requested information
clearly dispose of the grievance. It is sufficient if the requested information is potentially
relevant to a determination as to the merits of a grievance or an evaluation as to whether a
grievance should be pursued. United Technologies Corp., 274 NLRB 504 (1985); TRW, 25
Inc., 202 NLRB 729, 731.
The requested information does not have to be dispositive of the issue for which it is sought, but
only has to have some relation to it. Pennsylvania Power & Light Co., 301 NLRB 1104, 1104–
1105 (1991). Moreover, the Board does not assess the merits of the underlying dispute to30
determine the relevancy of the request for information. Postal Services, 332 NLRB 635 (2000).
The Board has also held that a union may make a request for information in writing or orally.
Further, the Board has found that a delay is unreasonable when the information requested is
easily and readily accessible from an employer’s files. Bundy Corp., 292 NLRB 671, 672
(1989). 35
Once a union has demonstrated the relevancy of the request for information, the burden
shifts to the employer to establish that the information is not relevant, does not exist, or some
other valid and acceptable reason could not be furnished. Samaritan Medical Center, 319 NLRB,
392, 398 (1995), citing Somerville Mills, 308 NLRB 425 (1992), and Postal Service, 276 NLRB 40
1282 (1985).
45
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15
The General Counsel asserts that I should use the “missing witness rule” 12 and draw an
adverse inference that “the witness’ testimony would not have corroborated Respondent’s
version of events.” (GC Br. 36.) The “missing witness rule” provides:
Where relevant evidence which would properly be part of a case is within the 5
control of the party whose interest it would normally be to provide it, and he fails
to do so without satisfactory explanation, the [trier of fact] may draw an inference
that such evidence would have been unfavorable to him.
29 Am. Jur. §178. The Respondent counters that it did not produce the name of the anonymous 10
witness to the Union because it was confidential information; and under Michigan Bell
Telephone Co.13 it was not obligated to turn over the information. Although not explicitly stated
by the Respondent, it is implied that these are the same reasons for its failure to call the
anonymous witness to testify. Since the arguments for finding an adverse inference and finding
the Respondent in violation of the Act for failing to respond to the RFI are intertwined, I will 15
address both as one.
1. Relevancy
Based on the evidence, I find that the General Counsel has sustained its initial burden.20
The General Counsel argues that the RFI is necessary and relevant for the Union to fulfill its role
as the exclusive representative of bargaining unit employees. Biggs-Adams gave credible
testimony that acquiring the name of the anonymous witness would assist the Union in
determining whether the disciplinary action against Hansen was warranted. Likewise, in her
letter to the Respondent dated July 12, Biggs-Adams made clear that the Union needed the 25
information “to make our own independent investigation as to the facts of the incident . . . .” (Jt.
Exh. 3.) The Respondent does not dispute that the RFI is relevant and it did not provide the
requested information. Also, the witness’ name is relevant because the Respondent did not fulfill
its legal obligation and engage in accommodative bargaining so there was no other way for the
Union to get the information except to solely rely on the word of the Respondent, which places 30
the Charging Party at a severe disadvantage in representing Hansen.
Analyzing the relevancy of the information under the liberal “discovery-type standard”, I
find that the RFI meets the standard. Therefore, the burden shifts to the Respondent to establish
that the information is not relevant, does not exist, or for some other valid and acceptable reason 35
could not be furnished.
2. Confidentiality defense
The Respondent insists that it could not provide the witness’ name because: (1) the 40
witness wanted to remain anonymous because she worked closely with Hansen and pursuant to
the employee handbook her anonymity is assured as part of the investigative process; and (2)
Michigan Bell supports its argument that the Charging Party Union was not entitled to the
witness’ identity. (GC Exh. 3.) The General Counsel counters that: (1) Michigan Bell is
12 29 Am. Jur. §178.
13 367 NLRB No. 74 (January 24, 2019).
JD–26–20
16
distinguishable and the Respondent failed to offer sufficient justification in support of its
confidentiality defense; and (2) the Respondent did not meet its “affirmative obligation” to
devise a reasonable method to accommodate the Union’s request.
It is well settled law that the party asserting confidentiality has the burden of proof. 5
Postal Service, 356 NLRB 483 (2011); Detroit Newspaper Agency, 317 NLRB 1071 (1995);
Northern Indiana Public Service Co., 347 NLRB, 211 (2006). Even if the Respondent meets its
burden, it cannot simply refuse to furnish the information, but rather must engage in
accommodative bargaining with the Union to seek a resolution that meets the needs of both
parties. In Alcan Rolled Products, the Board explained:10
Confidential information is limited to a few general categories that would reveal, contrary
to promises or reasonable expectations, highly personal information. Detroit Newspaper
Agency, 317 NLRB 1071, 1073 (1995). Such confidential information may include
“individual medical records or psychological test results; that which would reveal 15
substantial proprietary information, such as trade secrets; that which could reasonably be
expected to lead to harassment or retaliation, such as the identity of witnesses; and that
which is traditionally privileged, such as memoranda prepared for pending lawsuits.” Id.
Additionally, the party asserting the confidentiality defense may not simply refuse to
furnish the requested information but must raise its confidentiality concerns in a timely 20
manner and seek an accommodation from the other party. Id. at 41.
The disclosure of the information must be balanced against the confidentiality and
privacy interests raised by Respondent. Detroit Edison Co., supra.
25
The Respondent’s argument that the witness should remain anonymous because she
works closely with Hansen and the employee handbook assures her anonymity is insufficient
without some credible evidence of witness intimidation, coercion or other threats to the witness’
safety. There is no evidence nor allegations that Hansen has threatened, intimidated, been
verbally or physically violent against the witness or any other employee. Even Moore describes 30
his interaction with Hansen as merely “uncomfortable” which is far short of accusing her of
being violent, intimidating or threatening. Moreover, there is no evidence that Hansen’s
interaction with Moore significantly, if at all, interfered with him completing his work. Last, the
Respondent cites no Board or case law to support its argument on this point.
35
The Respondent argues that in considering whether it is required to reveal the identity of
the witness, I should be guided by the Board’s decision in Michigan Bell. In Michigan Bell, a
sizeable group of unit employees refused to work overtime in response to management enacting
mandatory overtime despite their longstanding objections. In the midst of negotiating a
settlement with the union over the action, which included discipline of the unit members 40
involved, management announced a new mandatory overtime policy. Consequently, about 40 of
the unit employees attended a general union meeting where at least 1 of the members proposed
another work action to protest the new overtime policy. There was an informant in the meeting
who tipped off management to the possible action. As a result of the informant’s information,
management questioned several unit employees suspected of agitating for the job action. The 45
union later learned that the employer questioned the employees based on the informant’s tip, so it
JD–26–20
17
requested from the employer the name of the informant, a summary of the informant
information, and the distribution list. The employer refused all the requests and ultimately
suspended 5 of the unit employees. The Board concluded that the employer violated the Act by
refusing to provide the union with a summary of the informant information because it was
relevant to what the employer knew about the potential job action. However, the Board held that 5
the employer did not violate the Act by withholding the name of the informant because, based on
the specific facts of the case, the union did not need the name of the informant to help it
understand whether the employer’s actions were consistent with the CBA.
The case at issue, however, is distinguishable from Michigan Bell. In Michigan Bell, the 10
employer did not believe the unit employees engaged in protected concerted activity; and
therefore, refused to provide the informant’s name because it did not believe the information was
relevant. There is no dispute that Hansen engaged in union protected activity, which I have
found did not lose protection of the Act. In Michigan Bell, there was evidence of union
animosity towards the informant. There is no such evidence in this case. Moreover, the witness’ 15
identity in this case has a direct correlation to the Union’s ability to conduct an independent
investigation into her statements by judging her credibility and probe for inconsistencies in her
retelling of events. The dispute in Michigan Bell involved whether the employer was complying
with a provision of the CBA. According to the Board, the union’s ability to evaluate and
prosecute the grievance did not depend primarily on the credibility of the informant. However, 20
in this matter the case is primarily a “he said, she said” and the only allegedly “corroborating
evidence” is from an anonymous witness. Here the anonymous witness was the only evidence
the Respondent presented to corroborate Moore’s claim that he wanted to get away from
Hansen’s “rants” about management. Consequently, assessing the credibility of the witness is of
heightened importance. 25
Even assuming Respondent sustained its confidentiality defense, it was still obligated to
engage in accommodative bargaining with the Union, but the evidence shows it failed to meet its
duty on this point. There is no evidence that Respondent made any attempts at engaging the
Union in accommodative bargaining. Despite the Respondent’s assertion to the contrary, the 30
initial burden lies with the Respondent.14 Detroit Newspaper Agency, supra at 1072; Northern
Indiana Public Service Co., supra at 211; Pennsylvania Power & Light Co., supra at 1105.
Accordingly, I find that Respondent’s failure to provide the information requested
violated Section 8(a)(1) and (5) of the Act.35
Conclusions of Law
1. The Respondent, Nexstar Broadcasting, Inc. d/b/a KOIN-TV, is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of the Act, operating a television40
station in Portland, Oregon.
2. The Charging Party, National Association of Broadcast Employees & Technicians, the
Broadcasting and Cable Television Workers Sector of the Communications Workers of America,
Local 51, AFL-CIO is, and, at all material times, has been the exclusive bargaining 45
14 Tr. 20.
JD–26–20
18
representative for the following appropriate units:
All regular full-time and regular part-time engineers and production employees,
but excluding chief engineer, office clericals, professionals, guards, and
supervisors as defined in the Act, and all other employees of KOIN-TV.5
All regular full-time and regular part-time news, creative services employees, and
web producers, but excluding news producers, IT employees, on-air talent (aka
“performer”), office clericals, professionals, guards, and supervisors as defined in
the Act, and all other employees of KOIN-TV.10
3. By its failure and refusal to provide the necessary and relevant information requested
by the Charging Party on or about July 12, 2018, the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act.
15
4. By issuing a written warning to Ellen Hansen on or about July 12, 2018, the
Respondent has been interfering with, restraining, and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act and discriminating in regard to terms or conditions of
employment, thus discouraging union activity in violation of Section 8(a)(1) and (3) of the Act.
20
5. The above unfair labor practices affect commerce within the meaning of Section 2(6)
and (7) of the Act.
6. The Respondent has not violated the Act except as set forth above.
25
Remedy
The Respondent will be ordered to cease and desist from failing and refusing to bargain
collectively with the Charging Party by refusing to provide the requested information.
30
Moreover, the Respondent will be ordered to furnish the Charging Party with the
information requested as specified in paragraphs 7(a) and (b) of the complaint.
The Respondent will be ordered to rescind the written warning dated July 12, 2018, from
Ellen Hansen’s personnel file and any other files containing a copy of or reference to the written 35
warning; and cease and desist from issuing disciplinary action to employees for exercising their
Section 7 rights under the Act.
The Respondent will also be ordered to post and communicate by electronic post to
employees the attached Appendix and notice.40
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended15
15 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–26–20
19
ORDER
The Respondent, Nexstar Broadcasting, Inc. d/b/a KOIN-TV, and its officers, agents,
successors, and assigns, shall5
1. Cease and desist from
(a) Refusing to bargain collectively with the Charging Party, National Association of
Broadcast Employees & Technicians, the Broadcasting and Cable Television Workers Sector of 10
the Communications Workers of America, Local 51, AFL-CIO by failing and refusing to provide
the Charging Party with information requested that is necessary and relevant for its ability to
perform its duties as the exclusive collective-bargaining representative of the units.
(b) Disciplining or otherwise discriminating against employees because they have 15
conversations with coworkers about the Union or engage in protected, concerted activities.
2. Take the following affirmative action necessary to effectuate the purposes and policies
of the Act.
20
(a) Within 14 days from the date of the Board’s Order, furnish the Charging Party with
the information, as specified in the complaint, it has requested since on or about July 12, 2018.
(b) Within 14 days from the date of the Board’s Order, the Respondent must remove
from its files (both official and unofficial) all references to the discipline issued to Ellen Hansen 25
relating to the events in about May 2018; and within 3 days thereafter, notify her in writing that
this has been done and that the written warning will not be used against her in any way.
(c) Within 14 days after service by the Region, post at its facility in the Portland, Oregon
metropolitan area copies of the attached notice marked “Appendix.”16 Copies of the notice, on 30
forms provided by the Regional Director for Region 19, 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 and members are
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other 35
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. 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 40
all current employees and former employees employed by the Respondent at any time since July
12, 2018.
16 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–26–20
20
(d) 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.
5
Dated: Washington, D.C. June 3, 2020
____________________________
Christine E. Dibble (CED)10
Administrative Law Judge
0)Lik,c;;,0(
JD–26–20
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.17
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 fail and refuse to provide National Association of Broadcast Employees &
Technicians, the Broadcasting and Cable Television Workers Sector of the Communications
Workers of America, Local 51, AFL-CIO with requested information that is relevant and necessary
to the processing of grievances filed by the Union.
WE WILL NOT discipline you for engaging in conversations with coworkers about the Union.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of your rights
under Section 7 of the Act.
WE WILL, to the extent we have not already done so, provide the Union with the information it
requested as set forth in paragraphs 7(a) and (b) of the complaint.
WE WILL rescind the unlawful written warning issued to Ellen Hansen on or about July 12, 2018.
17 If the facility involved in these proceedings is open and staffed by a substantial complement of
employees, the notices must be posted within 14 days after service by the Region. If the facility involved
in these proceedings is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices
must be posted within 14 day after the facility reopens and a substantial complement of employees have
returned to work. Any delay in the physical posting of paper notices also applies to the electronic
distribution of the notice if the Respondent customarily communicates with its employees by electronic
means. 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–26–20
WE WILL remove from our files all reference to the written warning issued to Ellen Hansen on or
about July 12, 2018, and WE WILL notify her in writing that this has been done and that the written
warning will not be used against her in any way.
NEXSTAR BROADCASTING, INC. d/b/a KOIN-TV
(Labor Organization)
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.
National Labor Relations Board, Subregion 36
1220 SW 3rd Ave., Suite 605
Portland, Oregon 97204
Telephone: (503) 326-3085
Fax: (503) 326-5387
Hours of Operation: 8:00 a.m. to 4:30 p.m. PT
Hearing impaired callers should contact the Federal Relay Service by visiting its website at
www.federalrelay.us/tty
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/19-CA-232897 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, SE, 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, (312) 353-7570.