This National Labor Relations Board (NLRB) decision addresses a refusal-to-bargain case brought by the National Association of Broadcast Employees & Technicians – Communications Workers of America, AFL–CIO (the Union) against Nexstar Media Group, Inc. (the Respondent), for its station KDVR-TV/KWGN-TV. The General Counsel issued a complaint alleging that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to recognize and bargain with the Union after its certification.
The Respondent admitted to refusing to bargain but contested the validity of the Union's certification. It argued that its objections to the election in the underlying representation proceeding were improperly overruled and that a hearing was warranted. Additionally, the Respondent contended that the bargaining unit inappropriately included statutory supervisors and excluded certain employees.
The NLRB, in its Decision and Order, adopted the General Counsel's Motion for Summary Judgment. The Board reasoned that all representation issues raised by the Respondent were, or could have been, litigated in the prior representation proceeding. Since the Respondent failed to present any newly discovered evidence or demonstrate special circumstances requiring the Board to reexamine its previous decision, the Board concluded that no new hearing was necessary in this unfair labor practice proceeding. The Board cited Pittsburgh Plate Glass Co. v. NLRB for the principle that issues litigated in a representation case cannot be relitigated in a subsequent unfair labor practice proceeding.
The Board found that the Respondent is an employer engaged in commerce within the meaning of the Act, and the Union is a labor organization. The record indicated that following an election on April 11, 2024, the Regional Director certified the Union as the exclusive bargaining representative for a defined unit of employees. The Board had denied the Respondent's request for review of this certification. The Respondent's refusal to bargain commenced around May 19, 2024, after the Union requested bargaining dates.
The Board concluded that the Respondent's refusal to recognize and bargain with the certified Union constituted an unlawful violation of Section 8(a)(5) and (1) of the Act. Consequently, the Board ordered the Respondent to cease and desist from these unfair labor practices and to bargain with the Union upon request. The order also stipulated that the initial certification period would commence when the Respondent begins bargaining in good faith, referencing established Board precedent like Mar-Jac Poultry Co..
The Respondent also raised several affirmative defenses, including constitutional challenges to the tenure of Board members and administrative law judges, asserting they were improperly insulated from presidential removal. The Board found these claims to be without merit, citing Supreme Court precedent in Humphrey's Executor v. United States regarding the constitutionality of statutory restrictions on removal powers. The Board also rejected the argument for a jury trial under the Seventh Amendment, citing NLRB v. Jones & Laughlin Steel Corp..
The General Counsel requested a make-whole remedy for the employees' lost bargaining opportunity. However, the Board decided to sever this issue for future consideration to expedite the current decision, referencing its decisions in Longmont United Hospital and Kentucky River Medical Center. A supplemental decision regarding the make-whole remedy will be issued at a later date.
The final order mandates that Nexstar Media Group, Inc. cease refusing to bargain, interfere with employee rights, and instead, on request, bargain with the Union for the specified unit. The Respondent is also required to post a notice to employees detailing their rights under the Act and the Board's order.
Significant Cases Cited
- Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146 (1941): This case established that issues fully litigated and resolved in a representation proceeding cannot be relitigated in a subsequent unfair labor practice proceeding.
- Humphrey's Executor v. United States, 295 U.S. 602 (1935): This Supreme Court case upheld the constitutionality of federal statutes that limit the President's power to remove certain officials, such as those serving on independent agencies.
- NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937): This landmark Supreme Court case affirmed the constitutionality of the National Labor Relations Act and rejected arguments that it violated the Seventh Amendment right to a jury trial.
- Mar-Jac Poultry Co., 136 NLRB 785 (1962): This case established the precedent for commencing the initial certification year when a respondent employer begins to bargain in good faith with a newly certified union.
- Ex-Cell-O Corp., 185 NLRB 107 (1970): This case addressed the Board's authority to order a make-whole remedy for employees due to an employer's unlawful refusal to bargain; the Board in the current decision is severing this issue for future consideration.
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