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

National Labor Relations Board - Board Decisions

Oct 30, 2015

363 NLRB No. 32 (N.L.R.B. 2015)

363 NLRB No. 32
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Nexstar Broadcasting Group, Inc., d/b/a WETM-TV
and International Alliance of Theatrical Stage
Employees and Moving Picture Technicians,
Artists and Allied Crafts of the United States, its
Territories and Canada, AFL–CIO. Case 03–
CA–125618
October 30, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On January 15, 2015, Administrative Law Judge Ste-
ven Davis issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel and the Charging Party filed answering briefs,
and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified and set
forth in full below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In affirming the judge’s findings, we do not rely on his citation to
Walt Disney World Co., 359 NLRB No. 73, slip op. at 4 (2013), a case
decided when the Board lacked a quorum.
2 In adopting the judge’s finding that the Respondent unlawfully
removed the positions of assignment editor and chief videographer
from the unit, Member Miscimarra notes that an agreed-upon modifica-
tion of the scope of the unit could lawfully result in the exclusion of
certain positions from the unit. For the reasons stated by the judge,
however, he finds that there was no such agreement here.
3 We amend the judge’s remedy in two respects. First, we amend
the remedy to provide that backpay shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), rather than with F. W. Woolworth Co., 90 NLRB
289 (1950), because there was no cessation of employment. See, e.g.,
Pepsi-America, Inc., 339 NLRB 986, 986 fn. 2 (2003). Second, we
amend the judge’s dues-reimbursement remedy to delete the require-
ment that dues amounts be computed in accordance with Ogle Protec-
tion Service, supra, and to add that interest on such amounts as pre-
scribed in New Horizons, 283 NLRB 1173 (1987), must also be com-
pounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010). The Respondent may offset from its dues liability
any dues payments the Union actually received from John Doland and
George Kastenhuber, but the Respondent may not recoup from those
ORDER
The National Labor Relations Board orders that the
Respondent, Nexstar Broadcasting Group, Inc., d/b/a
WETM-TV, Elmira, New York, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Unilaterally removing the positions of assignment
editor and chief videographer from the following collec-
tive-bargaining unit:
All regular full and part-time employees of the Station
engaged in television broadcasting and web streaming
at its television station WETM in Elmira, N.Y. and said
station’s facilities, including only master control opera-
tors, videographers, creative services produc-
er/directors, anchors, reporters, newscast directors, pro-
duction assistants and not any supervisor or managerial
roles.
(b) Unilaterally removing the bargaining unit work of
the assignment editor and chief videographer without
prior notice to the Union and without affording the Un-
ion an opportunity to bargain with the Respondent with
respect to this conduct.
(c) Failing and refusing to recognize the Union as the
exclusive collective-bargaining representative of em-
ployees occupying the positions of assignment editor and
chief videographer, and failing to apply the terms of the
existing collective-bargaining agreement to such em-
ployees.

employees dues amounts it pays to the Union. See Alamo Rent-A-Car,
362 NLRB No. 135, slip op. at 1 fn. 1 (2015). Member Miscimarra
would permit the Respondent to recoup from Doland and Kastenhuber
any dues amounts it pays to the Union. In his view, the majority’s
recoupment bar is punitive and therefore exceeds the Board’s remedial
powers under Sec. 10(c) of the Act. See Alamo Rent-A-Car, 362
NLRB No. 135, slip op. at 7–8 and fn. 15 (Member Miscimarra, con-
curring in part and dissenting in part).
We shall also modify the judge’s recommended Order in three re-
spects. First, we shall insert par. 1(c) requiring the Respondent to cease
failing and refusing to recognize the Union as the collective-bargaining
representative of the employees occupying the positions of assignment
editor and chief videographer. Second, we shall delete the portion of
par. 2(c) requiring the Respondent to bargain with the Union regarding
wages, hours, and other terms and conditions of employment of em-
ployees occupying the positions of assignment editor and chief videog-
rapher. That provision conflicts with par. 2(d), which requires the
Respondent to apply the terms of the existing collective-bargaining
agreement to employees occupying those two positions. Lastly, we
shall modify the judge’s recommended Order to reflect the Board’s
standard language for the tax compensation and Social Security Admin-
istration reporting remedies under Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10 (2014). We shall substitute a new
notice to conform to the modified Order.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its March 26, 2014 removal of the unit po-
sitions of assignment editor and chief videographer and
its consequent removal of the bargaining unit work of
those two positions outside the collective-bargaining
unit.
(b) Reinstate John Doland and George Kastenhuber to
the bargaining unit represented by the Union.
(c) Recognize the Union as the exclusive collective-
bargaining representative of the employees occupying
the positions of assignment editor and chief videogra-
pher.
(d) Apply the terms of the collective-bargaining
agreement, effective February 26, 2014, through Febru-
ary 25, 2017, between the Union and the Respondent to
employees occupying the assignment editor and chief
videographer positions. However, nothing herein shall
be construed to authorize or require the withdrawal or
elimination of any wage increase or other improved ben-
efits and terms or conditions of employment that may
have been afforded the assignment editor and chief vide-
ographer, as compared to the wages, benefits, and terms
or conditions of employment of bargaining unit employ-
ees.
(e) Make John Doland and George Kastenhuber whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of the judge’s decision, as
modified above.
(f) Compensate John Doland and George Kastenhuber
for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and file a report with the So-
cial Security Administration allocating the backpay
award to the appropriate calendar quarters.
(g) Remit all contributions it would have made on the
employees’ behalf to employee retirement, 401(k),
and/or health care funds absent its unlawful unilateral
changes, and reimburse John Doland and George
Kastenhuber for any expenses they may have incurred as
a result of its failure to make such benefit fund contribu-
tions, in the manner set forth in the remedy section of the
judge’s decision, as modified above.
(h) Reimburse International Alliance of Theatrical
Stage Employees and Moving Picture Technicians, Artist
and Allied Crafts of the United States, its Territories, and
Canada, AFL–CIO, for any dues that it would have de-
ducted from Doland and Kastenhuber and remitted to the
Union under the collective-bargaining agreement absent
its unlawful unilateral changes, as set forth in the remedy
section of the judge’s decision, as modified above.
(i) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(j) Within 14 days after service by the Region, post at
its facility in Elmira, New York, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily 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 electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since March 26, 2014.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. October 30, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member

4 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WETM-TV 3
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unilaterally remove the positions of as-
signment editor and chief videographer from the follow-
ing collective-bargaining unit:
All regular full and part-time employees of the Station
engaged in television broadcasting and web streaming
at its television station WETM in Elmira, N.Y. and said
station’s facilities, including only master control opera-
tors, videographers, creative services produc-
er/directors, anchors, reporters, newscast directors, pro-
duction assistants and not any supervisor or managerial
roles.
WE WILL NOT unilaterally remove the bargaining-unit
work of the assignment editor and chief videographer
without prior notice to International Alliance of Theatri-
cal Stage Employees and Moving Picture Technicians,
Artists and Allied Crafts of the United States, its Territo-
ries and Canada, AFL–CIO (the Union), and without
affording the Union an opportunity to bargain with re-
spect to this conduct.
WE WILL NOT fail and refuse to recognize the Union as
the exclusive collective-bargaining representative of our
employees holding assignment editor and chief videog-
rapher positions, and WE WILL NOT fail and refuse to ap-
ply the terms of the existing collective-bargaining
agreement to those employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our March 26, 2014 removal of the
unit positions of assignment editor and chief videogra-
pher and our removal of the bargaining-unit work of
those two positions from the unit.
WE WILL reinstate John Doland and George
Kastenhuber to the bargaining unit represented by the
Union.
WE WILL recognize the Union as the exclusive collec-
tive-bargaining representative of the employees occupy-
ing the assignment editor and chief videographer posi-
tions.
WE WILL apply the terms of the collective-bargaining
agreement, effective February 26, 2014, through Febru-
ary 25, 2017, between the Union and us to employees
occupying the assignment editor and chief videographer
positions. However, nothing herein shall be construed to
authorize or require the withdrawal or elimination of any
wage increase or other improved benefits or terms or
conditions of employment that may have been afforded
the assignment editor and chief videographer.
WE WILL make John Doland and George Kastenhuber
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against them, with inter-
est.
WE WILL compensate John Doland and George
Kastenhuber for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and WE WILL file a
report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters.
WE WILL remit all contributions we would have made
on the employees’ behalf to employee retirement, 401(k),
and/or health care funds absent our unlawful unilateral
changes, and WE WILL reimburse John Doland and
George Kastenhuber for any expenses they may have
incurred as a result of our failure to make such benefit
fund contributions.
WE WILL reimburse the Union for any dues we would
have deducted from John Doland’s and George
Kastenhuber’s wages and remitted to the Union under the
collective-bargaining agreement absent our unlawful
unilateral changes.
NEXSTAR BROADCASTING GROUP, INC. D/B/A
WETM-TV
The Board’s decision can be found at
www.nlrb.gov/case/03-CA-125618 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Relations Board, 1015 Half Street, S.E., Washington,
D.C., or by calling (202) 273–1940.
Claire T. Sellers, Esq., for the General Counsel.
Charles W. Pautsch, Esq. (Pautsch, Spognardi & Baiocchi
Legal Group, LLP), of Buffalo, New York, for the Re-
spondent.
Samantha Dulaney, Esq., of New York, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on April 1, 2014,1 by the International Alliance of
Theatrical Stage Employees and Moving Picture Technicians,
Artists and Allied Crafts of the United States, its Territories and
Canada (Union), a complaint was issued against Nexstar
Broadcasting Group, Inc. d/b/a WETM-TV (Respondent or
Employer) on July 22.
The complaint alleges that on March 26, the Respondent uni-
laterally removed the positions of Assignment Editor and Chief
Videographer from the collective-bargaining unit without the
Union’s consent. The complaint also alleges that the Respond-
ent unilaterally removed the bargaining unit work of those posi-
tions from the unit without prior notice to the Union and with-
out affording it an opportunity to bargain with it regarding such
conduct. The remedy sought includes requiring the Respondent
to restore the positions and job duties of assignment editor and
chief videographer to the unit as they existed prior to March 26.
The Respondent’s answer denied the material allegations of
the complaint and asserted that the (a) complaint is barred by
Section 10(b) of the Act (b) remedy sought is not authorized by
the Act as it would force it to agree to and implement a term in
a collective-bargaining agreement that it did not agree to and
(c) assignment editor and chief videographer are statutory su-
pervisors and cannot be included in the unit.
On October 6 and 7, a hearing was held before me in Horse-
heads, New York. On the entire record, including my observa-
tion of the demeanor of the witnesses, and after considering the
briefs filed by all parties, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a corporation having an office and place of
business in Elmira, New York, has been engaged in the opera-

1 All dates hereafter are in 2014 unless otherwise stated.
tion of a television station. Annually, the Respondent derives
gross revenues in excess of $100,000 and purchases and re-
ceives at its Elmira, New York facility, goods valued in excess
of $5000 directly from points outside New York State. The
Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
The Respondent also admits and I find that the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Television station WETM-TV was purchased by Smith Tel-
evision in 1986. Ten years later, in January 1996, the Union’s
predecessor was certified as the exclusive collective-bargaining
representative of Smith Television’s employees in the follow-
ing unit:
Included: All full-time and part-time assignment editors, pro-
motions manager, directors, anchors, reporters, producers,
videographers, photographers, maintenance engineers, audio
technicians, assistant chief engineers, master control opera-
tors, traffic persons, production coordinators, and office staff
employed by the employer at its WETM-TV station in Elmi-
ra, New York.
Excluded: All other employees, including sales persons, gen-
eral managers, account executives, news directors, business
managers, program directors, chief engineers, confidential
employees, and all other managers and supervisors and guards
as defined in the Act.
In 2005, the station was purchased by Clear Channel Com-
munications. It was then acquired by Newport Television in
2008. In December 2012, it was purchased by the Respondent.
Newport had a collective-bargaining agreement with the Un-
ion which ran from March 2010 to March 19, 2013. The Re-
spondent assumed that contract upon its purchase of the facili-
ty, and operated under that agreement until its expiration in
March 2013.
That contract’s “Recognition—Scope of Jurisdiction” clause
is as follows:
The Station recognizes the Union as the exclusive bargaining
representative of all regular full and part-time employees of
the Station engaged in television broadcasting and web
streaming at its television station WETM in Elmira, N.Y. and
said station’s facilities, excluding all sales managers, general
managers, account executives, department heads, including
managing editor, production manager, traffic manager, pro-
motions manager, station events coordinator, executive pro-
ducer, chief meteorologist, news director, sports director,
chief engineer, and all other supervisors and guards as defined
in the Act.
The parties began negotiations for a new contract in Febru-
ary 2013. They met about once per month for about 7 months.
Present for the Respondent were Timothy Busch, executive
WETM-TV 5
vice president and chief executive officer, Scott Iddings, direc-
tor of creative services and programming, and Don Hunt, chief
engineer. The Union was represented by David Hartnett, lead
negotiator and assistant department director of the Union, Da-
vid Siskin, union president, and John Doland, the chief videog-
rapher employed by the Respondent.
Busch testified that of the Respondent’s many proposals re-
lating to language and economic issues was one to amend the
contract’s recognition clause to eliminate the extensive list of
unit exclusions set forth therein.
It was the Employer’s belief that the clause should specifi-
cally list which classifications are included in the unit rather
than those excluded therefrom. Busch reasoned that, if the
clause did not identify specifically who was covered, the parties
would be unclear as to which other jobs it would cover. Busch
explained that if the Employer acquired another company
whose job classifications are not specifically named as being
excluded from this unit, they could automatically be considered
as being part of the unit.
2. The negotiations
a. The Employer’s version
At one of the first bargaining sessions in February 2013, the
Employer proposed the following “Recognition—Scope of
Jurisdiction” clause:
The Station recognizes the Union as the exclusive bargaining
representative of all regular full and part-time employees of
the Station engaged in television broadcasting and web
streaming at its television station WETM in Elmira, N.Y. and
said station’s facilities, including only master control opera-
tors, videographers, creative services producer/directors, an-
chors, reporters, newscast directors, production assistants and
not any supervisor or managerial roles.
The parties agreed to table a discussion of this proposal until
the next meeting. In the interim, the Respondent gave the Un-
ion a list of bargaining unit members it had requested. That list
included the names of John Doland, the chief videographer, and
George Kastenhuber, the assignment editor.
According to Employer Official Busch, there was an exten-
sive, one-half day discussion concerning a statutory supervi-
sor’s responsibilities and the Employer’s intent in changing the
clause. Busch explained to the bargainers his view of a super-
visor’s role based on his 30 year experience in the broadcasting
business and as the chief operating officer of the Employer. He
stated that he spoke about the supervisory roles of John Doland,
the chief videographer, and George Kastenhuber, the assign-
ment editor. Nicole Chorney was also mentioned as someone
who should be excluded from the unit as a confidential em-
ployee. Busch’s notes indicate that production assistant Sydney
should be included in the unit.
Busch testified that he “pointed out that John Doland, who
was at the table as a supervisor, has responsibilities and over-
sight that included training and evaluations . . . . We talked
about specific folks, we talked about John. We talked about
George [Kastenhuber]. We talked about others that could be
supervisors . . . I specifically talked about John at that table.”
According to Busch, when he was making his presentation,
Doland nodded his head when he characterized him as a super-
visor.
Although Busch testified on direct examination that George
Kastenhuber was discussed during bargaining, he testified,
inconsistently on cross examination, that Kastenhuber, specifi-
cally, was not referred to during bargaining. “You’re assump-
tion is that George was thought of during bargaining. That’s not
the case. Supervisors were to be excluded from the bargaining
unit. It had nothing to do with any specific person.” He further
stated that the Employer decided to remove the two men from
the unit “after the contract was ratified and signed.” In addi-
tion, Busch denied that Kastenhuber was mentioned by name
during the bargaining, noting that Iddings wrote him a note
with Kastenhuber’s name at a time when they were away from
the bargaining table.
Busch conceded that he did not know specifically what
Doland did each day, but stated that he is familiar with the du-
ties of a chief videographer based on his knowledge of how a
station is run.
Busch stated that the union agents asked for a definition of
the term “supervisor.” Busch called his attorney who sent him
a memo entitled “The Definition of ‘Supervisor’ Under the
National Labor Relations Act” prepared by the Congressional
Research Service. Busch testified that he read from the memo
that Oakwood Healthcare2 “established new definitions for
three key terms that are used to identify supervisors for purpos-
es of the NLRA: to ‘assign’ and ‘responsibly to direct’ employ-
ees and to exercise ‘independent judgment.’”
He then told the union agents that the Respondent’s hierar-
chy includes general managers, department heads, supervisors
and line staff, and that supervisors cannot be part of the unit
since they direct and assign unit employees.
Busch stated that during the bargaining he wrote on his copy
of the memo that he reviewed it with the Union. He testified
that no questions were asked by the Union and no counterpro-
posals were made by it. His notes state that the Union rejected
this proposal, wanted to retain the “original language,” and
offered to provide alternative language.
Apparently, no additional language was proposed by the Un-
ion and, according to Busch and his notes, the Union tentatively
agreed to the proposal at the May 10 session.
b. The Union’s version
According to Doland, a “vast” number of topics were dis-
cussed during bargaining. He conceded that the Employer
wanted Chorney removed from the unit and the Union agreed
that she was a confidential employee. Doland testified, howev-
er, that there was no specific mention that he and Kastenhuber
would be removed from the unit, adding that their terms and
conditions of employment were not discussed.
Union Agent Hartnett conceded that the Employer sought a
“complete overhaul” of the contract, its intent being to change
the “scope and jurisdiction” language. However, he stated that
the parties discussed only the duties of Chorney, and not those
of Doland or Kastenhuber.

2 348 NLRB 686 (2006). I already
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hartnett testified that when the scope of jurisdiction clause
was discussed, the parties did not discuss Doland or
Kastenhuber or their removal from the unit, and it was not the
parties’ intention to remove them from the unit. He denied that
Busch spoke about the Kentucky River3 or Oakwood
Healthcare decisions, or described the definition of supervisor
discussed therein.
Hartnett further stated that the two men’s terms and condi-
tions of employment were not spoken about, except that it was
agreed that Kastenhuber’s vacation allowance would be “grand-
fathered” at 4 weeks annually. That agreement was set forth in
a side letter to the contract, dated January 31. Agreement was
reached because the parties considered moving the “vacation
language” from the Employer’s handbook to the collective-
bargaining contract. Such a change would have resulted in
Kastenhuber’s losing 1 week’s vacation.
3. The agreed-upon contract
A tentative agreement was reached on January 31. A draft
copy of the new agreement including all the language in the
prior contract that was omitted, and the changes and additions
to the original contract, were sent to the Union for review. The
proposed contract was voted on by the union membership and
ratified.
The renewal contract was executed on March 18. It is effec-
tive from February 26, 2014, to February 25, 2017. The unit
set forth in the contract, which is the same as that initially pro-
posed by the Employer 1 year before, is as follows:
The Station recognizes the Union as the exclusive bargaining
representative of all regular full and part-time employees of
the Station engaged in television broadcasting and web
streaming at its television station WETM in Elmira, N.Y. and
said station’s facilities, including only master control opera-
tors, videographers, creative services producer/directors, an-
chors, reporters, newscast directors, production assistants and
not any supervisor or managerial roles.
Busch stated that shortly after the execution of the contract,
he directed General Manager Bob Grisson to withdraw Doland
and Kastenhuber from the bargaining unit since they were su-
pervisors, and to withdraw Chorney as the administrative assis-
tant “under the exclusionary language.”4
Immediately after the renewal contract was signed, Doland
and Kastenhuber were informed on about March 26 by Em-
ployer Official Iddings that they were no longer included in the
bargaining unit because they were supervisors.
Doland called Union Agent Hartnett and told him what had
just occurred. Hartnett stated that they were all “shocked” at
this turn of events. He immediately phoned Iddings, being
“quite adamant that this was not what was collectively bar-
gained and I would have to look into legal remedies regarding
this.” Hartnett stated that Iddings was shocked that he (Hart-
nett) was shocked. Hartnett filed the instant charge on April 1.

3 NLRB v. Kentucky River Community Care, Inc., 432 U.S. 706
(2001).
4 Busch conceded, however, that the contract does not exclude
Chorney’s job title from coverage therein but rather includes only those
titles specifically mentioned.
Hartnett considered the removal of Doland and Kastenhuber
from the unit as an unfair labor practice and not a violation of
the contract. He accordingly did not file a grievance.
Busch stated that the Employer’s objective in amending the
contract was not to remove Doland and Kastenhuber from the
unit. Rather, the objective was to remove supervisors from the
unit.
Following their removal from the unit, Doland’s and
Kastenhuber’s job duties and working conditions remained the
same. Their compensation also remained the same, except that
no contributions were made to their pensions by the Employer.
4. The job duties of John Doland and George Kastenhuber
a. John Doland
Doland has been the chief videographer at the facility since
1996 at which time he became a member of the Union. In addi-
tion to Doland, there are four other videographers--Chuck
Brame, Jesse Martin, Jaran Reid, and Richard Tanner.
Doland testified that his duties include overseeing the
equipment and ensuring that it is workable. He videotapes a
story with a reporter, and edits video news stories. He critiques
the videos of the other videographers when he has the time to
do so.
Upon arriving at work he checks his emails at another em-
ployee’s desk since he does not have a desk. He visits news
websites in order to determine whether the stories he sees there
should be covered by the Employer.
Doland attends the morning meeting run by Producer
Kaleigh Morrison. In attendance are Doland, News Director
Bob Rockstroh, Assignment Editor Kastenhuber, the videogra-
pher and a reporter. Occasionally, another videographer and
more reporters are also present.
Doland testified that Morrison posts what stories the station
should be covering that day. Significantly, the posting, done by
Morrison, lists the location, time, and the name of the videog-
rapher and the reporter assigned to the story. Those present
discuss the stories.
Employer Official Iddings confirmed that at the morning
meeting, Doland does not assign videographers or reporters
stories to cover. However, according to Iddings, Doland has
the authority to direct them in the field. For example, where a
live shot is done with a live truck, two people would be as-
signed to one camera. Doland offers them guidance and advice
on making that shoot.
Following the meeting, each person undertakes his assign-
ment for the day. Doland may call another source who is aware
of a story. He then takes his equipment and leaves the office,
accompanied by a reporter, to cover a story.
Doland shoots about three stories per day, explaining that the
duration of the story depends on its location. He returns to the
station at about 3 p.m. when he edits the stories he shot and
other, national stories which he receives from the computer.
Two other videographers who arrive at 3:30 pm. also edit the
national stories. Those national stories are “localized” by the
team by interviewing individuals in the community concerning
the impact of those news items on them.
Doland stated that when a “breaking news story occurs,” the
person who learns about it advises the producer who assigns or
WETM-TV 7
reassigns the team closest to that story to cover it. Iddings con-
firmed that the chief videographer does not reassign individuals
to cover such stories.
What follows is the job description of the chief “photogra-
pher” which is an alternative title to that of chief videographer,
and Doland’s testimony concerning each task:
(a) With the news director, establish, enforce and update rules
and guidelines for proper use of all video equipment and give
the news director an annual report on the state of the equip-
ment.
Doland testified that he attempts to perform these tasks, but
that he does not have time to establish, enforce and update
rules and guidelines.
(b) Maintain a sign-out system for all equipment and vehicles
assigned to the news department.
Doland attempts to maintain a sign-out system for all equip-
ment and vehicles assigned to the news department. He
checks it once per day. Last month, for the first time in five
years, he performed an inventory of cameras, records and oth-
er equipment.
(c) Maintain records of inventory and distribution of tapes.
With the news director and program director, establish needs
for tape replacement.
Doland denied performing this task.
(d) Establish programs with the news director and chief engi-
neer for preventive maintenance programs for video equip-
ment.
If Doland is informed that equipment is faulty he tells the per-
son reporting the matter to bring it to the shop. Alternatively,
the informant takes it to the shop himself. He usually emails
the news director and chief engineer regarding what should be
done with broken equipment.
(e) Meet with each photographer to critique shoots once per
month or more as needed.
Doland stated that he does not meet once per month with each
photographer because he does not have the time. However, if
he sees poor editing or lighting as he walks through the edit-
ing bay or in a broadcast, or if he sees a poorly shot story, he
gives the videographer “some pointers” on how he can im-
prove. Doland stated that “nothing would happen” as a result
of these “pointers.”
(f) Establish and maintain records with the chief engineer on
vehicle maintenance and cleaning. Establish and oversee pro-
grams involving all news personnel for interior and exterior
cleaning of vehicle once per week.
Doland does not do this task which is the province of the en-
gineering department.
(g) Work with the news director on performance evaluation
of all photographers and take responsibility for discipline of
photographers, as necessary.
Doland evaluated the videographers in 2013 and 2014. His
evaluations are discussed below. Doland stated that about two
years ago he attempted to discipline those who “sat around
and did nothing” by reporting them to his supervisor, Bob
Grisson, the general manager. However, “nothing happened”
to them and they were not discharged. Grisson’s response was
that the lazy employee’s father “brings a lot of money into the
station.”
(h) Establish membership in a press photographers associa-
tion.
Doland denies performing this task.
(i) Hold seminars annually for photographers and reporters to
focus on shooting, editing, equipment maintenance and relat-
ed topics.
Doland denies performing this task.
(j) Perform additional duties as assigned by the news director.
Doland performs this task. He does special assignments such
as shooting and editing as assigned by the editor.
Scott Iddings, the director of creative services and program-
ming, testified that he is familiar with the duties of a chief vid-
eographer based on his 20 year history in the broadcasting in-
dustry.
Iddings stated that as the chief videographer, Doland shoots
stories, goes in the field with new videographers or candidates
for hire and has the individual shoot a “mock story.” Doland
evaluates how the candidate handles his equipment and inter-
acts with the public. Doland returns to the studio with the indi-
vidual and watches while he edits the shoot.
Iddings further stated that Doland observes the individual
performing these tasks, getting a “feel for how he thought he
did” and whether he “passes muster on the various skills that
are required for the position.” Doland then makes a recom-
mendation to the news director as to whether he should be
hired. Iddings stated that Doland has made such recommenda-
tions on various occasions at meetings of the station’s depart-
ment heads, including recommending that Brame and Martin be
hired. Iddings further stated that he believed that, on occasion,
Doland recommended that candidates not be hired, but he could
not recall any specific instances. Nor did he say whether
Doland’s negative recommendations were followed.
Doland testified that he worked with videographer Tanner at
another station and was aware of his ability. Tanner applied for
a job with the Employer and Doland accompanied him on a
shoot. Doland stated that Tanner “knew what he was doing”
and he recommended that Tanner be hired. Doland did not take
Jaran Reid on a shoot but he was hired. Doland speculated that
Reid was hired because his father was the general manager of
the station.
Doland took Brame on a shoot and he was also hired, but
Doland stated that it was not his decision that Brame be hired.
Doland stated that he did not take Jesse Martin on a shoot and
was not involved in his hire. However, Iddings stated that
Doland recommended the hire of Brame and Martin.
Doland was given the task of performing evaluations for the
other videographers for the first time when the Employer pur-
chased the facility. Doland prepared written performance eval-
uations for the four videographers, Brame, Martin, Reid and
Tanner, in 2013 and 2014. He gave each a score of 4 (exceeds
expectations) on a scale of 1 to 5 in five areas of review:5 initia-

5 Reid received a score of “3” in the area of performance.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive, performance, communication, knowledge, and dependabil-
ity. Doland made positive comments in each of the perfor-
mance areas for each of the videographers. He also noted their
progress toward goals set 6 months before, and listed the goals
for the next 6 months. He further listed their strengths and
areas that need improvement. Doland reviewed the evaluation
with the videographer and asked him to sign it. He then signed
the form as “supervisor” and “evaluator,” and then gave the
form to Rockstroh. Rockstroh did not testify.
Doland denied that “there is anything more to the evaluation
process than filling out the form.” He also denied that the eval-
uation led to any benefit such as a raise in pay, promotion or a
bonus. He did not believe that a negative evaluation could lead
to the employee being fired, noting that no one has been fired
due to a poor evaluation.
Iddings stated that Doland assigns specific videographic
equipment to each videographer. If a videographer needs
equipment for a shoot which is in use by another, Doland reas-
signs that gear to the individual in need of that equipment. If
equipment is broken, Doland is notified and the gear is re-
moved from service and either Doland or the videographer
takes it for repair to the engineering department. Iddings stated
that Doland gives the order to the engineering department to
have the vehicle cleaned.
Iddings stated that Doland is paid nearly $18 per hour, while
the other videographers earn an average of $10.50. Iddings
based Doland’s higher salary on the facts that he has long ten-
ure at the station, his general experience level, and the fact that
he is the chief videographer.
In contrast, Doland attributed his higher salary to the fact
that when the station was owned by Clear Channel he informed
that company that he was resigning his job, and he thereafter
negotiated a higher wage rate through his own individual con-
tract. He kept the same rate thereafter and his salary was in-
creased through periodic union wage raises. Doland denied
that his higher salary was related to his alleged supervisory
responsibilities.
b. George Kastenhuber
Kastenhuber has been the assignment editor for 12 years, be-
coming a member of the Union in 2002. His duties begin in the
evening by locating stories that need to be covered the follow-
ing day. He obtains those stories from other staff members,
local newspapers, government agencies and wire services.
However, he is not the only person engaged in that endeavor. It
is a “collaborative effort by all . . . to gather these story ideas.”
He sends an email that evening with a cryptic description of the
stories that may be covered the following day.
He described his job as being able to “take what we know
exists and be able to assign crews, take stories, and gather in-
formation just to make sure we have a constant workflow
throughout the day.”
The following morning, Kastenhuber checks his emails and
faxes. His morning producer, Zach Wheeler, informs him of
any newsworthy stories that occurred the night before, or any
follow-up that needs to be done, which “points him in the right
direction.” He then calls police agencies to learn of any stories,
and checks the newspapers and social media sources.
Kastenhuber then prints a “grid” or chart outlining the stories
in greater detail, which may or may not be covered that day and
emails it as an update to the station’s employees. Pursuant to a
request by his producers he updates that list. The list, prepared
by the producer, contains the names of reporters and photogra-
phers assigned to those stories.
The stories which may be covered are posted on a board. At
the morning meeting, run by producer Morrison, the stories are
discussed with input from everyone present. Morrison works
from the grid that Kastenhuber distributed and asks the partici-
pants for suggestions for a “lead story.” Kastenhuber charac-
terized his job duties as that of a “traffic cop in the newsroom.”
Those present offer their ideas, and the group decides whether
the stories on the grid should be reported. Kastenhuber stated
that not all the stories he posts to the grid are covered. He pro-
vides them as an “option.”
Kastenhuber testified that at the meeting, News Director
Rockstroh and Producer Morrison “assign reporters and videog-
raphers to the stories listed in the summaries.”
Employer official Iddings testified that the assignments edi-
tor works with the reporters and videographers, assigning them
to various locations to cover news stories. In addition, Iddings
stated that Kastenhuber “is part of that process of let’s assign
who goes where. He is the assignment editor so he is making
assignments.” In contrast, Kastenhuber stated that at that meet-
ing, Morrison and News Director Bob Rockstroh assign the
reporters and videographers to the stories listed in the summar-
ies, while Kastenhuber helps the reporters by supplying them
with background facts and figures, and offering ideas and sug-
gestions concerning how to cover their stories.
Iddings stated that if Morrison or Rockstroh are not present,
he believes that Kastenhuber runs the meeting because he has
the highest seniority, having been at the station for 12 years,
and having been in the industry for 30 years. Although he has
no personal knowledge that that has occurred, he reasoned that
“someone has to run the meeting.” Kastenhuber denied leading
that meeting at any time.
Following the meeting, Kastenhuber again checks the local
newspapers for breaking news, and also checks other television
stations for stories.
At 11 a.m., Kastenhuber participates in a brief conference
call with the assignment editors of other Nexstar stations locat-
ed in other areas of the station’s coverage such as Burlington,
Rochester, Syracuse, and Utica. They discuss the stories each
will cover that day and consider running a story that another
location has prepared. Following the conference call,
Kastenhuber checks news websites and considers updating the
story roster. He helps the producers or reporters with infor-
mation they may need.
The Employer is informed of breaking news, which occurs
abut twice per week, from police scanners monitored by
Kastenhuber, newspaper websites, and viewers who email the
station. Iddings stated that when a breaking news story occurs,
Kastenhuber is informed and he decides that that story be cov-
ered immediately. He then determines which crew is closest to
the breaking story and directs that team to conclude its assign-
ment and cover the breaking story.
WETM-TV 9
Kastenhuber confirmed that he assigns crews in a breaking
story by calling the closest news team and asking them to go to
the scene. However, he advises his news director later that he
took such action. He further testified that he, the news director
and producer together decide who is closest to a breaking story
and how they need to “shift gears” to have that story covered.
Indeed, he testified that Morrison and Rockstroh decided who
to send to cover a breaking story about area flooding.
He stated that his role is to try to help Morrison and
Rockstroh determine, logistically, which team is closest to the
breaking story. He stated that he can reassign someone to work
on a breaking news story if no one is present in the newsroom
to make that assignment.
Kastenhuber noted that when he is in the newsroom in the
morning he sends the morning editor who is already near the
scene, with a reporter, but he checks with the news director in
those instances where a morning producer has to be shifted
with another producer.
Kastenhuber stated that he is paid $12.67 per hour. Iddings
stated that the reporters are paid from $10.50 to $11.50.
Kastenhuber stated that following his removal from the unit his
job duties have not changed, and he received the 1 percent raise
provided in the union contract. However, no contributions have
been made by the Employer to his union pension.
In his 2014 evaluation of Kastenhuber, News Director
Rockstroh stated that Kastenhuber “helps with staffing and
helps keep overtime under control.” Kastenhuber explained
that he does that by making certain that Rockstroh is aware of
any situation which may require overtime. For example,
Kastenhuber informs him of an event and inquires “do we want
to cover it with overtime?” Kastenhuber stated that he is not
authorized to assign overtime or ask an employee to perform
overtime work without Rockstroh’s consent.
Kastenhuber agreed with his evaluation which characterized
him as the “gateway” to the information that comes into the
newsroom. He based that on his experience, his having lived in
the community for nearly 60 years, and his extensive
knowledge of the market. He emphasized that he does not
manage the news. Rather, he supplies information to reporters
and makes suggestions as to who the reporters should speak
with. He noted that he does not tell the reporters how to write
their stories. Rather, he gives them the information and in-
forms them as to how to “further” their stories.
Kastenhuber stated that he is not a producer, did no produc-
ing, and did not write any newscasts. He works with a new
producer, making certain that he was aware of certain emails
and posts to Facebook. When he is asked to look at a script for
suggestions, he gives his opinion and suggests revisions.
The job description of the “assignments editor or manager,”
and Kastenhuber’s testimony concerning each task follows:
(a) Tracking stories from all sources.
Kastenhuber does that task as part of his evening compilation
of news stories to cover the following day.
(b) Dispatching photographers, reporters and others to cover
stories.
Kastenhuber denies performing this task. He stated that this
task is the responsibility of the producer and news director.
(c) Coordinates logistics for news personnel.
Kastenhuber performs these tasks.
(d) Participates in daily story meetings and supplies a com-
prehensive list of all possible news stories, and works with the
News Director to develop plans for all broadcasts.
Kastenhuber performs these tasks.
(e) Assists in development, planning and follow-up of all
news stories.
Kastenhuber testified that he performs these tasks and ex-
plained that occasionally the news director informs him that
he saw a news item and asks Kastenhuber to gather some in-
formation for a story.
(f) Edits video clips as assigned.
Kastenhuber stated that he “very rarely” edits video clips.
(g) Writes stories for the web and other eMedia platforms.
Kastenhuber stated that he is responsible for about two web
items. He posts videos for franchise items and other feature
items such as an attorney speaking on a legal subject.
(h) Interacts with viewers/users on social media sites.
Kastenhuber occasionally, but not generally, interacts with in-
dividuals on such sites. He does not interact with viewers us-
ing Facebook or Twitter.
The requirements for the position include a Bachelor’s de-
gree in journalism, or an equivalent combination of education
and work related experience, fluency in English, excellent
communication skills, 2 years’ experience in news operations,
proficiency with computers and other office equipment, ability
to meet deadlines, prioritize assignments and multitask, and
flexibility to work any shift.
Kastenhuber meets the educational requirement through a
combination of education and work-related experience, and
meets all the other criteria.
Analysis and Discussion
II. THE SUPERVISORY STATUS OF DOLAND AND KASTENHUBER
Section 2(11) of the Act defines a supervisor as:
Any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote, dis-
charge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or ef-
fectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent
judgment.
The possession of any one of the above criteria is sufficient
to prove the supervisory status of the disputed individual. The
burden of proving that an employee is a statutory supervisor is
on the party which asserts his supervisory status. Oakwood
Healthcare, Inc., 348 NLRB 686, 687 (2006); NLRB v. Ken-
tucky River Community Care, 532 U.S. 706, 713 (2001). The
Board has cautioned that the supervisory exemption should not
be construed too broadly because the consequence of such a
construction would be to remove individuals from the protec-
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion of the Act. Providence Alaska Medical Center, 320 NLRB
717, 725 (1996).
A. John Doland
Doland has been the chief videographer at the facility for 18
years. His work, shooting news stories with a reporter which is
then aired by the Respondent, is essentially the same as that
performed by the four other videographers. One of his respon-
sibilities which can arguably be described as supervisory is
occasionally critiquing the video shoots of other videographers
when he has the time to do so, giving “pointers” on making
more effective videos. However, advice by an experienced
employee to a worker with less time on the job does not consti-
tute Section 2(11) supervisory authority. Sears, Roebuck & Co.,
292 NLRB 753, 754 (1989); Sanborn Telephone Co., Inc., 140
NLRB 512, 515 (1963).
Doland performed evaluations of the other videographers
twice, in 2013 and 2014. He stated that he reviewed the eval-
uation with the employee, signed it as his supervisor, and then
gave the form to supervisor Rockstroh. Rockstroh did not testi-
fy. Doland denied that the evaluation process led to any benefit
for the employee being evaluated. The authority to “evaluate”
is not one of the indicia of supervisory status set out in Section
2(11). Elmhurst Extended Care Facilities, 329 NLRB 535, 536
(1999). “When an evaluation does not, by itself, affect the
wages and/or job status of the employee being evaluated, the
individual performing such an evaluation will not be found to
be a statutory supervisor.” Elmhurst, above, at 536. “The au-
thority simply to evaluate employees without more is insuffi-
cient to find supervisory status.” Passavant Health Center, 284
NLRB 887, 891 (1987).
Other evidence, that Doland’s name appears as “supervisor”
on his evaluations of employees and his higher salary, do not
establish that he is a statutory supervisor. Training School at
Vineland, 332 NLRB 1412, 1416 (2000). His undenied testi-
mony that his salary, which was higher than other videogra-
phers, was obtained by agreement with a former employer simi-
larly does not support a finding that such salary was attributed
to his supervisory responsibilities.
The Respondent also asserts that Doland recommended the
hire of certain videographers. There was some dispute as to
whether Doland recommended the hire of Brame and Martin.
Iddings stated that he did but Doland denied doing so.
Doland has a prospective videographer shoot a “mock” story
and then recommends to news director Rockstroh whether he
should be hired. Rockstroh did not testify. There is no evidence
as to what weight Rockstroh gave to Doland’s alleged recom-
mendation. Doland’s participation in part of the interview pro-
cess is “insufficient to establish supervisory authority under the
Act because there is no evidence that the [disputed supervisor]
effectively recommended that the [candidate] be hired.” North
General Hospital, 314 NLRB 14, 16 (1994).
The one instance in which he reported an employee for lazi-
ness was dismissed and no discipline was taken against the
employee. Doland does not assign employees to cover breaking
news stories.
The assignment of equipment to a videographer, taking the
equipment to be repaired, directing that vehicles be cleaned,
even assuming that Doland performed all those tasks, does not
establish that he is a statutory supervisor where there is no
showing that he exercised independent judgment in the execu-
tion of those tasks. Those jobs are simply routine in nature.
B. John Kastenhuber
Kastenhuber has worked as the assignment editor for 12
years. He locates stories which the Respondent may be inter-
ested in covering and circulates those stories to other staff
members. His producer leads a meeting at which those present,
including Kastenhuber, give their opinions as to which stories
to report.
I find, in contrast to Iddings’ testimony, that the news direc-
tor and producer, and not Kastenhuber, assign those stories to
the reporters and videographers. At most, the assignments are
part of a collaborative effort. Even as Iddings testified,
Kastenhuber “is part of that process of let’s assign who goes
where.” It is more likely, as the morning meeting is a group
effort of determining which stories to cover, that the assign-
ments are also part of a combined exercise, where the two un-
disputed supervisors, the news director and producer, are actu-
ally making the assignments.
Kastenhuber conceded that he assigns the closest team to a
breaking news story. However, such assignment does not con-
stitute the exercise of independent judgment. Rather, he me-
chanically determines which team is geographically closer to
the story. Moreover, he later tells his news director that he took
such action. Furthermore, he stated that he only makes such an
assignment if no one else is in the newsroom at that time. Such
routine, mechanical assignments, involving only the determina-
tion of which team is closer to a breaking news story, does not
involve the exercise of independent judgment and is not evi-
dence of supervisory authority. Sears, Roebuck, above, at 754.
Kastenhuber is not authorized to assign overtime work without
his news director’s agreement.
In King Broadcasting Co., 329 NLRB 378, 381 (1999), the
Board found that assignment editors working at a television
station were not statutory supervisors. Many of their responsi-
bilities were similar to Kastenhuber’s, including their selection
of stories as prospective news items to be covered and partici-
pation in group meetings to determine which stories should be
aired. In King, and here, the editor was described as a “traffic
cop” who monitors information coming into the newsroom.
In King, the Board held that the assignment editor was not a
supervisor, notwithstanding that he made assignments. The
Board found that such assignments were not based on the exer-
cise of independent judgment even though they were based on
an assessment of employees’ skills. 329 NLRB at 381. Here,
likewise, there was no evidence that any assignment made by
Kastenhuber was based on his exercise of independent judg-
ment, or his assessment of the assignee’s skills.
Conclusion
I accordingly find and conclude that John Doland and
George Kastenhuber are not supervisors within the meaning of
Section 2(11) of the Act.
WETM-TV 11
II. THE ALLEGED REFUSAL TO BARGAIN
The complaint alleges that on about March 26, the Respond-
ent unilaterally removed the positions of assignment editor and
chief videographer from the bargaining unit without the Un-
ion’s consent, and also unilaterally removed the bargaining unit
work of the assignment editor and chief videographer from the
unit without prior notice to the Union and without affording it
an opportunity to bargain with it with respect to such conduct.
A. Alteration of the Unit’s Scope
In Hill-Rom Co., Inc., v. NLRB, 957 F.2d 454, 457 (7th Cir.
1992), the court defined permissive subjects of bargaining as
those “which fall outside the scope of Section 8(d) of the Act
and cannot be implemented by the employer without union or
Board approval.” The court stated, as adopted by the Board in
Hampton House, 317 NLRB 1005, 1005 (1995):
There is no doubt that the scope of the employees’ bargaining
unit is a permissive subject of bargaining, regardless of
whether the unit has previously been certified by the Board or
voluntarily agreed upon by the parties. Accordingly, once a
specific job has been included within the scope of the bargain-
ing unit by either Board action or consent of the parties, the
employer cannot unilaterally remove or modify that position
without first securing the consent of the union or the Board.
The reason why the law disfavors unilateral changes in the
unit description is as simple as it is fundamental: if an em-
ployer could vary unit descriptions at will, it would have the
power to sever the link between a recognizable group of em-
ployees and its union as the collective bargaining representa-
tive of these employees. This, in turn, would have the effect
both of undermining a basic tenet of union recognition in the
collective bargaining context and of greatly complicating co-
herence in the negotiation process.
“If the subject is a permissive one, the other party may refuse
to discuss it; a proposal cannot thereafter be implemented ab-
sent an agreement to do so. A proposal to alter the scope (com-
position) of an existing bargaining unit is a permissive subject
of bargaining. Thus, an employer cannot unilaterally change a
bargaining unit, even after bargaining to impasse.” Aggregate
Industries, 359 NLRB No. 156, slip op. at 3 (2013).
The positions of assignment editor and chief videographer
were included within the scope of the bargaining unit by the
consent of the parties.
The job classification of “videographers” was included in the
collective-bargaining unit certified by the Board in 1996. The
Union was recognized by two successive employers. The unit
contained in the Respondent’s immediate predecessor’s (New-
port) contract, was broad. It included all the station’s employ-
ees, but excluded 14 specific titles, and supervisors. That con-
tract was assumed by the Respondent which operated pursuant
to it from the time it purchased the Station in December 2012
until its expiration in March, 2013.
Accordingly, that contract’s unit description which broadly
included of all of its employees, of course included Doland and
Kastenhuber. The Respondent claims that they are supervisors.
However, during that period of time, and indeed, during their
entire lengthy employment at the Station, they were admittedly
included in that unit and were considered and treated as unit
employees represented by the Union.
Indeed, the Respondent, at the start of negotiations, gave the
Union a list of union members which included the names of
Doland and Kastenhuber. The Respondent apparently made no
claim during their employment that they were statutory super-
visors who should be excluded from the unit. Rather, that
claim was made for the first time after the bargaining conclud-
ed and the contract was signed.
As set forth above, immediately following the execution of
the renewal contract, the Respondent informed Doland and
Kastenhuber that they were no longer in the bargaining unit. It
is clear that the Respondent did not first secure the consent of
the Union when it took such action. It could not lawfully do so.
Once a specific job has been included within a bargaining
unit, the employer cannot remove it without the consent of the
union or action by the Board. Hampton House, 317 NLRB
1005, 1005 (1995). Where the same employees continue to
perform the same work that they had, an employer may not
lawfully attempt to change the scope of the bargaining unit by
taking the position that these represented employees and their
work were now outside the bargaining unit. Bay Shipbuilding
Corp., 263 NLRB 1133, 1140–1141 (1982), enfd. 721 F.2d 187
(7th Cir. 1983). An employer may not, under the guise of
transferring unit work, alter the scope of the bargaining unit.
Facet Enterprises, Inc. v. NLRB, 907 F.2d 963, 975–976 (10th
Cir. 1990); Aggregate Industries, above, slip op. at 3.
Because the Employer took this action without the Union’s
consent, it violated Section 8(a)(5) and (1) of the Act. Aggre-
gate Industries, above.
In Arizona Electric, 250 NLRB 1132 (1950), the employer
withdrew recognition from the union, during mid-term negotia-
tions, for previously included unit employees on the ground
that they were statutory supervisors. The Board, in finding a
violation, stated:
It is axiomatic that parties to a collective-bargaining relation-
ship cannot bargain meaningfully unless they know the scope
of the unit for which they are to bargain. Thus, it is well estab-
lished that the integrity of a bargaining unit cannot be unilat-
erally attacked, and that once a unit is certified, it may be
changed only by mutual agreement of the parties or by Board
action. 250 NLRB 1132, 1133.
Here, as in, Arizona Electric, “where a contract executed
with full knowledge of the nature of the present duties of the
[disputed employees] is currently in force, to permit Respond-
ent to alter unilaterally the scope of the established bargaining
unit would unnecessarily encourage parties to productive and
viable collective-bargaining relationships to refuse to bargain
over wages and other terms and conditions of employment of
individuals who were intended to benefit from these relation-
ships.” 250 NLRB at 1133.
Later cases have affirmed this long-standing policy. In Dixie
Electric Membership Corp., 358 NLRB No. 120, slip op. at 3–4
(2012), affd. in 361 NLRB No. 107, fn. 1 (2014), the Board
found that the employer violated the Act by modifying the
unit’s scope by eliminating certain positions from the unit
without the union’s consent. The Board also found that the
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees, who were removed from the unit allegedly because
they were supervisors, continued to perform essentially the
same work as they did prior to their removal. Here, as in Dixie
Electric, it is undisputed that the positions were covered by the
expiring collective-bargaining agreement. NLRB v. Quinn Res-
taurant Corp., 14 F.3d 811, 815 (1994); Wackenhut Corp., 345
NLRB 850, 855 (2005); Mt. Sinai Hospital, 331 NLRB 895,
895 fn. 2. (2000).
As discussed above, the Respondent has not met its burden
of proving that the assignment editor and the chief videogra-
pher were statutory supervisors. As a result, the Respondent
cannot rely on their alleged supervisory status as a justification
for its elimination of the two disputed positions from the bar-
gaining unit. Wackenhut, above, at 855.
The Respondent withdrew recognition from the Union as the
representative of unit positions assignment editor and chief
videographer by unilaterally removing their positions from the
unit. There can be no doubt, as the complaint alleges, that such
action was done without the Union’s consent.
There was no agreement by the Union that those positions be
removed from the unit. I find, as testified by the Union’s wit-
nesses, that there was no discussion during negotiations about
the two men’s positions. I cannot credit Busch’s less than de-
finitive testimony that the two men were discussed. Even if
there was discussion about supervisory responsibilities, there is
no credible evidence that the Union was on notice, or that it
gave its consent to the removal of Doland and Kastenhuber
from the unit. Indeed, Busch testified that he spoke about su-
pervisors being excluded from the unit, but that “it had nothing
to do with any specific person,” and that the Employer decided
to remove the two men from the unit “after the contract was
ratified and signed.”
I accordingly find and conclude, as alleged in the complaint,
that the Respondent violated Section 8(a)(5) and (1) of the Act
by the removing the positions of assignment editor and chief
videographer from the bargaining unit without first obtaining
the Union’s consent to such actions.
The Respondent’s argument that the Union consented by
participating in negotiations and signing the contract will be
addressed, below.
B. The Unilateral Transfer of Unit Work Outside the Unit
I also find, as alleged in the complaint, that the Respondent
unilaterally removed the bargaining unit work of the assign-
ment editor and chief videographer from the unit. The Re-
spondent did so with respect to such mandatory subjects of
bargaining, without prior notice to the Union and without af-
fording the Union an opportunity to bargain with it regarding
such conduct.
After the contract was signed, Doland and Kastenhuber were
informed that they were supervisors and were removed from
the bargaining unit. It is undisputed that they continued to
perform their duties, under the same working conditions, as
they had before they were removed from the unit.
The Board in Hampton House, 317 NLRB 1005, 1005
(1995), stated:
When an employer promotes an employee to a supervisory
position and the new supervisor continues to perform former
bargaining unit work, however, the work is removed from
the bargaining unit. That is a change in the bargaining unit’s
terms and conditions of employment, giving rise to the em-
ployer’s bargaining obligation under Section 8(d) of the Act.
In those circumstances, the employer must bargain with the
union in good faith and may unilaterally change the bargain-
ing unit’s work only after a lawful impasse.
No notice was given to the Union that the removal of Doland
and Kastenhuber’s work from the unit was being contemplated
or considered by the Respondent. Rather, their elimination from
the unit was presented as a fait accompli, following the execu-
tion of the new contract, which, the Respondent believed would
automatically operate to accomplish its goal of removing their
work from the unit. Wire Products Mfg Corp., 328 NLRB 855,
857 (1999).
I accordingly find and conclude, as alleged in the complaint,
that by unilaterally removing the bargaining unit work of the
assignment editor and chief videographer form the bargaining
unit, the Respondent violated Section 8(a)(5) and (1) of the Act.
C. The Respondent’s Defenses
1. Midterm Modification of a Permissive Subject
of Bargaining
The Respondent argues that it was permitted to unilaterally
change a permissive nonmandatory subject of bargaining, citing
Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass
Co., 404 U.S. 157 (1971), and Star Tribune, 295 NLRB 543
(1989). In Pittsburgh Plate Glass, the Supreme Court held that
a unilateral modification of a contract term is “a prohibited
unfair labor practice only when it changes a term that is a man-
datory rather than a permissive subject of bargaining.” 404 U.S.
at 185.
In both cases, the employers modified or implemented a con-
tract term. In Pittsburgh Plate Glass, it changed retirees’ bene-
fits. In Star Tribune, it sought to implement a drug and alcohol
program. Accordingly, the Respondent’s reliance on those cas-
es is misplaced.
It is not alleged that the Respondent modified a contract
term. This is not a case involving a mid-term modification of a
contract. The Respondent did not change a “contract term.” It
changed the scope of the bargaining unit. The “legal principles
applicable to a change-of-unit-scope allegation differ from
those applicable to a midterm contract modification.” Walt
Disney World Co., 359 NLRB No. 73, slip op. at 4 (2013).
Here, the Respondent did not modify the recognition clause.
That clause remained the same from the time it was proposed
by the Employer in February, 2013 until it was included in the
executed contract one year later. The clause remained intact
and unchanged. It was not modified at all during that time, nor
after the contract was executed.
Rather, the scope of the unit contained in the contract was al-
tered by the Respondent when it unilaterally removed the two
positions from that unit. The clause itself was not modified.
Here, the elimination from the unit of the positions of as-
signment editor and chief videographer were clearly an altera-
tion of the scope of the unit. Those two positions were includ-
ed in the bargaining unit which was recognized by the Employ-
WETM-TV 13
er. The prior contract which was the subject of renewal bar-
gaining was applied to those two positions. Accordingly, the
Respondent’s elimination of the two positions from the bar-
gaining unit was a change in the scope of the unit. The Re-
spondent’s argument that the two men occupying those posi-
tions were statutory supervisors is unavailing since, as I have
found above, it has not been proven that they were statutory
supervisors.
By eliminating the two disputed positions from the unit the
Respondent did not modify a term of the contract. It changed
the scope of the bargaining unit. I accordingly reject the Re-
spondent’s argument that it lawfully, unilaterally changed a
term of the contract.
2. The Alleged Supervisory Positions
The Respondent argues that it was permitted to alter the
unit’s scope because the disputed positions were supervisory. I
have found, above, that the positions of assignment editor and
chief videographer are not statutory supervisory positions.
Even assuming, arguendo, that the two positions are superviso-
ry, the Board has held that “where parties to a collective-
bargaining agreement have voluntarily agreed to include super-
visors in a bargaining unit, it will order the application of the
terms of the collective-bargaining agreement to such supervi-
sors.” Dixie Electric Membership Corp., above, slip op. at 3;
Arizona Electric, above, at 1133.
Indeed, here the parties applied the terms of the expired col-
lective-bargaining agreement to alleged supervisors Doland and
Kastenhuber.
3. Waiver
The Respondent argues that it lawfully applied and imple-
mented the terms of the new contract to Doland and
Kastenhuber, and that the Union had an ample opportunity to
submit proposals and counter proposals to the unit proposed by
the Employer.
The Respondent also asserts that the Union waived its right
to contest the removal of the two disputed positions from the
unit because it participated in lengthy contract negotiations, it
was given all the draft proposals leading up to the new agree-
ment, and it signed the contract.
In this regard, the Employer argues that the changes it made
in the scope of the unit were not unilateral. Rather, they were
bilateral because the Union agreed to them by agreeing to the
new “recognition” article in the contract.
It is true that the parties engaged in prolonged negotiations.
Discussions began in February 2013 and the contract was exe-
cuted one year later, in March 2014. In the interval, they met
once per month for seven months. However, it is not the length
of the negotiations which is the key. Rather, the question is
whether the parties discussed the matter at issue, and whether
the Union was on notice of the Respondent’s proposed changes.
As noted above, Employer Official Busch did not testify that
there was a specific discussion during negotiations in which he
identified Doland and Kastenhuber as being supervisors who
therefore must be excluded from the unit. The most that could
be said was that he mentioned that “Doland, who was at the
table as a supervisor, has responsibilities and oversight that
included training and evaluations . . . . We talked about others
that could be supervisors . . . I specifically talked about John at
that table.” His testimony that Doland “nodded” when he char-
acterized him as a supervisor could only be interpreted as an
imprecise description of Doland’s motion of his head which
could have multiple meanings, and certainly not as Doland’s
affirmation that he was a statutory supervisor with all its rami-
fications.
Although Busch testified that he spoke about Kastenhuber
during bargaining, he gave contradictory testimony by stating
that Kastenhuber was not referred to during bargaining. Rather,
he stated that his name came up in a private conversation with
Iddings.
In contrast, union bargainers credibly testified that during the
negotiations there was no mention of the removal of the two
men from the unit. Union Agent Hartnett further credibly stat-
ed that it was not the parties’ intent to do so.
Hartnett conceded that the Union was given the Respond-
ent’s proposals which changed the scope of the unit, and which
included only certain job titles and eliminated the list of ex-
cluded job titles and “supervisors or managers.” Nevertheless,
Hartnett did not believe that those changes would result in the
loss of the positions held by Doland and Kastenhuber because
those job titles were always included in the bargaining unit, and
they were not supervisory. Rather, according to Hartnett, the
only person discussed as someone who should be excluded
from the unit was Chorney.
I find that it would have been “unlikely that the Union in-
tended to relinquish the right to bargain about what traditionally
had been a bargaining unit position . . . with virtually no discus-
sion of the issue” Land O’Lakes, Inc., 299 NLRB 982, 982 fn. 2
(1990).
This finding is supported by the Union’s actions when, im-
mediately after being informed by the two men that they had
been removed from the unit, Union agent Hartnett told Iddings
that he was “shocked,” and “adamantly” protested that “this
was not what was collectively bargained” and that he would
pursue his legal remedies. He immediately filed a charge. Land
O’Lakes, above, at 982, fn. 2.
In addition, the Respondent could not have believed that the
Union would consent to the removal from the unit of the posi-
tions occupied by Doland and Kastenhuber. Doland was at the
bargaining table and took part in all the negotiations. If he was
a supervisor he would not have been present as a member of the
Union’s bargaining team.
It is true that the Union did not request bargaining over this
issue. It did discuss the removal of Chorney from the unit as a
confidential employee and it agreed to such change. However,
the Union did not request bargaining as to the removal of the
two disputed positions because, as testified by Hartnett, there
was no discussion of the subject. The Respondent presented
the Union with a fait accompli. It was not presented with any
notice, much less timely and meaningful notice under circum-
stances which at least afforded a reasonable opportunity for
counter arguments or proposals. Dixie Electric, above, slip op.
at 4.
There was no evidence that the issue of the removal of the
two positions had been mentioned at all during contract negoti-
ations, much less “fully discussed and consciously explored.”
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Provena St. Joseph Medical Center, 350 NLRB 808, 810
(2007). The Union was therefore relieved of its obligation to
request bargaining as to the removal of the two positions. If
any request to bargain was necessary, the Union did so in Hart-
nett’s protest to Iddings and by its filing of the instant charge.
Solutia, Inc., 357 NLRB No. 15, slip op. at 7 (2011), enfd. 699
F.3d 50 (1st Cir. 2012). A waiver of the right to bargain must
be clear and unmistakable. Metropolitan Edison Co. v. NLRB,
460 U.S. 693, 709 (1983).
The Respondent also asserted the defenses that (a) the com-
plaint is barred by Section 10(b) of the Act and (b) the remedy
sought is not authorized by the Act as it would force it to agree
to and implement a term in a collective-bargaining agreement
that it did not agree to.
As to the 10(b) argument, the charge was filed on April 1,
shortly after the contract’s execution and after the Union was
told that Doland and Kastenhuber were being removed from the
unit as supervisors. Thus, the Union filed the charge immedi-
ately after such notice was given to it of this change. It cannot
be argued that they had such notice prior to that time. Accord-
ingly, the charge was filed within 6 months of the unlawful
action taken by the Respondent.
I also reject the Respondent’s argument that this decision
would unlawfully force the Respondent to agree to and imple-
ment a term in the contract that it did not agree to. Here, the
Respondent always treated the positions of assignment editor
and chief videographer as being part of the recognized collec-
tive-bargaining unit. This decision does not require the Re-
spondent to do anything more than to honor its agreement to
continue to recognize those job positions.
CONCLUSIONS OF LAW
1. Nexstar Broadcasting Group, Inc., d/b/a WETM-TV, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Alliance of Theatrical Stage Employees and
Moving Picture Technicians, Artists and Allied Crafts of the
United States, its Territories, and Canada, AFL–CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The following employees of the Respondent constitute a
unit appropriate for the purposes of collective-bargaining with-
in the meaning of Section 9(b) of the Act:
All regular full and part-time employees of the Station en-
gaged in television broadcasting and web streaming at its tel-
evision station WETM in Elmira, N.Y. and said station’s fa-
cilities, including only master control operators, videogra-
phers, creative services producer/directors, anchors, reporters,
newscast directors, production assistants and not any supervi-
sor or managerial roles.
4. By unilaterally removing the positions of assignment edi-
tor and chief videographer from the collective-bargaining unit
set forth above, the Respondent has altered the scope of the unit
without the Union’s consent, and has violated Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
5. By unilaterally removing the bargaining unit work of the
assignment editor and chief videographer without prior notice
to the Union and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct, the
Respondent violated Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
6. The positions of assignment editor and chief videographer
are not statutory supervisory positions within the meaning of
Section 2(11) of the Act.
7. The unfair labor practices of the Respondent, found
above, affect commerce within the meaning of Section 2(2), (6)
and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
In order to restore the status quo ante, the Respondent shall
be required to rescind its March 26, 2014 removal of the unit
positions of assignment editor and chief videographer and its
consequent removal of the bargaining unit work of those two
positions outside the bargaining unit. The Respondent shall
also be ordered to reinstate John Doland and George
Kastenhuber to the bargaining unit.
The Respondent shall also be required to recognize and bar-
gain with the Union as the exclusive collective-bargaining rep-
resentative of the employees occupying the positions of as-
signment editor and chief videographer, and, upon request,
bargain with the Union regarding those employees’ wages,
hours, and other terms and conditions of employment.
The Respondent shall also be required to apply the terms of
the collective-bargaining agreement, effective February 26,
2014, through February 25, 2017, between the Union and the
Respondent, to employees occupying the positions of assign-
ment editor and chief videographer. However, nothing herein
shall be construed to authorize or require the withdrawal or
elimination of any wage increase or other improved benefits or
terms or conditions of employment, which may have been af-
forded to the assignment editor and chief videographer employ-
ees, as compared to the wages, benefits, and terms or conditions
of employment of bargaining unit employees.
Although the record does not establish that John Doland or
George Kastenhuber suffered any economic loss as a conse-
quence of the Respondent’s actions, it nevertheless shall be
ordered to make them whole, if it can be shown that they have
suffered any loss of earnings and other benefits as a result of
the discrimination against them. If backpay is warranted, it
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB No. 8
(2010), denied on other grounds sub. nom. Jackson Hospital
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). In accord with
Don Chavas LLC d/b/a Tortillas Don Chavas, NLRB No. 10
(2014), my recommended Order also requires the Respondent
to (1) submit the appropriate documentation to the Social Secu-
rity Administration so that when backpay is paid to Doland and
Kastenhuber, it will be allocated to the appropriate calendar
quarters, and/or (2) reimburse them for any additional Federal
and State income taxes they may be assessed as a consequence
WETM-TV 15
of receiving a lump-sum backpay award covering more than 1
calendar year.
There was testimony that, following the removal of Doland
and Kastenhuber from the bargaining unit, the Respondent
ceased making contributions to their pensions. Accordingly,
the Respondent shall be required to remit all contributions it
would have made on the employees’ behalf to employee re-
tirement, 401(k), and/or health care funds absent its unlawful
unilateral changes, including any additional amounts due the
funds in accordance with Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent
shall reimburse the employees for any expenses they may have
incurred as a result of its failure to make such benefit fund con-
tributions, as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), with interest as prescribed in New
Horizons, above.
The Respondent shall also be required to reimburse the Un-
ion for any dues that it would have deducted from Doland and
Kastenhuber and remitted to the Union under the collective-
bargaining agreement absent its unlawful unilateral changes.
Such sums shall likewise be calculated in the manner set forth
in Ogle Protection Service, above, with interest as prescribed in
New Horizons, above.
In accordance with the Board’s decision in J. Piccini Floor-
ing, 356 NLRB No. 9, slip op. at 5–6 (2010), I shall recom-
mend that the Respondent be required to distribute the attached
notice to members and employees electronically, if it is cus-
tomary for the Respondent to communicate with employees and
members in that manner. Also in accordance with that deci-
sion, the question as to whether a particular type of electronic
notice is appropriate should be resolved at the compliance
stage. J. Piccini Flooring, above, slip op. at 3. See Teamsters
Local 25, 358 NLRB No. 15 (2012).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, Nexstar Broadcasting Group, Inc. d/b/a
WETM-TV, Elmira, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unilaterally removing the positions of assignment editor
and chief videographer from the following collective-
bargaining unit:
All regular full and part-time employees of the Station en-
gaged in television broadcasting and web streaming at its tel-
evision station WETM in Elmira, N.Y. and said station’s fa-
cilities, including only master control operators, videogra-
phers, creative services producer/directors, anchors, reporters,
newscast directors, production assistants and not any supervi-
sor or managerial roles.
(b) Unilaterally removing the bargaining unit work of the

6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
assignment editor and chief videographer without prior notice
to the Union and without affording the Union an opportunity to
bargain with the Respondent with respect to this conduct.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind its March 26, 2014 removal of the unit positions
of assignment editor and chief videographer and its consequent
removal of the bargaining unit work of those two positions
outside the collective-bargaining unit.
(b) Reinstate John Doland and George Kastenhuber to the
bargaining unit represented by the Union.
(c) Recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees occupy-
ing the positions of assignment editor and chief videographer,
and, upon request, bargain with the Union regarding those em-
ployees’ wages, hours, and other terms and conditions of em-
ployment.
(d) Apply the terms of the collective-bargaining agreement,
effective February 26, 2014, through February 25, 2017, be-
tween the Union and the Respondent, to employees occupying
the assignment editor and chief videographer positions. How-
ever, nothing herein shall be construed to authorize or require
the withdrawal or elimination of any wage increase or other
improved benefits and terms or conditions of employment,
which may have been afforded the assignment editor and chief
videographer, as compared to the wages, benefits, and terms or
conditions of employment of bargaining unit employees.
(e) Make John Doland and George Kastenhuber whole for
any loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth in the
remedy section of the decision.
(f) Remit all contributions it would have made on the em-
ployees’ behalf to employee retirement, 401(k), and/or health
care funds absent its unlawful unilateral changes, and reimburse
John Doland and George Kastenhuber for any expenses they
may have incurred as a result of its failure to make such benefit
fund contributions, in the manner set forth in the remedy sec-
tion, above.
(g) Reimburse International Alliance of Theatrical Stage
Employees and Moving Picture Technicians, Artist and Allied
Crafts of the United States, its Territories, and Canada, AFL–
CIO, for any dues that it would have deducted from Doland and
Kastenhuber and remitted to the Union under the collective-
bargaining agreement absent its unlawful unilateral changes, as
set forth in the remedy section, above.
(h) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its fa-
cility in Elmira, New York, copies of the attached notice
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
marked “Appendix.”7 Copies of the notice, on forms provided
by the Regional Director for Region 3, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 26,
2014.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. January 15, 2015
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT unilaterally remove the positions of assignment
editor and chief videographer from the following collective-
bargaining unit:
All regular full and part-time employees of the Station en-
gaged in television broadcasting and web streaming at its tel-
evision station WETM in Elmira, N.Y. and said station’s fa-
cilities, including only master control operators, videogra-
phers, creative services producer/directors, anchors, reporters,

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
newscast directors, production assistants and not any supervi-
sor or managerial roles.
WE WILL NOT unilaterally remove the bargaining unit work of
the assignment editor and chief videographer without prior
notice to International Alliance of Theatrical State Employees
and Moving Picture Technicians, Artists and Allied Crafts of
the United States, its Territories and Canada, AFL–CIO, and
without affording the Union an opportunity to bargain with the
Respondent with respect to this conduct.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL rescind our March 26, 2014 removal of the unit po-
sitions of assignment editor and chief videographer and our
removal of the bargaining unit work of those two positions
outside the unit.
WE WILL reinstate John Doland and George Kastenhuber to
the bargaining unit represented by the Union.
WE WILL recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of the employees oc-
cupying the positions of assignment editor and chief videogra-
pher, and, upon request, bargain with the Union regarding those
employees’ wages, hours, and other terms and conditions of
employment.
WE WILL apply the terms of the collective-bargaining agree-
ment, effective February 26, 2014, through February 25, 2017,
between the Union and the Respondent, to employees occupy-
ing the assignment editor and chief videographer positions.
However, nothing herein shall be construed to authorize or
require the withdrawal or elimination of any wage increase or
other improved benefits or terms or conditions of employment,
which may have been afforded the assignment editor and chief
videographer, as compared to the wages, benefits, and terms or
conditions of employment of bargaining unit employees.
WE WILL make John Doland and George Kastenhuber whole
for any loss of earnings and other benefits suffered as a result
of the discrimination against them.
WE WILL remit all contributions we would have made on the
employees’ behalf to employee retirement, 401(k), and/or
health care funds absent our unlawful unilateral changes, and
reimburse John Doland and George Kastenhuber for any ex-
penses they may have incurred as a result of our failure to make
such benefit fund contributions.
WE WILL reimburse International Alliance of Theatrical
Stage Employees and Moving Picture Technicians, Artist and
Allied Crafts of the United States, its Territories, and Canada,
AFL–CIO for any dues that it would have deducted from John
Doland and George Kastenhuber and remitted to the Union
under the collective-bargaining agreement absent our unlawful
unilateral changes.
NEXSTAR BROADCASTING GROUP, INC. D/B/A
WETM-TV