NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL ASSOCIATION OF No. 22-1782 BROADCAST EMPLOYEES AND NLRB Nos.

TECHNICIANS–COMMUNICATIONS 19-CA-255180

WORKERS OF AMERICA, LOCAL 51, 19-CA-259398

AFL-CIO,

19-CA-262203 Petitioner,

MEMORANDUM*

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent.

NEXSTAR BROADCASTING, INC. DBA No. 22-1783

KOIN-TV,

NLRB Nos. Petitioner, 19-CA-255180 19-CA-259398 v. 19-CA-262203

NATIONAL LABOR RELATIONS

BOARD,

Respondent,

----------------------------------------

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

NATIONAL ASSOCIATION OF

BROADCAST EMPLOYEES AND

TECHNICIANS–COMMUNICATIONS

WORKERS OF AMERICA, LOCAL 51,

AFL-CIO,

Intervenor.

NATIONAL LABOR RELATIONS No. 22-1784

BOARD,

NLRB Nos. Petitioner, 19-CA-255180 19-CA-259398 v. 19-CA-262203

NEXSTAR BROADCASTING, INC. DBA

KOIN-TV; NATIONAL ASSOCIATION

OF BROADCAST EMPLOYEES AND

TECHNICIANS–COMMUNICATIONS

WORKERS OF AMERICA, LOCAL 51,

AFL-CIO,

Respondents.

On Petition for Review of an Order of the National Labor Relations Board

Argued and Submitted May 13, 2024 San Francisco, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and KRONSTADT, District Judge.**

** The Honorable John A. Kronstadt, United States District Judge for the Central District of California, sitting by designation.

2 22-1782 Nexstar Broadcasting, Inc. d/b/a KOIN-TV (“Nexstar”) and the National

Association of Broadcast Employees and Technicians-Communications Workers

of America, Local 51, AFL-CIO (“Union”), each petitions for review of the order

by the National Labor Relations Board (“Board”) finding that Nexstar violated

Sections 8(a)(5) and (1) of the National Labor Relations Act (“NLRA”). The Board

cross-applies for enforcement.1 We have jurisdiction under Section 10(f).2 Both

petitions for review are denied, and the cross-application is granted.

“We must enforce the Board’s order if the Board correctly applied the law

and if the Board’s findings of fact are supported by substantial evidence on the

record viewed as a whole.” NLRB v. Big Bear Supermarkets No. 3, 640 F.2d 924,

1 On July 12, 2023, the Board filed a motion for judicial notice of certain materials that Nexstar filed with the Board. Courts “may take judicial notice of records and reports of administrative bodies,” including the NLRB. Interstate Nat. Gas Co. v. S. California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953). However, the motion is moot because the materials for which judicial notice is requested are not a basis for any of the determinations made in this memorandum. 2 Section 10(f) of the NLRA provides that “[a]ny person aggrieved by a final order of the Board . . . may obtain a review of such order in” an application to a United States court of appeal. 29 U.S.C. §160(f). Nexstar contends that the Union lacks standing because it is not “aggrieved” within the meaning of Section 10(f). A party is aggrieved if it suffered “an adverse effect in fact.” Oil, Chem. & Atomic Workers Loc. Union No. 6-418 v. NLRB, 694 F.2d 1289, 1294 (D.C. Cir. 1982) (quoting Retail Clerks Union 1059 v. NLRB, 348 F.2d 369, 370 (D.C. Cir. 1965)). The Union has standing because it suffered an “adverse effect” when the Board altered certain remedies ordered by the administrative law judge (“ALJ”) which the Union had previously sought.

3 22-1782 928 (9th Cir. 1980); see also Retlaw Broad. Co. v. NLRB, 172 F.3d 660, 664 (9th

Cir. 1999); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

1. Neither Nexstar nor the Union challenges certain unfair labor practice

findings by the Board. “The law is well settled that the Board is entitled to

summary enforcement of the portions of its order that [the petitioner(s)] did not

challenge.” NLRB v. Remington Lodging & Hosp., LLC, 708 F. App’x 425, 425

(9th Cir. 2017) (citing, as an example, Diamond Walnut Growers, Inc. v. NLRB, 53

F.3d 1085, 1087 (9th Cir. 1995)). Summary enforcement is granted as to the

portions of the Board’s order that have not been challenged: specifically, the

Board’s findings that Nexstar violated Section 8(a)(1) of the NLRA by threatening

to revoke wage increases in retaliation for protected activity, prohibiting

employees from discussing the Union or wages, and prohibiting employees from

distributing Union bulletins.

2. Substantial evidence supports the Board’s finding that Nexstar violated

Section 8(a)(1) of the NLRA by distributing communications to employees that

criticized the Union’s initiation fees and monthly dues and claiming that Nexstar

was bargaining with the Union on behalf of employees to reduce those amounts.

Although an employer may express its views about a union, and even disparage it,

such comments are not permitted if they “interfere with, restrain, or coerce

employees in the exercise of [their Section 7] rights.” 29 U.S.C. § 158(a)(1). The

4 22-1782 Board’s finding that Nexstar’s communications violated Section 8(a)(1) was based

on substantial evidence that Nexstar’s communications about the Union were false

and reckless, and that they undermined employee confidence in the Union. See,

e.g., NLRB v. Ingredion Inc., 930 F.3d 509, 515–16 (D.C. Cir. 2019); Trinity Servs.

Grp., Inc. v. NLRB, 998 F.3d 978, 980 (D.C. Cir. 2021). The Board correctly

determined that these communications were not protected under Section 8(c) of the

NLRA because they functioned as “implied promises” that Nexstar was bargaining

on behalf of employees and could deliver better contract terms if the Union stepped

aside. Trinity Servs. Grp., 998 F.3d at 980–81.

3. Substantial evidence supports the Board’s finding that Nexstar violated

Sections 8(a)(5) and (1) of the NLRA by withdrawing recognition from the Union.

“If the union contests the withdrawal of recognition in an unfair labor practice

proceeding, the employer will have to prove by a preponderance of the evidence

that the union had, in fact, lost majority support at the time the employer withdrew

recognition.” Levitz Furniture Co. of the Pac., Inc., 333 NLRB 717, 725 (2001),

overruled on other grounds by Johnson Controls, Inc., 368 NLRB No. 20, 2019

WL 2893706 (July 3, 2019). In attempting to meet its burden of proof before the

Board, Nexstar offered, among other evidence, the testimony of three witnesses

who provided their perceptions of the lack of employee support for the Union. This

evidence was not sufficient to establish that the union had “lost majority support”

5 22-1782 because it was based on hearsay, was not corroborated, and, at most, established

only that some employees were critical of the Union. See Seaport Printing Ad &

Specialties, 344 NLRB 354, 357 n.9 (2005), enforced, 192 F. App’x 290 (5th Cir.

2006); Pacific Coast Supply, LLC, 360 NLRB 538, 542 (2014), enforced, 801 F.3d

321 (D.C. Cir. 2015).

4. Substantial evidence supports the Board’s finding that Nexstar violated

Sections 8(a)(5) and (1) of the NLRA by unilaterally changing certain terms and

conditions of employment. “An employer violates section 8(a)(5) [and (1)] by

making any unilateral changes to the mandatory bargaining subjects covered by

section 8(d).” Unite Here! Loc. 878, AFL-CIO v. NLRB, Nos. 21-70388 & 21-

70700, 2022 WL 3010171, at *1 (9th Cir. July 29, 2022) (quoting Loc. Joint Exec.

Bd. of Las Vegas v. NLRB, 540 F.3d 1072, 1078 (9th Cir. 2008)). Nexstar made

such “unilateral changes” to “mandatory bargaining subjects” by assigning a non-

bargaining employee to perform bargaining unit work, and by changing a “past

practice” with respect to employee leave.

5. Substantial evidence supports the Board’s finding that Nexstar violated

Sections 8(a)(5) and (1) of the NLRA by failing to bargain in good faith. “Findings

as to the good faith of parties involved in collective bargaining is a matter for the

Board’s expertise and will not be upset unless unsupported by substantial

evidence.” NLRB v. Dent, 534 F.2d 844, 846 (9th Cir. 1976). The Board’s finding

6 22-1782 was based on evidence that Nexstar failed to provide information requested by the

Union, summarily rejected Union proposals, did not present counterproposals, and

engaged in other conduct consistent with surface bargaining. See, e.g., K-Mart

Corp. v. NLRB, 626 F.2d 704, 707 (9th Cir. 1980) (“The refusal to furnish

[relevant] requested information is in itself an unfair labor practice, and also

supports the inference of surface bargaining.”); NLRB v. Grill Concepts Servs.,

Inc., Nos. 23-78 & 23-361, 2024 WL 726641, at *1 (9th Cir. Feb. 22, 2024)

(employer “engaged in surface bargaining by failing to consider the Union’s

proposals or present counterproposals”). In concluding that this conduct

demonstrated Nexstar’s “unwillingness to bargain in good faith,” Queen Mary

Restaurants Corp. v. NLRB, 560 F.2d 403, 407 (9th Cir. 1977), the Board properly

considered the “totality of [Nexstar’s] conduct,” Frankl v. HTH Corp., 650 F.3d

1334, 1358 (9th Cir. 2011) (quoting Hardesty Co., 336 NLRB 258, 259 (2001)).

6. Nexstar presented five affirmative defenses to the Board as to its alleged

unfair labor practices. Specifically, Nexstar claimed that the Union itself bargained

in bad faith, which in turn excused Nexstar’s conduct. Nexstar contends that the

Board did not fully consider its affirmative defenses. However, the record shows

that the Board reasonably evaluated, and then rejected, each of the affirmative

defenses. Further, even assuming that the “facts are open to conflicting inferences,

. . . we are not at liberty to draw an inference different from the one drawn by the

7 22-1782 Board, even though it may seem more plausible and reasonable to us.” NLRB v.

Millmen, Loc. 550, 367 F.2d 953, 956 (9th Cir. 1966).

7. Nexstar challenges three remedies ordered by the Board: (1) an

affirmative bargaining order; (2) an affirmative bargaining schedule; and (3) an

order that Nexstar provide make-whole relief to employee negotiators. “Once it is

established that the Board correctly found that there had been unfair labor

practices, its selection of a remedy is accorded great deference.” NLRB v. Selvin,

527 F.2d 1273, 1277 (9th Cir. 1975). Further, the Board “is granted broad

discretion in devising remedies to undo the effects of violations of the [NLRA].”

Detroit Edison Co. v. NLRB, 440 U.S. 301, 316 (1979). Each of the remedies

ordered by the Board complies with these standards. The remedies were also

consistent with the prior interim injunction entered by a United States District

Court on March 29, 2021. See Hooks v. Nexstar Broad., Inc., No. 21-CV-00177-

MO, 2021 WL 1289750 (D. Or. Mar. 29, 2021), vacated on other grounds, 54

F.4th 1101 (9th Cir. 2022). Accordingly, ordering these remedies did not constitute

a “clear abuse of [the Board’s] discretion.” Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d

304, 308 (9th Cir. 1996) (quoting NLRB v. C.E. Wylie Constr. Co., 934 F.2d 234,

236 (9th Cir. 1991)).

Nexstar and the Union each objects to other remedies ordered by the Board

but did not present these objections to the Board. Therefore, we cannot consider

8 22-1782 them under Section 10(e) in the absence of “extraordinary circumstances.” NLRB

v. Legacy Health Sys., 662 F.3d 1124, 1126 (9th Cir. 2011) (quoting 29 U.S.C.

§ 160(e)). The Union contends that there are extraordinary circumstances because,

had the Union delayed its appeal in order to file a motion for reconsideration with

the Board, it may have lost the ability to proceed in the circuit of its choosing. This

argument is waived, however, because it was not presented in the Union’s opening

brief. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013)

(issues not specifically raised and argued in a party’s opening brief are waived).

8. The Union requests that we remand this action to the Board so that it can

evaluate any effect of its intervening decision in Thryv, Inc., 372 NLRB No. 22

(Dec. 13, 2022), vacated in part, No. 23-60142, 2024 WL 2501700 (5th Cir. May

24, 2024), on the make-whole relief order. An appellate court “reviewing an

agency decision following an intervening change of policy by the agency should

remand to permit the agency to decide in the first instance whether giving the

change retrospective effect will best effectuate the policies underlying the agency’s

governing act.” NLRB v. Food Store Emps. Union, Loc. 347, 417 U.S. 1, 10 n.10

(1974). Thryv “revisit[ed] and clarif[ied] [the Board’s] practice” with respect to

make-whole relief. Thryv, 372 NLRB at *9. It is not clear that this is an

“intervening change of [Board] policy.” Food Store Emps. Union, 417 U.S. at 10

n.10. For this reason, a remand to the Board is not warranted.

9 22-1782 Even if there were an appropriate basis for remand, because the Union failed

to raise its request before the Board, we are again barred from considering it in the

absence of “extraordinary circumstances.” Legacy Health Sys., 662 F.3d at 1126.

The Union contends there are extraordinary circumstances because Thryv was not

issued until after the deadline for the Union to file a timely motion for

reconsideration. But “[t]he courts of appeals have generally held that intervening

decisional law that suggests to a party a new ground for objection to a Board order

is not an extraordinary circumstance within the meaning of section 10(e).”

Szewczuga v. NLRB, 686 F.2d 962, 971 (D.C. Cir. 1982); see also, e.g., NLRB v.

Pinkerton’s Nat. Detective Agency, 202 F.2d 230, 233 (9th Cir. 1953) (declining to

“remand to the Board for consideration of a new objection” arising from case that

was “handed down shortly before [] oral argument”); Cascade Employers Ass’n v.

NLRB, 404 F.2d 490, 492–93 (9th Cir. 1968) (“no extraordinary circumstances

present” where petitioner raised objection based on doctrine that “was not clear

until after their case had been heard before the Board”). Accordingly, no

extraordinary circumstances are present.

CROSS-APPLICATION FOR ENFORCEMENT GRANTED; PETITIONS

FOR REVIEW DENIED.

10 22-1782