Art Directors Guild, (2023)

• Date: 15 August 2023

372 NLRB No. 123

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.

Art Directors Guild, Local 800, IATSE and Nicole

Oeuvray. Case 31–CA–268924

August 15, 2023

DECISION AND ORDER

BY CHAIRMANMCFERRAN AND MEMBERS KAPLAN AND

WILCOX

On July 29, 2022, Administrative Law Judge Gerald M.

Etchingham issued the attached decision, and on August

4, 2022, he issued an errata. The Respondent filed excep-

tions and a supporting brief, the General Counsel filed an

answering brief, 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 exceptions1and briefs and has decided to af-

firm the judge’s rulings, findings, and conclusions only to

the extent consistent with this Decision and Order.2

The sole issue before the Board is whether the Respond-

ent violated Section 8(a)(3) and (1) of the Act by discharg-

ing employee Nicole Oeuvray for her role in a successful

organizing campaign by the Respondent’s employees.

The judge found that the General Counsel sustained her

initial burden under Wright Line,3and that the Respondent

did not meet its defense burden of proving that it would

have discharged Oeuvray in the absence of her union ac-

tivities. Contrary to the judge, we find that the discharge

did not violate the Act. As explained below, we find that

even assuming the General Counsel met her initial burden

under Wright Line, the record shows that the Respondent

would have discharged Oeuvray even in the absence of her

union activities.4

I. FACTS

The Respondent, a labor union, represents entertain-

ment industry employees grouped into four craft councils,

including the Illustrators and Matte Artists (IMA)

1The Respondent has requested oral argument. The request is denied

as the record, exceptions, and briefs adequately present the issues and the

positions of the parties.

2The Respondent has excepted to some of the judge's credibility find-

ings. The Board's established policy is not to overrule an administrative

law judge's credibility resolutions unless the clear preponderance 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 addition, some of the Respondent’s exceptions allege

that the judge’s rulings, findings, and conclusions demonstrate bias and

prejudice. On careful examination of the judge’s decision and the entire

Council. Each craft council has its own elected leadership

and bank account. The Respondent is governed by a

Board of Directors, which is composed of four officers

elected by the entire union membership (President, Vice

President, Secretary, and Treasurer), as well as represent-

atives from the craft councils. The Respondent’s day-to-

day affairs, including staffing, are managed by a National

Executive Director (NED). The NED is also elected by

the Respondent’s entire membership and is subject to the

supervision and direction of the Respondent’s Board of

Directors.

In 2004, the Respondent hired Charging Party Nicole

Oeuvray as an accountant. Among other duties, Oeuvray

oversaw the Respondent’s financial books and accounts,

maintained its accounts payable and accounts receivable,

maintained craft council bank accounts (including draw-

ing up checks requested by the councils), and prepared fi-

nancial reports. In advance of monthly Board of Direc-

tors’ meetings, Oeuvray was required to email financial

reports to the Respondent’s Treasurer.

In 2015, Oana Miller was elected to serve as the Re-

spondent’s Treasurer. The following year, Chuck Parker

was elected to serve as the Respondent’s NED.

In February 2017, at the request of the IMA Council,

Oeuvray prepared a $29,000 check from the Council to the

Respondent despite insufficient funds in the Council’s

bank account to cover the check. Oeuvray’s check

bounced. Oeuvray had been unaware that the prior week,

when she had been out sick, another check had been drawn

from the same account. Oeuvray acknowledged that her

interactions with the Council had been “hostile” since

2008 and, as the judge found, the bounced check upset the

Council. Indeed, the Council resisted repaying the

$29,000 and had not paid it back even by when Oeuvray

was fired three years later.

Around the same time, Parker and Miller expressed

frustrations with Oeuvray’s failure to produce financial

statements in a timely manner. Beginning in 2016, Miller

had several conversations with Oeuvray about the need to

shorten her turnaround in providing monthly financial

record, we are satisfied that the Respondent’s contentions are without

merit.

3251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),

cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation

Management Corp.,462 U.S. 393 (1983).

4Member Kaplan does not disagree with his colleagues' conclusion

that the Respondent met its rebuttal burden under Wright Line, but he

would not reach that question. For the reasons discussed in fn. 7, infra,

he would find that the General Counsel failed to meet her initial Wright

Line burden to prove that Oeuvray’s discharge was motivated by her Sec.

7 activity because the General Counsel did not present evidence ade-

quately showing that the Respondent had animus against her organizing

activity.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

2

statements. In April 2017, Miller emailed Oeuvray about

this issue, requesting technological and departmental

changes to assure that the Board of Directors received up-

to-date financials. Towards the end of 2017, the Respond-

ent hired an assistant to provide Oeuvray with extra help

in carrying out her duties. In November 2017, in response

to Parker soliciting feedback on Oeuvray’s performance,

Miller emailed Parker that Oeuvray was “difficult to work

with on some occasions,” complaining, among other

things, that it “sometimes t[ook] many days to get a re-

sponse,” that she had to “constantly remind [Oeuvray] to

generate reports,” and that she had been “met with re-

sistance” on the implementation of modern accounting

technologies.

As of February 2019, Parker was inclined to fire Oeu-

vray for her purported performance issues. On February

23, Miller emailed Oeuvray that she needed to send the

January financial statements as soon as possible. After re-

ceiving no response, Miller forwarded this request to Par-

ker on February 27, noting that Oeuvray had not provided

the financial statements for the Board of Directors meeting

that night. On February 28, Parker responded to Miller

that he thought it was “time to make a change in the posi-

tion” based on Miller’s “repeated requests for more timely

delivery of monthly financial reports” and Oeuvray’s “his-

tory of resistance to the structural changes” that Miller

thought were in the best interests of the Respondent. Par-

ker noted further, “I will have the discussion with [Re-

spondent’s counsel] about the best way to minimize our

exposure to legal retaliation.” Parker and Miller thereafter

continued to discuss their concerns about Oeuvray’s job

performance.

In March 2019, Oeuvray and her colleague contacted

the Office & Professional Employees International Union,

Local 537, AFL–CIO (“OPEIU” or “the Union”) about or-

ganizing the Respondent’s employees at its office in Stu-

dio City, California, where Oeuvray worked. Near the end

of March, Oeuvary began actively participating in a staff

union organizing campaign. Among other organizing ac-

tivites, Oeuvary solicited employees to sign union author-

ization cards at the office. Parker and Miller knew of Oeu-

vray’s union activities soon after they began.

During a Board of Directors’ meeting on March 27,

2019, Parker and Miller raised their concerns about Oeu-

vray’s job performance. Based on the information pro-

vided by Parker and Miller, the Board of Directors di-

rected Parker to conduct an investigation and meet with

Oeuvray to discuss her performance issues. On April 5,

2019, Parker met with Oeuvray and gave her a “Final

Warning.” This written discipline took the form of a

memorandum entitled “Investigative Interview,” which

memorialized the discussion at the meeting and was pro-

vided to Oeuvray shortly after the meeting.

The Final Warning stated that Oeuvray had “lost the

confidence of the governing bodies of our organizations”

and identified the two performance issues referenced

above as the “two items of concern” leading to that disci-

pline. During the Final Warning meeting, Oeuvray argued

that she was not at fault for the bounced check because she

had been out sick. Parker disagreed because he felt that,

given her status as head of the accounting department, she

was responsible. Parker explained further that the incident

had created ill will and that his focus was on the “optics”

to the IMA Council rather than “fairness” to Oeuvray.

With respect to the timely delivery of financial infor-

mation, Oeuvray was advised that, going forward, she was

expected to provide certain information to Parker every

Monday by 5 p.m. She also was advised that any repeti-

tion of conduct that was discussed or covered in the meet-

ing could result in her immediate termination.

In July 2019, the Union filed a petition in Case 31-RC-

244356 seeking to become the representative of certain

employees employed at the Respondent’s Studio City Of-

fice. The Region conducted an election later that month.

The Respondent challenged the voting eligibility of Oeu-

vray, and the Region scheduled a September 2019 hearing

in which Oeuvray testified. Also in September 2019, Par-

ker loudly yelled “fuck OPEIU” in the Respondent’s of-

fice while petitioned-for employees, including Oeuvray,

were present. After resolving eligibility disputes, includ-

ing finding that Oeuvray was properly included in the unit,

the Regional Director certified the Union as the repre-

sentative of the bargaining unit on November 22, 2019.

During a December 2019 meeting, Parker and Miller in-

formed the Board of Directors that Oeuvray’s poor perfor-

mance had continued after the Final Warning. The Board

of Directors authorized the dismissal of Oeuvray if her job

performance did not improve.

In March 2020, Oeuvray missed the Monday 5 p.m.

deadline specified in the Final Warning. Oeuvray apolo-

gized for the delay and sent the financial statements the

following day. In late April or early May 2020, Parker

and Miller had a discussion with the Respondent’s Presi-

dent about terminating Oeuvray and finding a replace-

ment, and ultimately hired Yvette Quiroz to start on May

18, 2020.

On May 15, 2020, Parker met with Oeuvray and in-

formed her that she was being fired for cause effective im-

mediately. Oeuvray and the Union received a termination

letter that identified the basis for the discharge as:

Repeated instances of failure to provide timely financial

information to the Board of Directors, Councils and