Art Directors Guild, (2023)

Date15 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 31CA268924
August 15, 2023
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
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
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
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
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
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
In March 2019, Oeuvray and her colleague contacted
the Office & Professional Employees International Union,
Local 537, AFLCIO (“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

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