372 NLRB No. 123
NOTICE: This opinion is subject to formal revision before publication in the
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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
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
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