Aftra, San Diego Local v. National Labor Relations Board

301 F. App'x 730

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 26, 2008
• Docket: No. 07-71300
• Status: Published

Opinion

MEMORANDUM

**

The American Federation of Television and Radio Artists, San Diego Local (AF-TRA) seeks a review of the National Labor Relations Board (NLRB) decision that Midwest Television, Inc., d/b/a KFMB Stations (KFMB) did not violate Sections 8(a)(1) or 8(a)(5) of the National Labor Relations Act (the Act). See 29 U.S.C. § 158(a)(1) & (5). At issue is whether KFMB violated the Act when it reduced employee Richard Moorten’s hourly wage to the union scale, when Station Manager Ed Trimble sent a letter on September 19, 2001, to all employees explaining the reduction based on AFTRA’s bargaining tactics, and when KFMB withdrew Union recognition. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we refer to only as necessary to explain our decision. For the reasons given below, we now deny AF-TRA’s petition for review.¹

The NLRB determined that KFMB was entitled to unilaterally change Moorten’s above-scale wage rate because it resulted from permissive direct dealing. The NLRB, however, need not have reached this issue. AFTRA had revoked KFMB’s ability to enter into any new personal service contracts (PSCs) after July 31, 2001. Moorten had not submitted a signed PSC by that deadline. Without a signed PSC, KFMB was within its rights to reduce Moorten’s pay to the union scale. When KFMB reduced Moorten’s pay, it simply held AFTRA to its demand. This Court will do the same.

Moreover, Trimble’s September 19 letter did not violate Section 8(a)(1) of the Act. 29 U.S.C. § 158(a)(1). We concur with the NLRB’s determination that the Trimble letter did not threaten employees with unlawful wage reductions in violation of the Act because KFMB’s reduction in Moorten’s wage was lawful.

Finally, the NLRB correctly found that KFMB’s withdrawal of Union recognition was not a violation of Section 8(a)(5) of the Act. 29 U.S.C. § 158(a)(5). The NLRB has previously asserted that “an employer may not withdraw recognition from a union while there are unremedied unfair labor practices tending to cause employees to become disaffected from the union.” In re Miller Waste Mills, Inc., 334 NLRB 466, 468 (2001). Because the reduction in Moorten’s pay and the Trimble letter did not constitute unfair labor practices, no unremedied unfair labor practices existed at the time of the withdrawal.

We conclude that the NLRB properly dismissed AFTRA’s complaint. Accordingly, AFTRA’s petition for review is DENIED.

1 . This Court will "uphold a decision by the [NLRB] if its findings of fact are supported by substantial evidence and if it correctly applied

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. the law.” East Bay Auto. Council v. NLRB, 483 F.3d 628, 633 (9th Cir.2007) (internal quotation marks omitted). The Court will defer to the NLRB’s interpretation and application of the Act as long as it is “reasonable and not precluded by Supreme Court precedent.” NLRB v. Advanced Stretchforming Int’l Inc., 233 F.3d 1176, 1180 (9th Cir.2000) (internal quotation marks omitted).