Oeuvray v. National Labor Relations Board

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 9, 2024
• Docket: 23-3128
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICOLE OEUVRAY, No. 23-3128 NLRB No. 31-CA-268924 Petitioner,

v. MEMORANDUM*

NATIONAL LABOR RELATIONS BOARD,

Respondent.

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

Submitted October 7, 2024** San Francisco, California

Before: McKEOWN, KOH, and JOHNSTONE, Circuit Judges.

Nicole Oeuvray petitions for review of the order by the National Labor

Relations Board (“NLRB”) dismissing her unfair labor practice complaint against

Art Directors Guild, Local 800, IATSE (“the Guild”). We have jurisdiction under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 29 U.S.C. § 160(f), also known as section 10(f) of the National Labor Relations

Act. We deny the petition.

1. In reviewing orders of the NLRB, “we must uphold the agency’s

decision if it correctly applied the law and its factual findings are supported by

substantial evidence.” NLRB v. Nexstar Broad., Inc., 4 F.4th 801, 805–06 (9th Cir.

2021) (internal quotation marks omitted). Substantial evidence “means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion,” after considering “the whole record.” Universal Camera Corp. v.

NLRB, 340 U.S. 474, 477, 488 (1951). Additionally, although the findings of an

“impartial, experienced” administrative law judge (“ALJ”) “who has observed the

witnesses and lived with the case” are “to be considered along with the consistency

and inherent probability of testimony,” the “‘substantial evidence’ standard is not

modified in any way” simply because the NLRB disagrees with the ALJ. Id. at

496–97.

2. Substantial evidence supports the NLRB’s finding that the Guild

would have terminated Oeuvray even in the absence of her protected union

activities. The NLRB assumed without deciding that Oeuvray’s protected union

activities were a motivating factor in her termination but concluded that the Guild

would have terminated her anyway. In support of this conclusion, the NLRB

found that Guild executives had been dissatisfied with Oeuvray’s work

2 performance, had complained about her performance for several years beginning in

2016, and had specifically expressed a desire to terminate her in February 2019—

before Oeuvray began her (ultimately successful) efforts to unionize Guild staffers

in March 2019. Oeuvray disputes this finding on the basis that the ALJ had found

the testimony of Guild executives Oana Miller and Chuck Parker describing her

history of poor performance as not credible, but the NLRB found “no basis for

reversing” the ALJ’s credibility findings. Accordingly, Oeuvray contends, the

NLRB could not rely on any evidence from Miller and Parker, such as the

February 2019 emails, in support of its conclusion.

Oeuvray’s contention lacks merit. The NLRB permissibly relied upon

Miller and Parker’s emails predating Oeuvray’s protected union activities even

though the ALJ determined that Miller and Parker were not credible witnesses at

trial. As we have recognized, although an ALJ is best positioned to observe a

witness’s demeanor on the stand, the NLRB is best positioned to draw “derivative

inferences” from the record as a whole. Penasquitos Village, Inc. v. NLRB, 565

F.2d 1074, 1078–79 (9th Cir. 1977). In any event, the ALJ’s decision never

suggested that Miller and Parker’s emails predating Oeuvray’s union activities—as

opposed to their trial testimony—were unreliable, so the NLRB had no such ALJ

finding to reject.

Accordingly, Oeuvray’s insistence that she had a “spotless” disciplinary

3 history prior to April 2019 is contradicted by the record. The record demonstrates

that Guild management discussed their criticism of Oeuvray’s work performance

with her on multiple occasions dating back to 2016. Lastly, Oeuvray purports to

rely on the ALJ’s finding that she never received a complaint about “late or

inaccurate financial reports” until April 2019. Yet Oeuvray selectively quotes the

ALJ’s decision, which expressly stated that Oeuvray received complaints not only

in April 2019 but also in the February 23, 2019 email Oeuvray received from

Miller. The record further demonstrates that Guild management’s issues with

Oeuvray’s performance after April 2019 were the same as they were before April

2019. Oeuvray’s termination in March 2020 was a direct and forewarned result of

the same issue as had displeased management over the years: missing a financial

reporting deadline set by her supervisors.

The record provides substantial evidence supporting the NLRB’s conclusion.

Even assuming that the evidence is open to reasonable conflicting interpretations,

we are not empowered to “displace the Board’s choice between two fairly

conflicting views,” even if we might have “made a different choice had the matter

been before [us] de novo.” Universal Camera, 340 U.S. at 488. In short, the

record does not “compel a contrary conclusion” to that of the NLRB. Int’l All. of

Theatrical Stage Emps. v. NLRB, 957 F.3d 1006, 1020 (9th Cir. 2020) (internal

4 quotation marks omitted).1

3. Oeuvray also challenges the NLRB’s decision on the grounds that (1)

she was not disciplined (and in fact received a merit pay increase) after a 2017

incident in which she inadvertently bounced a check, causing a “prolonged

struggle” for reimbursement at the Guild; and (2) that the Guild did not discipline

two other employees who did not engage in protected union activities, including an

employee accused of harassment and Oeuvray’s own replacement, who

inadvertently issued duplicative paychecks to the Guild’s salaried employees

during her first month or two in the position. Assuming without deciding that such

facts could help Oeuvray prove that her protected union activities were a

motivating factor in the Guild’s decision to terminate her, however, they do not

undermine the NLRB’s conclusion that the Guild would have terminated Oeuvray

anyway.

PETITION DENIED.

1 Moreover, Oeuvray does not contend that Miller and Parker’s emails predating her protected union activities are inauthentic but rather implies that the emails fabricated reasons to terminate her. If true, then Miller and Parker indisputably intended to terminate Oeuvray even before she began engaging in protected union activities.