NLRB Rules Accountant Was Fired For Union Activities – Deadline

In a stinging rebuke of the Art Directors Guild and Chuck Parker, its national executive director, an NLRB administrative law judge has found that Parker “unlawfully” fired the guild’s longtime accountant “in retaliation” for her successful efforts to form a union among the guild’s staff.

In a statement to Deadline, the guild said that “This is an ongoing matter and will be appealed,””

Nicole Oeuvray, who had been the guild’s head accountant for 16 years, was a leader of the campaign to unionize the guild’s staff back in 2019 under the auspices of Local 537 of the Office of Professional Employees International Union (OPEIU). The 3,500-member guild, which is one of only three IATSE locals with national jurisdiction, is headquartered in Studio City, Ca. with an office staff of fewer than 30 employees. In his testimony, Parker described the environment of the smallish office as a “fishbowl.”

The campaign to unionize was opposed by Parker and the guild – the “Respondent” in the complaint Oeuvray filed with the National Labor Relations Board in November 2020. Three days of hearings were held virtually last August.

In his 38-page decision, handed down on Friday, Judge Gerald Etchingham found that Parker’s stated reasons for firing Oeuvray on May 15, 2020, were “pretextual and her discharge was discriminatorily motivated.” Parker claimed that she was fired because she had written a check that bounced due to insufficient funds in a guild account back in 2017; because she was late with her financial reports, and because she wasn’t getting along with some members of the guild’s Illustrators & Matte Artists Council.

Judge Etchingham, however, found that the real reason she was fired was because of her “key role as union organizer.” At one point during the unionizing effort, Parker was overheard loudly saying “Fuck OPEIU.”

During the organizing drive in September 2019, the judge wrote in his decision, Oeuvray “recognized Parker’s voice and observed him at (the guild’s) facility in the presence of Oeuvray, who was in the kitchen of the facility approximately 10–15 feet away from Parker, and Oeuvray clearly heard Parker” when he said “fuck OPEIU very loudly so other bargaining unit employees and management would hear it.”

See the judge’s decision here:

Lydia Prescott, the guild’s director of member services, testified that she heard it, too. “Prescott also heard Parker’s profane outburst,” the judge wrote, “and was surprised to hear Parker say to her: ‘fuck OPEIU’ as he left her office at the end of their meeting. Prescott specifically recalled that Parker had been in her office and they were discussing something about the organizing employee staff, and as he was leaving Prescott’s office, she asked him if he needed her to also discuss the matter they had been discussing with OPEIU, and Parker’s shocking answer to Prescott as heard throughout the facility was: ‘fuck OPEIU.’”

The judge wrote that “Parker’s outburst surprised Prescott because she ‘did not expect to hear fuck and OPEIU in the same sentence.’”

Parker, who was re-elected in April, “does not deny saying ‘fuck OPEIU,’” the judge wrote. “But attempts to explain it as simply being frustrated and wanting to blow off steam because he had to spend time on less important union organizing considerations, and OPEIU coming into Respondent was viewed by Parker as ‘something that was inconveniencing (him).’”

According to the judge, “Parker’s offensive and profane outburst in September 2019 yelling, ‘fuck OPEIU’ in the presence of Oeuvray, Prescott, and other employees indicates that Parker was opposed to the Union representing Respondent’s employees and harbored antiunion sentiments.”

The guild could have voluntarily recognized the OPEIU as the bargaining representative for its then-28-member staff, but chose instead to force a representational election. The guild even tried to exclude Oeuvray from being allowed to vote, claiming that she was a “confidential employee” – a claim that the NLRB rejected.

The election was acrimonious. As Deadline reported in 2019, supporters of the unionization drive claimed that the leadership of the guild, IATSE Local 800, added six part-time employees to the bargaining unit after the representation cards were signed in order to defeat the drive – a charge the guild flatly denied. They also accused Casey Bernay, the local’s director of education, of “union busting” – a charge she vehemently and angrily denied.

“I heard that there is someone over there trying to union-bust,” Jacqueline White-Brown, OPEIU Local 537’s business manager/secretary-treasurer, told Deadline at the time. “That is what I heard from another employee.” Even so, White said that “We are looking forward to winning this election and to be able to provide them with a collective bargaining agreement. Just as Local 800 has a wonderful contract for their members, we are looking to do the same for ours. We want to be the union inside the union.” Local 537 also represents the office staff at SAG-AFTRA.

When Parker fired Oeuvray in May of 2020, she was just three months’ short of vesting in the Motion Picture Industry Health Plan. She pleaded with him to allow her to stay on until September, when, on her 62nd birthday, she’d be fully vested for lifetime health benefits, “rather than lose them because she fell three months short.” And during those three months, she told Parker, she could train her replacement.

And her duties were extensive. As part of her job, she sat in at all treasurer and trustees’ meetings and oversaw all of the guild’s financial books and accounts. She was responsible for maintaining the guild’s accounts payable and accounts receivable, paying its bills on time and recording receipts and deposits in a timely manner. She also oversaw cash flow; was responsible for preparing the guild’s monthly financial statements; provided financial information for its annual audit and oversaw the filing of the guild’s annual LM-2 financial reports to the U.S. Dept. of Labor. She also participated in the preparation of the guild’s annual budgets and provided monthly or bimonthly financial reports to the guild’s treasurer.

Later that day, Parker told her that he had talked it over with the board of directors, and that they and Treasurer Oana Miller had lost confidence in her work and wanted her to be terminated immediately.

Finding no evidence that her work had been unsatisfactory, the judge ruled that she was in fact “terminated by Parker and (the guild) for her union activities.”

In arriving at that conclusion, the judge wrote: “I find witness demeanor a critical factor in resolving this case. Based on consideration of the arguments of counsel on the issue, but relying to a very large degree on my conclusions regarding the relative demeanor of the conflicting witnesses as well as the concurrent documentary evidence or lack thereof,” he said he found the testimony of Oeuvray and Prescott, who corroborated much of her testimony, to be far more credible than that of Parker and Miller, who is now the treasurer of the Art Directors Council.

“Once more, when I review the documentary evidence in this case, I find Oeuvray much more believable when I observed her testify on this subject in contrast with Parker and Miller whose testimony is rejected,” the judge wrote.

And Prescott “was a very credible witness,” he wrote, noting that “her testimony is quite believable as she faced the wrath of Respondent’s management, including Supervisor Parker, who has shown to be arbitrary and discriminatory in his treatment of employees, so her factual recollection and opinions are made with risk to Prescott, but I find that they are more aligned with Oeuvray’s version of the facts than Parker’s.

“In contrast, I found the testimony of Treasurer Miller and Supervisor Parker to be particularly unpersuasive as a result of their inferior demeanors as compared to the other witnesses.”

“After observing Parker testify at hearing,” the judge wrote, “I further find that he was very full of himself and was nonresponsive as he seemed to prefer listening to himself talk rather than directly answer questions posed to him. Only Treasurer Miller was less credible than Parker. I observed Parker to be a very arrogant witness who was outwardly annoyed by being one of Oeuvray’s direct supervisors as he openly scorned the OPEIU Union and was mostly focused on his membership and could not be bothered with the day-to-day inner workings of Respondent’s accounting department or Oeuvray or her work duties.”

The judge also found that there is “strong evidence” that the guild “treats its employees inconsistently despite its professed progressive discipline system.” As an example of that, he pointed out that Casey Bernay, who retired last September as the guild’s longtime director of education and special projects, had “engaged in serious misconduct that no reasonable employer would or should tolerate without discipline. Bernay has been involved in several hostile work events and did not present data on time as requested by Treasurer Miller, yet she did not receive any discipline such as a verbal warning or 1st written warning, let alone a suspension, final warning or termination like Oeuvray. Bernay receiving no discipline for these hostile events evidence disparate treatment for missing a deadline for submitting data to Treasurer Miller or bad behavior in general toward co-workers. Once again, given that Parker for Respondent has permitted Bernay to mistreat co-workers and fail in her duties without so much as a reprimand or written warning at Stage 1, I view (the guild’s) conduct and treatment of Oeuvray as discriminatory.”

According to the judge, a significant factor in Oeuvray’s firing stemmed from what he called the guild’s “historically strained relations” with its New York-based Illustrators and Matte Artists Council (IMA Council) – and Parker’s own “personality differences” with the IMA Council, which was forced to merge with the guild in 2008 after acrimonious litigation. The IMA Council is one of four craft councils that represent the guild’s members. The others represent art directors, set designers and scenic & graphic artists.

The judge noted that the IMA Council “never wanted to be associated with Respondent (the guild) in California as they are in New York but was forced to” merge as a result of litigation.

In his decision, the judge wrote that Oeuvray’s interactions with the IMA Council “have not been amicable at any time” since 2008, and that she described her dealings with the IMA Council as being “hostile,” even though she had nothing to do with the forced merger. “Oeuvray confirms that the IMA Council does not want to be represented by Respondent (the guild),” the judge wrote, “and that in the past there was federal litigation that Respondent won to force the IMA Council to become one of Respondent’s craft councils over the IMA Council’s objections. So, these hostile relations that started in 2008 have continued to 2016,” when Parker became the guild’s national executive director.

Those strained relations were only made worse in February 2017 in what the judge called the “bounced check incident,” which occurred when a check in the amount of approximately $29,000 had been requested by the IMA Council and drawn up by Oeuvray for signatures from guild officials and the IMA Council. “This check bounced for insufficient funds in the IMA Council’s bank account,” the judge wrote, noting that this was “apparently the one and only time that a check had bounced” at the guild.

“Rather than provide a fair and balanced progressive discipline to Oeuvray for her late-submitted reports or accounting deficiencies,” the judge wrote, “Parker preferred a quick termination and repeated disciplines for the same bounced check incident from 2017 so that Parker could satisfy the IMA Council and terminate Oeuvray by using the bounced check incident against her two times on April 5, 2019 and again on May 15, 2020 despite not disciplining Oeuvray at all in February 2017 when the bounced check incident occurred.”

The judge also found that “Parker fabricated additional supporting allegations that Oeuvray could not work with the IMA Council in an amicable way. Parker, instead, could never get past the bounced check incident and let his personality differences with the IMA Council management dominate his unlawful treatment of Oeuvray as the IMA Council unfairly caused Parker to base his termination of Oeuvray on the bounced check incident from 2017 and a made-up story that Oeuvray could not work amicable with the IMA Council when it was Parker who could not work with the IMA Council in an amicable manner, especially as they continued to withhold the $29,000 in unpaid dues owed to (the guild) from 2017.”

To remedy the guild’s violations of the National Labor Relations Act, the judge ordered that Oeuvray be given her old job back; that she be made whole for the two years of income she lost – plus interest – and that Parker himself must read the judge’s remedial notice out loud to the guild’s employees or have an agent of the NLRB read it to the employees in Parker’s presence. In 2019, her last full year of employment at the guild, Oeuvray earned $83,535, according to financial reports the guild filed with the U.S. Dept. of Labor.

“A public reading of my remedial notice is appropriate here given the especially egregious conduct by Respondent’s executive director and treasurer immediately after union activities began and all during the union campaign which resulted in a successful vote in favor of the OPEIU on November 22, 2019,” the judge wrote. “The Respondent’s violations of the (National Labor Relations Act) are sufficiently serious and anything less would chill the momentum the (OPEIU) Union has created in 2019 and 2020. The reading of the notice is necessary to dissipate as much as possible any lingering effects of the Respondent’s egregious conduct, and to enable employees to exercise their Section 7 rights (to organize) free of coercion.

“Therefore, I will require that the remedial notice be read aloud to the Respondent’s employees by Supervisor Parker – or, if he is no longer employed by the Respondent, the current national executive director of Respondent – in the presence of a (NLRB) Board agent or, at the Respondent’s option, by a Board agent in that official’s presence.”

The judge also ordered the guild to post a notice in its offices that acknowledges that “The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.”

Specifically, the notice must inform the guild’s employees that “Federal labor law gives you the right to form, join, or assist a union; choose a representative to bargain with us on your behalf; act together with other employees for your benefit and protection, and choose not to engage in any of these protected activities.”

The notice must also say that “We will not do anything to prevent you from exercising the above rights. We will not terminate you because of your union activities. We will not in any like or related manner interfere with your rights under Section 7 of the Act.”

It must also say:

  • We will offer Nicole Oeuvray immediate and full reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights and/or privileges previously enjoyed because we discharged her.
  • We will make whole Oeuvray for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest, and any excess tax liability.
  • We will, within 14 days, remove from our files all references to the discharge of Oeuvray and we will, within three days thereafter, notify Oeuvray in writing that we have taken these actions, and that the materials removed will not be used as a basis for any future personnel action against her or referred to in response to any inquiry from any employer, employment agency, unemployment insurance office, or reference seeker, or otherwise used against her.
  • We will compensate Oeuvray for the adverse tax consequences, if any, of receiving a lump-sum back-pay award.
  • And we will file with the Regional Director for Region 31, within 21 days of the date the amount of back-pay is fixed, either by agreement or Board order, a report allocating the back-pay award to the appropriate calendar years.

The notice, which must be posted within 14 days of the judge’s order, must be posted and maintained for 60 consecutive days “in conspicuous places including all places where notices to employees are customarily posted,” the judge wrote. “Reasonable steps shall be taken by the (guild) to ensure that the notices are not altered, defaced, or covered by any other material. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the (guild) customarily communicates with its employees by such means.”

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