Cuba Broadcaster Loses Appeal in Union Dustup

     (CN) – The D.C. Circuit refused to disturb a finding that the provider of federally funded radio and television programming to Cuba fired 16 employees in “bad faith.”
     “Compared to the charges of cronyism, waste, and mismanagement that dominated this dispute in its earlier stages, the legal issue we confront is quite tame,” the opinion filed Friday begins.
     At issue is the Office of Cuba Broadcasting, a division of the Broadcasting Board of Governors, which broadcasts for airplay in Cuba everything from radio and televised baseball games to pro-democracy documentaries.
     But as long as the office has existed, the Cuban government has actively sought to jam its signal. The broadcaster has tried many ways of getting its content to the island, including broadcasting from an airplane flying as close to Cuba as possible.
     It is unclear to what extent these expensive tactics have been effective. A 2009 survey indicated that the blocking campaign has been very successful, and less than 1 percent of Cuba’s citizens watched or listened to the office’s programming.
     In response to critics, Congress reduced the office’s budget by $4.2 million in 2009, anticipating that it could continue to operate without its expensive airplane program.
     Instead of grounding the plane, however, the office decided to cut its workforce and terminate 16 employees.
     The union representing the employees, the American Federation of Government Employees, Local 1812, filed a grievance accusing the office of unjustified layoffs.
     Agreeing with the union, an arbitrator said the firings were part of the former office director’s “bad faith plan to at least intimidate, if not actually get rid of, his internal critics.”
     Finding that the violation of the collective-bargaining agreement was an independent basis for affirming the award, the Federal Labor Relations Authority (FLRA) said it did not need to address the union’s unfair labor-practice claim.
     This led the board of governors to seek review from the D.C. Circuit, but a three-judge panel of that court said Friday that it does not have jurisdiction to review an order that does not assert an “unfair labor practice.”
     “The FLRA must do more than simply note the existence of an unfair labor practice claim for its order to ‘involve’ an unfair labor practice – indeed, even explaining why it will not address an unfair labor practice argument is insufficient,” Judge David Tatel wrote for the panel.
     There is also no basis for the argument that the FLRA’s order gives the court jurisdiction by implicating sovereign immunity, according to the 13-page ruling.
     “Even assuming that we always have jurisdiction to review FLRA orders that implicate principles of sovereign immunity, the order at issue here does no such thing,” Tatel wrote.

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