DC Circuit Says Labor Board Erred in CNN/Union Dispute Ruling

WASHINGTON (CN) – The D.C. Circuit on Friday struck down part of a National Labor Relations Board ruling against CNN, saying the board did not explain why it departed from its own precedents in holding the network broke labor laws when stopped staffing tech positions with union workers.

However, the circuit also found the board properly determined CNN’s staffing changes happened in part to allow the network to avoid hiring union employees.

The staffing change happened in 2003, when CNN decided it would not renew a contract with Team Video Services, a company that had for five years provided the network with sound technicians, camera operators, broadcast engineers and other technical staffers. CNN instead decided it would hire its own technical staff directly, resulting in more than 100 union employees losing their jobs, according to Friday’s opinion in the DC Circuit.

The union that represented the employees, the National Association of Broadcast Employees and Technicians, filed charges with the NRLB alleging unfair labor practices, with the board’s general counsel filing a similar complaint against CNN in 2007, according to the 39-page opinion.

In November 2008, an administrative law judge found CNN violated the National Labor Relations Act because it was a joint employer of the technicians and that it had to honor the collective bargaining agreement that Team Video Services had struck with the union. The judge also found CNN’s reasons for switching out its staffing procedure were “pretextual,” and that it merely hoped to staff its Washington and New York bureaus with non-union employees.

CNN appealed the ruling, but the NLRB upheld the administrative law judge’s decision in 2014. As a result, CNN had to pay backpay and benefits to the employees it either fired or gave lower salaries to and the network had to reinstate the TVS technicians who lost their jobs.

The board denied CNN’s motion for reconsideration and asked the DC Circuit to enforce its decision, while CNN filed its own cross-petition for review.

In a 39-page opinion filed on Friday, DC Circuit Chief Judge Merrick Garland found the board did not sufficiently explain why it departed from past precedent in finding CNN a joint employer of the technicians.

Unlike in another case where the NLRB criticized its previous holding that a company must have “direct and immediate” control over its employees to be considered a joint employer, the board in CNN’s case did no extensive evaluation of its own precedent, Garland wrote.

“We conclude that the board’s determination that CNN and TVS were joint employers cannot stand,” Garland wrote. “This is not because we find that the two companies lacked a joint-employer  relationship. Rather, it is because the board applied a standard for determining whether companies are joint employers that appears to be inconsistent with its precedents, without addressing those precedents or explaining why they do not govern.”

As a result, the circuit also tossed aside the board’s order that CNN pay back wages to TVS employees who lost their jobs or received a pay cut. The court also ordered the board to drop its order that CNN must bargain with the technicians’ union because the board did not provide a reason along with the order.

Garland noted that the board could still find CNN to be a joint employer by applying a different standard than its current precedent, but that it would have to explain why it chose to do so.

In the same opinion, the circuit upheld the board’s finding that CNN was attempting to get around dealing with a union when it decided to make the staffing changes, pointing to comments made by network supervisors, one of which said CNN was hiring its own staff so it “can have more control of the technical people.”

“Together, CNN’s manipulation of job titles and qualifications, its frequent deviations from its vaunted Bureau Staffing Project and ‘behavioral interviewing’ protocols to favor non-TVS applicants and anti-union statements by CNN supervisors, were more than sufficient evidence of anti-union animus to satisfy the general counsel’s threshold burden,” Garland wrote.

Judge Brett Kavanaugh partially dissented from Garland’s opinion, saying he believed the NLRB not only was wrong to find CNN was a joint employer but also that CNN was a successor employer, a finding the circuit majority upheld when it  found CNN’s motivations were primarily anti-union.

CNN did not respond to a request for comment on the opinion.

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