National Labor Relations Board v. CNN America, Inc.
2017 U.S. App. LEXIS 14342
| D.C. Cir. | 2017Background
- CNN terminated long-standing contracts with Team Video Services (TVS) in 2003 and ran a “Bureau Staffing Project” to hire an in-house technical workforce for its D.C. and New York bureaus.
- TVS technicians had been unionized (NABET) and had been represented under successive service contracts; CNN invited TVS employees to apply but implemented new job titles, merged duties, and a behavioral-interview process.
- More than 100 TVS bargaining-unit employees were not rehired; the union filed unfair-labor-practice charges and the NLRB General Counsel later pursued a complaint.
- An ALJ found CNN had been a joint employer with TVS, that CNN’s hiring process was a sham motivated by anti-union animus, and that CNN was a successor employer; the NLRB affirmed and ordered backpay, reinstatement/training for displaced TVS employees, and recognition/bargaining with the union.
- The D.C. Circuit vacated the NLRB’s joint-employer finding because the Board failed to address or reconcile prior precedent requiring “direct and immediate” control, but upheld (1) the successor-employer finding based on discriminatory hiring, (2) the §8(a)(3) discriminatory-hiring violation, and (3) four §8(a)(1) coercive supervisor statements; it remanded remedies in part to conform with circuit precedent.
Issues
| Issue | Plaintiff's Argument (NLRB / General Counsel) | Defendant's Argument (CNN) | Held |
|---|---|---|---|
| Joint-employer status (CNN & TVS) | Board: CNN shared or codetermined essential terms and thus was a joint employer bound by TVS’s CBA. | CNN: Board misapplied precedent; joint-employer standard requires "direct and immediate" control which CNN did not exercise. | Court: Vacated Board’s joint-employer finding because Board failed to reconcile departure from prior "direct and immediate" control precedent; remand allowed. |
| Successor-employer & duty to bargain | Board/GC: CNN’s discriminatory refusal to hire TVS employees makes CNN a successor and obligated to bargain; presumption arises when refusal is motivated by anti-union animus. | CNN: Hiring majority of former TVS employees and legitimate business reasons (tech change, different skills) rebut discrimination. | Court: Affirmed successor finding — substantial evidence supports discriminatory motive and pretext; presumption and Wright Line analysis sustained. |
| §8(a)(3) discriminatory hiring | Board: CNN unlawfully discriminated against union members in hiring to discourage union representation. | CNN: Hired many union members; business judgment to value journalistic skills; process was neutral. | Court: Affirmed §8(a)(3) violation — same Wright Line analysis and evidence of pretext support Board. |
| §8(a)(1) coercive statements | Board: Supervisor statements that CNN would be "nonunion" had a reasonable tendency to coerce applicants/employees. | CNN: Some statements benign; at least one occurred after hiring completed and thus not coercive. | Court: Affirmed three pre-hiring statements as coercive; also affirmed fourth statement as coercive because freelance hiring was ongoing. |
Key Cases Cited
- Computer Assocs. Int’l, Inc. v. NLRB, 282 F.3d 849 (D.C. Cir. 2002) (employer not liable for ceasing to do business with another employer absent joint-employer status)
- Capital Cleaning Contractors, Inc. v. NLRB, 147 F.3d 999 (D.C. Cir. 1998) (limits on successor backpay remedy; backpay at predecessor CBA rates only for a reasonable bargaining period)
- Waterbury Hotel Mgmt., LLC v. NLRB, 314 F.3d 645 (D.C. Cir. 2003) (successor-employer rules and presumption when hiring refusal is motivated by anti-union animus)
- Great Lakes Chem. Corp. v. NLRB, 967 F.2d 624 (D.C. Cir. 1992) (employer’s discriminatory design may fail yet still be probative of animus; Board may infer intent despite hiring numbers)
- Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929 (D.C. Cir. 2011) (standard of review: Board findings upheld unless they lack rational basis or substantial evidence)
- E.I. Du Pont De Nemours & Co. v. NLRB, 682 F.3d 65 (D.C. Cir. 2012) (agency must adequately explain departures from precedent)
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (courts may uphold agency action only on grounds the agency relied upon)
- Williams Enters., Inc. v. NLRB, 956 F.2d 1226 (D.C. Cir. 1992) (successor employer’s pre-hiring no-union statements can violate §8(a)(1))