Lead Opinion
Pоr many years, Cable News Network (CNN) used outside contractors to provide technicians to operate the electronic equipment at its Washington, D.C. and New York City bureaus. In 2003, CNN changed that longstanding arrangement, terminating its latest contracts and hiring a new in-house workforce. The National Labor Relations Board found that CNN’s replacement of its unionized contractor with a nonunion, in-house workforce violated the National Labor Relations Act in several respects.
The Board now applies for enforcement of its decision and order. CNN cross-petitions for review. For the reasons set forth below, we grant each request in part and deny each in part.
I
CNN is a leading television and online news provider. Its Washington, D.C. and New York City bureaus, from their inception, relied on outside contractors to operate the equipment necessary to produce and broadcast the news. Pursuant to exclusive service contracts—known as Electronic News Gathering Service Agreements— camera operators, sound technicians, studio technicians, and broadcast engineers (hereinafter, “technicians”) employed by the contractors performed much of the technical work at both bureaus.
Those technicians were consistently represented by a union. In 1982, the Board certified the National Association of Broadcast Employees and Technicians (hereinafter, “the union”) as the collective-bargaining representative of the technicians staffing the Washington bureau. In 1985, the Board certified the same union to represent the New York bureau’s technicians. Over the following years, the union and the contracting companies employing-the technicians entered into successive collective-bargaining agreements. When CNN switched contracting companies— which happened several times—the new company would hire nearly all of its predecessor’s employees and continue to recognize the union.
In 1997, Asgard Entertainment Group successfully bid for the Washington contract and created Team Video Services (TVS) for the sole purpose of staffing the Service Agreement with CNN. In 2001, Asgard won the New York contract, which it also serviced through TVS. The Service Agreements at the two bureaus were materially identical. Broadly, they required TVS to furnish CNN with technicians, as well as supervisors for those technicians, in exchange for CNN covering TVS’ labor expenses and paying a monthly management fee. The Service Agreements provided that TVS would supply full-time technicians for at least 40 hours per week, in addition to pаrt-time technicians available 24/7 as needed by CNN. They also provided that CNN: could require changes in TVS staffing levels; could audit TVS’ books without cause or notice; would fund a 4% increase in salary expenses per year; would provide all equipment used by TVS technicians; and had the sole option to renew the agreement and could terminate it for any reason upon four weeks’ notice.
On September 29, 2003, CNN announced that it was terminating its contracts with TVS and would begin directly hiring employees to perform the camera, studio, and engineering work at the Washington and New York bureaus. CNN expressed appreciation for TVS’ performance
CNN named the process by which it would directly hire its new workforce the “Bureau Staffing Project.” According to CNN executives, the company planned to use a multistep “behavioral interviewing process” to hire over 200 skilled technicians for the two bureaus. Former TVS employees could apply for the new jobs, but they would have to go through the Staffing Project’s interviewing process. In the end, more than 100 TVS bargaining-unit employees were not hired and lost their jobs.
Three months after CNN officially terminated the Service Agreements, the union filed unfair-labor-practice charges with the National Labor Relations Board (NLRB). Three years later, in 2007, the Board’s General Counsel filed his own complaint against CNN. In November 2008, after an 82-day trial, an administrative law judge (ALJ) ruled against CNN in an 88-page opinion.
The ALJ first determined that CNN had been a joint employer of TVS’ employees before the termination of the Service Agreements and was thus bound by TVS’ collective-bargaining agreements with the union. He further determined that CNN became a successor employer after it terminated TVS and hired a new workforce. The ALJ found that “the reasons given by CNN for its termination of its contracts with [TVS] and its implementation of the Bureau Staffing Project [were] pretextual. A major motive in these decisions was CNN’s desire to operate its Washington and New York bureaus without a union.” CNN America, Inc.,
CNN appealed to the Board, which finally issued its decision in 2014, affirming the ALJ in all relevant respects. CNN America, Inc.,
As a remedy for those violations, the Board ordered that, among other things, CNN: (1) provide backpay and benefits to all TVS technicians who either lost their jobs or received reduced wages as a result of CNN’s violations; (2) reinstate and provide necessary training to all TVS technicians who were discharged and not hired
CNN filed a motion for reconsideration, which the Board denied. CNN America, Inc.,
II
The Board first had to decide whether CNN was a joint employer of TVS’ employees. The Board’s affirmative answer to that question led it to find that CNN committed two unfair labor practices: terminating the Service Agreements due to anti-union animus, in violation of § 8(a)(3) and (1); and failing to bargain with the union before terminating the Service Agreements, in violation of § 8(a)(5) and (1). If, as CNN argues, the Board wrongly concluded that CNN was a joint employer, then those two unfair-labor-practice findings must fall away. This is so because, if CNN was not a joint employer of TVS’ employees, it would not have been bound by the collective-bargaining agreement between TVS and the union, and its termination of the Service Agreements would thus have been lawful. See Computer Assocs. Int'l, Inc. v. NLRB,
We conclude that the Board’s determination that CNN and TVS were joint employers cannot stand. 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. Our conclusion does not bar the Board from finding CNN to be a joint employer by applying a different standard or sufficiently explaining the one it did apply. It means only that we cannot enforce the Board’s determination in this proceeding.
A
Citing two 1984 decisions, the Board began its joint-employer analysis by setting forth the governing standard it intended to apply: “The Board will find that two separate entities are joint employers of a single workforce if the evidence shows that they ‘share or codetermine those matters governing the essential terms and conditions of employment.’ ” CNN America, Inc.,
In two sentences in a footnote, the Board acknowledged that its subsequent 2002 opinion in Airborne Express “stated that the test for joint-employer status re
The Board’s decision was issued by a three-member panel. After the panel’s decision, but before the briefing of this appeal, the full Board sat in another case to consider “its current standard for assessing joint-employer status.” Browning-Ferris,
the Board’s decisions have implicitly repudiated ... reliance on reserved control and indirect control as indicia of joint-employer status. The Board has foreclosed consideration of a putative employer’s right to control workers, and has instead focused exclusively on its actual exercise of that control—and required its exercise to be direct, immediate, and not “limited and routine.”
Browning-Ferris,
Having established that the existing standard was “direct and immediate” control, Browning-Ferris then went on to criticize that standard. Following an extensive discussion, the Board concluded that “the current joint-employer standard is not mandated by the Act and ... does not best serve the Act’s policies.” Id. at 15. “[W]e will no longer require,” the Board continued, “that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but must also exercise that authority, and do so directly, immediately, and not in a ‘limited and routine’ manner.” Id. at 19. “Accordingly, we overrule Laerco, TLI, A&M Property, and Airborne Express, ... and other Board decisions, to the extent that they are inconsistent with our decision today. The right to control, in the common-law sense, is probative of joint-employer status, as is the actual exercise of control, whether direct or indirect.” Id. Under its revised standard, the Board said, “two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.” Id.
B
The difference between the case now before us and Browning-Ferris should be apparent. In Browning-Ferris, the Board
• In the case on review here, however, the Board did none of those things. In charaсterizing the prevailing joint-employer standard, it did not grapple with its precedents in the manner of Browning-Ferris. It did not explain why it thought precedents that seemed to “focus[ ] exclusively on [the employer’s] actual exercise of ... control— and require! ] its exercise to be direct [and] immediate,” Browning-Ferris,
We emphasize that nothing in our holding in this ease precludes the Board from adopting a “share or codetermine” standard that takes into account a putative employer’s indirect control of a group of workers. As we have noted, the validity of the Board’s rejection of the “direct and immediate” control requirement in Broum-ing-Ferris is at issue in the pending petition for review of that decision. Nor does anything in our holding preclude the Board, on remand, from applying the “direct and immediate” control standard and concluding that CNN satisfied that standard. But it did not do so in the proceedings in this case, and this court lacks authority to resolve the case by applying that standard itself. As the Supreme Court held over 70 years ago in SEC v. Chenery Corp., “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”
Ill
Although we cannot affirm the NLRB’s finding that CNN was a joint employer with TVS, the Board’s three remaining unfair-labor-practice findings do not depend on CNN’s joint-employer status. The first of the three survives if CNN was a successor employer to TVS, even if the two were not joint employers. The Board found that CNN was a successor, and on that basis found that CNN violated NLRA § 8(a)(5) and (1) by failing to bargain with the union after it completed its hiring and became the technicians’ employer. “When the Board concludes that a violation of the NLRA has occurred, we must uphold that finding unless it ‘has no rational basis’ or is ‘unsupported by substantial evidence.’ ” Bally’s Park Place, Inc. v.
NLRA § 8(a)(5) makes it an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of [its] employees.” 29 U.S.C. § 158(a)(5). A new employer, however, “generally assumes an obligation to bargain with the representative of its predecessor’s employees only if the new employer is considered a ‘successor’ to the old.” Waterbury Hotel Mgmt., LLC v. NLRB,
CNN does not contend that it made a significant change in the essential nature of TVS’ operations. And for good reason. As the Board found, after CNN took over from TVS, “CNN continued the same business operations with' employees who performed the same work, at the same locations, and using the same equipment, as the TVS technicians.” Board Op.,
Normally, answering this question requires an exercise in counting. But when “a successor refuses to hire predecessor employees because of anti-union animus, the Board presumes that but for such discrimination, the successor would have hired a majority of incumbent employees.” Waterbury Hotel Mgmt., LLC,
To determine whether an employer engaged in discriminatory hiring, the Board employs a burden-shifting anal
In this case, the Board found that the “evidence of animus ... [was] overwhelming, as [was] the evidence that CNN’s explanations for its conduct were pretextual.” Board Op.,
A
To support its determination that anti-union animus motivated CNN’s hiring decisions, the Board pointed to several kinds of evidence.
To begin, the Board found that CNN supervisors deliberately renamed every bargaining-unit job category, merged job functions, and drafted new position qualifications with the “purpose of getting out from under the Union’s jurisdiction” and of “minimizing the significance of the [TVS employees’] prior experience when they applied for the ‘new’ jobs.” Board Op.,
Regarding the newly required “qualifications,” CNN claimed, for example, that photojournalists would need to be more adept at “nonlinear editing”—that is, editing on a computer rather than on tape, id. at 73—than were TVS’ field technicians. The ALJ found, however, that CNN’s emphasis on nonlinear editing was pretextual because the skill was only “marginally important to the performance” of the relevant jobs and was one that' TVS “appli
On the basis of a detailed examination of the hiring experience of a large number of specific applicants in both D.C. and New York, see id. at 64-101, the ALJ also found “[c]ompelling evidence that the Bureau Staffing Project was a sham,” id. at 64. Non-TVS applicants consistently received preferential treatment over TVS applicants, who were union members. See id. at 62. Hiring managers interviewed non-TVS applicants who either had been deemed unqualified by recruiters or had never been screened at all. Board Op.,
There was also considerable evidence of “disparate treatment in favor of non-TVS applicants with little experience.” ALJ Op.,
First, the photojournalist manager at the New York bureau, Jeff Kinney, told a former TVS cameraman “that because of his prior relationship with [TVS] and the Union, CNN was not going to be able to offer him freelance work.” ALJ Op.,
Finally, on the day CNN publicly announced the termination of the Service Agreements, New York bureau chief Karen Curry called a meeting to address employees. She told them that CNN had opted to terminate the Service Agreements because TVS “came with rules and regulations,” and that by “getting rid of [TVS], [CNN] can have more control of the technical people.” Board Op.,
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. Added to this, as further evidence of animus, was the pretextual nature of the justifications CNN gave for its hiring decisions, which we discuss in Part III.C below.
B
To resist the conclusion that it was motivated by anti-union animus, CNN advances the following arguments.
1. CNN maintains that the Board improperly cited CNN’s termination of the Service Agreements with TVS as evidence of discriminatory hiring. Its argument amounts to the following syllogism: CNN was not a joint employer. Because it was not a joint employer, its decision to terminate the Service Agreements was legal.
The conclusion of CNN’s syllogism, however, does not necessarily follow from its premises. A decision that by itself does not flout the law can still constitute evidence of an employer’s underlying anti-union animus. Here, the Board did not point to the fact of the termination alone, but rather to “evidence [that] CNN’s claim that it brought the work in-house in order to keep up with technological change was ... pretextually false.” Board Op.,
If the NLRB could reasonably find (and it could) that a “major motive in [the decision to terminate the contracts] was CNN’s desire to operate its Washington and New York bureaus without a union,” ALJ Op.,
But even if animus associated with terminating the Service Agreements could not be the basis for finding discrimination in hiring, that would not undermine the Board’s bottom-line conclusion that anti-union animus pervaded CNN’s hiring process. The Board found that “[t]he evidence of animus in this case [was] overwhelming.” Board Op.,
“[W]hen an agency relies on multiple grounds for its decision, some of which are invalid, we may nonetheless sustain the decision as long as one is valid and the agency would clearly have acted on that ground even if the other were unavailable.” Bally’s Park Place, Inc.,
2. CNN also argues that it could not have discriminated against union members because it hired a majority of the TVS employees who had worked at each bureau. Although superficially appealing, this theory lacks support in either our case law or Board precedent. To the contrary, in rejecting an identical argument, we held that where the record contained evidence of animus but the employer hired a majority of union members, “the more reasonable inference is that the Employer’s discriminatory design ultimately failed, not that it wasn’t tried.” Great Lakes Chem. Corp. v. NLRB,
Here, too, it was reasonable for the Board to infer that CNN planned to hire a sufficient number of former TVS employees to lend it an air of impartiality, while avoiding the number that would impose a bargaining obligation. Specifically, the Board noted that, although CNN heralded the fact that TVS employees constituted a majority of the employees it hired for the historical TVS bargaining units, CNN believed that the historical units were inappropriate for its new employees. Instead, CNN assumed that the NLRB would accept a much broader “wall-tо-wall” unit composed of all production staff. Board Op.,
In a variation of the above argument, CNN points to its expert’s testimony that it was “actually biased in favor of TVS unit employees” because those employees were four times more likely to receive job offers than other applicants. ALJ Op.,
3. CNN further claims that, in focusing on its hiring of applicants who lacked the technical expertise of TVS applicants, the Board disrespected “CNN’s business judgment to value [photo]journalistic skills and potential over traditional (and increasingly irrelevant) technical background.” Reply Br. 18. That claim is unfair. The ALJ did not dispute CNN’s business judgment. He simply found no evidence to support CNN’s contention that non-TVS applicants possessed greater journalistic skills than TVS applicants. There was, he said, an “[a]bsence of credible evidence regarding the hiring decisions made for photojournalists.” ALJ Op.,
4. Finally, CNN maintains that, even if anti-union animus infected specific hiring decisions, the NLRB failed to find that “CNN had systematically manipulated or disregarded its neutral hiring policy,” of even “that the [discriminatory] disparities were widespread.” CNN Br. 60. Although it is true that the NLRB did not use the phrase “systematically manipulated,” it used other formulations to the same effect. See, e.g., ALJ Op.,
CNN insists that the NLRB should have “sought to quantify” the hiring disparities it found. CNN Br. 60. But we have affirmed Board findings of generalized animus in hiring even where the Board did not provide a statistical summary of the employer’s anti-union practices. See Great Lakes Chemical Corp.,
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In sum, despite CNN’s arguments, we remain convinced that substantial evidence supports the Board’s finding that antiunion animus was a motivating factor in CNN’s hiring decisions, thus satisfying the first step of the Wright Line test.
C
“Where, as here, the General Counsel makes a strong showing of discriminatory motivation, the employer’s rebuttal burden is substantial.” Bally’s Park Place, Inc.,
First, CNN contended that it needed to overhaul its workforce in order to adapt to technological changes in the television-news industry. But this explanation is belied by the fact that CNN’s operations did not materially change when the Service Agreements ended. In representative testimony, one former TVS employee hired by CNN testified that “everything in her new job was the same as her TVS job.” Board Op.,
Moreover, to the extent that some changes occurred, “[t]here [wa]s no evidence that any [TVS] employee ... could not have adapted to the technological changes that CNN was undertaking.” Id. at 51. To the contrary, the TVS employees whom CNN hired generally showed more technological proficiency than the non-TVS
Second, CNN contended that it based its hiring decisions on the neutral “behavioral interviewing” process that it adopted at the outset of the Bureau Staffing Project. But even assuming this process were facially neutral, we have detailed in Part III.A how frequently CNN deviated from it to favor non-TVS applicants. Where, as here, an employer “applied its neutral criteria inconsistently,” it is reasonable for the Board to conclude “that the hiring criteria served as little more than pretext for weeding out ... union employees.” Waterbury Hotel Mgmt., LLC,
The Board found that “CNN’s reasons for failing to hire the TVS technicians were all pretextual, and that it ... therefore failed to establish that it would not have hired the technicians absent its union animus.” Board Op.,
IV
The Board found that CNN’s discriminatory hiring cost the company in another respect as well. Such discrimination not only caused CNN to become a successor employer and therefore liable for failing to bargain. It also amounted to an independent violation of NLRA § 8(a)(3).
Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate in hiring in order to “discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). The Board applies the same Wright Line framework in determining whether an employer viоlated § 8(a)(3) through discriminatory hiring as it applies in determining whether an employer became a successor employer through discriminatory hiring. See Waterbury Hotel Mgmt., LLC,
Finally, the Board found that CNN violated NLRA § 8(a)(1) through the no-union statements of supervisors Curry, Strauss, Whelton, and Kinney, the content of which we have already set forth above. See supra Part III.A. Section 8(a)(1) makes it an unfair labor practice to “interfere with, restrain, or coerce employees in the exercise of’ their § 7 rights. 29 U.S.C. § 158(a)(1).
“Ordinarily, an employer’s statement that it will not have a union at its plant does not violate section 8(a)(1).” Williams Enters., Inc. v. NLRB,
Three of the four supervisor statements—Curry’s, Strauss’s, and Whel-ton’s—were made before CNN completed its Bureau Staffing Project hiring. The Board found that each of those statements gave employees the message, either explicitly or implicitly, that CNN’s new workforce would not have union representation. Board Op.,
But what about Kinney’s statement, which he made after CNN completed its Bureau Staffing Project hiring process? For a successor employer’s no-union statement to violate § 8(a)(1), the employer’s hiring process must either be upcoming or ongoing. See id. If the рrocess has been completed, then the employer could know with reasonable certainty that its workforce would lack union representation, so a no-union statement would not generally suggest coercion. See id.
Although it is true that CNN had finished hiring full-time employees through the Bureau Staffing Project when Kinney made his no-union statement to TVS employee Jonathan Smith, the record shows that CNN was still hiring freelance cameramen at that time. See ALJ Op.,
VI
This brings us to CNN’s challenge to the Board’s remedy. NLRA § 10(c) authorizes the Board, upon finding an unfair labor practice, “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the Act].” 29 U.S.C. § 160(c). While the Board has “broad discretionary power under this section to fashion remedies,” Petrochem Insulation, Inc. v. NLRB,
CNN takes issue with three of the affirmative obligations the Board imposed in its remedial order: (1) that CNN provide backpay and benefits to all TVS employees, both those who lost their jobs and those who were hired at reduced pay, at the wage rate provided in the TVS collective-bargaining agreements; (2) that CNN reinstate and provide any necessary training to all TVS workers who were discharged and not hired by CNN; and (3) that CNN recognize and bargain with the union as the exclusive representative of the unit employees. We analyze these claims one at a time, as each presents its own unique set of issues.
A
In Capital Cleaning Contractors, Inc. v. NLRB, this court confronted a Board-ordered backpay remedy materially identical tо that imposed here. Like CNN, the employer in that case took over a predecessor’s business and discriminatorily refused to hire its predecessor’s union employees. Capital Cleaning Contractors, Inc.,
The court concluded that the Board’s backpay remedy exceeded its authority because, rather than “restore the situation ‘as nearly as possible, to that which would
Based on this reasoning, the court announced the following limitation on back-pay in successor-employer cases: The Board may require backpay based on the terms of the predecessor’s collective-bаrgaining agreement “only for ‘a period allowing for a reasonable time of bargaining.’” Id. (quoting Kallmann v. NLRB,
In the case now before us, the Board ordered CNN to provide backpay and benefits, under the terms of the TVS collective-bargaining agreement, to all TVS employees for the entire period since the termination of the TVS contracts. That remedy does not comply with the holding of Capital Cleaning. Nor does the Board’s brief dispute the point. Instead, it argues that, while the Capital Cleaning limitation applies to successor employers, it does not apply to joint employers. But whether or not that is correct, it cannot support the remedy in this case because we have vacated the Board’s finding that CNN was a joint employer. Capital Cleaning therefore binds us, and we remand for the Board to limit its backpay remedy in accordance with that precedent.
B
CNN next challenges the Board’s order that CNN reinstate the 114 former TVS employees whom it did not hire and provide those employees with training. CNN contends that this remedy imposes an “undue and unfair burden” in light of changes at CNN since 2003, CNN Br. 68, and “has grave First Amendment implications,” id. at 71.
CNN’s attacks on the Board’s reinstatement remedy are premature. In denying CNN’s motion for reconsideration, the Board explained that it was deferring resolution of the challenge to the reinstatement order to “the compliance phase of this proceeding.” CNN America, Inc.,
Citing Great Lakes Chemical Corp. v. NLRB, CNN contends that, despite the forthcoming compliance proceedings, “it is appropriate at this stage for the Court to review the burdens that any wide-scale rehiring would impose.” CNN Br. 68 n.9. But Great Lakes actually stands for the opposite conclusion. There, after the Board had said it would consider the employer’s challenge to a reinstatement order in compliance proceedings, we “rejected] as premature [the employer’s] present objection to the apparent breadth of the Board’s
In holding that CNN’s challenge is premature, we express no view on its merits. If the Board retains a reinstatement order after compliance proceedings, CNN will have the opportunity to present its arguments in a petition, for review of that order. See id.
C
Finally, CNN challenges the Board’s order to recognize and bargain with the union. The bargaining order was impermissible, CNN maintains, because the Board failed to follow this Circuit’s requirement that such an order be accompanied by an explanation. We agree.
“This court repeatedly has reminded the Board that an affirmative bargaining order is an extreme remedy that must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ § 7 rights [of self-organization and collective bargaining]; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Vincent Indus. Plastics, Inc.,
For its part, the Board has long disagreed with our Circuit’s requirement, see supra note 22, although on occasion its decisions have nonetheless combined an expression of disagreement with sufficient explanation to satisfy the requirement, see, e.g., In re Marion Hosp. Corp.,
VII
We deny the Board’s application for enforcement and grant CNN’s cross-petition with respect to the violations that flow from the Board’s finding that CNN was a joint employer because the Board failed to explain its departure from relevant Board precedents. We do likewise with respect to those elements of the Board’s remedial order that depart from this Circuit’s precedents. In all other respects, we grant the
So ordered.
Notes
. Mеmber Miscimarra concurred in part and dissented in part. He concluded that CNN: (1) did not qualify as a joint employer and therefore did not violate the NLRA by terminating the Service Agreements,
. The NLRB's appellate brief acknowledges that the Board did not apply the "direct and immediate” control standard. NLRB Br. 28.
. See, e.g., Flagstaff Med. Ctr.,
. See In re Wiers Int'l Trucks,
.Nor has this court overruled it. In Dunkin’ Donuts Mid-Atlantic Distribution Center, Inc. v. NLRB, we did enforce the Board’s joint-employer finding without invoking the "direct and immediate” control requirement.
. See Fox Television Stations, Inc.,
. The Board and ALJ also found that CNN was a successor employer because the historical bargaining unit at each TVS bureau— consisting of field camera, field audio, engineering, and studio technical employees, ALJ Op.,
. See also NLRB v. Transp. Mgmt. Corp.,
. See, e.g., Traction Wholesale Ctr. Co. v. NLRB,
. In further support of his characterization of the Bureau Staffing Project as a sham, the ALJ noted that "CNN conducted a secret hiring process apart from the [Bureau Staffing Project] that none of its witnesses mentioned when testifying,” in which CNN hired individuals "who did not participate in the [Bureau Staffing Project] process.” ALJ Op.,
. See also ALJ Op.,
. See also ALJ Op.,
. Our conclusion that CNN’s termination of the Service Agreements was not necessary to the Board’s decision is further supported by our examination of the ALJ decision, with which the Board agreed. See Board Op.,
. The historical bargaining unit at each TVS bureau consisted of field camera, field audio, engineering, and studio technical employees. ALJ Op.,
. See ALJ Op.,
. See ALJ Op.,
. See also Board Op.,
. In any event, the NLRB did in fact quantify the hiring disparities it found. The ALJ listed the exact number of additional TVS employees CNN would have hired absent its anti-union discrimination: 46 additional TVS employees in the Washington bureau and 63 additional TVS employees in the New York bureau. ALJ Op.,
. See also W & M Props, of Conn., Inc.,
. NLRA § 7 provides that "[ejmployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.
. Such a statement, however, can provide evidence of a § 8(a)(3) violation for discriminatory hiring. See supra Part IV.
. See, e.g., Scomas of Sausalito, LLC v. NLRB,
Concurrence Opinion
concurring in part and dissenting in part:
The majority opinion concludes that the Board erred in its analysis of the joint-employer issue. By contrast, the majority opinion upholds the Board’s analysis on the successor-employer issue. In my view, the Board erred in its analysis of both the joint-employer and the successor-employer issues. I therefore respectfully concur in part and dissent in part.
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CNN contracted with TVS for certain technical services related to CNN’s television operations. CNN then decided to terminate its contracts with TVS and bring those services in-house. In staffing up, CNN hired about 100 former TVS employees, most of whom were union members. But CNN did not consider itself a “successor employer” to TVS and did not bargain with the union that represented the newly hired CNN employees. (In the past, TVS had negotiated with the union representing those employees in the predecessor units at TVS.)
There are two key issues in this case: (i) Were CNN and TVS joint employers of the TVS employees such that CNN could not lawfully terminate the TVS contracts without bargaining with the TVS employeеs’ union? (ii) Was CNN a successor employer to TVS because of CNN’s supposed discrimination against former TVS employees when CNN hired for its new in-house positions? The Board said yes to both questions. The majority opinion concludes that the Board’s first conclusion is not sustainable on this record, but the majority opinion upholds the Board’s second conclusion. I do not think that either of the Board’s conclusions is sustainable on this record.
First, as the majority opinion persuasively explains, the Board erroneously concluded that CNN and TVS were joint employers of the TVS employees. The Board did not analyze the CNN-TVS relationship under the Board’s “direct and immediate control” test. The Board has long used that test for determining joint-employer status. And that test was in place at the time the Board issued its decision in this case. The Board’s failure to apply that test (or to reasonably explain why it was not doing so) flouts basic principles of administrative law, as the majority opinion rightly concludes. Moreover, in my view, there is no plausible way to apply the “direct and immediate control” test and conclude that CNN and TVS were joint employers.
Second, for several independent reasons, I also do not believe we can sustain the Board’s successor-employer conclusion on this record. (I therefore respectfully disagree with the majority opinion on that issue.)
Under Board law, there are two relevant ways in which an employer may become a successor to the predecessor employer. First, a new employer is considered a successor employer when, among other things, a majority of the new employer’s work force in an appropriate unit consists of former employees of the predecessor employer. In that circumstance, a successor employer must bargain with the union but ordinarily is not bound by the prior collective-bargaining agreement. Second, a new employer may be considered a successor employer when it discriminates in hiring against the prior employer’s union-member employees. In that circumstance, the new employer may be bound by the prior collective-bargaining agreement, which may in turn require back-pay remedies.
The. majority opinion disagrees, in part because it does not believe that the Board’s finding that CNN unlawfully terminated its contracts with TVS was necessary to the Board’s successor-employer conclusion. What we know on this record, however, is that the Board in fact relied on CNN’s purportedly unlawful termination of its TVS contracts as one basis for its conclusion that CNN was a successor employer. I do not think we can airbrush that part of the Board’s analysis out of the picture. See SEC v. Chenery Corp.,
Moreover, even if I am wrong about that point and we must reach the merits of the successor-employer issue, I respectfully disagree with the majority opinion’s merits analysis. I instead agree with Member Miscimarra’s dissent from the Board’s decision. See CNN America, Inc.,
That said, I agree with Member Misci-marra’s further conclusion that CNN would qualify as a successor employer under the Board’s traditional successor-employer analysis. See Capital Cleaning Contractors, Inc. v. NLRB,
That raises a natural question: If CNN is a successor employer, why does it matter which way CNN qualifies as' a successor employer? Money. Lots of money. As noted above, finding CNN a successor employer under the traditional test would have dramatically different consequences in terms of the remedies available in this case. In particular, under the traditional test, CNN would be subject to an obligation to bargain with the union going forward. Under the discrimination finding, however, CNN could also be liable for tens of millions of dollars of back pay to former TVS employees. So if CNN qualifies as a successor employer only under the traditional test and not under the discrimination test, that would make a huge difference in the real world. Under my view on the merits of the successor-employer issue, which was also Member Miscimarra’s view, CNN qualifies as a successor employer only under the traditional test. I would therefore remand to the Board for it to redetermine the appropriate remedies associated with the proper successor-employer conclusion.
Bottom line: In my view, the Board jumped the rails in its analysis of both the joint-employer and the successor-employer issues.