Vice President, Labor Policy, U.S. Chamber of Commerce
August 08, 2017
The U.S. Circuit Court of Appeals for the District of Columbia on August 4 issued a decision in a case involving CNN that has been meandering its way through the judicial process for nearly 14 years. In its ruling, the court found that CNN had committed several unfair labor practices, but also declared that the National Labor Relations Board’s (NLRB) determination that CNN and a contractor were joint employers “cannot stand,” albeit not for the transformational reasons many would have preferred.
The CNNcase began back in late 2003, when CNN decided to terminate its contracts with a company called Team Video Services (TVS), which provided technicians such as camera operators, sound technicians, studio technicians, and broadcast engineers, all of whom were represented by a union. CNN had utilized TVS for approximately six years but decided to hire technicians directly, and it refused to negotiate with the union over the issue.
Shortly thereafter, the union filed unfair-labor-practice charges with the NLRB, and the NLRB’s General Counsel followed suit three years later. That led to a decision by an administrative law judge (ALJ) holding that CNN had been a joint employer of TVS’s employees and was therefore bound by TVS’s collective-bargaining agreements with the union, among other findings.
For myriad reasons, the NLRB did not decide the case until 2014 when the Board upheld the ALJ’s findings. In particular, the Board found that CNN was a joint employer of TVS’s employees and therefore violated the National Labor Relations Act. Many observers of labor policy considered the CNN ruling to be a precursor of the 2015 Browning-Ferris decision, under which the NLRB created a broad new definition of joint employment.
In its recent decision, the D.C. Circuit rejected the NLRB’s conclusion about joint employment with regard to CNN, but for procedural rather than substantive reasons. Indeed, the court said,
“[t]his 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.”
The court went on to observe that the NLRB had articulated such an explanation in Browning Ferris. The court further offered that “nothing in our holding in this case 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,” which is what the Browning Ferrisdecision actually did.
Observers of labor policy have been monitoring CNN because it could have offered insight into how the D.C. Circuit might treat the NLRB’s reasoning in Browning Ferris¸ which is now before that same court. That does not appear to be the case. However, CNN does highlight, yet again, the need to restore a common-sense definition of joint employment, preferably by both an NLRB ruling and through legislation.