CNN News Network and Team Video Services, LLC, Joint Employers

CNN AMERICA, INC. 293 CNN America, Inc. and Team Video Services, LLC and National Association of Broadcast Employ- ees and Technicians, Communications Workers of America, Local 31, AFL–CIO CNN America, Inc. and Team Video Services, LLC and National Association of Broadcast Employ- ees and Technicians, Communications Workers of America, Local 11, AFL–CIO. Cases 05–CA– 031828 and 05–CA–033125 March 20, 2015 ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA On September 15, 2014, the National Labor Relations Board issued a Decision and Order in this proceeding. 361 NLRB 439. On November 12, 2014, the General Counsel filed a Motion to Correct Discriminatee Names in Board Order, and CNN filed a Motion for Reconsider- ation/Reopening the Record. On December 12, 2014, the General Counsel and the Union filed a response and an opposition, respectively, to CNN’s motion. The General Counsel’s motion is unopposed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 1. Motion to Correct Discriminatee Names in the Board Order The General Counsel states that the Board inadvertent- ly omitted discriminatees Carmine Cassella, Dwight Col- lins, John Fanning, and Charlene Singleton from para- graph 2(j) of the Order and erroneously included discrim- inatee Charles Serra’s name in paragraph 2(j) rather than 2(e). In addition, the General Counsel contends that the Board misspelled the names of discriminatees Felix Fer- maintt, Fernando Gracia, Jeffrey Burns, Arielle Gamza, Lawrence Van Patten, Elizabeth Zosso, and Richard Shine. We grant the General Counsel’s unopposed re- quest to correct the omitted, misplaced, and misspelled names. We will correct the Order accordingly. 2. Motion for Reconsideration/Reopening the Record Under Section 102.48(d) of the Board's Rules and Regulations, a motion for reconsideration must be justi- fied by “extraordinary circumstances.” CNN has provid- ed no such justification and has failed to raise any sub- stantial argument not previously considered by the Board. In its motion, CNN repeats its arguments that prior certifications, collective-bargaining agreements, and bar- gaining history preclude a finding that it is the joint em- ployer of bureau employees nominally employed by Team Video Services (TVS). For the reasons set forth in the Decision and Order, supra, slip op. at 3–8, we reject those arguments. Rather, the evidence provides ample support for the Board’s finding that CNN and TVS had a joint employer relationship at the time of the unfair labor practices.1 CNN also contends that “it would be literally impossi- ble” to restore the bargaining unit employees’ terms and conditions of employment and unduly burdensome to reinstate the TVS employees, as the Board ordered. CNN requests that the Board “reopen the record and con- sider the changed circumstances that have occurred since the close of the hearing in this case more than six years ago.” This contention is appropriately reserved for the compliance phase of this proceeding, where CNN will have the opportunity to show, based on evidence that was not available at the time of the hearing, that those reme- dies must be modified. See Gaetano & Associates, 344 NLRB 531, 534 (2005) (contention that complying with ordered remedies a “practical impossibility” is “appro- priately left to the compliance stage of these proceed- ings”); Lear Siegler, Inc., 295 NLRB 857, 861–862 (1989) (evidence that ordered remedies impose an undue burden may be introduced at compliance). IT IS ORDERED that the General Counsel’s Motion to Correct Discriminatee Names in the Board Order is granted. IT IS FURTHER ORDERED that the Respondent’s Motion for Reconsideration/Reopening is denied. IT IS FURTHER ORDERED that the Order be modified as follows: 1. Substitute the following for paragraph 2(e). 1 CNN’s citation of Computer Associates International, Inc. v. NLRB, 282 F.3d 849 (D.C. Cir. 2002), in which the court reversed the Board’s finding of a joint employer relationship, does not justify recon- sideration of our decision. In that case, the parties had stipulated to the contrary only a year before, and the Board did not identify any changed circumstances. Id. at 852–853. Here, the Board certified the Unions two decades before TVS was even created, and unit employees have been employed by four successive contractors since the initial subcon- tracting of the work. Member Miscimarra adheres to his view that CNN was not a joint employer of TVS’ employees, as discussed at length in his partial dissenting opinion, and he disagrees that Computer Associates is distinguishable from the instant case, in which the record similarly fails to demonstrate changed circumstances notwithstanding the passage of time and the succession of contractors since the Unions were certified. Member Miscimarra believes Computer Associates resembles the instant case in material respects and undercuts the ma- jority’s finding that CNN and TVS were joint employers. However, Member Miscimarra agrees that the Respondent’s motion does not identify extraordinary circumstances that warrant reconsideration or reopening the record, without prejudice to the Respondent’s arguments that the majority’s remedies warrant modification (which, as noted in the text, would be appropriate for litigation at the compliance stage). 362 NLRB No. 38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 294 “(e) Within 14 days from the date of the Board's Or- der, offer employment to the former TVS employees listed below to their former positions or, if those jobs no longer exist, to substantially equivalent positions, with- out prejudice to their seniority or any other rights or priv- ileges previously enjoyed. DC Bureau (TVS unit employees not hired by CNN) Jeffrey Adkinson Emmanuel Agomuoh Charles Anderson Rodney Atkinson Tim Bintrim James Cook Keith Crennan Timothy Durham Bill Evans Danny Farkas Dennis Faulkner Christopher Hamilton Vernon Herald David Jenkins Martin Jimenez Michael Kauffman Nicholas Kiraly Adilson Kiyasu Donna Lacey Larry Langley Myron Leake Mark Marchione Ralph Marcus Joseph Mosley Luis Munoz Jeffrey Noble Dennis Norman James Norris Sarah Pacheco John Quinnette Tyrone Riggs Oscar Romay Fred Schall Paul Skaife James Stubbs James Suddeth James Suissa John Urman Joseph Wade Aaron Webster Darrin White NYC Bureau (TVS-unit employees not hired by CNN) Marc Abramson Melanie Baker Marcus Bassett Paul Bernius Doriann Bertino Richard Birch Steve Burnett Joseph Cantali Jeffrey Carlough Timothy Cassese Christopher Collins Duff Conner Robert Cummings Christopher Cunningham Viktor David Jennifer DeStefano John Diaconu Michael Diana Jeffrey Edelman Jay Eric Vince Everett Donald Fenster Felix Fermaintt Todd Ferrand Jon C. Ford John Gallagher Mitchell Gomila Fernando Gracia Daniel Hacker Phil Hadrovic Kristi Harper Peter Hedeman Juan Hortua Patrick Howley2 Jeffrey Jaramillo Asprey Jones Kenneth S. Kaplan Brian Kiederling Robert Knolle 2 The judge found that Patrick Howley worked 282 hours in the NYC studio between pay periods 3 and 7 in 2003, but excluded him from the TVS-NYC bargaining unit because he did not perform any bargaining unit work after April 1, 2003. The GC, citing DIC Enter- tainment, LP, 328 NLRB 660 (1999), which established that any free- lance or daily hire employee who worked at least 15 days within the prior year should be included in the bargaining unit, contends that Howley should be included on the list of discriminatees because he worked during the relevant 12-month period, irrespective of when during that period he performed the work. We agree. CNN AMERICA, INC. 295 Glen Kreigsman Beth Lasch Steven Lima Connie Long Perry MacLean Tommy Maney Sarael Martinez Robert Matteo Roy McClain Kathleen McLaughlin Edward McShea Barbara Morrisey Rod Nino Ramon Olivo Tracy Organ James Peithman Mark Peters Todd Pivawer Charles Rainone Jr. John Rappa Daniel Rodriguez Christian Roebling Hamid “David” Rokshar Daniel Scalley Shari Schlager William Seiden Charles Serra Michael Sollenberger Mickael Squier Danielle St. John Robert Sullivan Mary Theodore Richard Uhoda Pedro Valentin Brian Wood” 3. Substitute the following for paragraph 2(j). “(j) Make whole, in the manner set forth in the remedy section of the judge’s decision, as modified in this deci- sion, the employees named below, in addition to those named in paragraph 2(e) above, for any loss of earnings and other benefits suffered as a result of the Respond- ent’s unlawful discharge of them and its failure to hire them or its unilateral changes in the terms and conditions of their employment that existed prior to the Respond- ent’s termination of its contracts with TVS. DC Bureau Bill Alberter David Bacheler Reza Baktar Mike Bannigan Cameron Bartlett Stephen Bartlett Jay Berk Dave Berman John Bodnar Burke Buckhorn David Catrett Bobby Clemons Everett Cottom Michael David John Davis Ronald Davis Ken Distance Martin Dougherty Brenda Elkins Thomas Everly Cesar Flores Michael Galindo Tim Garraty Maurice George Augusto Gomez Thomas Michael Greene Eddie Gross Conrad Hirzel Paul Hollenback David Hugel Lesa Jansen Lori Jennings Warren Kinlaw Dave Kopecky Martin Kos Douglas Koztoski Ronald Kuczynski Marianna Lafollette Christopher Leonard Tau Liu Howard Lutt Michael Maciejewski Kevin McCall Kevin McClam Barbara Stieritz McCloskey Douglas McKinley Samuel Jay McMichael Paul Miller Peter Mohen William Moore DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 296 James Moran Peter Morris Rick Morse John (Nick) Mueller Thomas Murphy Ernest Nocciolo John Otth Robert Parker Ines Perez-Thompson William Pettus James Riggs Greg Robertson David Scherer Barry Schlegel Reggie Selma Raeshawn Smith Tawana Smith-Brown Carolyn Stone Daniel Taylor Arthur Thomas Jerry Thompson3 Lisa Timchalk William Tipper John Tripp Ken Touhey Kim Uhl Anthony Umrani Joe Walker Mark Walz Kenneth White Alvester Williams John Williams Brian Yaklyvich Elizabeth Zosso NYC Bureau John Allen Andrew Gideon Arnold Shimon Baum Gordon D. Benedict Shep Berkon Frank Bivona Robert Borland Karl Braunwarth Robert Brennan Chris Brown 3 The GC excepted to the judge’s omission of TVS-DC unit employ- ee Jerry Thompson from App. A, the list of employees who were af- fected by CNN’s unilateral changes to the terms and conditions of employment. The original complaint listed Thompson as an affected employee, and the judge’s omission appears to be inadvertent. Gregory Bryne Jeffrey Burns Joe Capolarello Douglas Carroll Mark Casey Carmine Cassella Timothy Cassese Sergio Centa James Clarke Christopher Collins Dwight Collins John R. Conroy Stephen Coombs Paul Cutting Louis Delli-Paoli Gary D’Orio Michael Dottin Stefan P. Dreyfuss Ori M. Dubow Bruce Dunkins Larry Edgeworth John Fanning Nicholas J. Fayo Bradley Fehl John Ferry Dennis Finnegan Stewart Forman John M. French Arielle Gamza Nicolae Ganea Desmond Garrison Christopher Geiger Michael Gittelman Michael J. Glazier Ricardo Gomez Glen R. Gorham Larry Greenberg William Greene Jason Greenspan Jeffrey D. Greenstein Eric Grima John J. Heneghan Mark A. Herman Thomas P. Hollyday Larry Holmes Mark Hubbard Walter Imparato Anthony K. Ioannou Thomas Jurek William Kane Nicholas P. Karas Gerard Kaufold CNN AMERICA, INC. 297 Sergei Khramtsov Paul T. Kim Keith H. Koslov Edward Langan P. Jeffrey Latonero Brenda Laux Jason Lazar Brahms Lee Laurent LeGal Stacy Leitner Allan Leibman Todd Lindenfeld Kevin M. Lishawa Felice Loccisano Steven Machalek Christopher Madden Douglas Maines Michael Manzo Alexander Marshall Gilbert Martinez David McCarrie Sean P. McGinn Dan Meara Jennifer T. Messina Thomas Miuccio John Montalbano Donald Mulvaney Jonathan C. O’Beirne Juan Ortiz Dina V. Pace Diane Parker Philip Pernice Glenn W. Perreira Timothy A. Persinko James Pertz Saylor Phair Lauren Price Andrew Rabel John Reilly Jonathan D. Reiss Scott Riley Frank Romano Pietro A. Rotundo Joseph Santos Samuel Sawyer III Frederick Schang Edward Scholl David B. Schumacher Richard Shine Charlene Singleton Jonathan Smith Michael Sollenberger William M. Sparks Michael Stein Robert Strano Roger Thomas Ronald L. Thompson Shane Touhey Mike Trier Ioannis Tsesmelis Lawrence Van Patten Donald Walden Christopher Ward David Weber Robert Wenk Jamie Wiener Glenn W. Zachar” 3. Substitute the attached notice for that in the Board’s Decision and Order. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge you or refuse to hire you be- cause of your prior employment with Team Video Ser- vices (TVS) or your union activities and membership, or otherwise discriminate against you to avoid having to recognize and bargain with NABET Local 11 and NABET Local 31 (the Union). WE WILL NOT refuse to comply with the collective- bargaining agreements between TVS and the Union at both the DC and the NYC bureaus, or change your terms and conditions of employment without first notifying the Union and giving it an opportunity to bargain. WE WILL NOT refuse to recognize and bargain in good faith with the Union as your exclusive collective- bargaining representative by refusing its requests for bargaining over our decision to terminate the contracts with TVS and implement the Bureau Staffing Project and the effects of that decision on you. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298 WE WILL NOT unilaterally limit the number of former TVS bargaining unit employees that we hire, or change your wages, hours and other terms and conditions of em- ployment, or the work that you previously performed, or any functionally equivalent work, without first bargain- ing with the Union. WE WILL NOT withdraw or eliminate any wage increase or other improved benefits or terms and conditions of employment established at the DC and NYC bureaus since the termination of the TVS contracts. WE WILL NOT contract out your work without giving the Union notice and an opportunity to bargain over the- se changes. WE WILL NOT inform you that we intend to operate a nonunion workplace, or that your employment in the TVS bargaining units or your union activity, affiliation, or membership disqualifies you from employment with CNN. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Federal labor law. WE WILL notify the Union in writing that we recognize it as your exclusive representative and that we will bar- gain with it concerning the terms and conditions of your employment. WE WILL recognize and, on request, bargain with the Union as your exclusive representative concerning the terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement. WE WILL rescind any change(s) in your terms and con- ditions of employment that we unilaterally implemented after December 6, 2003, at the DC bureau, and January 17, 2004, at the NYC bureau, and retroactively restore the preexisting terms and conditions of employment, including hours, wage rates and benefit plans, until the Respondent negotiates in good faith with the Union to agreement or to impasse. WE WILL, before implementing any changes in wages, hours, or other terms and conditions of your employ- ment, notify, and on request, bargain with the Union as your exclusive collective-bargaining representative. WE WILL make whole those TVS unit employees that we unlawfully discharged for losses caused by our failure to apply the terms and conditions of employment that existed immediately prior to our takeover of the TVS operations at the DC and NYC bureaus. WE WILL, within 14 days from the date of the Board’s Order, offer employment to the following named former employees of TVS in their former positions or, if those jobs no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, discharging if necessary any employees hired in their places: DC Bureau Jeffrey Adkinson Emmanuel Agomuoh Charles Anderson Rodney Atkinson Tim Bintrim James Cook Keith Crennan Timothy Durham Bill Evans Danny Farkas Dennis Faulkner Christopher Hamilton Vernon Herald David Jenkins Martin Jimenez Michael Kauffman Nicholas Kiraly Adilson Kiyasu Donna Lacey Larry Langley Myron Leake Mark Marchione Ralph Marcus Joseph Mosley Luis Munoz Jeffrey Noble Dennis Norman James Norris Sarah Pacheco John Quinnette Tyrone Riggs Oscar Romay Fred Schall Paul Skaife James Stubbs James Suddeth James Suissa John Urman Joseph Wade Aaron Webster Darrin White NYC Bureau Marc Abramson Melanie Baker Marcus Bassett Paul Bernius CNN AMERICA, INC. 299 Doriann Bertino Richard Birch Steve Burnett Joseph Cantali Jeffrey Carlough Timothy Cassese Christopher Collins Duff Conner Robert Cummings Christopher Cunningham Viktor David Jennifer DeStefano John Diaconu Michael Diana Jeffrey Edelman Jay Eric Vince Everett Donald Fenster Felix Fermaintt Todd Ferrand Jon C. Ford John Gallagher Mitchell Gomila Fernando Gracia Daniel Hacker Phil Hadrovic Kristi Harper Peter Hedeman Juan Hortua Patrick Howley Jeffrey Jaramillo Asprey Jones Kenneth S. Kaplan Brian Kiederling Robert Knolle Glen Kreigsman Beth Lasch Steven Lima Connie Long Perry MacLean Tommy Maney Sarael Martinez Robert Matteo Roy McClain Kathleen McLaughlin Edward McShea Barbara Morrisey Rod Nino Ramon Olivo Tracy Organ James Peithman Mark Peters Todd Pivawer Charles Rainone Jr. John Rappa Daniel Rodriguez Christian Roebling Hamid “David” Rokshar Daniel Scalley Shari Schlager William Seiden Charles Serra Michael Sollenberger Mickael Squier Danielle St. John Robert Sullivan Mary Theodore Richard Uhoda Pedro Valentin Brian Wood WE WILL provide to the above-named employees whatever training we have provided since the termination of our contracts with TVS, if such training is necessary to allow them to perform their former jobs or substantial- ly equivalent positions. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to our unlaw- ful discharge of or refusal to hire the above-named em- ployees, and WE WILL, within 3 days thereafter, notify them in writing that this has been done and that our un- lawful discharge of or refusal to hire them will not be used against them in any way. WE WILL make whole the following individuals, in ad- dition to those listed above, for any loss of earnings and other benefits suffered as a result of our discharge of or failure to hire them or our unilateral changes in their pre- existing terms and conditions of their employment: DC Bureau Bill Alberter David Bacheler Reza Baktar Mike Bannigan Cameron Bartlett Stephen Bartlett Jay Berk Dave Berman John Bodnar Burke Buckhorn David Catrett Bobby Clemons Everett Cottom Michael David DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300 John Davis Ronald Davis Ken Distance Martin Dougherty Brenda Elkins Thomas Everly Cesar Flores Michael Galindo Tim Garraty Maurice George Augusto Gomez Thomas Michael Greene Eddie Gross Conrad Hirzel Paul Hollenback David Hugel Lesa Jansen Lori Jennings Warren Kinlaw Dave Kopecky Martin Kos Douglas Koztoski Ronald Kuczynski Marianna Lafollette Christopher Leonard Tau Liu Howard Lutt Michael Maciejewski Kevin McCall Kevin McClam Barbara Stieritz McCloskey Douglas McKinley Samuel Jay McMichael Paul Miller Peter Mohen William Moore James Moran Peter Morris Rick Morse John (Nick) Mueller Thomas Murphy Ernest Nocciolo John Otth Robert Parker Ines Perez-Thompson William Pettus James Riggs Greg Robertson David Scherer Barry Schlegel Reggie Selma Raeshawn Smith Tawana Smith-Brown Carolyn Stone Daniel Taylor Arthur Thomas Jerry Thompson Lisa Timchalk William Tipper John Tripp Ken Touhey Kim Uhl Anthony Umrani Joe Walker Mark Walz Kenneth White Alvester Williams John Williams Brian Yaklyvich Elizabeth Zosso NYC Bureau John Allen Andrew Gideon Arnold Shimon Baum Gordon D. Benedict Shep Berkon Frank Bivona Robert Borland Karl Braunwarth Robert Brennan Chris Brown Gregory Bryne Jeffrey Burns Joe Capolarello Douglas Carroll Mark Casey Carmine Cassella Timothy Cassese Sergio Centa James Clarke Christopher Collins Dwight Collins John R. Conroy Stephen Coombs Paul Cutting Louis Delli-Paoli Gary D’Orio Michael Dottin Stefan P. Dreyfuss Ori M. Dubow Bruce Dunkins Larry Edgeworth John Fanning CNN AMERICA, INC. 301 Nicholas J. Fayo Bradley Fehl John Ferry Dennis Finnegan Stewart Forman John M. French Arielle Gamza Nicolae Ganea Desmond Garrison Christopher Geiger Michael Gittelman Michael J. Glazier Ricardo Gomez Glen R. Gorham Larry Greenberg William Greene Jason Greenspan Jeffrey D. Greenstein Eric Grima John J. Heneghan Mark A. Herman Thomas P. Hollyday Larry Holmes Mark Hubbard Walter Imparato Anthony K. Ioannou Thomas Jurek William Kane Nicholas P. Karas Gerard Kaufold Sergei Khramtsov Paul T. Kim Keith H. Koslov Edward Langan P. Jeffrey Latonero Brenda Laux Jason Lazar Brahms Lee Laurent LeGal Stacy Leitner Allan Leibman Todd Lindenfeld Kevin M. Lishawa Felice Loccisano Steven Machalek Christopher Madden Douglas Maines Michael Manzo Alexander Marshall Gilbert Martinez David McCarrie Sean P. McGinn Dan Meara Jennifer T. Messina Thomas Miuccio John Montalbano Donald Mulvaney Jonathan C. O’Beirne Juan Ortiz Dina V. Pace Diane Parker Philip Pernice Glenn W. Perreira Timothy A. Persinko James Pertz Saylor Phair Lauren Price Andrew Rabel John Reilly Jonathan D. Reiss Scott Riley Frank Romano Pietro A. Rotundo Joseph Santos Samuel Sawyer III Frederick Schang Edward Scholl David B. Schumacher Richard Shine Charlene Singleton Jonathan Smith Michael Sollenberger William M. Sparks Michael Stein Robert Strano Roger Thomas Ronald L. Thompson Shane Touhey Mike Trier Ioannis Tsesmelis Lawrence Van Patten Donald Walden Christopher Ward David Weber Robert Wenk Jamie Wiener Glenn W. Zachar WE WILL compensate bargaining unit employees for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file a report with the Social Security Administration allocating the back- pay award to the appropriate calendar quarters. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 302 WE WILL restore any bargaining unit work that has been contracted out since our termination of the contracts with TVS. WE WILL remit to the Union, with interest, any dues that we were required to withhold and transmit under the DC bureau’s collective-bargaining agreement since De- cember 6, 2003, and the NYC bureau’s collective- bargaining agreement since January 17, 2004. CNN AMERICA, INC. The Board’s decision can be found at www.nlrb.gov/case/05-CA-031828 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.