A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit remanded a “joint employer” case involving CNN to the National Labor Relations Board. In 2014, the Board found that CNN America, Inc., was a joint employer of camera staffing company employees who were terminated from bargaining unit jobs in 2003. However, the D.C. Circuit panel said that the Board failed to follow its own precedent, which required direct and immediate control of the employees in question for a joint employer finding, or to adequately explain why it was no longer following that precedent. The Court remanded the case to allow the Board to provide a fuller explanation of its decision, which means that CNN has not necessarily won.
CNN used various technical employees who were employed by contractors and were represented by the National Association of Broadcast Employees and Technicians union. If CNN switched from one contractor to another, the new contractor typically hired almost all of the employees from the old contractor and continued to recognize the Union. However, in 2003, when CNN’s contractor was Team Video Services, CNN terminated its relationship with TVS and directly hired some, but not all, of the TVS employees. The Union asked to bargain with CNN, but CNN refused. As a result, the Union filed unfair labor practice charges against CNN. In 2008, an Administrative Law Judge found that CNN was a “joint employer” of the TVS workers, and in 2014, the NLRB issued its decision, essentially affirming the ALJ decision. The Board found that the TVS employees were jointly employed, in part, because CNN supervised them, played a role in negotiations between the Union and TVS, and “shared or codetermined” decisions for significant control on essential employment terms for the TVS employees. CNN then sought review by the D.C. Circuit.
The court panel found that the Board failed to apply its 2002 decision, Airborne Express, which required that an employer have “direct and immediate control” over the employees for status as a joint employer. The court panel noted that, on remand, the Board could explain with correct analysis why CNN was a joint employer. Whether the Board will issue a decision on remand is uncertain, though, because the Court agreed with the Board that CNN was a successor employer of the TVS employees and, as a successor employer, unlawfully refused to bargain with the Union and discriminated in hiring TVS employees based on their union status.
In any event, the D.C. Circuit ruling on the “joint employer” issue may have special importance because another three-judge panel of the D.C. Circuit has the highly-publicized Browning-Ferris case before it. As we have reported, in that case, the Board went into great detail with respect to its basis for finding that Browning-Ferris and a staffing contractor were joint employers, even though Browning-Ferris did not have direct control over the contractor’s employees. Many expect the D.C. Circuit to reject the Board’s standard as inconsistent with the National Labor Relations Act. If not, the case may go to the U.S. Supreme Court.