CNN/TVS NLRB Case Decision - FAQ

FREQUENTLY ASKED QUESTIONS

 

            We have received a number of questions from former employees of Team Video Services and/or CNN America about the recent decision of the Honorable Administrative Law Judge (“ALJ”) Arthur J.  Amchan in CNN America, Inc. and Team Video Services, LLC.  The questions and answers to these questions are provided below.  If your question is not set forth below or if you need further assistance, please feel free to contact Carl Mayers at 301 495-4999.

 

The Administrative Law Judge’s Decision

 

(1)        Where can I get a copy of the Administrative Law Judge’s Decision?

 

A copy of the ALJ’s decision is available on the website of the National Labor Relations Board (“NLRB” or “Board”).  The particular web address for obtaining ALJ decisions is http://www.nlrb.gov/research/decisions/alj_decisions.aspx.  Scroll down the page to CNN America, Inc., Case No. 5-CA-31828 and JD No. 60-08.  The decision is a PDF file.  The ALJ’s decision is also available on the NABET Local 31 website, which is located here.

 

(2)        Who is covered by the Administrative Law Judge’s decision?

 

The Administrative Law Judge’s decision covers two broad categories of discriminatees.  The first category of discriminatees are former TVS employees who were not hired by CNN after the contracts with TVS were cancelled in late 2003 in Washington, D.C. and early 2004 in New York, N.Y.  These employees are listed in Appendix C (Washington, D.C.) and Appendix D (New York, N.Y.).  These discriminatees are entitled to be reinstated to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privileges that they previously enjoyed as employees of TVS.  These discriminatees are also entitled to a make-whole remedy for any loss of earnings and benefits suffered as a result of CNN’s discrimination and/or the CNN’s unilateral changes in terms and conditions of employment.  CNN would also be required to provide training to these discriminatees if that training is necessary for them to perform these jobs or positions.

 

            The second category of discriminatees are the employees who were hired by CNN (both former TVS employees and new hires) who were denied the terms and conditions established in the collective bargaining agreements that covered the Washington, D.C. and New York, N.Y. bureaus.  These discriminatees are entitled to a make-whole remedy for any loss of earnings and benefits suffered because of CNN’s discrimination and/or the company’s unilateral changes in terms and conditions of employment.  The former TVS employees who were hired by CNN who are entitled to this remedy are set forth in Appendix A (Washington, D.C.) and Appendix B (New York, N.Y.), as well as the employees who are also listed in Appendix C (Washington, D.C.) and Appendix D (New York, N.Y.).

 

(3)        What if my name does not appear on any of the Appendices?

 

If you were employed by TVS at either the Washington, D.C. Bureau in late 2003 and/or the New York, N.Y. bureau in early 2004 and your name does not appear on the Appendices, you should contact your local union representative as soon as possible.  Your local union representative will be able to assist you in determining whether your name should have been included in one of the Appendices.

 

(4)       Does NABET-CWA, Locals 31 and 11 retain the status as bargaining representatives under the Administrative Law Judge’s decision?

 

Yes.  The Administrative Law Judge has ordered CNN to recognize and bargain in good faith with NABET-CWA, Locals 31 and 11.

 

(5)       What is the significance of the fact that the collective bargaining agreements covering both the Washington, D.C. and New York, N.Y. Bureaus have expired?

 

The Administrative Law Judge’s decision requires CNN to comply with the collective bargaining agreements until such time that the agreements expire.  Thereafter, the terms of the expired agreements constitute the status quo, which cannot be changed by CNN until it negotiates in good faith with NABET-CWA, Locals 31 and 11 and either reaches an agreement or impasse.

 

(6)        What about union dues?

 

The Administrative Law Judge’s decision requires CNN to remit to NABET-CWA Locals 31 and 11 any union dues that it was required to withhold and transmit under the collective bargaining agreements.

                                                                                                                                               

 

 

 

The Appeal Process

 

(1)        Is the Administrative Law Judge’s decision final and binding on CNN?

 

The ALJ’s decision is final and binding unless CNN files exceptions with the National Labor Relations Board (“NLRB” or “Board”) in a timely manner.  Based upon CNN’s conduct, including an e-mail that the company sent to its employees, we anticipate that CNN will file exceptions with the NLRB.  If CNN files exceptions, the NLRB will consider those exceptions, as well as the opposition of the General Counsel and the Charging Parties (i.e., NABET Locals 31 and 11) and issue its own decision.

                   

(2)        If CNN files exceptions with the NLRB and the Board adopts the ALJ’s decision, is the NLRB’s decision final?

 

The NLRB’s decision would be final and binding unless CNN files an appeal with a United States Court of Appeals.  The court of appeals would consider the arguments raised by CNN, as well as any opposition to those arguments.  The court would then issue its decision; and, if the court rules against CNN, the company could appeal the court’s decision by petitioning for a writ of certiorari from the Supreme Court.  The Supreme Court rarely grants such petitions; and, most often, the decision of the court of appeals constitutes the last word in the process.

 

(3)        How long do all of these appeals take?

 

There really is no answer to this question.  There are time limits for filing exceptions with the Board, filing an appeal with a court of appeals, and petitioning for a writ of certiorari.  However, there is no time limit for the issuance of a decision by the Board, the court of appeals or the Supreme Court.  Given the complexity of the case, each decision-maker could take months or even a year to issue a decision.  As a result, the entire process will likely take several years to complete. On the other hand, back pay and other aspects of the remedy including interest will continue to accrue during the entire appeal process unless CNN were able to overturn the decision on appeal.

 

(4)        Can this case be settled before all of the appeals are exhausted.

 

CNN can seek to settle the case; however, at this stage of the process, a settlement must be approved by the General Counsel as well as the two charging parties, NABET Local 31 and NABET Local 11.  The two local unions filed the charges which triggered this litigation.  Following an investigation of those charges, a complaint was filed by the NLRB against CNN.

 

The Remedy

 

(1)        What is a “make-whole remedy”?

 

A “make-whole remedy” (also known as a compensatory remedy) is designed to place the discriminatee in the position that he or she would have been if the discrimination had not occurred.  Given the discrimination in this case involved the loss of employment and unilateral changes to terms and conditions of employment, the make-whole approach covers not only straight time back pay, it also covers, where appropriate, vacation benefits, overtime pay, premium pay under the contract, bonuses, meal allowances, medical coverage, pension or 401(k) contributions, including employer matches, and where appropriate, moving and travel expenses incurred to obtain alternative employment.  The make whole remedy also includes interest calculated on a quarterly basis based on the “short term federal rate” for the underpayment of taxes.

 

With respect to back pay, those earnings are computed from the date of the termination until the date that CNN provides the discriminatee with a bona fide offer of reinstatement to the discriminatee’s job or a substantially equivalent position.  Similar calculations will be performed with respect to lost fringe benefits.  A former TVS employee who is entitled to reinstatement, does not have to accept the reinstatement offer to be entitled to back pay.  In that event, the back pay clocks ends when the reinstatement offer is made and then, within a reasonable time, rejected. 

 

(2)       Does a “make-whole remedy” include punitive damages or damages for emotional distress?

 

No.  The National Labor Relations Act does not provide for punitive damages or damages for emotional distress.

 

(3)        How will my “make-whole remedy” be calculated?

 

A Compliance Officer with the Regional Office of the National Labor Relations Board (such as Region 2 in New York or Region 5 in Washington, D.C.) will calculate the remedy for each individual discriminatee.  Generally, the calculation of the remedy involves three steps: (a) determining the amount of the discriminatee’s gross backpay; (b) determining the amount of interim earnings, i.e., earnings that the discriminatee earned from interim employers; and (c) subtracting the interim earnings from the gross backpay to determine the discriminatee’s net backpay.  There are many factors that affect this calculation, such as a discriminatee’s efforts to find interim employment after being refused employment by CNN. 

 

If you have specific questions about your particular situation, consult the NLRB Compliance Officer for Region 2 in New York or Region 5 in Washington, D.C., for additional information.

 

(4)        Do I need to keep records in order to receive a make-whole remedy?

 

Yes.  If you were a TVS employee who was denied employment by CNN and your name appears on either Appendix C or Appendix D, you have a duty to mitigate your damages (i.e., your lost earnings) by making a good faith search for interim employment. You should keep payroll records, records of job searches, income tax records or any other information that would prove a diligent job search and interim earnings or expenses.  The NLRB Compliance Officer can furnish you with additional information on the records that you should keep.  As for your gross backpay, i.e., the wages that you would have been entitled to if employed by CNN (including overtime), CNN will be obligated to furnish this to the NLRB.

 

For those who continued to work at CNN, you should do your best to document when you would have been entitled to a meal penalty, overtime after 8 hours, or premium pay under the contract.  CNN will be obligated to turn over this information as well.  Again, contact the Compliance Officer on what records that you should retain.

 


(5)        How are Daily Hires to be treated?

 

The ALJ’s Order covers daily hires who worked regularly throughout 2003 and whose names appear on the appendices.  Such employees are entitled to back pay based on the number of hours worked under TVS.  They are also entitled to reinstatement in this sense that they are to be restored on the freelance list and given future work opportunities as they are available.  Thus, they are to be placed in the position of freelancers that they enjoyed prior to the cancellation of the TVS contracts in D.C. and N.Y.  Disputes pertaining to freelancer back pay that can not be resolved by the parties will be referred to the NLRB compliance officer assigned to this case.

 

  1. What happens if there is a dispute over the amount of backpay or benefits owed by CNN to the discriminatees?

 

The compliance officers at each of the NLRB’s Regions in Washington, D.C. and New York, N.Y. will endeavor to resolve the disputes informally.  However, if the disputes cannot be resolved, then a second hearing is scheduled before an administrative law judge to take evidence and issue a decision resolving those disputes.  This decision is also subject to the appeal process that is described above.

 

  1. What is significance of the ALJ’s broad cease and desist order?

 

The ALJ’s Order in this case requires CNN to cease and desist “in any other manner, interfering, restraining or coercing employees in the exercise of rights guaranteed them by section 7 of the Act.  Such a broad Order is only available when an employer has been found guilty of “widespread and egregious misconduct, demonstrating a flagrant and general disregard for the employees’ fundamental rights”.  This means that further violations of the Act by CNN are subject to contempt proceedings initiated by the NLRB.

 

Disclaimer:  These responses were prepared on the basis of known facts to the best of our ability.  They do not represent any official position of the NLRB.  While we consider the responses accurate, we reserve the right to modify any response as new facts or information comes to our attention.