CNN America, Inc.

National Labor Relations Board - Administrative Judge Opinions

Nov 24, 2008

05-CA-031828 (N.L.R.B. Nov. 24, 2008)

JD-60-08 UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES CNN AMERICA, INC. AND TEAM VIDEO SERVICES, LLC, and NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES (~ TECHNICIANS, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 31, AFL-CIO CNN AMERICA, INC. AND TEAM VIDEO SERVICES, LLC, and NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES 8( TECHNICIANS, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 11, AFL-CIO Table of Contents Case 5-CA-31828 Case 5-CA-33125 Jurisdiction '" '" ,. '" '" ., , 2 Statement of the Case '" '" '" '" .. , '" '" 2 Major Issues '" 2 Procedural Background , '" ,.. , '" '" 3 Findings of Fact. , , , '" 4 General Background/Overview 5 The joint employer issue 5 The successor employer issue 5 Specific allegations in the Complaint. 9 Joint Employer ,.. , '" , '" '" ., 11 NABET did not waive its bargaining rights regarding CNN's decision to terminate the Team contracts or the Bureau Staffing Project. 16 Successorship '" '" '" '" ., , '" , 18 The legal framework , '" '" , '" '" 18 Alleged Discriminatory hiring practices , 20 Discriminatory Motive , '" '" , ..20 Section 8(a)(1) violations and direct evidence of discrirninato-y motive regarding the Termination of the Team Video Contracts and the implementation of the Bureau Staffing Project. , '" ., '" '" , ,.. '" 21 Karen Curry's explanation of CNN's motivation on September 29, 2003 (Complaint paragraph 9(a)) 21 Danielle Whelton's statement to Tim Garraty (Complaint paragraph 9(k) as amended at trial) '" '" '" .25 Kathryn Kross' statements to Local 31 President Mark Peach 25 Jeff Kinney's conversations and email about freelance work (Complaint paragraphs 9(h) and (i)) 26 JD-60-08 Paragraph 9(g) of the Complaint: alleged statement by Lou Strauss 28 Other direct evidence of anti-union animus '" 29 Circumstantial evidence establishing that the reasons given by CNN for not hiring former Team employees, including implementation of the BSP, are pretextual and that the real reasons were discriminatory '" , '" .,. '" '" , 29 Training , 31 The training CNN conducted after the termination of the TVS contracts establishes pretext. 32 Training at the D.C. Bureau , 32 An unprecedented purgelDisparate Treatment vis-a-vis nonuniion employees at eNN's' Atlanta headquarters , " 33 Compelling evidence that the Bureau Staffing Project was a sham '" 34 Manipulations by High Level Executives 34 Hiring of Individuals who did not apply, and/or were interviewed after the meetings at which BSP hiring decisions purportedly took place and/or were not evaluated at such meetings 36 Washington Bureau , , , 36 New York Bureau Engineers , 36 Hiring of nonapplicants and late applicants as media coordinators and studio operators 38 Transfers and part-time employees in positions covered by the BSP '" '" 39 Disparate treatment vis-a-vis nonunion employees at the Washington and New York Bureaus '" , , ,. '" , '" '" '" ., '" '" 40 Absence of evidence as to how and why hiring decisions were made .40 The absence of credible evidence regarding the hiring decisions made for photojournalists .. .41 The critical classification of applicants into categories '" .. , '" '" ', .43 The absence of any credible nondiscriminatory evidence as to why nonTVS applicants were hired instead of Team Video bargaining unit members .46 The D.C. cameramen/Photojournalists 46 Non Linear editing (NLE) 51 The "Growth" Candidates , '" , , '" "., '" .. , '" , '" , .53 The demo tapes do not establish a nondiscriminatory basis fOI" hiring growth candidates Instead of experienced Team applicants , 56 Record evidence regarding some of the TVS Bargaining Unit lIIIembers that were not hired by CNN in Washington D.C 58 Sarah Pacheco " 58 Chris Hamilton , '" '" , , , '" .. , '" , , '" '" 59 David Jenkins '" .. , '" , , '" '" '" .. , '" 60 Larry Langley ,. '" , '" .. , '" ,.. '" '" 61 Mark Marchione '" '" , '" '" ,.. '" .. , '" '" 62 Luis Munoz , , '" , '" , " '" ., '" 63 James Norris '" '" ". '" '" '" '" 64 John Urman , '" 65 Charles Anderson '" .,. '" '" '" .. , '" , ,.. '" '" .,. '" 66 Danny Farkas '" '" , '" '" '" 66 Myron Leake '" ,. '" , , 66 Martin Jimenez , 67 Record Evidence pertaining to some of the non-TVS applicants hired by CNN in Washington, D.C , '" , '" '" ,.. '" '" ., 67 CNN's concerted efforts to justify its hiring decisions after the fact. 68 Evidence regarding non-TVS applicants who were hired by CINN 70 Khalil Aballah , " " , 70 John Bena '" '" '" '" , ,.. '. '" '" '" 71 Bethany Chamberland Swain '" .. , '" , '" , , '" '" 72 JD-60-08 Mike Haan & Jerry Appleman , '" , , '" .. , '" '" '" , '" 73 Jeremy Harlan '" .. , '" ., '" .,. '" '" , ,. '" '" .., '" ., '" .73 Ron Helm '" '" '" , '" '" '" 73 Jay McMichael " 74 Jeremy Moorhead , " ,. " " 74 Bryan Pearson '" , '" 75 Jose Santos '" .,. '" '" , '" , '" '" '" '" 75 Doug Schantz '" '" .. , '" '" '" ., '" , 75 Ken Tillis '" .. , '" '" .,. '" ,. '" '" '" '" 75 Floyd Yarmuth ' 76 New York Bureau Field Camera and Field Audio Technicians 76 The selection process for New York photojournalists '" '" '" .. , '" 80 CNN's failure to hire Brian Kiederling '" , '" .. , '" '" '" '" '" '" .82 Richard Frederick '" ' 86 Bryan Kane 87 The strange case of Carlos Christen , 87 The absence of any credible nondiscriminatory evidence as to why nonTVS applicants were hired instead of Team Video bargaining unit members for studio and enqineerinq positions..88 Audio Designer, D.C , 88 Technical Director, New york 89 Who decided which applicants to hire for technical director? When were these decisions made? Why did CNN not hire Jimmy Suissa? 90 Media Coordinators, New York '" '" , , '" '" .. , 91 The Engineering Department in the Washington, D.C. Bureau 91 The D.C. Studio and control room employees 98 Adilson Kiyasu 99 Dennis Faulkner '" , , , '" '" '" .. , 100 Michael DeSilva 101 Lack of any correlation between interview scores, butcher blocks and hiring decisions 101 New York Bureau Broadcast Engineers , '" '" '" , '" , '" 102 The studio and control room technicians in New York 105 Media Operations , 105 Appropriate Bargaining Unit(s) , , 106 The D.C. Bureau's Couriers , 106 Who was a member of the Team bargaining unit? Who was a member of the CNN bargaining unit on December 6, 2003 in D.C. and January 17, 2004 in New york? , 107 Freelance discriminatees in New York '" '" ,. '" . , , '" , 110 Freelancers who were members of the Team New York bargclining unit and were hired by CNN , ",111 Alleged D.C. discriminatees who were freelancers , 111 Freelancers hired by CNN who were part of the Team bargaining unit. 112 CNN contentions regard the appropriate CNN bargaining unit 112 The CNN Employees in Question: . Information Technology employees in Washington 114 Information Technology Employees in New york , 115 Electronic Graphic Operators in New York and Washington; Media Coordinators, Production Assistants and Technical Production Managers in Washington, D.C '" '" .. , '" 116 Lines Coordinator " , 117 Operations ManagerslTechnical Production Managers in New York '" ., '" 117 Editor Producers '" '" '" .. , ' '" '" '" , '" '" .118 Application of the successorship criteria: JD-60·-08 Continuity of the employing enterprise: Changes to employees' job duties as it affects CNN's status as a successor employer to Team Video Services , ,. '" , '" , ..118 Media Coordinators in New York '" '" ., '" '" , '" '" '" 121 Other studio operations '" '" '" '" '" ,. '" '" '" '" 122 Technical Directors , '" '" .. , '" '" '" ., '" '" '" 123 QC (Quality Control) and Tape Technicians 124 Floor Directors , '" '" '" '" '" '" '" 124 Audio Designers in New york 124 Audio Designers and Studio Operators in Washington 124 Alleged changes in the jobs of the photojournalists 125 Laptop editing in the field '" '" , '" ,. '" '" '" '" 126 Editorial involvement. 127 Washington '" '" '" '" '" , '" '" '" '" .. , '" '" '" 127 David Jenkins ,. '" '" '" '" '" .. , '" '" 127 Tim Garraty 127 John Bodnar. , ,. '" '" , '" 128 Doug Schantz , , '" '" , '" '" '" '" '" '" '" .,. '" '" 128 Bethany Chamberland Swain 129 Khalil Abdallah " 130 The White House Crews '" '" '" '" ,. '" , , '" ,. '" 130 New york 131 Richard Shine , " '" ., . " " 131 Steve Machalek ,. '" , '" .. , '" '" , '" , '" 131 Thomas Miuccio , '" '" '" ., , , '" .,. '" '" 131 Daniel Meara '" '" 131 Neil Hallsworth , , , '" .132 Desmond Garrison " 133 The Media Coordinator Position in Washington '" '" , , '" '" 133 Engineers , '" '" '" '" '" , , '" '" , '" 133 The changes in employees' job situations after the Team contracts ended were not sufficient to negate CNN's status as a successor employer to Team Video 133 The supervisory issue '" , '" '" '" '" 134 Dennis Norman was not a statutory supervisor. " 138 Rick Morse, Greg Robertson and Geoff Parker were not statutory supervisors under Team 138 Witness Credibility '" '" 139 Credibility of witnesses testifying about the Bureau Staffing Project. '" 139 The inability of Respondent's witnesses to give a consistent account as to who was present at the meetings at which hiring decisions were purportedly made 141 Testimony of CNN witness which is either inaccurate or less than the whole truth 142 One of many examples of a CNN witness more interested in supportinq his employer's litigation strategy than in testifying candidly , 143 The credibility of management witnesses testifying as to how the duties of CNN employees hired during the Bureau Staffing Project differed from those 0"1' Team employees 145 The case against Team Video 145 Conclusions of Law , '" '" , '" , '" , '" , '" '" , , 146 Remedy 147 ORDER 148 APPENDiX 151 iv JD~O-08 Atlanta, GA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES CNN AMERICA, INC. AND TEAM VIDEO SERVICES, LLC, and NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES ~:l TECHNICIANS, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 31, AFL-CIO CNN AMERICA, INC. AND TEAM VIDEO SERVICES, LLC, and NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES ~:l TECHNICIANS, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 11, AFL-CIO Case 5-CA-31828 Case 5-CA-33125 David Biggar, Dorothy Foley, Thomas P. McCarthy, Carol A. Baumerich, Daniel Collopy, Daniel Heltzer, Gregory Beatty, Susannah Ringel, Allen Rose, Lindsay Parker, Esqs. for the General Counsel. Zachary Fasman, Kenneth N. Willner, Maureen O'Neill, Todd C. Duffield, Sandi F. Dubin, Esqs. (Paul, Hastings, Janofsky and Walker, LLP, Washington, D.C.); Lisa Reeves, Esq., for Respondent CNN America, Inc. Peter Chatilovicz, Michael Viccora, Eric Janson, Daniel Sikka, Esqs. (Seyfarth Shaw, LLP, Washington, D.C.), for Respondent Team Video Services, LLC. Brian Powers and Keith Bolek, LLP (O'Donoghue and O'Donoghue, LLP, Washington, D.C.) for Charging Party Local 31. Robert Marinovic, Lowell Peterson, Esq. (Myers, Suozzi, English and Klein) New York, New York; Stephen H. Sturm, I::sq., (Sturm & Perl) New York, New York, for Charging Party Local 11. Matt Harris, for Charging Parties Local 31 and Local 11. DECISION ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Washington, D.C., and New York, New York on 82 dates between November 7, 2007 and July 21,2008. There are over 16,000 pages of transcript and over 1300 exhi bits, many of them voluminous. JD-60-08 Jurisdiction At all times material to this case, Respondent' CNN America, Inc., (CNN) a division of Turner Broadcasting Systems, Inc., had its headquarters in Atlanta, Georgia and had bureaus in 5 other countries and states including New York and the District of Columbia. At 8111 material times CNN has been engaged in the gathering, producing and broadcasting of national and international news. In 2003 and 2004, CNN performed services valued in excess of $100,000 outside of the State of Georgia. CNN has been, at all material times, an employer engaged in commerce within the meaning of the Act. 10 Team Video Services, L.L.C., during all material times had a place of business in Washington, D.C. Team Video Services of New York, had a place of business in New York, New York. Both companies, hereinafter referred to as Team, provided services valued in excess of $50,000 to enterprises located outside Washington and New York, respectively. 15 Team was at all material times an employer engaged in commerce within the rneaninq of the Act. The Charging Parties, NABET Locals 31 and 11 are laoor organizations within the meaning of the Act. 20 Statement of the Case Major Issues 25 1. Prior to December 6, 2003, in Washington, D.C. and January 17, 2004, in New York, Team Video employed camera operators, sound technicians, studio technicians and broadcast engineers who performed much of the technical work at CNN's Washington and New York bureaus. Team also employed couriers at CNN's Washington, D.C. bureau. The General Counsel alleges that CNN was a joint employer with Team Video of these employees. 30 2. Effective on the dates set forth above, CNN terminated its contracts with Team Video and directly hired employees to perform the camera, studio and engineering work at its Washington and New York bureaus. CNN named the process by which it directlly hired technical employees the Bureau Staffing Project (BSP). Turner Properties hired two of the 35 couriers who had previously worked for Team at the Washing10n, D.C. bureau. The General Counsel alleges that CNN was also a successor employer to Team Video at the Washington and New York bureaus. 3. Team employees at CNN's Washington and New York bureaus were represented by 40 the Charging Parties, Local 31 of the National Association of Broadcast Employees & Technicians (NABET) in Washington and NABET Local 11 in New York. The General Counsel alleges that CNN discriminated against Team bargaining unit members in its direct hiring of technicians. 45 4. The General Counsel further alleges that CNN violated the Act in refusing to recognize and bargain with NABET Locals 31 and 11 as the collective bargaining 50 1 When I use the term Respondent, I mean CNN, unless otherwise specified. JD-60-08 representatives of those of CNN's technical employees who the General Counsel alleges were performing work previously performed by bargaining unit employees at CNN's Washington and New York bureaus. To this end, the General Counsel alleges that a majority of the CNN employees in the historic bargaining units were formerly members of the Team bargaining units. 5 Moreover, the General Counsel alleges that but for CNN's discrimination against Team unit members, a majority of the members of any appropriate CNN units would have been former Team unit members. 5. CNN and Team Video contend that they were not joint employers. CNN contends 10 that it did not discriminate against NABET bargaining unit members when directly hiring its technical employees. CNN also contends that it is not a successor employer. Among CNN's contentions is that the NABET bargaining units are not appropriate CNN bargaining units. CNN contends that any appropriate CNN bargaining unit must be a wall-to-wall unit of production employees, including employees who were directly employed by CNN prior to the termination of 15 the Team contracts. This includes employees such as information technology specialists, electronic graphics operators and editor/producers. 6. CNN also argues that even if a majority of employees in an appropriate unit are former Team Video bargaining unit members, it is not a successor employer to Team. CNN 20 c,ontends that its technical employees are not performing the same jobs that Team employees performed at CNN's Washington and New York bureaus. For example, CNN contends that its photojournalists are not performing the same job as were Team Video cameramen. Procedural Background 25 The National Association of Broadcast Employees anel Technicians (NAI3ET) Local 11 filed the original charge in Case 5-CA-33125 (formerly designated 2-CA-36129) regarding CNN's New York, New York Bureau on March 5, 2004. NABFT Local 31 filed the original charge in Case 5-CA-31828 on March 22,2004, regarding C~,IN's Washington, D.C. Bureau. 30 On June 30, 2006, Region 5 dismissed the charge reqardinq the D.C. bureau insofar as it alleged that CNN and TVS terminated their contract to discourage membership in Local 31. The General Counsel's Office of Appeals sustained Local 31's appeal of the dismissal on February 23,2007, CNN Exh. 723. On April 4, 2007, the General Counsel filed the initial 35 Complaint in this matter. An amended Consolidated Complaint was issued on November 6, 2007. On the entire record.s including my observation of the demeanor of the witnesses, and 40 45 50 2 Each page of every document produced by CNN in response to the General Counsel's subpoena has a unique number in the lower right corner of each page. These are called "Bates numbers," e.g., CNNA-011650 or CNNA-PROD00064228. When I cite to Bates numbers in exhibits, I use the abbreviation B# and omit zeros that are at the front of the Bates numbers. To my knowledge, the issue of whether CNN has fully complied with the General Counsel's subpoena has yet to be resolved, see 352 NLRB No. 85 (May 30, 2008). Additionally, I note that CNN has refused to allow this [udqe or any AU to examine the documents listed on its privilege log to determine whether they are in fact privileqed, despite a Board order that it do so, Id., n. 4, Tr. 7673-89. I ordered an In camera inspection of 26 pages of CNN'S privilege log, encompassing documents authored between January 1, 2003 and the Continued JD-60-08 end of February 2004. I did not order an in-camera review of documents between CNN and the Paul Hastings law firm, but required a review of documents claiming attorney-client privilege for numerous emails between CNN's in-house counsel Lisa Reeves and other CNN employees. 5 In this regard, CNN states at page 37 of its reply brief that "'there is no evidence of a single Team candidate whose candidacy was quashed by [Cynthia] Patrick or Reeves." Without a review of the documents listed on the privilege log, there is no way of telling whether such evidence exists. Moreover, there is a strong suggestion of such "quashing" by Patrick with 10 regard to Jimmy Suissa and an initial attempt to "quash" the hiring of Barbara McCloskey. The Eastern District of Louisiana in In re Vioxx Products Liability Litigation noted that in- house counsel often plays a dual role in the corporate context "It is often difficult to apply the attorney-client privilege in the corporate context to communications between in-house corporate 15 counsel and those who personify the corporate entity because modern corporate counsel have become involved in all facets of the enterprises for which they work. As a consequence, in- house legal counsel participates in and renders decisions about business, technical, scientific, public relations, and advertising issues, as well as purely legal issues." In re Vioxx Prod. Liab. Litig., 501 F.Supp.2d 789, 797 (ED.La.2007). 20 "Only if the attorney is 'acting as a lawyer' giving advice with respect to the legal implications of a proposed course of conduct may the privilege be properly invoked. In addition, if a communication is made primarily for the purpose of soliciting legal advice, an incidental request for business advice does not vitiate the attorney-client privilege." Hercules, Inc. v. Exxon 25 Corp., 434 F.Supp. 136, 147 (D.DeI.1977). There are numerous errors in the transcript. However, few of them appear to be material. I hereby correct one of these errors at follOWing critical point, Tr. 10874, line 16. What appears to be a continuation of my instruction to the witness, Barbara Morrisey-Marquez, is in fact her 30 testimony. JUDGE AMCHAN: If she knows. I would want you to distinguish between the two people who, as I understand 35 it, were running the meeting and statements in the audience, [The rest of this line and continuing to the end of line 23 is Ms. Morrisey's testimony, not a continuation of my instructions to her.] A I can tell you that during the meeting mainly the woman was speaking and I 40 remember somebody else standing up basically adding in their two cents here and there. But there was only one main speaker. There was two head people speaking. Not speaking, standing up. And addressing the 45 conference room, basically. Q. Do you know either of their names? A No, I don't know. Tr. 10129, line 16: the word "phone," should be "stand." 50 Tr. 13167, line 15: "February" should be "December." G.C. Exh. 40, the contract (ENGA) between CNN and Team Video in Washington, is hereby Continued JD-60-08 after considering the briefs and reply briefs filed by the General Counsel, Respondents and the Charging Parties, I make the following Findings of Fact 5 General Background/Overview The joint employer issue 10 Respondent CNN America, Inc. (aka CNNA, the Cable News Network) is a division of Turner Broadcasting Systems, Inc. CNN's headquarters is in Atlanta, Georgia and it has bureaus in other cities and countries. CNN went on the air from Washington, D.C. in June 1980, Mobile Video Services, 266 NLRB 1143, 1144 and n. 2 (1983). Since that time until December 6, 2003, CNN contracted with a number of companies successively, including Mobile 15 Video, Newslink, Professional Video Services, Potomac Television Services and Team Video Services, to provide technical services, such as camera, audio, engineering and studio and control room work at its Washington, D.C. bureau. It also contracted out its technical services at its New York, New York bureau from as early as 1985 until January 17, 2004. 20 The last contractor, October/November 1997-Decernber 5, 2003, at the Washington bureau was Respondent Team Video Services, LLC. The last contractor at the New York bureau, March 1,2002 to January 16, 2004, was Team Video Services of New York. These sister companies were part of the Asgard Entertainment Grouo and will be referred to herein as TVS and/or "Team."3 As set forth, herein, I find that CNN meaningfully affected matters relating 25 to the employment relationship of Team employees to such a degree that it was a joint employer of Team's employees. I draw this conclusion primarily on the basis of the extent of CNN's supervision and direction of the Team Video workforce. The successor employer issue 30 35 40 45 50 The Board certified NABET Local 31 as the exclusive bargaining representative of Mobile Video's employees at CNN's D.C. Bureau in January 1982, Mobile Video Services, 266 NLRB 1143,1144 and n. 2 (1983); G.C. Exh. 2.4 In 2003, contractor Team Video employed field, studio, and engineering technicians and couriers. The contractors' employees in New York were represented by NABET Local 11 beginning in 198~,. That bargaining unit consisted of field camera, field audio, engineering and studio technical employees. There is no evidence in this record indicating that CNN contracted out the technical work at any of its other bureaus. Technical employees at CNN headquarters in Atlanta and at other bureaus were not unionized. Throughout the 1980s, 1990s and, in New York in 20C2, each successive contractor received into evidence if I inadvertently failed to receive it into the record during the hearing. G.C. Exhibit 326, is received into evidence with its handwritten notations, pursuant to Local 31's motion to reopen the record and CNN's October 23, 2003 letter consenting to its admission. 3 At both bureaus, Team's immediate predecessor was Potomac Television Services, Corporation (Potomac). 4 Local 31's certification describes the bargaining unit as 'all full-time and regular part time employees... including camera operators, tape operators, editors, couriers, engineers and master controllers ... " JD-60-08 retained the vast majority of the employees of its predecessor, and recognized and bargained with Locals 11 and 31. Thus, the General Counsel alleges, ard I find, that CNN's failure to hire many of the Team employees and its refusal to recognize NABET was unprecedlented and thus suggestive of discriminatory motive. 5 For example, when Team Video replaced Potomac Television as the contractor at the D.C. Bureau in 1997, it hired 85 out of the 89 Potomac bargaining unit members. It then recognized and bargained with Local 31. Most recently in March 2002, Team retained over 90% of Potomac's bargaining unit members when it became the contractor in NElW York.5 10 Thereafter Team recognized and bargained with Local 11. Thl3re is no evidence that any contractor replaced employees who were performing their jobs satisfactorily. Recognition has been embodied in successive collective bargaining agreements. The most recent of these agreements for the New York bureau between Team Video and Local 11 15 was signed in April 2003. It was effective from about December 2000 (retroactively) through February 28, 2006. The most recent of the agreements for the Washington, D.C. bureau between Team and Local 31 was effective from February 1, 2002 through January 31, 2006. On September 29, 2003, CNN publicly announced that it was terminating its contracts 20 with Team in both bureaus. CNN then implemented the "Bureau Staffing Project (BSP)" to recruit, interview and hire its own employees to provide the technical services it had previously contracted out. The Bureau Staffing Project was an elaborate process with many steps. As discussed in 25 great detail herein, the Bureau Staffing Project was a sham process. During the BSP, CNN engaged in widespread and blatant discrimination against Team Video bargaining unit members. CNN did so with the objective of depriving employees of NABET representation. As discussed herein, there is direct evidence of CNN's discriminatory motive, as well as overwhelming circumstantial evidence of discrimination. I set Worth herein in great detail the 30 disparate treatment of many Team applicants when compared to non Team unit members. CNN invited applicants to apply online to the Turner jobs website. CNN or Turner recruiters then screened applicants in a telephone interview. Those who passed this initial screen, including Virtually all full-time Team bargaining unit members, were then scheduled for 35 face to face or telephone interviews with one or more CNN "hiring managers." These hiring managers included CNN management personnel from CNN's Atlanta headquarters, as well as from the CNN Washington and New York bureaus. Each hiring manager was supposed to fill out a ten paqe interview guide: however, it is 40 unclear as to whether every hiring manager did so for each applicant. The tenth page of this guide contained a rating sheet on which the interviewer was supposed to rate each interviewee in a half dozen categories, such as creativity, initiative, decision making, ethics and integrity and teamwork. The hiring managers rated interviewees on a scale of 1 (the worst) to 5 (the best). At least in some cases, CNN compiled composites of these interview ratings. As discussed 45 herein, it is unclear what use, if any, CNN made of these interview ratings in the hiring process. The absence of evidence that that the applicant interviews played any role in CNN's hiring 5 As of February 20,2002, Team intended to hire 87 out of 95 Potomac barqaininq unit members. In at least one instance, Team declined to hire a Potomac bargaining unit member 50 because of concerns about his skill and attitude. These concerns were communicated to Team by Potomac managers, CNN Exh. 229. 6 JD-60-08 decisions is one of several factors which leads me to conclude that the Bureau Staffing Project was a sham process. Some or all applicants for photojournalist positions were asked to submit a "demo tape" 5 or reel to CNN's chief photographer in Atlanta, Dan Young. As set forth herein, it is unclear what role, if any, the review of these tapes by Young and/or other CNN management personnel played in the hiring process. After the interviews, the hiring managers for each particular job classification, and other 10 CNN management personnel met to conduct a debriefing or selection meeting for the different job classifications. For example, in Washington there were separate selection meetings for photojournalists, engineers, audio designers and studio operators in early November 2003. In New York, there were separate selection/debriefing meetngs for various job classifications in early December 2003. At each of these meetings applicants were evaluated on "butcher 15 blocks," which are large sheets of manila paper. At these meetings the hiring managers purportedly determined which applicants would be hired. The record however establishes that at least some, if not all, final hiring decisions were made by hiqher level CNN officials who were not "hiring managers." 20 CNN witnesses testified that applicants, at least in some job categories, were first classified in such terms as a "very strong possible" candidate, a "strong possible" candidate, a "possible" candidate, a "possible minus" candidate, etc. It is unclear who performed this categorization and when it was done. 25 After this categorization, CNN managers ranked some or all of the candidates in order of desirability. For example, 55 applicants for the photojournalist position in Washington were ranked in order by each hiring manager. Then a composite list averaging these rankings was composed. CNN purportedly made its hiring decisions on the basis of the rankings at the debriefing/selection meetings. However, in some cases CNN changed the order of these 30 rankings after the debriefing sessions. The reasons for these changes are unexplained in many cases. Sometime after the debriefing meetings, CNN checked the references of applicants it intended to hire and extended offers of employment. CNN personnel periodically prepared spreadsheets, such as G.C. Exhs. 268-70 and 35 CNN Exh. 541, to keep track of the progress of the BSP. CNN made unexplained changes to the order of applicants to whom jobs would be offered and added individuals to the spreadsheets who were not considered at the debriefing meetings and in some cases were interviewed after the debriefing meetings. 40 Most importantly, CNN hired individuals for positions subject to the Bureau Staffing Project who were interviewed after the debriefing meetings at which applicants who supposedly selected for hire. Some of these individuals were offered positions prior to the end of the Team contracts and some were offered their positions soon afterwards. This is another major factor in my conclusion that the Bureau Staffing Project was a sham. 45 During the Bureau Staffing Project, virtually all the full time Team Video employees applied for positions with CNN. CNN hired approximately 70 of the 120 former Team Video bargaining unit employees in New York and roughly 48 of the 86 bargaining unit members who worked for TVS at CNN's Washington, D.C. Bureau. 50 CNN did not terminate the TVS contract because it was dissatisfied with the quality of the work performed by bargaining unit employees. The reason advanced by CNN for replacing 5 10 15 20 25 30 35 40 45 50 JD-60-08 many of its technical employees is that it was necessary for it 10 have a new workforce in order to take advantage of technological developments in the industry, particularly those related to computer technology (e.g., G.C. Exh. 101, pp. 5 & 8-9, Tr. 803-04, 8346). With regard to the New York Bureau, CNN relies also on the fact that it was moving from a largely tape-based (or analog) facility to a new more computer-based (or diqital) facility at the Time Warner Center. 6 This move occurred in 2004, several months after the termination of the Team Video contract." As set forth herein, I find the reasons given by CNN for its termination of its contracts with Team Video and its implementation of the Bureau Staffinf;1 Project to be pretextual. A major motive in these decisions was CNN's desire to operate its WaHhington and New York bureaus without a union. CNN could easily have trained the employees who worked for Team in the new technologies, and in fact CNN did provide extensive training to all the employees hired during the Bureau Staffing Project, regardless of whether or not they had previously worked for Team Video. There is no evidence that any Team employee, either those who were hired and those who were not hired, could not have adapted to the technogical changes that CNN was undertaking. Indeed, CNN hired a number of Team employees who it discriminatorily refused to hire during the Bureau Staffing Project, afterwards. There is no evidence that any of these employees was unable to cope with the technological chanqes at CNN. However, some of the nonTeam members hired during the BSP were terminated for poor performance and others quit their jobs soon after they were hired. Team ceased operations at CNN's Washington bureau at the close of business Friday, December 5, 2003. The technicians hired through the Bureau Staffing Project reported to work on Saturday, December 6, 2003. Team ceased operations at the New York bureau on January 16,2004. Employees hired through the Bureau Staffing Project in New York reported to work on Saturday, January 17, 2004. CNN broad casted on the days after the termination of the Team contracts without any interruption of service to its viewers. Former Team employees hired by CNN performed essentially the same tasks for CNN that they had performed for Team. The employees hired to replace Team employees who were discriminated against also performed essentially the same tasks that were previously performed by Team bargaining unit employees. Since, but for CNN's discriminatory conduct, Team unit members would have constituted a majority of any CNN bargaining unit, I find that CNN is a successor employer to Team Video. 6 The value of a digital signal, as opposed to an analogue signal, is that it does not deteriorate as it is transmitted or replicated. CNN Engineering Director Tu Vu testified that the Washington bureau was transformed from an analog to a digital facility in 1999 or 2000, Tr. 1735. 7 CNNfn, CNN's financial network, began broadcasting from the Time Warner Center on April 12, 2004. The last shows moved from 5 Penn Plaza to the Time Warner Center in May 2004, Tr. 12273-74. Thus for two-three months the employees hired during the Bureau Staffing Project worked at the same location as had the TVS employees, operating the same equipment to broadcast CNN's programming. JD-60-08 Locals 11 and 31 requested on several occasions that CNN recognize and bargain with them as a successor employer to Team Video." CNN refused to do so. It informed the Unions, through counsel, that it did not agree that a majority of CNN's current employees in any appropriate bargaining unit were previously represented by NABET at the D.C. and New York 5 bureaus while Team Video was CNN's contractor. G.C. Exhs. 26 & 28. Counsel also asserted that CNN employees were not performing the same or similar work as TVS employees. CNN contends that any appropriate CNN bargaining unit must include employees at the two Bureaus who were directly employed by CNN prior to the termination of the Team contracts, 10 rather than by Team Video. These are individuals such as computer specialists, lines coordinators (who performed administrative rather than techn ical tasks for CNNl), electronic graphics operators and editors. When including these employees in an appropriate bargaining unit, CNN contends that less than 50% of CNN bargaining unit members would have been former Team bargaining unit members. 15 However, but for CNN's discrimination against Team Video bargaining unit members, a majority of the members in any appropriate CNN unit would have been former Team bargaining unit members. Due to its discriminatory conduct, CNN is not only a successor employer to Team either in the historic bargaining units or any expanded bargaining units, but it also 20 forfeited its right to set the initial terms and conditions of employment of bargaining unit employees. Finally, CNN asserts that CNN employees hired during the BSP were not performing the same or similar work as TVS employees. I reject this contention as well. 25 As a result of CNN's refusal to recognize the unions and its failure to hire many members of its bargaining units, Locals 11 and 31 filed the instant charges. Specific allegations in the Complaint 30 The essence of this case is paragraph 22(b) of the Complaint. This paragraph alleges that all the allegedly illegal acts in this case "are part of an overall plan ... to unclermine the union activity of the Unit employees in Respondent CNN's DC and NY bureaus. This overall plan included, but was not limited to, the termination of the ENGA [the contracts between CNN and 35 Team Video] ... transfer of bargaining unit work to CNN, and the discharge of bargaining unit employees in each Unit, and Respondent's creation and implementation of recruitment and hiring procedures to discriminatorily limit the hiring of a majority of TVS bargaining unit employee applicants in each Unit." 40 The General Counsel also alleges that: 45 8 Formal demands for recognition and bargaining were made by Local 31 on December 8, 2003 and by Local 11 on January 23, 2004. However, NABET requested to meet with CNN on several occasions prior to the end of the Team contracts and, as discussed more fully later, I deem these requests to constitute requests to bargain. CNN, except for the brief meeting between D.C. Bureau Chief Kross and Local 31 President Peach, declined these requests. At 50 this meeting, I find that Peach effectively requested bargaining and Kross in effect told Peach that CNN intended to operate without NABET. 9 5 10 15 20 25 30 35 40 45 50 JD-60-08 a number of supervisors and agents of CNN made statements to employees that restrained, interfered with and coerced employees in violation of Section 7 of the Act.? CNN sufficiently affected matters relating to the employment of TVS employees prior to December 2003, that CNN and TVS were joint employers of bargaining unit employees. Therefore, the General Counsel contends CNN could not legally terminate the collective bargaining agreements on December 5, 2~003 in Washington and on January 16, 2004 in New York. Further, the General Counsel contends that both CNN and TVS are responsible for remedying the unfair labor practices committed by CNN because TVS was on notice that these violations were occurring, acquiesced in the violations and did not exercise means available to it to resist them; Any changes CNN has made to terms and conditions of employment of unit employees violate Section 8(a)(5) of the Act; CNN's bureau staffing project was established and implemented in such a manner so as to limit or delay the hiring of TVS unit applicants in order to avoid a successorship obligation to recognize and bargain with the Unions. It also 9 I find that every individual named in paragraphs 4(a) and 4(b) of the Complaint was at all relevant times an "agent" of CNN within the meaning of section 2(13) of the Act. First of all, CNN did not specifically deny that any of these individuals was an agent and therefore these allegations are admitted, 29 CFR section 102.20. Secondly, the record establishes that these individuals were agents of CNN with respect to all material issues in this case. This is clearly the case with regard to Karen Curry, Jeff Kinney, Lew Strauss" Kathryn Kross, Danielle Welton and Tu Vu who are specifically mentioned in the General Counsel's briefs, but aliso all other hiring managers and CNN employees who directed Team tec'micians in their work. Board law regarding the principles of agency is set forth and summarized in its decision in Pan-Oston Co., 336 NLRB 305 (2001). The Board applies common law principles in determining whether an employee is acting with apparent authority on behalf of the employer when that employee makes a particular statement or takes a particular action. Apparent authority results from a manifestation by the principal to a third party that creates a reasonable belief that the principal has authorized the alleged agent to perform the acts in question. Either the principal must intend to cause a third person to believe the agent is authorized to act for him, or the principal should realize that its conduct is likely to create such a belief. The Board also stated in Pan-Oston, supra, that the test for determining whether an employee is an agent of the employer is whether, under all the circumstances, employees would reasonably believe that the employee in question was reflectinq company policy and speaking and/or acting for management. The Board considers the position and duties of the employee in addition to the context in which the behavior occurred. It also stated that an employee may be an agent of the employer for one purpose but not another. It is clear that whenever one of these individuals named in Complaint paragraphs 4(a) and 4(b) communicated to a Team or CNN employee on any matter relevant to this case that the employee understood that this individual was speaking on behalf of CNN. I fail to understand how it is relevant to this case whether these individuals were also "supervisors" within the meaning of section 2(11), although I deem this to be admitted by CNN's insufficient Answer to the Complaint as well. 10 JD-60-08 discriminated against particular named employees because of their union membership and activities. 5 10 15 CNN packed its bargaining units in order to avoid a successorship obligation. The essence of this allegation is CNN's claim that employees who worked directly for CNN in 2003 and who were not members of the TVS bargaining units must be included in any appropriate CNN unit. These employees include information technology employees, line coordinators, electronic graphics employees in New York and editors. Had CNN not purposely limited the hiring of TVS unit applicants and discriminated against them in its hiring process the General Counsel alleges that former TVS unit employees would have comprised a majority of CNN unit employees, either in the historic D.C. and New York units, and/or in the expanded CNN units. Joint Employer The practical consequences of finding the CNN and Team to be joint employers are two 20 fold. First as a joint employer, CNN would be bound by the terms of Team Video's collective bargaining agreements with Locals 31 and 11. The second consequence of a finding of joint employer is that Team Video would be jointly and severably liable for remedying CNN's unfair labor practices if the record permits two inferences: first, that Team Video knew or should have known that CNN acted against employees for unlawful reasons and secondly, that Team 25 acquiesced in the unlawful conduct by failing to protest such conduct or to exercise any contractual right it might have to resist it, Capitol EMI Music, 311 NLRB 997, 1000 (1993). For the reasons set forth below, I find that CNN and Team Video were joint employers of Team's employees at CNN's Washington and New York bureaus. Thus, I find that CNN was 30 bound by the terms of Team Video's collective bargaining aqreernents with NABET. However, for reasons set forth at page 145 herein, I find that Team should not be held liable for CNN's unfair labor practices. In TLI, Inc, 271 NLRB 798 (1984) the Board set forth what has been its standard for 35 determining joint employer status for the past twenty five years. Where two separate entities share or codetermine those matters governing the essential terms and conditions of employment, they are to be considered joint employers for purposes of the Act. Further, to establish such status there must be a showing that the employer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and 40 direction. See, Airborne Express, 338 NLRB 597 n. 1 (2002). In practice, Board decisions do not provide a bright line for determining when a joint employer relationship exists. Each case is pretty much sui qenetis and requires consideration of numerous factors. 10 45 50 10 CNN's reliance on Goodyear Tire, 312 NLRB at 674, 6g8 (1993) and Southern California Gas Co., 302 NLRB 456, 461 (1992) is somewhat misplaced. Unlike those cases, the record herein shows that NABET had previously taken the position that CNN and Team were joint employers. Jimmy Suissa, then Assistant to the Local 31 President, in fact contended that CNN and TVS were joint employers during contract negotiations in 2002, Tr. 4953. As noted in CNN's brief at page 30, then Local 31 President James Harvey requested CNN's presence at Continued 11 JD-60-08 Many of the factors that have led the Board to find a joint employer relationship exist in this case and I find that such a relationship existed between Team and CNN. A~i noted by the Board in Painting Co., 330 NLRB 1000, 1007 (2000), the relationship between a typical 5 contractor/subcontractor is one in which the subcontractor undertakes to perform a particular task, as opposed to the situation herein in which CNN treated the arrangement as one in which Team provided employees for CNN's use." Moreover, typically, a subcontractor provides at least some of the equipment and materials needed to do their lob. Virtually all the equipment used by Team employees to perform their jobs belonged to CNN. 10 This is not a case like Service Employees Local 254 (VI/omen's & Infants Hospital), 324 NLRB 743,748-749 ((1997), cited at page 80 of CNN's brief and at page 41 of Team's brief. The Board found in that case found that the Massachusetts Bay Community Colltege and a company performing janitorial services at the college were not joint employers. These services 15 were ancillary to the core business of the college, i.e., teaching students. This case is more like Holyoke Visiting Nurses Assn., ~1,10 NLRB 684 (1993), enfd. 11 F.3d 302 (1st Cir. 1993), where the Board found joint employer status. Team's employees were performing work that involved the core of CNN's business. Indeed, this is a stronger joint 20 employer case than Holyoke Visiting Nurses in that Team employees were exclusively performing services that involved the core of CNN's business and performed services for no other employer. In Washington and New York, CNN did not employ full-time rank and file camera operators, broadcast engineers and the types of studio operators who worked for Team.P 25 In the instant case there is no question that Team Video performed most or all of the traditional human resource functions with regard to the TVS technical employees at the bureaus. Team paid its employees, provided health insurance, workers compensation insurance, etc.. However, what it paid them and what it could agree to pay them under a 30 collective bargaining agreement was effectively circumscribed by its contracts with CNN (the ENGAs), e.g., Tr. 11042. For example, in its contract with TVS in Washington, CNN authorized TVS to increase Team's payroll by up to 4% per year. While Team could have paid its employees more, it may not have been reimbursed for any inc:reases above 4%, 35 40 45 50 the bargaining table to discuss merit pay in August 1999, G.C, Exh. 41. 11 Asgard Entertainment Corporation created Team Video and Team Video of New York for the sole and express purpose of servicing CNN's Washington and New York Bureaus. Although other companies within the Asgard umbrella continue to operate, Team and TVS of New York ceased their active operations with the termination of the CNf'11 contracts, and were dissolved shortly thereafter, TVS brief at page 2, note 2. Team Video and Team Video of New York did not have businesses that were separate from running the CNN Washington and New York bureaus. That Team had no business purpose apart from providing services to CNN mayor may not be relevant to a joint employer analysis, see, B.A.F., inc., 302 NLRB 188, 193 (1991); Lite Flight, Inc., 270 NLRB 815,816 (1984). In any event, I find CNN and Team to be joint employers without considering this factor. I find a joint employer relationship solely on the basis on CNN's direction and control of the terms and conditions of Team employees' employment. 12 CNN occasionally sent employees from Atlanta, and possibly other bureaus, to Washington or New York to do camera work and other work which was usually performed by Team bargaining unit employees. 12 JD-6Q.-08 This contract further stated that CNN would not fund more than a 4% increase unless it agreed to do so, e.g. G.C. Exh. 40, p. 15. CNN was effectively the only source from which TVS could draw upon to compensate its employees at the D.C. and New York bureaus. Such factors have been relied upon by the Board in concluding that two employer were joint employers, The 5 Continental Group, Inc., 353 NLRB No. 31 (September 30,20(8), slip opinion at pages 8-9; 0 & F Industries, 339 NLRB 618,640 (2003); Windemuller Electric Co., 306 NLRB 6E34 (1992). Furthermore, in negotiating compensation of its employees with NABET in New York, TVS sought input from CNN on issues such as cost of living increases and health insurance, 10 G.C. Exh. 593. As discussed below, overtime compensation of Team employees was within the total control of CNN. Moreover, Team sought approval from CNN before accepting Local 11's wage proposals at the end of collective bargaining in New York in March-April, 2002, Tr. 10607- 08, 10635-36.13 15 Team hired and fired employees. Team gave the technical employees at the Washington and New York bureaus their specific assignments, However, the assignments Team field employees would undertake on any given day were determined by CINN. Particularly for field assignments, CNN determined where Team employees worked and when they worked. Team then decided which of its employees went out on which specific assignments that CNN 20 required Team employees to cover, see CNN brief at page 10::5. Even then, on some occasions, CNN decided which field crews would cover which events during the course of the workday. In Washington, beginning in June or July 2003, CNN provided the following information 25 to Team through a software program named Newsource: the slug (name) of the assignment, the time of the assignment, the location of the assignment, and the names of the on-air CNN "talent" who would be covering the assignment, Tr. 3771. Team filled in the names of the particular Team employee assigned to do camera, audio and/or lighting work. It is not clear who made the determination as to how many Team employees wer"e assigned to shoot." 30 Moreover, it was CNN, not Team that effectively determined many of the essential terms and conditions of employment of TVS employees. Most importantly, CNN supervisors and agents supervised and directed the work of Team employees to a very great extent. CNN suggests at page 8 of its reply brief that it was not a joint employer of Team employees because 35 40 45 50 13 CNN discusses the testimony of Local 11 President Ed McEwan cited above at page 89 n. 67 of its initial brief. CNN argues it should not be credited because the testimony is hearsay. However, CNN did not object to this testimony and I find it credible for the following reasons. First, McEwan's testimony is not hearsay for the proposition that he heard D'Anna make such a statement. Secondly, D'Anna was called as a witness by Team Video three weeks after McEwan testified and did not contradict him either in examination by Team, Tr. '11040-44 or by CNN, Tr. 11055-61. If D'Anna said he would run NABET's proposal by CNN, I infer that he did so. CNN points out that NABET notes of a March 5, 2002 negotiating session include a statement by Team's counsel, Peter Chatilovicz, that "we don't need an agreement with CNN, or their permission, to sign a deal," CNN Exh. 335 page 8. However further negotiation sessions were held as late as April 16 and 17, 2002, CNN Exh. 336. Thus, NABET's notes do not conflict with McEwan's testimony that Team's position chanqed at the end of negotiations and that D'Anna made the statement to which he testified. 14 TVS Exh. 8 indicates that at least in some circumstances CNN determined how many Team employees would be working on a given day. 13 JD-60··08 its direction and control of Team employees was necessitated by news coverage! and news content. I am not aware of any precedent which deems these Ifactors to be exceptions for the proposition that direct supervision and control by an employer over a subcontractor's employees makes it a joint employer. A logical extension of such an argument is that anytime an employer 5 subcontracts the essential tasks of its business and then actively supervises and directs the employees of its subcontractor, it cannot be deemed to be a joint employer. The amount of contact and direction TVS employees received from CNN personnel varied. In the studios and control rooms TVS employees were under the constant control and 10 supervision of CNN producers and directors and had to act in accordance with the instructions received from these individuals, e.g., 10473-81, 10859-66. Other than the specific position at which they worked, CNN provided most of the direction and supervision to Team Video studio employees as to how they performed their jobs, albeit often relayed through the Team employee working as technical director. The direction Team employees received from other Team 15 employees was often the mere transmission of instructions that came from the CNN producer, director or other agent. This was also true for the Team Video camera and audio technicians in the field. Generally, whatever direction or supervision they received during the workday, other than where 20 to go for their next assignment, came from CNN personnel." Team field technicians were free to leave their assignments only when given such permission by CNN personnel. CNN suggests that Team rank and file employees, particularly the engineer-in-charge Dennis Norman, supervised Team employees at George Washington University where CNN filmed the Crossfire show. It is clear, however, that CNN directors and producers were in charge of TVS employees 25 on that site and that Norman transmitted instructions from CNN or filled in the particulars for the general direction and supervision of CNN personnel, e.g., Tr. 3125. CNN and TVS cite a number of Board decisions to the effect that limited and routine supervision is insufficient to make one employer the joint empoyer of another. Those cases are 30 distinguishable from the instant situation. CNN's supervision of Team employees was constant and in many cases, exclusive, as to how TVS employees performed their jobs. In addition, Rick Cohen, TVS' general manager in NevII' York, testified that TVS management could not assign its field employees overtime work without prior approval from 35 CNN, Tr. 11279-80. Q. Who assigned overtime to your employees? A. Who assigned overtime? Essentially, if there was something that was going to cost 40 the client more money, say, a crew was out in the field, our assignment manager would ask would always be with their approval. We didn't do anything on our own. If a crew was out in the field and it looked like it was 45 15 Only one TVS manager, Gabriel Romero in Washington, regularly visited Team employees working outside the bureau building. Romero was a TVS manager for approximately a year. Several General Counsel witnesses testified that on some occasions the TVS assignment 50 editor was merely repeating directions from the CNN assignment editor as to where a particular TVS field crew should report during the workday. 14 5 10 15 20 25 30 35 40 45 50 JD-60·-08 going to cost more money, it would be an issue of overtime, the producer would have to check in with the CNN end and get their approval. Q. But who would actually instruct the technicians to work the hours? A. Somebody at the CNN assignment desk for the field technicians. For instance, if it were a field overtime case would speak to our assignment manager and say hey, we need this person for X number of extra hours. Our assignment managers were not acting autonomously. They were not doing anything unless they were told to. Q. Understood. But who would instruct the employee all right, you can work an additional four hours? A. We would, our assignment manager.16 The contract between Team and CNN in Washington provided that Team would be reimbursed for overtime--provided that CNN approved Team's resort to overtime in advance, G.C. Exh. 40, p. 14. This has also been a factor in cases in which the Board has held respondents to be joint employers, Quantum Resources Corp., 305 NLRB 759 ('1991). Certain cameramen, such as the four technicians assiqned daily to CNNfn in Washington, and Thomas Miuccio and Luis Munoz, who were assigned to CNN Espanol in New York and D.C., had virtually no contact with Team Video management. These field technicians were under the control of CNN personnel throughout their entire workday, Tr. 13,520-40, 13631. 17 Even their specific assignments came from CNN personnel, rather than from the Team Video assignment editor. 18 TVS crews assigned to the White House and the United Nations also had little contact with Team management and received whatever direction they received from CNN personnel. When Team camera operators traveled on assiqnmen: they were under the complete control of CNN personnel. Except for one visit by TVS manager Gabriel Romero to Philadelphia, rarely, if ever, was a TVS manager with them. For example, Sarah Pacheco covered the trial of one of the D.C. snipers in the Virginia Beach/Chesapeake area for several weeks in late 2003. While she was in the Virginia Beach area, Laura Bernardi, a CNN producer, told Pacheco when to report to work, where to station herself and when she could leave her post. Pacheco's only contact with TVS while in the Virginia Beach area was to call in her start and finish times, Tr. 6536-39. 16 Also see G.C. Exhs. 421 and 422. The statement at paqe 34 of TVS' brief that TVS shift supervisors had the authority to approve overtime work is not supported by the exhibits cited, or by anything else in the record. CNN Exhibit 103 makes it clear that it was the TVS manager who had the authority to approve overtime work, not the bargaining unit supervisor. 17 CNNfn in Washington had one permanent crew, John Eiodnar and Kim Uhl, assigned to it. There was also another rotating crew on which at least a half dozen TVS employees served at one time or another. 18 These technicians were sometimes sent to the TVS asslqnment desk for O-08 and Dan Young, Schantz had worked intimately with Young, who taught him Final Cut Pro, as well as with Courtney, Tr. 15750. Not surprisingly, both Courtney and Young gave Schantz high marks 011 the basis of his 5 interview. In the debriefing/selection meeting, Schantz was rated the 15th most desirable candidate. Young ranked him # 7; Courtney # 12. Speiser, Fletcher and Redisch rated Schantz 20th, 29th and 19th respectively. Since there is no evidence that anyone other than Courtney or Young knew Schantz, knew anything about his work or had interviewed him, one must assume that the rankings of the other three hiring managers was based on what Youngr and Courtney 10 told them about Schantz. When Matt Speiser expressed concern about the camera experience of Floyd Yarmuth, an applicant who worked as an editor for CNN in Atlanta, hiring manager Dan Young responded, on October 10: 15 20 I know Floyd, he's a go getter, has learned the art of photography on his own and by volunteering for assignments other would not venture. I just viewed his resume tape, he's got talent, no doubt, could be a good candidate, worthy of second interview given his shooting and FCP experience, he could grow immensely into this job. G.C. Exh. 228, Tab V, B#s 21625,22465. With one exception, there is no evidence of a hiring manager lobbying other hiring 25 managers on behalf of any of the TVS candidates. That effort, by Matt Speiser, on behalf of David Jenkins, was completely ignored by his colleagues. For instance, Matt Speiser, did not share with any other hiring managers his belief that TVS cameraman Chris Hamilton had great artistic talent and that "his work as a cameraman is 30 beyond reproach ... "(G.C. Exh. 228, Tab B, B# 16360, Tr. 58:28). Thus, it is not surprising that when the five hiring managers ranked applicants in order of preference, Speiser ranked Hamilton # 23, while the other hiring managers ranked Hamilton #s 52, 47, 37 and 43 respectively, G.C. Exh. 261. 35 There is also little evidence that any of the hiring managers consulted with CNN producers, editors and reporters who were familiar with the work of the TVS cameramen. Indeed, when they did so, as in the case of Matt Speiser's inquiry regarding Luis Munoz, the hiring managers ignored favorable assessments, see e.g., G .. C. Exhs. 387 and 389. 40 Similar uneven treatment was accorded TVS applicants for the audio designer and studio operator positions in Washington. Anne Woodward, a. CNN manager in Atlanta, was the only person who interviewed candidates for audio designer in Washington. She made inquiries to managers of CNN applicants who worked in Atlanta regarding the applicants' job performance. Woodward made no such inquires regarding Team Video applicants. 45 Troy Mcintyre is the CNN manager who interviewed applicants for studio operator positions in Washington. Like Woodward, Mcintyre talked to the supervisors of CNN and Turner Broadcasting applicants about the candidate's performance. He did not talk to the supervisors of Team Video applicants, Tr. 14578-80.69 No one from CNN made any inquiry regarding the 50 69 On October 27,2003, Mcintyre emailed Andy Parsons, a CNN manager in Atlanta. He Continued 50 5 10 15 20 25 30 35 40 45 50 JD-E50-08 work performance of Team employees to Mike Marcus, the TVS Director of Studio Operations, Tr. 15,384. Non Linear editing (NLE) One factor that CNN did emphasize in the hiring process, particularly in justifying its decision not to hire many TVS cameramen who had worked at the Bureau for many years, was non linear editing (NLE).70 Non linear editing is editing video on a computer, rather than editing on tape. Sometime after 2003, CNN distributed Apple G4 laptop computers to most of its photojournalist teams in Washington and New York. On this computer, a photojournalist can edit video they shot using Final Cut Pro (FCP) an Apple software program. Non Linear Editing was one of the principal devices seized upon early in the life of the Bureau Staffing Project to allow CNN to limit the number of TVS bargaining unit employees it would hire. I infer that this was not an after-the-fact happy circumstance. The individuals running the Bureau Staffing project were aware that Final Cut Pro was used widely by other CNN bureaus and CNN Newsource, but not in Washington or New York, Tr. 12438-39.71 Job descriptions for the photojournalists were changed in 2003 in conjunction with the BSP to increase the importance of experience with FCP and File Transfer Protocol, Tr. 12470-72. This provided the perfect cover for discriminatory hiring to get rid of the unions in those two bureaus. There is direct evidence that the requirements for photojournalist were drafted with the intent of discriminating against NABET members. On May 23, 2003, Matt Speiser suggested to Cindy Patrick that "the Photojournalist PO... should emphasize the use of DV cameras (since this isn't within NABET jurisdiction now)," G.C. Exh. 553. CNN also did not fully apprise the TVS applicants as Ito how critical their lack of experience or training in nonlinear editing, and more specifically, in Final Cut Pro, would be in keeping their jobs. The May 20, 2003 position questionnaire for photojournalists, Exh. G.C. 227, which stated that 20% of a photojournalist's job duties would involve editing/producing: cutting video in the field or in the bureau, was not what applicants saw posted on Turnerjobs.com, Tr. 8353, 4867.72 This document also stated the NLE field editing would be asked Parsons to identify "some of the solid DC folks you kn ow of for the studio operator position." While Parsons regularly visited the D.C. Bureau, there is no evidence that he ever was stationed in D.C. or was familiar with performance of all the TVS applicants. 70 The testimony of CNN witnesses as to how critical it was for an applicant to have experience performing nonlinear editing in the field is not entlirely consistent. Additionally, lack of nonlinear editing experience was not held against TVS cameramen in New York to the same extent that it has held against TVS cameramen in D.C. The reason is that CNN was able to limit the number of bargaining unit members hired in New York simply by not hiring the audio technicians. Since the New York selections were done after those in D.C., CNN may also have run out of suitable Atlanta employees W'10 could replace the Team camera operators. 71 However, Team Video introduced at least some of its employees to the Avid nonlinear editing system, which is similar to Final Cut Pro, Tr. 1021. 72 CNN Exh. 93, a position questionnaire, for "lighting specialist/photojournallst" has similar language about NLE. The three TVS employees hired as lighting specialists in Washington, Dave Berman, Geoff Parker and Greg Robertson have performed virtually no nonlinear editing since they were hired by CNN. 51 JD-E50-08 needed for most events and assignments. As David Jenkins, a Union Executive Board member who lost his job in the Bureau Staffing Project, explained: 5 10 15 If I had seen... these weighted percents [indicating that 20% of their job would involve editing/producing], I could have judged myself how to ... properly prepare myself. We had vacation time and whatnot. We had time to address any issue that was in here. '" if I had read anything abcut the non-linear editlnq, I think we would have talked among ourselves. Again, I could have... with the Union, they have non-linear editing training. I could have called Jim Harvey and the other members and said, look, I want to bring a trainer on X day. I want to bring in as many trainers as we need to train all of us to do this to meet this qualification. This only thing I ever saw was that coversheet on the turnerjobs.com which was just a little NLE editing ... If I had seen it [G.C. IExh. 227] I think I would have been more proactive for myself and everybody else that I worked with. Tr. 4867-68. That Jenkins meant what he testified to is established by the fact that after he lost his job 20 in December 2003, he paid for Final Cut Pro training out of his own pocket as a vehicle for getting hired by CNN in the summer of 2004.73 The position description for photojournalist was developed as early as May 2003. In describing the primary functions of the photojournalist job, C I\lN stated that one of these primary 25 functions was, "NLE field editing for most events and assignments for CNN." In so far work in the D.C. Bureau is concerned, that cescription is inaccurate. Steve Redisch, Deputy Bureau Chief in D.C. at the time of the Bureau Staffing Project, testified as follows in answer to CNN counsel's question as to the siqnificance of nonlinear editing in 30 Washington, D.C.: It's significance is marginal, as far as how CNIN is set up ... because... much of what -the video we bring in, comes in on fiber lines that were already established, whether it's a hearing coming in on line, whether it's a photo 35 opportunity at the White House that gets fed out, it gets fed out on lines, and that's already coming into the house. So the need for editing material out in the field-the need is low. There are times where, yes, it could help... But for the most part, since the bureau is wired in a way that much of its material comes in on lines... the need for nonlinear editing in the field is marginal. 40 Tr. 5695-96. Redisch went on to testify that D.C. photojournalists can be assigned anywhere in the world and that knowledge of nonlinear editing can be very helpful in those situations where you 45 cannot feed back your raw material or it's not being fed back easily. However, it is clear from this record that the D.C. photojournalists have used nonlinear editing in 5% or less of the Washington work they perform. Moreover, in the first six months after CNN terminated the TVS contract, D.C. photojournalists utilized non linear editing less often than they did later on. 50 73 Former Team cameraman John Quinette, who also did freelance work for CNN, took the same FCP training. 52 JD-EI0-08 As discussed again later, some of CNN's photojournalists have performed a lot of editing with Final Cut Pro in the field since the end of the TVS contracts. This work has been done primarily outside of Washington and New York and a lot of it has been done overseas. However, lack of Non Linear Editing experience is not a nondiscriminatory basis for the ElSP. CNN had, 5 as discussed elsewhere, plenty of time to train the existing workforce in Final Cut Pro. One example of this is Peter Morris, a former Team unit member who had "lacked NLE experience" when he was hired, Tr. 15,569, G.C. Exh. 543. Vol 2. B# 23053. Morris achieved proficiency in Final Cut Pro during 2005 and is now held out by CNN as a poster boy for the 10 utility of nonlinear editing in the field, Tr. 6400, 7303,11402-03, 15,439, 15,56~l. The "Growth" Candidates> 15 20 25 30 35 40 45 50 Matt Speiser testified that CNN, "set out to hire the best, most capable photojournalists available," Tr. 3829. Steve Redisch testified that CNN was "tryinq to find and hire the best candidates available," Tr. 5542. However, even according to its own witnesses, CNN did not do that. Instead, it hired a number of "growth candidates," none of whom were full time TVS employees." These were relatively inexperienced applicants some of whom were hired at 74 I do not credit Cynthia Patrick's testimony that several full-time TVS employees who were hired by CNN were "growth candidates." Unlike nonTVS candidates such as Khalil Abdallah and Bethany Chamberland Swain, there is no evidence that these applicants were accorded special treatment despite a lack of shooting experience. G.C. Exh. 268 has the letters G1-G7 to the left of the names of seven photojournalist candidates. None of them were TVS bargaining unit members. None of them were experienced camera operators. All were offered jobs by CNN. I would surmise these were growth candidates although several inexperienced nonTVS applicants (Harlan, Bena and Moorhead) who were hired have no such designation by their names. Ms. Patrick named David Catrett (possibly), Elizabeth Zosso, Ken Tuohey, Kim Uhl (immediately retracted), employed by Team in Washington, and Desmond Garrison, employed by Team in New York, as "growth candidates" who were hired by CNN. There is no evidence for this assertion other than Patrick's testimony. When Matt Speiser was asked about growth candidates employed by Team, he could only come up with the name of freelancer Adam Webster, who CNN did not hire, Tr. 4055. Steve Redisch testified that CNN did not have a separate "growth candidate" list of applicants, Tr. 5592, 5647. Matt Speiser indicated that a "growth candidate" was "loosely defined by experience," Tr. 4026. Both Matt Speiser and R.~I. Fletcher had trouble positively identifying "growth candidates" who were hired by CNN, Tr. 4025, 4210,5843,5855. Even Patrick could not recall whether the relatively inexperienced I:~ichard Frederick, who hired by CNN as a photojournalist in New York, was a "growth candidate," 12897-98. David Catrett had worked at the D.C. Bureau for Team for six years prior to the BSP. He was considered for both the photojournalist and senior photcjournalist positions. Zosso and Tuohey had worked as full-time employees at the Bureau for three years. The interview rating sheets for Tuohey indicate no concerns regarding a lack of experience. Zosso was also considered for the senior photojournalist position. None of these individuals were hired at substantially lower salaries than other employees hired by CNN in their job classification, as were a number of nonTVS "growth candidates." Had not three nonTVS applicants declined an offer of employment from CNN, Garrison would not have been hired during the BSP. If CNN was looking for growth candidates on a nondiscriminatory basis, it would have given greater consideration to TVS employees such as Jim Suddeth. Suddeth was hired as an audio Continued 53 JD-!30-08 considerably lower salaries than more experienced applicants, such as the full time Team Video unit members. CNN hired "growth candidates" rather than experienced Team Video applicants in almost all, if not all job classifications. 75 5 What constituted a "growth candidate" in the BSP appears to have been a very fluid concept. Former D.C. Deputy Bureau Chief Steve Redisch testified about this concept as follows: Q. The Bureau staffing project was not designed to seek growth candidates, right? 10 A. It was not designed to what? Q. Seek growth candidates. A. Growth candidates? Q. Growth candidates. A. Again, define growth candidates. 15 Q. Maybe you could help me. To your knowledge, how was that term used during the bureau staffing project? Was it ever used? A. In the process, we looked at people who had experience, people who had potential, so the term growth candidates was used to define people who could grow into the position at various levels. 20 Q. And when was that first discussed as part of the bureau staffing project? A. I don't recall when it was first discussed, but it was discussed at various points and used in various different discussions. Q. Was it discussed at the debriefing session? A. The term growth candidates did come up during the debriefing session. 25 Q. Was it used prior to the debriefing session? A. I do not know. I do not recall. Q. How did you figure in the concept of growth candidates into your ranking of 1 to 55? A. As far as what was demonstrated-well, demonstrated. As far as our discussion were concerned, how I saw these candidates potentially moving through and where- 30 and you know, projecting how well they can do six months, a year, two years and on out. Q. So you factored that into your 1 to 55 rankings? A. I factored that in-into my 1 to 55 rankings. *** A. As far as I know, there was no growth candidate list, separate list. 35 40 45 50 technician by Team in March 2003. He was interviewed on November 6,2003, the second day of the photojournalist debriefing session by Matt Speiser and Dan Young. Matt Speiser noted that Suddeth had done a little shooting and was looking to learn non-linear editing and camera. G.C. Exh. 543, B# 16437. Rick Denius, after talking to Sudd:~th on the telephone on November 4, noted that Suddeth was "looking to grow with technology," B# 21053. On the butcher block, assumedly created at the debriefing session, one of Suddeth"s strengths was considered to be a "willingness to learn," B#16430. Cynthia Patrick's testimony at 14968-e, and CNN's statement at page 36 of its reply brief, that Raeshawn Smith and Tawana Smith were Team growth candidates is disingenuous in contending that the hiring of growth candidates was nondiscriiminatory. CNN has never conceded that these two TVS freelancers were members of the TVS barqaininq unit for successorship purposes, e.g., CNN Exh. 706, G.C. Exh. 587 75 Thus, audio designers Steve Tovarek and Cory Hall were hired in Washington at salaries of $55,000 and $45,000 respectively, while experienced former Team audio designers were hired at a salary of between $65-68,000. 54 JD-610-08 Tr. 5591-92, Also see Tr. 5647. When the General Counsel asked hiring manager R. ,J. Fletcher about the "growth candidates," he testified that: 5 The growth candidate may be a candidate that is near the bottom of the list, but has potential to fit in, Tr. 5806. In response to my question as to why these candidates weren't ranked higher on the 10 hiring manager's composite preference list, Fletcher responded: Maybe they just didn't have some qualifications that we were looking for, but we didn't want just to exclude someone because of that. .. 15 In fact, some of the candidates hired by CNN were clearly inferior to many TVS bargaining unit members who were not hired in terms of their experience and other qualifications. For example, in the Bureau Staffing Project, CNN hired: Doug Schantz, employed by CNN as an editor in Atlanta, who "shot" once a week; Bethany Chamberland Swain, who was an editor, not a photographer at CNN Newsource (Tr. 5835, 1:5440); and Floyd 20 Yarmuth, who was also an editor, not a full time photographer with CNN in Atlanta. They hired these applicants instead of the many TVS candidates who were full-time photoqraphers at the D.C. Bureau for many years. CNN recruiter Rick Denius testified in what I regard ai:; doubletalk on this issue: 25 If somebody only has three years of experience in a very small market, there might be some developmental room that they need to accomplish before they get to be a seriously competitive candidate on a network level. 30 Tr. 13120. Denius then went on to say that he wouldn't discount a candidate on this basis. Of course, CNN did not eliminate candidates who had only a few years of small market experience. It hired at least three of them, Jeremy Harlan, Jeremy Moorhead and John Bena during the BSP 35 to be photojournalists in D.C., See e.g., G.C. Exh. 270. That the designation of "growth candidates" was a device by which to avoid hiring too many TVS bargaining unit members is indicated by the following email exchanqe between Matt Speiser and Cindy Patrick, the CNN executive in charge of the entire Bureau Staffing Project, 40 on December 1, 2003: Speiser: Ron Couvillion turned us down. If we move down the list, the next non- growth candidate is Mike Green. 76 45 Patrick: We have not even begun to correct our growth candidate issue so the next offer should go to Khalil Abdallah. Speiser: As for replacing Ron, Sue [Diviney] and I thought that we had all agreed 50 76 Greene was the last TVS bargaining unit photographer hired by CNN in the Bureau Staffing Project. 55 JD-130-08 that when growth candidates fell off the list (such as Randy Thieben) we would replace them with growth candidates, but non-growth candidates would be replaced by non-growth candidates. Is your recollection different? I'll obviously go with whatever you want, but our understanding was different:. 5 Patrick: I thought our understanding as we need to correct the lack of growth candidates on the list and once we had a reasonable balance we would start looking at equitable issues. So far, we have only added Ron Helm to the list to replace a growth candidate so we didn't gain any ground on a better balance. 10 G.C. Exh. 228, Tab 0, B# 5421. This email chain establishes that in making hiring decisions Cindy Patrick, or someone above her, had the final say so. Moreover, the involvement of Patrick and Sue Diviney in the 15 selection process belies CNN's assertion that hiring decisions were made by the hiring managers who interviewed applicants. Secondly, it shows that CNN manipulated its hiring decisions to obtain a "reasonable balance." In the context of this case, I infer that a reasonable balance was a mix of TVS and 20 non-TVS applicants that in conjunction with CNN's plan to pack the bargaining unit, would allow it to decline to recognize Local 31. The demo tapes do not establish a nondiscriminatory basis (or hiring growth candidates instead of experienced Team epplicents. 25 CNN's chief photographer Dan Young reviewed sample video tapes, or demo reels, submitted to him by many or most of the photojournalist applicants and he made notes about them. Young's assessment does not provide a basis for concludinq that CNN's hiring decisions were nondiscriminatory. First of all, as discussed with regard to applicant Carlos Christen, at 30 page 87-88 herein, Young's notes appear in some cases to have been doctored. Additionally, other CNN witnesses said they also reviewed applicants' tapes and there is little evidence regarding the assessment of other managers of applicants' tapes." Still other hiring managers, such as R. J. Fletcher, testified that they were unfamiliar with Young's written observation of tapes, Tr. 5895-96. 35 40 45 50 77 Karen Curry testified that tapes were screened by herself, Edith Chapin, and Jeff Kinney. She testified that she saw virtually every tape. There is very little evidence as to her assessment of any tape, G.C. Exh. 426. Edith Chapin also testified that she reviewed tapes and made notes, Tr. 9110-14. The only evidence of such notes is CNN Exh. 261, which contains very brief comments regarding the tapes submitted by seven applicants, none of whom were TVS employees and only one of whom was hired by CNN. Chapin testified that she relied on Iher own evaluations of the tapes, not Dan Young's opinion, Tr. 9147-49. Jeff Kinney testified that he reviewed every tape that was submitted and made notes about them. He also testified that he had these notes with him at the selection/debriefing meeting, Tr. 9288-89, 9284. There is rather sparse evidence as to what Kinney thought of any of the applicants' tapes, G.C. Exh. 430, Tr. 9399-9401. John Courtney testified that he reviewed approximately 90 demo tapes, Tr. 12453-54. He also testified that he took notes on the demo reels (not rails as transcribed at Tr. 12482-83) and gave them to Dan Young. Courtney doesn't know what happened to his notes. 56 JD-EiO-08 Jeff Kinney's notes regarding the tapes submitted by Perry Maclean and Jim Peithman, two long-time TVS cameramen in New York were more positive than Young's assessment. Neither was hired by CNN. Kinney's notes regarding Maclean's tape state '''Mississippi'-solidly shot", G.C. Exh. 430, B# 35228. His notes regarding Peithman's tape state, "subway re-route'- 5 required good pre-planning," Id., at B# 35231. It is not clear what, if any, weight was given to Young's opinion of the tapes in making hiring decisions. For example, Young's assessment of TVS unit member Martin Jimenez, who was not ranked by any hiring manager in D.C., was positive. Young wrote that Jimenez, "seems 10 to have the skills for the job, good interv and su lighter," G.C. Exh. 228, Tab 0, B# 20560. Moreover, reliance of one tape, as opposed to the TVS candidates' years of photographic experience at the D.C. Bureau, is itself suspect in the context of this case. A good example of how unreliable Young's assessments were is his opinion of Chris Hamilton's tape, 15 "ok photographer, needs work" when compared to Matt Speiser's conclusion that Hamilton's "work as a cameraman is beyond reproach." Another example is the tape submitted by TVS New York cameraman Richard Shine, who was hired by CNN. CNN Executive Producer Barclay Palmer testified as to why he knew that the tape submitted to CNN during the hiring process was not a fair representation of Shine's abilities, Tr. 9481-83. 20 I spoke up for one or two of them with whom I had had experience, and- because I thought their value-I knew something about their talents that needed to be said that not everyone in the group knew. 25 Q. Do you recall exactly what you said? A. I will give you an example, a guy named Rick Shine-Rick Shine, when you looked at his tape did not didn't show the artistry that some of the others had. I had just come back having the good fortune with working with CNN magazine 30 shows with some of the most talented freelance crews in the country. They had fantastic equipment and made the most of it. One example is that they had monitors that they would watch so they could watch what they're shooting, and prevent situations in which something was being shot with a problem that wasn't being determined because it wasn't being watched outside the camera. When I 35 came back from these magazine shows I advocated for additional and improved equipment to help protect the product. And some of that equipment is expensive and those kinds of monitors are expensive. And I just remember a discussion where Rick Shine had come into the news room with a little 5 by 7 LCD monitor that he got in Band H around the corner for 7::5 bucks or 50 bucks. He said look, 40 I can watch my stuff. I said what a great solution, you should go talk to your managers about that, because we are looking for ways to help you and your guys and our people know what we're getting so WE!' don't lose good tape, lose good shots, waste people's work, lose good new gathering. And Rick had the talent, the insight, the initiative to figure things out like that, to figure out equipment, 45 when there is a technical problem in the field, somehow he knew enough to fix it and come up with solutions when they weren't fixable. The guy had talent that needed to be recognized, that people from Atlanta didn't necessarily know about. A mediocre assessment by Young seems not to have mattered much in the case of 50 some non TVS applicants. For example, Young's assessment of the tape submitted by Ken Tillis, from CNN Newsource in Seattle, was "ok stuff, not the best, want to see more," G.C. Exh. 228 Tab U, B# 20554. There is nothing in this record that supports the assessment on the 57 Butcher Block for Tillis that he was a "good shooter" or the fact that his composite ranking by the hiring managers was za", well above TVS candidates who were clearly more qualified in terms of photography experience. 5 Similarly, Young's assessment of Mike Haan's demo tape was, "not enough to go on, not enough experience," CNN Exh. 64. Despite this, CNN hired Haan in Washing1ton instead of numerous experienced TVS camera operators. Young's assessment of the tape submitted by Gilbert De La Rosa, a nClnTVS unit 10 member, who CNN hired in New York, was "not much to go on but there's some talent here," G.C. 426, B# 19814. Jeff Kinney, on the other hand, was not sure that De La Rosa had shot the packages on his tape, G.C. Exh. 520, Vol. 2, B#2291. Finally, there is no evidence that Young reviewed a clemo tape submitted by either 15 Bethany Swain Chamberland or Jay McMichael, who were hired by CNN in Washington, or Pelin Sidki, who was hired in New York. Record evidenceregarding some of the TVS Bcargaining Unit Members that were not hired by CNN in Washington D.C. 20 Sarah Pacheco Sarah Pacheco worked at the CNN Bureau as a photographer/field technician from 1990 December 5, 2003. Pacheco received no information regarcling her application for employment 25 with CNN until 9:00 p.m. on December 5, when CNN informed her that she no longer had a job. Pacheco was a very active and aggressive union steward. Soon after CNN announced the forthcoming termination of its contract with TVS, unit employees were advised that if they wanted to keep their jobs, they must apply for them on line at turnerjobs.com. Pacheco did so. 30 CNN recruiter Rick Denius conducted a telephone interview with Pacheco in October 2003. Denius asked Pacheco if she had editing experience and whether she had any familiarity with nonlinear editing. Pacheco informed Denius that in the Ilate 1980s, while working for WCBS, her primary responsibility was tape-tape (linear) editing, G.C. 228, Tab H, B# 26518. 35 Pacheco testified that she told Denius that she owned an Apple G4 computer, that she had Final Cut Pro software on that computer and had taught herself how to use it, Tr. 6630. I infer from Denius' notes, Matt Speiser's interview notes and the Butcher Block sheets used by CNN at the debriefing session for hiring managers that Pacheco told Speiser about Iherability to edit with Final Cut Pro. 40 In an email dated October 13,2003, hiring manager Dan Young made the following comment about Pacheco: 45 I like her previous experience on the local front, strong editor with good editorial decision making. G.C. Exh. 228, Tab H, B# 021621. Pacheco was interviewed by only one of the hiring managers, Matt Spedser on 50 November 4, 2003. He noted that, "Sarah edited when she worked at WCBS and has FCP (Final Cut Pro) at home," G.C. Exh. 228, Tab H B# 26521/20. Speiser rated hl3r "4" in two categories and a "3" in three others. He did not note any strenqths or concerns on his rating 58 JD-EI0-08 sheet, G.C. Exh. 228, Vol. 1, Tab. H, Bates # (hereinafter B#) 026350. Matt Speiser could not recall any discussion of Sarah Pacheco in the debrleflnq session, Tr. 4206. On the butcher block posted during the debriefing session, an agent of CNN listed 5 Pacheco's strengths as Non Linear Editing, Job Knowledge, editorial awareness and technical ability. Under developmental areas, CNN agents listed: enthusiasm, people skills, teamwork, initiative, creativity. There is also no evidence as to the basis for these alleged! deticiencies.P I infer Pacheco's "lack of people skills" is related to her aggressiveness as a union 10 steward for Local 31. Pacheco was not rated among the top 55 applicants by any of the five hiring managers. There is absolutely no evidence as to why this is so. Althouqh Non-Linear editing was listed as one of Pacheco's strengths and a lack of nonlinear editin~1 was often advanced as a reason by CNN for not hiring other TVS applicants, Pacheco was apparently given no credit for this "strength." 79 15 Chris Hamilton Chris Hamilton had worked at the CNN D.C. Bureau since July 1994. The record contains a number of messages from CNN reporters and/or producers complimenting Hamilton 20 on his work for CNN. Matt Speiser interviewed Hamilton on October 13. Hamilton's performance at the interview was apparently uninspiring, but Speiser was well aware of his talents and work for CNN. He gave Hamilton a "4" in all 5 rating categories. RJ. Fletcher also interviewed Hamilton, but the record evidence is inconsistent as to 25 whether he did so with Speiser or at a later date. Fletcher gave Hamilton relatively poor ratings; 3-3s, 2-2s and deemed Hamilton "not fit" for the position. He wrote at the bottom of his rating sheet, "I do not recommend Chris." G.C. Exh. 259. Despite Fletcher's very negative appraisal, at one point at the early November debriefing 30 session of hiring managers, Hamilton was considered a "streng possible" candidate. He ended up in 41 st place in the final composite ranking by the five hiring managers. This is a strong indication that CNN knew that the questions asked at the face-face interviews and the applicant's performance in the interviews had little or no relationship to their ability to perform the job for which they were applying. 35 At a meeting on November 18, seven applicants, nore of whom were lVS bargaining unit members were placed above Hamilton on the list and hE! fell to 49th place. There is no satisfactory nondiscriminatory explanation for this reordering of the list. 40 45 50 That CNN knew that Hamilton was highly competent photographer is established by the fact that CNN offered him a job on December 22, 2003, at wnich time, it believed he would no . 78 CNN at page 255 of its brief cites to disputes that Pacheco had with Team managers in 1999 and disciplinary warnings she received at that time. There is no evidence that CNN considered these incidents in failing to hire Pacheco, see e.q., Speiser testimony cited above. 79 CNN states at page 255 of its brief that Pacheco had not submitted a sample tape as of the debriefing session. There is no credible evidence to support this statement. Pacheco's testimony that she submitted two tapes Tr. 6637-39, is uncontradicted. The first was submitted to Dan Young after Pacheco was screened by Rick Denius on or about October 10,2003, G.C. 228, vol. 1, B#26532, 21621. Matt Speiser could not recall whenever he saw a Pacheco demo tape, Tr. 4006. 59 JD-E>0-08 longer count as a member of the CNN bargaining unit for purposes of determining successorship. Hamilton rejected CNN's job offer. David Jenkins 5 David Jenkins had worked at the D.C. Bureau since '1995. He was a member of the Union's Executive Board and was very active in the Union's picketing and demonstrations against Team Video during initial contract negotiations in 1997 and 1998. 10 When CNN's recruiter, Rick Denius, interviewed Jenkins by telephone on October 15, 2003, Jenkins told Denius that he had edited video for his personal use using an Apple G4 laptop and Final Cut Pro software, G.C. Exh. 228, Tab C, Bits 11594, 23475. Several CNN reporters and/or producers had emailed TVS on several occasions to express their appreciation for the work Jenkins and other TVS field technicians had performed for the Bureau. These 15 included Bob Kovach and Laura Bernardini. Jenkins was interviewed by Matt Speiser and Mike Maltas, a CNN Executive Producer. Maltas was not a hiring manager for photojournalists. Jenkins told both Speiser and Maltas that he had some experience with nonlinear editing as a result of playing with Martin Jimenez's 20 laptop. Maltas gave Jenkins 1-5 and 4-4s in his interview rating and noted no concerns about him, Vol. 228, Tab C, B# 15018. Speiser gave Jenkins 2-5s and 3-4s and did not record any concerns about him. At some point in the hiring process, CNN prepared a list of applicants in descending 25 order of their average interview rating scores. Jenkins, with a 4.2, was tied for 11th place on this list, G.C. Exh. 266. What is a complete mystery is what happened with regard to David Jenkins in the hiring manager's debriefing session, which took place on November 5 and 6, 2003. At one point, 30 Jenkins was characterized as a "possible +" applicant but ended up being rated 51st out of 55 applicants who were rated. In their final rankings, Dan Young and John Courtney listed Jenkins 48th; Steve Redisch ranked him ss" and R.J. Fletcher did not rank Jenkins at all. What is most difficult to understand is Speiser's ranking of Jenkins in 41st place, behind such inexperienced candidates as Jeremy Moorhead, Jeremy Harlan and John Bena. 35 There is evidence that this ranking is not a reflection of Speiser's true opinion but is the result of pressure from above, possibly related to Jenkins' union activism. Sometime between December 5, 2003 and July 5, 2004, one of the CNN hiring managers, Dan Young, gave his impressions of a number of candidates for photojournalist positions at CNN. 40 45 50 The funniest thing that happened during the first selection process was when Matt argued vehemently that we need to keep Dave Jenkins. Hick Denius came up to me later and said why don't we just make some t-shirts that say "Save Dave Jenkins" Dave's interview was actually very good, he wasn't fooling us with coached answers like the other ex-Team guy::;. He's very honest, has a great reputation in DC as the can-do guy and he seems passionate about learning the DNG gear and techniques. 60 JD-HO-08 G. C. Exh. 328.80 The above document not only indicates that Speiser's ranking of Jenkins did not reflect his true assessment of Jenkins, but is a smoking-gun with regard to the animus of CNN towards 5 the TVS bargaining unit members.81 I also infer that Jenkins' "great reputation in DC" was the result of his work at the Bureau since 1995, rather than something he acquired by freelancing for CNN for a few months in 2004. Jenkins started to perform freelance photojournalist work for CNN starting in February 10 2004. During the spring of 2004 he had two days of private instruction on nonlinear editing using Final Cut Pro.82 This instruction was given by Inez Perez, the same person giving similar training to the CNN photojournalists hired during the Bureau Staffing Project. In July 2004, CNN hired Jenkins as a full-time photojournalist. 15 Larry Langley Larry Langley had worked at CNN's D.C. Bureau since August, 1996. On November 4, Steve Redisch interviewed Langley in person; R. J. Fletcher participated in the interview by telephone. Redisch gave Langley 3-4s and 2-3s in his interview ranking. The only concern he 20 25 30 35 40 45 50 80 CNN counsel objected vehemently to the admission of this exhibit on hearsay grounds. It came from the hardrive of Dan Young's computer. Young died in August 2006. That this was authored by an agent of CNN who participated in the hiring process is established by the author's statement that he interviewed John Quinette on the first go around. I infer that the author was Young from the fact that the document comes from his computer and the author's repeated reference to the review of tapes. Young reviewed a large number of tapes submitted by photojournalist applicants. 81 Rick Denius confirmed at trial that Speiser lobbied for .Jenkins in the selection meeting, Tr. 13157. He then testified that Dan Young and John Courtney responded to Speiser by saying that Jenkins' demo tape was flat and lacked creativity. I do not credit Denius' testimony on this point (or any other); for one thing it is inconsistent with Young's written assessment of Jenkins' demo tape. The only evidence regarding anybody's review of Jenkins' tape is Young's, e.g. G.C. 228, Vol. II, tab Q. B# 20560. Even assuming that Young's assessment of tape was determinative, which was not established, his opinion of Jenkins' tape does not support CNN's contention that its failure to hire Jenkins was nondiscriminatory. It also does not establish that CNN was acting without discriminatory motive in hiring many inexperienced applicants on the basis on one demo tape, as opposed to an experienced photographer like Jenkins, whose tape was at least adequate. Young's assessment of Jenkins' demo tape is as follows: Flower Garden: ok to good story, lots of potential for creativity, would've stopped intv [interview] to set up for more aesthetic shots, composition and storytelling. Smithsonian: good b-roll and intvs WH work: good, could've used more creative shots and angles, but the story was good overall. Summary: fair to good photography, want to see more. 82 This was essentially the same training that Elizabeth Zosso received through the Union prior to the Bureau Staffing Project. 61 JD-E30-08 listed was a lack of nonlinear editing experience. Despite this ranking when Redisch ranked his top 55 applicants, Langley was not among them. In fact, none of the five hirinq managers included Langley in their list. Fletcher's interview scores are not in this record. 5 On the butcher block sheet in this record, Langley was characterized as a "not strong" candidate. His "developmental areas" or deficiencies were comrnunlcation, apparently based on somebody's assessment of his performance in the interview, shooting and editing. The sheet also states that CNN needs a sample tape from Lanqley, leading one to wonder on what basis the five hiring managers concluded that Langley was not a good photographer. 10 That Langley was at least an adequate photographer is established by the fact that CNN hired him to do freelance work during the six months after December 5, 2003, and the following comments of Dan Young during the same period (G.C. Exh. 328): 15 20 Larry was very nervous during the interview, didn't sleep the niqht before. Nevertheless, he had some good answers, his resume tape was average and was a last minute addition on both occasions. Ben [Coyte, CNN photojournalist manager after December 5, 2003] says he hears nothing bad about his work but obviously these same people are not exactlyscreaminq for his services. He would do ok in the job. 83 Mark Marchione Mark Marchione had worked at CNN's D.C. Bureau since February 19~16. Matt Speiser 25 interviewed Marchione in person on November 4. R. J. Fletcher participated in the interview by telephone. Speiser's interview ranking was 4-4s and 1-3. He noted no concerns regarding Marchione. Fletcher's ranking, if he made one, is not in the record. A butcher block that is in the record characterized Marchione as a "possible +." It listed his strengths as: DV camera, initiative, job knowledge, people skills, editorial awareness, technical ability. His alleged 30 deficiencies, or "development areas" were creativity and communication (inabillity to articulate). Marchione was rated 46 th of the hiring mangers' top !:i5 candidates. Despite Speiser's favorable assessment in the interview, he put Marchione 50h on his final list. Fletcher put Marchione at 45 th, he was ranked 48 th by Redisch, 53rd by John Courtney and 51st by Dan 35 Young. In his review of applicant's tapes, Young characterized Marchione as an "o.k, shooter." On January 4, 2004, one month after it terminated Team Video as its contractor, CNN hired Marchione as a full time staff photojournalist. This not only establishes that CNN considered Marchione a competent photojournalist, but is it also suggeslls that it manipulated the number of employees hired by December 6, 2003 in order to avoid recognizing and bargaining with the 40 Union. 45 50 83 The only evidence regarding Langley's job performance is a positive assessment by CNN's Bob Kovach regarding a week's work in September 2002, G.C. 228, Tab C, B# 15034. A few CNN witnesses mentioned how diverse were the employees hired during the BSP. If diversity was a factor in the selection process, there is no indication how it figured in CNN's decision not to hire Langley and Dennis Norman, African-Americans; Pacheco, a Hispanic female; Munoz and Jimenez, Hispanic males. 62 JD-EiO-08 Luis Munoz Luis Munoz began working at the CNN D.C. Bureau ill June 1997. He was assigned to the CNN Spanish Network, CNN en espanol, During the week, Munoz occasionally was 5 assigned duties by the general assignment desk, but only when the Spanish network did not need his services. On weekends, Munoz regularly worked overtime for the general assignment desk. When working for CNN en espanol, Munoz had very limited contact with Team Video; usually only interacting with TVS by signing in in the morning and signing out at night. During weekdays, Munoz normally took assignments solely from the producer and reporter employed 10 by CNN's Spanish Network. Matt Speiser and R.J. Fletcher interviewed Munoz on October 21, 2003,. During that interview Munoz told the interviewers that "Spanish had final cut pro loaned to it for about a month and he played with it." G.C. Exh. 228, Tab F, B# 15314. Speiser gave Munoz 2-5s, 2-4s 15 and one three. As a strength, he noted that Munoz "serves as one-man band." As a concern, despite what Munoz told him, Speiser indicated that Munoz had "No NLE experience." Fletcher' notes indicate, "Final Cut Pro. Some editinq. Willing to learn." Id., B# 24061. Fletcher gave Munoz 1-4 and 4-3s. The average of these two ranking put Munoz at 29th place 20 (with others) among the applicants, based on the interview scores, G.C. Exh. 266. On November 5, 2003, which was the first day of the hiring managers debriefing session, Matt Speiser emailed Willie Lora, Senior Producer, GNN en Espanol, for a recommendation regarding Luis Munoz. Lora had worked with Munoz since 1~~97 and had been 25 his direct supervisor for several years. Lora's response was as follows: Thanks for the opportunity, let me tell you that Luis for the past six years has been an invaluable part of our operation, because of the nature of our network, and the enormous task that we face everyday with such a small group of 30 colleagues. Luis has become a key player of our operations, he! helps out with coordinating live shots, he goes out as a one man band to covel' events, his knowledge of the inside bureau operations makes him not only our photojournalist, but an integral part of our production team. I believe that for CNNE, Luis has been a good investment for our network and we'll be pleased to 35 keep him and helping go the through the process of implementing the new technology and division that the CNN News Group is going. Thanks again. G.C. Exh. 387. 40 Lora was not the only CNN employee who thought hiqhly of Luis Munoz. On December 9, 2005, four days after the end of the TVS contract, CNN National Security Correspondent David Ensor wrote an email to Chris Crommet, Operations Director of CNN en espanol, with a copy to Matt Speiser, D.C. Bureau Chief Kathryn Kross, Deputy Bureau Chief Steve Redisch and Willie Lora. Crommet passed the email along to Cindy Patrick, asking her for suggestions 45 as to how to reply to Ensor. Ensor wrote: I'd just like to express my astonishment at the decision not to keep Luis Munoz, who I regarded as one of the best cameramen I have worked with at CNN, and to suggest that in the unlikely event he does not find another fulltime job soon, you 50 put him high on the list for freelance work. 63 JD-E30-08 If the advice of those who work with him-in particular the CNN Spanish unit-had counted for anything, this decision could not have gone the way it did. 5 10 15 I understand the company has another cameraman-a good one, and a Spanish speaker that it wants to bring to the US. If true, that's fine, but that should not have been a reason to lose one of best here. Very frankly, now that some of us-correspondents and producers who work with the crews here-are hearing who has been kept, and who let go, there is surprise at some of the choices made, and concern that the views of people who work directly with crews in Washington, and therefore have the greatlsst knowledge about their work, may have been overlooked. From here, it does not seem as if CNN's interest in keeping it best shooters was always the first consideration in the selections. G.C. Exhs. 389. During the debriefing session, Munoz was at one time characterized as a "strong 20 possible" candidate. G.C. Exh. 232. This butcher block lists Munoz's strengths as, "well under pressure," initiative, lighting, work ethic and problem solving. Creative is crossed out and then listed as Munoz's only deficiency. In the ranking of applicants Munoz was at one point 49th and another 5"st. G.C. Exhs. 25 232 and 261,268. Speiser ranked him so": Fletcher ranked him 35th. Redisch ranked him 40th; Courtney ss" and Dan Young didn't rank Munoz at all. Young's assessment of Munoz's tape was "ok shooter, needs more seasoning, more creativity from shots and composition." CNN Exh.64. 30 In essence, during the Bureau Staffing Project, CNN replaced Munoz as the CNN Espanol photographer in Washington with Ray Britch, who worked for CNN Espanol in London, Tr. 15489-90. He is the person referred to by David Ensor in his December 9, email. I infer that Dan Young was aware of CNN's intention of replacing Munoz with Ray Britch and that this accounts for the fact that Young did not rate Munoz in the top 55 applicants. 84 35 James Norris 40 45 50 James Norris was hired by TVS to work as a cameraman at the D.C. Bureau in September 2000. In recommending Norris for an interview with the hiring managers, CNN recruitment manager Loren Kile noted "although he is limited on his knowledge of NLE, he did take a class this past August on AVID." AVID is a nonlinear editlnq system for video, somewhat similar to Final Cut Pro. CNN DNG trainer Ben Coyte testified that familiarity with Avid makes 84 Because CNN was closing its CNN en espanol office in London in December 2003, Britch was about to lose his job. Despite this Ben Coyte had "serious concerns" about Britch and opined that he would be "a high maintenance employee," CNN Exh. 693, B#s 18135, 20507. CNN was negotiating with Britch over the amount of relocation money he would receive as late as December 2, 2003. It considered hiring Carlos Christen if Britch did not accept the offer to come to Washington. Christen was ranked lower than Luis I\llunoz in the debriefinq meeting, G.C. Exhs. 556, 270. 64 JD-EiO-08 learning Final Cut Pro easier, Tr. 15,572-73. While non-TVS applicants were ~Iiven credit for knowledge of AVID, Norris was not. Steve Redisch and Matt Speiser interviewed Jim Norris on October 29. Redisch gave 5 Norris 1-4, 3-3s and a 2 in "teamwork." Speiser noted that Norris had a consumer version of a nonlinear editing system at home and that he had taken an )lMID seminar with Team Video. Speiser rated Norris highly, giving him 1-5 and 4-4s. He noted no strengths or concerns. At the debriefing session, at one point Norris was characterized as a "strong possible" and then as a "possible +." Among his strengths listed was editing experience and "had trained on NLE." 10 However NLE was also listed as one of his deficits. G.C. Exh. 228, Tab G, B# 16249. During the session, he was at least at one point rated 52nd of 55 candidates ranked. Sometime between December 5,2003 and July 5,2004, Dan Young opined that Norris is "now dubbed, Jim 'Wrong Answer' Norris. His resume tape from the first selection process 15 was weak. He's a weak candidate." The basis for these assessments appear nowhere in this record. CNN Exhibit 64 does not contain an assessment of Norris' tape. I would also note that this opinion is inconsistent with Speiser's interview evaluation and the comments on the butcher block created during the debriefing session. Given Young's thinly veiled and otherwise unexplained animosity towards TVS' employees, one must wonder whether Norris' "wrong 20 answers" have something to do his union membership or support. John Urman 25 30 35 40 45 50 John Urman worked at the D.C. Bureau since 1989. He participated in hand billing in front of the CNN Bureau during the Union's contract negotiatons with TVS in 1998, Tr. 6745, 6575. On the resume that Urman submitted to CNN, he listed Apple Final Cut Pro editing skills. After his telephone interview with Urman on October 7, CNN Recruiter Rick Denius noted that Urban had "dabbled with Final Cut Pro on his own, but he hal) no professional editing experience," G.C. Exh. 228, Tab I, B# 23214. Based on his review of the tape Urman submitted, Dan Young considered Urman an "o.k. shooter." Matt Speiser and R.J. Fletcher interviewed Urman on October 24. Speiser noted that, Urman "took a final cut training course from Inez." This refers to Inez Perez, the same person who CNN brought in during February and March 2004 to train the photojournalists it hired in nonlinear editing with the Final Cut Pro software. Speiser gave Urman straight 4s on his interview and noted neither strengths and concerns. R. J. Fletcher gave Urman 1-4 and 4-3s, G.C. Exh. 234. Fletcher noted as Urman's strengths: Computer savvy would work well with FCP [Final Cut Pro] Things[?] in the future Used DV during D.C. protest'" 85 DV refers to a small digital camera. CNN photojournalists use a model named the PD- 150. Although Urman's experience with a DV camera didn't seem to help him much in the Bureau Staffing Project, when it came to non-TVS applicant Khalil Abdallah, Dan Young described it as "another plus," G.C. Exh. 228, Tab J, B# 14783. 65 JD-{)Q-08 As Concerns about Urman, Fletcher listed: Lack of day to day editing experience Lack of shooting daily packages 5 At the bottom of Fletcher's rating sheet appear the words "I do not recommend John." It looks like something was whited out and that "do not" was written instead. When testifying at the instant hearing, Fletcher stated that the name John Urman, "did not strike a bell," Tr. 5780. 10 Based on the interview ratings, Urman was tied for 30th place among the applicants. However, at the debriefing Urman was not rated as one of the top 55 candidates by anyone, including Matt Speiser, who have him all 4s in his interview. He appears to have been given no credit for his training with Final Cut Pro. For example, a butcher block sheet prepared during the debriefing characterizes Urman as a "possible" candidate but lists NLE as a "developmental 15 area," G.C. Exh. 235. Charles Anderson Charles Anderson had worked for TVS as a full time staff member for little over a year 20 when he was interviewed by CNN in the fall of 2003. R. J. Fetcher gave Anderson 2-4s and 3- 3s in his interview. Another interviewer must have given Anderson higher scores as evidenced by his composite 3.8 on G.C. Exh. 266. Fletcher noted that Anderson has edited nonlinear and has a nonlinear system at home. Fletcher also noted that Anderson knew his way around D.C., having worked in films in the area. As a concern, Fletcher noted that Anderson had no 25 professional NLE experience, G.C. Exh. 229. When examined by the General Counsel, Matt Speiser testified that although Anderson had started out doing principally audio work at the Bureau, he had been shooting video "in the last couple of years," Tr. 4147. However, when CNN counsel asked Speiser about Anderson, 30 he described him as "mostly a soundman and had hardly any nonlinear editing experience," Tr. 4199. Anderson was not rated in the top 55 applicants by any of the five hirin~, managers. There is no credible explanation in this record as to why that is so. 35 Danny Farkas Danny Farkas was a photographer and also frequently operated the microwave truck for Team. Matt Speiser rated Farkas very highly in his face-face interview. R.J. Fletcher rated 40 Farkas very poorly. At some point during the debriefing, Farkas was considered a strong possible candidate, but was downgraded to "possible" for unexplained reasons, G.C. Exh. 543, B#15289. Instead of Farkas, CNN hired TVS engineer Chris Leonard to operate the microwave truck. Leonard had never done this before and was dying of brain cancer when CNN hired him. 45 Myron Leake Myron Leake worked as a cameraman for Team beginning in 1997. He was recommended for face-face interviews by Rick Denius. Dan Young's assessment of Leake's tape was "ok shooter, good potential," CNN Exh. 64. There lis no evidence in this record as to 50 who, if anybody interviewed Leake. G.C. Exh. 543, vol. 2. There is also no evidence that Leake was even considered or discussed at the photojournalist debriefing session. While hiring 66 JD-60-08 managers had resumes for most applicants, they did not have one for Leake, Tr. 5878. Beginning in April 2004, CNN hired Leake as a freelance photojournalist. Martin Jimenez 5 Martin Jimenez had worked at the D.C. bureau since 1996. On Dan Young's assessment of Jimenez's tape was "seems to have the skills for the job, good interv and su lighter," CNN Exh. 64. Matt Speiser and Mike Maltas interviewed Jimenez on October 27,2003, G.C. Exh. 543, vol. 2. 10 Speiser noted that Jimenez played with Premiere, a nonlinear editing system, with home movies. Id. B# 16388. He rated Jimenez with straight 4s, this second highest score. Maltas, who was not a hiring manager for photojournalists, rated Jimenez much lower. Maltas gave Jimenez 2s in decision making and ethics and integrity. The latter rating was a result of 15 Jimenez telling his interviewers that on one occasion, he was with a producer who used airport personnel to stage a shot of travelers going through security screening. Jimenez told Speiser and Maltas that he expressed his concerns to the producer. Maltas held it against Jimenez that he followed the producer's direction and filmed the staged shot, Id., B# 16380, 16384, 16392. 20 Jimenez's resume was not given to hiring managers at the debriefing session, Tr. 5878. There are two butcher blocks with Jimenez's name on it. One lists as strengths, that Jimenez was a good shooter, good lighter, editing, editorial. As a developmental area only NLE is listed. Jimenez is categorized as a "possible minus," B# 16374. 25 On what appears to be another butcher block, Jimenez is classified as a "possible +," G.C. 262, Tr. 4105-06,5633,5859. As mentioned previously, CNN's inability to explain what this document represents indicates to me that some or all of the butcher blocks, and some or all of the categorization of applicants was not done at the debriefing/selection rneetinqs. No hiring manager ranked Jimenez among their top 55 candidates and there is no explanation in this 30 record why that is so. Record Evidence pertaining to some of the 110n-TVS applicants hired by CNN in Washington, D.C. 35 With regard to the photojournalists hired by CNN to replace TVS bargaining unit members, one can assume that they were generally qualified to do their job. The network would certainly not hire a lot of incompetents to do its camera work. Indeed, it is clear that some, but not all, of them have done excellent work for CNN since 2003. However, several of the nonTVs unit members hired barely had three years electronic newsqathennq (ENG) and field production 40 experience. CNN mandated this as a minimum experience requirement for the! photojournalist position, G.C. Exh. 227. In fact, some of the new hires may not have had fulfilled these minimum requirements. Regardless of the qualifications of the non-TVS new hires, I conclude that CNN would 45 not have replaced many long-time employees with these relatively inexperienced applicants in the absence of anti-union animus. Given the ease with which CNN could have trained the TVS employees in Final Cut Pro and other new technologies, I conclude that this wholesale replacement of incumbent cameramen was discriminatorily motivated. The non-TVS candidates it hired were not so clearly better qualified than the TVS barqaining unit members that CNN 50 would have taken this course of action in the absence of its desire to get rid of the Union and a large number of its supporters. 67 JD-EiO-08 CNN's concerted efforts to justify its hiring decisions after the fact At some time in 2004, CNN began to document the use of Final Cut Pro and other Digital Newsgathering Techniques, such as File Transfer Protocol (FTP) in order to prepare to 5 defend itself in an unfair labor practice proceeding. For example, CNN witness Ben Coyte testified that he copied CNN's in-house counsel Lisa Reeves on August 11, 2004 and November 30, 2004 emails for this purpose.Tr, 15,652-57; CNN Exhs. 199; 655. Likewise, Cindy Patrick, in acknowledging an email from John Courtney on March 17,2005, regarding the use of DNG techniques, noted that, "this is the kind of example we need to illustrate our 10 argument...," CNN Exh. 656, B# 151749. In April 2005 CNN issued performance evaluations, "Turner Performance Management Program (TPMPs)" to photojournalists in New York for calendar year 2004 and other employees for 2004 and the first two months in 2005. There is no evidence that this kind of evaluation with 15 its heavy emphasis on such subjects as DNG, pitching stories and editorial involvement were used anywhere in the Turner system prior to April 2005, e.g .. Tr. 15,950. In late 2005 or early 2006 CNN began issuing TPMPs to its Washington photojournalists for periods beginning on April 11, 2005. I view these documents as part of CNN's effort to justify the Bureau Staffing Project after the fact as part of its litigation strategy. 86 20 TPMPs in at least some cases bore little relationship to what employees actually did. In some cases, they are simply inaccurate. In Khalil Abdallah's 2007 TPMP, CNN Exh. 676 at page 10, his manager, Jeff Kinney, intimates that Abdallah covered the Virginia Tech shootings. Abdallah did not do so, Tr. 15841-42. In completing the employee comments on the TPMPs, 25 employees were responding to objectives set by CNN. As a number of them testifled, their desire was to make themselves look good, Tr. 13596, 13604, Tim Garraty, for example, commented repeatedly on use of DNG (digital news gathering) in his 4/11/05-2/27/06 TPMP, despite the fact that he rarely employed DNG 30 techniques, such as nonlinear editing with Final Cut Pro, File Transfer Protocol or transmission to a satellite with a BGAN, CNN Exh. 581, Tr. 13762, 13804, 13813. John Bodnar's testimony also indicates that TPMPs are not an accurate reflection of what CNN employees actually do on the job. His TPMP states he frequently pitched stories between April 2005 and February 2006. Bodnar could recall only one such occasion. 35 Richard Shine wrote in his April1-December 31,2005 TPMP that. "I've made many story suggestions to Reporters and Producers, some of which have made it air," CNN Exh. 302, B# 153070. At trial, Shine testified that he has "never pitched a story" because "I haven't had anything that has come to mind that we thought we should cover," Tr. 9636-37. 40 45 50 Much of the testimony of CNN's witness was also part of this strategy. For example, Ben Coyte, who was the photojournalist manager in D.C. from December 20m~ until sometime in late 2006 or early 2007, testified about the relative success of various photojournalists in learning DNG technology. He named over a dozen Washinnton photojournalists who he testified had successfully adapted to DNG technology. With two exceptions, Peter Morris and 86 I also note that CNN introduced TPMPs which in many, if not most, instances are unsigned by either the employee being reviewed or the reviewer. In some cases, such as the 2005 TPMPs for the New York photojournalists, it is not clear who did the review. Danny Meara, whose name appears of many of these 2005 reviews as the reviewer, did not become manager of the photojournalists in New York until 2007. 68 JD-60-08 Anthony Urmani, the photojournalists he named had not worked for Team Video. I infer that the point of this testimony was to justify hiring these individuals instead of the eighteen Team Video field technicians CNN did not hire. 5 I regard Coyte's testimony, e.g., Tr. 15,438-15,444, to be simply argument support of CNN's contentions in this case. His testimony is also in mary cases based on second hand information and unreliable. An example of this is Coyte's testimony at Tr. 15,443 where he testified that Khalil Abdallah at Shannon Airport in Ireland, while on a VIP pool trip in March 2004, "was able to get off the plane and found a wi-fi in a pub in the airport anel cut the sound 10 bites and fed them in... (emphasis added); also see Tr. 15,6~~9, 15,669. Abdallah, however, made it clear that he did not "cut" or edit anything. He only transmitted sound bytes and possibly video via the Internet, Tr. 15,786-90. Similarly, Abdallah did not testify that he used "editorial judqrnent" on this occasion as suggested by Mr. Coyte at Tr. 15,669. 15 Similarly, Coyte testified as to how Abdallah's ability to speak Arabic has helped CNN producers by virtue of Abdallah getting the nuance of a story and explaining it to them, Tr. 15,444. Abdallah did not give any first-hand corroboration for Coyte's assertion when CNN called him as a witness. 20 Another example as to the unreliability of Coyte's testimony is his response to my questions as to the frequency with which digital newsgathering techniques (DI\IG), Final Cut Pro and FTP were being used by D.C. photojournalists in March and June 2004. There is no evidentiary support for Coyte's assertion that by June 2004, :5-7 photojournalists or as many as 10-15 crews would have been out on an assignment using these techniques on a given day, Tr. 25 15470-71. In fact, the record, including the testimony of CNN's witnesses Doug Schantz and Khalil Abdallah, indicates that use of such techniques by D.C. photojournalists during 2004 was extremely rare. Moreover, on December 6, 2003, former TVS photojournalists were at a disadvantage 30 vis-a-vis some or most of the nonTVS photojournalists only with regard to their experience with the Final Cut Pro editing program. Many of the nonTVS photojournalists had no greater familiarity with FTP transmission techniques or the easily acquired ability to use satellite transmission, e.g., Tr. 15482-86. 35 CNN's exhibit 544, its Washington payroll records, belies any contention that the nonTVS employees hired in the Bureau Staffing Project are superior to those former Team employees hired. The photojournalists who were hired effective December 6, 2003 in the D.C. bureau and who were subsequently promoted to senior photojournalist are all former Team employees: Brian Yaklyvich, Mark Walz, Ernest "Skip" Nocc 010, Peter Morris, Maurice George 40 and Martin Dougherty.87 Coyte mentioned George as a photojournalist he would not send on an assignment that required editing, Tr. 15,582. This indicates that FCP skills are not as critical to the work of a photojournalist as CNN suggests. It also su!ggests that the TPMPs are not necessarily an accurate reflection of CNN's assessment of i':s photojournalists. TPMPs do not directly affect the amount of an employee's annual raise, Tr. 15,643. 45 50 87 In New York, three of the six individuals hired as senior photojournalists were former TVS unit members. Two of the three nonTVS senior photojournalists (Burgess anel Ramirez) left New York shortly after they were hired. Since 2004, three former TVS unit members in New York and three nonTVS unit members have been promoted to senior photojournalist, Tr. 11487. 69 JD-EiO-08 Moreover, the relatively inexperienced nonTVS photojournalists hired during the BSP are still paid substantially less than the former TVS photojournalists. As of February 2008, for example, the annual salaries of John Bena, Jeremy Harlan, Ron Helm and Jeremy Moorhead were less than $77,000 compared to salaries ranging anywhere from approximately $80,000 to 5 88,121 for former TVS photojournalists, such as John Bodnar. Former TVS senior photojournalists such as Anthony Urmani had salaries of up '10 $95,036 in February 2008. 88 Evidence regarding non-TVS applicants who were hired by CNN 10 Khalil Abdallah Khalil Abdallah has obviously had a successful career with CNN. However, at the time of the Bureau Staffing Project, CNN did not have a nondiscri rninatory basis for hiring him instead of a number of Team technicians it did not hire. Abdallah worked for a local CBS 15 affiliate for 18 months to two years and then was hired by CNN Newsource in Washington, D.C. in about August 2000. He performed a number of tasks for Newsource including shooting and editing. Most, if not all, the editing Abdallah did for Newsource was tape to tape, Tr. 15771. Towards, the end of his employment with Newsource, Abdallah was introduced to Final Cut Pro. However, he did not use FCP for work done for Newsource, Tr. 15,830. 20 Abdallah testified that it was easy to learn FCP because it was similar to the Media 100 nonlinear editing system he had learned in school, Tr. 15772 .. However, Abdallah had not used Media 100 in connection with his work at Newsource, either, Id. 25 30 35 40 45 50 Abdallah had a face to face interview on October 27, 2003, with Matt Speiser, Steve Redisch and R.J. Fletcher, who was his direct supervisor at Newsource, Tr. 15,774. Fletcher apparently did not fill out an interview rating guide. Neither Hedisch nor Speiser's notes of the interview indicate Fletcher's presence. At hearing, Fletcher testified that he did not believe he was one of the people who interviewed Abdallah, Tr. 5835. Abdallah's testimony establishes Fletcher was present at the interview and I find that Fletcher's testimony is not the result of faulty memory. To the contrary, I find that Fletcher was aware that his participation in Abdallah's interview, and Bethany Chamberland Swain's interview, who he also supervised, Tr. 16053, gave these two applicants an unfair advantage vis-a-vis the Team applicants.w Steve Redisch rated Abdallah's interview with 3-4s and 2-3s. Redisch cited as strengths: Lots of live experience; speaks Arabic, Nonlinear editinq experience; Goal oriented and Washington experience. As concerns he noted that Abdallah was "short on specific examples." Matt Speiser's notes of his interview with Abdallah note that, "he shoots in the field and edits in house on FCP. All field editing is done in the truck tape to tape." Speiser also noted 88 As of February 2008, the only former TVS photojournalist making less than $80,000 was Ken Tuohey, who left CNN in May 2004 and was rehired in March 2006, at a lower salary. Those nonTVS photojournalists who worked for CNN before December 2003 or other Turner companies such as Newsource (Schantz, Yarmuth, Britch, Haan, Swain, Abdallah) appear to have higher salaries than those who did not work in the Turrer system prior to the BSP. 89 Fletcher initially also claimed that he did not remember whether he interviewed Chamberland/Swain, Tr. 5837. Then he testified that he ancl John Courtney interviewed Chamberland in person, rather than by telephone, which is inconsistent with her testimony, Tr. 5838, 16,053. 70 JD-E50-08 that Abdallah bought Final Cut Pro for personal use. Speiser gave Abdallah 2··4s and 3-3s. He did not note any strengths or weaknesses on his rating sheet, G.C. Exh. 228. Tab J, B# 14778. Abdallah's average interview score, 3.4, was lower than a number of TVS unit cameramen who were not hired. 5 On a butcher block prepared at the debriefing Abdallah was rated "possible +." Although motivation/work ethic were listed as a strength, work ethic/foUow through was listed as a developmental area. Other strengths listed were: creative, technical skills, NLlE, initiative, shooter-good, troubleshooting. Abdallah was rated the 48th most desirable candidate, lower 10 than Chris Hamilton and Mark Marchione, TVS unit members who were not initially hired. John Courtney did not rate Abdallah in his top 55 candidates. CNN decided to hire Abdallah on December 1,2003, when another non-TVS candidate, Ron Couvillion took himself out of consideration for a photojournalist position. When that 15 occurred, Matt Speiser informed Cindy Patrick that the next person on the list was Mike Greene, a TVS bargaining unit member. Greene had been a union neqotiator in collective bargaining with TVS.90 John Bena 20 25 30 35 40 45 50 John Bena had no more that three years of experience in the Broadcast Industry and only two years of "shooting experience" when he was hired by CNN. Indeed, when Rick Denius screened Bena on the telephone on October 6, 2003, his impression was that he had only one year of "shooting/Eng experience," less than the minimum qualifications for the photojournalist position, G.C. 228, Tab K, B# 11354. Thus, Denius deemed that Bena did not even have enough experience to warrant an interview, CNN Exh. 511, G.C. Exh. 228, Tab K, B# 9499. Three weeks later, at the urging of Dan Young, who had looked at a demo reel, Denius sent his interview notes and Bena's resume to Matt Speiser, Id., B# ~:1421. Bena had been employed by Capital News 9 in Albany, New York, a Time Warner station, for little more than a year. His salary at Capital News 9 was $30,000 per annum. While he performed nonlinear editing on a Pinnacle Vortex system, his only experience with Final Cut Pro was at home-just like unsuccessful TVS applicant John Urman. Dan Young interviewed Bena on November 3,2003. Young appears to be the only CNN hiring manager who interviewed Bena. He graded Bena with 3-4s and 2-3s on his interview rating sheet. In his concerns, Young opined, "not sure if he's ready for prime time," Id., B# 16973. Despite these concerns, Bena ended up as a "stronq possible" candidate and was rated the 26th most desirable applicant. Young rated Bena 39th; Speiser 36th; Redisc:h 21st; Fletcher 18th and Courtney 15th. There is no rational nondiscriminatory explanation in this record for such a favorable rating compared to many TVS candidates. When he started 'Working for CNN, 90 1 specifically discredit Cindy Patrick's testimony at Tr. '14913. She testified that if one of the top 39 candidates for photojournalist declined CNN's offer of employment, the hiring managers "regrouped" and decided which applicant would get the next offer. There was a meeting on November 18, 2003 at which the rankings of photojournalist candidates were reordered to the detriment of TVS bargaining unit members Chris Hamilton and Mark Marchione. However, not a single hiring manager (Speiser, Redisch, Fletcher or Courtney) gave any indication in their testimony that any other reqroupinq occurred, such as when Ron Couvillion declined CNN's offer on or about December 1, 2003. Moreover, nobody testified as to what transpired at the November 18 meeting. 71 JD-EjO-08 Bena did not know how to use an audio mixer, a piece of equipment regularly used in the field by CNN photojournalists. Elizabeth Zosso, a former TVS camera operator, showed Bena how to operate this piece of equipment, Tr. 6050-52. 5 Bethany Chamberland Swa.in91 Rick Denius conducted a telephone screen with Bethany Chamberland Swain, a director/editor at Newsource, on October 21, 2003, CNN Exh. 689, Tab 19, B# 122811, 11376. Denius' notes indicate that Chamberland/Swain shot video Vl3ry little for Newsource. Swain was 10 not scheduled for a follow-up interview until 3:20 p.m. on November 5, the first day of the debriefing/selection meeting. Chamberland/Swain was interviewed on the telephone by R J. Fletcher, her supervisor at Newsource, and John Courtney at 5:30 p.m. on November 5, the first night of the debriefing session, Tr. 16,053, G.C. Exh. 228, Tab C, B# 14921. Swain was at her home during the interview. 15 CNN Exh. 64, and G.C. Exh. 228, Tab C, B# 14895 establish that CNN did not have a demo tape from Chamberland/Swain when a Butcher Block was initially created for her. Swain could not recall when she submitted a tape or whether she submitted more than one, Tr. 16053- 54. Matt Speiser could not recall if a demo tape by Chambe fand/Swam was shown at the 20 debriefing session. He could also not recall whether Dan Young commented about her shooting at the debriefing. RJ. Fletcher, on the other hand, testified that he told Chamberland/Swain that her tape had not been received by Dan Young, so she prepared another one or a copy and brought it to 25 the debriefing session. Swain did not testify that she went to the debriefing session personally. Fletcher testified that Chamberland/Swain's tape was discussed at the debriefing session and that the hiring managers thought it was good, TI". 5908. I deem Fletcher to be a completely unreliable witness given his hesitancy to acknowledge that interviewed his own 30 employees. Steve Redisch, moreover, gave no indication that he saw a Chamberland/Swain tape at the debriefing, Tr. 5699. Since there is no testimony as to when and how Swain submitted a second tape, I find that CNN has not established that its hiring managers reviewed a demo tape or reel put together by Bethany Chamberland/Swain before it ranlked her, which assumedly was done no later than November 6.92 35 40 45 50 According to her boss at CNN Newsource, RJ. Fletcher, Bethany Chamberland/Swain was not principally a photographer, Tr. 5835. Indeed, she described herself as a director/editor on her November 6,2003 application to CNN, CNN Exh. 68B, Tab 19, B# 122B1.93 That may explain why Fletcher ranked her 53rd, lower than the other Jour hiring managers.94 She was rated a possible plus and the 42nd most desirable candidate despite concerns about her lack of network level shooting and field experience. At the November 18 meeting, Chamberland/Swain 91 Ms. Chamberland Swain was married sometime after December 6, 200~1. She is referred to by her married name, Bethany Swain, at some portions of the transcript. 92 Assuming Fletcher's testimony is accurate it indicates disparate treatment vis-a-vis TVS cameraman Larry Langley. The hiring managers did not have a tape from Langley at the debriefing and nobody called him to bring one in so the hirin;J managers could review it, Tr. 5610. 93 On other documents she described her position with Newsource as Director/Editor/Photographer. 94 On the other hand, Fletcher may not have wanted to lose her. 72 JD-EiO-08 was moved ahead of TVS bargaining unit employees Mike Greene (# 40) and Chris Hamilton (#41) on the list of preferred candidates. Mike Haan & Jerry Appleman 5 Cindy Patrick authorized job offers to TVS bargaining unit employee Mike Greene and two non-bargaining unit members, Mike Haan and Jerry Appleman at 5:16 p.m. on December 4, 2003, the day before the TVS contract ended. G.C. Exh. 228 Tab M, B# 22420. Haan worked for CNN Atlanta in media operations. He was not principally a photographer. CNN hiring 10 managers had concerns about Haan's lack of field shooting experience. Dan Young's assessment of Haan's demo tape was, "not enough to go on" not enough experience," CNN Exh.64. Appleman apparently reconsidered CNN's job offer within a few days of his arrival in 15 Washington and returned to Atlanta. Both Haan and Appleman were ranked lower at the debriefing session than TVS employee Chris Hamilton who was not hired during the Bureau Staffing Project. Appleman was also ranked lower that TVS unit member Mark: Marchione, who not hired until January. 20 Jeremy Harlan Jeremy Harlan had three years of experience as a photographer when he was hired by CNN. He had no familiarity with Final Cut Pro, although he had experience with another Apple- based nonlinear system.95 Harlan was interviewed by Dan 'r"oung on October 25. Young 25 expressed concern about Harlan's background in nonlinear editing and questioned whether he was too arrogant. He gave Harlan a 4 in all 5 interview cateqories. At the debriefing session, Harlan was rated the 33rd most desirable candidate. CNN started checking Harlan's references on Noverr ber 10. He received glOWing 30 recommendations from several individuals who had worked with him previously. However, Harlan's references were not uniformly positive. One individual at a former employer told CNN that they would not rehire him and declined to say why he left their employ after one year. On November 21, three days before CNN sent Harlan a job offer, it called his then 35 current supervisor at KOAT in Albuquerque and a reporter who had worked with Harlan at the other station that had given a negative reference. Both gavEl Harlan a glOWing recommendation. What is significant in Harlan's case is the extent to which CNN made efforts to get feedback from individuals who actually were familiar with the quality of his work. It did not do this with the TVS applicants. 40 Ron Helm Ron Helm was an editor, not a photographer with Cr--. N in Atlanta. Rick: Denius, after his phone interview with Helm, noted that he was "light on shooting experience, but he is a strong 45 non-linear editor (AVid)." As noted before, Final Cut Pro, the nonlinear system that CNN planned to use in the field in a different system than Avid; Helm had little or no familiarity with Final Cut Pro. Dan Young noted that Helm's "shooting is good, not exemplary but could grow into this role." G.C. Exh. 228, Tab 0 B# 21624. 50 95 Thus, Harlan was in the same position with regard to nonlinear editing as James Norris, a TVS applicant who was not hired. 73 JD-E50-08 In the debriefing, Helm was rated 43rd in desirability. NLE was noted as a strength despite his lack of familiarity with Final Cut Pro.96 His developmental areas were job knowledge and people skills. At the interview, Helm stated that he lacked hard news experience, Id. B# 14345. He accepted a job on November 21, two weeks before CNN offered a job to TVS unit 5 member Mike Greene, who was ranked 40th. Jay McMichaef37 Jay McMichael "worked for CNN (through subcontractors) in Washington for 13 years," 10 G.C. Exh. 228, Tab P, B# 12333. However, he left Team Video to go into business for himself in June 2002; thus for successorship purposes McMichael did not count at a TVS bargaining unit member. McMichael applied for the photojournalist manager position that was awarded to Ben Coyte in the Bureau Staffing Project. 15 It is not clear from this record if anyone interviewed I\llcMichael for a photojournalist position. His name does not appear on G.C. Exh. 266, which is a composite of interview rating scores for the D.C. photojournalist candidates. McMichael vilas apparently evaluated in a debriefing session, although possibly not the one in which photojournalist candidates were evaluated.98 The weaknesses noted include "limited NLE" and "inside knowledge maybe a 20 concern." Jeremy Moorhead Jeremy Moorhead had been a photojournalist/rnicrowave truck operator/editor for the 25 local Fox station in Baltimore, WBFF, for little over a year when he was hired by CNN. Prior to that he had a year and a half of similar experience for a local station in Youngstown, Ohio. CNN recruiter Rick Denius conducted a telephone screen with Moorhead on October 9, 2003. After the interview he sent an email to the photojournalist hiring managers in which he 30 did not recommend Moorhead for face-face interviews. G.C. Exh. 228, Tab Q, B# 9480. Dan Young apparently overruled this recommendation on the basis on the demo tape Moorhead submitted. On October 27, when forwarding Moorhead's resume to Matt Speiser, at Dan Young's 35 request, Rick Denius expressed a concern that Moorhead had "2.5 years total Photog/ENG experience, no Washington experience," G.C. Exh. 228, Tab Q, B# 16903. This is less than the three years minimum experience that CNN stated was required for the photojournalist position in its position description of May 20,2003, G.C. Exh. 227. Spreadsheets track:ing the candidates during the Bureau Staffing Project gave Moorhead credit for 5 years of experience, 40 although he seems to be given credit only for 2 years of shooting experience and 2 years of editing experience. In summary, it is not clear that Moorhead met the minimum requirements stated in the position description. Matt Speiser interviewed Moorhead in person on November 4; Dan Young, who had 45 already pushed for Moorhead's consideration, participated on the telephone. Young gave 96 This demonstrates disparate treatment of TVS applicants such as Jim Norris. 97 His given name is Samuel Jay McMichael. 98 The butcher block at B# 12345, Exh. G.C. 228, Tab P looks different that any others for a 50 photojournalist candidate. "PJ" is not written in the top left-hand corner. Weaknesses, rather than developmental areas, is the title of the right hand column. 74 JD-€50-08 Moorhead 2-5s and 3-4s. Speiser gave Moorhead 1-4 and ~!i-3s. In the debriefing session, Moorhead was rated the 2ih most desirable candidate; Dan Young rated him '15th. NLE was listed as one of Moorhead's strengths. However, his nonlinear experience appears to have been mainly or possibly exclusively with Avid, not Final Cut Pro. Matt Speiser noted that "he has 5 used FCP," but nothing about Final Cut Pro appears on Moorhead's resume. CNN began checking Moorhead's references on November 13, and offered him a photojournalist position on November 24, at $60,000 a year. Only Moorhead, ,John Bena, Jeremy Harlan and Jerry Appleman were offered $60,000; all other successful applicants were 10 offered more. The eight applicants hired as Senior photojournalists were offered $80,000 per year; 11 photojournalists were offered $75,000 as a base salary. Bryan Pearson 15 Bryan Pearson was an Editor/Photographer with CNN in Atlanta. He had experience with Final Cut Pro while on assignment in the Middle East. CNN raised its initial salary offer to Pearson to $74,000 per year in order to get him to accept its offer of employment in Washington, D.C. 20 Jose Santos CNN hired Jose Santos as a Senior Photojournalist. Santos was an experienced photographer with field experience using the Avid nonlinear editinq system. It is unclear whether he had any significant experience with Final Cut Pro and if he did, it appears he was 25 not comfortable using it, G.C. Exh. 228, Tab S, B# 16834, 16824. Doug Schantz Doug Schantz was an Advanced Video Tape Editor with CNN in Atlanta. Rick Denius 30 noted that Schantz "shoots once a week" for a field production unit. In 2003, prior to his interview for the BSP, Schantz went to Iraq for six weeks as a one-man band photographer/editor. Prior to 2002, Schantz's nonlinear editing experience was with the Avid and Pinnacle 35 Blue edit systems. In 2002, Schantz was introduced to Final Cut Pro by Dan Young and was essentially self-taught. He used FCP for the six weeks he was in Iraq. After interviewing Schantz on October 21, John Courtney, his supervisor's boss, expressed a concern about his experience, but rated him very highly based on his teamwork, 40 motivation and creativity, G.C. Exh. 228, Tab T, B# 17250. Dan Young, with whom Schantz had also worked closely, rated him very highly as well. Schantz and other CNN employees were paid $8,000 in relocation expenses to move to Washington, D.C. Ken Tillis 45 Ken Tillis was a photographer with CNN Newsource In Seattle. He was very skilled in Final Cut Pro. Dan Young's review of Tillis' demonstration tape was lukewarm. His notes read, "ok stuff, not the best, want to see more," G.C. Exh. U, B# 20554. By July 13, 2004, Tillis had applied for a transfer to Denver, CNN Exh. 506. 50 75 JD-60-08 Floyd Yarmuth Floyd Yarmuth was principally an editor rather than a photographer for CNN in Atlanta. As noted at page 50, Rick Denius expressed concerns of about Yarmuth's lad; of practical 5 shooting experience, which caused Matt Speiser to email Dan Young and others involved in the Bureau Staffing Project. Young then went to bat for Yarmuth, who was offereel a photojournalist position. Yarmuth did not accept CNN's initial salary offer for employment in Washington. It 10 apparently raised the offer to $72,500 in order to convince him to accept the job, Id., B#s 21591, 21588. Yarmuth was also given relocation expenses of up to $8,000 to move. New York Bureau Field Camera and Field Audio Technicians 15 20 25 30 35 40 45 50 During the Bureau Staffing Project, CNN hired 29 photojournalists for the New York bureau, at least in part based on a list generated at the CNN hiring managers' December 10-11, 2003 debriefing session, G.C. Exhs. 401, 429. Team Video employed 17 field camera technicians at CNN's New York bureau. CNN hired 13 of these 17. The four camera technicians it did not hire were James Peithman, who had worked for contractors at the Bureau since 1980; Vincent Everett, hired at the Bureau in 1982; Perry Maclean, who had worked at the Bureau since 1984 and Brian Kiederling, who had worked at the Bureau since December 1987. Kiederling was one of, if the not the most, active employee in union matters at the New York Bureau. TVS also employed 17 audio technicians at the New York Bureau. During the Bureau Staffing Project, CNN hired only two of the TVS audio technicians as photojournalists: Jamie Wiener and Desmond Garrison. Had it not been for the fact that three individuals declined job offers from CNN, it would not have hired any of the audio technicians, G.C. Exh. 429. 99 Garrison, who was the least senior audio technician working for TVS, has developed into an "excellent photojournalist" according to Edith Chapin, CNN Vice-President and Deputy Bureau Chief in Washington, D.C.100 John Duffy, TVS' director of field operations, made sure that the audio technicians were capable of performing camera work. He did so because when a camera operator was absent, he generally upgraded an audio technician to do camera work and hired a freelancer to take the 99 Thus, there is no evidence to corroborate Cynthia Patrick's assertion that Garrison was a "growth candidate" in the same sense than certain other nonTVS applicants were "growth candidates. " Five of the top 29 candidates on G.C. Exh. 429, a list generated at or after the debriefing meeting, did not begin work at the New York bureau as photojournalists. Three declined offers. There is some uncertainty as to what happened to the other two. CNN introduced evidence through witness Rick Denius that Stephen Jackson, a nonTVS candidate for photojournalist, was not offered a job. Jackson was ranked the 24th most desirable applicant at some point. I am uncertain as to whether Denius testified on the basis of first-hand knowledge. However, assuming Denius' testimony is accurate, there is no explanation as to why Jackson was not offered a position. Carlos Christen, ranked 28th on G.C. 42~1 was also not offered a job. As with Jackson, there is no explanation in this record for this decision, but see page 87-88 for a further discussion of Christen's quest for a photojournalist position. 100 Chapin was Managing Editor and Deputy Bureau Chief in New York at the time of the Bureau Staffing Project. 76 JD-EiO-08 audio technician's place. 101 In the spring of 2003, Duffy sent TVS audio technicians Tom Maney, Joe Cantali and Juan Hortua to a camera operator's workshop in Oklahoma conducted by the National Press Photographers Association. None of these three audio technicians was hired by CNN, Tr. 11115, 11118, 11120, 11142, 11177. 5 Two of the TVS audio technicians who were not hired, Chris Roebling and Steve Burnett, maintained the equipment room for the cameramen and audio technicians. One worked in the morning; the other in the evening, Tr. 9240. Alfter January 2004, their tasks were performed at times by Brian Gassen, who had not been a member of the TVS bargaining unit, 10 Tr. 9264-65, 9275, CNN Exh. 543.102 CNN has not offered any explanation for the replacement of these bargaining unit employees. As discussed in the section of this decision regarding the engineering staff, Jeff Jaramello, although classified as an audio technician, drove the Bureau's microwave truck. He was also replaced by individuals who c:lid not apply for their positions as part of the Bureau Staffing Project. 15 CNN has over the course of time since January 17, ~!:004 moved increasingly towards the use of "one man bands," that is one technician who performs both video and audio work. 103 However, for some time after it employed its own technlcians, CNN had substantial work that the TVS audio technicians could have performed, even without further training. Photojournalist 20 Manager Jeff Kinney testified that initially after January 17, there were seven ~~-person crews doing general news and three 2-person crews assigned to CNNfn. 104 Thus, including the two crew room managers and the microwave truck operator, CNN had work for at least 13 of the TVS audio technicians. 105 25 Nowhere in this record is the pretextual nature of CNN's explanation for its conduct so clearly demonstrated by the training given by CNN on Final Cut Pro to all the photojournalists it hired during the first two weeks of their employment. While a few of the photojournalists who had worked for CNN previously were familiar with Final Cut Pro, every other photojournalist was scheduled for several days of FCP training during the first two weeks of their employment. CNN 30 Exhibit 272 shows that the photojournalists were scheduled for the following amount of FCP training during their first two weeks: Table 1: Former TVS employees 35 Frank Bivona 3 days Ken Borland 4 days 101 However, Jonathan Smith credibly testified that about half his freelance work for TVS at the New York Bureau was camerawork. He also testified that sometimes he was paired with a 40 full-time TVS employee and sometimes with another freelancer. 102 There is no evidence as to who was performing the Grew room coordinator tasks between January 16, and April 2004, when Jeff Kinney hired Brian Gassen, Tr. 9381-2, CNN Exh.543. 103 In March 2008, CNN had 21 cameras for its 27 photojournalists. Edith Chapin testified 45 that there are situations where one man bands are completely inappropriate, Tr. 9246. The circumstances under which cameramen would work as one-man bands were an issue of contention between Local 11 on the on hand, and CNN, Potomac and TVS on the other, G.C. Exhs.467-69. 104 CNNfn went off the air in December 2004. 50 105 There is no evidence that the audio technicians not hired by CNN has less experience shooting than some of the CNN employees hired as photojournalists in D.C. 77 JD-EiO-08 Joe Capolarello 4 'Y2 days Doug Carroll zero days Desmond Garrison 3 'Y2 days Mike Gittleman 3 'Y2 days 5 Walter Imparato 2 'Y2 days Tom Jurek 3 'Y2 days Steve Machalek 4 'Y2 days Daniel Meara 3 days Tom Miucco 3 days 10 Saylor Phair 2 days Fred Schang 2 days Ricky Shine 1 day-was off work the first week of his employment with CNN Jamie Wiener-2 days. 15 Table 2: CNN photojournalists who had not worked for TVS, name of former employer, and days of FCP training during the first two weeks of their employment at the New York Bureau106 David Allbritton, CNN Frankfort, Germany, 1 };1 days Doug Burgess, WFAA Dallas, 3 days 20 Steve Coppin, KMGH Denver, 3 days Richard Frederick, WNYT, Albany, NY, 3 days Rod Griola, WCPO, Cincinnati, Ohio, 3 'Y2 days Rick Hall, CNN Chicago, 'Y2 day Neil Hallsworth, CNN London, 1 'Y2 days 25 Bryan Kane, News 12, Long Island, 3 days Effie Nadim, News 12, Westchester, 2 'Y2 days Gabe Ramirez, CNN Los Angeles, 2 'Y2 days Tawanda Scott, KVBC, Las Vegas, 1 'Y2 days Pelin Sidki, Freelancer, CNN London, not present during first two weeks- 30 awaiting visa. 107 Emmanuel Tambakakis, Freelancer, NY, 3 days Gilbert De La Rosa, CNN NY, 3 days. Jeff Kinney, the photojournalist manager in New York and one of the hiring managers in 35 the Bureau Staffing Project, knew from personnel experience that virtually anyone with minimal computer skills could be trained to use Final Cut Pro adequately in two days. He testified that he was trained by Dan Young in Chicago in 2001 and then trained the rest of CNN's staff at the Chicago Bureau; four photojournalists, three producers and one reporter Thus, Kinney knew that CNN didn't need a new workforce to use Final Cut Pro and that it would be relatively easy 40 45 50 106 Of the nonTVS photojournalists hired during the Bureau Staffing Project a couple stayed at the New York Bureau for a very short time. Gabriel Ramirez, who transferred to New York from Los Angeles, transferred back to Los Angeles two months later, on March 29, 2004. Doug Burgess, who previously worked at WFAA in Dallas, left the New York Bureau on May 15, 2004. In the BSP they were considered the 2nd and 3rd most desirable candidates. 107 When Karen Curry, Edith Chapin and Dan Young interviewed Sidki by telephone on December 2, 2003, they had not received a demo tape from her, CNN Exh. 26Ei, G.C. Exh. 522, vol. 4, B# 5281. There is no evidence in this record that any 'liring manager reviewed and evaluated a tape from Sidki before CNN decided to hire her. Although, Rick Denius sent an email to the effect that Sidki would send a tape to Edith Chapin sometime after December 1, there is no evidence that such a tape was either sent, received or reviewed, B# 5292. 5 10 15 20 25 30 35 40 45 50 JD-60-08 to train the existing workforce. At Tr. 9378-79, Kinney discussed his experiences training the Chicago staff: Q. So that was my question, how long did it take you to train members of the Chicago staff in final cut pro? A. There is no hard answer on that because there are varying skill levels and kind of varying levels of computer skills. There is one person who it probably took half a day. There were other people who after spending a couple of days with them, they got it. And we would kind of continually work on it. Q. Take either example, the person who was computer literate, the half a day or the two-day person, at the end of that were they proficient enough to use final cut pro in work that they did? A. Yes. Q. Do you have a feel for on average how much training a photojournalist would require to become proficient enough to use that technology in the field? A. It seems as if two days of training is-seems to be ample time. Kinney's experiences in Chicago were replicated in NI:3w York, as he testified at Tr. 9444-45: JUDGE AMCHAN: During the first two weeks, the people that you hired, did everybody go through final cut pro training? THE WITNESS: Yes. JUDGE AMCHAN: At the end of that, did you give a test or make any assessment as to whether they were reasonably adept at doing it so they can do it in the field. THE WITNESS: Again, it's a very subjective thing, and utilizing it in the field there are all kinds of extenuating circumstances that kind of determine how adeot a person is. For instance, sometimes you may have only 20 minutes to edit a piece and get it on the air. Other times you may have the better part of a day. JUDGE AMCHAN: At the end of the two weeks, did you make any determination as to whether the people that took the training had been successfully trained or not. THE WITNESS: At the end of the two weeks, every person who participated in the 79 5 10 15 20 25 30 35 40 45 50 JD-60-08 training had probably cut at least two or three news pieces in training scenario. JUDGE AMCHAN: Did you make a determination as to whether anyone of them just wasn't getting it. THE WITNESS: I did not. No. JUDGE AMCHAN: How much training of final cut pro did they actually have in those two weeks? THE WITNESS: The majority of them had probably at least two full days. JUDGE AMCHAN: Two full days? THE WITNESS: Yes. JUDGE AMCHAN: Anything else? Q. Those two full days, are you saying about 16 hours then of final cut pro training? A. Yes. Q. And were they all adept at using the program after that training period? A. In varying degrees. Q. Ranging from what to what? A. Ranging from being able to cut a very basic news piece to being able to use effects and graphics and create a very highly crafted production. 108 The selection process for New York photojournalists As with other parts of the selection process, exactly when, how and on what basis decisions were made with regard to the hiring of New York photojournalists remains a mystery. It is unclear who made the ultimate decisions, when they were made and on what basis they were made, See, e.g. Tr. 8476-77, 9152-55, 9239. The testimony of the CNN witnesses who attended the selection meetings is of questionable value given the fact that there is no documentation of what went on at these meetings and the fact that they testified four and a half years after the fact. However, even to the extent they can be credited, it is apparent that CNN applied very nebulous standards to the applicants. Karen Curry testified that one consideration equal in weight to all others was, "what an individual would bring to the table," Tr. 8381-82. Wherea::;, Edith Chapin testified that an applicant's "story" was more important that the applicant's interview, Tr. 9141-42. 109 108 CNN witness Ben Coyte testified that some individuals had difficulty learning Final Cut Pro, Tr. 15581-85. CNN witness Don Koehler, on the other hand, testified that, "from my experience, most editor/producers, or anybody who utilizes it [Final Cut Pro] finds it fairly easy to learn and use," Tr. 15956. 109 Moreover, the testimony of the attendees is inconsistent on many issues. For example, Edith Chapin testified that she gave the other attendees her assessment of the work of the TVS applicants with whom she was familiar, Tr. 9150-51. When the General Counsel examined him, Jeff Kinney testified that nobody spoke about their work experience with TVS applicants, Tr. 9344. Then when CNN counsel examined him, Kinney testified that Edith Chapin and Karen Curry gave favorable assessments of TVS applicants, Meara, Imparato and Gittleman, at the Continued 80 JD-60-08 The debriefing or selection meeting at which hiring decisions were supposedly110 made was attended by a number of individuals, most notably Cindy Patrick, who had not interviewed any of the candidates. It was also attended by John Courtney, who reported directly to Patrick 5 and had interviewed only several of the applicants. What role they played in the deliberations is unclear. The most critical stage of the selection process occured when applicants were placed in categories, such as "very strong possible," "strong possible," "possible +," "possible" and 10 "possible minus". Candidates in the most desirable category "very strong possible," were ranked above other candidates. The initial list of 29 applicants to be hired were either classified as "very strong possible" candidates or "strong possible" candidates. Only after five of these applicants either declined offers or were eliminated from consideration were offers of employment made to five applicants categorized as "possible +," G.C. Exh. 42!9. 15 It is not clear as to when and on what basis these classifications were made. In fact, since no CNN witness was able to credibly describe precisely how this was done at the debriefing meeting or in what order applicants were discusse:::l, I infer that this categorization may have been done prior to the debriefing meeting, Tr. 947:!:-77. CNN witness Jeff Kinney 20 testified that Cindy Patrick and John Courtney were involved lin this categorization, Tr. 9303. John Courtney confirmed that he participated in this classification, but denied that Patrick did so, Tr. 12491-92. There is no evidence as to how great or small a role Patrick and/or Courtney played was 25 in these deliberations, or the basis on which anyone rendered this critical assessment of each candidate, Tr. 9367-68. Matt Speiser testified that in Washinqton, Courtney's role was to present, "more of a corporate view...what, overall the company needed as far as this workforce that was being hired in Washington and New York," Tr. 4167. I infer that the corporate view was that CNN needed a workforce without NABET. 30 35 40 45 50 It was at this stage, that some applicants, including many TVS unit members were effectively eliminated from consideration altogether, Tr. 9152. Among the applicants eliminated from consideration at this stage were Jim Peithman, a cameraman who had worked at the Bureau for over 20 years and most of the TVS audio technicians, G.C. Exh. 429. Also effectively eliminated by this categorization process were lonq-time TVS cameramen Brian Kiederling, Vince Everett and Perry MacLean. Courtney also ranked the candidates in numerical order, one of five persons who input was critical at the next stage of the hiring process, G.C. Exh. 429. Since he did not interview most of the candidates, there is no evidence as to what criteria he used in making his rankings. debriefing session, Tr. 9406-07. Karen Curry did not recall any discussion of Team Video applicants, Tr. 8399. 110 II say supposedly because I am not convinced that hiri,olg decisions were in fact made at the selection meetings. CNN Executive Producer Barclay Palmer interviewed about a dozen applicants for the photojournalist positions but was on vacation at the time of the debriefing/selection session. Palmer testified that prior to the selection rneetinq he participated in at least five discussions with other hiring managers and with Cindy Patrick and John Courtney during which the merits of various applicants were discussed. Tr. 9473-77. These discussions played a role in the decision as to which applicants were hired, Tr. 9479. 81 JD-EiO-08 The importance of the job interviews in CNN's hiring decisions is also v1ery unclear. In fact they may not have mattered at all. Edith Chapin the Deputy Bureau Chief in New York, indicated that the scores applicants received in the interviews were unimportant in making hiring decisions. 5 To me this [G.C. Exhibit 450, a sheet consisting of applicants' composite interview scores] wasn't a very helpful document. These are numbers. Every person comes with a story and the story is more important. 10 Tr.9141-42. Chapin also indicated that in hiring applicants, the individuals involved in the selection process were looking for "a balanced, composed workforce." Tr. 9171. Althouqh, she did not explain what balance CNN was seeking, I infer that it was a balance of TVS unit members and 15 non-unit members that would allow CNN to avoid recoqnizinq and bargaining with the Union. eNN's failure to hire Brian Kiederling The basis for CNN's decision not to hire Brian Kiederliing is particularly suspect.t'U He 20 does not appear to have been placed in any category, such as "very strong possible," despite his 16 years of service at the New York Bureau G.C. Exh. 429. Certainly, the assessments of Karen Curry and Jeff Kinney, on the basis on their face to face interview, provide no clue as to why Kiederling was not hired or even rated in a category, G.C. Exh. 459. 112 25 Curry and Kinney interviewed Kiederling on November 12, 2003. On her rating sheet, Curry assessed Kiederling to a "4," i.e., Proficient, more than acceptable, in the categories of creativity, and ethics and integrity. She rated Kiederling 4/5, between proficient and excel (well developed expertise; highly skilled) in the categories of initiative, decision making and teamwork. As strengths, Curry noted that Kiederling had very varied skills as an engineer, 30 editor, audio and camera technician, Id., B# 153034. She deemed Kiederling to be a real problem solver, who shows initiative, had good New York knowledge and "was ready to embrace change." As a concern, Curry noted that she needed to see more of Kiederling's 35 40 45 50 111 Not only is CNN's failure to hire Kiederling as a photojournalist suspicious, it's failure to hire him as an engineer also suggests discriminatory motive. Jeff Gershgorn wanted to hire Kiederling and was overruled by an unnamed CNN official in Atlanta, Tr. 10006-10009. On the one hand, hiring Kiederling as an engineer would 'lave been a departure from the BSP process, since Kiederling was not evaluated in the debrieflnq session for enqineers. On the other hand, CNN hired several other individuals, none of whom were TVS employees, for engineering positions who had not fully participated in the Bureau Staffing Project interview/debriefing process. 112 A number of photojournalist applicants offered jobs by CNN had lower composite interview scores than Kiederling, G.C. Exh. 450. These include: Adam Shumaker, Desmond Garrison, Effie Nidam, Gilbert De La Rosa, Jamie Wiener, Neil Hallsworth, Richard Frederick, Richard Shine, Tawanda Scott and Thomas Jurek. His scores were also higher than those of Stephen Jackson and Carlos Christen, who were initially ranked high enough to receive a job offer. For some of the interview scores on G.C. 450, such as those for Rod Griola, who was hired, the interviewers' rating sheets are not in this record. 82 JD-60-08 shooting. This comment may be due to CNN losing the first demo tape that Kiederlinq submitted.t"> Kinney rated Kiederling a "3," Le., competent, with reqard to the category of creativity; 4s 5 in the categories of initiative, decision making and teamwork and a 5 in ethics and integrity. In the category of "motivational fit," Kinney rated Kiederling Fit with a question mark. 114 Kinney noted as Kiederling's strengths: linear editing, long history wllh CNN, strong shooter, team player, open to change. As a concern he noted Kiederling's lack of experience with nonlinear editing, Id., B#153044. 10 By virtue of not being placed in any category at the start of the debriefing session, Kiederling was most likely eliminated from consideration for hiring. In the numerical ranking of candidates, Curry rated Kiederling the 35th most desirable candidate, as did Kinney. Dan Young rated Kiederling 31st• John Courtney and Deputy Bureau Chief Edith Chapin did not include 15 Kiederling in their list of the most desirable 50 applicants. There is no explanation as to why this is so. The record reflects that Kiederling was highly thought of by the CNN personnel who worked with him. He was the only technical employee lnterviewed for CNN's memorial broadcast, "CNN 9/11 remembers." 20 More importantly, there is direct credible evidence that Chapin's failure to rate Kiederling was not her decision and was in fact mandated by officials in Atlanta. Kiederling testified that within a few weeks of his last day at the Bureau, Chapin had photographer Danny Meara hand him a personal note. At hearing Kiederling produced the note, G.C. Exh. 488. He testified that in response to the note he went to Chapin's office. Kiederlinq asked Chapin why he was not 25 being hired by CNN. She responded, "the decision wasn't made in New York," Tr. 10010. 115 Kiederling had worked at the New York bureau since '1986 and had been a full-time cameraman since about 1998. Vivian Foley, a Senior CNN Producer, sent an email to Jeff Kinney in August 2004, recommending that Kiederling be rehiired, CNN, Exhibit 565, Tab 15, B# 30 15203: I understand that there is a photojournalist position open. I hear that one of our old star team playing cameramen, Brian Kiederling is applying ... 35 40 45 50 I've worked long hours, on difficult shoots many times with Brian and I have nothing but great things to say about his work, attitude and professionalism... 113 There is no evidence in the record of any CNN hiring manager renderinq an opinion about the quality of a demo tape submitted by Kiederling, seE~ CNN Exhibits 26'1,262, G.C. Exh. 430. Barclay Palmer testified that he remembered seeing atape submitted by Kiederling, but gave no opinion as to its merits, Tr. 9486. 114 Given the record in this case, it is quite possible that the question mark was added sometime after Kinney filled out the rest of the rating sheet. 115 CNN did not recall Chapin, who is currently a CNNA vice-president and the Deputy Bureau Chief in Washington. Kiederling's testimony is therefore uncontradicted. His account is consistent with Chapin's inability to testify as to when in the hiring process applicants were categorized as "very strong possible" candidates, and so forth, Tr. 9239. Jesse Spilka, a CNN project engineer, said something very similar to Bob Cummings, Tr. 8687. 83 JD-60-08 Kiederling had been a union shop steward for about ten years at the time of the Bureau Staffing Project, primarily representing the camera operators and audio technicians, including freelance (daily hire) employees. Kiederling was a member of the Union negotiating team in collective bargaining negotiations with Team Video. In his interview for a photojournalist job with 5 CNN in the fall of 2003, Kiederling discussed CNN's plans to increase the use of one-man bands with hiring managers Curry and Kinney, Id, B# 153037'. One-man bands had been a contentious issue between Local 11 and CNN and its contractors, Tr. 9940-45, 10111. Article 19 of the collective bargaining agreement between 10 Local 11 and TVS limited TVS' discretion in assigning it employees to one person field crews, G.C. Exh. 17, p. 20. Section 19.7 of Article 19 prohibited TV::> from taking disciplinary action against an employee who refused to accept or complete a ore-person assignment reasonably and in good faith. 15 Jeff Kinney's testimony at Tr. 9360-64, when the General Counsel questioned him on his June 25, 2004 affidavit, contributes to my conclusion that CNIN's decision not to hire Kiederling was discriminatorily motivated. Kiederling's raising the one-man band issue at the interview doomed any prospect he had of being hired. It demonstratecl that he was not "as forward looking as other candidates:" 20 25 30 35 40 45 50 Q. Does it say, I recall that Brian Kiederling was a strong candidate? A. Yes. Q. "However, I recall that he did not have the non-linear editing skills and he was not as forward thinking as other candidates, meaning he could not foresee the assignment and the potential needs of the assignment as well as other candidates." Is that correct, that that is what that says? A. That is what it says. Q. How did you make that determination? A. I think it was made based on my collective experience with all of the candidates. Q. You're saying he didn't have foresight. How could you determine that? want to know what criteria you used to determine that he didn't have the foresight that other candidates had? MR. FASMAN: I'm going to object to this. He's talking about in that paragraph, the final hiring panel where the final hiring decisions were made. She is now saying this was his determination. That is not what it talks about. MS. FOLEY: It says, "I interviewed Brian Kiederling and I sat in on the meeting where the interview panel made its final hiring decision. I recall that he didn't have"- 84 5 10 15 20 25 30 35 40 45 50 MR. FASMAN: That is not him saying that. Q. Was that the collective decision or was that your decision? A. Which decision are you referring to? Q. The ones that were made in this paragraph 13? A. Can you clarify, please? Q. Sure. You said you recall that Kiederling was a strong candidate, is that correct? JUDGE AMCHAN: He said that. A. Yes. Q. You recall that he didn't have non-linear editing skills, that's correct, correct? A. Yes. Q. And he was not as forward thinking as other candidates, how was that determined, that he wasn't as forward thinking as other candidates? A. It was based on his answers and the interview. Q. I understand that, Mr. Kinney. But what criteria do you use to determine whether someone is forward looking or not? A. Sometimes maybe it had to do with how he saw the direction that the industry was taking, the role that various members of the news gathering team can and are capable of playing within the process of news gathering. Q. Anything else? A. I'm sure there are other things. It's not one of those things where there are very strict, hard and fast parameters. Q. So was this-there aren't any hard and fast parameters so therefore how do you make the decision when there aren't any hard and fast parameters? A. Well, when I say there aren't any hard and fast parameters, there isn't a specific set of questions that we ask and then based on a person's response we determine whether this person is forward thinking or not. I think when we say-when I say forward thinking, we're talking about creativity, something that is very subjective. Q. So the criteria is very subjective, is that what you're saying? A. I'm talking about Mr. Kiederling's 85 JD-EiO-08 JD-EiO-08 answer when I talk about the creativity. And a person's answers could be-and the way they view the future, there are not hard and fast parameters regarding that. It's very- 5 I think that's where the creative aspect comes into play. Q. So there is no hard and fast criteria, would that be fair to say? JUDGE AMCHAN: I'm confused by the 10 questions and the answers. Are you asking he didn't have any hard and fast criteria by which to judge Mr. Kiederling's answers? MS. FOLEY: Exactly. 15 Q. Subjective, would that be fair to say? A. I would say both the questions and the answers are subjective. 20 First of all, I would note that Kinney's statements about Kiederling in his affidavit and in this hearing are inconsistent with the assessment when he interviewed Kiederling, that Kiederling was "open to change", G.C, Exh. 459, B# 153044. I infer that Jeff Kinney's rating of Kiederling as the ss" most desirable candidate at the selection meeting does not reflect Kinney's actual opinion of Kiederling as a potential employee, In the summer of 2004, Kinney 25 contacted Kiederling and asked him to apply for a position as a Senior Photojournalist at CNN, Tr. 10012-10017. Although Kiederling was not hired, I infer that Kinney's call was motivated by his belief that Kiederling was a highly competent cameraman, who not only was qualified to be a photojournalist, but also a senior photojournalist. 116 30 Other peculiarities in the recruitment and hiring process for photojournalists: Among many factors that indicate that the Bureau Staffing Project was implemented with a discriminatory motive are the incompletely explained circumstances surrounding the recruitment and hiring of Gabe Ramirez, Doug Burgess and Richard Frederick as 35 photojournalists in the New York Bureau. Ramirez transferred to New York from CNN's Los Angeles Bureau. After two months in New York, he transferred back to Los Anqeles. In the context of this case, I infer that Ramirez was recruited as a stop gap measure to enable CNN to hire fewer former TVS employees. I suspect the same with regard to Doug Burgess, who returned to Dallas sometime in 2004. 40 Richard Frederick 45 50 The circumstances surrounding the hiring of Richard Frederick is even more curious. Frederick applied online for a photojournalist position on October 5, 2003. Recruiter Rick Denius interviewed Frederick on October 10. Initially, Denius did not recommend Frederick for a face-face interview, G.C. Exh. 543, vol. 1, Derek Davis tab, B# 9465. 116 To the extent CNN was motivated by Kiederling's disc.isslon of one-man bands in his interview, it violated Section 8(a)(1) in that he was clearly enqaqed in concerted protected activity. Nevertheless, it is also clear that CNN did not hire Klederling as part of its overall plan to avoid recognizing the Union. 86 JD-60-08 On October 27,2003, Rick Denius sent an email to BSP members recommending that Frederick be interviewed. It appears that Dan Young told Denius that Frederick should be interviewed, which itself is a departure from the process described by Denius. 5 Denius noted that Frederick was operating as a one man bureau for WNYT in Albany. He noted that Young liked Frederick's tape and that he operated as a "one-man band," was editorially involved and journalistically involved. 10 Dan Young interviewed Frederick for a position in Washington and gave him an overall interview score of 3.2, lower than a number of TVS cameramen who were not hired, G.C. Exhs. 450 & 266. However, at one point Frederick was ranked the 44th most desirable candidate in Washington, but was not hired in D.C. for unexplained reasons. Matt Speiser thought that there might have been a problem with Frederick's background check, Tr. 4193. 15 Nevertheless, in the middle of the selection/debriefing meeting for the New York photojournalists, some hiring managers took a break to interview Frederick over the phone. Edith Chapin gave Frederick very high interview scores, but noted that his nonlinear editing experience was minimal. G.C. Exh. 520, B#154004. Karen Curry gave Frederick similar 20 ratings, but noting that he had little network awareness or NLI= experience, Id., 154014. Frederick ended up being deemed the 26th most desirable candidate in New York and was hired. Whatever attributes Richard Frederick had, there is nc indication that he was a better candidate than the TVS cameramen who were not hired (Peithman, Kiederling, Maclean and Everett), if judged on a nondiscriminatory basis. 25 Bryan Kane 30 35 40 45 50 Recruiter Rick Denius initially did not recommend Bryan Kane for an interview for the photojournalist position. Three days later, he changed his mind. 117 Despite his lack of network level experience and nonlinear editing experience, Kane was rated the 29th most desirable candidate. He was given credit for his experience with tape to tape editing and "a little Avid years ago;" for which credit was not given to TVS applicants, G.C. Exh. 520, Vol 2, B# 1173,1206,1216, G.C. Exh. 405. The strange case of Carlos Ctuisten In the fall of 2003, Carlos Christen worked for CNN en espanol in Atlanta as a full-time editor, part-time cameraman. He applied for photojournalist positions in Washington and New York. Christen was apparently interviewed by John Courtney and Dan Young, and possibly by Karen Curry and Edith Chapin, as well, in early November, CNN Exh. 693, B# ~~3904. However, there is no evidence of these interviews in this record. There is no evidence that he was interviewed more than once. G.C. 228, Tab U, B# 20554-61 contains what are apparently Dan Young's observations regarding the demo reels submitted for photojournalist applicants in Washington, D.C. On page B# 20555, there appears an evaluation of Carlos Christen's tape. There is a description of 117 CNN notes that Beth lasch, a TVS daily hire, also was given an interview after being initially not recommended. The difference is that Kane and Jeremy Moorhead and other nonTVS applicants were hired; Lasch was not. 87 JD-EiO-08 eight different scenes and then a summary, "on the bubble, no hard news, live stuff, needs work." CNN Exhibit 262 is purportedly Dan Young's observations regarding demo reels 5 submitted by applicants for photojournalist positions in New York. On page B# 121184 there is an assessment of Carlos Christen's tape. The description of the eight scenes on Christen's tape is identical to that in the Washington observations. However, the summary is different. It reads, "fairly good shooter, wanted to see more news, live shots." 10 At the end of the ranking process in Washington, Christen was considered the 5ih most desirable candidate, out of 60 applicants, G.C. Exh. 269, B#39982. Nevertheless, CNN considered hiring him instead of more highly ranked candidates if Ray Britch was unable to accept its offer, G.C. Exh. 556. 15 After the debriefing session in New York, Christen was ranked the 28th most desirable candidate, G.C. Exh. 429. There is no explanation as to why Christen was ranked so highly in New York after being ranked so low in Washington. CNN decided not to offer Christen a photojournalist job in New York and to offer it to Gilbert De La Rosa, another nonTVS unit member instead, G.C. Exh. 520, vol. 2, B# 19050. There is no explanation for this in the record. 20 However, Dan Young sent an email on January 7, 20:J4 to Cindy Patrick and John Courtney. It states: Met with Carlos this afternoon, he took the news like a trooper, fully understands the 25 situation. Given that we lost a lot of backup photographers to D.. C., I will work with Bill to see if we can free Carlos up on occasion to help us out on assiqnments and strengthen his photography skills. 30 CNN 693, Tab 7, B# 21580. The obvious revision or doctoring of Young's summary regarding Christen's tape calls into question the integrity of the entire photojournalist selection process. 35 The absence of any credible nondiscriminatory evidence as to why nonTVS applicants were hired instead of Team Video bargaining unit members for studio and enqmeerint; positions Audio Designer, D.C. 40 A perfect example of the lack of specific evidence for Ithe BSP hiring process concerns the audio designers in Washington. Anne Woodward was the only person who interviewed applicants for these positions. She was unable to give any specifics as to how the selection process operated. 45 50 88 JD-EiO-08 Technica/ Director, New YOrl~118 In many cases it is unclear as to when hiring decisions were made. One example is the CNN's decision to hire Jorge Galvez as a Technical Director in New York and not to hire 5 John Rappa. The only testimony regarding how and why this decision was made is Lew Strauss' testimony at Tr. 10231-10237. Strauss is CNN's Senior Director of Operations in New York. Strauss could not remember the date of the selection meeting or names of anyone 10 present at the selection meeting for technical directors, expect for Steve Alperin. Strauss testified that he and Alperin discussed the strengths and weakness of the candidates being considered. However, Strauss gave no specifics regarding this discussion. One of the applicants hired was Jorge Galvez, a director for CNN en Espanol in Atlanta. 15 The record indicates that a number of CNN managers were of the opinion that Galvez was not qualified for the technical director position in New York. On September 15, 2003, Lew Strauss advised Cindy Patrick and Robert Hesskamp that, "I do not believe he [Galvez] comes close to having the experience to direct a primetime show 20 on CNN domestic, Please advise ... ," G.C. 531, Studio, Volume V, Technical Director/Director, B# 152139. Bob Hesskamp responded that, "he [Galvez] discovered that he wasn't the best TO. Couldn't create complex effects. He has the years to be qualified, but I don't think he has the real experience for a position like this ... ," Id., B# 152137. 25 Cindy Patrick responded, "Someone should sit down with Jorge and tell him why he is not getting these positions, as he knows what to work on," ld." Strauss and Steve Alperin interviewed Galvaz on November 19, 2003 and gave him favorable interview scores. At some point he was deem to be the sixth most desirable candidate for the Technical Director/Director position. John Rappa, a TVS bargaining unit member, was deemed the eighth most desirable 30 candidate. Galvaz was hired during the BSP; Rappa was not. There is no evidence establishing a nondiscriminatory basis for this choice. CNN hired Rappa was hired as a full-time Technical DirectorlDirector on December 31, 2004, almost a year after the BSP, CNN Exhibit 549. That he was fully qualified for this job is 35 established the following email authored by Lew Strauss on December 7,2004: With the resig nation of Jeff Greenstein (effect ive date 1/14-but he's taking 1/13, 14 as PTOs) it is critical that there by (sic) no delay whatsoever extending an offer to John Rappa. 40 45 Any delay will jeopardize the launch of HLN. John will most likely be assigned to American Morning. We need him here by the last week of December for him to be able to assume that assignment (John did the show at 5 Penn as a TVS employee). The only other TO who has done the show is being assigned to the HLN launch. G.C. 531, Studio, Volume V, Technical Director/Director, B# 20929. 118 While Technical Directors for CNNA were generally Team employees prior to January 50 17, 2004, CNN employees performed the duties of director and technical director for CNNfn during normal working hours, Tr. 10719-20. 89 5 10 15 20 25 30 35 40 45 50 JD-EiO-08 Technical Director, D.C. Who decided which applicants to hire for technical director? When were these decisions made? Why did CNN not hire Jimmy Suisse? Another prime example of CNN's failure to present specific evidence as to how decisions were made during the Bureau Staffing Project involves the selection of technical directors in Washington, D.C. CNN, at page 258 of its brief, notes that, "the General Counsel elicited little or no evidence on the hiring of technical directors in Washinnton." However, once the General Counsel makes out its prima facie case of discrimination, which it accomplished, the burden shifts to CNN to demonstrate that it would not have hired individual bargaining unit members even in the absence of their protected conduct, and/or in the absence of their membership in the Team bargaining units, American Gardens Management Co., 338 NLRB 644,645 (2002). Thus, the absence of evidence as to why various bargaining unit members were not hired inures to CNN's detriment. The hiring managers for technical director were Steve Alperin, a CNN manager from Atlanta, and Mike Maltas, a Senior Newsroom Director, who 'Worked for CNN in the Washington, D.C. bureau. Neither Alperin nor Maltas testified in this proceedinq. According to CNN Exhibit 529, a selection and debriefing meeting for the technical director position took place at the D.C. bureau on Monday, November 3, 2003. There is absolutely no evidence as to who participated at this meetinq and what transpired. An example, of the irregularity of the selection process is the comparative treatment of Jimmy Suissa, a very experienced Team applicant and Christian Keller, a very inexperienced nonTVS applicant.t"? Jimmy Suissa worked at CNN's Washington, D.C. Bureau for 18 years prior to the BSP. He applied for the technical director position during the BSP but never received any notification from CNN that he was not being hired. On December 6, 2003, Suissa simply found himself unemployed. Suissa was possibly the most active union member in the Bureau. He was Assistant to the President of Local 31 for eight years until resigning that post in 2003. Suissa had been a shop steward for over ten years. He was one of the Union's principal negotiators in collective bargaining negotiations with Team Video. Of the Union negotiators, Suissa was the one who most regularly aggravated Team's representatives, Tr. 6983, 15,375. Alperin interviewed Suissa on October 27 and gave him a 5 in leadership (an excellent rating), 4-4s (more than acceptable) and a 3 (competent) in verbal and written skills, G.C. Exh. 534, vol. 5, B#14560. Alperin noted as strengths the fact that Suissa knew the! D.C. facility very well and was a good troubleshooter. His only concern was "can we challenge him?" 119 CNN's assertion at page 75 note 54 and at page 258 of its brief that Suissa was a statutory supervisor is incorrect. This is wrong even assurnliq that TVS' bargaining unit supervisors were "supervisors" pursuant to section 2(11) of the Act and therefore not protected by the NLRA. Suissa was a bargaining unit supervisor for a very short period of time and was relieved of these duties on February 12, 2003, long before the BSP, Tr. 5308, CNN Exh. 104. CNN's brief at page 258 in fact mentions that fact that Team removed Suissa's shift supervisor's title. . 90 JD-EiO-08 Alperin and Maltas also interviewed Keller on October 27. Alperin gavEl Keller 4-4s and 2-3s. He opined that Keller was "very technical," but "a bit inexperienced." Id., vol. 3, B# 14751. Mike Maltas was less impressed. He gave Keller 3-3s and 2-2s (not fully competent), including a 2 for technical skills, B# 19930. 5 The butcher block prepared by some unknown person at some unknown time for Suissa lists as developmental areas: leadership (in which Alperin gave Suissa a "5"), teamwork, lack of communication and team player. In the absence of evidence to the contrary, I infer the concerns about Suissa's teamwork and not being a teamplayer are related to his viqorous efforts on 10 behalf of Local 31. A similar butcher block for Keller lists as developmental areas: motivation and directing and TO experience. Strengths include Initiative and technical knowledge. At some point in the process, Suissa was rated the 10th most desirable candidate for Technical Director, B# 14544. Chris Keller was rated 9th and subsequently hired (see page 35 15 herein). There is no evidence as to who made this determination, when they made it or how they made it. It is also an indication of complete lack of correlation between the interview scores, rankings and the hiring decisions. There is also no nondiscriminatory explanation for CNN's hiring of Jose! Nunez as a 20 technical director in Washington, instead of Suissa and other TVS applicants. Nunez, an employee of CNN Espanol in Atlanta, transferred to the D.C. Bureau on December 29,2003. As discussed earlier, there is no evidence that Nunez was evaluated in a BSP selection/debriefing meeting. 25 Media Coordinators, New vork The selection meeting for media coordinators in New York was apparently held on December 9,2003, G.C. Exh. 508. There is no reliable evidence as to how selections were made or by whom. However, the treatment with regard to Dan Scalley, a TVS applicant, 30 strongly suggests discriminatory motive in the selection proCI~SS. Rob Fox interviewed Scalley on November 12, 2003 and found him to be "more than acceptable" in all rating categories. G.C. Exh. 525, B# 4937. Ashley Blackmon interviewed Scalley on the same day. Her rating of Scalley differed only in the score for initiative; she rated 35 Scalley a 3 rather than a 4. At some point in the process, Scalley was rated a "possible" candidate. However, that was crossed out and he was rated to be a "not strong" candidate. There is no evidence as to how this determination was made. In the various rating sheets that are in the record, Scalley is 40 not rated among the 34 most desirable applicants, CNN Exh .. 540; G.C. Exh. 508. That Scalley was qualified for the media coordinator position is established by the fact that CNN hired him as a media coordinator on September 20, 2004, CNN Exh. 543 He was named Media Operations Employee of the month for March 2006, G.C. Exh. 525, B# 123884. 45 The Engineering Department in the Washington, D.C. Bureau In the fall of 2003 Team Video (TVS) employed 8 broadcast engineers at CNN's Washington, D.C. bureau. They were: 50 John Cunha the engineering manager, a TVS supervisor, who had worked at the CNN Bureau since 1992, including five years for TVS' predecessor. . Cunha was not a member of the TVS/NABET bargaining unit. Cunha is not a CNN 91 JD-E>O-08 supervisor and CNN therefore contends that he is a member of its barqaininq unit; Dennis Norman, who had worked at the Bureau as a broadcast engineer since 1987; 5 Jeffrey Adkinson, who had worked at the Bureau since 1996; Bobby Clemons, who was hired by TVS in August 2001; Clemons worked at WMAR in Baltimore as a broadcast engineer from 1979 to 1990. 10 Ronald Kuczynski, who was hired by TVS in May 2002; Kuczynski had worked for ABC News as a broadcast engineer for 4 years, worked 10 years for Xerox and ten years for RCA Service Company. Christopher Leonard, who worked for TVS since 199'7 and had ten years of broadcast 15 related experienced prior to 1997; Nicholas Kiraly, who had worked for TVS since 1998, and had nine years of previous experience as an engineer in broadcast or broadcast related positions; 20 William Evans, who had worked for TVS since August 1998, and had similar prior experience to that of Kiraly. All eight of these broadcast engineers applied for positions with CNN. They were interviewed in late October and early November 2003. There were two interviews, conducted 25 one right after another by two teams of interviewers. One ot the teams consisted of Tu Vu, the director of engineering at CNN's Washington, D.C. Bureau, and Matthew Holcombe, a manager for CNN International in Atlanta. Mr. Vu had worked closely with the TVS engineers throughout their employment at CNN's Washington Bureau. Holcombe had no contact with any of these engineers other than during the 30 minute to one hour interview. 30 The second team consisted of Joseph Murphy, the information technology director at the CNN Washington bureau, and Rick Cole, who was an information technology manager in Atlanta. Murphy knew some of the broadcast engineers beGause he worked in the same building with him, but during TVS' tenure at the Washington Bureau, there was little interaction 35 between Murphy's IT department and the broadcast enqineers. Thus, Vu was the only one of the four interviewers who had significant knowledge of how well these enqineers performed their tasks .. CNN hired Cunha, Leonard,120 Clemons and Kuczynski as broadcast engineers in its 40 newly designated Broadcast Information Technology (BIT) department.F' It also hired a CNN employee, Ken Stanford, as a Senior BIT Support Engineer, without subjecting him to the interview and selection process, G.C. Exh. 534, vol. 4, tab for Gershon Peaks, B#64732. Shortly after September 30, 2003, Stanford's title and responsibilities were altered precisely to allow CNN to hire him without subjecting Stanford to the BSP process, G.C. Exh. 558. Before 45 50 120 Leonard had terminal brain cancer when he was hired by CNN. After going to work for CNN, he operated the microwave truck, which he had never done before. WI1ile TVS had the contract at the D.C. Bureau, the microwave truck was operated by cameramen, most frequently by Danny Farkas, who was not hired by CNN. CNN Exhibit 544 indicates that Leonard died in September 2004. 121 BIT was later renamed BEST, Broadcast Engineering Systems and Technology. 92 5 10 15 20 25 30 35 40 45 50 JD-60-08 the BSP, Stanford and satellite truck driver Scott Garber in New York were assigned to the CNN National Desk in Atlanta "so they would be non-union," Id. Since I have concluded that the Bureau Staffing Project was discrimina1:orilymotivated with respect to the Washington photojournalists and the project was one integrated plan, I conclude that it was discriminatorily motivated with regard to all job classifications. However, there is independent evidence of discriminatory motive with regard to the D.C. engineers. CNN did not hire Norman, Adkinson, Kiraly and Evans. However, just two months after the end of the TVS contract, CNN hired Andre Parker as a BIT Support Engineer, and Jordan Placie, as a BIT Field Engineer, Tr. 2455, G.C. Exh. 256, CNN Exh. 544. During the BSP, Parker applied for a job as project manager, not as a support engineer, Tr. 2453. He was assessed to be a weak candidate for the position he applied for, G.C, Exh. 152, Tr. 2454. 122 Matt Holcombe interviewed Placie on November 25, 2003, weeks after the November 5 and 6 debriefing/selection meeting for the BIT department in Washington, CNN Exhs. 529, 691, Tab 19, B# 2198. Suzanne Mackiewicz, the CNN recruiter notifled Tu Vu and James Hebb on December 3, that CNN was looking to hire Placie, CNN Exh. 691, Tab 19, B# 16082. Vu responded the same day, "this candidate is more of an SNG candidate than an "engineer" in the true sense. He concedes that he lacks the component troubleshooting background and said that he would be willing to learn," /d. At this point, Team engineer Nick Kiraly, a competent engineer who had worked at the D.C. bureau for five years and who had gone through the BSP process, was still working at the D.C. 13ureau. Three days later, Kiraly was out of a job. Marty Garrison, Senior CNN Vice-President in Atlanta, approved the hiring of Placie on December 9, /d. B# 51235. Thus, one way CNN avoided hiring too many unit members was by hiring employees who had not fully participated in the BSP process soon after it was completed. 123 This represents a blatant end-run around the supposedly nondiscriminatory BSP process. There is no evidence that CNN's hiring managers evaluated Placie in a debriefing meeting and compared him with the TVS applicants. There is no nondiscriminatory explanation for the hiring of Parker and Placie, as opposed, for example, to Nick Kiraly, G.C. Exhs. 152; 134 tab N; CNN Exh. 689 tab 8. Indeed, Tu Vu, CNN's director of engineering, noted that Kiraly was, "versatile, able to tackle most field 122 CNN Recruiter Suzanne Mackiewicz contacted Parker on December 30,2003. Parker applied for the BIT Support Engineer position on January 27 2004. When Tu Vu interviewed Parker for the project manager position on October 28, 2003" he noted that Parker "does not have a broad background in both engineering and IT," CNN i::xh. 691, Tab 18, B# 21299. 123 CNN hired a number of nonTVS unit members in D.C .. , who had not participated in the BSP (see G.C. Exhs. 548 and 550; CNN Exhs. 588 and 633), soon after December 6,2003, among them are the following individuals listed on G.C. Exh. 256: Ivan Burketh, hired as an audio designer II on February '16, 2004. He worked for CNN for less than a year, CNN Exh. 544. Francis Herbas, hired February 11, 2004, as a Studio Operator 1. Jean Renaud, hired February 2,2004, as a Studio Operator II. Jason Strachan, hired as a Studio Operator II, on February 16, 2004. 93 5 10 15 20 25 30 35 40 45 50 JD-60-08 or studio maintenance or production projects," G.C. Exh. 134" Tab N, 8# 21532~.124 Kiraly also had some IT experience, which CNN appears to have taken nreat pains to denigrate in its hiring process, Id., 8#s 36610,36618,36628,21532; CNN Exh. 68!9, Tab 8,8# 21569 As with the photojournalists, it is not exactly clear how the hiring decisions were made with respect to the D.C. engineers. Tu Vu testified that the ratlnqs in the face-face interviews were one factor in the hiring decisions but "there are comments taken as well," Tr. 1919. There is no evidence as to whose comments mattered in the hiring process and how they effected the hiring decisions. For example, Marty Garrison, a CNN senior vice-president who was Tu Vu's direct supervisor, was, or may have been present at the meeting at which the hiring decisions were made. There is no credible evidence as to what role he had, if any, in these decisions. Jim Hebb, from CNN's human resources department, was also present. There is no credible evidence as to what role he played in the hiring process. Secondly, there is no convincing nondiscriminatory explanation for these hiring decisions. The individuals hired by CNN instead of Norman, Adkinson, Kiraly and Evans were not obviously better qualified. In fact Tu Vu, at least, recoqnized this fact. On December 23, 2003, he sent out an email which can only be characterized as motivated by panic. He reported that Clemons and Kuczynski were unhappy with their CNN salaries and were considering other employment. Vu reported that Clemons and Kuczynski told him that since the changeover they had "added work duties that only they are qualified to do." He apparently agreed with this assessment in that he advised that he "can not afford to loose either Ron or Bobby," G.C. Exh. 595. In response to Vu's email, CNN gave Clemons and Kuczynski a $3,500 raise on January 2, and 16, 2004, respectively. The other former TVS rank and file engineer, Chris Leonard, also received a $3,500 raise at the same time, CNN Exh. 544. CNN hired Stephen Pless, whose broadcast engineering experience at the time consisted of a year and a half at CNN in Atlanta. After interviewing Pless, Tu Vu noted that he had, "very limited electronic maintenance experience; no experience in field production; no computer networking experience," G.C. Exh. 134, Tab G, 8# 16181. Matt Holcombe expressed concern that Pless did not have "a lot of networking computers on IT; not a lot of broadcast experience," Id., 16180.125 124 When he testified at this hearing, Vu denied that Kiraly was capable of filling either the support or field engineer role, Tr. 1990. For this and other reasons, I deem Vu to be a generally unreliable witness. One of these reasons is Vu's lack of candor regarding the circumstances under which CNN decided to hire Jordan Placie and Andre Parker instead of Kiraly. I would also note that Vu's written version of his interview gUide for Kiraly rated him as a "4," Le., proficient-more than acceptable, with regard to Kiraly's initiative, CNN Exh. 689, Tab 8, 8#21577. A typed rating sheet, G.C. Exhibit 134, Tab N, 8# 21532, purportedly prepared the same day, rates Kiraly a "3," "competent meets the criteria" in the category of initiative. Vu also noted as a concern that Kiraly was "not always a self-starter,' On the same piece of paper, Vu gave Kiraly credit for taking initiative for studying for the MCSE networking certification. The handwritten version of Vu's rating sheet for Kiraly gc:lve him a "5" in interpersonal skills; the typewritten version gives Kiraly a "4" The handwritten score for client service appears to have been altered from a 5 or a 4 to a 3. In light of Vu's changes to his scores for unit member Oscar Romay, see n. 42 herein, I infer these changes were not accidental and are the result of CNN's intention to discriminate against unit members such c:IS Kiraly and Romay. 125 The first page of G.C. Exhibit 140 suggests on its face that at some point, CNN Continued 94 5 10 15 20 25 30 35 40 45 50 JD-60-08 CNN also hired Craig Fingal', who in 2003 had two years commercial experience as a broadcast systems integration design engineer, plus four years of experience with television studios while a college student. Rick Cole opined that Fingal" did not have as much experience as other applicants, G.C. Exh. 134, Tab H, B# 16605. Matt Holcombe wrote that Fingal' "has a good skill set that is different than most broadcast engineers, but lacking in some basic broadcast engineering stuff," Id., B# 16617. Tu Vu gave Finqar very high interview scores despite his "limited electronic component level troubleshooting experience," B# 16603. After he was hired by CNN as a BIT support engineer, Fingal' did little, if any, work in the job for which he hired. He spent almost all of his time doing technical drawings, Tr. 2739-44, 2871-72. 126 The salaries at which CNN hired Pless ($50,000) and Fingal' ($65,000) were far below what the TVS engineers were paid under the collective bargaining agreement. Thus, by getting rid of the Union and some of its members, CNN appears to have saving itself a substantial sum in wage payments, as well as the amounts paid in penalties under the union contracts.t-? considered hiring Team unit member Nick Kiraly instead of Pless. All the names circled on this document are individuals who were hired during the BSP, except for Kiraly. It may also be that CNN decided to hire Jordan Placie instead of Kiraly for discriminatory reasons. Additionally, G.C. Exh. 145 suggests that immediately after he learned that the Team contracts would be terminated, Tu Vu expected that CNN would hire Kiraly and Dennis Norman, Tr. 2424-25. 126 Where it conflicts, I credit the testimony of Bobby Clemons and Ron Kuczynski over that of CNN managers, such as Tu Vu and Joe Murphy. Board law recognizes that the testimony of current employees that contradicts statements of their supervisors is likely to be particularly reliable. Flexsteellndustries, 316 NLRB 745 (1995), enfd. rnern, 83 F.3d 419 (!5th Cir. 1996). The testimony of current employees that is adverse to their employer is "... giv1sn at considerable risk of economic reprisal, including loss of emp.oyment ... and for this reason not likely to be false." Shop-Rite Supermarket, 231 NLRB 500,505 fn. 22 (1977). I specifically credit Clemons' testimony at Tr. 2677-79, 2682-83 regarding his weekend work on computer-based equipment and use of computers while an employee of Team Video. Ron Kuczynski did not corroborate Clemons' testimony that Kuczynski was trained to fix the teleprompter on weekends, Tr. 2910. However, I find no reason to discredit Clemons' testimony that Clemons received this training and performed such work. Kuczynski worked Saturdays; Clemons worked Sundays. Moreover, Kuczynski testified that he did not recall being trained to fix the teleprompter; not that he was not so trained. I note also that CNN could have called Craig Fingal', John Cunha or other rank and file employees to testify as to who did what after December 6, 2003, but chose to rely on management employees instead. Fingal' and Cunha were still working at the D.C. Bureau as of February 2008, CNN Exh. 544. Cunha could also have testlfled regarding such matters prior to December 2003. Finally, I am not inclined to accept Joe Murphy's testimony at face value. He testified that he and Rick Cole interviewed Ron Fribush over the telephone, Tr. 2089, 2097-2098. There is absolutely no evidence to corroborate this contention and no explanation as to why CNN does not have Murphy's and Cole's interview rating sheets for Fribush, G.C Exhs. 1:34, Tab J, CNN Exh. 689, Tab 7. Moreover, CNN exhibit 30 also suggests that Murphy and Cole did not interview Fribush. I believe Murphy recognized that there is a consistency problem with CNN hiring Fribush without being interviewed by all four hiring managers, as were other applicants. 127 Dennis Norman was paid more than the other TVS engineers. 95 JD-6iO-08 CNN also hired Ron Fribush at $65,000. 128 Unlike other applicants, Fribush was interviewed over the telephone, not in person. Also unlike the other applicants, Fribush was not interviewed by all four hiring managers. He was interviewed by Matthew Holcombe and Tu Vu, 5 but not by the IT hiring managers, Cole and Murphy.129 Holcombe noted that Fribush did not have much IT experience, a factor that CNN relies on for not hiring TVS applicants. Fribush was apparently self-employed, unemployed or semi-retired in the fall of 2003. Fribush had 12 years of experience in the broadcast industry, He worked for CNN for about one 10 week, quitting his job on December 16, 2003. One reason CNN has advanced for its hiring decisions was the merger of its information technology and engineering departments after the TVS contract ended. CNN hired four information technology employees into its newly designated Broadcast Information Technology 15 (BIT) department. Each of these employees, William McGraw, Nathan Payne, Thomas Benz and Adam Eyasu, worked for CNN before the Bureau Staffinn Project. They were essentially computer help desk technicians prior to December 2003. Their duties were primarily helping CNN employees deal with personal computer problems, such as logging on to the network. None of them had any significant experience in the type of work performed by the TVS 20 broadcast engineers.13o One of the most glaring facts about the Bureau Staffing Project is that although some non-unit CNN employees supposedly had to compete for ther jobs, as well as TVS employees, virtually none of them, either in Washington or New York, lost their jobs in this process, while 25 almost half of the TVS unit employees lost theirs. While the lack of IT experience was held against the unit engineers in the hiring process, the lack of engineering knowledge and experience was not held against the non-unit IT applicants. Indeed, even for the engineering positions, lack of knowledge and experience did not inure to the detriment of non TVS applicants. 30 Moreover, it is clear that whatever knowledge and skills the TVS engineers lacked with regard to IT could have easily been cured by training. After the Bureau Staffinq Project, the engineers were not required to be experts in information technology. Thus, it was not necessary to replace many of the engineers to rectify their lack of experience with IT issues or 35 to deal with the new technology CNN has implemented at the! D.C. bureau since 2003. The TVS engineers that CNN did hire in the Bureau Staffing Project, Cunha, Clemons and Kuczynski have had no problem adjusting to these chanqes, Tr. 2540. CNN has provided its engineering staff extensive training since 2003, such as diqital newsgathering training and 40 45 50 128 G.C. Exhibit 270. 129 GNN Exh. 30 contains only Vu's interview scores for Fribush. Holcombe's interview guide regarding Fribush is contained in G.C. Exh. 134, Tab J, Vu's interview guide is found at CNN Exhibit 689, tab 7. 130 McGraw began picking up some engineering skills at some point in time after the BSP. After the end of the TVS contract, CNN claimed that the IT employees, who were not part of the TVS bargaining unit, were part of the CNN bargaining unit. This assertion that its bargaining unit is larger than the TVS unit, is an essential part of CNN's claim that it is not a successor employer to Team Video. 96 JD-60-08 Macintosh server training, Tr. 2542-47. Former TVS engineer Bobby Clemons was sent to an Apple training facility near Dulles airport to train him for his rolle in the installation of non linear editing equipment at the D.C. Bureau, Tr. 2681-81. 131 Ron Kuczynski was sent to Minnesota for three days to train on the RTS intercom system. 132 5 After the Bureau Staffing Project, engineers and IT staff also cross-trained each other to the extent it was necessary, Tr. 2117. There is no reason to believe that this could not have been done with the TVS engineering workforce, none of whom ever declined training opportunities from TVS or CNN, Tr. 2361. 10 When CNN Atlanta has made dramatic technological changes, such as installing server- based systems, it did not, as in its unionized bureaus, go out and get a new workforce. It trained the workforce it already had, Tr. 2130. 15 There are many factors that lead me to conclude that the Bureau Staffing Project was discriminatory with regard to the TVS engineers. Tu Vu, CNN's Director of Engineering, testified that the TVS engineers could handle every maintenance issue that CNN had in 2003. He was the only interviewer who had any familiarity with the work of the TVS engineers. Vu gave no indication that he thought they were incompetent. Indeed, he testified that they were "working 20 fairly smoothly" for him, Tr. 1774. Yet in ranking fourteen enqineerinq and IT applicants, Vu ranked the four most experienced TVS bargaining unit engineers at the bottom of his list. Absent evidence that the job performance of Norman, Adkinson, Kiraly and Evans was deficient, Vu's rankings are at best counter-intuitive. As Matthew Holcombe, another interviewer 25 testified, an applicant's familiarity with the D.C. Bureau, the equipment at the Bureau, the documentation for projects, are, other things being equal, an asset. An applicant with this institutional knowledge, would ordinarily require less training, Tr. 2181-83. Assumedly to justify not hiring TVS engineers due to their lack of IT background, Tu Vu 30 testified that CNN was looking for well-rounded job applicants in Bureau Staffinq Project because: ... Right now we operate a combined help desk, it doesn't matter whether it was a broadcasting call or an IT request, it all comes to one number. Our staff takes 35 the requests equally. They don't wear an engineering label, they don't wear a broadcasting label, we need people to fill the duties and have the technical knowledge to work that. Tr.1913. 40 Vu later contradicted himself: Q. Now, isn't it true that even today, four yean; later, you still have engineers that mainly do traditional broadcast engineering work, and you also have 45 50 131 While Clemons had more of an IT background than the TVS engineers who were not hired, Kuczynski did not. However, Clemons required extensive training for the, new technology implemented after 2003, so it is unclear how much his prior IT experience helped him. 132 Kuczynski appears to have received less training than some other CNN engineers and has received no formal IT training. He did not have significant IT experience when CNN hired him in 2003. 97 JD-60-08 employees that still do essentially the IT work that had been done before? A. Not completely true. I mean, in some instances we-I mean, we have crossover, but as I mentioned 5 earlier, in any given working arrangement, you have subject-matter experts. So today, you know, when it comes to the switcher, who do we ~Jo to, we go to Bobby Clemons or Ron Kuczynski. They've been schooled in it, so yeah, that remains their work. It's not something you givi3 the IT gentlemen. 10 Tr.2345. Mr. Vu's later testimony was confirmed by the credible testimony of Bobby Clemons: 15 They [the IT employees] don't work on the tape decks, the camera, switchers, routers, any of the hardware and terminal gear. What we performed before we still perform. Tr.2697. 20 Former TVS engineer Ron Kuczynski, credibly testified that he does not perform any traditional IT work. He will reboot computer based equipment, but if that doesn't work he will refer the problem to the traditional IT employees, Tr. 2863, 2067. It is not true that the broadcast engineers and informational technology staff are fungible. 25 Moreover, they were even less fungible in the period immediately following the Bureau Staffing Project than they are today. After the Bureau Staffing Project, the information technology staff was supervised by Joseph Murphy and the broadcast enqinesrs were supervised by George Kinney. 30 Murphy testified that in the first few months of 2004, the information technology employees were not performing such traditionally broadcast engineering duties as fixing tape decks or cameras and generally pulled only IT cable, Tr. 209G-97. Thus, I conclude that CNN's rationale for replacing its experience unionized engineers due to their lack of IT background is pretextual. 35 The D.C. Studio and control room employees The Washington and New York bureaus differed somewhat with regard to which employees were bargaining unit members employed by Team Video. Technical Directors who 40 directed material from various incoming lines onto the air were in the TVS bargaining unit. Also in the bargaining unit were stationary (pedestal) camera operators, robotic camera operators, tape technicians (who played tapes on air), audio technicians and quality control technicians. Team lumped the studio employees together into a classifica':ion titled "master controller." Unlike New York, the employees who recorded incoming material from fiber optic (light) lines 45 onto tapes in the "feeds" area in Washington worked for CNN, rather than TVS. The hiring process for studio operators in D.C. provides numerous examples of how difficult it is to determine who made the hiring decisions durinq the BSP, when those decisions were made and on what basis applicants were selected, 50 With the exception of five individuals who were interviewed by Anne Woodward, all applicants for studio operator in Washington were interviewed by Troy Mcintyre, then a CNN 98 JD-60-08 News Production Supervisor in Atlanta. Three of the five applicants interviewed by Woodward, who did not attend the debrief/selection meeting for D.C. studio operators, were hired. I regard Mcintyre to be a generally incredible witness, Generally, I am not a believer in 5 the proposition that one can determine whether a witness is telling the truth from their demeanor. However, I was struck by the fact that every time Mcintyre was asked an important question, there was a very long pause before his answer. AI:::;o, there were chanqes made in the list of studio operator applicants to be hired that Mcintyre did not wish to acknowledge. 10 Mcintyre testified about a conference call that was held a few weeks after the debrief/selection meeting. Mcintyre. Cindy Patrick, CNN's in..house counsel Lisa Reeves, CNN managers Mike Maltas and Robert Jackson participated in thiis call. Mcintyre testifled "growth candidates" were discussed in this meeting and he identified several applicants ranked low on CNN Exhibit 635, a list of applicants prepared by Mcintyre, wlho were hired. CNN has offered 15 no explanation for its reordering of this list. I infer however, that the list was reordered so as to hire nonTVS applicants at salaries far below what the Team applicants were earning under the collective bargaining agreement. The growth candidates were hired as Studio Operators level 1 at salaries of between $45,000 20' and $52,500. More experienced applicants, including a number of Team Video employees, were hired as Studio Operators level II, at salaries ranging from $65,000-$68,000. G.C. Exh. 270. On CNN Exh. 635 and on the butcher blocks, TVS unit members Adilson Kiyasu, Doug 25 McKinley and Dennis Faulkner are ranked 14th• 16th and 22nd , respectively. Nonunit member Chris Parks is #15; Michael DeSilva is #18; Darrell Jordan is # 19; Kevin Cawley is #20; Stanley Hailes is # 21, Freelancer Raeshawn Smith is #26 and freelancer Tawana Smith is 28. In the Bureau Staffing Project all of the non full-time TVS employees mentioned above were offered jobs as studio operators. Of the three full-time TVS Lnit members, only McKinley was 30 hired during the BSP and then only after a nonunit member ceclined a job offer. Kiyasu and Faulkner were hired later. It is thus obvious that the hiring lists were altered and CNN has offered no explanation for the alteration. CNN appears to have hired about 20 studio operators in the BSP.133 Eleven of them 35 were relatively inexperienced applicants, none of whom were full time employees of TVS. They were hired at a salary considerably below what the TVS applicants were being paid. TVS went to great lengths to hire some of these individuals as opposed to the TVS applicants. For examplle, on November 25, 2003, CNN offered a studio operator 1 position to Michael DeSilva at a salary of $45,000. Two obviously qualified applicants who were not hired in the initial BSP 40 selections were bargaining unit members Adilson Kiyasu and Dennis Faulkner. That they were qualified is established by the fact that CNN hired both of them within a month and a half of the end of the Team contract. Adilson Kiyasu 45 Troy Mcintyre interviewed Kiyasu on October 28,2003, he gave him mediocre interview scores, including a "2" in communication skills and determined Kiyasu not fit, G.C. Exh 534, vol. 133 As noted in footnote 119, soon after the BSP, CNN hi red 3 studio operators in 50 Washington, who had not applied and been interviewed during the BSP process. It also hired an additional audio designer in February 2004, who had not applied during the BSP. 99 JD-EiO-08 3, B# 16342. However, in the debriefing/selection meeting, Kiyasu was deemed a strong possible candidate and ranked 14th out of 29 applicants, Id. B# 16326, CNN Exh. 635. On November 17, 2003, CNN did two reference checks on Kiyasu: one from Chris 5 Wiggins at NBC and another from Bob Armfield of Fox. Both were extremely positive, G.C. 534, at B# 16331 and 16332. On the staffing project salary worksheet dated November 18, Kiyasu is the 14th name on the list, G.C. 268. For reasons, totally unexplained, Kiyasu dropped in the list of desirable applicants. However, on December 4, CNN agaiin decided to extend him an offer . and checked another reference, Tina Lurie, a TVS manager. Then a decision was made to offer 10 a job to another TVS unit member, Doug McKinley instead of Kiyasu, B# 2124E>, 21341, 16329. 134 On December 12,2003, Gershon Peaks, who was hired in the BSP, rescinded his acceptance without having worked for CNN except for two days of training on December 6 and 15 7. CNN studio manager Robert Jackson observed that, "with the loss of Gershon we are down 4 studio operators. We are having major problems trying to staff the production week.," B# 19129. Despite reservations on the part of Cindy Patrick, CI'IIN extended an offer to Kiyasu on December 15, at an annual salary of $65,000. Kiyasu resumed his work at the D.C. Bureau on January 15. CNN also hired several studio operators who had not applied during the BSP; 20 Jason Renaud on February 2, 2004 and Jason Strachan on February 16, 2004, CNN Exh. 544. Dennis Faulkner CNN hired Dennis Faulkner on December 22, 2003, at an annual salary of $68,000 to 25 replace former TVS unit member John Davis, who had resigned after working for CNN for two days. Troy Mcintyre interviewed Faulkner on October 27, and gave him mediocre interview scores, In the selection/debriefing meeting Faulkner was ranked 22 nd. On December 4, 2003, CNN did reference checks on Faulkner contacting: TVS Studio Operations Manager Tina Lurie, CNN Ughting Director Mike Poley and CNN Assignment Editor Mike McManus. All gave 30 Faulkner glowing reviews, G.C. Exh. 534, vol. 2, B# 15601-03. However, CNN did not offer Faulkner a job at this point. On December 8,2003, Cindy Patrick emailed other CNN personnel as follows: 35 40 45 50 John Davis has given us a two week notice resignation. We suspect something is going on. We need to check references on Dennis Faulkner, the next candidate on the list who knows QC.135 B#19162. Robert Jackson, CNN's Director of Operations in D.C" offered Faulkner a job on December 8. However, Cindy Patrick informed other CNN managers that "no one is supposed to make offers until Lisa [Reeves, CNN in-house counsel] and I say go ahead," B# 5375. Faulkner was hired on December 22, at a salary of $68,000 per year. 134 There was manipulation regarding the hiring process In McKinley's case as well. He was ranked the 16th most desirable applicant in the selection/debriefing meeting and his references were checked on November 17,2003. An offer letter was prepared for McKinlE3Y on November 24, but was not sent. After working directly for CNN for two months, McKinley resigned and took a job with ABC at the end of January 2004. 135 It is not clear to what list Ms. Patrick is referring. 100 JD-60-08 Michael DeSilva Michael DeSilva has had a successful career with CNN since December 2003 and now 5 works at the New York Bureau. However, there is nothing that would lead one to conclude that he was a superior candidate to many TVS applicants who were not hired durinq the BSP. Troy Mcintyre interviewed DeSilva on October 31, 2003. He noted that DeSilva was making $20,000 a year and was looking for a salary of between $30-35,000. The interview 10 scores Mcintyre gave to DeSilva were mediocre; all 3s with a 2 for his technical skills. As a concern, Mcintyre noted "not many specifics in answers." As strengths, he noted "looking to grow-advance." His interview scores were lower than those for Michael Kauffman, James Stubbs and Keith Crennan, three TVS unit members who were not hired, CNN Exh. 633. 136 15 At the debriefing/selection meeting, DeSilva was rated the 18th most desirable candidate, G.C. Exh 534, Vol. 1, B# 16805; CNN Exh. 635. On November 22, before making any reference checks, Troy Mcintyre verbally offered DeSilva a job, B# 22258. On November 24, CNN did reference checks with three former employers, but not with 20 WVIT, listed on his application as DeSilva's current employer, B# 133853. DeSilva asked CNN not to contact his current employer. G.C. 534, vol. 4, tab for Haeshawn Smith, 13#22415. A human resource employee at WfVJ in Florida informed CNN that DeSilva was an intern, that it doesn't evaluate interns and would only rehire DeSilva as an intern, B#16806. 25 CNN also called John Barron, listed by DeSilva as his supervisor at WLP TV in Springfield, Massachusetts. Barron told CNN he would not rehire DeSilva, B# 16807. CNN also called Alice Hashimoto who supervised DeSilva for three months as an intern at the CNN Accent and Health College Network. She gave DeSilva a velY positive recommendation. On November 25, CNN sent DeSilva an offer letter and he accepted a position as a studio operator 30 1 at a salary of $45,000 per annum on November 28. Lack of any correlation between interview scores, butcher blocks and hiring decisions 35 40 45 50 It is virtually impossible in certain cases to discern any relationship between CNN's hiring decisions, the scores applicants received during their interviews and the entries on the butcher blocks. One example is a comparison of the record evidence for an experienced TVS applicant, Jeff Noble, who was not hired, and an inexperienced nonTVS applicant, Chris Parks, who was hired. Troy Mcintyre interviewed Noble on November 4, 2003, either during or after the debriefing meeting. He rated Noble with 3-4s and 2-3s. Mcintyre noted a number of strengths including Quality Control and camera experience and noteda concern only with regard to Noble's ability to operate the jib camera, G.C. Exh. 534, vol. 4., B# 15104. Mcintyre interviewed Parks on October 31, and rated him with 5-3s. HE~ noted jib experience as a concern and as strengths: "can learn, great attitude, and potential for advancement." Id., B# 16858. 136 Respondent's failure to hire Keith Crennan was directly related to his protected activities as a Union steward. There is no question that Crennan was competent studio operator, Tr. 14600-01, G.C. Exh. 534, Vol. 1, B#s 2330, 37986, Tr. 15385. 101 JD-60-08 On a butcher block, assumedly prepared at a debriefing session, CNN deemed Noble the 25th most desirable candidate for studio operator. CNN rated Noble as a "possible" candidate and listed his strengths as: "QC, shading, robo and studio camera, tearnplayer, 5 initiate and TO." Developmental areas listed on the butcher block were: jib and flexibility, Id., B# 15088. Parks was considered a "strong possible" candidate on his butcher block. CNN listed as strengths: growth opportunity, great attitude, relevant experience in robotic and studio cameras, 10 shading and lighting. However as developmental areas, CNN noted that he was light on relevant experience and the depth of his experience, Id. B# '16844. What makes it particularly difficult to discern any relationship between the interview, the deliberations afterwards and the hiring decisions is that Troy Mcintyre was the only person who 15 interviewed either Parks or Noble for the studio operator pos lion. New York Bureau Broadcast Enl1ineers Team Video employed fifteen broadcast engineers at CNN's New York Bureau. In the 20 Bureau Staffing Project, CNN hired six of the fifteen; Ed Scholl, William Greene and James Clarke were hired as Senior BIT (Broadcast Information Technology) Support Engineers. Juan Ortiz, Carmine Casella and Brahms Lee were hired as Support Engineers. Ortiz and Scholl had worked at the Bureau since the 1990s. Clarke was hired by Potomac Video at the CNN Bureau in 2000. Casella, Greene and Lee were hired by Team Video in the fall of 2002. 25 CNN did not hire the following TVS employees, who had worked at the New York Bureau since the date indicated by the names: 30 35 40 45 50 John Gallagher 1995 Hamid "David" Rokhsar 1997 Jeffrey Carlough 1999 Michael Diana March 2002 Robert Cummings May 2002 Brian Wood May 2002 John Diaconu July 2002-hired by CNN after the Bureau Staffing Project. Michael Sollenberger August 2002 Peter Hedeman August 2002. CNN hired the following broadcast engineers were not employees of Team Video: Terrence Thomas, Associate BIT Support Ennineer Christopher Stewart (or Stuart), BIT Field En~lineer137 David Bingham, a CNN employee, BIT Resource Manager Raymond Smith, BIT Support Engineer Conroy Reynolds, BIT Support Engineer Mike Voculescu, BIT Support Engineer Arkady Labsovsky, BIT Support Engineer Jose Lopez, Senior BIT Support Engineer. Scott Garber, Senior BIT Field Engineer.138 137 Referred to in the transcript as both Stuart and StewC:lrt. 102 5 10 15 20 25 30 35 40 45 50 JD-60-08 Stuart and Garber were hired as Senior BIT Field Eng ineer and BIT Field Engineer, respectively, even though they did not apply for or were interviewed for their positions during the Bureau Staffing Project. 139 After January 17, 2004, these CI'IIN field engineers drove and operated two trucks, one a satellite truck; the other a microwave truck. During the Bureau Staffing Project, CNN considered several candidates for Senior BIT Field Engineer, G.C. Exh. 394, B#3894. It did not hire any of these applicants. One of these, Team Video employee Jeff Jaramello, drove and operated the New York bureau's microwave truck prior to January 17, 2004, although he was classified as an audio field technician. As of January 17, a CNN BIT field engineer operated the microwave truck. Later in ~~004, this truck was upgraded to included satellite reception capability. CNN essentially replaced Jaramello with Garber and/or Stuart. 140 Jeff Polikoff, CNN's Vice President of Technical Operations in New York, offered what Respondent purports to be an explanation as to why Jarame 10 wasn't hired to operate the microwave truck. Polikoff testified that when he was hired by CNN in January :2003, he encountered Jaramello in the microwave truck and that Jararnello was very rude to him, Tr. 12701. Polikoff also testified that later that year during the NI~w York City blackout, Jaramello was not very helpful. Further, Polikoff testified that his opinicn of Jaramello was based on these two incidents and he shared this opinion with his subordinate, Jeff Gershgorn, and mentioned them at the debriefing/selection meeting for the BIT department. For one thing, assuming that Polikoff testified truthfully, his testimony establishes the malleable nature of the BSP selection process. Polikoff was not a hiring rnanaqer for the BIT department, but by his own testimony was able to influence the hiring decisions on the basis of factors not otherwise considered by the hiring managers. Secondly, Polikoff's account is not credible. On November 3, 2003, a month and a half after the August 2003 East Coast power blackout, Polikoff exchanged emails with TBS recruiter 138 The statement in the General Counsel's brief that CNI\J did not consider the Senior BIT [Field] Engineer position to be part of the BSP is incorrect. CNN interviewed applicants for this position in New York, G.C. Exh. 394. 139 That Stuart did not go through the BSP is established by the fact that his name does not appear on CNN Exh. 531, and Suzanne Mackiewicz's inquiry to Jeff Polikoff on December 15, 2003, as to whether he knew Stuart, G.C, Exh. 392B (tab for Conroy Reynolds), B# 20094. This inquiry was made a week and a half after the selection process for BIT engineers was purportedly completed. Garber and Ken Stanford, CNN's satellite truck drivers in New York and Washington, respectively, were assigned to the National desk in Atlanta prior to the Bureau Staffing Project "so they would be non-union," G.C. Exh. 558. This exhibit, which consists of two emails, indicates that Stanford's title and responsibilities were altered precisely to allow CNN to hire him without subjecting Stanford to the BSP process. It also indicates that CNN intended to hire Scott Garber in New York without going through the BSP process as early as September 30, 2003. On May 30, 2004, I asked the parties on the record whether there was any evidence that Scott Garber had applied and been interviewed during the BSP, Tr. 13408-10. 140 Vic Spinelli, mentioned by CNN Vice President Jeff F'olikoff, as one of the truck drivers in New York, was not hired by CNN until July 26,2004, CNN Exh, 543. He did not apply for a job with CNN until March 18, 2004, CNN Exh. 551, tab 8. 103 JD-6i0-08 Suzanne Mackiewicz about Jaramello. The exchange is inconsistent with Polikoff's testimony. Mackiewicz characterized Jaramello as "a great candidate." Polikoff responded as follows: 5 He is our present microwave truck operator from team. We aqree. But we should also look to the outside. Jeff will need to be trained as a satellite uplink operator. Otherwise he's a good catch. G.C. Exh. 394, B#14926. 10 Jeff Gershgorn gave Jaramello a reasonably positive interview rating average, 3.5. There is nothing in Gershgorn's notes that corroborates Polikoff. Gershgorn rated Jaramello a 3 in "interpersonal skills." He listed as Jaramello's strengths: institutional knowledqe, site knowledqe, adapts to changes; thinks on his feet. Exh. G.C. 394, B#s 25909;25918. 15 Michelle Lackey, the other hiring manager supervised by Polikoff, gave Jaramello an even more favorable rating: 4.17 as an average, Id., B# 188'1. Lackey noted as his strengths: understands job well; communication with others; can handle stress. Lackey did not note any other deficiencies. Lackey rated Jaramello's interpersonal skills at 5; the best ratinq possible. So did her interviewing partner, Rick Cole; Id. B# 1891. 20 Matt Holcombe, the engineering hiring manager from Atlanta, gave Jaramello a 2 in interpersonal skills; however this assessment is not based 0" Polikoff's experiences with Jaramello. Among Jaramello's strengths, Holcombe noted that he was "highly motivated." 25 30 35 40 45 50 There is no corroboration for Polikoff's claim that he discussed Jaramelllo's alleged rudeness with other hiring managers. I do not credit his testimony in this regard. In sum there is no credible nondiscriminatory explanation for CNN's decision to replace Jararnello with Garber and/or Stuart. The other nonTVS engineers hired by CNN were also not obviously more qualified than the TVS applicants. For example, at the time of the Bureau Staffing Project, Terrence Thomas worked for Matt Holcombe in Atlanta. Holcombe described Thomas at the time! of his interview as "fairly green... He didn't have a lot of experience in broadcast engineering," Tr. 7786-87. 141 As with every other part of the Bureau Staffing Project, just how these choices were made remains a mystery. Matt Holcombe testified that in the selection meeting great weight was given to Jeff Gershgorn's personal experience with the TVS applicants, Tr. 7747.. Gershgorn, on the other hand, testified that his personal prior work experience with these employees played no role in the selection process, Tr. 7984, 8067-68. Michelle Lackey, supervisor for CNN's information technology employees, testified that the interview rankings of the applicants were not dispositive Tr. 7901. 142 However, she could not recall the process by which the applicants were ranked in terms of their desirability, Tr. 7893. Jeff Polikoff, Lackey and Gershgorn's boss, participated in the selection meeting despite 14"1 When Thomas was interviewed for a position in Washington, Tu Vu rated Thomas, "not fit" for a BIT Support Engineer position, CNN Exh. 691, Tab 28 B# 21689 and noted that he had little experience in broadcast maintenance and no field production experience. Joe Murphy appears to have changed his mind as to Thomas' fitness for the job, B#37842. Vu deemed Thomas to have good IT knowledge, but Rick Cole's notes indicate that Thomas was "weak on IT side of the house," B#37827. 142 Jeff Gershgorn agreed and then contradicted hirnself, Tr. 7983-84. 104 5 10 15 20 25 30 35 40 45 50 JD-6,0-08 the fact that he had not interviewed any of the applicants. What role he played in the meeting is unclear. Polikoff could not testify as to what weight was given to the applicants' interview scores, Tr. 8131-32. The studio and control room technicians in New York At the beginning of January 2004, Team Video employed 76 studio technicians at the New York Bureau. Forty-Nine of them were hired by CNN. As with the other areas of the bureau, there is little reliable or credible evidence as to precisely how these hining decisions were made. There were separate debriefing or selection meetings for different types of studio employees. CNN created job titles for the Washington and New York bureaus that were different than those held by TVS employees, but may have matched titles in other CNN bureaus. Media Operations As part of the Bureau Staffing Project, CNN created ell Media Operations department in New York. CNN already had such a department in Atlanta. One of the individuals awarded a media coordinator position soon after the BSP was Kim Moscaritolo. who previously worked for CNNfn. There no evidence that Ms. Moscaritolo applied for a job during the BSP or was interviewed during the BSP, CNN Exhs. 429, 513, 518, 540,551, 553A, G.C. Exh. 507. She was not under consideration by the hiring managers at their December 9, 2003, debriefing/selection meeting, G.C. Exhs. 508 & 509. 143 As discussed in my section on witness credibility, it is unclear who attended the debriefing/selection meeting for media coordinators, what decisions were made and who made them. It is not entirely clear, for example, whether Ashley Blackmon, one of the two managers 143 Rob Fox's failure to mention Kim Moscaritolo, the media coordinator who was hired from CNNfn without going through the BSP process, leads me to discount his credibility generally, Tr. 12291-93. His testimony is at best incomplete and at worst intentionally misleading as to material matters. Fox was the director of operations of CNNlrn where Moscarttolo worked prior to being hired as a media coordinator and was the superviscr of the media coordinators immediately after the BSP. The General Counsel asked Fox how many media coordinators CNN was looking to hire in the BSP. He answered: 14, Tr. 10290-91. I find that Fox was well aware that CNN was going to hire Moscaritolo as a 15th media coordinator without going through the BSP process, see CNN Exh. 427. Since Fox dlscussed Mocaritolo's 2004 TPMP at Tr. 12208-10, I find that he had not simply forgotten about her, also see Tr. 12257-59. Her name also appears on the CNN's training logs and schedules for the week of January 18-24, CNN Exhs. 355 & 356. CNN introduced an exhibit, CNN Exh. 551, styled "NY Resumes & Applications." Tab 50 is a resume for Kim Moscaritolo. It is obviously not a resume s.ibmitted during the Bureau Staffing Project because listed under her experience is: "2004-present Media Coordinator CNN-NY." I also find Fox to be an incredible witness due to his unwillingness to admit that he changed the scores on numerous interview sheets, Tr. 10306-07. M~ review of G.C. Exh. 525, vol. 3, indicates that Fox changed the scores on about 19 of his interview rating sheets. The most suspicious of these changes are those to Fox's rating sheet for Keith Crennan, who was a union steward in the Washington Bureau, 8#2213, New York TVS bargaining unit member Mickael Squier, B# 5023, TVS unit member Tracy Organ, B#3240, CNN 518, and Tr. 13169 and free lancer Kristi Harper, who asked Fox a lot of questions about thl~ Union, B#s 2011,2017. 105 JD-60-08 who interviewed most, if not all, the media coordinator applicants, was present when hiring decisions were made. Appropriate Bargaining Unit(s) 5 The D.C. Bureau's Couriers Team Video employed four couriers at CNN's D.C. Bureau in the fall of 2003. These four TVS employees were members of the NABET Local 31'~:; bargaining unit. The couriers 10 were essentially drivers, transporting equipment and personnel and making delliveries. In the fall of 2003, Ron "Chip" Davis was the first shift courier, workinq from about 6:00 a.m. to about 3 p.m. The second shift courier was John Tripp, who drove from about 8:00 a.rn. to about 5:00 p.m.. William Tipper drove the third shift from 2 or 3:00 p.m. until about 11:00 p.rn. It is unclear what the schedule was for the fourth courier, Alvester Williams. 15 During the Bureau Staffing Project, William Tipper applied for a job on Turnerjobs.com that was exactly the job he was performing for TVS. Kim Linden, the Facilities Manager for Turner Properties, a separate corporation from CNN under the Turner umbrella, and John Dunaway, the Security Manager for the D.C Bureau interviewed Tipper. 20 At 6:00 p.m. on December 4,2003, the day before the TVS contract expired, Kim Linden called Tipper and offered him a job. Tipper told Linden that he had accepted other employment and would have to find a substitute for this other position. Linden took Tipper to see Tim Traylor, a CNN human resources manager, who offered Tipper a job titled Transportation 25 Facilities Specialist with Turner Properties, rather than CNN. In this position Tipper performed the same duties that he had performed with TVS. Tipper was required to attend CNN's orientation on December 6, 2003, but did not actually start performing his duties for another two weeks. Ron "Chip" Davis was hired for the same job. It is unclear whether Tripp and Williams applied for positions during the Bureau Staffing Project. 30 After Tipper started driving for CNN (or Turner Properties) there were only two couriers driving two shifts; Davis drove the early shift; Tipper the late shitt, Tipper drove vehicles that he drove for TVS, performed the same duties and got all his assignments from the CNN assignment desk. Sometime in 2004, CNN (or Turner Properties) hired Denise Mcintosh, or 35 transferred her from Atlanta, to work the second shift. Even in 2008, Tipper spends no more than one hour per week performing duties other than driving. At least some of these duties he does as a volunteer. Other facilities employees who ask for Tipper's assistance in performing non-driving duties, must get clearance from the 40 CNN assignment desk. The CNN assignment editors must know where Tipper is at all times in case they need him to make a delivery of equipment or persons, or a pick-up. The CEO of CNN News Group, Jim Walton, reports to directly to the CEO of Turner Broadcasting Systems, Inc., G.C. Exh. 101, p. 1. Phil Kent, I:hen President of Turner 45 Broadcasting Systems, was either present when the termination of the TVS contracts and the Bureau Staffing Project were first discussed in 2003 or was subsequently briefed on CNN's plans in this regard, G.C. Exh. 101, p. 4. Given all the evidence that the Bureau Staffing Project was motivated by a desire to avoid recognizing the Union, I conclude that the transfer of the TVS couriers to Turner Properties was a joint effort by CNN and Turner Broadcasting Systems. 50 I also conclude that it was motivated by the desire to reduce the number of TVS bargaining unit members in any post-BSP CNN bargaining unit. 106 JD-60-08 Who was a member of the Team bargaining unit? Who was a member of the CNN bargaining unit on December 6, 2003 in D.C. and January 17, 2004 in New York? 5 The Composition of CNN's bargaining unit factoring in its blatant discriminatory hiring process Before launching into an extended discussion of what was an appropriate bargaining unit, or the appropriate bargaining unit on the dates the parties contend CNN beqan normal 10 operations, it is important to note that but for its discrimination against bargaining unit members, a majority of CNN employees would have been former Team bargaining unit members by any calculation. Taking the scenarios presented by CNN at paqes 150-151 of its brief, I find that at least 86 members of CNN's 108 member bargaining unit would have been former TVS unit members but for CNN's blatant discrimination in Washington. 144 At least 125 out of 175 in New 15 York would also have been former Team unit members. CNN concedes that 40 of the1 08 employees it considers members of its Washington bargaining unit were former TVS unit members. I find that the positions held by the following 20 25 30 35 40 45 50 144 G.C. Exhibit 11O-B indicates that there were 86 TVS bargaining unit members in Washington as of December 5, 2003 (Studio Operator Howard Lutt had resigned his employment with TVS prior to December 5). CNN Exhibit 70G, albeit not a completely reliable document, indicates that as of December 15, 2003, CNN employed 7 engineers performing what had previously been bargaining unit work. This matches the number of TVS engineers. It is not clear how frequently Chris Leonard worked either immediately before or immediately after December 5, thus his position could possibly have continued to be filled by freelance engineer Oscar Romay. CNN Exhibit 706 does not include the 4 TVS bargaining unit couriers. CNN hired two of them. This exhibit lists a total of 44 senior photojournalist, photojournalists and lighting specialists. It does not include Jerry Appleman, who was hired but never worked in Washington and was eventually replaced by Mark Marchione. Thus, them is almost an exact match with the 46 field positions in the TVS bargaining unit. One of the TVS field techs operated the microwave truck, a position transferred to engineering after December 5. CNN Exhibit 706 lists a total of 33 studio personnel; the TVS unit had 30 studio employees as of December 5, which indicates that some additional freelance members of the unit would have been hired as well but for CNN's discriminatory conduct. The exhibit does not include Gershon Peaks, who was hired during the BSP, but never worked at the D.C. Bureau, nor Adilson Kiyasu, who was hired to replace him. In the engineering department 4 full-time unit members lost their jobs and three nonTVS applicants (Fingar, Pless and Fribush) replaced them immediately. However, very soon after December 6, 2003, CNN hired other non-unit members, Jordan Placie and Andre Parker in the engineering department. Thus, I conclude there was a position for all 4 TVS discrirninatees. Some freelancers hired by CNN, such as Raeshawn Smith, Tawana Smith and Kenneth White were members of the Team bargaining unit by virtue 0': the number of hours and regularity of their work for Team. The figures for the New York bureau also appear to be almost an exact match between number of unit members on the WARN letter, G.C. Exh. 21 and CNN's exhibit S54. There were at least 125 Team unit members who could have filled 125 positions with CNN. This does not take into account the fact that one TVS unit member was hired as a lines coordinator and that there is no evidence as to who was doing the job of the two TVS unit members in the crew room prior to April 2004. 107 JD-60-08 employees (and maybe others) listed on CNN exhibit 706 would also have been filled by former TVS unit members had not CNN discriminated against them: 3 engineers (positions filled by Craig Fingar, Stephen Pless and Ronald Fribush); 4 TD/Director positions (filled by Brooker, Samaniego, Keller and Roberts). An additional employee hired by CNN, Carolyn Stone was not 5 a statutory supervisor for TVS. TVS unit members would also have filled the 3 audio designer positions filled by Richman, Hill and Tovarek. TVS unit members would have filled the 8 studio operator positions held by Banks, Connor, Carroll, Desilva, Hailes, Jordan, Kelly and Parks. Kenneth White, Raeshawn Smith and Tawana Smith were freelance members of the TVS unit. 10 TVS unit members would also have filled the 16 photojournalist positions held according to CNN Exh. 706 by Derek Davis, Jose Santos, John Bena, Jeremy Harlan, Daniel lopez, Jeremy Moorhead, Khalil Abdallah, Ray Britch, Bethany Chamberland Swain, James "Mike" Haan, Ron Helm, Bryan Pearson, Doug Schantz, Ken Tillis, Floyd Yarmuth and Jerry Appleman. Jay McMichael was a freelance member of the TVS unit. Thus, even by CNN's 15 calculations and CNN's choice of relevant dates, but for its discrimination, former TVS unit members would have occupied at least 86 of the 108 positions. In New York, CNN submits that only 62 of 175 bargaining unit members were former TVS unit members as of January 26, 2004, CNN Exh. 554. However, were it not for CNN's 20 discrimination, TVS unit members would have held a majority of these positions. Among the CNN employees holding positions that were discriminatorily denied TVS unit members were 8 engineers: lopez, labovsky, Reynolds, Smith, Voiculescu, Thomas, Garber and Stewart; 1 lines coordinator, Chimenti; 18 studio operators; 1 audio designer; 3 TD/Direct()rs; 4 floor directors; 14 media coordinators; and 14 photojournalists (Hall, Ramirez, Burgess, Allbritton, 25 DelaRosa, Hallsworth, Coppin, Frederick, Griola, Kane, Nidam, Tawanda Scott, Pelin, Tambakakis). Thus, considering all the evidence in the light most favorable to CNN at least 125 of the 175 bargaining unit employees would have been former TVS bargaining unit members. Freelancers or Daily Hires 30 Team Video hired employees on a daily or temporary basis to fill-in for full-time staff who were sick or on vacation, or to augment its full-time staff when circumstances warranted it. An example of the later circumstance occurred when Team hired numerous individuals to track Monica lewinsky's whereabouts in Washington. These employees are referred to as 35 freelancers or daily hires. Some of them worked for Team (in a regular basis for long periods of time, e.g., Tr. 15,396, 15,400. Team initially took the position that these individuals were independent contractors. later, it agreed to treat them as employees. 145 Pursuant to the collective bargaining 40 agreements with NABET, TVS was limited in its ability to hire freelancers. Daily hires in Washington were required to become member of local 31 alter working for Team for 20 days in a calendar year, or 30 days in consecutive years. In New York, a daily hire was required to join Local 11 after 30 days of employment with Team. 45 Pursuant to these agreements, daily hires/treelancers were compensated at rates set forth in the contracts, were paid the same penalties as full-time employees if they missed a meal, had their schedule changed or were called into work without a sufficient interval after their prior shift. They were also paid certain types of premium pay. However, they did not receive any other benefits such as health insurance and the right to participate in Team's 401 (k) plan. 50 145 Local 11 and 31's certifications include "regular part-time employees." 108 JD-60-08 Team was required to obtain CNN's approval in advance before hiring freelancers, e.g., Tr. 15364, G.C. Exh.40. The issue of which, if any, freelance or daily hire technicians were members of the Team 5 bargaining is significant in two respects. First, any such employee may be entitled a remedy such as back pay. Second, those freelance unit members hired by CNN would be counted in determining whether CNN is a successor employer. For example, CNN hired several studio operators, such as Raeshawn Smith and Tawana Smith, who performed many hours of freelance work for TVS during 2003. 10 First of all, CNN contends the Team freelancers were independent contractors, rather than employees. CNN, as the party making this assertion, has the burden of proof on this issue, BKN, inc., 333 NLRB 143 (2001). It has not met that burden. CNN presented the testimony of Jay McMichael, who worked as a freelance camera operator in 2002-2003. There is nothing in 15 the record to establish that McMichael, when working on a shoot, was subject to any different conditions in terms of direction and control by CNN personnel than full-time Team employees. On the contrary, I find, based on the uncontradicted March 28, 2008 testimony of Jonathan Smith, who regularly worked as a freelance camera operator and audio technician for 20 Team of New York in 2003, that there was no difference in the direction and control of freelance field technicians by CNN and Team compared with full-time Team employees. Indeed, Smith sometimes worked in a two man crew with a full-time Team field technician, Tr. 9821-33. There is no evidence that suggests that the many freelancers who worked in the studio 25 or engineering departments were not under the constant direction of CNN and Team personnel. Indeed, the record indicates that they were subject to same cirection and control as full-time Team employees. Some of the evidence supporting this inference concerns long-time freelance studio employee Joe Wade at Tr. 5256-57,5438 and 5470-7 'I. In the absence of evidence that these employees were not under the constant direction and control of CNN and Team 30 personnel, CNN has failed to meet its burden of proving that freelance or daily Ihire employees at its Washington and New York bureaus were independent contractors. CNN also argues that none of the freelancers or daily hires should be considered to be members of the Team bargaining units, including those who worked for Team almost daily 35 during 2003, because some others also worked for other employers and because some other freelancers worked at the CNN bureaus infrequently. However, there is no precedent which supports its view regarding those freelancers who worked at Ilhe bureaus on a regular basis. CNN in its brief at page 169 states that 8 freelancers in Washington worked between 500 and 1,040 hours in 2003 and that 18 did so in New York. These are generally the same individuals 40 that I deem to be members of the Team bargaining units. In determining whether on-call, freelance or daily hire employees should be included in the bargaining unit, the Board considers whether the employees perform unit work, and those employees' regularity of employment, Trump Taj Mahal Casino, 306 NLRB 294 (1992). Here, it 45 is undisputed that the freelance/daily hire employees perform unit work. The General Counsel contends that the appropriate eligibility formula for this case is that stated in Die Entertainment, L.P., 328 NLRB 660 (1999). In that case the Regional Director including in the bargaining unit any freelance or daily hire employees who worked at least 1!;i days within the prior year. I find that is an appropriate formula, although the more permissive Davis-Paxson formula (an average 50 of four hours per week for the quarter preceding the changeover) might also bel appropriate. JD-60-08 The General Counsel has introduced Team Video payroll records that demonstrate which freelance/daily hire employees worked 15 days (over 150 hours of regular time) within the year prior to the termination of the Team contracts. 146 I find that all these employees who worked regularly for Team throughout 2003 and whose names appear in Amended Appendices 5 C & D of the Complaint (G.C. Exhs. 578 & 579) should be deemed to be members of the TVS bargaining units, with an exception noted below. 147 Freelance discriminatees in New York 10 15 20 25 30 35 40 45 50 CNN contends there is no competent evidence that the employees on the freelance payrolls for New York performed bargaining unit work for the pay periods contained the General Counsel's exhibits. I find to the contrary. Team Video's WARN Act letter regarding its New York employees, G.C. Exh. 21, contains a code to the left of each employee's name. Larry D'Anna testified that these codes are "probably accounting references" relating to different departments, Tr. 11078-80. My review of G.C. Exhs. 21, 56Ei, 567, 568, 569 and 571 show that the codes on the payroll registers are a perfect match with the codes of the WPIRN Act letter and the evidence of record as to what tasks various employees performed. For example, all the payroll register documents relating to the following freelance employees hired for studio-related jobs by CNN, have the code 4000 or 4500, Team's code for studio operations: Shimon Baum, Brian Duffy, John Fanning, Anthony loannu, John Conroy, Kevin Lishawa, David Weber, Jeff Greenstein and Jonathan O'Bierne. Similarly, the code on the payroll registers for Jonathan Smith and Beth Lasch, 13CO, Team's code for field audio work, is consistent with the record evidence regarding the work they performed for Team at the New York bureau. By any standard most of the freelancers listed as disc:riminatees on G.C. Exh. 579, the amended Complaint Appendix D, were members of the Team Video bargainin~J unit in New York. I have reviewed the Team payroll registers in G.C. Exh. 566 and conclude that the following employees worked far in excess of 150 hours (15-t,~n hour days) in the six months prior to January 17, 2004. They also worked at the New York Bureau on a regular basis during calendar year 2003. What follows is the extent of my rough calculations: 146 CNN asserts at page 179 of its brief that only 2 of the 64 TVS freelancers in Washington worked 30 days in calendar year 2003. However, the most probative evidence, the TVS payroll records, G.C. Exhs. 545 and 546, show that this is not true. 147 Counsel for CNN objected strenuously to my receipt of TVS payroll records from the New York Bureau. Counsel asserted that the General Counsel was violating my order with respect to offering New York evidence during the W~shington, D.C. portion of the hearinq, Tr. 15067-74. To the contrary, the General Counsel was in compliance with my rulings and directives. On April 10, 2008, in New York, Counsel for the General Counsel stated, "As far as Team payrolll records are concerned, the New York and Washington records are located in Washington and we are presuming that we are in line with your request about records if we put those in in Washington." I responded, "I don't see a problem with that." CNN's counsel raised no objection to this procedure, Tr. 10597. Counsel for CNN, in objecting to my receipt of Teams New York payroll records, also asserted that "there were a number of occasions when we were in New York where your honor prohibited us, prohibited CNN from putting on evidence that related to Washin'~ton, D.C.", Tr. 15072. This assertion is incorrect. In every instance in which the General Counsel objected to the receipt of evidence in New York on the grounds that it pertained to Washington, I overruled the objection, Tr. 12,736, 12,744, 12,747-53, 12,779-84, 12,795, 12,922, 15,426-28. 110 JD-60-08 Melanie Baker, field tech, over 500 hours between pay periods 16 in 2003 and pay period 1 in 2004; Christopher Collins, studio tech, approximately 400 hours during the same time period; 5 Christopher Cunningham, studio tech, over 700 hours between pay period 18 and one; Jennifer de Stefano, studio tech, over 500 hours between pay period 21 and one; Jay Eric, studio tech, 272 hours between pay period 22 and one; Donald Fenster (aka Charlie Frick), studio tech, 240 hours between pay periods 21 and one; 10 Mitchell Gomila, field tech, 164 hours between pay period 21 and one; Kristi Harper, studio tech, 248 hours between pay period 21 and one; Kenneth Kaplan, field tech, 304 hours between pay period 16 and 25; Beth Lasch, field tech, 254 hours between pay period 21 and one; Sareal Martinez, field tech, 428 hours between pay period 21 and one; 15 Robert Matteo, field tech, 416 hours between pay periods 21 and one; Kathleen McLaughlin, field tech, 240 hours between pay period 21 and one; Rod Nino, field tech, 352 hours between pay period 2 'I and 26; Ramon Olivo, field tech, 388 hours between pay period 21 and one; Todd Pivawer, field tech, 300 hours between pay period 16 and one; 20 Mark Peters, field tech, 328 hours between pay period 21 and one; Danielle St. John, studio tech, 408 hours between pay period 21 and one. The only individual listed on G.C. 579, that I exclude from the TVS barqaininq unit is Patrick Howley. Howley worked 282 hours in the studio at the New York bureau between pay 25 periods 3 and 7 in 2003; I see no evidence that he performed any bargaining unit work after April 1, 2003. 148 Free/ancers who were members of the Team New York bargaining unit and WE1re hired by CNN 30 My review of the Team payroll registers indicates a number of employees who were hired by CNN performed well in excess of 150 hours of barqaminq unit work in the New York studio as freelancers for Team Video in the year prior to January 17, 2004. These employees also performed bargaining unit work on a regular basis and thus must be counted as Team bargaining unit members in determining successorship. These eight employees are: Shimon 35 Baum, Anthony Ioannou, Jeffrey Greenstein, John Conroy, Kevin Lishawa, David Weber, Jonathan O'Bierne and Jonathan Reiss. Alleged D.C. discriminatees who were! free/ancers 40 45 50 G.C. Exh. 578, the General Counsel's amended Appendix C to the Complaint, lists alleged discriminatees in the D.C. Bureau. Virtually all of them worked full-time virtually every day at the D.C. Bureau during 2003 and by any standard would be considered members of the 148 Phillip Hadrovic, an employee listed in Appendix D, was a regular full-time TVS employee, not a freelancer despite the fact that he is not listed on TVS' WARN Act letter, G.C. - 21. Payroll records and timesheets for Hadrovic, G.C. Exh. ei71 ,show that Hadrovic worked 104 hours for Team between December 29 and January 16, 2004 in the CNNfn control room. That he was not a freelancer is established by Team's deduction for its 401 (k) plan, which was not available to freelance employees. Hadrovic may have been omitted from the WARN Act notice because he was on leave due to a family emergency from mid-2003 to December 2003, G.C. Exh.528. 111 JD-60-08 Team bargaining unit.149 These employees are Emmanuel P,gomuoh, Donna l.acey, Fred Schall, Paul Skaife, Joseph Wade and Aaron Webster. Another alleged discriminate, Oscar Romay, was hired as a freelancer to fill in for a sick or injured employee towards the end of 2003. 150 He worked at least 392 hours between pay periods 21 and 25 in 200~I, and must also 5 be considered part of the TVS bargaining unit. Free/ancers hired by CNN who were part of the Team bargaining unit Several employees, Samuel Jay McMichael, Tawana Smith, Raeshawn Smith and 10 Kenneth White, who worked regularly and well in excess of 15 days for Team in 2003, were hired by CNN. They must be counted as members of the TVS bargaining unit in any determination of successorship. CNN contentions regarding the appropriate CNN bargaining unit 15 CNN argues that the former Team bargaining units are no longer appropriate bargaining units because the employees performing what used to be bargaining unit work no longer have a community of interest distinct from that of other CNN product.on employees. This is so CNN contends because 1) it brought all production work in-house; 2) the positions of the historical 20 unit were functionally integrated with numerous other positions and 3) the positions from the historical unit share a community of interest with other employees engaged in the production process, CNN reply brief at 17. However, I find that the decision to terminate the EN<:IIAs was motivated in substantial 25 part by CNN's determination to get rid of NABET and therefore, CNN is precluded from relying on this fact in refusing to recognize the historic unit. I find further that much, but not all of the functional integration of bargaining unit positions with other positions was also part of CNN'S overall discriminatory plan mentioned in Complaint paragraph 22(b). As I conclude that CNN cannot be allowed to profit from its illegal conduct aimed at dilution of the bargaining unit, I 30 conclude that the historic unit is still appropriate. Given the possibility that I may be reversed on this point, it hardly matters whether the historic unit is appropriate or not. As a successor who discriminated against unit employees, CNN is obligated to recognize and bargain with the Charging Parties and return to the status 35 quo if requested by NABET. Nevertheless, it is well recognized that "long-established bargaining relationships will not be disturbed where they are not repugnant to the Act's policies, The Board plac:es a heavy evidentiary burden on a party attempting to show that historical units are no longer appropriate." 40 Indeed, "compelling circumstances are required to overcome the significance of bargaining history," Ready Mix USA, 340 NLRB 946,947 (2003); Banknote Corp. of America, 315 NLRB 1041 (1994); Cadillac Aspha/t Paving, Co., 349 NLRB NO.5 (2007). In Banknote, Corp, supra, at page 1044, one factor the Board relied upon was that 45 although the successor's employees had been assigned to filii in on a wider scope of new duties, they continued to serve as the primary, and in some areas, the only employees performing their 149 CNN Exhibit 642, cited at page 179 of its brief is not a record of all hours worked by individual freelancers at the D.C. Bureau in 2003, Tr. 15044-46. 50 150 Romay was most likely filling in for Chris Leonard, a Team engineer, who was on sick leave in the fall of 2003. CNN hired Leonard, who died of brain cancer in 2004 .. 112 JD-60-08 traditional duties. This would also have been the case in the instant case had CNN not discriminatorily refused to hire many all the members of the lVS bargaining uniit. In many cases, a historical unit will be found appropriate if the predecessor employer 5 recognized it even if the unit would not be appropriate under Board standards if it were being organized for the first time, Trident Seafoods, Inc., 101 F. 3d 111, 118 (D.C. Cir. 1996). In a sense what CNN is attempting in this case is an accretion of employees who worked for it directly into the Team bargaining units. Regardless of whether or not this case strictly falls 10 within the Board's framework for analyzing accretions, I find that the caselaw in that context is useful by analogy. In Seven-UP/Canada Dry Bottling Co., 281 NLRB 943 (19815) the Board adopted the reasoning of the administrative law judge, which I find relevant to the analysis of the instant case. 15 Though the above principles are useful, it is important to note that the instant controversy fails to present the accretion issue in a classic setting. Here the focus is on a curtailment of bargaining for a previously represented group, rather than the addition of employees who had 20 never voiced a preference with respect to collective bar- gaining. In such circumstances, Board policy appears to shift its attention in the direction of the forceful policy encouraging stable bargaining relationships, with free- dom of choice and the accretion doctrine relegated to 25 lesser standing. Thus, the right of an employer to termi- nate a bargaining relationship, totally or in substantial part, and thereby to deny contractual benefits has been viewed restrictively. 30 On this basis I find it is inappropriate to accrete any gl"Oup of employees who were not part of the Team bargaining unit into CNN'S bargaining unit. Such accretion deprives former Team employees of their statutory rights and at the same time deprives those who were not members of the Team bargaining unit of their rights to decide whether or not they wish to be represented by a Union. This is particularly true in light of my finding that if it were not for 35 CNN's discrimination, Team unit members would have constituted a majority of any CNN bargaining unit. Thus, I find the appropriate bargaining unit in Washinnton to consist of: photojournalists and senior photojournalists, studio operators, lighting specialists, TO/directors, audio designers, 40 field and support broadcast engineers, and couriers (transportation facilities specialists), I also find that the unit includes media coordinators. Even though these employees were hired long after the termination of the Team contract, much of the work they perform was performed by bargaining unit employees prior to December 2003. 45 In New York, I find the appropriate bargaining unit to consist of: photojournalists, studio operators, audio designers, TO/directors, field and support engineers, floor directors and media coordinators. 50 113 JD-60-08 The CNN Employees in Question: Information Technology employees in Washington 5 CNN called Joseph Murphy, who supervised its Information Technology (IT) employees in Washington until November 2005, as a witness on July 21, 2008. I assume he was called to support CNN's contention that the IT employees and broadcast engineers must be considered part of the same bargaining unit. First of all, I would note thaI: instead of calling an engineer who still works at the D.C. Bureau and has since at least 2004 (John Cunha, Craig Fingar, Andre 10 Parker and Jordan Placie), CNN chose to rely on a management employee who was not the direct supervisor of the engineers. I conclude that Murphy certainly did not credibly contradict the testimony of Bobby Clemons and Ron Kuczynski. These two current employees, as mentioned earlier, testified that for the most part the tasks they performed after December 6, 2003 are essentially the same as they were prior to that date, and that the duties of the IT 15 employees are essentially the same. As Murphy testified, much more of the equipment at tile D.C. Bureau is computer based than it was prior to December 2003. He testified to a number of situations in which IT employees performed tasks and engineers were "involved," e.q., Tr. 16225, 16,236, 16,243, 20 16,248, 16,254-55. He was very unspecific as to the nature of the engineers' involvement, because he doesn't know what it was, Tr. 2030-31, 16,225-213. The reason for Murphy's lack of knowledge is that he did not supervise the broadcast engineers. Tu Vu indirectly supervised the engineers, as he had to some extent while Team operated at the D.C. Bureau. After December 6, Vu supervised the engineers through George Kinney and Sam Stevens, rather than through 25 Team supervisor John Cunha. To the extent Murphy was specific; his testimony is consistent with that of Clemons and Kuczynski. For example, he observed Kuczynski pulling cable when installing server-based workstations, Tr. 16,236. In his earlier testimony, Murphy conceded that in the first few months 30 of 2004, the IT employees were not fixing tape decks, repairing cameras or pulling any cable other than IT cable, Tr. 2096-97. The testimony of Clemons and Kuczynski establishes that they have not done so since then. Moreover, I am also not inclined to take Murphy's testimony at face value. At some 35 points it was not clear whether he had first-hand knowledge regarding his testimony and at others his testimony was either inaccurate or misleading. On December 14, when called as a witness by the General Counsel, Murphy testified as follows about the interview of nonTVS applicant Ron Fribush, who was hired by CNN during the 40 BSP and then quit after a week: I-Ron Fribush, I never personally interviewed. He's the only candidate-e-l remember this specifically-I did not have a face-to-face with. We did him over the phone because of a scheduling conflict. .. 45 I believe I did [take notes of the telephone interview with Fribush] ... 1believe this is what I looked at last night, and I did not see notes for Ron Fribush, but there were other candidates I interviewed, including a couple in Atlanta that I don't see here. 50 Tr. 2089-90. 114 JD-60-08 I infer that Murphy and Rick Cole did not interview Fribush.. There is no evidence that they did in this record and CNN has not suggested that their '10tes of this interview were lost. Jim Hebb testified that a composite list of interview ratings was compiled and used at the selection meeting for engineers in Washington, Tr. 15849. Assurninq his testimony is accurate, 5 this composite would indicate whether and how Murphy and Cole rated Fribush. CNN neither introduced this composite list nor claimed that it was lost. I infer further that Murphy testified that he participated in a telephone interview with Fribush because he recognized that the fact that he did not is an indication as to how unfair the 10 BSP selection process was to the Team applicants. Murphy also testified that Fernando Vega did a software plug-in for graphics in late 2004, Tr. 16258. Murphy testified that, "Vega, who performed broadcast engineering duties primarily, he was trained to do that and did it quite successfu Iy." . 15 Later, Murphy described Vega as "an associate broadcast engineer that we brought in," Tr. 16283. According to CNN Exh. 544, Vega was an Associate BIT Production Support Specialist and then a Production Support Specialist, both IT positions, until June 2005. He became a broadcast engineer in June 2005. His employment with CNN terminated four months 20 later. Murphy also mentioned that Ken Stanford, the satellite truck driver, sat iin the IT area. assume he did so to suggest greater intercourse between enqineerinq employees and IT employees after December 6, 2003. There is no evidence as to where Stanford sat before 25 December 6. Prior to December 6, Stanford was not a TVS broadcast engineer. He was a CNN employee assigned to the National desk. Murphy's testimony, however, confirms that of Clemons and Kuczynski, that Craig Fingar, who was hired as a broadcast engineer, did not primarily do engineer's work, Tr. 16,225. 30 He also tacitly confirmed their testimony that the IT involvement of engineers was limited to such basic tasks as rebooting a computer, Tr. 16,257-58. Information Technology Employees in New York 35 No rank and file CNN engineers or IT employees in New York testified in this hearing. The only CNN engineer in New York whose testimony is credible is supervisor Ed Scholl. Nothing in Scholl's testimony indicates that the work of broaclcast engineers and IT employees is fungible. Scholl testified that there are instances when people with different backgrounds will respond to a problem to determine its source, Tr. 13088. I assume he means that engineers 40 and IT people will work together to determine whether the problem is one to be fixed by a broadcast engineer or one to be fixed by a computer specialist. Scholl's testimony is consistent with that of IT rnanaqer Michelle Lackey which indicates that if an IT employee is confronted with an engineering problem of any complexity they will call 45 an engineer, "the expert on the subject," Tr. 7939, and vice-versa. Thus, there is no evidence that would lead me to conclude that IT employees in New York must be included, or should be included in a bargaining unit that includes broadcast engineers. In this regard, I would note that after January 17, 2004, IT employees continued to report to IllI1s. Lackey, while broadcast engineers reported to Jeff Gershgorn. Both Lackey and Gershgorn reported to Jeff Polikoff. 50 115 JD-60-08 Electronic Graphic Operators in New York and Washington: Media Coordinators, Production Assistants and Technical Production Managers in Washington, D.C. The Electronic Graphic Operators (EGOs) manage the graphics for the lower part of the 5 TV screen and full screen graphics, such as maps. Prior to the Bureau Staffinq Project in New York, these 8 employees were directly employed by CNN. CINN has taken the position that they are members of any appropriate CNN bargaining unit. Despite the fact that the EGOs worked on entirely new digital equipment at the Time Warner Center, CNN did not replace any of them; it trained them the new equipment, Tr. 10412-13. After January 17, 2004, EGOs reported to the 10 same supervisor, Clayton Sizemore, as did former unit audio designers. If a reviewing authority were to decide that the historical unit is no longer appropriate, I would include the EGOs in the bargaining unit in New York, where they became a more integral part of the production process soon after the termination of the Team contracts. However, in 15 Washington, there was no such job classification for over a year and a half after the Team contract ended, Tr. 14534. I would not include any media coordinators or electronic graphics operators who were hired into those positions in Washington or technical production managers in determininq 20 whether CNN is a successor employer. However, I would include media coordinators in the unit beginning in July 2006,'when this position was created at the D.C. bureau, Tr.15916. I would also include the Washington EGOs beginning in 2005. CNN witness Donald Koehler testified that the production assistant title was changed to 25 media coordinator at some point in time. In the Bureau Staffing Project, CNN hired three production assistants: Nunu Japardize, Branden Ray and Sital Patel. All of these had worked for CNN previously either as full-time employees or freelancers. They were given credit for their employment with CNN prior to December 6, 2003 in terms of seniority, CNN Exhs. 544,679. Not one of these three was still a production assistant in July 2006 and not one of them became 30 a media coordinator. Other production assistants, such as Todd Huyghe, Chris Kenny, Lindy Royce and David Gracey, who were CNN production assistants prior to December 6, 2003, were not subjected to the BSP process. None of these individuals was a production assistant in July 2006 and none 35 of them were ever media coordinators, CNN Exh. 544. Shortly after December 6, 2003, Production Assistants reported to Warren Arenstein, who did not supervise employees who were performing work previously done by Team bargaining unit employees. Therefore, I would not include production assistants in an expanded CNN bargaining unit. 40 Chris Kenney became a technical production manager in Washington in May 2005, CNN Exh. 544. Steve Dolce apparently transferred from New York to Washington in July 2004, CNN Exh. 543. According to CNN 543, his title in Washington was Technical Program Manager effective September 30,2004 and Director, Technical Program Management effective January 1, 2005. Thus, it appears that there were no non-manageriall technical production managers in 45 D.C. until May 2005. These employees are not directly supervised by anyone who supervises employees doing what was formerly bargaining unit work. Moreover, if their duties are the same as technical production managers in New York, they should be excluded because they exercise management functions. 50 116 JD-60-08 Lines Coordinator Lines coordinator is another job performed by CNN employees prior to the Bureau Staffing Project. CNN employed two types of lines coordinators: bureau lines coordinators and 5 lines coordinators who were assigned to shows. CNN claims that lines coordinators must also be part of any appropriate bargaining unit. I credit the testimony of Stacy Leitner, who was a show lines coordinator from April 2005 until August 2006. On the basis of her testimony, which was essentially corroborated by CNN witness Paul Vitale, I find that the duties of a show lines coordinator involved primarily administrative duties, rather than the technical duties performed 10 by TVS employees, Tr. 10496-99. The line (or lines) coordinator reserved studios for guests, including those located outside New York City or Washington, reserved satellite trucks and transmission lines for incoming tapes. After January 17, 2004, lines coordinators reported directly to Lois Cioffi, who 15 did not supervise any employees doing what was formally barqaininq unit work. Cioffi reported to Lew Strauss, as did Clayton Sizemore, who did supervise former unit employees. I would exclude lines coordinators from the bargaining unit even if the historical unit is no longer appropriate. 20 I would also note that there is strong evidence of discriminatory motive in the hiring of lines coordinators in New York. Operations Director Lew Strauss was the only hiring manager who interviewed candidates for lines coordinator. He gave the top three interview scores to Julie Cretella, a TVS nonbargaining unit manager, Rick Jacobson, who apparently already worked for CNN, and Mary Theodore, a TVS bargaining unit supervisor. Jacobson and Cretella 25 were hired; Theodore was not. There is no credible explanation in this record 'for why Theodore was not hired, Tr. 13172-13181, CNN Exhs. 520, 521. Equally suspicious is the fact that soon after the Bureau Staffing Project, CNN moved one of its employees, George Chimenti, who had not applied or been interviewed in the Bureau Staffing Project, into a lines coordinator position. 151 30 Operations ManagerslTechnical Production fvl'anagers in New York 35 40 45 50 In about 2006, CNN changed the title of its Operations Managers in New York to Technical Production Managers. It did not change the job duties of these employees, Tr. 11947, 11963. CNN contends they are part of its bargaining unit. Lois Cioffi supervised the operations managers as of January 17, 2004. CNN elicited testimony from its witness Paul Vitale that technical production managers hire the crews at remote sites for reporters and producers, Tr. 11948, 11958-59, 11964-65. I then asked Vitale about the extent of his authority to hire these freelance crews. He testified that he must get permission from an executive producer to spend CNN's money, but he selects the crews on his own and commits CNN to pay them. The Executive Producers do not care who the technical production managers hire, Tr. 11950. This authority does not make operations rnanaqers/technical production managers statutory supervisors because the record does not show thall the individuals they hired were 151 Chimenti was a lines coordinator for CNN prior to the BSP. He was retained in that position without going through the BSP process. Chimenti's name does not appear on CNN Exh. 520, which is a composite of the interview scores for lines coordinator candidates, which was used at the selection meeting, Tr. 13174; Also see CNN Exh. 516. 117 JD-60-08 employees of CNN, as opposed to independent contractors, or employees of independent contractors, Crenulated Company, 308 NLRB 1216 (1992). However, the record demonstrates that they exercised management functions for which I deem they should be excluded from any appropriate bargaining unit that includes the type of technical employees who worked for Team 5 Video, Eugene Register Guard, 237 NLRB 205 (1978). Editor Producers Editor Producers were members of the Local 11 bargaining unit when Potomac 10 Television was the contractor at the New York bureau. When the Potomac contract ended, CNN hired the editor producers and they were not members of the TVS bargaining unit. CNN now argues they must be included in any bargaining unit thai includes former TVS employees at its Bureaus. The editor producers' job differed and differs from the jobs performed by TVS employees in that they actually exercise substantial judgmenlt in editing news footage as a 15 significant part of their job. The editor producers determine, to far greater extent than former unit employees, what segment of the news material gathered makes it to the airwaves. Moreover, they are physically separated from other studio employees in that their work is performed in edit rooms, Tr. 12060- 20 62, 15908, CNN Exh. 414. On January 17, 2004, the editor producers in New York reported indirectly to Rob Fox through James Lambriolla and then Gary Reynolds. Media Coordinators, on the other hand, reported directly to Fox. In Washington, editor producers reported to Warren Arenstein in 2004. 25 Arenstein did not supervise any employees who performed work previously performed by Team bargaining unit members. I would exclude editor producers from the barqaininq unit even if the historical unit is inappropriate. Application of the successorship criteria: 30 Continuity of the employing emetptise: Changes to employees' job duties as it affects CNN's status as a successor employer to Team Video Services I have found that CNN is a successor employer to Team Video. CNN hired a majority of 35 Team bargaining unit members who worked in the historic units of studio operators, broadcast engineers, field camera and field audio technicians, and in D.C., couriers. Moreover, a majority of the employees CNN hired to do work formerly performed by unit members were former unit members. This fact strongly suggests, and I conclude, that former unit members were hired to do essentially the same jobs they had performed for Team. Were that not the case, CNN's 40 hiring would resemble Dr. Baker's conclusions for what the results of a random selection would look like. These former unit employees also produced the same product for CNN that they did when they worked for Team. The nonTVS employees hired during the BSP, were mere replacements for TVS 45 employees who were not hired. As Cindy Patrick stated on September 29,2003, the objective of the SSP was "to fill nearly as many new positions at CNN as currently filled by Team," G.C. Exh.338. Indeed, excluding the CNN employees who generally were not in fact competing with other applicants for their jobs, there is almost a perfect match between the number of employees hired during the BSP and the number of Team bcllrgaining unit members. 50 In Washington, these employees continued and still continue to work a1 the same location. In New York they did so for several months until they moved to the Tiime Warner 118 JD-60-08 Center. While many of the Team supervisors were not hired by CNN, former Team unit members took direction from the CNN employees who had previously managed them through the TVS supervisors. Indeed, in many cases, these CNN supervisors had given instruction to Team employees without using Team management as an intermediary. 5 CNN contends that it is not a successor employer on the grounds that the jobs its employees perform were not the same jobs that TVS employees performed. This argument is predicated both on technical changes that occurred after the end of the Team contracts and CNN's decision to require studio employees, at least in some cases, to perform only one job 10 function to a far greater extent than did Team Video. While CNN employees performing what was bargaining unit work may use some newer equipment and may have been given some additional duties, the work they performed was essentially the same as the work they performed for Team Vdeo. Most employees continued to 15 spend most of the day performing the same tasks and using the same skills they had used in their work for Team. The fact that employees may have performed tasks in addition to those they performed for Team does not necessarily establish that CNN was not a successor. This is particularly so when the record shows sufficient similarities in the job skills required by the two companies, Capitol Steel & Iron Co., 299 NLRB 484,487-88 (1990). 20 In some cases, CNN employees doing bargaining work are performing fewer tasks than they performed working for Team Video. However, this does not negate the continuity of the enterprise. CNN was aware that many of the Team employees had specialties or particular expertise. For example, CNN knew that John Davis in Washington worked as a QC operator for 25 TVS the majority of the time, G.C. Exhibit 534, vol. .1, Davis, 18# 12502. CNN was aware that Dennis Faulkner, who it hired to replace Davis when he resiqned, knew QC and that other studio operators did not, Id., at 19019, Id., vol. 2, Faulkner, B#s 12460, 15599. CNN was aware that TVS technician Paul Miller also specialized or had expertise in audio design, Id., vol. 4, Miller, B#s 15216, 21439. CNN also knew that several of the studio employees in New York 30 were audio specialists. After terminating the ENGA, CNN assigned Davis to work exclusively as a QC operator, instead of also performing other studio functions. Similarly, the former TVS studio operators who were hired as audio designers, apparently work exclusively as audio desiqners-s-althcuqh 35 CNN introduced a great deal of evidence regarding the cross-traininq of its employees. In any event, the fact that CNN has chosen to require employees like Davis and Dennis Faulkner to work exclusively as QC operators does not negate the substantial continuity of its operations, when compared to TVS's operations. 40 Indeed, a CNN Operations supervisor at the New York Bureau, John Silva, recognized that there was no fundamental change in the tasks performed by former TVS employees immediately after the end of the TVS contract. Silva testifiecl that on Monday, January 19, 2004, he was training new employees who had not worked previously for Team Video in the Control Room at 5 Penn Plaza. I asked what were the former TVS employees, who had been hired by 45 CNN, doing. Silva responded: Their job. Whatever they were assigned ... Tr. 11824. 50 When employees continue doing SUbstantially the same work they did for a predecessor, the addition or subtraction of some new job duties is unlikely to change their attitude towards 119 JD-60-08 their job to such an extent as to defeat a finding of continuity of the enterprise, Phoenix Pipe & Tube Co., 302 NLRB 122 (1991); USG Acoustical Products, :286 NLRB 1, 9-11 (1987). CNN relies largely on anecdotal evidence to establish that the jobs CNN employees 5 hired during the BSP performed were materially different than the jobs TVS employees performed. However, with the exception of photojournalists working in relatively remote locations, CNN has offered no evidence that credibly establishes that CNN employees hired during the BSP were performing substantially different or additional tasks than they did for TVS for any significant portion of their workday. Even with regard Ito the photojournalists, the 10 evidence shows that for at least six months after the end of the Team contract, all photojournalists were performing the same work as TVS field technicians for the vast majority of the workday, e.g., Tr. 3938. The same is true for most photojournalists even after the first six months. 15 For studio personnel, CNN also relies heavily on changes in New York after employees moved to the Time Warner Center. It also relies in large part on changes in job duties that occurred a year or more after Team Video's contract was terrninated. However, whether CNN was a successor employer to TVS must be determined by what the employees were doing on December 6,2003 in Washington and January 17, 2004 in New York. On those dates CNN 20 operated as it did the on the days just previous, using both unit employees and Atlanta employees on temporary assignment. CNN continued to broadcast without interruptlon and some of the work done to keep it on the air was done by the bargaining unit employees.152 It is totally irrelevant to the attachment of the bargaining obligation that these employees also received training and that they were assisted by CNN employees from other bureaus.153 25 30 35 40 45 50 On the days immediately following the end of TVS contracts, unit employees did their jobs in precisely the same manner they did it on the last day of the TVS contract with essentially the same equipment, e.g., Tr. 10486-87. However, by May ~!004, all the New York studio employees had moved to the Time Warner Center and were using mostly new equipment. Nevertheless, I credit the employees who actually performed this work that the nature of their jobs changed very little, and opposed to the contrary testimony of CNN managers, who did not perform the work. Moreover, almost all, if not all, of the CNN managers who testitled demonstrated the unreliability of their testimony when discussing the Bureau Staffing Project. 152 The number of temporary duty employees needed was increased by the fact that some nonTVS employees hired during the BSP did not work for the D.C. or New York bureaus in the first week of their employment, and sometimes longer. For example, Ray Britch and Neal Hallsworth had to await the granting of their visas. Khalil Abdallah in Washington was "loaned" back to his former employer, Newsource, during the first week. Jeremy Harlan, Ken Tillis and Daniel King Lopez were also not present at the D.C. Bureau during their first week as CNN employees. 153 I am not aware of any case on facts similar to this one in which the Board or a court of appeals has found an employer not to be a successor emplcyer. In all the cases that I am aware of, in which successorship was not found, there was a hiatus between the operations of the predecessor and the alleged successor, e.g., Georgetown Stainless Mfg. Gorp., 198 NLRB 234 (1972); Cagle's lnc., 218 NLRB 603 (1975); Spencer Foods, 268 NLRB 1483,1485 rev'd in relevant part 768 F. 2d 1463, 1474 (D.C. Cir. 1985); Woodrich Industries, tnc., 246 NLRB 43 (1979). Woodrich Industries, cited by Respondent at page 203 of its brief is also distinguishable, in that Woodrich produced a different product than did its alleged predecessor and sold that product to a different type of customer. 120 JD-60-08 Finally, many of the changes CNN relies upon in argLing that it is not a successor were violations of Section 8(a)(5) of the Act. Respondent was not entitled to unilaterally set the initial terms and conditions of employment due to its illegal refusal 1:0 recognize and bargain with the 5 Union and its discriminatory hiring practices. It cannot rely on illegal unilateral changes to prove it is not a successor, Precision Industries, 320 NLRB 661, 711 (1996). Media Coordinators in New Yot« 10 I specifically credit the testimony of Stacy Leitner and Dennis Finnegan, who worked for both Team and CNN in New York. 154 There is no testimony from anyone who actually performed the media coordinator job at the Time Warner Center that contradicts their testimony. For reasons discussed in my general treatment of witness credibllity, particularly his lack of candor when testifying about the BSP and uncertainty as to what parts of his testimony were 15 based on first-hand knowledge, I decline to take any of Rob Fox's testimony at face value, see pgs. 39, 105 n. 143 herein. 155 Immediately after January 17, 2004, media coordinators did exactly the same tasks that a studio technician performed for TVS, Le., quality control of the incoming signals, tape 20 playback and feeds at the same location, 5 Penn Plaza. 156 After moving to the Time Warner Center in March or April 2004, media coordinators also performed essentially the same functions that were performed by Team bargaining unit members. They ingested most incoming footage onto a computer server, rather than onto tape, and inputted very similar data into the computer that they previously had written on the tape label, Tr. 10486-96, 106~)8,10693-4.157 25 Whether inputting data into the server, or writing on a tape label, the employee was describing incoming material sufficiently for it to be identified by those who might want to use it.158 The media coordinators' file management function was functionally the same as the 30 35 40 45 50 154 Both Leitner and Finnegan had left CNN by the time they testified in this hearing. Therefore, they are not entitled to the deference given to current employees as stated in Flexsteellndustries, 316 NLRB 745 (1995), enfd. memo 83 F.3d 419 (5th Cir. 1996). They might be entitled to backpay for the difference between what they were paid by CNN and the Union's contract. On the other hand, their stake in the outcome of this hearing is far less than that of CNN managers, such as Rob Fox. 155 I also discount statements in performance reviews, or "TPMPs" which are contrary to the testimony of Leitner and Finnegan. These TPMPs were very likely were structured with the instant litigation in mind. For example, Stacy Leitner's dated April 15, 2004, confirms that she was the "main QC person for American Morning," CNN Exh. 358. However, Rob Fox discussed the "editorial aspects" of the media coordinator position and found Leitner somewhat wanting in this respect. I note that CNN did not put on a single employee witness who testified about the "editorial aspects" of their job. As previously stated, I do not credit Fox's testimony generally and specifically about what employees actually did as media coordinators. 156 CNN witness Rob Fox also testified that the QC function of the media coordinators is the same QC function they performed for Team Video, Tr. 10344. It is clear that this was and remains a major part of the media coordinators' tasks. 157 Dennis Finnegan testified that, as a media coordinator, the only change from his duties with Team was that he was entering metadata, Le., identifying information about footage into a computer, as opposed to writing similar information on a label of a box of tape. 158 Dennis Finnegan entered the slug that the producer ~llave him for footaqe. He did not Continued 121 JD-60-08 recycling of tapes performed by Team. While the media coordinator position may have "editorial elements" to it, Tr. 13101, these are an insignificant part of the job. At the Time Warner Center, the media coordinators Sit in two rows in the newsroom. In 5 the first row, there are seven positions where media coordinators ingest incoming signals into a computer server. However, if there is not enough space on the server, the incoming signals are recorded on tape, just as they were in 2003. Incoming signals were also recorded on tape to back up the server. 10 In the second row, the media coordinators perform th,:~ quality control function of checking whether the quality of the material going to air during live shows (e.g. brightness) is adequate. This is same job that TVS employees performed except that at 5 Penn Plaza the incoming signals were recorded onto tape rather than directly into a computer. 15 Media coordinators also type into computer "metadata," the information that identifies the footage. This includes the slug (somewhat like naming a computer file), running time (trt) , source of the footage, whose attention the footage was directed and sometimes an in and out cue for a sound byte. This is very similar information to that recorded on the label of tapes by TVS studio personnel in 2003. 20 CNN's job description of the media coordinator position includes many tasks that some, many or most of the media coordinators generally did not perform. This included editing, tape producing and deciding what footage went on the air. Media coordinators also deleted stale material from the server. However, this was usually done pursuant to strict guidelines from 25 CNN management personnel. Other studio operations CNN operations manager Lou Strauss testified that under Team studio employees 30 tended to rotate through various assignments except the job of technical director. However, Stacy Leitner, who worked as a TVS supervisor in master controP59 on the 22 floor, testified that was not the case in her area. She testified that, "if you were camera, you did camera. If you were an audio operator, you did audio." The only people who rotated were tape operators, who also recorded the incoming material onto tape, Tr. 10524. I credit Leitner with respect to the 35 master control room. CNN witness John Silva corroborated Leitner's testimony with regard to two or three studio employees who he regarded as audio specialists, Tr. '11860-61.160 The interview notes 40 45 50 determine the slug himself. 159 Master Control and Quality Control (QC) are apparently used to refer to the same job by some witnesses. Master Control was also used to refer to studio work generally. 160 CNN documents show that it considered many of the Team studio employees to be specialists or expert in certain areas; for example Troy Mcintyre considered D.C. unit member Adilson Kiyasu's strength to be robo camera; Mike Maltas and other CNN personnel considered Reza Baktar, Howard Lutt, Chip Hertzl and Carolyn Stone to be TD/Director specialists, G.C. Exh. 534, vol. 3, Lutt B# 20465-69; Cindy Patrick noted that Ralph Marcus was a DirectorlTD on the evening shift, Id., Marcus B# 2255. Recruiter Anthony VVilliams deemed Paul Miller to have expertise in audio design, Id., vol. 4, Miller, B# 21439. Williams opined that TVS unit member Jeff Noble worked in numerous capacities at CNN, but was "especially sharp on the audio side of the house," Id., vol. 4, 15089. 122 JD-60-08 of TBS/CNN recruiter Anthony Williams also establishes that many TVS studio operators were considered to have specialties in certain areas, such as audio, e.g. G.C. 523, vol. 1, Greenberg, B#s 17134-36. 5 In this regard, I would note once more that while the General Counsel relied on witnesses who actually performed various jobs for CNN after January 17, 2004, CNN, with the exception of several photojournalists, relied exclusively on management witnesses to establish what various classes of employees actually did. 161 As a general proposition, I find the testimony of those witnesses who performed the jobs credible. For the reasons stated throughout this 10 decision, I decline to credit the self-serving testimony of CNN's managers, unless corroborated by other reliable evidence. Barbara Morrisey worked for TVS on the CNNfn floor (20th) of the New York Bureau. She primarily operated the robotic cameras. However, the TVS supervisors would assign 15 Morrisey other tasks. It is not clear whether they did so pursuant to specific instructions from TVS management, or whether the supervisor determined on his or her own that Morrisey was needed elsewhere. The jobs which TVS employees performed were: technical director, an "A-1" who worked 20 at an audio board; an "A-2" who placed microphones and IFBs162 on guests and the "talent;" stationary (pedestal) camera operators, robotic camera operators, videotape operators, video shaders, who assured that output from every camera was identical: and quality control (QC) personnel and floor director. 25 There is no credible evidence that the tasks of employees working as technical director or a floor director changed significantly after the Team contracts ended in New York or Washington. Under Team, floor director and technical director were assignments given to employees classified as studio technicians. CNN made them separate job classifications. 30 With regard to the studio operations, CNN reorganized and renamed many positions. Nevertheless, the work performed by former TVS employees and those who replaced TVS employees is essentially the same work that was performed by the technicians in 2003. Employees continued to ingest incoming video and audio material and insured its quality. They continued to play an essentially unchanged role in transmitti 11g these signals to air for 35 broadcast. CNN did not rely on these employees to any significant extent to come up with story ideas or make editorial suggestions. Technical Directors 40 Technical Director is the most skilled job in the studio. Not every TVS studio technician performed this task; it was reserved for specialists. Technical directors operated a switcher which transfers incoming signals to air. Technical Directors hired by CNN performed essentially the same tasks as technical directors working for Team. 45 50 161 CNN introduced the performance reviews of numerous employees which contained statements made by these employees regarding their duties. I accord such statements little weight and far less than the testimony of Leitner and Finneg an, since in many cases the declarants were not subject to cross-examination. 162 IFB, intermittent feedback devices, allow the studio with communicate to a reporter in the field. 123 JD-60-08 QC (Quality Control) and Tape Tecnniciens QC operators (aka master control) checked the quality of incoming video and audio signals. Tape technicians checked the quality of tape and played the tape when told to do so. 5 Tape technicians also worked in an area designated as "feeds." In "feeds" the tape technicians ingested incoming signals onto tape. 163 After terminating Team Video, CNN generally assiqned studio personnel to specific tasks on a permanent basis or semi-permanent, i.e., camera operator or QC operator. Studio 10 personnel for CNN performed tasks that were essentially the same as tasks performed for Team, although individual employees may not have performed all the tasks they performed for Team. This has no bearing on CNN's status as a successor employer. Floor Directors 15 The floor directors or floor managers under Team and CNN were basically stage hands, performing such tasks as giving the on-air talent their cues and telling guests where to sit. They also moved chairs and props in the studio and kept cables out of the way so that the cameras would not get entangled with them. The A-2 tasks may have been performed by the TVS floor 20 managers. CNN floor directors performed one of the same functions that Team employees had performed. Audio Designers in New York 25 As CNN's own witness, John Silva, testified, the CNN position of audio designer is the same job as that of a Team Video audio technician or "A-1", Tr, 11854-55. ThE~ jobs they perform serve the exact same function. As of January 17, 2004, five of the six audio designers in New York were former TVS audio techs. As the year progressed the nature of their job did not change; they merely performed it with much more sophisticated equipment. 30 As mentioned earlier, CNN hired six audio designers in the Bureau Staffing Project. Five of these employees had been TVs bargaining unit members. The one nonTVS audio designer hired by CNN, John Hamilton, was fired for poor performance in April 2004. He was replaced by Paul Bernius, a former TVS employee, CNN Exhs. 543 & 545. 35 Audio Designers employees sit in a control room, monitor audio levels and play music from a computer server on cue from the director. These are essentially the same tasks TVS employees performed. However, they now use a digital audioboard rather than an analog board. When the digital audioboard was installed, the rnarur'acturer provided extensive training 40 to CNN's employees. Audio Designers and Studio Operators in Washington CNN hired former TVS studio personnel to do the same jobs on the day following the 45 end of the TVS contract in Washington that TVS unit members performed the previous day. This is established in part by emails between Robert Jackson, CNN Operations Direction in D.C., and Bob Hesskamp, Senior Vice-President for technical operations in Atlanta, dated November 18, 2003, G.C. Exh. 534, vol. 1, Bacheler, B# 17029. 50 163 In Washington, the employees in the "feeds" area we-ked directly for CNN and were not members of the bargaining unit. 124 JD-60-08 Hesskamp asked Jackson to call him to discuss "the schedules for the shows we have to do on the transition weekend." Jackson responded: 5 ...Attached you will find a copy of all the shows that we need to staff. Just added and not on the list is weekend Inside Politics. It starts Sunday Jan. 3, 2004 from 1Oam-11 am. However, if Late Edition is in Atlanta that week we won't have to worry about it until the following week. 10 If we could extend offers to the following peoplle it would make the transition far more smoother because of their knowledge and understanding of the plant and the shows ... Let me know what you think. Audio John GUh 15 Cam Mike David QC Brenda Elkins Video David Bacheler Dir. Reza (sic) Baktar Dir. Conrad Hirzel 20 TO Dan Taylor TO Lori Jennings The job of the audio designer in Washington during the year 2004 hardly changed at all from the audio tasks performed by studio technicians under Team, see, e.g., testimony of Peter 25 Mohen at Tr. 14044-45; 14074-76; testimony of Paul Miller all 14381. 164 Unlike New York, audio designers in D.C. continued to use the analog Wheatstone audio boards until sometime in 2005, Tr. 14533. The tasks performed by the studio operators also changed very little, if at all, particularly in the year immediately following the end of the Team contract, e.g., testimony of David Bacheler at Tr. 14207. 30 CNN's also contends that the jobs of studio personnel has materially changed due to their "editorial involvement" in CNN's shows. The record does not support this contention, and certainly does not support the contention that there was any material change during the first year after the Team contract ended. For example, the testimony of CNN Audio Designer Paul 35 Miller establishes that his "editorial involvement" was not materially different than that when he worked for Team. He credibly testified that," even when I WHS working for Team Video, I've always pitched ideas or interviews or subjects that I thought would be good to cover," Tr. 14430. The testimony of Peter Mohen establishes that Team personnel also selected music for CNN shows, Tr. 14076. 40 Alleged changes in the jobs of the photojournalists CNN contends that the job of its photojournalists is a different job than that of a camera operator or field technician who worked for Team. The difference between the jobs according to 45 CNN is that they are now "journalists," who are part of the editorial process. This is so CNN argues, because they now "pitch" stories to be covered and edit video. CNN photojournalists work alone, i.e. as a "one-man band" far more frequently than they did with Team. However, in Washington, for Team, camera operators worked as a "one-man 50 164 There was apparently some use of the Enco server in 2004. 125 JD-60-08 band" on about one-third of their assignments, Tr. 3763. The circumstances under which a camera operator would work alone were an issue of contention between Local 11 and Team in New York. 5 Laptop editing in the fiela' Immediately after the end of the Team contracts, the CNN photojournalists did the same work that the TVS camera and audio technicians performed wrth essentially the same equipment, e.g., Tr. 5521-23, 9654. That is the point at which the issue of whether CNN is a 10 successor employer must be determined. Indeed, most of their work is still performed with the Sony SX camera as it was in December 2003. After December 6, 2003, in Washington, and January 17,2004, in New York, photojournalists were almost immediately given access to Apple G4 laptop computers and given training on how to edit on these computers with Final Cut Pro software. However, many, if not most or all, the CNN photojournalists did little or no editing 15 through mid-2004 and some still do little or no editing in the fiield. There are however, several photojournalists that since the fall of 2004 have spent much or most of their time covering assignments outside of New York and Washington for which they have done substantial laptop editing. CNN has covered the Iraq War primarily with 20 photojournalists from New York, Tr. 11,585, 11,656-58.165 This change may be the result of outsourcing by CNN of the work formerly done by bargaining unit employees. I infer this from the following testimony of Daniel Meara, who worked for Team and is now the photojournalist manger for eNN's New York Bureau: 25 30 35 40 45 50 What happened to the coverage in New York? It sounds like everybody was out traveling. A. Well, not everybody. We could still cover New York. But the way CNN covers the news has changed through the years. We don't really cover the local news in New York the way we used to. Back in the Team days, we covered it more because we had so many people here and available and we would cover a news conference at City Hall with a Team crew or a Team photojournalist as opposed to now where we might just take in a feed from a local affiliate. So we are not covering it the way we used to. Tr.11581. 165, Indeed, it appears that what CNN has done to some extent is shift its staffing of international stories from its overseas bureaus to New York, and possibly Washington, as well. Several New York photojournalists, such as Neil Hallsworth and David Allbritton, both of whom worked for CNN overseas prior to January 2004, appear to spend very little time in New York. CNN has never contended that it failed to hire many TVS field technicians because they were unwilling or unable to travel. Sarah Pacheco, who it failed to hire, and other Team camera operators spent considerable time covering the D.C. sniper trial in the Virginia Beach area. TVS camera crews from New York also spent over a month covering the Skakel trial in Connecticut. 126 JD-60-08 CNN also has reduced to amount of Washington, D.C. work covered by the photojournalists in the D.C. Bureau. As a result they travel far more than they did with Team, Tr. 6293. 166 5 "Editorial Involvement, "i.e., pitching or suggesting' stories for CNN to cover As to pitching stories, CNN witness Matt Speiser testified that prior to December 6, 2003, in Washington, there was nothing that prohibited Team camera operators from talking to CNN producers about a story or how things should be done differently, Tr. 3937-38. Speiser 10 also conceded that Team camera operators did offer their opinions on how things should be done. An example of Team camera operators participating 'editorially" was provided by witness Greg Robertson. In September 1998, Robertson and James Cook were assigned to 15 cover the end of Cal Ripken, Jr.'s consecutive game streak. At the end of the !~ame, the reporter and producer wanted to leave the stadium (Baltimore's Camden Yards) immediately. Robertson, who was more familiar with baseball, insisted that the reporter, producer, he and his partner go to the locker room for post-game interviews, Tr. 6989. 20 Assuming that CNN photojournalists may have greater latitude to express their opinion as to how their job is performed than did Team field technicians, their tasks are materially unchanged. If there is any difference of opinion as to how a scene should be photographed or recorded, they do as they are told by CNN reporters and producers. Although, they have been encouraged to suggest or "pitch" stories for CNN to cover, it was rare for most of them to do so 25 even in 2008. There is no evidence that this was a material part of their duties in early 2004. CNN was certainly not relying on the photojournalists to initiate story ideas to any material extent. Even Respondent's rank and file witnesses: Hallsworth, Garrison, Schantz and Abdallah, identified no more than a handful of stories they had "pitched" to CNI'J. 30 The testimony of some CNN photojournalists regarding the nature of their jobs under Team and CNN is as follows: Washington 35 David Jenkins Jenkins was hired as a full time photojournalist in July 2004. Since then he has "pitched" two stories, Tr. 4589. He has never been told that there is a number of stories he is required to "pitch." Jenkins performs his job in essentially the same rna-mer as he performed it for Team; 40 he has edited with Final Cut Pro only a few times, Tr. 4628. Tim Garraty 45 50 Tim Garraty did no nonlinear editing in 2004 outside of the classroom and has done little to none since. Since he has been employed by CNN, Garraty has "pitched" 2·-3 stories. He also suggested stories to CNN personnel when he worked for TVS and Potomac, Tr. 13802. 166 CNN has also used its staff to do work for Newsource since ending the TVS contracts. For example, photojournalist Desmond Garrison was working for Newsource, not CNN America, when covering Hurricane Katrina in 2005, Tr. 11,729-30. Doug Schantz was working for Newsource when he covered Mardi Gras in 2006, Tr. 15718. 127 JD-60-08 John Bodnar Since he was hired by CNN, Bodnar has pitched several stories and has used Final Cut 5 Pro on the job three times. He has asked interview questions while working as a photojournalist for CNN, but he also did that when he worked for contractors at the D.C. Bureau, Tr. 13587. 13673-73. Doug Schantz 10 Doug Schantz was one of only two or three rank and file D.C. photojournalists called as a witness by CNN to testify about his job duties since December 6, 2003. His testimony lends support to the General Counsel's contention that in 2004, CNN photojournalists did little that was different from what Team camera operators had done the year before. Schantz edited from 15 the field while covering John Edwards' Vice-Presidential campaign in fall of 2004, Tr. 15,691. While covering Edwards, Schantz edited two pieces, Tr. 15,6!99-17,701. The second piece was shot and edited in Chautauqua, New York in October 2004. 1G7 He also performed some field editing in August or September 2004 while covering Hurricane Charlie. The piece was transmitted via a microwave truck, not with DNG techniques. 20 25 30 35 40 45 50 Schantz testified to only a few instances of field editinq in 2005 until he went to CNN's New Orleans bureau from October-December of that year. CNN did not elicit from Schantz any specific testimony regarding his coming up with story ideas for the network, Tr. 15710-11.168 Schantz's definition of a "story pitch" appears to be no more than informally exchanging ideas with reporters and producers, Tr. 15745. For all the high praise contained in Schantz's TPMPs, there is no indication that CNN is depending on him to come up with story ideas. Schantz has done substantially more field editing since 2006 than he did prior to October 2005. Schantz also made it clear that when he works with a reporter, the reporter has the final say as to what goes into a package. He confers with the reporter before he beqins editing and makes whatever changes to the package the reporter wants, Tr. 15,689-70. HE3 also confers with reporters and producers before asking any questions in an interview, Tr. 15,742-43.169 On a couple of occasions, Schantz has conducted interviews wit 'lout a producer or reporter present. The most notable incident was in 2006 when he was able to get to Point Barrow, Alaska, and the reporter and producer were not.170 167 Schantz does not know if the Chautauqua piece aired. 168 In his April 2005-February 27, 2006 TPMP, Schantz stated that in the past year, "I have pitched stories which were picked up by shows, interviewed subjects on my own ... " However, he gave no specifics and Ben Coyte, his reviewer, made no mention of this other than commenting that Schantz was "editorially aware," CNN Exh. 1370. 169 Team field technicians also asked questions of persons being interviewed by CNN prior to December 6,2003. When he worked for Team at the D.C bureau, CNN photojournalist Robert "Geoff' Parker would ask questions of a person being interviewed by CNN, "if something piqued his interest," Tr. 7148. Team Video camera operator Sarah Pacheco told CNN hiring manager Matt Speiser during her BSP interview that while covering the Virginia Beach sniper trial, she was running and asking questions while staking out attorneys, G.C. Exh. 228, vol. 2, B# 26527, Tr. 6758-59. There is no indication that Speiser did not take Pacheco's statement at face value. 170 At his interview during the BSP on October 28,2003, Team Video cameraman Brian Yaklyvich told CNN hiring manager Matt Speiser that he shot and conducted an interview on his Continued 128 5 10 15 20 25 30 35 40 45 50 JD-60-08 Bethany Chamberland Swain Bethany Chamberland Swain, who has occupied a management or quasl-manaqement position for the past three years, testified at length about the number of stories she has pitched (or suggested) since she was hired by CNN on December 6, 2003. She also testified about pieces that she has produced, written and edited. Swain was a director/editor at Newsource before being hired at CNN; she was not primarily a photographer. After she was hired by CNN Swain continued to keep her hand in directing and editing, as well as in producing and writing, in addition to her duties as a photojournalist, Tr. 15440. In October 2006, Swain went to Afghanistan as a producer, Tr. 16,023. While in Afghanistan, she shot half a of piece entitled "Soccer Fridays," which she also wrote, edited and produced.!" Swain testified that in 2007, while covering the Anna Nicole Smith story in Florida, she was working primarily as a producer. There is no evidence that a photojournalist was or is expected to write or edit scripts. Swain was the only photojournalist that Steve Redisch could recall editing her work at the bureau, rather than out in the field, Tr. 5597. Although he was the Deputy Bureau Chief in 2004, Redisch appeared to be only vaguely familiar with the pieces Chamberland/Swain edited, Tr. 5699. John Bodnar testified that he often sees Swain editing at the bureau, Tr. 13572. Swain testified to pitching approximately 40 stories; 30 of which have been aired by CNN. For one thing, there is no evidence that this constitutes any more than a miniscule portion of her work for CNN in the last four and a half years. David Jenkins testified that he does 20-30 shoots per month as a photojournalist, Tr. 4629. Assuming that CNN was actually using Swain as a photojournalist, I would expect that she did a similar number of shoots. There is no other evidence as to how many shoots per month other photojournalists perform. If ,Jenkins' work is even close to representative, 40 pitched stories amounts to approximately 4% of the work a photojournalist has performed in a period of 4 Y2 years. A significant portion of Swain's pitching, writing, producing and editing work appears to have been done for CNN's weekend editor Sharona (not Shwana) Schwartz. This also strongly suggests that her writing, producing, editing and "pitching" was done in addition to her regularly assigned tasks. The other rank and file employees called as witnesses by CNN testified to only a few examples of pitching stories. Swain testified to only two occasions when she saw another photojournalist working on their own story for the weekend editor. own for CNN in the absence of a producer or correspondent, G.C. Exh. 543, Vol. 4, B# 14989. Although I deem this statement to be hearsay, it has some probative value in that Speiser, an agent of CNN, apparently credited the statement and relied upon it in evaluating Yaklyvich. Speiser gave Yaklyvich all 5s (the highest rating) in all categories, Id., B# 149~14. CNN hired Yaklyvich in the BSP. Similarly, Team cameraman Jerry Thompson told intervtewer Steve Redisch on October 20, 2003, that on one occasion he went to Virginia Beach to shoot a story about a cruise liner. When the CNN reporter got sick, Thompson and his partner did the interviews and then fed the information and tape to Atlanta. Redisch, like Speiser, apparently credited Thompson's account and gave him all5s in the interview rating categories, G.C. Exh. 543, Vol 3, B#s 16212,16217. CNN hired Thompson. 171 Abdallah's 2007 TPMP indicates that Swain was spending a significant amount of time working as an assignment editor, CNN Exh. 676, B# 156007'. 129 JD-60-08 There is no credible evidence that when Swain performed the normal work of a photojournalist that she did anything substantially different than Team camera technicians did for at least 95% of her working hours. In fact it is unclear how much of the time in the last couple 5 of years Swain has worked as a photojournalist. Like Craig Fingar in the engineering department, Swain has done a lot of work that is not part of the job for which she was hired. Khalil Abdallah 10 Khalil Abdallah testified to a number of occasions on which he either edited video in the field or transmitted material via his computer using File Transfer Protocol (FTP) or via satellite with a BGAN. CNN presented Abdallah as a witness to prove how much the photojournalist's job differs from that of a TVS cameraman. However, his testimony shows how rare it was for photojournalists to use DNG techniques (laptop editing, FTP, satellite transmission with a 15 BGAN) throughout 2004 and even later. Abdallah edited one seven and a half minute piece early in 2004 while covering presidential debates in New Hampshire and transmitted the piece via satellite truck, Tr. 15,782- 83. On two occasions in 2004, while travelling with then Secretary of State Colin Powell, 20 Abdallah transmitted material via FTP, but did not employ laptop editing, Tr. 1EI,785-89. Abdallah transmitted material to Atlanta while covering the Bush campaign in 2004, but did not testify to doing any editing. CNN counselled Abdallah to testify that he edited a story for Andrea Koppel on a G4 25 laptop at the D.C. Bureau, not in the field in 2004, Tr. 15,792-93. However, Abdallah's testimony and CNN Exh. 674 indicate that this occurred after April 11, 2005, Tr. 15,809. 172 Sometime in late 2004 or early 2005, he mayor may not have edited a four minute piece in the field in South Carolina, Tr. 15,796-97, CNN Exh. 656. Abdaillah's testimony thus indicates only a few occasions in 2004, 2005 and 2006, when he used any DNG techniques and only a 30 handful of occasions when he edited in the field using laptop editing, Also see CNN Exh. 674, p. 1,4 and 5. In his TPMP for April 11, 2005 to February 27, 2006, Abdallah wrote, "I was able to edit a few PKG's [packages] this year and I take pride in that bec[ause] here in DC we don't get the 35 chance that much ... ," CNN Exh. 674.173 This review gives no indication of any "editorial involvement" on the part of Abdallah. For example, there is '10 mentioning of his pitching stories and Abdallah did not testify about any stories he "pitched" to CNN. The White House Crews 40 45 50 Team assigned four two-man crews to the White House on a fairly permanent basis. CNN hired all these crew members. In fact, there is evidence that CNN decided to hire them before the BSP interviews got underway, Tr. 6203-04. The work for the White House crews did not change at all when the Team Contract ended. These photojournalists did not do any laptop computer editing, Tr. 6256-57, nor did they pitch many, if any, stories. 172 Abdallah's partner on this occasion was Martin Dougherty, so the story could not have been shot early in 2004, as Abdallah testified at Tr. 15835. Abdallah did not start working with Dougherty until mid 2004 at the earliest, Tr. 15,777. 173 Abdallah cut and pasted the same paragraph into his Jan-Dec. 2006 TPMP, CNN Exh. 675. 130 JD-6iO-08 New York Richard Shine 5 His job is "pretty much the same job. It's just that I'm able to edit and I have editorial say now. I can talk to reporters and producers and discuss the packages with them," Tr. 9560. Also see Tr. 9654-55. However, Shine sometimes offered suggestions as to how stories should be shot when he worked for Team, Tr. 9580-81. 10 In 2004, Shine did not do any editing. Since then he has edited 24-36 packages, much of it in 2006, Tr. 9558-59; 9620, 9647. He has never pitched a story to CNN, Tr. 9636. Steve Machalek 15 Steve Machalek edited two stories in 2004; both of thl3se were done for CNN en espanol apparently in the Bureau rather than in the field. He had edited only once since then for air, Tr. 9700. 20 Machalek has suggested or "pitched" stories to reporters and producers. However he could not remember the last time he did so. Moreover, Machalek was not aware of any obligation for a photojournalist to suggest stories, Tr. 9702. None of the stories he has pitched have been aired, Tr. 9743. When he worked for Team, Machalek made suggestions as to how a story should be shot, Tr. 9720. 25 Thomas Miuccio Miuccio did not do any editing for air in 2004 and 200:5, Tr. 9775. In the four years he was worked for CNN, Miuccio has "pitched" three stories; one of which was 30 aired, Tr. 9777. When working for Team, Miuccio did a video essay of the pictures he shot. He helped write the script and did the voiceover, Tr. 9785. 35 Miuccio made suggestions to producers and reporters as to how a scene should be shot when worked for Team and after CNN hired him, Tr. 9808-0R Daniel Meara 40 Daniel Meara is now CNN's photojournalist manager at the New York Bureau. His testimony also establishes that the job of CNN photojournalist is not materially different from that of a Team field technician: Did you pitch stories when you worked at Team? 45 A. No. Q. As a Team cameraman, was it your understanding that you were expected to contribute editorially to a story? A. Was it expected, no. Q. Did you? 50 A. Occasionally. Q. What did you do? A. Well, if I was out to shoot a story 131 5 10 with a reporter or producer and I felt I had a little input, I would feel comfortable talking to them about what I thought the story was about and maybe ways that we could do a better job than they had planned. Q. In terms of shooting? A. Shooting for the interview, who to interview, who would be good to interview for a certain story. Q. Did you do that frequently? A. Yes. Tr. 11547-48. Also see Tr. 11549. JD-60-08 15 Meara's testimony is consistent with a July 15, 2002 memorandum from Team's General Manager in New York, Rick Cohen, to Team field technicians•. Cohen told his employees that "your input in the field is important. And your suggestions are welcome. The idea here is to help you share your creativity with your editorial counterparts and help make the output of this bureau even more distinctive," G.C. Exh. 483. 20 There is no evidence that Meara did extensive editing in calendar year 2004, Tr. 11571-73. Neil Hallsworth 25 Neil Hallsworth was a cameraman and video tape editor for CNN International in London until he was hired as a photojournalist in New York during the Bureau Staffing Project. The start of his employment in New York was delayed until February while he obtained a visa. 174 Prior to coming to New York, Hallsworth had experience editing in the field with Final Cut Pro and transmitting his video packages via satellite. He began learning FCP in 2001 by watching 30 others edit; he had little formal training. Transmitting by satellite with a BGAN device is, according to Hallsworth, "fairly simple." Tr. 11634, 11642. 175 In the September 2004, CNN Hallsworth covered Hurricane Ivan in Jamaica and then went to cover the Iraq War in November 2004. Since late 2004, Hallsworth has done relatively 35 little work in New York. For example, in 2005,75% of Hallsworth's duties were performed outside of Metropolitan New York, Tr. 11675. In 2006, Hallsworth only worked in Metropolitan New York for a few weeks, Tr. 11,678-79. In 2007, Hallsworth spent at least 10 months of the year working outside of New York. While it's not clear which of the New York photojournalists' work is typical; it's clearly not Hallsworth. 40 45 174 Pelin Sidki, a freelance photojournalist from London, did not start work in New York until April 26,2004, according to CNN Exh. 544. Ray Britch, a photojournalist in D.C., also had to wait several weeks to work in the U.S. while his visa application was processed. Britch and Hallsworth attended the initial two day orientation and but did not start work until they obtained visas. 50 175 CNN DNG trainer Ben Coyte also testified that the BGAN is "a very simple tool to use," Tr. 15,504. 132 JD-60-08 Desmond Garrison Desmond Garrison was the last full time field audio technician hired by Team. He was also the last person on the list of photojournalists to whom CI\lN offered a position. When 5 working for Team, Garrison did very little camera work; other audio technicians did more. That Garrison has become an "excellent photojournalist" accordinq to Deputy Bureau Chief Edith Chapin, is another indication that CNN did not have to hire new people to perform the tasks of a photojournalist. Garrison has travelled a lot but there is little evidence that he did much, if any, editing in the field until 2005 or 2006. He could only cite one example of "pitching" a story, 10 which occurred in 2005; it did not air on CNN. The Media Coordinator Position in Washington The media coordinator position in Washington was not created until sometime after 15 2004, Tr. 12,505. Thus, these employees cannot be considered part of the CNN bargaining unit in D.C. when CNN became a successor employer to Team Video in December 2003. Engineers 20 The engineers also do essentially the same work that TVS engineers performed. In New York, with the move to the Time Warner Center, much of the equipment they work on is different. However, this equipment serves the same purposes that it did in 2003, ingesting video and audio, transmitting video and audio so that it can used on the air. The fact that this equipment is now digital, Le., computer based, does not alter the fact that the essential tasks of 25 the engineers are the same. The changes in employees' job situations after the Team contracts ended were not sufficient to negate CNN's status as a successor employer to Team Video 30 While the Board considers the totality of the circumstances when determining if an employer is a successor, hiring a majority of the predecessor's employees is central. Pennsylvania Transformer Tech., Inc. v. NLRB, 254 F.3d 2H (D.C. Cir. 2001), enforcing 331 NLRB 1147 (2000). In assessing these factors the Board has traditionally held that changes in the employing entity will not terminate the successor's obliqation to bargain unless "the 35 employee's job situation is so changed that they would change their attitude about being represented." In assessing whether Respondent is a successor, the analysis must focus "not on the continuity of the business structure in general but on the parties' operations of the business as they affect the members of the relevant barqaininq unit." Food & Commercial Workers Local 152 v. NLRB, 768 F.2d 1463, 1470 (D.C. Cir. 1985), enforcing in part, denying 40 in part, remanding in part 268 NLRB 1483 (1984). The Board has repeatedly held that minor alterations in employees' job duties do not change their working conditions sufficiently to alter their attitude towards union representation. In this case after the termination of the Team Video contracts, the former TVS employees 45 continued to gather the news, operate the studio equipment and maintained and repaired that equipment. The photojournalists went out of the same type of assignments they covered for Team Video; Le., stakeouts, press conferences and interviews. The fact that they did so with equipment that was constantly being upgraded with an intention to create an entirely digitalized operation has no relevance to whether or not they would still be interested in being represented 50 by NABET. 133 JD-60-08 The changes in these employees' duties and responsibilities, particularly in the six months following the end of the TVS contracts were relatively minor and also insufficient to defeat successorship, Marine Spill Response Corp., 348 NLFi:B No. 92 (2006), slip op. pp. 6-7. 5 The supervisory issue Under Team Video a number of bargaining unit employees were designated as "supervisors." In Washington, these employees received a 7.5% increase in salary when they were acting as supervisors. In New York, these "supervisors" received a 15% increase when 10 working as a supervisor. In Washington, the "bargaining unit supervisors" in December 2003 were studio employees, Reza Baktar, "Chip" Hirzel, Ralph Marcus, Brenda Elkins and Carolyn Stone. In New York there were two "supervisors' in the TVS enqineerinq department, William 15 Greene, who was hired by CNN, and Robert Cummings, who was not hired. 176 In the studio operations department, TVS had a number of bargaining unit employees who were permanent supervisors: Don Walden, Stacy Leitner, Robert Strano, Lawrence Van Patten and Samuel Sawyer, who were hired by CNN and Aspry Jones, Ed McShea and Mary Theodore, who were not. In addition, some employees worked and were paid as supervisors when the permanent 20 supervisors were on leave or at lunch, such as Dennis Finnegan. 177 Finnegan described the status of TVS New York "supervisors" as follows, at Tr. 10743- 44: 25 30 35 40 45 50 really a supervisor was somebody who could do most or all the jobs, so they became a supervisor and they could keep an eye on everything. And if they 176 Although, Cummings did not receive notice that he held not been hired before he accepted another job, I conclude that he was constructively discharged or was a victim of a constructive refusal to hire, and thus due a make-whole remedy, First, the burdens imposed upon the employes must cause, and be intended to cause, a change in his working conditions so difficult or unpleasant as to force him to resign. Second, it must be shown that those burdens were imposed because of the employee's union activities. Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (197G). CNN would not let Cummings know whether or not he would have a job with CNN nine days before the TVS contract ended after he informed CNN that be had received a job offer. Cummings told CNN that he received an offer from the Disney Channel in Florida but preferred to stay at the CNN Bureau in New York. I conclude that CNN did not tell Cummings his status either because it had no intention of offering him a job or wanted him to take the Disney job and thus reduce the number of TVS bargaining unit employees it would hire. 177 Finnegan worked mostly as a supervisor with Potomac Television prior to 2002. With TVS he worked much less as a supervisor because he was normally assigned to the New York Stock Exchange. CNN did not establish that Finnegan spent a regular and substantial portion of his work time while working for TVS performing supervisory functions. Thus even if the regular bargaining unit supervisors were statutory supervisors, CNN has not established that Finnegan and other part-time supervisors met the Section 2(11) criteria, Oakwood Heelibcere, Inc., 348 NLR B No. 37 (2006) at slip opinion page 9. 134 JD-60-08 needed to jump in or they needed to point something out, they would be right there involved... [the supervisor's] particular spot was supervisor. The bargaining unit supervisors were thus to some extent hands-on utility employees. 5 With regard to a supervisor's scheduling responsibilities, Finnegan testified at Tr, 10835-86: Well, as a supervisor you needed to have enough people on the production team to produce that show. So you needed a cameraman, you needed an audio operator, two floor directors, tape technician, QC and video engineer. 10 So you would look at the schedule, and because I worked with them so often, I knew who had what skills and who could do what. And I also have to give them a lunch break. So if somebody did video engineering for the whole day, I would give him lunch and replace them for that hour with someone who could do it during lunch break. 15 Q. How did you know who was working on the day you were making the schedule? A. The Team Video manager provided me wtth a schedule a week in advance and then updated it if somebody was not in that day. 20 TVS set forth the duties of bargaining unit shift supervisors for the studio in Washington in a memo dated January 7, 2003, CNN Exhibit 103; also sel3 CNN Exh. 649. According to this memo, a bargaining unit supervisor was to notify TVS rnanaqer Mike Marcus when somebody called in sick, make a note of employee mistakes and call the engineering department if equipment needed repair. However, in practice, the duties ot bargaining unit supervisor were 25 much more limited, Tr. 5303-07, 15367, 15393-94. Employees were scheduled daily by TVS managers. TVS studio manager Mike Marcus corroborated ,Jimmy Suissa's testimony that generally the bargaining unit supervisors called Marcus if an employee was sick. Marcus would either call in a replacement, tell the supervisor how to rearrange the schedule, or have the supervisor rearrange assignments on their own, Tr. 15367. 30 CNN claims all these employees were statutory supervisors within the meaning of Section 2(11) of the Act and therefore they cannot be consiclered TVS bargaining unit members for determining successorship. Moreover, none of these employees would be entitled to either back payor reinstatement if they are supervisors. This wou Id be so even though I conclude that 35 CNN did not hire several of these individuals primarily, if not solely, because it was concerned that they would be considered part of both the TVS and CNN bargaining unit. Team had more management level personnel than did its predecessor, Potomac Video. Thus, even if the bargaining unit "supervisors" were statutory supervisors while working for 40 Potomac, they were not necessarily statutory supervisors wnile working for Team. Team management played a much greater hands on role in directing the technical workforce than did Potomac. For example, in New York, Team hired a rnanaqer, Ed Delauter, who was an intermediary between the bargaining unit supervisors on the one hand, and CI'JN and Team's general manager on the other. 45 TVS' studio management prepared a weekly schedLie which informed the bargaining unit supervisors as to which employees would be available 1:0 work in their areas. The TVS supervisor then decided which employees would work at which tasks, i.e., who would operate the pedestal camera, who would operate the robotic camera. 178 Moreover, at least in some 50 178 Dennis Finnegan testified that supervisors made assignments "with the guidance of a Continued 135 JD-60-08 areas of the bureau, TVS employees were generally assigned to tasks on a permanent or semi- permanent, such as camera and audio, e.g., Tr. 10524. In the engineering department in New York, TVS' manager Ed Delauter prepared the 5 work schedule for bargaining unit employees and assigned them long-term projects, The bargaining unit supervisors, Bill Greene and Bob Cummings, were responsible for the moment to moment assignment of personnel or short-term projects. They made these assignments on the basis of which employees were available and their assessments of various employees' skills, Tr. 13069, 13082, 13085" 13090, CNN Exh. 501. 10 Section 2(11) of the Act defines "supervisor" as any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the 15 exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. In a series of decisions issued on September 29,20013, the Board expounded on what constitutes the responsibility to direct employees, to assign employees and when the exercise of 20 such authority requires the use of independent judgment, Oakwood Heelthcere, Inc., 348 NLRB No. 37; Croft Metals, Inc., 348 NLRB No. 38; Golden Crest I-Jealthcare Center, No. 39. With regard to the TVS bargaining unit supervisors, the only real issue is whether they are statutory supervisors by virtue of their authority to assign oth 13r employees to tasks.F? They clearly are not supervisors by virtue of their authority to direct other employees in that there is 25 no evidence that there were held accountable by TVS manaqement for the performance of other employees, Oakwood Healthcare, Inc., slip op. at 7.180 The Board stated in Oakwood Hea/thcare at slip op. ·4 that, "we construe the term "assign" to refer to the act of designating an employee to a pllace (such as a location, 30 department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee. That is, the place, time, and work of an employee are part of his/her terms and conditions of employment." 35 40 45 50 manager." Tr. 10739. Any substantial gUidance in this regard would negate any finding of "independent judgment" on the part of the supervisor in making assignments. 179 Bargaining unit supervisors did not have authority to discipline or hire, or effectively recommend that TVS hire employees, Tr. 11286, 11299. 180 CNN has the burden of proving that the TVS bargaining unit "supervisors" are statutory supervisors. It has presented no evidence that these individuals had the authority to hire, fire, discharge or discipline other employees or to effectively recommend such action. The Board defines the power to effectively recommend as meaning "that the recommended action is taken with no independent investigation by superiors," ITT Corp., ~!:65 NLRB 1480, 1481 (1982), Wesco Electrical Company, 232 NLRB 479 (1982). At page 21 of its reply brief, CNN notes that Team removed several individuals, Jimmy Suissa, Joe Mosley and Ed Scholl, from the bargaining unit supervisor position. There is absolutely no evidence that these individuals were being held accountable for the performance of other employees. Suissa was relieved due to an altercation he had with freelancer Joe Wade. Mosley was relieved because of what Team and CNN regarded as his own misconduct. There is no evidence as to why Scholl was relieved from his "supervisor" position. 136 JD-60-08 There is no evidence that the bargaining unit supervisors in the engineering department of the New York Bureaus (Cummings and Greene) had such authority. TVS' April 2, 2002 memo regarding bargaining unit (shop) supervisors states that they "will be responsible for the moment to moment assignment of personnel and other duties as needed," CNN Exh. 501. Ed 5 Delauter, the TVS engineering manager, prepared the work schedules, Tr. 13085. Before Team demoted Ed Scholl from the position of bargaining unit supervisor in June 2002, Delauter gave out long-term assignments and Scholl assigned "day-day, short-term, trouble calls," Tr. 13090. Cummings and Greene also on occasion directed employees to stay late to finish a task, 10 but only if CNN approved their recommendation for overtime work. Their recommendation that an employee stay late to complete a task that reasonably should be finished does not require the exercise of the sort of independent judgment that makes ian employee a statutory supervisor. 15 In the studios, TVS management assigned employees to a shift and a particular studio. The bargaining unit supervisors then decided, for example, whether a particular employee would operate the robotic camera or the audio board. They made such assignments based on their judgment as to which of the assigned employees performed better at a specific task. Assigning employees according to their known skills is not evidence of independent judgment. 20 Shaw, Inc., 350 NlRB No. 37 (2007); Volair Contractors, Inc, 341 NlRB 673, 1575 fn. 10 (2004); S.D.I. Operating Partners, L.P., 321 NlRB 111(1996); Brown & Root, Inc., 314 NlRB 19, 21-22 (1994).181 Keeping in mind the Congressional intent in drafting Section 2(11), I conclude that the 25 TVS bargaining unit "supervisors" are not statutory supervisors. The Board in Oakwood Healthcare noted at slip opini on p. 3, that: Both the drafters of the original amendment and Senator Ralph E. Flanders, who 30 proposed adding the term "responsibly to direct" to the definition of supervisor, agreed that the definition sought to distinguish two classes of workers: true supervisors vested with "genuine management prerogatives," and employees such as "straw bosses, lead men, and set-up men" who are protected by the Act even though they perform "minor supervisory duties." NLRB v. Bell Aerospace 35 Co., 416 U.S. 267, 280-281 (1974) (quoting S. Rep. No. 105, 80th Cong., 1st Sess., 4 (1947)). Thus, the dividing line between these two classes of workers, for purposes of Section 2(11), is whether the putative supervisor exercises "genuine management prerogatives." 40 I conclude that the degree of discretion exercised by the TVS bargaining unit "supervisors" in assigning work is insufficient to deem these individuals to be supervisors within the meaning of section 2(11). By no stretch of the imagination did these employees exercise "genuine management prerogatives," Tr. 11240-41. 45 181 The Shaw decision makes it clear that the Board in Oakwood Healthcare, Croft and 50 Golden Crest was not overruling earlier decisions regarding this type of an employee's authority to assign work. 137 JD-60-08 Dennis Norman was not a statutory supervisor CNN also argues that Dennis Norman, the TVS engineer who was the "engineer in charge" on CNN's production truck at George Washington University, was a statutory 5 supervisor, and thus not protected by the Act from CNN's discriminatory refusal to hire him. Norman's testimony at Tr. 3124-5 makes it clear that the kinel of direction that Norman gave to other TVS employees did not involve the type of independent judgment to make him a supervisor under Section 2(11) of the Act. 10 Q. You said eight to 12 people worked for you? A. Yes, um-hmm. Q. I mean, these were camera people, sudio people, the field techs, correct? A. Yes, um-hmm. 15 Q. They worked for you? A. Well, it's not a matter of they worked for me, when they -- when they stepped on the George Washington University site, then all their direction came from me. Q. What do you mean all their direction? 20 A. As far as -- as far as what time they would be on camera, as far as when to be on set before the show, as far as, you know, anything that involved actual production, that, you know, I was -- I was thei r' on-site -- basicailly I was their on- site supervisor. Q. I see. And you told them where to go and what to cover? 25 A. Well, we covered the George Washington -- the Crossfire show. So, if it came down to, you know, is the camera goin~11 to be over here that we need to put over there. Those directions also came from the directors and producer and they would come to me and say, well, get the guys on the crew, I think we should do this shot from over here. I mean, they wouldn't go to the guys directly, they 30 would come to me to tell them what to do. Rick Morse, Greg Robertson and Geoff Parker were not statutory supervisors under Team At page 152-53 of its brief, CNN argues that several experienced Team employees 35 assigned to the White House rotation were statutory supervisors. It contends that Rick Morse was a statutory supervisor because he was the "lead guy" 8':. the White House, see Tr. 15,389- 93. There is no precedent for concluding that Morse was a statutory supervisor on this basis. CNN contends that Greg Robertson and Geoff Parker, TVS lighting specialists at the 40 White House, were statutory supervisors because they hired freelancer lighting specialists for TVS. When Robertson and Parker knew they would need extra help, they would call one of two freelance lighting specialists who was familiar with the White House and who thus did not need training. They would make these calls to determine whether' the person was available. If so, Robertson and Parker would call the Team assignment des-; and ask if they could bring one of 45 these individuals into work. The final determination as to whether to hire these freelancers was made by Team management. Team did not always hire the individuals suqqested by Robertson or Parker. Team or CNN on at least some occasions decided that additional help was not needed or that 50 other employees were available, Tr. 6900.-01, 7220. CNN has thus not met its burden of proving that Robertson and/or Parker were statutory supervisors. It has presented no evidence that these individuals had the authority to hire, fire, discharqe or discipline other employees or to 138 JD-60-08 effectively recommend such action. The Board defines the power to effectively recommend as meaning "that the recommended action is taken with no independent investigation by superiors," ITT Corp., 265 NLRB 1480, 1481 (1982), Wesco Electrical Company, 232 NLRB 479 (1982). Team or CNN clearly independently determined whether additional liqhtinq specialists were 5 needed at the White House. Witness Credibility Credibility of witnesses testifying about the Bureau Staffing Project 10 The origins of the decision to terminate the TVS contracts and implement the Bureau Staffing Project and why this decision was made are shrouded in mystery. Cynthia Patrick, a CNN Executive Vice President, stated in a sworn affidavit that she recommended this course of action at a meeting in mid to late July 2003, G.C. Exh. 101, p. 4. also see Tr. 733. However, 15 the development of the BSP began before that meeting. 182 CNN Exhibit 62 refers to a meeting on April 3, 2003, which concerns planning for the BSP. Matt Speiser, a CNN hiring manager in Washington, D.C., attended this meeting, Tr. 3806-22, as did Ms. Patrick, Marty Garrison, head of CNN's engineering department, Karen Curry, the New York Bureau Chief,183 and others. Lisa Reeves and other CNN or Turner attorneys also attended. At this meetinq, the termination 20 of the Team contracts was discussed and Speiser was charged with the task of drafting position descriptions for photojournalists by May, Tr. 3811, 3822. Patrick's subordinate, John Courtney, also testified that he attended a different meeting than the one in July regarding the Bureau Staffing Project, early in 2003, Tr. 12450. Since his 25 name does not appear on CNN Exh. 62, I infer this was a different meeting than the one conducted on April 3. CNN Human Resources Manager Jim Hebb testified that he was working on the BSP "around the spring of 2003," Tr. 13210. CNN introduced through Mr. Hebb a document regarding the BSP which is dated May 16, 2003, <::;NN Exh. 527. On page 2 of that exhibit, Hebb noted that plans to upgrade the microwave trucks to satellite capacity were 30 approved "per Cindy P." This indicates that the decisions to terminate the TV:::> contracts and embark on the BSP may have been made prior to date indicated by Ms. Patrick in her affidavit and that there were other meetings and discussions about this initiative about which she did not testify and about 35 which there is little or no evidence in this record. 184 In her affidavit, G.C. Exh. 101, p. 6, Ms. Patrick also stated: I found out my recommendation to terminate the TV:::> contract and redefine our operation had been approved through a privileged alltorney-client communication. This 40 45 50 182 Two notable events which occurred proximate in time to the BSP were beginning of the Iraq War on March 19, 2003, and Jim Walton becoming President of CNN. 183 Curry testified that the meeting occurred, "sometime probably within the first quarter, maybe, of the year, maybe a bit later in '03," Tr. 8345. 184 CNN's efforts to reduce the number of bargaining unit positions began as early as March 2002" It made a concerted effort to restructure the editor/producer positions so that the Union could not successfully claim that these jobs remained in the unit, G.C. Exh. 559. The satellite truck operators in Washington and New York were assigned to the national desk in Atlanta in order to keep them out of the bargaining unit, G.C. Exh. 55B. In drafting position descriptions for the photojournalists in early 2003, CNN was looking for a way to deprive these employees of union representation, G.C. Exh. 553. 139 JD-60-08 communication occurred within two weeks of the July meeting referred to above. I am not sure who made ultimate decision to act on my recommendation. I do not know if any discussion took place. 5 Thus, even assuming that this statement is accurate, there is no evidence as to the basis on which the final decision was made, or by whom. One of the striking things about this case is how little specific evidence Respondent presented on issues that really matter, such as why various individuals were hired in the Bureau 10 Staffing Project and why other individuals were not hired. Although, these events occurred four years before this hearing started, CNN was on notice as early as March 2004, when the first charges were filed, that these might be issues in litigation. Moreover, CNN expected litigation at the outset of the BSP, since it had in-house counsel involved in every step of the process and involved outside counsel at meetings before the BSP was launched, G.C. Exh. 101, p. 4. CNN 15 or Turner Broadcasting attorneys were also present at every meeting at which hiring decisions were purportedly made. Despite this, there is little credible documentation of what occurred and Respondent's witnesses generally had trouble remembering what transpired. Even when CNN's witnesses 20 testified about the BSP, their testimony was riddled with inconsistencies, such as when they testified as to who attended various meetings. CNN did little to preserve a record of how decisions were made, by whom and when they were made. For example, CNN cannot find important documents, such as the butcher blocks used to evaluate job applicants at the selection meetings for engineers in both New York and Washington. Respondent cannot locate 25 these documents despite the fact that a Turner Broadcasting attorney, Scott Porter, was present at both meetings, Tr. 13230, 13242-43, 15,878, 15,892. A perfect example of CNN's lack of specificity with regard to the BSP concerns the decisions made regarding the hiring of audio designers in Washington. Anne Woodward, called 30 by the General Counsel, was the only hiring manager for audio designers in Washington, CNN Exh. 588. She was also the only witness who testified as to what went on at the meeting at which applicants were purportedly selected for hire. Woodward could not recall how CNN came up with a list of applicants to hire, Tr. 13845, and there is no other evidence as to how decisions were made. Moreover, Woodward could not testify as to who made the final decision as to who 35 was to be hired, Tr. 13854. This, as well as other evidence. establishes that eNN's contention that hiring decisions were made by hiring managers who interviewed job applicants at these selection/debriefing meetings is not true. 185 Thus, for example, there is no explanation as to why CNN hired Steve Tovarek and Cory 40 Hall, nonTVS applicants, as opposed to Darrin White, a TV:::> bargaining unit member. TBS recruiiter Anthony Williams informed Anne Woodward and others that White had worked for Team Video since 2000 and that he worked at a small network for 16 years as the senior audio technician. Williams reported further than White indicated that he knows several audio boards in and out and that he worked on several shows for the CNIN D.C. Bureau. Williams concluded 45 that White was a "good candidate for Audio Designer," G.G. Exh. 534, vol. 5, B# 21455. Woodward interviewed Darrin White on October 27 2003. She gave White higher scores than she gave Tovarek and Hall, when she interviewed them, CNN Exh. 588. On a scale of 1 (the worst) to 5 (the best), Woodward rated Whitle a 4 out of a possible 5 on his 50 185 E.g., testimony at Tr. 1895 by Tu Vu; Tr. 14880 by Cindy Patrick, CNN brief at 71. 140 JD-60-08 technical skills, his interpersonal skills and a 4+ on teamwork. She rated him Cl 3 on ethics & integrity and initiative. Woodward did not note any concerns regarding White. The "butcher block" purportedly prepared in the debriefinq meeting, G.C. Exh. 543, B# 5 14510, also provides no indication as to why CNN did not hire Darrin White. While Tovarek has had a successful career at CNN, Hall had difficulty in performing his job adequately and was terminated for cause in May 2005, G.C. Exh. 534, Vol. 2, B# 128927-30, CNN Exhs. 544 & 545. The inability of Respondent's witnesses to give a consistent account as to who was present 10 at the meetings at which hiring decisions were purportedly made Additionally, I would expect that it would be clear who attended the various critical meetings and what was discussed. Yet, hardly any of Respondent's witnesses had a clear recollection of such matters. For instance, Respondent's witnesses even had trouble 15 remembering whether Marty Garrison, the CNN Senior Vice-President who oversaw the BSP as it applied to the engineers, was present at the two meetings at which candidates were selected, or what role he played at the meeting. A summary of their testimony on this point is as follows with regard to the New York debrief/selection meeting: 20 Matt Holcombe: Garrison was present, Tr. 7741. Michelle Lackey: thinks Garrison was present, Tr. 7B92, but can't recall if he said anything about any applicant, Tr. 7896. Jeff Gershgorn: Garrison was present, Tr. 7969. Jeff Polikoff: can't recall if Garrison was present, Tr. 8116. 25 Jim Hebb: doesn't believe Garrison was at the New York selection meetinq, Tr. 13220.186 CNN also had difficulty establishing the presence of critical personnel at other debriefing/selection meetings. For example, most, if not all, the candidates for the media 30 coordinator position in New York were interviewed by Rob Fox, then the Director of Operations for CNNfn (Respondent's financial network) in New York and Ashley Blackmon, Director of Media Operations for CNN in Atlanta. It is not clear from this record whether or not Blackmon participated in the ranking of candidates for media coordinator, Tr. 10305, 10306, 12291,12300,12498. 35 Ashley Blackmon did not testify in this proceeding. Since she was one of the two people who interviewed candidates for the media coordinator position, it would be inconsistent CNN's contentions that the selection process was fair and unbiased, if Blackmon was not involved in selecting successful applicants. If the BSP process was nondiscriminatory, thlere should be no 40 ambiguity as to who attended the debriefing meetings and what role they played. 45 50 186 The evidence is similar for the Washington debriefinq meeting for hirinq engineers. Joe Murphy and Matt Holcombe testified that Garrison was present, Tr. 2045, 2151. Jim Hebb couldn't recall whether Garrison was present, Tr. 15,848. Tu Vu recalled that only the four hiring managers were present and possibly Jim Hebb or another human resources representative, Tr. 1997-98, 2324. 141 5 10 15 20 25 30 35 40 45 50 JD-€>O-08 Testimony of CNN witness which is either ineccurete or less than the whole truth Several management witnesses, such as John Courtney,187 Troy Mcintyre, Jeff Polikoff (that CNN did not hire Team unit member Jeff Jaramello because Jaramello was rude and unhelpful) and Jeff Kinney (denying he sent an email, G.C. Exh. 496, to former Team cameraman Jim Peithman) testified on certain issues in a manner that is clearly inaccurate,. Many CNN witnesses, including, but not limited to, Cindy Patrick, John Courtney, 188 Jeff Gershgorn, Tu Vu, Matthew Holcombe, Lew Strauss, Loren Kite, Jim Hebb, Gina LaRussa and Rob Fox, were not forthcoming about matters they were aware of, such as the fact that CNN hired employees who had not gone through the Bureau Stafl'ing Project application, interview and debriefing meeting process for positions SUbject to the BSP.189 These witnesses are not credible because when testifying they appeared to be more Interested in supporting a litigation 187 For example, Courtney testified that all photojournalists that CNN hired during the BSP were proficient in either Final Cut Pro or another nonlinear editing system, Tr. 12472. Many of Team cameramen who were hired had little or no familiarity with nonlinear editing and that was also true of some nonTVS applicants who were hired, such as Richard Frederick. Courtney also testified that all applicants for photojournallist in New York were ranked by the hiring mangers, Tr. 12495. This is also not accurate. Courtney testified that individuals were hired into the media coordinator position in Washington during the Bureau Staffing Project, Tr. 12516; this is inaccurate as well. 188 As one of Cynthia Patrick's principal deputies, who attended many meetings regarding the BSP, I infer that Courtney was well aware that one of its principal objectives was to get rid of NABEr. Indeed, as Matt Speiser testified, Courtney was present at the selection meeting for photojournalists in Washington to present "more of a corporate view...what, overall the company needed as far as this workforce that was being hired in Wasllington and New York," Tr. 4167. I infer, for example, that Courtney was aware that CNN planned to bring Ray Britch from London to work for CNN en espanol in Washington and thus get rid of TVS unit member Luis Munoz. Among the things Courtney was silent about are the conversations Barclay Palmer testified to with other CNN managers, including Courtney, concerninq New York photojournalist applicants between the interviews and selection meeting. Courtney also did not testify as to how applicants were categorized as "very strong possible," etc. Finally, Courtney knew and did not testify about how CNIN created an uneven playing field for many TVS applicants. For example, Courtney personally interviewed nonunit applicant Doug Schantz, who reported to him in Atlanta, and participated in the interview of nonunit applicant Bethany Chamberland with R. J. Fletcher, Chamberland's supervisor. He knew that TVS applicants had no such advocates. 189 Loren Kile, a TBS recruitment manager, testified that if a qualified candidate applied after a debriefing session, they would "go through the same process," Tr. 13047. There is absolutely no evidence that individuals who applied for positions subject to the BSP after the debriefings went through the same process as applicants who applied prior to the debriefing sessions. There is no evidence that such individuals were ranked against other applicants. For example, Jim Hebb's testimony at Tr. 13228-29, indicates there was only one debrief/selection meeting for engineers in New York on December 4-5, 2003. Kile's testimony in this regard indicates to me that she is aware that individuals were hired for positions subject to the BSP who applied after the debriefings. Her lack of candor in this respect leads me to deem her an incredible witness. It is also likely that many, and possibly all of CNN's management and former management witnesses were aware that CNN hired individuals for positions covered by the BSP who applied after the debriefing sessions. 142 JD-60-08 theory than in testifying candidly, see, e.g., In re: Lexus of Concord, Inc., 330 NLRB 1409,1412 n.9 (2000); Carruthers Ready Mix, Inc., 262 NLRB 739 (198::~). For these reasons, I view virtually all the testimony of Respondent's managers, hiring 5 managers, recruiters and human resource personnel and other agents with a jaundlced eye and decline to credit their self-serving testimony unless corroborated by other credible evidence. 19o One of many examples of a CNN witness more interested in supporting his employer's litigation strategy than in testifying candidly 10 15 20 25 30 35 40 45 50 Troy Mcintyre, who interviewed most of the applicants for the studio operator position in Washington, is a particularly incredible witness. CNN introduced CNN Exhibit 635, a list of applicants for the studio operator position in Washington through Mcintyre. MGlntyre testified that the names and numbers on the list are in his handwritinq. However, Mcintyre repeatedly asserted that the numbers he wrote to the left of the names on the list have no significance, Tr. 14,695-96, 14,741-43. I find this testimony to be false. The numbers Mcintyre wrote to the left of the applicants names correspond to a ranking of the applicants that appears in a position tracking spreadsheet dated November 18,2003, G.C. Exh. 268, B# 42473. The numbers are consistent with those circled on the "butcher blocks," used to rank candidates at some point in the process, e.g., G.C. Exh. 534, vol. 1, B# 16805.191 I infer that there were changes made in the list of applicants to be hired that Mcintyre did not wish to acknowledge. This was not the only incredible testimony given by Mclntyre with regard to the selection of studio operators in Washington. CNN generally elicited testimony from its witnesses to the effect that the selection of applicants during the BSP was made by the hiring managers, that is the individuals who actually conducted the interviews. However, Anne Woodward, the only person who interviewed five of the Washington applicants for studio operator, was not present at the meeting at which hiring decisions for that position were purportedly made, G.C. Exhs. 535-39, Tr. 14582. 190 I reject the testimony of Dr. Mary Baker, who testified that a statistical analysis of the BSP, establishes that it was nondiscriminatory, see CNN brief, at pages 76-77 of its brief. Dr. Baker comes to the startling conclusion that the BSP was actually biased in favor of TVS unit employees, e.g., Tr. 16177-78. Dr. Baker did not take into account, for example, the fact that CNN hired a number of nonTVS applicants who were interviewed after the debriefing/selection meetings at which CNN hiring managers supposedly selected which candidates CNN would hire during the BSP. These candidates were obviously not compared to the TVS applicants in a nondiscriminatory manner. Dr. Baker essentially conceded that her analysis also does not take into account the possibility that TVS applicants were better qualified than nonTVS applicants because they had been doing the jobs for which they were applying for years, Tr. 16179. Dr. Balker also ignored the fact that almost 100% of the CNN incumbents who were subjected to the BSP kept their jobs. 191 The numbers on the butcher block sheets in G.C. Exh. 534, vols. 1-5, correlate exactly to the numbers at the left of each name on CNN Exh. 635. The first seven applicants were deemed VSP (very strong possible) candidates; numbers 8-16 (including Kiyasu and McKinley) were deemed SP (strong possible); numbers 18 through 29 were deemed P (possible) candidates. There is no butcher block sheet for #17, Douqxozloski or #27, Wenzell Taylor. James Stubbs' butcher block does not have a circled number on it. 143 JD-60-08 In this regard, Mcintyre testified as follows: Q. Did you take any steps to become familiar with the candidates that Ms. Woodward 5 interviewed? A. Yes, I did. Q. What did you do? A. I contacted them and did a - talked to them on the telephone. Q. When did you do that? 10 A. It was after this interview - after these interviews but before the selection meeting. Q. In the interviews, did you evaluate candidates' technical skills? A. Yes, I did. Q. How did you do that? A. Through the questions, throughout the interview. I would ask specifically to their 15 experience with robotics, jib cameras, camera shading, use the questions that were a part of the interview guide to elicit responses on the technical skills as well. Tr. 14674-75. 20 25 30 35 40 45 50 There is no document or any testimony that corroborates Mcintyre's contention that he interviewed applicants who had been previously interviewed by Anne Woodwalrd for the studio operator position, see e.g., G.C. Exh. 534, vol. 1 & 3, CNN Exhs. 689, 694. Respondent's witnesses generally testified that they had their interview notes in front of them when considering applicants at the debriefing session. Mcintyre did not claim to have notes of his interviews of these five individuals at the debriefing, Tr. 14586. I believe that Mcintyre's testimony is false and that these five applicants were considered for employment without the input of anyone who interviewed them during the BSP. The absence of anyone who interviewed these five candidates at the debriefing session shows how unimportant and indeed irrelevant the interviews were to the BSP hiring process. Mcintyre's testimony merely reflects Respondent's recognition of that fact and is an attempt to deal with this obvious inconsistency in its contentions with reqard to how the BSP operated. Offers were made to three of these five applicants; TVS bargaining unit members Michael David and Douglas McKinley, and Patricia Carroll, who was not a unit member. As noted later, Carroll was hired instead of unit members Dennis Faulkner and Adilson Kiyasu, who were clearly qualified as evidenced by the fact that CNN hired both of them after the BSP.192 19: