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

National Labor Relations Board - Administrative Judge Opinions

Nov 19, 2008

05-CA-031828 (N.L.R.B. Nov. 19, 2008)

WAS
JD-60-08
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CNN AMERICA, INC. AND TEAM VIDEO
SERVICES, LLC, Case 5-CA-31828
and
NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES &
TECHNICIANS, COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 31, AFL-CIO
CNN AMERICA, INC. AND TEAM VIDEO SERVICES, LLC, Case 5-CA-33125
and
NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES &
TECHNICIANS, COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 11, AFL-CIO
Table of Contents
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 discriminatory 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
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Paragraph 9(g) of the Complaint: alleged statement by Lou Strauss........................ 28
Other direct evidence of anti-union animus.................. --................ 2
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 purge/Disparate Treatment vis-6-vis nonunion employees at CNN'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 for hiring growth candidates
Instead of experienced Team applicants .................................................... 56
Record evidence regarding some of the TVS Bargaining Unit Members 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 CNN............................. 70
Khalil Aballah.................................................................................. 70
John Bena ................................................................................... 71
Bethany Chamberland Swain ................................................................. 72
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JD-60-08
Mike Haan & Jerry Appleman ................................................................ 73
Jeremy Harlan ............................................................................... 73
Ron Helm.................................................................................. 73
Jay McMichaei .............................................................................. 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 engineering 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
TheD.C D.C. us Bureau's......Couriers.*..*.....*....'.*-..*..*..*....."..*..*..-.................,..106* ''* "10
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 bargaining 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 Managers/Technical Production Managers in New York......................... 117
Editor Producers..................................... *---* -. .. .. ,-** '- .. - ,** - -*118
Application of the successorship criteria:
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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...................................................................... 4......... 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 supporting 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 of Team employees ............ 145
The case against Team Video ............................................................... 145
Conclusions of Law .......................................................................... 146
Remedy.................................................................................... 147
ORDER.................................................................................... 148
APPENDIX ................................................................................. 151
iv
JD0-60-08
Atlanta, GA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CNN AMERICA, INC. AND TEAM VIDEO
SERVICES, LLC, Case 5-CA-31828
and
NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES &
TECHNICIANS, COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 31, AFL-CIO
CNN AMERICA, INC. AND TEAM VIDEO SERVICES, LLC, Case 5-CA-33125
and
NATIONAL ASSOCIATION OF BROADCAST EMPLOYEES &
TECHNICIANS, COMMUNICATIONS WORKERS OF AMERICA,
LOCAL 11, AFL-CIO
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, Esq.,
(Sturm & PerI) 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 exhibits, many of them voluminous.
J D-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 all 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 meaning of the
Act.
The Charging Parties, NABET Locals 31 and 11 are labor 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 directly hired
technical employees the Bureau Staffing Project (BSP). Turner Properties hired two of the
35 couriers who had previously worked for Team at the Washington, 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 Was-hington 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 _ _ _ _ _ _ _ _ _ _ _ _ _
1When I use the term Respondent, I mean CNN, unless otherwise specified.
2
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 qontends 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 and Technicians (NABET) 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. NABET Local 31 filed the original
charge in Case 5-CA-31828 on March 22, 2004, regarding CNN's Washington, D.C. Bureau.
30
On June 30, 2006, Region 5 dismissed the charge regarding 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,2 including my observation of the demeanor of the witnesses, and
40 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-01 1650 or CNNA-PR0000064228. 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.
45 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 judge or any AUJ to examine the
documents listed on its privilege log to determine whether they are in fact privileged, despite a
50 Board order that it do so, Id., n. 4, Tr. 7673-89. 1 ordered an in camera inspection of 26 pages
of CNN's privilege log, encompassing documents authored between January 1, 2003 and the
Continued
3
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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
1o 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.
Litici. 501 F.Supp.2d 789, 797 (E.D.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.Del.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 1
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
4
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-December 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 Group 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
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
35 York were represented by NABET Local 11 beginning in 1985. 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.
40 Throughout the 1980s, 1990s and, in New York in 2002, 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
45 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
50 employees .., including camera operators, tape operators, editors, couriers, engineers and
master controllers..."
5
JD0-60-08
retained the vast majority of the employees of its predecessor, and recognized and bargained
with Locals 11 and 31. Thus, the General Counsel alleges, and I find, that CNN's failure to hire
many of the Team employees and its refusal to recognize NABET was unprecedented 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 New York.5
10 Thereafter Team recognized and bargained with Local 11. There 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 forth 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 page 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
SAs of February 20, 2002, Team intended to hire 87 out of 95 Potomac bargaining 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
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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 higher 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 T\/S contract because it was dissatisfied with the quality of
the work performed by bargaining unit employees. The reason advanced by CNN for replacing
7
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many of its technical employees is that it was necessary for it to 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).
5 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 digital) facility at the
Time Warner Center. 6 This move occurred in 2004, several months after the termination of the
Team Video contract.7
10 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 Staffing Project to be pretextual. A major
motive in these decisions was CNN's desire to operate its Washington and New York bureaus
without a union.
15 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
20 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 changes at CNN. However, some of the
25 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
30 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 broadcasted on the days after the termination of the Team contracts without any
35 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
40 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.
45 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
50 Project worked at the same location as had the TVS employees, operating the same equipment
to broadcast CNN's programming.
8
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Locals 11 and 31 requested on several occasions that CNN recognize and bargain with
them as a successor employer to Team Video.8 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,
1o rather than by Team Video. These are individuals such as computer specialists, lines
coordinators (who performed administrative rather than technical tasks for CNN), 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 undermine 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
J D-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;9
5 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, 2003 in
Washington and on January 16, 2004 in New York. Further, the General
10 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;
15 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
20 successorship obligation to recognize and bargain with the Unions. It also
9 1 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
25 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 also all other
hiring managers and CNN employees who directed Team technicians in their work.
30 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
35 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
40 employee is an agent of the employer is whether, under all the circumstances, employees would
reasonably believe that the employee in question was reflecting 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
45 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
50 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.
CNN packed its bargaining units in order to avoid a successorship obligation.
5 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.
10
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
15 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 agreements 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 TL/, 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 generis and requires consideration
of numerous factors.10
45 _ _ _ _ _ _ _ _ _ _ _ _ _
10 CNN's reliance on Goodyear Tire, 312 NLRB at 674, 688 (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
50 and T\/S 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
J D-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. As 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."1 Moreover, typically, a subcontractor provides at
least some of the equipment and materials needed to do their job. 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 (Women'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 College 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., 310 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. 12
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 increases above 4%.
35
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
40 other companies within the Asgard umbrella continue to operate, Team and TVS of New York
ceased their active operations with the termination of the CNN 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 may or
45 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
50 Washington or New York to do camera work and other work which was usually performed by
Team bargaining unit employees.
12'
JD0-60-08
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, 2008), slip opinion at pages 8-9; D &
F Industries, 339 N LRB 618, 640 (2003); Windemuller Electric Co., 306 N LRB 664 (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 1i1'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 CNN. 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 105. 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 were assigned to shoot.14
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 __ _ _ _ _ _ _ _ _ _ _ _ _
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
40 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. I
CNN points out that NABET notes of a March 5, 2002 negotiating session include a
45 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 changed at the end of negotiations and
that D'Anna made the statement to which he testified.
50 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
JD0-60-0 8
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 factors 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 produicers 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.15 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 employer 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 New 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
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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
5 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
10 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
15 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
20 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 assigned daily to CNNfn in
25 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. 13520-40,
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
30 Nations also had little contact with Team management and received whatever direction they
received from CNN personnel.
When Team camera operators traveled on assignment they were under the complete
control of CNN personnel. Except for one visit by TVS manager Gabriel Romero to
35 Philadelphia, rarely, if ever, was a T\/S 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
40 and finish times, Tr. 6536-39.
16 Also see G.C. Exhs. 421 and 422. The statement at page 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
45 who had the authority to approve overtime work, not the bargaining unit supervisor.
17 CNNfn in Washington had one permanent crew, John Bodnar 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 T\/S assignment desk for general
50 assignment work. However, on some occasions, CNN espanol manager Willie Lora told Luis
Munoz that he denied a request from the TVS assignment desk for his services.
JD0-60-08
The couriers in Washington also were under the complete control and direction of CNN.
TVS technicians in New York worked weekends with supervision only by CNN, Tr. 10482.
5 In the engineering departments, most, but not all, supervision came from TVS personnel.
However, what projects the T\IS engineers worked on was often determined by CNN personnel,
e.g., Tr. 8636-38. TVS' general manager in Washington, Brad Simons, testified that there were
occasions when Tu Vu, CNN's director of engineering, came into the engineering shop and
directed TVS engineers to perform a task, Tr. 15341. Simons testified that when that occurred
1o he would remind Tu Vu that he had to go through TVS management if he wanted something
done by bargaining unit employees. However, Vu also dealt directly with unit employees when
neither Simons nor any other TVS manager was present on numerous occasions, Tr. 1872-74,
2963-44, 3206-07.
15 In New York, CNN engineering project managers routinely gave direction to Team
bargaining unit supervisors, Bob Cummings and Bill Greene, e.g., Tr. 8045-8047. At pages
134-1 37 herein, I find that Cummings and Greene were bargaining unit employees, not statutory
supervisors. CNN project managers, such as Jesse Spilka, at least on occasion also gave
specific direction to other Team rank and file engineers, e.g. G.C. Exh. 437.
20
In addition to CNN's direction and supervision of Team employees, CNN determined the
number of full time and daily hires to be employed by Team at its bureaus, e.g., G.C. Exh. 40 at
pages 1 and 43, and provided all the money from which all Team employees were paid. CNN
also in many circumstances held out TVS field employees as CNN employees. Thus, some of
25 the credentials issued to Team employees identified them as working for CNN, rather than
Team, e.g., G.C. Exh. 131. These are also factors on which I rely on in finding CNN and Team
to be joint employers, D&F Industries, 339 NLRB 618, 640 (2003), Capitol EMI, supra.
Finally, I would note that the remedy under the General Counsel's joint employer theory
30 and the remedy under the General Counsel's successorship theory, which is analyzed below,
are practically the same. Given the fact that I find that the entire Bureau Staffing Project was
discriminatorily motivated, it must be assumed that every TVS bargaining unit would have
continued their employment at the bureaus but for CNN's discriminatory conduct. Therefore,
CNN, as a successor employer, was not entitled to set initial terms of employment without
35 bargaining with the Unions, Love's Barbeque, 245 NLRB 78, 82 (1979); Planned Building
Services, 347 NLRB No. 64 (2006); U.S. Marine Corp., 293 NLRB 669, 672 (1989).
Since any changes in the terms of employment that existed under Team violate 8(a)(5),
the remedy for CNN's unfair labor practices vis- -vis CNN is the same under either a joint
40 employer or successorship theory, Smoke House Restaurant, 347 NLRB 192, 204-05, 208-09
(2006). This is so because the terms from which CNN has departed in either case are those
contained in the collective bargaining agreements that were in place in late 2003 and early
2004.
45 NABET did not waive its bargaining rights regarding CNN's decision to terminate the Team
contracts or the Bureau Staffing Project
CNN argues at pages 119-21 of its brief that NABET waived its bargaining rights
concerning its decision to terminate its contracts with Team, and I assume everything else. First
50
16
JD-60-08
of all, as a joint employer, CNN was bound by TVS's contracts with NABET.19 NABET was not
obligated to demand recognition and request bargaining. CNN, as a joint employer, was not
privileged to make any changes in the terms and conditions of unit members' employment
without the consent of their collective bargaining representatives.
5
Even assuming that NABET had an obligation to request bargaining, it did not waive its
rights. With regard, to CNN's decision to terminate the contracts, the Union was presented with
a fait accompli. On September 29, 2003, Cynthia Patrick announced to CNN employees at the
New York and Washington Bureaus that CNN was ending its relationship with Team Video, not
1o that it was considering such action. She informed these CNN employees that there would be a
significant number of job openings at the two bureaus and encouraged CNN employees to apply
for the jobs then held by Team employees, G.C. Exh. 338.
Neither Local 31 nor Local 11 was informed of this decision until after it was made, and
15 communicated to CNN staff. The record thus establishes that by the time NABET learned of
CNN's decision to terminate the TVS contracts, it was a final decision about which CNN had no
intent to bargain, Pontiac Osteopathic Hospital, 336 NLRB 1021, 1023-24 (2001).
Local 31 was informed of this decision by Team President Larry D'Anna on September
20 29. He told Union President Peach that Team would no longer have employees at the CNN
Washington Bureau after the first week of'December, Tr. 1210-11. Peach set up a telephone
call to CNN's Washington Bureau Chief Kathryn Kross almost immediately. Peach met with
Kross on October 3. He asked Kross how many people CNN intended to hire, whether the
recruiters would take into account commendations unit members had received, whether CNN
25 would hold a meeting for NABET unit members to relieve their anxiety (Kross told Peach it
would not do so) and then whether unit employees' tenure with contractors would be
recognized, Tr. 121 0-24.
After asking these questions, Peach asked Kross about the role of the Union after
30 December 5. She clearly indicated there wouldn't be one. I deem Peach's inquiries to
constitute a demand for bargaining over the terms of conditions of employment of employees
CNN intended to hire, and Kross' response as a refusal to bargain with NABET.
Similarly, on October 7, 2003, Local 11 President McEwan wrote to the New York
35 Bureau Chief, Karen Curry, asking to meet with her to discuss the future employment by CNN of
NABET members. This constitutes a request to bargain under Board precedent, Armour & Co.,
280 NLRB 824, 828 (1986) ["want to discuss your position" is a request to bargain]. Curry
responded in late October by telling McEwan over the telephone that all inquiries should be
directed to CNN's attorneys, Tr. 10609.20
40
On November 19, 2003, the Presidents of NABET and the Communications of America
wrote to Jim Walton, the President of CNN, asking for a meeting on such issues as the
continued employment of all NABET members, the continuation of the collective bargaining
45 19 NABET had requested CNN's participation in bargaining on at least two occasions prior to
September 2003. Assistant to the Local 31 President Jimmy Suissa told TVS negotiators that
he wanted to negotiate with CNN during 2002 contract negotiations. As noted in CNN's brief at
page 30, then Local 31 President James Harvey requested CNN's presence at the bargaining
table to discuss merit pay in August 1999, G.C. Exh. 41.
50 20 In contrast, the Union in W W Granger, Inc. v. NLRB, 860 F. 2d 244 (7t1h Cir. 1988), which
is relied upon by CNN, made no attempt to contact Granger.
17
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agreements and recognition of the Union, G.C. Exh. 23. This is also a bargaining request under
Board law. On December 3, 2003, Walton responded by stating that he did not believe there
was any benefit to a meeting, G.C. Exh. 24. Walton's response indicates any request by
NABET to bargain with CNN at any time would have been an exercise in futility.
5
As noted previously, formal demands for recognition and bargaining were made by Local
31 on December 8, 2003 and by Local 11 on January 23, 2004.
Successors hip
10
The legal framework
In Planned Building Services, 347 NLRB No. 64 (2006), the Board set forth the analytical
framework to be applied in determining whether an alleged successor employer has unlawfully
15 refused to hire its predecessor's employees to avoid a bargaining obligation and the appropriate
make whole remedy. The General Counsel has the burden of proving that the employer failed
to hire employees of its predecessor and was motivated by anti-union animus. He need not
demonstrate that the employees had relevant experience or training for essentially the same
jobs in the successor's workforce that they performed in the predecessor's workforce.
20
Once the General Counsel has made its prima facie case, the burden of proof shifts to
the employer to prove that it would not have hired the predecessor's employees even in the
absence of its unlawful motive. The shift in the burden of proof is particularly important in this
case. As set forth below, the General Counsel easily met its burden of establishing a prima
25 facie case and in virtually all cases, CNN failed to introduce any evidence establishing that it
would not have hired TVS unit members in the absence of anti-union animus.
First, however, I must determine whether CNN is a successor to Team Video. This is so
because CNN claims that despite the fact that it hired more than 50% of the members of the
30 Team Video bargaining units, these employees were not hired for jobs that were essentially the
same as those they performed for Team.
An employer, which buys or otherwise takes control of the unionized business of another
employer, succeeds to the collective-bargaining obligation of the seller if it is a successor
35 employer. For it to be a successor employer, the similarities between the two operations must
manifest a 'substantial continuity between the enterprises" and a majority of its employees in an
appropriate bargaining unit must be former bargaining unit employees of the predecessor. The
bargaining obligation of a successor employer begins when it has hired a "substantial and
representative complement" of its workforce. NLRB v. Burns Security Services, 406 U.S. 272
40 (1972); Fall River Dyeing Corp. v. NLRB, 482 U.S. 27,107 S. Ct. 2225 (1987), affg. 775 F.2d
425 (1st Cir. 1985).
Justice Blackmun, in the majority opinion in Fall River Dyeing set forth the factors to be
considered in determining whether there is a substantial continuity between the predecessor
45 and the alleged successor:
In Burns, we approved the approach taken by the Board and accepted by courts
with respect to determining whether a new company was indeed the successor to
the old. 406 U.S. at 406 U. S. 280-281, and n. 4. This approach, which is
5o primarily factual in nature and is based upon the totality of the circumstances of a
given situation, requires that the Board focus on whether the new company has
acquired substantial assets of its predecessor and continued, without
18
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interruption or substantial change, the predecessor's business operations."
Golden State Bottling Co. v. NLRB, 414 U.S. at 414 U. S. 184. Hence, the focus
is on whether there is "substantial continuity" between the enterprises. Under this
approach, the Board examines a number of factors: whether the business of both
5 employers is essentially the same; whether the employees of the new company
are doing the same jobs in the same working conditions under the same
supervisors; and whether the new entity has the same production process,
produces the same products, and basically has the same body of customers.
See Burns, 406 U.S. at 406 U. S. 280, n. 4; Aircraft Magnesium, Division of Grico
10 Corp., 265 N.L.R.B. 1344, 1345 (1982), enf'd, 730 F.2d 767 (CA9 1984);
Premium Foods, Inc., 260 N.L.R.B. 708, 714 (1982), enf'd, 709 F.2d 623 (CA9
1983).
In conducting the analysis, the Board keeps in mind the question whether "those
15 employees who have been retained will understandably view their job situations
as essentially unaltered." See Golden State Bottling Co., 414 U.S. at 414 U. S.
184; NLRB v. Jeffries Lithograph Co., 752 F.2d 459, 464 (CA9 1985). This
emphasis on the employees' perspective furthers the Act's policy of industrial
peace. If the employees find themselves in essentially the same jobs after the
20 employer transition, and if their legitimate expectations in continued
representation by their union are thwarted, their dissatisfaction may lead to labor
unrest. See Golden State Bottling Co., 414 U.S. at 414 U. S. 184.
The instant case is not the typical successorship case. CNN was not a "new company."
25 It operated its broadcasting business seamlessly at the same locations in Washington and New
York immediately after the end of the TVS contracts as when TVS was on its premises, with
approximately the same number of employees performing its technical work.
TVS' employees were performing production work for CNN. TVS did not produce
30 anything; it merely provided management services to CNN. TVS employees performed their
jobs almost exclusively with CNN equipment. When the TVS contracts ended, those employees
hired by CNN initially continued to perform their services with the same equipment. As
discussed in more detail later, these employees performed essentially the same jobs for CNN
that they did for Team Video. Thus, as far as the employees were concerned, they were
35 engaged in the same enterprise on the first day after the Team contracts ended as they were on
the previous day. On the other hand, CNN had concrete plans to upgrade its equipment, and in
New York, to move to a brand-new facility within a couple of months of the changeover.
CNN essentially eliminated a layer of supervision. Instead of, in some cases, taking
40 direction from Team Video supervisors, the employees took direction from the CNN managers
who had previously, in some cases, given instructions through Team Video. However, the
record also shows that while Team was at the CNN bureaus, its employees often took direction
directly from CNN personnel.
45 Had CNN not discriminated against Team Video employees, as I find below, former
Team unit members would have constituted a majority of the employees in any appropriate
CNN unit. Furthermore, they would have viewed their job situations as essentially unaltered,
despite the relatively insignificant modifications (to be discussed in more detail later) that CNN
made in their job responsibilities. They would have expected that the Unions would have
5o continued to represent them.
19
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Thus, I find that CNN was a successor employer to Team Video as of December 6, 2003
in Washington, and January 17, 2004 in New York. As of these dates, CNN was operating
normally with a representative complement of employees, assisted by CNN employees from
Atlanta and other bureaus on temporary duty.21 Assuming as CNN argues, that it was not
5 operating normally until December 15, 2003 in Washington and January 26, 2004 in New York,
CNN was a successor to Team Video as of those dates.22
Alleged Discriminatory hiring practices
10 Discriminatory Motive
To establish a violation of Section 8(a)(3) and (1) in cases where a refusal to hire is
alleged in a successorship context, the General Counsel has the burden to prove that the
employer failed to hire employees of its predecessor and was motivated by antiunion animus.
15 In assessing Respondent's motive, this case is no different than any other Section 8(a)(3) case.
The Board requires the General Counsel to make an initial showing sufficient to support an
inference that the alleged discriminatees' protected conduct was a 'motivating factor' in the
employer's decision. Then the burden shifts to the employer to demonstrate that the same
action would have taken place even in the absence of protected conduct, Wright Line, 251
20 NLRB 1083 (1980), enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399-403 (1983);
American Gardens Management Co., 338 NLRB 644 (2002);. Unlawf4ul motivation is most
often established by indirect or circumstantial evidence, such as suspicious timing and
pretextual or shifting reasons given for the employer's actions.
25
Discriminatory motivation may reasonably be inferred from a variety of factors, such as
the company's expressed hostility towards unionization combined with knowledge of the
employees' union activities; inconsistencies between the proffered reason for discharge or
refusal to hire and other actions of the employer; disparate treatment of certain employees with
30 similar work records or offenses; a company's deviation from past practices in implementing the
21 in some cases, for example with regard to the photojournalists in Washington, CNN
needed help from its Atlanta employees in part because it allowed a number of the nonTVS new
35 hires to leave Washington for the first week of their employment with CNN either for personal
reasons or to complete work on their prior job, Tr. 15,636-41, 15,775.
22 Cases in which the Board has found that alleged successor was not engaged in normal
operations are easily distinguishable. For example, in Elmhurst Care Center, 345 NLRB 1176
(2005), the employer, a nursing home, had not started receiving patients. CNN, by way of
40 'contrast, was broadcasting normally the day after the Team contracts ended. I would also note
that the cause for the Board's policy concern in Elmhurst Care, i.e., that a small
unrepresentative group of employees make a representation decision that binds a much larger
"full compliment," is not present in this case.
Hilton Inn Albany (aka Ten Eyck Hotel) 270 NLRB 1364 (1984), a case in which the Board
45 held that the employer recognized a union prematurely, is another case relied upon by CNN. In
that case, the hotel was not open to the public for business when the employer recognized the
union and only 76 of the over 200 unit employees who were working by the time the hotel
opened had been hired.
Similarly, in A.M.A. Leasing 283 NLRB 1017, 1024 (1987), the Board's found a meat
50 processing plant was not engaged in "normal operations" prior to the date it began to process
meat.
20
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discharge; and proximity in time between the employees' union activities and their discharge.
W F Bolin Co. v. NLRB, 70 F. 3d 863, 871 (6t1h Cir. 1995).
The General Counsel made out its prima facie case. That CNN was aware that the
5 Team Video employees were organized is uncontroverted. It also knew which of the job
applicants were members of the Team bargaining units.23 That the decision to embark upon the
Bureau Staffing Project was part of an overall plan motivated by anti-union animus is
established by the following direct evidence.
10 Section 8(a)(1) violations and direct evidence of discriminatory motive regarding the termination
of the Team Video Contracts and the implementation of the Bureau Staffing Project:
I find that the following statements by CNN agents violated Section 8(a)(1) and establish
CNN's animus towards the Union membership and activities of bargaining unit members.
15 These statements clearly from an objective standpoint restrained, interfered with and or coerced
employees in the exercise of their Section 7 right to organize.
Karen Curry's explanation of CNN's motivation on September 29, 2003
(Complaint paragraph 9(a)).
20
On September 29, 2003, after CNN employees in the New York Bureau received an
email from CNN Vice-President Cynthia Patrick concerning the end of the Team Video contract,
Bureau Chief Karen Curry sent out an email to CNN employees, but not to TVS employees,
inviting them to a series of meetings that afternoon in a small conference room on the 2 1st floor
25 of the bureau. In her email, Curry stated that TVS had "done an excellent job of running their
business and meeting the needs of CNN." These meetings were scheduled at 1 PM, 3 PM, 4
PM and 5 PM, G.C. Exh. 515.
A CNN employee shared this email with TVS studio technician Barbara Morrisey.24
30 Although she was not invited, Morrisey attended the 4:00 meeting and took notes of what Karen
Curry said, G.C. Exh. 515.25
Morrisey testified first as to what she recalled about the meeting without reference to her
notes, Tr. 10872-73:
35
Q. Tell us what you recall from the
meeting.
A. Basically, I went to the meeting
40 because I wanted to find out information on
what was going on basically and no one knew
what was going on.
And sitting in the meeting,
basically, I was getting information from the
45 __ _ _ _ _ _ _ _ _ _ _ _
23 With regard to freelancers or daily hires, there may have been a grey area. However,
CNN certainly knew which applicants were full-time employees of Team.
24 MS. Morrisey married in the fall of 2003 and now goes by the last name of Morrisey-
Marq uez.
50 25 Morrisey did not know that the speaker at the meeting was Curry, but that is clear from
the record, such as Curry's testimony.
21
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people who were sitting there which I was not
asking questions because I don't think I was
supposed to be at the meeting. They were
asking basically what was going on and what
5 was going to be happening.
So the first thing they would start
off with, if I go through my notes I can
explain to you-because it's shorthand, I
can tell you why I wrote them.
10
JUDGE AMCHAN: If you have any
recollection independent of the notes I would
like you to give me that. If you can't
remember anything specific, she will ask you
15 to go through your notes.
A. I know for a fact that in the meeting
they said that when basically the Team Video
was going to be out and when the CNN was going
20 to take over everybody so that they can-
what I remember from the meeting was that so
they can work much easier with both the crews
and the technical people.
And that in order to make it
25 smoother, that they needed to get rid of Team
Video and with Team Video came along rules and
regulations. And that in order-by getting
rid of them, then they can have more control
of their technical people, which would be me.
30
Then, Morrisey explained the notes she took during the meeting, Tr. 10877-78:
Q. What does it say directly under DVD cameras?
35 A. "Manage us rather can't with third
party."
Q. Do you know why you wrote that?
40 A. Basely she was explaining to the
conference room why they were doing this,
while they were getting rid of Team Video, and
they went into saying that they were doing
this because they can't-they felt like they
45 couldn't manage the technical side of the
people. And they wanted to be able to
control the technical end of it.
Q. What does it say under that?
50
A. I wrote no union.
22
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Q. Why did you write that?
A. I wrote that because as she was
talking about manage us rather can't with
5 third party, the person went into talking
about basically the union has rules in which
they find it harder to follow with managing the technical crews, technical end.
Q. Who is this that said that?
10
A. The person that was standing up,
which was the woman.
Morrisey admitted that she is not sure that Curry explicitly stated there would be "no
15 union" at CNN or that Curry used the term "union rules" as opposed to "rules." However, I credit
Morrisey's testimony that Curry implicitly, if not explicitly, informed employees at this meeting
that CNN would be operating without a union beginning in January 2004.
If Curry discussed rules which inhibited CNN's freedom in managing employees who
20 worked at the Bureau, she necessarily had to be referring to the restrictions in the collective
bargaining agreement. There is no other type of rule that to which she could have been
referring in this context. In January 2004, the collective bargaining agreement between Team
and NABET Local 11 had two years to run before its expiration.
25 CNN was planning to increase the use of "one-man bands" for field camera and audio
work. CNN's freedom of action with regard to the use of "one-man bands" would have been
inhibited by Article 19 of the collective bargaining agreement with Local 11, unless it got rid of
the Union or at least the restrictions of the union contract.
30 1 find Morrisey credible in part because she testified from contemporaneous notes. By
way of contrast, the CNN witnesses testifying about the September 29 meetings were relying
totally on their memory of events that occurred four and a half years earlier.26 Indeed, while the
CNN witnesses generally could remember what Curry did not say, most did not testify at all
about what she did say.
35
Moreover, Curry's testimony and what in fact occurred during the Bureau Staffing
Project, is completely consistent with Morrisey's recollection and her notes. Curry testified about
her September 29 meetings at Tr. 841 9-20:
40 We discussed that we were goi ng to be no longer working with Team Video
Services after a certain point.
That we were excited about the move into Time Warner Center and the
opportunity that the technology provided us and we really felt that it was an
45 opportunity for us to redefine the way we did things, and that we felt that we were
at a point where we could directly manage all of the employees who worked for
CNN in this newly reconfigured environment.
50 26 The number of notations recorded by Morrisey is consistent with Jeff Gershgorn's
testimony that the meeting he attended "was not brief." Tr. 7951.
23
J D-60-08
Later, in response to a question from CNN counsel, Curry stated at Tr. 8461:
Q. The complaint in this case alleges that at one of those meetings, the
attendees were told that there would be no union after the Team contract was
5 terminated. Did you say that there would be no union after the Team contract
was terminated?
A. No.
Q. Were there other managers at the meeting?
A. Yes.
10 Q. Did other managers speak?
A. Yes.
Q. Did any of them say that there would be no union after the team contact was
terminated?
A. I don't think so, no.27
15
First of all, there is no reason to believe that Curry actually remembers what she said at
every meeting on September 29. In a similar vein, Deputy Bureau Chief Edith Chapin, testified
that she recalls very little of what transpired, Tr. 9210-11:
20 A. Yes, is that the date that-she wrote the E-mail-on September 2 9 th_
I see the times of the meeting. I'm confused whether that is the day of the
meeting or not.
Q. Are you familiar with the meetings being referred to regardless of the date?
A. I have a vague recollection there were those meetings. And I'm confident I
25 attended one or more of them. But they are not memorable to me in any other
way.
Q. Did Ms. Curry speak at those meetings?
A. I'm sure she did, yes.
Q. At the meeting, did she or any other manager say that there would be no
30 union after the Team contract was terminated?
A. I have no recollection of that. That is something I would remember if it had
been said.
Curry's remarks must be viewed in the context of the record in this case as a whole.
35 What Curry admits to saying only makes sense if she was communicating at least implicitly an
intention to get rid of NABET. Curry did not claim to say that the reason for the Bureau Staffing
project was the inability of the TVS employees to work with new technology or TVS
shortcomings in managing its employees. In this context, Curry's message about "directly
managing employees at the Bureau," necessarily conveyed an intention to do so without the
40 Union. It also imparted a coercive message to CNN employees, who attended these meetings,
that CNN in general will not tolerate a union and thus violated Section 8(a)(1) as alleged in
Complaint paragraph 9(a).
This conclusion is supported by the following testimony of Edith Chapin, the Deputy
45 Bureau Chief, at Tr. 9083-84:
0. When did you become aware that CNN wanted to hire people directly to do
the camera work, the audio work that had previously been done by Team?
50 27 Curry testified that she believed that Ken Jautz, the head of CNNfn also spoke. Jautz did
not testify in this proceeding.
24
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A. I first learned of that in either iate August, early September of 2003.
Q. When did you first become aware or how, in what situation did that come up?
A. The first I heard of it was from Karen Curry.
Q. What did she tell you?
5 A. Precisely, I don't recall. But the message was that the company had decided
to ends its relationship with the contractor and that as we were looking to move
towards the Time Warner Center in 2004 and with the technological changes that
the company decided it was an opportunity to make the New York bureau and as
I understood the Washington bureau as well similar to all other CNN bureaus
10 around the world, and have a common work force and a comparable work force
that was interchangeable and that that would be something that we would be
working on in the months ahead, and that this would take place sometime early
in the new year.
15 A "comparable workforce that is interchangeable" with CNN's workforce at other
Bureaus suggests a desire to have a workforce that is nonunion, just like CNN's other bureaus
and its Atlanta headquarters.
Danielle Whelton's statement to Tim Garraty (Complaint paragraph 9 (k) as amended at trial)
20
On September 29, 2003, shortly after TVS cameraman Tim Garraty had learned that
CNN was cancelling the Team contract, CNN White House Executive Producer Danielle
Whelton called him into her office. During a discussion of this news, Garraty asked Whelton
where the Union fit into CNN's plans. Whelton told Garraty there would be no union when CNN
25 took over the technical workforce, Tr. 13750.28 Whelton's statement to Garraty violated Section
8(a)(1) as alleged in Complaint paragraph 9(k).
Kathryn Kross' statements to Local 31 President Mark Peach
30 Paragraph 9(b) alleges that CNN violated section 8(a)(1), by D.C. Bureau Chief Kathryn
Kross, on or about October 3, 2003, by telling CNN employees and Local 31 that after
December 5, 2003, the Union would no longer represent employees. There is no evidence of
remarks to CNN employees similar to those made by New York Bureau Chief Karen Curry.
However, Mark Peach, then President of Local 31, testified about a meeting he had with Kross
35 on October 3. Ordinarily, Peach's testimony is of the type at which I cast a jaundiced view due
to its self-serving nature and lack of corroboration. However, CNN neither called Kross to
contradict him, nor explained why the was unavailable to testify.29 Therefore, I credit the
following uncontradicted account by Peach:
40 A. I asked her what NABET's role at CNN -- what was NABET's role at
CNN going to be after the 5th.
Q. And did she respond?
28 CNN did not call Whelton to contradict this testimony nor does it claim that Whelton was
45 unavailable to testify, CNN brief at page 232..
29 CNN at page 222 of its initial brief states that Kross no longer works for CNN and was
available. CNN faults the General Counsel for failing to call Kross. However, in the absence of
any other evidence, Peach's account is credible.
CNN emphasizes Kross' assurance to Peach that there would be no discrimination against
50 unit members. However, there was plenty of discrimination and it is possible that Kross was not
privy to CNN's intentions in this regard on October 3.
25
J D-60-08
A. She did.
Q. What did Ms. Kross say?
A. She said that NABET would not be a part of CNN after the 5th, there
would be no need for NABET because these employees would be so happy that
5 they wouldn't need a union.
Q. How did you react?
A. I was shocked by her point-blank matter-of-factness. I was slack-jawed
sitting there. I couldn't believe what she was saying.
Q. And what happened next?
10 A. She appeared to sense my shock and proceeded to tell me that it's
okay, they won't -- they won't need a union if they're happy. I perceived her to be
trying to placate me based on my shock.
She said that NABET people wouldn't be discriminated against. It's
okay.
15 Q. And what did you say, if anything?
A. I looked at her and I said, You mean to tell me that the only reason for a
union is when management sucks?
She just sat there.
Q. How did the meeting end?
20 A. With that, I just -- I closed my book, I shook her hand, I thanked her for
her time and excused myself.
Tr. 1223-1 224.
25 Kross' remarks, in conjunction with other evidence, such as Garraty's uncontradicted
account of his conversation with Danielle Whelton and Barbara Morrisey's testimony, persuade
me that many CNN employees were aware by September 29, that CNN was planning to operate
the Washington and New York bureaus without a union.
30 Jeff Kinney's conversations and email about freelance work (Complaint paragraphs 9 (h) and (i))
Additional direct evidence of CNN's discriminatory motive is an email from Jeff Kinney,
the manager for photojournalists in New York to Jim Peithman, a cameraman who had worked
at the New York bureau from 1980 to 2003, but was not hired by CNN during the Bureau
35 Staffing Project, G.C. Exhibit 496.
Kinney testified that he did not send this email and CNN thus suggests that it is a
forgery. However, I find that to be extremely unlikely and I credit Peithman.30 Kinney
conceded that he had exchanged emails with Peithman, "probably soon after the transition,
40 early 2004," Tr. 11513. However, CNN introduced no evidence as to what these emails
concerned.31 The document contains both Kinney's email address and Peithman's email
address, Tr. 11513. Moreover, if Peithman were to have forged an email from Kinney, I believe
he would have drafted it in a fashion that would have been much more incriminating.
45 Peithman inquired of Kinney whether there was any possibility of his doing freelance
30 Due to what I regard as Kinney's untruthful testimony, I regard him to be a generally
incredible witness, when testifying in support of CNN's case on any issue.
31 Kinney testified that he searched his computer for the email that is G.C. 496 in 2005, Tr.
50 11512-13. He does not contend that he looked for it again after Peithman produced the email
and testified on April 7, 2008. It is unclear why Kinney would have looked for this email in 2005.
26
J D-60-08
camera work for CNN after the end of the CNN's contract with Team Video. 32 Kinney
responded:
Hi Jim,
5
How are things going with you? I've heard through the grapevine that you have
been sighted working around town a couple of times. It's good to hear that
you're getting work. I'm sure that as the Presidential race heats up, that more
work will present itself.
10
Things are going fine with the transition here. Things haven't gone entirely
painlessly, but we're keeping our heads above water. The network seems to be
trying to re-invent itself again, and with that there are many changes that aren't
easy to understand.
15
As far as freelance work goes, we haven't really had much of a need to bring in
anyone. While the reasons haven't been clearly articulated to me, there are
issues regarding freelancers, and specifically former Team Video employees. I
don't understand the liabilities and legalities involved, but suffice it to say that
20 we're part of a huge company that makes decisions by committee, at the
executive level, in rooms full of attorneys. I think that all of us yearn for aspects
of the old, idealistic CNN.
I have to believe that the policy regarding freelance hiring will change someday,
25 but until then, we'll have to make it work with what we have. Please feel free to
call me at any time, Jim. I sincerely hope that you and your family are doing well.
Take care and keep in touch.
Sincerely,
Jeff Kinney
30 212-714-580533
Sent from my BlackBerry Wireless Handheld
G.C. Exhibit 496, Tr. 10118.
35
The email on its face strongly suggests its authenticity. Kinney testified that CNN did not
hire any freelancers; to do camera or audio work in New York between January 16, 2004 and
sometime in March 2004, Tr. 11497-98. Moreover, it is likely that no freelancers; were hired to
do such work until sometime after May 18, 2004, Tr. 11497-11502.
40
It is clear from Kinney's email that CNN was discriminating against former Team Video
employees in regard to hiring them for freelance work. The motive for this policy is clearly a
concern that hiring such employees might adversely affect CNN's intention to remain non-
45
32 See page 108 herein for a discussion of the status of freelance or daily hire employees
50 when Team was the contractor at the New York and Washington bureaus.
33 Kinney did not contend that this was not his telephone number.
27
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union.34 Kinney's statement is a violation of Section 8(a)(1) as alleged in Complaint paragraph
9(h).
CNN's discriminatory motive is also evident from the credible testimony of freelance
5 cameraman Jonathan Smith about his conversations with Jeff Kinney. Whatever doubts I may
have entertained about Smith's testimony on March 28, 2008, were eliminated by James
Peithman's testimony on April 7, and particularly the email Peithman produced from Kinney.
Smith performed substantial freelance camera work for TVS at the New York bureau in 2003.
He applied for a position at CNN and was not hired. In January, just prior to end of the Team
10 Video contract, Smith approached Kinney and told him he wanted to be sure he could obtain
freelance camera work after CNN took control of the technical workforce on January 17. Kinney
responded that it, "would probably be possible."
Several weeks after January 17, Smith called Kinney again about freelance camera
15 work. Kinney told Smith that CNN was hiring cameramen who owned their own gear
(equipment). Smith responded that he had his own gear. Then Smith asked Kinney if his
membership in the Union was a problem. Kinney responded, "that's good to know." He told
Smith he would have to check with 'higher-ups."
20 Smith asked Kinney if he meant CNN's lawyers. Smith testified that "he said basically,
yes." Kinney told Smith that he had a good reputation at CNN and that he would be good to
have around because of his maturity. Smith called Kinney approximately three weeks later.
Kinney informed Smith that because of his prior relationship with Team Video and the Union,
CNN was not going to be able to offer him freelance work. Smith responded by observing that
25 he thought it was ironic that he had to join the Union because he had worked thirty days for
CNN and that now that membership was keeping him from his livelihood. Kinney agreed, Tr.
9844. Kinney's statements to Smith violate Section 8(a)(1) as alleged in Complaint paragraph
9(i).
30 Finally, that Kinney, an agent of CNN, bore animus towards unions is established by his
interview rating sheet for Jamie Wiener. Although, Kinney's overall rating of Wiener is fairly
good, he noted as a concern, Wiener's "union mentality?" G.C. Exh. 522 B, vol. 4, Wiener, B#
6151. Wiener was one of only two Team field audio technicians hired by CNN in New York.
However, Wiener was initially not included in the group of individuals to be offered a
35 photojournalist position.
Paragraph 9(g) of the Complaint: alleged statement by Lou Strauss
Jon Ford, a former TVS employee, testified that when Lou Strauss interviewed him for a
40 job at CNN during the Bureau Staffing Project, the following exchange took place at the end of
the interview:
A. I remember telling Lou that I felt bad that the employees were under a lot of
stress because I was a single guy, and I didn't feel as much stress as they were
45 feeling. So a lot of my friends who had families and mortgages to pay for I was
watching them suffer quite a bit. I mentioned that to him and he said that they
had nothing to worry about. "Everything is okay, there is nothing to worry about."
34 CNN's payroll records, which it claims it does not have, might show whether CNN was
50 hiring freelancers during the first months of 2004, or whether it was avoiding doing so by bring in
technicians from other CNN Bureaus.
28
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And at some point I asked him, I said is it a safe assumption to say the union
won't be back at CNN and he said yes, that's a safe assumption to make. And
he kind of got up at that point and kind of whisked me to the door. Tr. 10984-5.
5 When Strauss testified a few days before Ford, CNN counsel asked the following
question, Tr. 10275-76:
Q. Let me go to another allegation in the complaint. Paragraph 9G of the
complaint alleges that on or about November 25, 2003, during a job interview in
10 your office you told employees "that the union will not be back at CNN."
Did you ever make such a statement?
A. No.
Q. How are you sure that you didn't make such a statement?
A. Because it's not up to CNN to determine whether there is a union.
15 Again, it's up to the employees to decide if they are going to seek
representation..
I credit Ford for several reasons; first, Strauss' testimony does not directly contradict
Ford. Secondly, I asked Strauss to go through the list of 76 TVS Studio technicians to tell me
20 which ones CNN hired and which ones it did not, Tr. 10276-83. When Strauss got to Ford's
name, he volunteered that he didn't even recall him, something he did not do for any of the
other 76. 1 infer that Strauss stumbled on Ford's name because he recalled that he said
something that he should not have when interviewing him. 35 Finally, I view all of Strauss'
testimony with a jaundiced eye given his failure to mention the fact that he interviewed Neal
25 Rivera after the studio operator debriefing/selection meeting.
When a successor employer tells applicants that the company will be nonunion before it
hires its employees, the employer indicates to the applicants that it intends to discriminate
against the predecessor's employees to ensure its nonunion status. Thus, Strauss' statement
30 to Ford violated Section 8(a)(1), Eldorado, Inc., 335 NLRB 952, 952 (2001). The coercive
nature of Strauss' statement is not mitigated by his assurances that there was nothing to worry
about. Fifty of bargaining unit members in New York, including Ford, soon found out, if they did
not already realize, that there was plenty to worry about regarding their continued employment
at the CNN bureau and that their status as bargaining unit members would cost them their jobs.
35
Other direct evidence of anti-union animus
Although not alleged as Section 8(a)(1) violations, there is other direct evidence of anti-
union animus in this record. One example, discussed below, is the effort to draft position
40 questionnaires for photojournalist with a view to avoiding the Unions. Another example is that
Scott 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.
45 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.
35 Strauss was not the only CNN manager to be so candid during an interview. Jeff
50 Gershgorn testified that some engineering candidates asked him if they were interviewing for a
union job. He replied, "it is not." Tr. 7985.
29
JD-60-08
As noted by the Court of Appeals for the Ninth Circuit in Shattuck Denn Mining Corp. v.
NLRB, 366 F.2d 466, 470 (9 th Cir. 1966):
Actual motive, a state of mind, being the question, it is seldom that direct
5 evidence will be available that is not also self-serving. In such cases, the self-
serving declaration is not conclusive; the trier of fact may infer motive from the
total circumstances proved. Otherwise no person accused of unlawful motive
who took the stand and testified to lawful motive could be brought to book. Nor is
the trier of fact-here a trial examiner-required to be any more naif than is a judge.
10 If he finds that the stated motive for a discharge is false, he certainly can infer
that there is another motive. More than that, he can infer that the motive is one
that the employer desires to conceal-an unlawful motive-at least where, as in this
case, the surrounding facts tend to reinforce that inference.
15 Accord, Fast Food Merchandisers, 291 NLRB 897,898 (1988), Fluor Daniel, Inc., 304 NLRB
970, 971 (1991).
I conclude that the General Counsel has met its burden of proving that CNN's overall
plan, referred to in Complaint paragraph 22 (b), including the BSP, was discriminatorily
20 motivated.
I have reached this conclusion on the basis of direct evidence of discriminatory motive,
discussed above, and the following circumstantial evidence:
25 1) The degree to which CNN's desire to have a workforce able to cope with new
technology could have been, and in fact was, addressed by training;
2) Overwhelming evidence that the Bureau Staffing Project was a sham as established
by the following factors:
30
a) The absence of any clear evidence as to who actually decided which job
applicants would be hired and the basis on which these decisions were made.
b) The manner in which CNN set up its hiring process so as to minimize the
35 importance of the prior experience and work history of the Team Video job
applicants;
c) The uneven playing field on which TVS applicants were competing for their
jobs with non-TVS applicants which constitutes disparate treatment;
40
d) The importance CNN placed on certain qualifications, such as non-linear
editing (NLE), which CNN knew TVS applicants lacked, but which were
marginally important to the performance of the jobs for which they were applying,
or which Team applicants could have acquired with minimal training;
45
e) The disparate treatment in favor of non-TVS applicants with little experience,
including the so-called "growth candidates;"
f) The hiring of non former TVS employees in jobs subject to the Bureau Staffing
50 Project who had not applied and/or had not been interviewed prior to the
selection/debriefing meetings at which hiring decisions were purportedly made.
30
JD-60-08
g) CNN's departure from an employer's normal inclination to hire "known
quantities."
These considerations lead me to the conclusion that the reasons advanced by CNN for
5 terminating its contracts with Team Video, implementing the Bureau Staffing Project and its
hiring decisions during the BSP are pretexual. Thus, CNN did not meet its burden of proof set
forth in Wright Line and other Board cases.
Finally, I would note that while CNN hired many Team employees, this does not
10o preclude a finding of discrimination, It is well established that an employer's failure to take
adverse action against all union supporters does not disprove discriminatory motive, otherwise
established, for its adverse action against a particular union supporter, Master Security
Services, 270 NLRB 543, 552 (1984); Volair Contractors, Inc., 341 NLRB 673, 676 fn. 17
(2004). The fact that CNN hired many unit members and even some union activists is
15s outweighed by the overwhelming evidence that it discriminated against other unit members.
Moreover, it is quite apparent that had CNN refused to hire all bargaining unit members, it would
not have been able to operate its business, e.g., G.C. Exh. 595.
Training
20
Contrary to CNN's contentions, e.g., CNN brief at page 53, it was unnecessary for CNN
to hire a new workforce in order to take advantage of nonlinear editing or any other new
technological developments. Whatever concerns CNN had about implementing new technology
could have addressed by training the employees who already worked at the New York and
25 Washington Bureaus. This training could have been performed either through Team Video or
by CNN if it chose to terminate the TVS contracts.36
In fact, CNN trained all the employees it hired in the Bureau Staffing Project as it
implemented new technology, regardless of whether or not they previously worked for Team
30 Video. Secondly, it hired a majority of the technicians employed by Team Video. There is no
evidence that any of the former Team employees that were hired were incapable of adapting to
new technology. Moreover, there is no evidence that the Team employees CNN did not hire
could not have adapted to the new technology.
35 The hiring of audio designers in New York provides a perfect example of why CNN's
stated motive for the BSP is pretextual. At some point in the BSP process a list of audio
designer candidates was prepared in order of desirability, G.C. Exh. 513. Only 3 of the top 6
applicants on the list were former TVS employees. However, all three of the top nonTVS
candidates declined CNN's offer of employment. Thus, five of the six applicants hired had been
40 bargaining unit employees.
All five, Mark Hubbard, Jason Greenspan, James Pertz, Gerard Kaufold and Lawrence
36 The Electronic Newsgathering Agreement (ENGA) between CNN and Team provided that
45 Team "shall ensure that technicians are properly trained on any new equipment supplied by
ONNA," G.C. Exh. 40, p. 20. There is no evidence that Team failed to comply with this
contractual requirement.
When bidding on a renewal of the ENGA in June 2001, TVS listed among its key goals,
"continue to develop the skills of our technicians through training and supervision," and "help
50 ONNA make technological changes with minimal impact to their operations (e.g., the transition
to the SX cameras)," G.C. Exh. 589, pp. 3-4.
31
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Greenberg, successfully adapted to the new technology, such as the Euphonix audio board, and
were still CNN employees as of February 2008, CNN Exh. 543.37 The only nonTVS applicant
offered a position as part of the BSP was John Wesley Hamilton. He was terminated for poor
performance on April 3, 2004, and was replaced by Paul Bernius, a former TVS bargaining unit
5 member, who was next of the list referred to above, CNN Exh. 543, 545. Bernius was still
employed by CNN as an audio designer in February 2008.
The training CNN conducted after the termination of the TVS contracts establishes pretext
10 At the New York Bureau, all the engineering employees by CNN were required to
complete an extensive training program as a condition of their employment, CNN Exhibit 213.
This training was completed over a 6-8 month period as new equipment came on line, Tr. 8180,
8184, 8196-7, 8225. In fact, the engineers who had worked for TVS in some instances needed
less training than new engineers who had never worked at the New York Bureau previously, Tr.
15 8196-7.38
The photojournalists hired in the New York Bureau received extensive in-depth training
on Final Cut Pro (software for editing video on a computer) and other subjects in the first two
weeks of their employment with CNN. Jeff Kinney, CNN's photojournalist manager in New
20 York, testified that after two days of training on Final Cut Pro, a photojournalist would be able to
use this program to edit video in their work. As discussed later on, every single photojournalist
hired in New York was able to edit with Final Cut Pro two weeks after they were hired.
Training at the D.C. Bureau
25
The General Counsel asked Steve Redisch, CNN's D.C. Deputy Bureau Chief in 2003,
"Why was it necessary to cancel the contract with Team in order to address technology issues?"
Redisch answered, "I don't know," Tr. 5528. He doesn't know because CNN could have had
Team train its employees on new technology, including nonlinear editing, as Team had trained
30 its employees on new technology in the past (Tr. 380-82, 884, 1021, 3550-56, G.C. Exh. 180, p.
4), or provided the necessary training directly to Team's workforce.
Larry D'Anna, President of Team Video, testified in this regard at Tr. 3555:
35 As a new piece of equipment was introduced into the CNN Washington plant, we
provided training for our technicians to be able to operate that equipment. And it was
specifically related to the equipment we were expecting them to operate.
We provided training on specific type of digital equipment, yes.
40 An example of training Team gave its employees to perform their work for CNN occurred
in 2002 or 2003. Mike Peters, one of the principals of Team Video, conducted an intensive
week-long training session on the erection and operation of the jib camera, Tr. 6006-6008. The
jib camera is used for sweeping motion shots. To accommodate this training, which was
conducted for a group of eight employees, operators were relieved from their regular duties.39
45 _ _ _ _ _ _ _ _ _ _ _ _ _
37 Kaufold transferred to the CNN London Bureau in December 2007.
38 Similarly, CNN media co-coordinators who had worked for TVS not only needed less
training than those who had not worked for TVS, but at least one was responsible for training
new CNN media co-coordinators who had not worked for TVS, Tr. 10487.
50 39 Other groups of TVS employees may also have received such training at sessions other
than the one attended by witness Elizabeth Zosso, Tr. 6008.
32
JD-60-08
CNN could also have trained the Team employees, or the same workforce without
Team, in the same manner that it trained the workforce it hired during the Bureau staffing
project. CNN conducted a two-week training program for all 39 Washington photojournalists in
the weeks starting December 8 and 15, G.C. Exh. 323. Included in that training was
5 introductory and in depth training in Final Cut Pro. CNN also offered or required 5 days of NILE
training in February and March 2004 (CNN Exhibits 145 and 146). NILE training was offered or
required again for several days in 2005 or 2006.
The Final Cut Pro training that CNN provided to photojournalists in February and March
10 2004 was provided by Inez Perez,40 who also provided such training for the Union. TVS
camera operator Elizabeth Zosso, who was hired by CNN, received two days of training on Final
Cut Pro from Ms. Perez at a Union facility in Silver Spring, Maryland, prior to being interviewed
by CNN in the fall of 2003. She mentioned that she had some experience with NILE in her
interview and this may account in part for the fact that CNN hired her. 'Thus, CNN could have
15 had Ms. Perez train the TVS field technicians in nonlinear editing and could have avoided
putting 18 of them out on the street.
Ex-TVS photojournalists were not the only D.C. photojournalists who received training
from CNN in the months immediately following the termination of the TVS contract. Ben Coyte,
20 the photojournalist manager, provided training on Final Cut Pro, the BGAN transmission device
and/or its predecessor, and File Transfer Protocol to every photojournalist in D.C., Tr. 15,501.
The training on Final Cut Pro appears to have varied depending on the prior experience of the
photojournalist. CNN provided Doug Schantz, who already had experience with Final Cut Pro
with CNN in Atlanta, one-on-one sessions to learn more advanced techniques than those taught
25 to beginners.
Khalil Abdalah, Ken Tillis, Ron Helm and John Bena, who also were hired by CNN
essentially to replace members of the TVS workforce, were trained in File Transfer Protocol
(FTP) techniques in March 2004 (CNN Exh. 146). Derek Davis also had to be trained how to
30 use FTP, Tr. 15482-83. FTP is the process whereby the material is transmitted via the Internet,
Tr. 6394. Without this training, these photojournalists would not have been able to transmit
material via the Internet, Tr. 15,626.
Finally, it is not as if CNN did not have sufficient time to train the D.C. photojournalists in
35 Final Cut Pro, FTP, etc. CNN's basic Final Cut Pro course is a two-day course and its
advanced FCP course is another two day course, Tr. 15,633-34. For at least the first eight
months and possibly longer, following the end of the TVS contract in D.C., many of the
photojournalists were never called upon to edit with FCP or transmit via DNG techniques.
Those that did edit and/or use DNG did so rarely.
40
An unprecedented purge/Disparate Treatment vis-6-vis nonunion employees at CNN's Atlanta
headquarters
Another basis for my conclusion regarding pretext is that there is no evidence that CNN
45 has ever taken such draconian measures at any of its non-unionized bureaus or its Atlanta
headquarters. For instance, there is no evidence that whenever the photojournalist title was
introduced at CNN headquarters or other bureaus, that CNN replaced its incumbent
photographers.
50 40 MS. Perez is also referred to by the last name of her husband, TVS and CNN
photojournalist Jerry Thompson.
33
J D-60-08
Matthew Holcombe, Engineering Manager for CNN International, testified that CNN
updates its equipment very often. When it does so, it trains its employees, as opposed to
discharging current employees and hiring new ones. Most typically, CNN arranges to have this
training conducted by the vendor of the new equipment. Indeed, almost immediately after the
5 completion of the Bureau Staffing Project in New York, CNN conducted extensive training on its
new technology for all the employees it hired, regardless of whether or not they had worked at
the Bureau before January 17, 2004, Tr. 7719-7720, 8029-31, 8180-81, 81 84-85, 8225, 9259,
10439-40, 10825-32, CNNA Exhibits 213 and 214.
10 When CNN implemented server or computer-based production in Atlanta, it did not
conduct a whole-sale purge of its existing workforce, Tr. 2129-33, 7718-20, G.C. Exh. 101, pp. 8
& 10. 41 Instead, it has trained employees in new technology. For instance, in 2000, CNN
witness Rick Denius had an apparently seamless transition from a tape-based feeds operator to
a server-based "media coordinator," Tr. 13099-1 3101.
15
Similarly, when CNN introduced nonlinear editing in New York in 2002, it did not replace
the editor/producer employees who worked directly for CNN. Instead, CNN contracted with
Pinnacle, the manufacturer of its new nonlinear editing machines, to train these employees in
how to edit on the new equipment, Tr. 12424-25.
20
Anne Woodward, CNN Vice-President for Technical Operations, testified that the Atlanta
headquarters, New York and Washington bureaus were all using the Wheatstone audio boards
in 2003. These devices were replaced at all three bureaus, Tr. 13824-25. There is no evidence
that CNN solicited applicants for the audio technician positions and replaced any of the
25 incumbents when it replaced the Wheatstone audio board at its Atlanta headquarters, as it did in
New York and Washington.
Compelling evidence that the Bureau Staffing Project was a sham
30 Manipulations by High Level Executives
CNN contends that the hiring process in the Bureau Staffing Project was
nondiscriminatory. CNN submits that the BSP hiring decisions were made in
debriefing/selection meetings by the managers who interviewed the candidates. However, there
35 is a plethora of evidence that the process was a sham. The record shows, for example, that
CNN executives interfered with the process to prevent the hiring of Team Video bargaining unit
employees.42 In several cases, high level CNN officials directed the hiring of inexperienced
applicants over much more experienced, qualified Team unit employees.
40 _ _ _ _ _ _ _ _ _ _ _ _
41 CNN apparently laid off about some "feeds" employees in Atlanta when the Pinnacle
server was installed in 2005. Some "playback" employees were apparently laid off in about
2000 when Atlanta was transformed from an essentially tape-based environment to a server-
based environment. There is no evidence that any of these Atlanta employees were replaced
45 by employees from outside CNN or transfers from other bureaus, Tr. 12510-11, 12521, 12904,
42 The record also shows that applicants' interview scores were sometimes changed for
unexplained reasons. For example, G.C. Exh. 573 establishes that CNN's director of
engineering, Tu Vu, filled out two rating sheets for Oscar Romay, a NABET member, with
different scores, B#s 21588, 37720. Romay had been working full time at the CNN D.C.
50 Bureau as a freelancer, filling in for an engineer who was on disability leave. Vu's rating sheets
for unit member Nick Kiraly are also different, see n. 124 herein.
34
J D-60-08
At a debriefing/selection meeting heid on or about November 3, 2003, a list was drawn
up of the candidates for Technical Director (TD) at the Washington Bureau in order of their
desirability.43 As of November 21, 2003, Barbara Cranmer/McCloskey,44 a Team Video
bargaining unit member was above Christian Keller, a nonTVS employee, on the list. On that
5 date, Bob Hesskamp, CNN Senior Vice-President for technical operations in Atlanta, emailed
Cindy Patrick inquiring as to who was next on the TD list. Patrick informed him that Cranmer/
McClosky was next. Hesskamp's response was "AAHHHH," G.C. Exh. 534, Vol. 3, (Keller) B#
5464.
10 On November 24, Patrick directed Sue Diviney to "switch Christian Keller and Barb
Cranmer in TD, as Christian has accepted. Barb and Jimmy Suissa are unlikely to get offers,"
Id., B#1 9107. Sometime prior to December 4, Keller's rank in terms of the most desirable
candidate was changed from 8 th to 7t1h and Cranmer's position was changed from 7t1h to 8 1h , G.C.
Exhs. 268, 269. CNN has not offered any nondiscriminatory explanation for this switch.
15
In an interview conducted on October 27, Mike Maltas found Keller to be "not fully
competent-developable" in regard to his technical skills, G.C. 534, supra, at B# 19930. Steve
Alperin, a hiring manager from Atlanta, rated Keller higher but expressed concern that he was "a
bit inexperienced (but eager to learn)," Id., B# 14751. Keller worked for CNN for only four
20 months, CNN Exh. 544.45
CNN hired Cranmer McCloskey on December 15, 2003. She resigned after working for
CNN for about 6 weeks. In her exit interview, Cranmer McCloskey commented, "the company
did not hire back many people that were very qualified when they worked here under Team
25 Video. There were people not brought back that were top notch and I wished I had them during
some difficult times in the past month," G.C. Exh. 534, Vol. 3, B# 70818.
In another instance, Cindy Patrick directed that Craig Jackson, who was not a TVS
bargaining unit member, be hired instead of Peter Mohen, a Team Video employee, G.C. Exh.
30 534, vol. 3, B# 64005. It also appears that Jackson was moved ahead of Mohen and Paul
Skaife, another TVS employee, in the ranking of desirable candidates. A butcher block
indicates Jackson was once tied for 7 th place. On G.C. 270, a CNN BSP spreadsheet dated
December 5, 2003, Jackson has moved up to fifth place in front of Mohen and Skaife. Mohen
was offered a job at the last minute on December 5. CNN did not offer a position to Skaife.
35
40 _ _ _ _ _ _ _ _ _ _ _ _ _
43 CNN Exhibits 529 and 583-gives a schedule for the debriefing/selection meetings in
Washington. Although CNN witnesses could not remember the dates of these meetings, I infer
that they occurred on or about the dates listed in the exhibit: Monday, November 3, for
Director/Technical Director(TD), TD/ Director, Audio Designers; November 3 and 4 for studio
45 operators; November 5 and 6, for photojournalists; November 5 and 6 for the broadcast
engineers (BIT). Jim Hebb confirmed that the BIT selection/debriefing occurred on November 5,
but couldn't recall if it lasted more than one day, Tr. 13231 -32
44 MS. Cranmer apparently married or remarried in the late fall of 2003.
45 A number of employees hired during for BSP stayed in their jobs for a very short time.
50 Manuel Samaniego, a nonTVS applicant, worked at the D.C. Bureau as a technical director for
less than three months before resigning. He was rehired in 2006.
35
J D-60-08
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 meetinhgs
Washington Bureau
5
On December 29, 2003, Jose Nunez, an employee of CNN Espanol in Atlanta,
transferred to the D.C. Bureau as a technical director. Steve Aiperin apparently interviewed
Nunez for the TD/Director positions in New York and Washington on October 30, 2003, CNN
Exh. 694, B# 1166.46 Witness Kelli Clarke prepared a list of candidates for the TD/Director
10 position in Washington for use at the debriefing/selection meeting for technical directors, G.C.
Exh. 549. This meeting was held on November 3, 2003, CNN Exh. 583. Nunez's name is not
on this list.
Nunez's name also does not appear on a BSP position tracking spreadsheet dated
15 November 18, 2003, G.C. Exh. 268. However, Nunez's name does appear on a spreadsheet
dated December 4, 2003, G.C. Exh. 269. On a December 5, spreadsheet, Nunez is listed as
the ninth most desirable applicant for TD, G.C. Exh. 270. From this I infer that Nunez was not
discussed and considered at the se lecti on/de briefing meeting at which hiring decisions were
supposedly made. I also infer that CNN transferred Nunez to Washington to avoid hiring a TVS
20 applicant for discriminatory reasons.
New York Bureau
Engineers
25
Nowhere is it so evident that the Bureau Staffing Project was a charade than in the
selection process for the engineering and studio operations departments in the New York
Bureau. The debriefing/selection for the engineering department in New York was held on
December 4 and 5, 2003, Tr. 13228. Jim Hebb, a CNN human resources manager, who
30 attended this meeting, testified that CNN Exh. 531, a list of composite interview scores was
used at the meeting in the discussion of applicants, Tr. 13238.
Hebb testified that, "the purpose of the debrief meetings was to assure that there was a
consistent process and a fair process for evaluating candidates for each position and
35 determining who would be made offers," Tr. 13227. He also testified that "butcher blocks" were
used to document discussion of the engineering candidates in New York. These "butcher
blocks," which CNN cannot find, were, according to Hebb, used "to determine who is the best
candidate for each position," Tr. 13242. It is quite surprising that these documents would be lost
since CNN was concerned enough about the legal ramifications of the debrief meetings to
40 assign Scott Porter, a Turner attorney, to attend the meeting, Tr. 13230.
In actuality, the hiring process at the New York Bureau for engineers establishes that the
BSP process was a sham. CNN conducted a secret hiring process apart from the BSP that
none of its witnesses mentioned when testifying, G.C. Exhs. 396 & 397.47 CNN hired several
45 __ _ _ _ _ _ _ _ _ _ _ _
46 Alperin did not testify.
47 The silence of many CNN witness regarding the hiring of individuals who were interviewed
after the debriefing meetings leads me to discredit their testimony generally. I infer that virtually
every CNN witness involved in the BSP was aware of this fact. They are thus not credible
50 because they were more interested in supporting a litigation theory than in testifying candidly,
see, e.g., In re: Lexus of Concord, Inc., 330 NLRB 1409, 1412 n.9 (2000); Carruthers Ready
Continued
36
JD-60-08
engineers: Scott Garber, Chris Stewart (or Stuart), Juan Lopez, Arkady Labovsky and Conroy
Dave Reynolds, in January 2004, who did not participate in the BSP process. It also hired
several other engineers soon afterwards.48 None of their names appears on CNN Exh. 531.49
5 Mix, Inc., 262 NLRB 739 (1982).
For example, Matt Holcombe discussed the selection meeting at Tr. 7740-54 and gave no
indication that engineering candidates were interviewed and selected afterwards. Indeed,
Holcombe testified that he, "wasn't part of the process," after the selection meeting, Tr. 7754.
However, the record shows Holcombe interviewed Conroy Reynolds on December 18, two
10 weeks after the debriefing meeting for New York engineers.
Michelle Lackey testified that there was only one meeting at which hiring decisions were
made, Tr. 7892-94, as did Jeff Gershgorn, Tr. 7970-71. Gershgorn also interviewed Reynolds
on December 18, and Arkady Labovsky on December 17.
Lew Strauss also interviewed individuals after the debriefing meeting for studio operators
15 who were hired by CNN. I infer that this practice was common knowledge amongst the hiring
managers and others keeping track of the BSP, including, but not limited to: Cindy Patrick,
Marty Garrison, Loren Kile, Jim Hebb, Jeff Polikoff, John Courtney, Strauss, Holcombe,
Gershgorn, Rob Fox, Gina LaRussa and Tu Vu.
CNN's brief at page 241 states, "a debriefing session was held for each of the jobs." CNN's
20 brief does not suggest that there was more than one debriefing or selection meeting for any job
classification or that people who applied for positions after the debriefing meetings were hired
for positions subject to the BSP.
Jeff Polikoff's testimony that he discussed his experiences with Chris Stewart at the
selection meeting, Tr. 12703, is false. There is no evidence that Stewart was considered at the
25 December 4 and 5 debrief/selection meeting. In fact, Suzanne Mackiewicz's December 15,
inquiry to Polikoff, as to whether he knew Stewart, G.C, Exh. 392B (tab for Conroy Reynolds),
B# 20094, establishes that Stewart was not considered as a candidate at the selection meeting.
I would note that I inquired as to where hiring documents were regarding Stewart immediately
after Polikoff testified about him, Tr. 12704-05.
30 48 These include:
Joseph Cocozza was hired on March 1, 2004, as a BIT Support Engineer, CNN Exh.
543. Suzanne Mackiewicz, a contract recruiter, forwarded Coccoza's r~sum6 to Jeff Polikoff,
CNN's Vice President for Technical Operations, on February 10, 2004, CNN Exh. 551, tab 11.
Stanley Alexander "Alex" MacGregor was hired as a BIT Support Engineer on February
35 16, 2004, CNN Exh. 543. MacGregor, an employee of CNNfn in Atlanta, sent a cover letter to
Suzanne Mackiewicz on December 5, 2003. CNN Exh. 551, tab 12, B# 10155. Mackiewicz
forwarded this letter to Rick Cole, a CNN IT manager in Atlanta on January 21, 2004, Id. Cole
apparently interviewed MacGregor on that date. VP Jeff Polikoff's testimony at Tr. 12711-12
that MacGregor was hired as part of the Bureau Staffing Project is false. His testimony that
40 MacGregor attended the orientation on the "first weekend" is also false, unless MacGregor
attended before being hired. MacGregor's name does not appear on CNN Exh. 270, a new hire
orientation schedule for January 17 and 18.
I advised the parties on the record that I was unaware of any BSP hiring documents relating
to MacGregor and Coccoza, Tr. 12719.
45 49 On October 28, 2003, Jeff Polikoff emailed recruiter Suzanne Mackiewicz regarding Juan
Lopez, stating, "I know I thought he didn't have the experience. But lets interview him" G.C.
Exh. 391, B# 20079. Lopez was aplarently interviewed during the BSP for the position of BIT
Resource Manager. Rick Cole and Michelle Lackey deemed Lopez "not fit" for that position,
G.C. Exh. 398, B# 24774. There is no evidence that Lopez was discussed in the
50 selection/debriefing meeting for the position into which he was hired, Senior BIT Support
Engineer.
37
J D-60-08
On December 8, Conroy Reynolds applied to Time Warner, for a position as an
Audiovisual Services Manager, G.C. Exh. 3928, B# 14144. On December 15, 2003, a week
and a half after the selection meeting, recruiter Suzanne Mackiewicz forwarded Conroy
5 Reynolds' resume to Jeff Gershgorn, CNN's Engineering Director for the New York Bureau,
G.C. Exh. 392B, B# 26044. Gershgorn purportedly interviewed Reynolds the same day, B#
26034. Matthew Holcombe purportedly interviewed Reynolds on December 18, B# 2380.
Reynolds was hired as a BIT Support Engineer on January 9, 2004, effective January 17, 2004,
the day after Team Video ceased to be the contractor in New York. Thus, CNN hired Reynolds
10 as a BIT Support Engineer, after the selections for these positions had supposedly been
made. 50
Arkady Labovsky submitted a r~sum& to CNN in early October, 2003. However, Jeff
Gershgorn interviewed Labovsky on December 17, 2003, almost two weeks after the
15 debriefing/selection meeting, G.C. Exh. 392-B3, Labovsky, B#1 161. CNN checked his
references on January 8, 2004 and offered him a position as a BIT Support Engineer the next
day.
Hiring of nonapplicants and late applicants as media coordinators and studio operators
20
In New York, CNN hired four studio operators: Stephanie Santasier, Phil Johnson, Neal
Rivera and Amy Graham, in January 2004, who also did not go through the BSP process. None
of these individuals were members of the TVS bargaining unit.
25 The selection meeting for studio operators took place on December 2, 2003, and
possibly continued on December 3, G.C. Exh.G.C. 401.51 Santasier, Graham, Rivera and
Johnson do not appear on any lists of the applicants considered, G.C. Exhs. 498-501.
However, Lew Strauss interviewed Rivera on December 12. CNN offered Rivera a position as a
studio operator on January 8, 2004, G.C. Exh. 529, Studio Volume IV, book 3 of 4: Lindenfeld-
30 Rivera. There is no evidence that Rivera was subject to any other part of the BSP process.
Rick Denius forwarded Graham's resume to Lew Strauss and Andy Parsons on
December 17, two weeks after the selection/debriefing meeting, G.C. 528, vol 2. B# 2620.
Graham was interviewed by Parsons and Strauss on December 18. Strauss noted that Graham
35 was "not technical, but a self starter for sure," B#261 1. He concluded, "I'd take a risk on her,"
50 CNN notes at page 75 of its brief that Reynolds mentioned that he was a NABET member
on his CV, G.C. Exh. 392B, B# 26048. Reynolds' NABET membership has no bearing on this
case because what CNN was primarily concerned with was limiting the number of TVS
40 bargaining unit members it hired, something Reynolds was not.
Respondent also states that other nonTeam employees hired, such as Neal Rivera and
Terrence Thomas, indicated present or past union membership on their employment
applications. That is irrelevant for the same reasons. Moreover, as discussed earlier, the fact
that CNN hired many Team unit members does not preclude a finding of discrimination.
45 51 Lew Strauss, the only witness who testified about the selection meeting could not recall
the exact date, Tr. 10210. However, I infer from the notations on G.C. Exhs. 500 and 501, that
there was a meeting on December 2, 2003, as scheduled in G.C. Exh. 401. At this meeting
applicants for studio operator were discussed and ranked. There is no evidence that there was
any other selection/debriefing meeting for studio operator. Gina LaRussa, CNN human
50 relations director in New York, testified about a single debriefing meeting for studio operators
after which CNN had its final ranking list, Tr. 13333, 13337.
38
J D-60-08
B# 2619. There is no evidence that Graham was evaluated in the same way that applicants
were supposedly evaluated in the selection/debriefing meeting.
On December 17, Denius emailed Cindy Patrick about Philip Johnson, stating,
5
'Troy [McIntyre] interviewed Phil for DC, and he was an average candidate. I do
not believe we need to proceed with an additional interview for NY.
Are we comfortable with using his scores from the DC interview when we debrief
and candidate select for NY?
10
G.C. Exh. 528, vol. 2, B# 21189.
This email suggests that there was another debrief/selection meeting after the one in
early December. If so, this is something that CNN has not addressed either on the record or in
15 its briefs. In any event Lew Strauss and Andy Parsons interviewed Johnson on December 18.
Strauss' observations (with unexplained crossouts) are that Johnson had a minimal technical
background for a studio operator. He wrote and crossed out that Johnson's "tech skills are not
a fit for requirement (do not consider him a growth candidate)," B# 1845.52
20 Stephanie Santasier apparently applied online for the studio operator position on
October 15, 2003, G.C. Exh. 530, vol. 4, B# 5312. However, it was not until December 16, that
recruiter Shari Saye referred Santasier to New York for an interview. Saye described Santasier
as "definitely a growth candidate." Strauss and Parson apparently interviewed Santasier on
December 18, Id., B#s 5314, 5329. She was offered a job on January 6, 2004, Id., B# 10899.
25
These candidates were hired instead of such TVS applicants as Aspry Jones, who did
go through the BSP process. Jones was rated a "not strong" candidate in the
selection/debriefing meeting. However, it is unclear how this was determined and CNN has
offered no explanation for this rating. Lew Strauss opined that Jones was "a quiet achiever-
30 someone who will be an asset to CNN-Question is where," G.C. 528, vol. 2, B# 8776. John
Silva, a CNN witness, who supervised Jones for Team testified that he chose Jones as a
bargaining unit "supervisor" because "he was quick. He had technical ability. He could manage
very well. He demanded the job to be done right, and he was willing to learn," Tr. 1 1797.53
35 Transfers and part-time employees in positions covered by the BSP
CNN also transferred some of its employees into positions subject to the BSP, without
subjecting them to the BSP interview and evaluation process. Kim Moscaritolo, who worked for
Rob Fox in CNNfn, was transferred into media operations on January 17, 2004. CNN hiring
40 managers did not interview Moscaritolo for a media coordinator position. Her name does not
52 CNN Exhibit 559, tab 34 contains a butcher block for Johnson in which he was rated a
",not strong" candidate. Listed as developmental areas were "light on relevant experience" and
"1motivational fit." I infer this is a "butcher block" from a debrief/selection meeting in Washington,
45 D.C. held in November 2003. There is no evidence that such a meeting took place in New York
after December 2.
53 As discussed later, Jones was not a statutory supervisor. He assigned employees to
particular positions in the control room after TVS management had assigned a crew to the
control room. Jones did not discipline employees or make hiring decisions. Jones, rather than
50 TVS manager John Silva, performed the hands on technical work when there was a problem in
the control room, Tr. 11798.
39
JD-60-08
appear on CNN Exhs. 539 and 540, which are the final rankings of applicants purportedly
recorded at the December 9, 2003 debriefing session for this position, Tr. 13,332.
Since Rob Fox supervised Moscaritolo in CNNfn, and then supervised media
5 operations, I infer that he was aware that she was hired or transferred into media operations
without being compared to BSP applicants at the debriefing meeting for media coordinator
candidates. CNN also employed Timothy Rubino and Diane Zisa as part-time media
coordinators from January 17, until June 7, 2004, Id.; neither participated in the BSP. 54
10 Disparate treatment vis-6-vis nonunion employees at the Washington and New York Bureaus
Some employees who already worked directly for CNN in Washington and New York
had to reapply for their jobs in the Bureau Staffing Project and some did not. With regard to
both groups, Respondent did not replace its non-unionized employees to accommodate its new
15 technology; it trained the employees it already had. For example, none of the 20 editor-
producers who worked directly for CNN prior to January 17, 2004 in New York lost their jobs.
Instead, CNN trained these employees to edit differently using the computer-based equipment
that was being installed at the new Time-Warner Center, Tr. 12254-55. Similarly, none of
CNN's eight electronics graphics operators lost their jobs due to the fact that they were going to
20 be working with new technology, Tr. 10412-1 3.
Although a number of CNN employees in New York and Washington had to apply for
their jobs pursuant to the Bureau Staffing Project, with only a few exceptions, no CNN employee
lost their job.55 By way of contrast, about 55 of 120 TVS bargaining unit employees in New
25 York and about 38 of 86 TVS bargaining unit employees in Washington lost their jobs.
If the Bureau Staffing Project was motivated, as CNN contends, by a good faith belief
that the personnel in the D.C. and New York bureaus could not acclimate to new technology,
the number of CNN employees who lost their jobs would be similar to the number of unionized
30 TVS employees who lost theirs. The fact that is not the case strongly suggests. discriminatory
motive.
Absence of evidence as to how and why hiring decisions were made
35 There is very little specific evidence in this record as to how and why CNN selected
some applicants who applied during the BSP over other applicants. It is very unclear how the
various steps in the BSP related to one another. For example, there appears to be no
correlation between an applicant's interview scores and their ranking at the debriefing
sessions.56
40 _ _ _ _ _ _ _ _ _ _ _ _
54 The names of Zisa and Rubino appear on CNN's schedule for the week starting January
19, 2004, CNN Exh. 356. There are also the names of other "floaters/freelancers" on the
schedule.
There are some errors in CNN Exhs. 543 and 544 some of which have to do with the
45 employees' job titles. CNN has not given me a comprehensive list of the errors in this exhibit.
55 Only some CNN employees had to reapply for their jobs during the Bureau Staffing
Project. In the Informational Technology Department in New York, 5 of the 14 CNN employees
had to reapply. Four of the Five were hired; the fifth, Wendy Deloughy, is the only CNN
employee so far as I can tell, who was not rehired during the Bureau Staffing Project.
50 56 There is no need for me to devote a lot time to discussing the very suspicious aspects of
the interviews and interview rating process. The lack of evidence that Respondent relied on the
Continued
40
JD-60-08
More importantly, the most critical step in the hiring process, appears to be the placing of
applicants into categories, such as "very strong possible," "strong possible," "possible," "possible
minus." Unless a candidate was put into one of the higher categories, he or she was effectively
eliminated from consideration for hire. This record does not establish when applicants were
5 placed into these categories or by whom.
In some cases, even if you take CNN's testimony and documents at face value, it is
impossible to discern the basis for some of its hiring decisions. One example concerns Ron
Couvillion and Khalil Abdallah, neither of whom were TVS unit members. Couvillion rejected
10 CNN's offer of a photojournalist position in Washington, CNN Exh. 693, Tab 8, Tr. 4026.
Abdallah accepted an offer.
The general tenor of CNN's testimony, at least with respect to the Washington
photojournalists, is that its hiring managers met in a selection or debriefing meeting to discuss
15 the candidates that had been interviewed. Each hiring manager then made a list in the order of
the applicants they wished to hire and then the hiring decisions were made by averaging these
lists.
The documentary evidence indicates that Couvillion was not ranked by hiring manager
20 Dan Young. Khalil Abdallah was not ranked by hiring manager John Courtney, G.C. Exhs. 250
and 241. There is no explanation as to why these two applicants were offered jobs despite the
fact that they were not ranked by every hiring manager. There were no TVS unit members hired
as a photojournalist in Washington who were not ranked by every single hiring manager.
25 The absence of credible evidence regarding the hiring decisions made for photojournalists
TVS employees learned that CNN was terminating its contract with Team Video on or
about September 29, 2003. Many Team Video employees, including camera operators,
immediately became concerned about their jobs. Rick Morse, a TVS cameraman assigned to
30 the White House, asked Danielle Whelton, CNN's Executive Producer for the White House,
what was going to happen. Whelton told Morse that, "all you guys on the White House unit will
be okay," Tr. 6201-02. In fact, CNN hired all TVS employees regularly assigned to the White
House.
35 TVS employees were told to visit the Turner jobs website and apply for whatever
positions at the D.C. bureau that they were interested in. After applying, a human resources
recruiter conducted an initial telephone interview with each applicant. Then applicants who
were not screened out as unqualified for the photojournalist position were interviewed by one or
more CNN "hiring managers" in late October and early November 2003.
40
However, so far as this record shows, one and only one hiring manager, CNN's chief
photographer Dan Young, had the authority to overrule the recruiters and have an applicant
interviewed who the recruiter had screened out. With the exception of freelancer Beth Lasch in
New York, none of these applicants were T\/S bargaining unit members. Several of these
45 nonunit applicants were hired; Lasch was not.57
interview scores alone demonstrates that the BSP process was a sham.
57 Initially, CNN recruiters did not recommend that TVS photographer Mark Marchione, who
had worked at the D.C. bureau since 1996, be given an interview. This recommendation was
50 changed between October 27 and 28, 2003, for reasons that are not contained in this record,
G.C. 228 Tab E. Marchione was not hired during the BSP, but CNN did hire him as a
Continued
41
J D-60-08
Loren Kile, a Turner Broadcast Systems recruitment manager, testified that she
designed the hiring process so as to require interviews by multiple interviewers, Tr. 12957. This
process was not followed in all cases. T\IS camera operators Sarah Pacheco and Tyrone
Riggs58 were only interviewed by one hiring manager, Matt Speiser. CNN did not hire either
5 Pacheco or Riggs.
The record also establishes that a number of nonTVS applicants for photojournalist
positions were only interviewed by one hiring manager. Among these applicants who were
hired by CNN were: Derek Davis (by Dan Young on the telephone) G.C. Exh. 543, vol. 1, B#
10 125794, John Bena (by Dan Young), Jeremy Harlan (by Dan Young), Jose Santos (by Steve
Redisch) and Ken Tillis (by Dan Young) G.C. Exhs. 228, vol. 11, & G.C. Exh. 266.
For the D.C. Bureau, the photojournalist hiring managers were Matthew Speiser, then
the Director of Newsgathering for the D.C. Bureau, his supervisor, Stewart "Steve' Redisch, the
15 Deputy Bureau Chief in D.C., R. J. Fletcher, Operations Supervisor, CNN Newsource, John
Courtney, Vice President of the CNN Media Group in Atlanta, and Daniel Young, Field Producer
and Chief Photographer for CNN in Atlanta. A very few applicants were interviewed by Michael
Maltas, a director in D.C. Some applicants were interviewed by several hiring managers, others
were interviewed by only one. In some interviews, one or more of the hiring managers,
20 particularly Dan Young, participated by telephone.
Of the hiring mangers, only Redisch and Speiser worked at the Washington Bureau.
Neither Redisch nor Speiser had any responsibility for the cameramen/photojournalists and their
familiarity with the work of many, if not all, the TVS field technicians was very limited.
25
It is also very unclear what actually transpired during the BSP, how the various steps in
the hiring process related to each other and on what basis the final decisions were made. For
one thing, the deliberations during the BSP are poorly documented. CNN's witnesses generally
recall very little of what occurred, and their testimony is often inconsistent.
30
For example, John Courtney testified that at the meeting at which hiring decisions were
made for New York photojournalists, he had no information as to how applicants were rated in
their interviews. Tr. 12485-87. He also testified that he had no such information at the selection
meeting in Washington, Tr. 12502.59 If his testimony is accurate, it indicates that the interview
35 process was a complete sham. However, Gina LaRussa, CNN's HR Director in New York,
testified that the hiring managers brought their interview ratings to each debriefing/selection
meeting, Tr. 13320. Moreover, the testimony of CNN witnesses as to what transpired during the
BSP is in some cases clearly inaccurate.60
40 As shown below, CNN constantly kept track of how many TVS bargaining unit
employees it was hiring. Thus, throughout the Bureau Staffing Project, CNN was determined to
limit the number of bargaining unit employees hired in order to avoid having to recognize and
bargain with the Union.
45 photojournalist in January 2004.
58 G.C. Exh. 543, vol. 3.
59 On redirect, CNN counsel led Courtney to change his testimony about the availability of
applicants' ratings, Tr. 12513-18. This only demonstrates the unreliability of his testimony.
60 For example, John Courtney testified that in New York all photojournalist candidates were
50 ranked, Tr. 12495-96. A quick perusal of G.C. Exh. 429 indicates that this is not so, inasmuch
as TVS applicant Jim Peithman was not ranked by any hiring manager.
42
J D-60-08
An indication of this determination is contained in G.C. exhibits 260 and 268. On the
second to the last page of G.C. Exh. 260, a list in which Steve Redisch ranked the candidates
for photojournalist, he wrote "46-27." CNN counsel asked Redisch:
5
Q. There was some implication that 46 minus 27 in some way referred to union
membership or Team Video employment?
A. That is the-that was the implication by the General Counsel.
Q. What is your response to that?
10 A. My response is that I would have to do the math. I don't know, I don't know
why I did that. I don't recall why I did that.
Tr. 5693.
15 In fact, by looking at page 2 of CNN Exhibit 70, it is quite obvious that "46-27" refers to
the ratio of TVS employees that would have been offered employment according to a list
complied on or prior to November 1 7.61 At a meeting on November 18, 2003, this list was
revised, placing three TVS employees; Mike Greene, Chris Hamilton and Mark Marchione,
lower than they had been ranked previously, G.C. Exh. 268, B#s 42473 and 42474, Tr. 4189.
20
The critical classification of applicants into categories
After the interviews, the five Washington hiring managers for photojournalists met in a
two-day debriefing session on November 5 and 6, 2003, in a room that had been a health club
25 at the Bureau, CNN Exh. 529. A similar meeting regarding applicants for photojournalist in New
York was held December 9-1 1, G.C. Exh. 401. At some point, not necessarily at these
meetings, applicants were placed in categories, such as very strong possible, possible, possible
minus. Unless an applicant was placed in one of the higher categories, he or she was
effectively eliminated from consideration for hire.
30
1 infer that applicants were not placed in these categories by the hiring managers but
that this critical step was performed by higher level management. I draw this inference on the
basis on the record as a whole, with particular emphasis, on the inability of CNN's witnesses to
testify credibly as to when this categorization took place and who participated. I also rely on the
35 uncontradicted testimony of Brian Kiederling that he was told by Edith Chapin, CNN's Deputy
Bureau Chief, that the hiring decisions for New York photojournalists were not made in New
York, Tr. 10010.
CNN's witnesses testified that at the debriefing meetings, each applicant was evaluated
40 on a large sheet of butcher block paper that was affixed to the walls. At some point, these
sheets were arranged in order of the candidates' desirability. However, it is quite possible that
this order had been determined, to some extent, beforehand. I draw this inference from the
following exchange between the General Counsel and former New York Bureau Chief Karen
C urry:
45
21 Q. I'd like to ask you during this
22 ranking meeting, would you tell me how it
61 Although, I decline to credit any testimony of any CNN management witnesses unless
50 corroborated by other credible evidence, I specifically discredit Cynthia Patrick's testimony at Tr.
12894, that the subject of how many Team Video employees would be hired, "never came up."
43
J D-60-08
23 progressed? You started with the materials
24 you had in front of you, correct?
25 A. Yes.
1 Q. And then individual candidates' names
5 2 I'm assuming were raised.
3 Take me through it from there, what
4 happened?
Tr. 8393-94.
10
9 A. It's been a long time.
10 From my recollection, we set up sort
15 11 of buckets for different categories, and I'm
12 seeing from my notes here that the very,
13 strong, possible, VSP -- and then strong,
14 possible and possible plus.
15 So my sense of things is that we went
20 16 candidate by candidate and thought in terms of
17 where we would put them in this initial
18 go-round.
19 Q. When you say buckets, are you
20 referring to butcher block sheets of paper?
25 21 A. Yes, I think that's what it was.
22 Q. How did you use those, were those
23 fastened to the wall or on easels?
24 A. My recollection is they were on the
25 wall.
30
Tr. 8394
35 Q. Very strong possibilities, how did
those names get there?
A. When the candidate was being
discussed, and it was determined which one of
these categories he or she belonged in, that's
40 when that person's name was put into that
category.
Q. Let me ask you again, Ms. Curry, when
were the categories established?
A. I can tell you what I assume.
45 I can't tell you --
Q. You can tell me "I don't recall, I
just don't remember"?
A. I don't recall.
Tr. 8397-8398
50
Matt Speiser, CNN's director of newsgathering in Washington, was similarly unable to
recall when this critical categorization took place during the selection process for
44
JD-60-08
photojournalists in Washington.
I'm very hazy on this point about how it was done, but people were ranked with
one of those designations.
5 Tr. 4182.
1 infer from this that Speiser played no role in this categorization. I find that Speiser
used the passive voice when testifying, because he not involved in this part of the selection
process. The same is true for Edith Chapin, then Deputy Bureau Chief in New York, who was
1o also unable to testify when this classification took place, Tr. 9239.
Virtually, none of the CNN witnesses could recall who did the writing on the butcher
blocks, or the order in which job applicants were discussed. The fact that two butcher blocks
exist for some applicants, makes me very skeptical as to when and how these large sheets of
15 paper were created.62
For example, on what appears to be a butcher block relating to the Washington
selection, TVS applicant Martin Jimenez is classified as a "possible +," G.C. 262, Tr. 4105-06,
5633, 5859. On another, he is classified as a "possible -", G.C. Exh. 543, Vol 2, B# 16374.
20 CNN did not hire Jimenez and he was not ranked as one of the top 55 applicants, as discussed
below. CNN's inability to explain what G.C. Exhibit G.C. 262 represents indicates to me that
some or all of the butcher blocks were not created, and some or all of the categorization of
applicants may not have been accomplished at the debriefing/selection meetings.
25 Each of the Washington sheets indicated the applicant's current employer, e.g., Team
Video or CNN Atlanta, so that if the hiring managers were inclined to keep track of which
applicants were members of the NABET bargaining units, it was easy to do so.
On one side of each butcher block was listed the applicant's strengths, on the other
30 "development areas,' which I would assume to be weaknesses. At the bottom of the sheet was
an assessment of the applicant's chances of being hired, i.e., 'possible +," strong possible, "not
strong", "possible -". At least some of these assessments changed during the course of the
debriefing session, or at some other time, for unexplained reasons.
35 __ _ _ _ _ _ _ _ _ _ _ _ _
62 Jim Hebb, a Turner human resources representative, did the writing on the butcher blocks
used at the debriefings for engineers, which CNN can apparently no longer locate.
However, with regard to the other debriefing/selection meetings, CNN's witnesses were
often unable or failed to credibly identify any individual who wrote on the butcher blocks, or were
40 inconsistent: e.g., Speiser, Tr. 3977-78; Redisch, Tr. 5609; Fletcher Tr. 5787-88, 5829;
Holcombe, Tr. 7745, 7775; Gershgorn, Tr. 7982-83; Curry, Tr. 8394-98, Chapin, Tr. 9156;
Kinney, Tr. 9302-12; Strauss, Tr. 10242; Fox, Tr. 12289-90; Courtney, Tr. 12486; Denius, Tr.
13173; McIntyre Tr. 14586; Kile Tr. 14806.
Fletcher testified that at the photojournalist debriefing in Washington, only recruiters Kile and
45 Denius wrote on the butcher blocks, Tr. 5787-88. Kile testified that "a number of different
people" did so, Tr. 14806.
My inference that applicants had been categorized prior to the debriefing meetings is also
based on the inability of many of CNN's witnesses to testify as to the order in which job
applicants were discussed: Speiser Tr. 4175; Redisch Tr. 5686, Fletcher Tr. 5792, 5875; Curry
50 Tr. 8473; Chapin Tr. 9158; Kinney Tr. 9295; Strauss Tr. 10215; Fox Tr. 10308; Courtney Tr.
12487-88, 12498; Hebb Tr. 13239; Kile Tr. 14811.
-7 45
JD-60-08
At some point each of the five Washington hiring managers ranked applicants from 1 -
55; this also may have been done more than once. Some candidates were not ranked by any
one of the five; some were ranked by some and not others.63 A composite list or final
composite list of the rankings was compiled and the number where each applicant fell on that
5 list was written on the back of the butcher block sheet. There is no reliable evidence as to how
these rankings relate to the other steps in the hiring process.
An examination of the record evidence regarding some of the TVS applicants who were
not hired and some of non-TVS applicants who were hired demonstrates how difficult it is to
1o discern any rational nondiscriminatory basis for this hiring process:
The absence of any credible nondiscriminatory evidence as to why non TVS applicants were
hired instead of Team Video bargaining unit members
15 The D.C. cameramen/Photojournalists
As the lists below show, in the Bureau staffing project, CNN essentially replaced 18
camera operators from the TVS bargaining unit, some of whom had worked at the D.C. Bureau
for as much as 18 years. These photojournalists (or cameramen) were replaced by seventeen
20 employees, sixteen of whom had never worked at the Bureau previously.64 Of these 17, seven
transferred from CNN in Atlanta and one transferred from CNN in London. Three of the newly
hired photojournalists worked for a related company, CNN Newsource. Six new hires had no
relationship with CNN immediately prior to December 6, 2003.
25 Table 1: The 28 TVS field technicians hired by CNN as photojournalists, senior photojournalists
and lighting specialists on December 6, 2003:
Senior photojournalist:
30 Jerry Thompson
Rick Morse
Anthony Urmani
Barry Schlegel
Reginald Selma
35
Photojournalist:
Burke Buckhorn
Mike Bannigan
40 Tim Garraty
Kim Uhl
Mark Walz
John Bodner
Brian Yakyvich
45 _ _ _ _ _ _ _ _ _ _ _ _
63 There were more than 55 applicants. Some nonTVS applicants were weeded out in the
telephone interview. The exact number interviewed by the hiring managers appears to
approximately 70.
64 In the BSP, CNN hired Jerry Appleman as a photojournalist in Washington at a salary of
50 $60,000. Appleman had been working for CNN in Atlanta. He came to Washington on
December 6, and then returned to Atlanta almost immediately.
46
JD-60-08
Skip Nocciola
Peter Morris
Martin Dougherty
Maurice George
5 Ken Tuohey
Eddie Gross
Dave Catrett
Bill Alberter
James "Giacco" Riggs
10 Worth Kinlaw
Elizabeth Zosso
Dave Scherer
Mike Greene
15 Lighting Specialists
Dave Berman
Greg Robertson
Geoff Parker
20
All of the Team Video technicians assigned to a White House crew (Morse, Waltz,
Buckhorn, Greene, Schlegel, Garraty, Robertson, Parker and Berman) were hired by CNN, Tr.
6191, G.C. Exh. 270.
25 Table 2: TVS camera operators not hired by CNN and their seniority date with Team
Video and prior contractors at the CNN Washington D.C. Bureau:
1. Charles Anderson- August 2002
2. Rodney Atkinson-February 1996
30 3. Tim Bintrim-May 1988
4. James Cook-November 1995
5. Daniel Farkas-November 1998
6. Chris Hamilton-July 1994 [offered a job by CNN on December 22, 2003; rejected
offer]
35 7. David Jenkins-November 1995 [hired by CNN July 5, 2004]
8. Martin Jimenez-February 1996
9. Larry Langley-August 1996 [hired by CNN for work as a freelancer within 6
months of 12/5/03, Tr. 5519]
10. Myron Leake-October 1997 [hired by CNN for work as a freelancer within 6
40 months of 12/5/03]
11. Mark Marchione-February 1996 [hired by CNN on January 5, 2004]
12. Luis Munoz-June 1997
13. James Norris-September 2000
14. Sarah Pacheco-July 1990
45 15. John Quinnette-May 1985 [hired by CNN for work as a freelancer within 6
months of 12/5/03]
16. Tyrone Riggs-July 1991
17. James Suddeth-March 2003
18. John Urman-November 1989
50
Table 3: 16 Non TVS bargaining unit employees hired by CNN by December 6, 2003
and former employer (from G.C. Exhibits 270 & 272):
47
JD0-60-08
Jose Santos, Belo -Senior Photojournalist
Derek Davis, KHOU-Senior Photojournalist
Jay McMichael, (self-employed) Senior photojournalist (had worked for TVS prior to
2003)
5 Daniel King (Lopez), KNTV-San Francisco-(ceased working for CNN in August
2004)65
Doug Schantz, CNN Atlanta,
Brian Pearson, CNN Atlanta,
John Bena-Capital News 9, Albany, New York,
10 Jeremy Moorhead, WBFF, Baltimore,
Ken Tillis, CNN Newsource, Seattle,
Floyd Yarmuth, CNN Atlanta,
Jeremy Harlan, KOAT, Albuquerque,
Ray Britch, CNN London,
15 Bethany Chamberland Swain, CNN Newsource, D.C.,
Ron Helm, CNN Atlanta,
Khalil Abdalllah, CNN Newsource, D.C.,
James (Mike) Haan, CNN Atlanta
Jerry Appleman, CNN Atlanta
20
Bena, Moorhead, Appleman and Harlan were hired at an annual salary that was $20,000
lower than that of the senior photojournalists and $15,000 below that of many of the more
experienced photojournalists. Chamberland/Swain, Helm and Abdallah were hired at an annual
salary $15,000 lower than that of the senior photojournalists. Thus, it is not clear, as CNN
25 contends, that saving money was not a consideration in implementing the BSP and in the hiring
decisions made during the Bureau Staffing Project.
These hiring decisions are at a minimum counterintuitive. As the Board has recognized
in a number of cases, "it is human nature to want to hire "known quantities," Smoke House
30 Restaurant, 347 NLRB No. 16 (2006), slip opinion at page 5, n. 13 and cases cited therein. In
fact, Team Video Vice-President Larry D'Anna, testified in this proceeding at Tr. 3676-77, that
his company prefers "known quantities." In responding to his counsel's question, as to the
process he used in hiring freelancers as regular Team employees, D'Anna stated:
35 .. . Elizabeth Zosso. ... was a freelancer with us for a period of time. Our people
had an opportunity to observe her work, and when positions became available,
we first looked at the people that we had used on a regular basis as a freelancers
because they were a known quantity and we knew what the quality of their work
was. And that gave us a basis for hiring those individuals (emphasis added).
40
The quality of bargaining unit employees' work for CNN while Team was its contractor
was acceptable, according to then Deputy Bureau Chief Steve Redisch, Tr. 5515. Matt Speiser,
the Director of Newsgathering, testified that he was satisfied with the services provided by the
TVS cameramen and audio technicians, Tr. 3762. However, contrary to "human nature,"
45 CNN's former deputy bureau chief, Steve Redisch testified that an applicant's experience in
working at the CNN D.C. Bureau with Team Video was "wasn't a factor at all" in CNN's hiring
decisions with regard to photojournalist applicants, Tr. 5693.
50 65 Lopez was already trying to leave Washington by February 2, 2004, G.C. Exh. 543, vol. 2,
B# 18161.
48
JD-60-08
The hiring process was designed to minimize the importance of the T\/S applicants' prior
experience at the D.C. Bureau their and work history. It was also devised so as to allow for a
maximum amount of flexibility and/or manipulation. In order to minimize the impact of the T\/S
applicants' experience, no hiring manager discussed the strengths and weaknesses of TVS
5 cameramen with Brad Simons, their TVS supervisor, nor did they look at TVS personnel files.
Brad Simons, in fact, offered to share his insights on the applicants with CNN hiring manager
Matt Speiser, who rejected the offer.
Speiser testified that he did not take Simons up on his offer for the following reason:
10
There were a lot of people who wanted to give input. He wasn't the only one.
And I was-in doing these behavioral interviews, I was trying to keep the process
as clean as possible, as I mentioned earlier...
15 Other than Brad, who was driving to give you input?
Editors, correspondents, assignment editors.
These are all people who had worked with these applicants?
Yes.
20 Tr. 3934.
Speiser's testimony about keeping the process as clean as possible indicates an
intention of maintaining as level a playing field as possible for all applicants. However, the field
was decidedly not level. For example, Bethany Chamberland Swain and Khalil Abdallah, two of
25 the relatively inexperienced non-TVS candidates, were interviewed by their boss at CNN
Newsource, R. J. Fletcher.66 Fletcher testified that he lobbied other hiring managers on behalf
of Abdallah.67 CNN hired both Swain and Abdallah.68
In an October 10, 2003 email that went to hiring managers Speiser, Young and
30 Courtney, among others, Fletcher advised that Abdallah's shooting is good and solid and that
he is very dependable, G.C. Exh. 228, Tab J, B# 14783 . Fletcher also spoke up for Abdallah in
the debriefing session at which preliminary hiring decisions may have been made, Tr. 5835. On
October 10, Fletcher also passed along to Speiser and Young, favorable comments about
applicant Tony Butler, a freelance photographer who worked for him at D.C. Newsource, G.C.
35 Exh. 330.
Similarly, on October 13, Dan Young passed along a favorable assessment of CNN
Atlanta employee Doug Schantz, to Speiser, Courtney and Young, among others, G.C. Exh.
228, Tab T, B# 22455. Schantz was an Advanced Video Tape Editor. He was interviewed in
40 Atlanta on October 21, 2003, by John Courtney, who was his immediate supervisor's supervisor
66 Fletcher initially testified that he did not recall interviewing Chamberland/Swain. Then his
memory was refreshed by his interview guide. However, Fletcher testified that he interviewed
Chamberland/Swain in person. She testified that her interview was over the phone.
45 67 By way of contrast, when TVS employee Jimmy Suissa asked CNN's Mike Maltas for a
recommendation, Maltas said he could not give him one because he was a hiring manager, Tr.
5237.
68 Abdallah testified that Fletcher was one of the people who interviewed him for the
photojournalist position, Tr. 15,774 Fletcher testified that he did not believe he interviewed
50 Abdallah, Tr. 5835. Unlike the situation with Chamberland/Swain, there is no written
documentation that Fletcher interviewed Abdallah.
49
J D-60-08
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 on the basis of his
5 interview. In the debriefing/selection meeting, Schantz was rated the 15 th most desirable
candidate. Young ranked him # 7; Courtney # 12. Speiser, Fletcher and Redisch rated Schantz
2 0 th 2gt1h and 1 9th 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 Young and Courtney
1o 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
1 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
20 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 1VS 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. 5828). 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, C.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
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work performance of Team employees to Mike Marcus, the TVS Director of Studio Operations,
Tr. 15,384.
Non Linear editing (NLE)
5
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
10 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
15 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
20 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 PQ .. .should emphasize the use of DV cameras (since
25 this isn't within NABET jurisdiction now)," G.C. Exh. 553.
CNN also did not fully apprise the TVS applicants as to 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.
30 227, 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
35 asked Parsons to identify "some of the solid DC folks you know 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 entirely consistent.
40 Additionally, lack of nonlinear editing experience was not held against T\IS 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 who could replace the Team camera
45 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/photojournalist" has similar
language about NLE. The three TVS employees hired as lighting specialists in Washington,
50 Dave Berman, Geoff Parker and Greg Robertson have performed virtually no nonlinear editing
since they were hired by CNN.
51
JD-60-08
needed for most events and assignments. As David Jenkins, a Union Executive Board member
who lost his job in the Bureau Staffing Project, explained:
If I had seen ... these weighted percents [indicating that 20% of their job would
5 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 about the non-linear editing, 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
10 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 NILE editing ... If I had seen it IG.C. Exh. 227]11 think I would have been
15 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, CNN 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 description 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 significance of nonlinear editing in
30 Washington, D.C.:
It's significance is marginal, as far as how CNN 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
J D-60-08
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 BSP. 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, 15,569.
The "Growth" Candidates
Matt Speiser testified that CNN, "set out to hire the best, most capable photojournalists
15 available," Tr. 3829. Steve Redisch testified that CNN was "trying 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.74 These were relatively inexperienced applicants some of whom were hired at
20 74 1 do not credit Cynthia Patrick's testimony that several full-time T\/S 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
25 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
30 (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.
35 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.J. 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 Richard Frederick, who hired by
40 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 photojournalist 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
45 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.
50 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-60-08
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
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.
40 G.C. Exh. 543, B# 16437. Rick Denius, after talking to Suddeth 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," 13#1 6430.
Cynthia Patrick's testimony at 14968-9, and CNN's statement at page 36 of its reply brief,
45 that Raeshawn Smith and Tawana Smith were Team growth candidates is disingenuous in
contending that the hiring of growth candidates was nondiscriminatory. CNN has never
conceded that these two TVS freelancers were members of the TVS bargaining 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
50 of $55,000 and $45,000 respectively, while experienced former Team audio designers were
hired at a salary of between $65-68,000.
54
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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
1o 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, 15440); 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 photographers at the
D.C. Bureau for many years.
CNN recruiter Rick Denius testified in what I regard as 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 exchange 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-60-08
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 for hiring growth candidates instead
of experienced Team applicants.
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 concluding 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.77 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
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.
40 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 her own evaluations of the tapes,
not Dan Young's opinion, Tr. 9147-49.
45 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
50 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
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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
1 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 1
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 LCID monitor
that he got in B and H around the corner for 75 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
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Butcher Block for Tillis that he was a "good shooter" or the fact that his composite ranking by the
hiring managers was 2 8t, 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 Washington instead of
numerous experienced TVS camera operators.
Young's assessment of the tape submitted by Gilbert De La Rosa, a nonlVS 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 demo 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 evidence regarding some of the TVS Bargaining 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 regarding 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 late 1980s, while working for
WOBS, 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. 1 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 her ability to edit
with Final Cut Pro.
40
In an email dated October 13, 2003, hiring manager Dan Young made the following
comment about Pacheco:
I like her previous experience on the local front, strong editor with good editorial
45 decision making.
G.C. Exh. 228, Tab H, B# 021621.
Pacheco was interviewed by only one of the hiring managers, Matt Speiser on
5o 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 her "4" in two
categories and a "3" in three others. He did not note any strengths or concerns on his rating
58
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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 debriefing 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 deficiencies.78
I infer Pacheco's "lack of people skills" is related to her aggressiveness as a union
1o 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. Although Non-Linear
editing was listed as one of Pacheco's strengths and a lack of nonlinear editing 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.
R.J. 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 "strong possible" candidate. He ended
up in 4 1s' 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, none of whom were TVS bargaining
unit members were placed above Hamilton on the list and he fell to 49'h place. There is no
satisfactory nondiscriminatory explanation for this reordering of the list.
40 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 which 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
45 considered these incidents in failing to hire Pacheco, see e.g., 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.
50 228, vol. 1, B#26532, 21621. Matt Speiser could not recall whenever he saw a Pacheco demo
tape, Tr. 4006.
59
JD0-60-0 8
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, B#s 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 11 th 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 5 1 st out of 55
applicants who were rated. In their final rankings, Dan Young and John Courtney listed Jenkins
4 8 th ;Steve Redisch ranked him 55 th and R.J. Fletcher did not rank Jenkins at all. What is most
difficult to understand is Speiser's ranking of Jenkins in 4 1st 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
The funniest thing that happened during the first selection process was when
Matt argued vehemently that we need to keep Dave Jenkins. Rick 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
45 coached answers like the other ex-Teamn guys. 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.
50
60
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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 _ _ _ _ _ _ _ _ _ _ _ _ _
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
25 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
30 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. 11, tab Q. B# 20560. Even assuming that Young's assessment of tape was determinative,
35 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.
40
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.
45 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.
50 82 This was essentially the same training that Elizabeth Zosso received through the Union
prior to the Bureau Staffing Project.
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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 hiring 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 communication, 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 Langley, 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 (GOC. Exh. 328):
15 Larry was very nervous during the interview, didn't sleep the night 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 exactly screaming for his services. He
20 would do ok in the job.83
Mark Marc hione
Mark Marchione had worked at CNN's D.C. Bureau since February 1996. 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
March ione. 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 (inability to articulate).
Marchione was rated 4 6 th of the hiring mangers' top 55 candidates. Despite Speiser's
favorable assessment in the interview, he put March ione 5 0 1h on his final list. Fletcher put
Marchione at 4 5 th ,he was ranked 4 8 th by Redisch, 5 3 rd by John Courtney and 5 1 st 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 suggests that it manipulated the number of
employees hired by December 6, 2003 in order to avoid recognizing and bargaining with the
40 Union.
45 __ _ _ _ _ _ _ _ _ _ _ _
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
50 decision not to hire Langley and Dennis Norman, Africa n-Americans; Pacheco, a Hispanic
female; Munoz and Jimenez, Hispanic males.
62
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Luis Munoz
Luis Munoz began working at the CNN D.C. Bureau in 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
1o 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 editing. Willing to learn." Id., B# 24061.
Fletcher gave Munoz 1-4 and 4-3s. The average of these two ranking put Munoz at 2 9 'h 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, CNN en Espanol, for a
recommendation regarding Luis Munoz. Lora had worked with Munoz since 1997 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 cover 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 highly 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-60-08
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.
I understand the company has another cameraman-a good one, and a Spanish
5 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
10 at some of the choices made, and concern that the views of people who work
directly with crews in Washington, and therefore have the greatest 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
15 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 4 9 th and another 5 1 st. G.C. Exhs.
25 232 and 261, 268. Speiser ranked him 50th ; Fletcher ranked him 3 5 th .Redisch ranked him 40th;
Courtney 55t1h 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
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
40 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 editing system for video, somewhat
similar to Final Cut Pro. CNN DNG trainer Ben Coyte testified that familiarity with Avid makes
45 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
50 come to Washington. Christen was ranked lower than Luis Munoz in the debriefing meeting,
G.C. Exhs. 556, 270.
64
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learning Final Cut Pro easier, Tr. 15,572-73. While non-TVS applicants were given 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 AVID 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 NILE."
1o 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 52 nd 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
John Urman worked at the D.C. Bureau since 1989. He participated in handbilling in
25 front of the CNN Bureau during the Union's contract negotiations with TVS in 1998, Tr. 6745,
6575.
On the r~sum6 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
30 Urban had "dabbled with Final Cut Pro on his own, but he has no professional editing
experience," G.C. Exh. 228, Tab 1, 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
35 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
40 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
45 Used DV during D.C. protest85
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
50 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.
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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 1I 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 3 6 th 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. Fletcher 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 hiring 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 is 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
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managers had r6sum~s 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
liglter," 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, the 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 r~sum6 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 NILE 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 meetings. 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 non-TVS applicants
hired by CNN in Washington, D.C.
35 With regard to the photojournalists hired by CNN to replace T\/S 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 newsgathering (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 bargaining unit members that CNN
5o 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.
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ON N'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 ONG 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. 1 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 testified, 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 April 1 -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
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 2003 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 Washington photojournalists who he
45 testified had successfully adapted to DNG technology. With two exceptions, Peter Morris and
86 1 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
50 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.
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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 1 regard Coyte's testimony, e.g., Tr. 15,438-1 5,444, to be simply argument support of
CNN's contentions in this case. His testimony is also in many 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 and cut the sound
10 bites and fed them in ... (emphasis added); also see Tr. 15,629, 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 judgment" 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 (DNG), 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" Nocciolo, 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 suggests that the TPMPs are not
necessarily an accurate reflection of CNN's assessment of its photojournalists. TPMPs do not
directly affect the amount of an employee's annual raise, Tr. 15,643.
45
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 and Ramirez) left
50 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.
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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 to $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 nondiscriminatory 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 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 Redisch 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
30 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- -vis the Team applicants.89
35 Steve Redisch rated Abdallah's interview with 3-4s and 2-3s. Redisch cited as
strengths: Lots of live experience; speaks Arabic, Nonlinear editing experience; Goal oriented
and Washington experience. As concerns he noted that Abdallah was "short on specific
examples."
40 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.
45 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 Turner 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 and John Courtney interviewed
50 Chamberland in person, rather than by telephone, which is inconsistent with her testimony, Tr.
5838, 16,053.
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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/follow through was listed as a
developmental area. Other strengths listed were: creative, technical skills, NLE, initiative,
shooter-good, troubleshooting. Abdallah was rated the 48 th most desirable candidate, lower
1o than Chris Hamilton and Mark Marchione, T\IS 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. Greehe had been a union negotiator in collective bargaining
with TVS.90
John Bena
20
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
25 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# 9421.
30 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.
35 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 "strong possible" candidate and was rated
the 2 6 th most desirable applicant. Young rated Bena 3 9 1h; Speiser 3 6 1h ; Redisch 2 1st; Fletcher
40 18t1h and Courtney 15 th .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
45 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 regrouping occurred, such as when Ron
50 Couvillion declined CNN's offer on or about December 1, 2003. Moreover, nobody testified as
to what transpired at the November 18 meeting.
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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 Swain91
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 very 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 Chamberland/Swain was shown at the
20 debriefing session. He could also not recall whether Dan Young commented about her shooting
at the debriefing.
R.J. 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, Tr. 5908. 1 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 ranked her, which
assumedly was done no later than November 6.92
35
According to her boss at CNN Newsource, R.J. 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. 689, Tab 19, B# 12281.93 That may
explain why Fletcher ranked her 5 3rd, lower than the other four hiring managers. 94 She was
40 rated a possible plus and the 42 nd 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, 2003. She is referred
to by her married name, Bethany Swain, at some portions of the transcript.
45 92 Assuming Fletcher's testimony is accurate it indicates disparate treatment vis-6-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 hiring managers could review it, Tr.
5610.
93 On other documents she described her position with Newsource as
50 Director/Editor/Photographer.
94 On the other hand, Fletcher may not have wanted to lose her.
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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 1VS 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
1o 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 Young 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 categories. At the debriefing session,
Harlan was rated the 33 rd most desirable candidate.
CNN started checking Harlan's references on November 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 gave 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 CNN 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.
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In the debriefing, Helm was rated 43 rd 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 401h.
Jay McMichaeP97
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 McMichael 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 was 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/microwave 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 r~sum6 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 tracking 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 T\/S 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.
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Moorhead 2-5s and 3-4s. Speiser gave Moorhead 1-4 and 3-3s. In the debriefing session,
Moorhead was rated the 2 7 th most desirable candidate; Dan Young rated him 15th . NILE 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 r~sum6.
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
1o 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 editing 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 FOP 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 Tills
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
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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 lack 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 offered 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 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
20 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.
25 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
30 "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,
35 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."
40 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 24t1h most desirable applicant at some point 1
45 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 2 8 th on G.C. 429 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.
50 100 Chapin was Managing Editor and Deputy Bureau Chief in New York at the time of the
Bureau Staffing Project.
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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. After 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 did not apply for their positions as
part of the Bureau Staffing Project.
15
CNN has over the course of time since January 17, 2004 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 technicians, 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 2-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
T\IS 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 FOP training during the first two weeks of their employment. CNN
30 Exhibit 272 shows that the photojournalists were scheduled for the following amount of FOP
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 crew 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.
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JD-60-08
Joe Capolarello 4 1/2days
Doug Carroll zero days
Desmond Garrison 3 1/2 days
Mike Gittleman 3 1/2 days
5 Walter Imparato 2 1/2 days
Tom Jurek 3 1/days
Steve Machalek 4 1A 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 FOP training during the first two weeks of their employment at the New York Bureau1 06
David Allbritton, CNN Frankfort, Germany, 1 1/2days
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 1/2 days
Rick Hall, CNN Chicago, 1/2 day
Neil Hallsworth, CNN London, 1 'A days
25 Bryan Kane, News 12, Long Island, 3 days
Effie Nadim, News 12, Westchester, 2 1/2days
Gabe Ramirez, CNN Los Angeles, 2 1A days
Tawanda Scott, KVBC, Las Vegas, 1 1A 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 _ _ _ _ _ _ _ _ _ _ _ _ _
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 Ram irez, 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.
45 In the BSP they were considered the 2 nd 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. 266, G.C. Exh. 522,
vol. 4, B# 5281. There is no evidence in this record that any hiring manager reviewed and
evaluated a tape from Sidki before CNN decided to hire her. Although, Rick Denius sent an
50 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.
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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
5 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
10 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
15 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.
20 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
25 is-seems to be ample time.
Kinney's experiences in Chicago were replicated in New York, as he testified at Tr.
9444-45:
30 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,
35 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
40 field there are all kinds of extenuating
circumstances that kind of determine how adept
a person is.
For instance, sometimes you may have
only 20 minutes to edit a piece and get it on
45 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
50 been successfully trained or not.
THE WITNESS: At the end of the two
weeks, every person who participated in the
79
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 any one of them
5 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?
10 THE WITNESS: The majority of them
had probably at least two full days.
JUDGE AMCHAN: Two full days?
THE WITNESS: Yes.
JUDGE AMOHAN: Anything else?
15 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?
20 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
25 production.108
The selection process for New York photojournalists
As with other parts of the selection process, exactly when, how and on what basis
30 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, 91 52-55, 9239.
The testimony of the CNN witnesses who attended the selection meetings is of
35 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. Whereas, Edith Chapin testified that an
40 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
45 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.
50 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
JD0-60-08
The debriefing or selection meeting at which hiring decisions were supposedly' 10 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 occurred 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. 429.
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 discussed, I infer that this categorization
may have been done prior to the debriefing meeting, Tr. 9473-77. CNN witness Jeff Kinney
20 testified that Cindy Patrick and John Courtney were involved in 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 Washington, 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. 1 infer that the corporate view was
that CNN needed a workforce without NABET.
30
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
35 effectively eliminated by this categorization process were long-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
40 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.
45 110 1 say supposedly because I am not convinced that hiring 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 meeting he participated
in at least five discussions with other hiring managers and with Cindy Patrick and John Courtney
50 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.
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The importance of the job interviews in CNN's hiring decisions is also very 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. Although, 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 recognizing and bargaining with the Union.
CNN's failure to hire Brian Kiederling
The basis for CNN's decision not to hire Brian Kiederling is particularly suspect.1 11 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
SNot 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.
40 On the one hand, hiring Kiederling as an engineer would have been a departure from the
BSP process, since Kiederling was not evaluated in the debriefing session for engineers. 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.
45 112 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
50 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.
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JD0-60-0 8
shooting. This comment may be due to CNN losing the first demo tape that Kiederling
submitted.' 13
Kinney rated Kiederling a "3," i.e., competent, with regard 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 with CNN, strong shooter, team
player, open to change. As a concern he noted Kiederling's lack of experience with nonlinear
editing, Id., B#1 53044.
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 35 th Most desirable candidate, as did Kinney. Dan Young
rated Kiederling 3 1st. 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 interviewed 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. Kiederling asked Chapin why he was not
25 being hired by CNN. She responded, "the decision wasn't made in New York," Tr. 1001 0.115
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 rehired, 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 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...
40 113 There is no evidence in the record of any CNN hiring manager rendering an opinion
about the quality of a demo tape submitted by Kiederling, see CNN Exhibits 261, 262, G.C. Exh.
430 . Barclay Palmer testified that he remembered seeing a tape 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
45 sometime after Kinney filled out the rest of the rating sheet.
115 CNN did not recall Chapin, who is currently a ONNA 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.
50 Jesse Spilka, a CNN project engineer, said something very similar to Bob Cummings, Tr.
8687.
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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 T\/S' discretion in assigning it employees to one person field crews,
G.C. Exh. 17, p. 20. Section 19.7 of Article 19 prohibited TVS from taking disciplinary action
against an employee who refused to accept or complete a one-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 CNN'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 demonstrated that he was not "as forward
looking as other candidates:"
20
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
25 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
30 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
35 candidates.
Q. You're saying he didn't have
foresight. How could you determine that? I
want to know what criteria you used to
determine that he didn't have the foresight
40 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.
45 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
5o where the interview panel made its final
hiring decision. I recall that he didn't
have"-
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MR. FASMAN: That is not him saying
that.
Q. Was that the collective decision or
was that your decision?
5 A. Which decision are you referring to?
Q. The ones that were made in this
paragraph 13?
A. Can you clarify, please?
Q. S ure.
10 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
15 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,
20 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
25 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
30 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
35 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
40 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
45 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.
50 Q. So the criteria is very subjective,
is that what you're saying?
A. I'm talking about Mr. Kiederling's
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answer when I talk ab 'out 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 1 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. 1 infer that Jeff Kinney's rating of
Kiederling as the 35 th 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.' 16
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 Angeles. 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
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
45 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 discussion of one-man bands in his
interview, it violated Section 8(a)(1) in that he was clearly engaged in concerted protected
50 activity. Nevertheless, it is also clear that CNN did not hire Kiederling as part of its overall plan
to avoid recognizing the Union.
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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 T\/S cameramen who were not hired, G.C. Exhs.
450 & 266. However, at one point Frederick was ranked the 44 1h 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#1 54004. Karen Curry gave Frederick similar
20 ratings, but noting that he had little network awareness or NLE experience, Id., 154014.
Frederick ended up being deemed the 26t1h most desirable candidate in New York and was
hired. Whatever attributes Richard Frederick had, there is no 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
Recruiter Rick Denius initially did not recommend Bryan Kane for an interview for the
photojournalist position. Three days later, he changed his mind.' 17 Despite his lack of network
30 level experience and nonlinear editing experience, Kane was rated the 2 9 th 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.
35 The strange case of Carlos Christen
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
40 Karen Curry and Edith Chapin, as well, in early November, CNN Exh. 693, B# 23904. 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
45 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
50 initially not recommended. The difference is that Kane and Jeremy Moorhead and other
nonTVS applicants were hired; Lasch was not.
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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 57 th 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 2 8 th 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, 2004 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 assignments 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 engineering positions
Audio Designer, D.C.
40
A perfect example of the lack of specific evidence for the 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
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Technical Director, New Yorkl 18
In many cases it is unclear as to when hiring decisions were made. One example is
the ON N'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/Di rector,
B# 152139. Bob Hesskamp responded that, "he [Galvez] discovered that he wasn't the best
TD. 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," Id." 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 Di recto r/Di rector
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 Director/Director 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 resignation of Jeff Greenstein (effective date 1/1 4-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
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 TD who has done the show is being assigned to the
45 HLN launch.
G.C. 531, Studio, Volume V, Technical Director/Di rector, 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 technfical director for CNNfn
during normal working hours, Tr. 10719-20.
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Technical Director, D.C.
Who decided which applicants to hire for technical director? When were these decisions made?
5 Why did CNN not hire Jimmy Suissa?
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
10 or no evidence on the hiring of technical directors in Washington." 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).
15 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,
20 D.C. bureau. Neither Alperin nor Maltas testified in this proceeding.
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 meeting and what transpired. An example,
25 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.119
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
30 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
35 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
40 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?"
45 119 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 assuming 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.
50 CNN's brief at page 258 in fact mentions that fact that Team removed Suissa's shift supervisor's
title.
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Alperin and Maltas also interviewed Keller on October 27. Alperin gave 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 teamplayer. 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 vigorous efforts on
10 behalf of Local 31. A similar butcher block for Keller lists as developmental areas: motivation
and directing and TD experience. Strengths include initiative and technical knowledge.
At some point in the process, Suissa was rated the 10oth most desirable candidate for
Technical Director, B# 14544. Chris Keller was rated 9 th 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 York
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 process.
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:
5o John Cunha the engineering manager, a TVS supervisor, who had worked at the CNN
Bureau since 1992, including five years for TV~S' predecessor.
Cunha was not a member of the TVS/NABET bargaining unit. Cunha is not a CNN
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supervisor and CNN therefore contends that he is a member of its bargaining 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 1999.
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 1997 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 of 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 because he worked in the same
building with him, but during T\IS' tenure at the Washington Bureau, there was little interaction
35 between Murphy's IT department and the broadcast engineers. Thus, Vu was the only one of
the four interviewers who had significant knowledge of how well these engineers performed their
tasks.
CNN hired Cunha, Leonard,120 Clemons and Kuczynski as broadcast engineers in its
40 newly designated Broadcast Information Technology (BIT) department.12' 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 __ _ _ _ _ _ _ _ _ _ _ _
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. While TV'S 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
50 September 2004.
121 BIT was later renamed BEST, Broadcast Engineering Systems and Technology.
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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 discriminatorily motivated
5 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
10 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
15 Matt Holcombe interviewed Placie on November 25, 2003, weeks after the November 5
and 6 debrief ing/selection meeting for the BIT department in Washington, CNN Exhs. 529, 691,
Tab 19, B# 2198. Suzanne Mackiewicz, the CNN recruiter notified Tu Vu and James Hebb on
December 3, that CNN was looking to hire Placie, CNN Exh. 691, Tab 19, B# 16082.
20 Vu responded the same day, "this candidate is more of an SNG candidate than an
"1engineer" in the true sense. He concedes that he lacks the component troubleshooting
background and said that he would be willing to learn," Id. 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. Bureau. Three days later, Kiraly
25 was out of ajob.
Marty Garrison, Senior CNN Vice-President in Atlanta, approved the hiring of Placie on
December 9, Id. 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
30 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
35 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
40 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 Exh. 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,
45 among them are the following individuals listed on G.C. Exh. 256:
Ivan Burketh, hired as an audio designer 11 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 11.
50 Jason Strachan, hired as a Studio Operator 11, on February 16, 2004.
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or studio maintenance or production projects," G.C. Exh. 134, Tab N, B# 21532.124 Kiraly also
had some IT experience, which CNN appears to have taken great pains to denigrate in its hiring
process, Id., B#s 36610, 36618, 36628, 21532; CNN Exh. 689, Tab 8, B# 21569
5 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 ratings 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
10 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.
15 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, recognized 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
20 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
25 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
30 computer networking experience," G.C. Exh. 134, Tab G, B# 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
35 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 wbuld also note that Vu's written version of his interview guide for Kiraly rated him as a "4,"
40 i.e., proficient-more than acceptable, with regard to Kiraly's initiative, CNN Exh. 689, Tab 8,
B#21577. A typed rating sheet, G.C. Exhibit 134, Tab N, B# 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.
45
The handwritten version of Vu's rating sheet for Kiraly gave 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
50 CNN's intention to discriminate against unit members such as Kiraly and Romay.
125 The first page of G.C. Exhibit 140 suggests on its face that at some point, CNN
Continued
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CNN also hired Craig Fingar, 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 Fingar did not have as much experience
5 as other applicants, G.C. Exh. 134, Tab H, B# 16605. Matt Holcombe wrote that Fingar "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 Fingar very high interview scores
despite his "limited electronic component level troubleshooting experience," B# 16603.
10 After he was hired by CNN as a BIT support engineer, Fingar 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,
287 1-72.126
The salaries at which CNN hired Pless ($50,000) and Fingar ($65,000) were far below
15 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.127
considered hiring Team unit member Nick Kiraly instead of Pless. All the names circled on this
20 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.
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. Flexsteel Industries, 316 NLRB 745 (1995), enfd. mem. 83 F.3d 419 (5th Cir. 1996).
The testimony of current employees that is adverse to their employer is "... given at
30 considerable risk of economic reprisal, including loss of employment ... and for this reason not
likely to be false." Shop-Rite Supermarket, 231 NLRB 500, 505 fn. 22 (1977).
1 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
35 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 Fingar, John Cunha or other rank and file
40 employees to testify as to who did what after December 6, 2003, but chose to rely on
management employees instead. Fingar and Cunha were still working at the D.C. Bureau as of
February 2008, CNN Exh. 544. Cunha could also have testified regarding such matters prior to
December 2003.
Finally, I am not inclined to accept Joe Murphy's testimony at face value. He testified that
45 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. 134, 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
50 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.
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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 Staffing ProjeQt. 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.130
One of the most glaring facts about the Bureau Staffing Project is that although some
non-unit CNN employees supposedly had to compete for their 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 Staffing 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 changes, Tr. 2540. CNN has provided
its engineering staff extensive training since 2003, such as digital newsgathering training and
40 _ _ _ _ _ _ _ _ _ _ _ _
128 G.C. Exhibit 270.
129 CNN 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.
45 130 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
50 successor employer to Team Video.
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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 role 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 engineering and IT applicants, Vu
ranked the four most experienced T\/S 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 Staffing 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 years later, you still have engineers
that mainly do traditional broadcast engineering work, and you also have
45 _ _ _ _ _ _ _ _ _ _ _ _ _
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
50 has received no formal IT training. He did not have significant IT experience when CNN hired
him in 2003.
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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 go 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 give the IT gentlemen.
10 Tr. 2345.
Mr. Vu's later testimony was confirmed by the credible testimony of Bobby Clem~ons:
They [the IT employees] don't work on the tape decks, the camera, switchers,
15 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, 2867.
It is not true that the broadcast engineers and informational technology staff are fungible.
25 Moreover, they were even less fungible i 'n 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 engineers 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. 2096-97. 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 classification 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 during 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
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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. Also, there were changes 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 this call. McIntyre testified "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, who 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 11, 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 1 4th, 16 and 2 2nd, 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 unit members, only McKinley was
30 hired during the BSP and then only after a nonunit member declined 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. TV'S went
to great lengths to hire some of these individuals as opposed to the TV'S applicants. For
example, 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"s in communication skills and determined Kiyasu not fit, G.C. Exh 534, vol.
133 As noted in footnote 119, soon after the BSP, CNN hired 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.
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3, B# 16342. However, in the debriefing/selection meeting, Kiyasu was deemed a strong
possible candidate and ranked 14 th 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 14 th name on the list, G.C. 268. For reasons, totally unexplained, Kiyasu dropped in the list
of desirable applicants. However, on December 4, CNN again 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# 21246, 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, CNN 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 2 2n. On December 4, 2003,
CNN did reference checks on Faulkner contacting: TVS Studio Operations Manager Tina Lurie,
CNN Lighting 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 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.
40
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.
45 __ _ _ _ _ _ _ _ _ _ _ _
134 There was manipulation regarding the hiring process in McKinley's case as well. He was
ranked the 16 th most desirable applicant in the selection/debriefing meeting and his references
were checked on November 17, 2003. An offer letter was prepared for McKinley on November
24, but was not sent. After working directly for CNN for two months, McKinley resigned and
50 took a job with ABC at the end of January 2004.
135 It is not clear to what list Ms. Patrick is referring.
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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 during 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
1o 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 18 th 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 Raeshawn Smith, B#2241 5. A
human resource employee at WTVJ in Florida informed CNN that DeSilva was an intern, that it
doesn't evaluate interns and would only rehire DeSilva as an intern, 13#1 6806.
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 very 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
It is virtually impossible in certain cases to discern any relationship between CNN's
35 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.
40 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 noted a concern only with regard to
Noble's ability to operate the jib camera, C.C. Exh. 534, vol. 4., B# 15104.
45 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
50 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.
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tOn a butcher block, assumedly prepared at a debriefing session, CNN deemed Noble
the 2 5t most desirable candidate for studio operator. CNN rated Noble as a "possible"
candidate and listed his strengths as: "QC, shading, robo and studio camera, teamplayer,
5 initiate and TD." 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,
1o 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 position.
New York Bureau Broadcast Engineers
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:
John Gallagher 1995
30 Hamid "David" Rokhsar 1997
Jeffrey Carlough 1999
Michael Diana March 2002
Robert Cummings May 2002
Brian Wood May 2002
35 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:
40
Terrence Thomas, Associate BIT Support Engineer
Christopher Stewart (or Stuart), BIT Field Engineer 137
David Bingham, a CNN employee, BIT Resource Manager
Raymond Smith, BIT Support Engineer
45 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
50 _ _ _ _ _ _ _ _ _ _ _ _ _
137 Referred to in the transcript as both Stuart and Stewart.
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Stuart and Garber were hired as Senior BIT Field Engineer 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 CNN field engineers drove and
5 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
1o 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 2004, this truck
was upgraded to included satellite reception capability. CNN essentially replaced Jaramello
with Garber and/or Stuart.140
15 Jeff Polikoff, CNN's Vice President of Technical Operations in New York, offered what
Respondent purports to be an explanation as to why Jararnello 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 Jaramello was very rude to him, Tr.
12701. Polikoff also testified that later that year during the New York City blackout, Jaramello
20 was not very helpful. Further, Polikoff testified that his opinion 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
25 malleable nature of the BSP selection process. Polikoff was not a hiring manager 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
30 after the August 2003 East Coast power blackout, Polikoff exchanged emails with TBS recruiter
138 The statement in the General Counsel's brief that CNN 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.
35 139 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.
40 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
45 Scott Garber in New York without going through the BSP process as early as September 30,
2003.
On May 30, 2004, 1 asked the parties on the record whether there was any evidence that
Scott Garber had applied and been interviewed during the BSP, Tr. 13408-1 0.
140 Vic Spinelli, mentioned by CNN Vice President Jeff Polikoff, as one of the truck drivers in
50 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.
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Suzanne Mackiewicz about Jaramello. The exchange is inconsistent with Polikoff's testimony.
Mackiewicz characterized Jaramello as "a great candidate." Polikoff responded as follows:
He is our present microwave truck operator from team. We agree. But we should
5 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 knowledge, site
knowledge, 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 asan average, Id., B# 1881. 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 rating 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 on Polikoff's experiences with
Jaramello. Among Jaramello's strengths, Holcombe noted that he was "highly motivated."
25 There is no corroboration for Polikoff's claim that he discussed Jaramello'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 Jaramello with
Garber and/or Stuart.
30 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
35 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.
40 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
45 141 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
50 IT side of the house," B#37827.
142 Jeff Gershgorn agreed and then contradicted himself, Tr. 7983-84.
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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.
5 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 hiring decisions
10 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.
15 Media Operations
As part of the Bureau Staffing Project, CNN created a 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
20 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
25 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
30 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 CNNfn where Moscaritolo worked prior
to being hired as a media coordinator and was the supervisor of the media coordinators
immediately after the BSP. The General Counsel asked Fox how many media coordinators
35 CNN was looking to hire in the BSP. He answered: 14, Tr. 10290-91. 1 find that Fox was well
aware that CNN was going to hire Moscaritolo as a 1 5 1h media coordinator without going
through the BSP process, see CNN Exh. 427. Since Fox discussed Mocaritolo's 2004 TPMP at
Tr. 12208-1 0, 1 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,
40 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 submitted 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
45 the scores on numerous interview sheets, Tr. 10306-07. My 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, B#2213, New York TVS bargaining unit
member Mickael Squier, B# 5023, TVS unit member Tracy Organ, B#3240, CNN 518, and Tr.
50 13169 and freelancer Kristi Harper, who asked Fox a lot of questions about the Union, B#s
2011, 2017.
105
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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's bargaining unit. The couriers
1o were essentially drivers, transporting equipment and personnel and making deliveries. In the
fall of 2003, Ron "Chip" Davis was the first shift courier, working 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.m. to about 5:00
p.m.. William Tipper drove the third shift from 2 or 3:00 p.m. until about 11:00 p.m. 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 shift. 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, then 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 1 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.
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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 began 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 pages 150-1 51 of its brief,- I find that at
least 86 members of CNN's 108 member bargaining unit would have been form&r 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 thel 08 employees it considers members of its Washington
bargaining unit were former TVS unit members. I find that the positions held by the following
20 144 G.C. Exhibit 110O-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 706, 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
25 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
30 specialists. It does not include Jerry Appleman, who was hired but never worked in Washington
and was eventually replaced by Mark Marchione. Thus, there 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
35 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
40 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 discriminatees.
Some freelancers hired by CNN, such as Raeshawn Smith, Tawana Smith and Kenneth
White were members of the Team bargaining unit by virtue of the number of hours and
45 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 554. 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
50 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.
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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/Directors; 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 on 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 after 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/freelancers 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."
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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 direction 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 5470-71. 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 hire 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 the 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 Ta] 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 Dic 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 15 days within the prior year. I find
that is an appropriate formula, although the more permissive Davis-Paxson formula (an average
so of four hours per week for the quarter preceding the changeover) might also be appropriate.
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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 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
15 departments, Tr. 11078-80. My review of G. C. Exhs. 21, 566, 567, 568, 569 and 571 show that
the codes on the payroll registers are a perfect match with the codes of the WARN 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
20 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 Ioannu, 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, 1300, Team's code for field audio
work, is consistent with the record evidence regarding the work they performed for Team at the
25 New York bureau.
By any standard most of the freelancers; listed as discriminatees on G.C. Exh. 579, the
amended Complaint Appendix D, were members of the Team Video bargaining unit in New
York. I have reviewed the Team payroll registers in G.C. Exh. 566 and conclude that the
30 following employees worked far in excess of 150 hours (1 5-ten 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
35 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 Washington, D.C. portion of the hearing, Tr. 15067-74.
40 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
payroll 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
45 no objection to this procedure, Tr. 10597.
Counsel for CNN, in objecting to my receipt of Team's 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 Washington, D.C.", Tr.
15072. This assertion is incorrect. In every instance in which the General Counsel objected to
50 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.
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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 21 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 TV'S bargaining 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; 1 see no evidence that he performed any bargaining unit work after
April 1, 2003.148
Freelancers who were members of the Team New York bargaining unit and were 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 bargaining 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 loannou, Jeffrey Greenstein, John Conroy, Kevin Lishawa, David Weber,
Jonathan O'Bierne and Jonathan Reiss.
Alleged D.C. discrimina tees who were freelancers
40 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 TV'S
45 employee, not a freelancer despite the fact that he is not listed on TV'S' WARN Act letter, G.C. -
21. Payroll records and timesheets for Hadrovic, G.C. Exh. 571 ,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
50 because he was on leave due to a family emergency from mid-2003 to December 2003, G.C.
Exh. 528.
J D-60-08
Team bargaining unit. 149 These employees are Emmanuel Agomuoh, Donna Lacey, 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 2003, and must also
5 be considered part of the TVS bargaining unit.
Free lancers 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 production 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 ENGAs 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, 1
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 places 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 Asphalt 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 fill 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.
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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 TVS bargaining unit.
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 Sea foods, 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
1o 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 (1986) 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 group 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 Washington to consist of: photojournalists
and senior photojournalists, studio operators, lighting specialists, TD/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, TD/directors, field and support engineers, floor directors and media
coordinators.
50
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The CNN Employees in Question:
In formation 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. 1 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 that instead of calling an engineer who
still works at the D.C. Bureau and has since at least 2004 (John Cunha, Craig Fingar, Andre
1o 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 the 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.g., 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, 16,225-26. 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-I
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] .. I1 believe 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.
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I infer that Murphy and Rick Coie did not interview Fribush. There is no evidence that
they did in this record and CNN has not suggested that their notes 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. Assuming 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 successfully."
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 in the IT area. I
assume he did so to suggest greater intercourse between engineering 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.
In formation 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 broadcast 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. 1 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 manager 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 Ms. Lackey, while broadcast
engineers reported to Jeff Gershgorn. Both Lackey and Gershgorn reported to Jeff Polikoff.
50
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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 Staffing Project in New
York, these 8 employees were directly employed by CNN. CNN 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
1o 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.
1 would not include any media coordinators or electronic graphics operators who were
hired into those positions in Washington or technical production managers in determining
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. 1 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-managerial 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
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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
1o 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 bargaining 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 1 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 Managers/Technical Production Managers in New York
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.
35 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. 1
40 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.
45 This authority does not make operations managers/technical production managers
statutory supervisors because the record does not show that 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
50 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.
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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
1o 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 that 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 judgment 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 bargaining unit even if the
historical unit is inappropriate.
Application of the successorship criteria:
30 Continuity of the employing enterprise:
Changes to employees']ob 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 BSP 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 bargaining unit members.
50
In Washington, these employees continued and still continue to work at the same
location. In New York they did so for several months until they moved to the Time Warner
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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
1o 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 Video. 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, B# 12502. CNN was aware that
Dennis Faulkner, who it hired to replace Davis when he resigned, 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 designers-although
35 CNN introduced a great deal of evidence regarding the cross-training 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 testified 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
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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 to 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 terminated. 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 interruption 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
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 2004, all the New York studio
employees had moved to the Time Warner Center and were using mostly new equipment.
30 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 testified
demonstrated the unreliability of their testimony when discussing the Bureau Staffing Project.
35 152 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
40 Daniel King Lopez were also not present at the D.C. Bureau during their first week as CNN
employees.
153 1 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 employer. In all the cases that I am
aware of, in which successorship was not found, there was a hiatus between the operations of
45 the predecessor and the alleged successor, e.g., Georgetown Stainless Mfg. Corp., 198 NLRB
234 (1972); Cagle's Inc., 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, Inc., 246 NLRB 43
(1979).
Woodrich Industries, cited by Respondent at page 203 of its brief is also distinguishable, in
50 that Wood rich produced a different product than did its alleged predecessor and sold that
product to a different type of customer.
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Finally, many of the changes CNN relies upon in arguing 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 to 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 York
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 credibility, 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, i.e., 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, 10658,10693-4.157
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
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
Flexsteel Industries, 316 NLRB 745 (1995), enfd. mem. 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
35 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 1 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
40 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.
45 156 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, i.e., identifying information about footage into a
50 computer, as opposed to writing similar information on a label of a box of tape.
158 Dennis Finnegan entered the slug that the producer gave him for footage. He did not
Continued
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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 the 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 T\/S 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 T\/S supervisor in master contro 159 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. 1 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 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
45 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 Director/TD on
the evening shift, Id., Marcus B# 2255. Recruiter Anthony Williams deemed Paul Miller to have
expertise in audio design, Id., vol. 4, Miller, B# 21439. Williams opined that TVS unit member
50 Jeff Noble worked in numerous capacities at CNN, but was "especially sharp on the audio side
of the house," Id., vol. 4, 15089.
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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 (2 0 1h) 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
T\/S 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-1i' 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 transmitting 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 __ _ _ _ _ _ _ _ _ _ _ _
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 Finnegan, since in many cases the
declarants were not subject to cross-examination.
50 162 IFB,, intermittent feedback devices, allow the studio with communicate to a reporter in the
field.
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QC (Quality Control) and Tape Technicians
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 assigned studio personnel to specific
tasks on a permanent basis or semi-permanent, i.e., camera operator or QC operator. Studio
1o 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-i ", 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 manufacturer 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
4,5 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 worked directly for CNN and were not
members of the bargaining unit.
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JD0-60-08
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
1lOam-i lam. 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 people 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 Otth
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 at 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 was 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.
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J D-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 field
Immediately after the end of the Team contracts, the CNN photojournalists did the same
work that the TVS camera and audio technicians performed with 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 field.
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 CNN's New York Bureau:
25
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
30 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
35 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.
40
Tr. 11581.
165 Indeed, it appears that what CNN has done to some extent is shift its staffing of
45 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
50 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.
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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
1o 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
i5 cover the end of Cal Ripken, Jr.'s consecutive game streak. At the end of the game, 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 lodker 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 CNN.
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 manner as he performed it for Team;
40 he has edited with Final Cut Pro only a few times, Tr. 4628.
Tim Garraty
Tim Garraty did no nonlinear editing in 2004 outside of the classroom and has done little
45 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,
50 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.
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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. 15,699-17,701. The second piece was
shot and edited in Chautauqua, New York in October 2004.167 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
Schantz testified to only a few instances of field editing 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
25 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
30 say as to what goes into a package. He confers with the reporter before he begins editing and
makes whatever changes to the package the reporter wants, Tr. 15,689-70. He 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 without a producer or reporter
present. The most notable incident was in 2006 when he was able to get to Point Barrow,
35 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,
40 he gave no specifics and Ben Coyte, his reviewer, made no mention of this other than
commenting that Schantz was "editorially aware," CNN Exh. 670.
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
45 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.
50 170 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
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Bethany Chamberland Swain
Bethany Chamberland Swain, who has occupied a management or quasi-management
5 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
1o 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.171 Swain testified that in 2007, while covering the Anna Nicole
15 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
20 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
25 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
30 photojournalist has performed in a period of 4 1/2 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
35 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.
40 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# 14994. CNN hired
Yaklyvich in the BSP.
Similarly, Team cameraman Jerry Thompson told interviewer Steve Redisch on October 20,
45 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 all 5s in the interview rating categories, G.C. Exh. 543, Vol 3, B#s 16212,16217.
CNN hired Thompson.
50 171 Abdallah's 2007 TPMP indicates that Swain was spending a significant amount of time
working as an assignment editor, CNN Exh. 676, B# 156007.
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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. 15,785-89.
Abdallah transmitted material to Atlanta while covering the Bush campaign in 2004, but did not
testify to doing any editing.
CNN counsel led 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 may or may not have edited a four minute piece in the
field in South Carolina, Tr. 15,796-97, CNN Exh. 656. Abdallah'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 no mentioning of his pitching stories
and Abdallah did not testify about any stories he "pitched" to CNN.
The White House Crews
40
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
45 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.
50 173 Abdallah cut and pasted the same paragraph into his Jan-Dec. 2006 TPMP, CNN Exh.
675.
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JD-60-08
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 these 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 2005, 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. 9808-09.
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
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JD-60-08
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
5 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.
10 Q. Did you do that frequently?
A. Yes.
Tr. 11547-48. Also see Tr. 11549.
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," C.C. Exh. 483.
20
There is no evidence that Meara did extensive editing in calendar year 2004, Tr. 11571-73.
Nell 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 ONG trainer Ben Coyte also testified that the BGAN is "a very simple tool to use,"
Tr. 15,504.
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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 CNN 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" according 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,
1o 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, i.e., computer based, does not alter the fact that the essential tasks of
25 the engineers are the same.
The changes in employees']ob 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 217 (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 obligation 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 bargaining 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; i.e., 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.
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JD0-60-08
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 NLRB 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
1o 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 T\/S engineering 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 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 had not been hired before he
accepted another job, I conclude that he was constructively discharged or was a victim of a
30 constructive refusal to hire, and thus due a make-whole remedy.
First, the burdens imposed upon the employee 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
35 because of the employee's union activities.
Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976).
CNN would not let Cummings know whether or not he would have a job with CNN nine days
40 before the TVS contract ended after he informed CNN that he 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.
45 177 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
50 and other part-time supervisors met the Section 2(11) criteria, Oakwood Healthcare, Inc., 348
NLR B No. 37 (2006) at slip opinion page 9.
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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 with 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 see CNN Exh. 649. According to this
memo, a bargaining unit supervisor was to notify TVS manager 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 of 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 considered TVS bargaining unit members
for determining successorship. Moreover, none of these employees would be entitled to either
back pay or reinstatement if they are supervisors. This would 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 while 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 manager, Ed DeLauter, who was an
intermediary between the bargaining unit supervisors on the one hand, and CNN and Team's
general manager on the other.
45
TVS' studio management prepared a weekly schedule which informed the bargaining
unit supervisors as to which employees would be available to 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
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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, lay off, 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, 2006, 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 Healthcare, Inc., 348 NLRB
No. 37; Croft Metals, Inc., 348 NLRB No. 38; Golden Crest Healthcare 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 other employees to tasks.179 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 T'VS management for the performance of other
employees, Oakwood Healthcare, Inc., slip op. at 7.180
The Board stated in Oakwood Healthcare at slip op. 4 that, "we construe the term
"assign" to refer to the act of designating an employee to a place (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 _ _ _ _ _ _ _ _ _ _ _ _ _ _
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.
40 180 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., 265 NLRB 1480, 1481 (1982),
45 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
50 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.
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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,
1o 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 an 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, 675 fn. 10 (2004);
S.D.l. 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 opinion 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, 8 0 h Cong., 1s'
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 1 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.
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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 kind 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, audio 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 their on-site -- basically 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 going 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" at 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 desk 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 suggested by Robertson or Parker.
Team or CNN on at least some occasions decided that additional help was not needed or that
5o other employees were available, Tr. 6900.-Ol, 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, discharge or discipline other employees or to
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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 lighting 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 meeting, 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, 1 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, CNN 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 TVS 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 TVS contract and redefine our
operation had been approved through a privileged attorney-client communication. This
40 _ _ _ _ _ _ _ _ _ _ _ _
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.
45 184 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. 558. In drafting position descriptions
50 for the photojournalists in early 2003, CNN was looking for a way to deprive these employees of
union representation, G.C. Exh. 553.
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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
1o 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 CNN'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 TVS bargaining unit member. TBS
recruiter 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 CNN D.C. Bureau. Williams concluded
45 that White was a "good candidate for Audio Designer," G.C. 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 White 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.
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technical skills, his interpersonai skills and a 4+ on teamwork. She rated him a 3 on ethics &
integrity and initiative. Woodward did not note any concerns regarding White.
The "butcher block' purportedly prepared in the debriefing 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. 7892, 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 meeting, 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, there should be no
40 ambiguity as to who attended the debriefing meetings and what role they played.
45
186 The evidence is similar for the Washington debriefing meeting for hiring 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
50 hiring managers were present and possibly Jim Hebb or another human resources
representative, Tr. 1997-98, 2324.
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Testimony of CNN witness which is either inaccurate or less than the whole truth
Several management witnesses, such as John Courtney, 187 Tray McIntyre, Jeff Polikoff
(that CNN did not hire Team unit member Jeff Jaramello because Jaramello was rude and
5 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 Kile, Jim Hebb, Gina LaRussa and
10 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 Staffing 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
15 187 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 photojournalist in New York were ranked by the
20 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
25 NABET. 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 Washington and New York," Tr. 4167. 1
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.
30 Among the things Courtney was silent about are the conversations Barclay Palmer testified
to with other CNN managers, including Courtney, concerning 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.
35 Finally, Courtney knew and did not testify about how CNN 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.
40 189 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,
45 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.
Kite'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
50 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.
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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 NILRB 739 (1982).
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 jaundiced eye and
decline to credit their self-serving testimony unless corroborated by other credible evidence. 190
One of many examples of a CNN witness more interested in supporting his employer's litigation
strategy than in testifying candidly
10
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. McIntyre testified
that the names and numbers on the list are in his handwriting. However, McIntyre repeatedly
15 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.
1 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
20 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.
25 This was not the only incredible testimony given by McIntyre 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
30 at the meeting at which hiring decisions for that position were purportedly made, G.C. Exhs.
535-39, Tr. 14582.
190 1reject 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.
35 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 T\IS applicants in a
40 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. Baker also ignored
the fact that almost 100% of the CNN incumbents who were subjected to the BSP kept their
45 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)
50 candidates. There is no butcher block sheet for #17, Doug Kozloski or #27, Wenzell Taylor.
James Stubbs' butcher block does not have a circled number on it.
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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 There is no document or any testimony that corroborates McIntyre's contention that he
interviewed applicants who had been previously interviewed by Anne Woodward 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
25 interviews of these five individuals at the debriefing, Tr. 14586. 1 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
30 shows how unimportant and indeed irrelevant the interviews we 're 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 regard to how the BSP operated.
Offers were made to three of these five applicants; T\/S bargaining unit members
35 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
192 McIntyre also testified that newly hired studio operators did no work other than training
40 during their first week working for CNN, Tr. 14565. However, when examined by CNN counsel,
he conceded that these employees had produced a program called Capital Gang on the
evening on December 6, 2003. He testified this work was performed only after the D.C.
employees had finished their training, Tr. 14713-14.
CNN introduced a plan for D.C. studio coverage by Atlanta personnel for Saturday and
45 Sunday, December 6-7, 2003. McIntyre testified that there was a similar schedule for the rest of
the week; however, CNN never produced such a document at trial, Tr. 14711-13. For this,
among many reasons, I find McIntyre's testimony totally unreliable insofar as it supports CNN's
theory of this case. I find that D.C. personnel did a substantial amount of production work
during their first week as CNN employees, as indicated by employee witnesses, Mohen,
50 Bacheler and Miller. This is also indicated by emails between Robert Jackson and Bob
Hesskamp dated November 18, 2003, G.C. Exh. 534, vol. 1, Bacheler, B# 17029.
Continued
144
J D-60-08
Credibility of management witnesses testifying as to how the duties of CNN employees hired
during the Bureau Staffing Project differed from those of Team employees
5 When attempting to prove what duties CNN employees hired during the Bureau Staffing
Project performed, and how these duties differed from the duties of Team employees, CNN
relied almost exclusively on management witnesses. Other than four or five rank and file
photojournalists, CNN did not call any rank and file employees to testify as to what the jobs
subject to the BSP entailed.193 In many cases, CNN failed to establish that its management
10 witnesses had first-hand knowledge as to these matters or a proper foundation for their
testimony. Moreover, many of these witnesses destroyed their credibility when testifying about
the Bureau Staffing Project. I decline to accept of any of this testimony at face value.
Moreover, In all cases where the testimony of a rank and file employee, who performed a job,
conflicts with that of a manager, with regard to the scope of the employee's duties, I credit the
15 rank and file employee.
The case against Team Video
Local 31 in its brief argues that I should hold Team Video liable for CNN's unfair labor
20 practices. The Union contends that Team knew or should have known that the termination of
the ENGA was motivated by a desire to get rid of NABET. There is no evidence that Team
protested the termination of the ENGA or tried to negotiate with CNN about the termination.
As the Union points out, Ed Delauter, Team's engineering manager in New York,
25 testified that he was told by Jesse Spilka, one of the CNN engineering supervisors, that CNN
was not taking the Union with it to the Time Warner Center and that CNN would only hire 50%
of the bargaining unit in order to get rid of the Union, Tr. 8526-27. Neither CNN nor Team called
Spilka, who as of April 1, 2008, was one of CNN's supervisors, to contradict Delauter. Thus, I
credit Delauter. The Union suggests then that Team was aware of CNN's discriminatory
30 motivate through Delauter, who was a supervisor and agent of Team. However, there is no
193 CNN did not call as a witness a single rank and file engineer, studio operator, media
coordinator, audio designer, technical director, information technology employee or floor
35 director. CNN also did not call any rank and file editor-producers. Jill Davis Wrate, a senior
electronics graphics operator, called by CNN, may be a rank and file employee, but was not
subject to the BSP. The same is true for Paul Vitale, an operations manager, who may be a
statutory supervisor.
The four CNN witnesses who are clearly rank and file photojournalists are Neal Hallsworth
40 and Desmond Garrison from the New York Bureau; and Washington photojournalists Doug
Schantz, and Khalil Abdallah. I find the testimony of these witnesses to be generally credible. I
also find the relevant nonhearsay testimony of three CNN management witnesses, Danny
Meara, Ed Scholl and John Silva, to be generally credible.
CNN also called Bethany Chamberland Swain as a witness. Swain appears to be a
45 manager or quasi-manager at present, Tr. 16091-92. 1 credit her testimony as to what she has
done in her career with CNN. As discussed previously, I find that much of the work Swain has
performed for CNN is different from or in addition to the photojournalist's job for which she was
hired.
Finally, CNN called Photojournalist Jay McMichael to testify about his work as a freelancer
50 in 2002 and 2003. CNN did not ask McMichael a single question about the work he has
performed for CNN since 2003. The testimony McMichael gave is completely credible.
145
JD-60-08
evidence that Delauter communicated this knowledge to anybody above him in the TVS
hierarchy. Delauter was a friendly witness for the General Counsel in part because he lost his
job by virtue of CNN's termination of the ENGA.
5 Secondly, CNN manager Matt Speiser testified that TVS general manager Brad Simons
offered to share his assessment of Team applicants with him during the BSP and that he
declined. The Union argues that a reasonable person in Simons' position would infer from
Speiser's lack of interest in his offer that CNN was determined to ignore the experience and
work performance of Team employees for discriminatory reasons.
10
Nevertheless, I dismiss the Complaint against Team Video Services largely because
CNN, rather the Team, is the party that has the resources and ability to remedy the unfair labor
practices in this case and because the evidence of Team's culpability is rather weak. It is
unclear what Team could have done even if it knew or suspected that CNN's motives for
15 terminating the ENGA and implementing the BSP were discriminatory. Moreover, although its
parent, Asgard Entertainment, is actively engaged in business, Team and Team of New York
are not.
Conclusions of Law
20
1. Respondents, CNN America, Inc., (CNNA) and Team Video were joint employers of
Team Video's employees at CNN's New York Bureau prior to January 17, 2004 and at CNN's
Washington, D.C. Bureau prior to December 6, 2003 .
25 2. As a joint employer, CNNA violated the Act by refusing and failing to comply with the
collective bargaining agreements between Team Video and NABET Local 11 after January 17,
2004 and between Team Video and Local 31 after December 6, 2003.
3. Respondent, CNN America, Inc., (CNNA) is also a successor employer to Team
30 Video Services at CNNA's Washington, D.C. and New York, New York bureaus.
4.. By virtue of its discriminatory failure to hire many Team Video bargaining unit
members at its Washington and New York bureaus and its illegal refusal to recognize the
Charging Parties as the bargaining representatives of employees it hired to perform work
35 previously performed by bargaining unit members, CNN forfeited its right to set the initial terms
and conditions of employment of these employees.
5. CNNA violated Section 8(a)(1) and (3) and (5) in implementing the Bureau Staffing
Project (BSP) and conducting the BSP in a discriminatory manner so as to achieve a non-union
40 technical workforce at its Washington, D.C. and New York, New York bureaus.
6. CNNA violated Section 8(a)(1) and (3) of the Act in limiting the number of Team Video
bargaining unit members it hired during the Bureau Staffing Project in order to avoid having to
recognize and bargain with NABET Locals 11 an 31.
45
7. CNNA violated Section 8(a)(1) and 8(a)(5) by refusing to recognize and bargain with
Locals 11 and 31.
8. ONNA violated Section 8(a)(1) and (5) in making changes to the employment
5o conditions of former Team Video bargaining unit members without offering the Unions the
opportunity to bargain.
146
J D-60-08
9. The Team Video bargaining unit "supervisors" are not "supervisors" within the
meaning of Section 2(11) of the Act.
10. CNNA, by Karen Curry, violated Section 8(a)(1) by telling employees explicitly or
5 implicitly that CNNA intended to operate with a nonunion technical workforce, thereby leaving
CNNA employees with an understanding that if they exercised their Section 7 rights, CNNA
would not hesitate to interfere with, restrain or coerce them in the exercise of such rights.
11. CNNA by Jeff Kinney, violated Section 8(a)(1) by telling employees in essence that
1o their relationship to the Team Video bargaining unit disqualified them from employment with
CNNA.
12. CNNA, by Lou Strauss, violated Section 8(a)(1) by confirming an employee's
suspicions that CNNA intended to operate its technical staff in New York without a union at the
15 end of the Team Video contract.
13. CNNA, by Danielle Whelton, violated Section 8(a)(1) in telling an employee that
there would be no union at the Washington Bureau after CNN hired its own technical workforce.
20 14. There is insufficient evidence to establish that Team Video knew or should have
known that CNNA was acting against employees for unlawful reasons and/or that Team Video
acquiesced in the unlawful conduct by failing to protest it or to exercise any contractual right it
might have to resist it. Therefore, Team Video is not liable for remedying CNNA's unfair labor
practices.
25
Remedy
Having found that the Respondent CNNA has engaged in certain unfair labor practices, I
find that it must be ordered to cease and desist and to take certain affirmative action designed
30 to effectuate the policies of the Act.
The Respondent having discriminatorily discharged and/or refused to hire employees, it
must offer them reinstatement and make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of proper offer of reinstatement,
35 less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Moreover, if any of the discriminatees require training in order to successfully perform
the jobs to which they must be reinstated, CNN is required to provide such training. CNN may
40 not profit from its illegal discrimination by failing to provide training that it would have provided
these employees had it complied with the Act, Hacienda De Salud-Espanola, 317 NLRB 962,
963, 969 (1995), Trompler, Inc., 335 NLRB 478 at 486 (2001 ).194
194 The solution for CNN's concern about having to reinstate untrained former Team
45 employees, CNN brief at page 263, is to provide those employees with the training they missed
due to CNN's discriminatory failure to hire them in the first place. There is nothing in this record
that indicates that the Team unit members that CNN did not hire could not be successfully
trained in CNN's new technology, as were the Team unit members CNN did hire.
CNN's suggestion that remedying its unfair labor practices would require it to move back to
50 5 Penn Plaza in New York is a "straw man." Nobody is proposing such a remedy. The potential
displacement of the innocent replacements for the discriminatees is almost always a possibility
Continued
147
J D-60-08
Having found that CNN was a joint employer with Team Video and thus bound by
Team's collective bargaining agreements, CNN must also remit to Local 11 and Local 31 all
dues it was required to withhold and transmit pursuant to the collective bargaining agreements,
5 with interest, see Forest Hills Family Foods, 353 NLRB No. 37 (September 30, 2008) slip
opinion at page 3; Merryweather Optical Company, 240 NLRB 1213, 1216 (1979).
Because of CNNA's widespread and egregious misconduct, demonstrating a flagrant
and general disregard for the employees' fundamental rights, I find it necessary to issue a broad
1o Order requiring the Respondent to cease and desist from infringing in any other manner on
rights guaranteed employees by Section 7 of the Act. Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and on the entire record, I issue the following
recommended1 95
15 ORDER
The Respondent, CNN America, Inc., its officers, agents, including Turner Broadcasting
Systems, successors, and assigns, shall
20 1 . Cease and desist from
(a) Refusing to hire former bargaining unit employees of Team Video Services
because of their union-represented status in Team Video's operation at CNN's Washington,
D.C. and New York, New York bureaus, or otherwise discriminating against employees to avoid
25 having to recognize and bargain with NABET Locals 11 and 31;
(b) Refusing to recognize and bargain in good faith with the NABET Local 11 and
NABET Local 31 as the exclusive collective bargaining representatives of its employees in the
bargaining units recognized by Team Video Services;
30
(c) Unilaterally changing the wages, hours, and other terms and conditions of
employment of former Team Video bargaining unit employees, and CNN employees performing
work that was previously performed by bargaining unit members, or functionally equivalent
work, without bargaining first with NABET Locals 11 and 31.
35
(d) contracting out or outsourcing bargaining unit work without providing NABET
Locals 11 and 31 the opportunity to bargain over such work;
(e) Interfering with, restraining and coercing employees in the rights guaranteed by
40 Section 7 of the Act by informing them either implicitly or explicitly that CNNA will not tolerate a
unionized workforce in any part of any of its bureaus;
(f) In any other manner, interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
45
in remedying a discriminatory refusal to hire or discharge.
195 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
50 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
148
J D-60-08
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Recognize and on request, bargain with NABET Local 11 and NABET Local 31
5 as the exclusive representative of the employees in the bargaining units recognized by Team
Video Services concerning terms and conditions of employment of former bargaining unit
employees and other CNN employees performing work that was previously performed by
bargaining unit employees, or functionally equivalent work, and, if an understanding is reached,
embody the understanding in a signed agreement;
10
(b) At the request of NABET Local 31, rescind any departures from the terms and
conditions of employment that existed at CNN's Washington D.C. bureau prior to December 6,
2003.
(c) At the request of NABET Local 11 rescind any departures from the terms and
15 conditions of employment that existed at CNN's New York, New York bureau prior to January
17, 2004;
(d) Nothing in this order shall authorize or require the withdrawal or elimination of any
wage increase, or other improved benefits or terms and conditions of employment that may
20 have been established at the Washington, D.C. or New York bureaus since the termination of
CNN contracts with Team Video Services.
(e) Within 14 days from the date of the Board's Order, offer the employees whose
names are listed in paragraphs 13 and 17 of the Complaint, appendixes C-D (attached) 196 full
25 reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.
The seniority of these employees that was recognized by Team Video shall be recognized by
CNN. Respondent CNN is to provide whatever training it has provided since the termination of
its contracts with Team Video Services, if such training is necessary to allow the discriminatees
30 to perform their former jobs or substantially equivalent positions.
(f) Make all the employees whose names are listed in paragraphs 13 and 17, and
appendixes A-D of the Complaint (attached) whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them and/or unilateral changes in the terms
35 and conditions of their employment, in the manner set forth in the remedy section of the
decision.
(g) Restore any bargaining unit work which has been contracted out (outsourced) since
the end of the Team Video contracts;
40
(h) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
45 196 Contrary to the notations on G.C. Exh. 578, the last amendment to Appendix C, the
following full-time Team bargaining unit members were never offered full-time employment by
CNN: James Cook, Martin Jimenez, Myron Leake and John Quinnette.
As discussed herein, Patrick A. Howley, listed by the General Counsel on Appendix D, was
not a member of the Local 11 bargaining unit and thus his name has been deleted.
50 As best as I can tell, John Fanning, listed on Appendix D, was hired by CNN during the
BSP. If that is accurate, his name should be deleted from that Appendix.
149
J D-60-08
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
5 (i) Remit to Local 31 with interest, any dues it was required to withhold and transmit
under the collective-bargaining agreement since December 6, 2003.
(j) Remit to Local 11 with interest, any dues it was required to withhold and transmit
under the collective-bargaining agreement since January 17, 2004.
10
(k) Within 14 days after service by the Region, post at its Washington, D.C. and New
York, New York bureaus copies of the attached notice marked "Appendix." 197 Copies of the
notice, on forms provided by the Regional Director for Regions 2 and 5, after being signed by
the Respondent's authorized representative, shall be posted by the Respondent and maintained
15 for 60 consecutive days in conspicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material.
(1) Within 14 days after service by the Region, mail copies of the attached notice marked
20 Appendix, 198 at its own expense, to all Team Video bargaining unit employees who worked at
the CNNA Washington, D.C. and New York, New York bureaus at any time after September 29,
2003. The notice shall be mailed to the last known address of each of the employees after being
signed by the Respondent's authorized representative.
25 (in) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., November 19, 2008.
30
6> fl
Arthur J. Amchan
Administrative Law Judge
35
40 _ _ _ _ _ _ _ _ _ _ _ _ _
197 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
45 198 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
50
150
JD-60-08
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to hire former Team Video Services bargaining unit employees who
worked at or for our Washington, D.C. and New York, New York bureaus because of their
union-represented status, union or other protected activities, or otherwise discriminate against
employees to avoid having to recognize and bargain with Locals 11 and 31 of the National
Association of Broadcast Employees and Technicians (NABET), Communications Workers of
America, AFL-CIO.
WE WILL NOT discharge or otherwise discriminate against any of you for supporting NABET
Locals 11 and 31 or any other union.
WE WILL NOT refuse to recognize and bargain collectively in good faith with NABET Locals 11
and 31 as the exclusive bargaining representative in the bargaining units recognized by Team
Video Services.
WE WILL NOT unilaterally change wages, hours and other terms and conditions of employment
of bargaining unit members without bargaining about these changes with Locals 11 and 31.
WE WILL NOT contract out or outsource any bargaining unit work without giving NABET Locals
31 and li the opportunity to bargain over such work.
WE WILL NOT'in any other manner interfere with, restrain or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, recognize NABET Local 31 as the exclusive bargaining representative of all our
employees doing work that was performed by Team Video bargaining unit members at our
Washington, D.C. bureau prior to December 6, 2003, or work that is functionally equivalent. We
will on request, bargain with the Union and put in writing and sign any agreement reached on
terms and conditions of employment for our employees who perform the work performed by
members of the former Team Video Services bargaining units or functionally equivalent work.
WE WILL, recognize NABET Local 11 as the exclusive bargaining representative of all our
employees doing work that was performed by Team Video bargaining unit members at our New
York, New York bureau prior to January 17, 2004, or functionally equivalent work. We will on
request, bargain with the Union and put in writing and sign any agreement reached on terms
and conditions of employment for our employees who perform the work performed by members
of the former Team Video Services bargaining units, or functionally equivalent work.
J D-60-08
WE WILL at the request of Local 31 rescind any departures from the terms and conditions of
employment that existed prior to December 6, 2003 at our Washington, D.C. bureau.
WE WILL at the request of Local 11 rescind any departures from the terms and conditions of
employment that existed prior to January 17, 2004 at our New York, New York bureau.
WE WILL restore to the bargaining unit any work that we have contracted out or outsourced
since the termination of the Team Video contracts.
WE WILL, within 14 days from the date of this Order, offer the employees listed in paragraphs
13 and 17 of the Complaint, appendices C-D, full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed. The seniority date of employees who accept
reinstatement shall be the seniority date recognized by Team Video.
WE WILL provide the same training to the employees mentioned above, that we have provided
since the termination of our contracts with Team Video Services, if such training is necessary to
allow the discrimatees to perform their former jobs or a substantially equivalent position.
WE WILL make the employees listed in paragraphs 13.and 17 of the Complaint, appendices A-
D, whole for any loss of earnings and other benefits resulting from their discharge, and/or our
discriminatory refusal to hire them, and/or any unilateral changes we have made in the terms
and conditions of their employment, less any net interim earnings, plus interest.
CNN AMERICA, INC.
(Employer)
Dated __________By_______________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board's
Regional Offices set forth below. You may also obtain information from the Board's website:
www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 am. to 5:15 p.m.
212-264-0300.
And/or
103 South Gay Street, The Appraisers Store Building, 8 th Floor
Baltimore, MD 21202-4061
Hours: 8:15 am, to 4:45 p.m.
410-962-2822.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE'S
COMPLIANCE OFFICER (New York), 212-264-0346.
COMPLIANCE OFFICER (Baltimore), 410-962-3113.
APPENDIX A NN TVS-DC Bargaining Unit
Paragraph 13(a)
Last Name First Name
Adkinson Jeffrey
Agomuoh IIEmmanuel
Alberter Bill
Anderson ICharles
Atkinson IRodney
Bacheler jDavid
Baktar Reza
Bannigan Mike
Bartlett Cameron
Bartlett Stephen
Berk Jay
Berman Dave
Bintrim Tim
Bodnar John
Buckhom Burke
Catrett David
C lemons Bobby
Cook James
Cottom Everett
Crennan Keith
David Michael
Davis John
Davis Ronald
Distance Ken
Dougherty Martin
Durham Tim
Elkins Brenda
Evans Bill
Everty Thomas
Farkas Danny
Faulkner Dennis
Flores Cesar
Galindo Michael
Garrat Tim
George Maurice
Gomez Augusto
Greene Thomas Michael
Gross Eddie
Hamilton ___ Christopher GC EXHIBIT
Herald Vernon
Hirzel Conrad5;4
Hollenback Paul
Hugel David
CNN4 AMERICA, INC. AND TEAM VIDEO SERVICES, LLC: 5-CA-31828, 5-CA-33125
Appendices to Complaint
APPENDIX A * NN TVS-DC Bargaining Unit
Paragraph 13(a)
Last Name First Name
Jansen Lesa
Jenkins David
Jennings Lori
Jimenez Martin
Kauffman Michael
Kinlaw Warren
Kiraly Nicholas
Kiyasu Adilson
Kopecky Dave
Kos Martin
Koztoski Douglas
Kuczynski Ronald
Lacey Donna
Lafollette Marianna
Langley Larry
Leake Myron
Leonard Christopher
Liu Tau
Lutt Howard
Maciejewski Michael
Marchione Mark
Marcus Ralph
McCall Kevin
McClam Kevin
McCloskey Barbara Stieritz
McKinley Douglas
McMichael Samuel Jay
Miller Paul
Mohen Peter
Moore William
Moran James
Morris Peter
Morse Rick
Mosley Joseph
Mueller John (Nick)
Muroz Luis
Murphy Tom
Noble Jeffrey
Noccioo Ernest
Norman Deinis
Norris _____ Jim
Otth John
CNN AMERICA, INC. AND TEAM VIDEO SERVICES, LLC: 5.-CA-31828, 5-CA-33125
Appendices to Complaint
APPENDIX A QCNN TVS-DC Bargaining Unit
Paragraph 13(a)
Last Name First Name
Pacheco Sarah
Parker Robert
Perez-Thompson Ines
Pettus William
Quinnette John
Riggs James
Riggs Tyrone
Robertson Greg
Romay Oscar
Schall Fred
Scherer David
Sch legel Barry
Selma Reggie
Skaife Paul
Smith Raeshawn
Smith-Brown Tawana
Stone Carolyn
Stubbs James
Suddeth James
Suissa James
Whiter Darrinl
hites Kenth
TiprWilliamAvte
Wiam John
Yranvc Brian
Zosso Elzaeth
Appndcett Cop aint n
OCT-2.37-2ooe 15:0? P. 021, 10
Complaint Atn~ndix B
(Complaint Paragraph 13(b))
Last Name First Name
Abramson Marc
Allen John
Arnold Andrew Gideon
Baker Melanie
Bassett Marcus
Baum Shimon
Benedict Gordon D.
Berkon Shep
Bemnius Paul
Bertino Doriann
Birch Richard
Bivona Frank
Borland Robert
Braunwarth Karl
Brennan Robert
Brown Chris
Bryne Gregory
Burnett Steve
Bums Jeffrey
Caxitali Joseph
Capolarello Joe
Carlough Jeffrey
Carroll Douglas
Casella Carmine
Casey Mark
Cassese Timothy
Centa Sergio
Clarke James
Collins Dwight
Collins Christopher
Conner Duff IIjOVXE NTE
Conroy John R.
Complaint Appendix B, Amended 5/30/08 page 1
OCT-2.3-2ooe 15:0? P. 03/10
Coombs Stephen
Cummings Robert
Cunningham Christopher
Cutting Paul
David Viktor
Delli Paoli Louis
DeStefano Jennifer
Diaconu John
Diana Michael
D'Qrio Gary
Dottin Michael
Dreyfuss Stefan P.
Dubow Ori M.
Dunkins Bruce
Edelman Jeffrey
Edgeworth Larry
Eric Jay
Everett Vince
Fanning John
Fayo -Nicholas 1.
Fehi Bradley
Fenster Donald
Fermazntt Felix
Ferrand Todd
Ferry John
Finnegan Dennis
Ford Jon C.
Forman Stewart
French John M.
Gallagher John
Garaza Arielle
Ganea Nicolae
Garrison Desmiond
Geiger Christopher
Gittelnian Michael
Glazier Michael J.
Gomez Ricardo
Complaint Appendixr B, Amended 5/30/08 page 2
OCT-23-2ooe 15:08 P. 04/10
Gorila Mitchell
Gorham Glen R.
Gracia Fernando
Greenberg Larry
Greene William
Greenspan Jason
Greenstein Jeffrey D.
Grima Eric
Hacker Daniel
Hadrovic Phil
Harper Kiisti J.
Hedeman. Peter
Heneghan. John J.
Herman Mark A.
Hollyday Thomas P.
Holmes Larry
Hortua Juan
Hubbard Mark
Imparato Walter
Ioannou Anthony K.
Jaranaillo Jeffrey
Jones Asprey
Jurek Thomas
Kane William
Kaplan Kenneth S.
Karas Nicholas P.
Kaufold Gerard
Khramtsov Sergei
Kiederling Brian
Kim Paul T,
Knolle Robert
Koslov Keith H.
Kriegsman Glen
Langan Edward
Lasch Beth
Latonero P. Jeffrey
Complaint Appendix B, Amended 5/30108 page 3
OCT-23-2008 15:08 P.05/10
Laux Brenda
Lazar Jason
Lee Brahms
LeGal Laurent
Leitner Stacy
Leibman Allan
Limna Steven
Lindenfeld Todd
Lishawa Kevin M.
Loccisano Felice
Long .Connie
Machalek Steven
MacLean Perry
Madden Christopher
Maines Douglas
Maney Tommy
Manzo Michael
Marshall Alexander
Martinez Gilbert
Martinez Sarael
Matteo Robert
McCarrie David
McClain Roy
McGinn Sean P.
McLaughlin Kathleen.
McShea Edward
Meara Dan
Messina Jennifer T.
Miuccio Thomas
Montalbano John
Morrisey Barbara
Mulvaney Donald
Nino Rod
O'Beirne Jonathan C.
Olivo Ramnon
Organ Tracy
Ortiz Juan
Complaint Appendix B, Amended 5130108 page 4
Or:T-23-2008 15:08 P.06/'10
Pace Dina V.
Parker Diane
Peithman James
Perilice Philip
Perreira Glenn W.
Persinko Timothy A.
Pertz James
Peters Mark
Phair Saylor
Pivawer Todd
Price Lauren
Rabel, Andrew
Rainone, Charles Jr.
Rappa, John
Reilly John
Reiss Jonathan D.
Riley Scott
Rodriguez Daniel
Roebling Christian
Rokshar Haznid "David"
Romano Frank
Rotundo, Pietro A.
Santos Joseph
Sawyer Samuel Ml
Scalley Daniel
Schang Frederick
Schiager Shari
Scholl Edward
Schumacher David B.
Seiden William
Serra Charles
Shine Richard
Singleton Charlene
Smith Jonathan
Sollenberger Michael
Sparks William M:
Scjuier Mickael
Complaint Appendix B, Amended Sf30108 page 5
P. 0?/ 10
St. John Danielle
Stein Michael
Strano, Robert
Sullivan Robert
Theodore Mary
Thomas Roger
Thompson Ronald L.
Touhey Shane
Trier Mike
Tsesmelis loannis
Uhoda Richard
Valentin Pedro
Van Patten Lawrence
Walden Donald
Ward Christopher
Weber David
Weak Robert
Wiener Jamie
Wood Brian
Zachar Glenn W.
Comzplaint Appendix B, Amended 5130108 page 6
APPENDIX C CNN TVS-DC Bureau
Paragraph 17(a)
Last Name First Name
Adkinson Jeffery______________
Agomuoh Emmanuel
Anderson Charles
Atkinson Rodney
Bintrim Tim
Cook James
Crennan Keith
Durham Timothy
Evans Bill
Farkas Danny_____
Faulkner Dennis____
Hamilton Christopher ____
Jenkins David
Jimenez Martin
Kauffman Michael______________
Kiraly Nicholas ____
Ki yasu Adilson_______
Lacey Donna______________
Langley Larry
Leake Myron
Marchione Mark
MarcusRalph
_____ Mosley_______ Joseph
MufiozLuis
NobleJeffery
NomnDennis _______________
NorsJames______________
Pacheco Sarah
Quinnette John ___
RiggsTyrone
RomayOscar
___ __ __ __ __ __ __ __ Fred _ _ _ _ _ _ _ _ _ _ _ _ _
SkaifePaul
Stubbs James
Suddeth James
Suissa James
Urman John
Wade Joseph _____________
Webster Aaron _____________
White Darrin_________ _____
CNN AMERICA, INC. AND TEAM VIDEO SERVICES, LLC: 5-CA-31 828, 5-CA-33125 GC EXHIBI1
Appendices to Complaint
Complaint Appendix D - Amended
Last Name First Name
Abramson Marc
Baker Melanie
Bassett Marcus
Bernius Paul
Bertino Doriann
Birch Richard
Burnett Steve
Cantali Joseph
Carlough Jeffrey
Cassese Timothy
Collins Christopher
Conner Duff
Cummings Robert
Cunningham Christopher
David Viktor
DeStefano Jennifer
Diaconu John
Diana Michael
Edelman Jeffrey
Eric Jay
Everett Vince
Fanning* John
Fenster Donald
Fo-maintt Felix
Ferrand Todd GC EXHIBIT
Ford Jon C.
Gallagher John £
Gomila Mitchell
Gracia Fernando
Hacker Daniel
Hadrovic Phil
Harper Kristi
Hedeman Peter
Hortua Jua~n
Jaramillo Jeffrey
Jones Asprey
Kaplan Kenneth S.
Kiederling Brian
Knolle Robert
Kriegsman Glen
Lasch Beth
Lima Steven
Long Connie
MacLean Perry
Maney Tommy
Martinez Sarael
Matteo Robert
McClain Roy
McLaughlin Kathleen
McShea Edward
Morrisey Barbara
Nino Rod
Olive" Ramon
Organ Tracy
Peithman James
2
Peters Mark
Pivawer Todd
Rainone Charles Jr.
Rappa John
Rodriguez Daniel
Roebling Christian
Rokshar Hamid "David"
Scalley Daniel
Schiager Shari
Seiden William
Serra Charles
Sollenberger Michael
Squier Mickael
St. John Danielle
Sullivan Robert
Theodore Mary
Uhoda Richard
Valentin Pedro
3