CNN Appeal of NLRB Order Likely to Hinge on Level of Subcontractor Control
Resolution of an appeal of a National Labor Relations Board finding against CNN could largely turn on whether it had direct and immediate control of Team Video Services (TVS) workers laid off when CNN brought in house work done by TVS. During oral argument Thursday before the U.S. Court of Appeals for the D.C. Circuit, the three-judge panel and CNN and NLRB counsel repeatedly delved into whether the agency applied the long-held direct-and-immediate control test for CNN's being a joint employer in its 2015 order requiring CNN to hire some laid-off TVS workers.
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The D.C. Circuit decision might not come until late this year or early next because of the case's large record, Keith Bolek of O'Donoghue & O'Donoghue, outside counsel for intervenor National Association of Broadcast Employees and Technicians Local 31, told us.
NLRB's position is "utterly untenable" since it dispensed with its control test, and the agency compounded its error with a burdensome penalty, said CNN outside counsel Kannon Shanmugam of Williams & Connolly. With CNN having argued its control over the subcontractors employees was limited and routine, Chief Judge Merrick Garland asked whether that's the opposite of immediate and direct and if there's no ground between the two; Shanmugam said there wasn't.
Judge Cornelia Pillard challenged the channel's stance that NLRB abandoned its direct-and-immediate control test, saying her read of the order raises questions about the legal underpinning of the control test but the board ultimately did apply it in the matter. Shanmugam said CNN doesn't dispute that NLRB looked at the right factors in evaluating whether it had joint control over TVS workers, such as hiring and supervision practices, but the agency then didn't give the right level of scrutiny. Garland also challenged CNN on the deferential standard applied to agency decisions and questioned where the error is in the NLRB's decision that the company was successor to TVS collective bargaining obligations, saying the court doesn't remand decisions "for the heck of it."
The network's hiring of some laid-off TVS workers was "patently and pervasively riddled with anti-union animus," NLRB attorney Joan Hoyle-Hayes said. Judge Brett Kavanaugh asked her why the court shouldn't "take the easy path" and rule that the agency didn't apply the direct-and-immediate control test since that was his read of the order, and Hoyle-Hayes and the three judges went back and forth over whether the agency actually did apply the test. Hoyle-Hayes said if the order is remanded to the NLRB, "it could come out even stronger than it is now" given the CNN position. Garland then suggested if the result isn't going to be different on remand, there might not be a point of remanding it.
The direct-and-immediate issue is "quibbling over semantics," Bolek said, pointing to numerous examples of CNN having complete control over issues like setting assignments and even directing TVS workers on videography composition. Shanmugam said that was insufficient proof of direct-and-immediate control and that at minimum, the D.C. Circuit had grounds to remand the order for a new look at the issue of anti-union hiring.
Kavanaugh questioned whether that the network hired most laid-off TVS workers, including most of the people who had been union leadership, flies in the face of the charge of anti-union practices. Bolek later said that was irrelevant since nonunion internal applicants were hired at a higher rate for openings.