CNN, NLRB Make Arguments in Layoffs Appeal
The National Labor Relations Board, when it decided CNN was the actual employer of Team Video Services (TVS) workers, violated administrative law principles by changing its legal standard without acknowledging it was doing so and applying that new legal standard…
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retroactively, CNN said in a final brief (in Pacer) Friday filed with the U.S. Court of Appeals for the D.C. Circuit. In its own brief (in Pacer) Friday, NLRB said CNN met all the long-held criteria of being a joint employer, such as control over or participation in hiring, setting wages and day-to-day supervision, and TVS was following CNN policy regarding not hiring technicians who came from the network's competitors. Friday was the deadline for final briefs to the D.C. Circuit on an NLRB 2015 order requiring CNN to hire more than 100 laid-off TVS workers. Oral argument isn't scheduled. In its brief, CNN said the NLRB ruling changed the joint-employer analysis -- which had focused on whether a putative joint employer's control over employment matters was direct and immediate -- and the new standard can't be applied retroactively to the company, or the NLRB had to explain how it came to that new conclusion. In an intervenor brief (in Pacer), Communications Workers of America's National Association of Broadcast Employees and Technicians locals 11 and 31, which represented the laid-off workers, said CNN wasn't penalized by the NLRB order since it had to restore employment conditions only to the extent its changes hadn't resulted in improved terms and conditions of employment, and "any 'penalty' is the result of CNN's unlawful conduct." NLRB, in its brief, said CNN is mischaracterizing its "direct and immediate" standard. "No court has ever cited it, nor has any Board decision turned on that ... language or even treated it as an 'essential element,' " it said, and thus didn't retroactively apply a new joint-employer standard, but merely clarified it.