[00:00:01] Speaker 00: Case number 15-1112 et al. [00:00:05] Speaker 00: National Labor Relations Board Petitioner versus CNN America, Inc. [00:00:11] Speaker 00: Mr. Shan Mugum for petition of CNN America, Inc. [00:00:15] Speaker 00: Ms. [00:00:16] Speaker 00: Hoyt Hayes, respondent NLRB. [00:00:19] Speaker 00: Mr. Bullock, intervener, Local 31. [00:00:24] Speaker 03: Thank you, Your Honors. [00:00:25] Speaker 03: Candidate Shanmugam of Williamson Connolly for cross-petitioner, CNN America. [00:00:29] Speaker 03: May it please the court, the position of the National Labor Relations Board in this case is utterly untenable. [00:00:35] Speaker 03: In the order under review, a divided panel of the board ruled that CNN was a joint employer of production employees supplied by third-party contractors, summarily dispensing with the preexisting rule that a company could be liable as a joint employer only if it exercised direct and immediate control over the terms and conditions of employment. [00:00:55] Speaker 03: The board then ruled that CNN became a successor employer by engaging in blanket discrimination against union employees, even though CNN employed a neutral hiring policy and hired union members at nearly four times the rate of the average applicant. [00:01:10] Speaker 03: And the board compounded its errors on liability by ordering a punitive and burdensome remedy. [00:01:16] Speaker 03: The board acted impermissibly by applying an expanded standard of joint employer liability to CNN retroactively and without reasoned explanation. [00:01:26] Speaker 03: And its error on the issue of joint employer liability fatally infected its analysis on the issue of successor employer liability as well. [00:01:34] Speaker 03: And for those reasons, the board's order should be vacated. [00:01:38] Speaker 03: I'd like to start, if I may, with the board's ruling on the joint employer issue, because in our view, that ruling is simply indefensible. [00:01:45] Speaker 03: Now, the board defends that ruling before this court solely on the ground that direct and immediate control was never a requirement for joint employer liability. [00:01:54] Speaker 03: But the board itself took a contrary position when it dispensed with that requirement in the Browning Ferris Industries case. [00:02:02] Speaker 03: And I can really do no better than to point this court to the board's ruling in Browning Ferris Industries. [00:02:08] Speaker 03: which I think very lucidly lays out the history of the board's treatment of the standard on the joint employer issue, and makes clear that the board, for a substantial period of time, applied the direct and immediate control standard. [00:02:23] Speaker 03: And contrary to the board's argument before the court in this case, that standard was not simply one that was articulated in a footnote in the airborne express decision. [00:02:34] Speaker 03: While it is true that that is the first time that the board used the words direct and immediate control, that standard, as the board makes clear in its decision in Browning Ferris Industries, in fact dates from the board's prior decisions in cases like TLI and Lerko, cases dating back to the 1980s, that make clear that mere limited and routine supervision is insufficient to give rise to a joint employer relationship. [00:02:59] Speaker 02: And the board is I know I just want to be sure I'm understanding you think clear and routine was a clear and routine is that limited and routine you think. [00:03:09] Speaker 02: That is this opposite of. [00:03:13] Speaker 02: immediate and direct, and there's nothing in between those two? [00:03:15] Speaker 03: We don't think that there's really anything in between those two. [00:03:18] Speaker 03: And again, if you look at the board's treatment in the Browning Ferris Industries decision, and this is in the slip opinion starting at page 10, the board really treats all of those cases together. [00:03:28] Speaker 03: At page 10, the board says that the board took board law in a new and different direction, starting with LERCO and TLI. [00:03:37] Speaker 03: And that's really what the board is talking about in the subsequent lengthy discussion when it goes through the board's cases, and it goes through both the cases after TLI and Lerico, up to Airborne Express, and then the cases after Airborne Express. [00:03:51] Speaker 03: And of course, in adopting the new two-part standard in Browning Ferris Industries, the court ultimately concludes by overruling Lerico, TLI, A&M property, and Airborne Express and other board decisions to the extent they are inconsistent with the decision today. [00:04:06] Speaker 03: And of course, ironically, that was not just the board's position in the Browning Ferris Industries decision itself. [00:04:11] Speaker 03: That was the general counsel's position in his briefing in Browning Ferris Industries, not only before the board, but before this court as well. [00:04:19] Speaker 01: uh... mission again you argue that the works puts put aside the direct immediate control test but the way i read what the board did here and if the board raised a question about the legal underpinnings of the direct and immediate control test clear that in that [00:04:37] Speaker 01: proceedings all the way that there's many, many findings of direct immediate control that ultimately I think what happened here was that the board didn't apply the direct immediate control test and found it to be met and invited challenges that in fact we're going to see in the in the Browning Press case on the legal evolving legal issue to try to clarify that. [00:04:57] Speaker 01: But here [00:05:00] Speaker 01: It seems to have been applied. [00:05:02] Speaker 03: I disagree with most of that, Judge Feller. [00:05:03] Speaker 03: Let me explain why. [00:05:04] Speaker 03: I think that the board dispensed with the direct and immediate control standard in footnote seven. [00:05:10] Speaker 03: And to be sure, the board then proceeded to analyze a variety of factors. [00:05:16] Speaker 03: It analyzed hiring and firing. [00:05:18] Speaker 03: It analyzed supervision. [00:05:20] Speaker 03: It analyzed assignment of work and the like. [00:05:23] Speaker 03: But in analyzing those factors, the board did not require the level of control that the direct and immediate control cases require. [00:05:35] Speaker 03: And so we're not disputing that the board considered the right factors. [00:05:38] Speaker 03: The board simply didn't analyze those factors with the right level of stringency. [00:05:42] Speaker 03: And so the board concluded, for instance, with regard to hiring and firing, [00:05:49] Speaker 03: CNN's determination of the appropriate staffing level was sufficient to satisfy that factor, even though TVS unquestionably had ultimate authority over hiring and firing decisions. [00:05:59] Speaker 03: And if you look at the cases applying the direct and immediate control standard, like Southern California Gas and Flagstaff Medical Center, that is insufficient. [00:06:07] Speaker 03: And I can walk you through all of the factors and point to cases in the direct and immediate control body that say that the level of supervision at issue here was insufficient, for example. [00:06:18] Speaker 03: And so that's why this choice of standard really matters. [00:06:21] Speaker 03: And so again, it's not that the board took a variety of illegitimate considerations into account. [00:06:27] Speaker 03: The board simply didn't apply the appropriate level of scrutiny. [00:06:29] Speaker 03: And I think what's so odd about all of this is the procedural history. [00:06:34] Speaker 03: And I want to touch on that just a little bit, because the way that the board dealt with this case was very irregular. [00:06:39] Speaker 03: At the time the board issued its decision in this case, [00:06:42] Speaker 03: It had already ordered supplemental briefing in the Browning Ferris Industries case on the question of whether the board should in fact revisit the standard. [00:06:52] Speaker 03: And of course the general counsel had filed a brief in Browning Ferris Industries saying here's the current standard in the board's own words at page 8 of that brief. [00:07:00] Speaker 03: And here's what we think that the standard should be. [00:07:03] Speaker 03: Of course, in Browning Ferris Industries, the board proceeded to change the standard and to adopt a two-part test. [00:07:09] Speaker 03: The first part of which was the requirement from the cases predating the direct and immediate control cases that you look at whether the alleged joint employer shares or co-determines those matters governing the essential terms and conditions of employment. [00:07:22] Speaker 03: But the second part of the test is whether [00:07:24] Speaker 03: the alleged joint employer satisfies the common law standard for being an employer. [00:07:28] Speaker 03: And indeed, it's arguably that part of the test that really puts at least some degree of teeth into the new joint employer standard. [00:07:37] Speaker 01: That's the new standard. [00:07:38] Speaker 01: Here we're just trying to figure out, at a time when that was not yet clear and certainly not applied in the trial proceedings, what was applied and whether there's an error there. [00:07:52] Speaker 03: I agree, Judge Pillard, and I think that the standard that the Court applied looking at the Board's opinion at page 7245 was simply the first part of that standard, namely whether CNN shared or co-determined those matters governing the essential terms and conditions of employment. [00:08:08] Speaker 03: So if anything, the standard that the Board applied in this case [00:08:12] Speaker 03: seems to be even more expansive than the standard, the moral act standard that the board ultimately applied in Browning First Industries. [00:08:20] Speaker 03: So what we have here in Justice Scalia's words is a tertium quid. [00:08:23] Speaker 03: We have like some third standard. [00:08:25] Speaker 03: It's not the direct and immediate control standard. [00:08:27] Speaker 03: But it's also not the standard that the board subsequently adopted in Browning Ferris Industries. [00:08:32] Speaker 03: And of course, to step back, our argument here is really, I think, a straightforward one. [00:08:36] Speaker 03: It's that the board should have applied the pre-existing standard, the direct and immediate control standard, that we would plainly prevail under that standard. [00:08:44] Speaker 03: But of course, the board could have chosen to try to apply a different standard in this case. [00:08:49] Speaker 03: Instead, the board simply tried to sweep this case under the rug and to kind of get rid of it while it was considering whether to change the standard. [00:08:56] Speaker 03: If the board had wanted to apply the Browning Ferris Industries standard in this case, [00:09:01] Speaker 03: It would have had to say, number one, we're going to change the standard and to engage in this sort of explanation that it did ultimately in the Browning Ferris Industries decision itself. [00:09:10] Speaker 03: And then number two, and critically, to explain why it would be appropriate to apply that standard retroactively in an unfair labor practices case. [00:09:18] Speaker 06: And that's what you want from us if you prevail on this argument, is a remand for them to [00:09:23] Speaker 06: if they'll presumably change, although who knows, to the Browning-Farrer standard, and then apply that and consider the retroactivity. [00:09:31] Speaker 03: So, Coach Cavanaugh, on the joint employer issue, we really do think that the board should have applied the direct and immediate control standard, because we think there would have been retroactivity concerns with changing the standard. [00:09:41] Speaker 03: Well, that's, yeah, I'll fold that in. [00:09:42] Speaker 06: Somehow they have to consider whether they have to apply direct and immediate control, and if so, apply it. [00:09:47] Speaker 06: If they can change, they would have to deal with, forthrightly, with the retroactivity problems. [00:09:52] Speaker 03: I think that would be [00:09:53] Speaker 03: appropriate disposition in our ideal world. [00:09:56] Speaker 06: What's the preferred disposition? [00:09:57] Speaker 03: The preferred disposition would be to say you have to apply the direct and immediate control standard and we plainly prevail under that standard. [00:10:04] Speaker 03: And how can we say that here now? [00:10:07] Speaker 03: Well, I think you can say it on the ground that it would essentially be [00:10:10] Speaker 03: futile to remand this because it's so clear that we would prevail under that standard, and that applying a more relaxed standard would be impermissibly retroactive. [00:10:19] Speaker 03: So you want us to deal with all the retroactivity, at least that's your preferred? [00:10:23] Speaker 03: That would be our preferred option, but I think it would be a perfectly appropriate and certainly a procedurally regular outcome for this court to say to the board, look, go back and be at a minimum clearer about what standard you're applying, knowing that if you want to try to apply a relaxed standard in this case, [00:10:40] Speaker 03: you're at a minimum going to have to provide a reasoned explanation as to why it's appropriate to apply it retroactively. [00:10:47] Speaker 03: And as we explain in our brief, there are good reasons to be concerned about retroactive application in an unfair labor practices case as opposed to a representation case like Browning Ferris Industries. [00:10:58] Speaker 03: And so I think that that would essentially enable the board, however it is constituted, to make a determination at the appropriate time about what standard it actually wants to apply in this case. [00:11:09] Speaker 03: And I would note as well that on the successorship issue, we think that that determination really does fall together with the joint employer determination, such that if this court decides even to remand on the joint employer issue, it would be appropriate to remand on the successorship issue as well, because one of the three considerations that the board relied on in making its finding of blanket discrimination [00:11:33] Speaker 03: was a determination that there was something improper about the termination of the contracts here. [00:11:40] Speaker 03: A premise that really depends centrally on a determination that CNN was a joint employer such that the termination was improper. [00:11:49] Speaker 03: How did that come into this termination of whether they were successor? [00:11:52] Speaker 03: How did that come into the successorship analysis? [00:11:55] Speaker 03: Well, if you take a look at the board's opinion at pages 7260 to 7261, and this is the beginning of the discussion on successorship and specifically on the question of whether CNN was a successor through blanket determination, which, as the court will be aware, has [00:12:13] Speaker 03: considerable consequences. [00:12:15] Speaker 03: In the carryover paragraph, the board relies on the termination and the supposed secrecy of the termination. [00:12:23] Speaker 03: And in fact, as you'll see in the fourth line of the first column on page 7261, it actually refers back to the discussion on the joint employer issue. [00:12:32] Speaker 03: It says, as stated above, CNN never terminated or directed the termination of any TVS unit employee for failing to keep up with those changes or inability to perform the work. [00:12:41] Speaker 02: So is that work, not just one way? [00:12:43] Speaker 02: that there can be successorship. [00:12:45] Speaker 02: The other way is if the historical bargaining unit was appropriate and if there was a majority in that. [00:12:50] Speaker 02: So they're two separate questions, Chief Judge. [00:12:52] Speaker 02: And I want to focus on the second one. [00:12:54] Speaker 02: Yes. [00:12:54] Speaker 02: And that one, the law is, if it is a appropriate bargaining unit, right, and if more than 50% of the employees were the original ones, then it's, plus the other aspects of successorship. [00:13:07] Speaker 03: Yes. [00:13:08] Speaker 03: I'll work my first point into the second, which is that it's critically important to keep distinct the question of whether CNN was the successor that engaged in blanket discrimination, or whether CNN was a successor in the more traditional way you've just laid out. [00:13:22] Speaker 03: It cuts to the remedy, right? [00:13:24] Speaker 03: It is very important for the remedy, because the only available remedy in the latter circumstance would be a bargaining order. [00:13:30] Speaker 02: I understand that, but you started with a pretty blanket statement that if they lose joint employer, they also lose successor. [00:13:36] Speaker 02: And that's what I want to begin with. [00:13:39] Speaker 02: As I read the opinion, the board adopts the ALJ's determination that the historical bargaining unit is appropriate, both because they, in footnote one, adopt the findings and conclusions of the ALJ. [00:13:55] Speaker 02: And second, as you point out in footnote 36, they say that [00:14:02] Speaker 02: CNN is wrongly arguing that the larger unit is the appropriate one and instead that the TVS employees constitute the majority of the historical bargaining unit. [00:14:13] Speaker 02: They cite the ALJ for that proposition and the ALJ does conclude that the historical unit is an appropriate one. [00:14:22] Speaker 03: So I don't think that that's quite right, Chief Judge Garland, but first let me clarify what I said at the outset, because I do think this is really important. [00:14:30] Speaker 03: We think that the discrimination finding would fall, not necessarily the entirety of the determination on successorship. [00:14:37] Speaker 03: if the court agrees with us that the joint employer determination was flawed. [00:14:41] Speaker 03: So I just want to be very clear about that. [00:14:42] Speaker 03: On the question of what I'll refer to as sort of more traditional successorship, whether we became a successor because a majority of the TBS employees, of the employees of the historical bargaining units were TBS employees. [00:14:55] Speaker 03: We did argue that the bargaining unit, the only appropriate bargaining unit, was a broader one. [00:15:00] Speaker 03: The ALJ did not address that issue. [00:15:03] Speaker 03: The ALJ sort of blew it off by concluding, and this is at page 7347 of the Joint Appendix, that CNN's purported discrimination prevented it from challenging the historical bargaining. [00:15:14] Speaker 02: That's one of the arguments the board makes. [00:15:16] Speaker 02: But then the ALJ makes. [00:15:18] Speaker 02: But then says, nevertheless, it's well recognized [00:15:21] Speaker 02: The long-established bargaining relationships will not be disturbed whether or not repugnant the Act's policies. [00:15:28] Speaker 02: The Board places a heavy evidentiary burden on a person or party attempting to show that historical units are no longer appropriate. [00:15:34] Speaker 02: And then I read the next three pages as explaining why the historical unit is appropriate. [00:15:40] Speaker 03: Well, even if you read the ALJ's opinion that way, I would fall back on our argument concerning footnote 36, and I would respectfully submit that that falls short of... Because it's a footnote? [00:15:51] Speaker 02: Not because it's a footnote, but... That would be hard, since in Airborne, the words that you want come in a footnote. [00:15:57] Speaker 03: And as you know, Your Honor, all the good stuff is always in footnotes, whether in court opinions or even in administrative adjudication. [00:16:02] Speaker 03: That's why I always read them first. [00:16:03] Speaker 03: But I will say that when you look at the footnote, and when you look at really, it's really two sentences of the footnote on which the board relies, we think that that footnote, fairly read, does not stand for the proposition that the board considered and fully rejected the argument that a wall-to-wall unit was the appropriate one. [00:16:22] Speaker 03: It was in context, merely responding to what member Miss Gamara said about why the determination on mass anti-union animus or blanket discrimination was [00:16:32] Speaker 03: inappropriate. [00:16:33] Speaker 02: But even if that were true, we traditionally regard a sentence like, the board has decided to affirm the judge's rulings, findings, and conclusions as sufficient if the ALJ's findings and conclusions are sufficient. [00:16:47] Speaker 02: And they do make that point in another footnote, footnote one, which is where they typically put these things. [00:16:52] Speaker 03: Well, that's fair enough. [00:16:55] Speaker 03: But I think that in a minimum, if the court is going to send this case back to the board in any event, it ought to allow the board to fully consider that issue and to specifically address our argument as to why a wall-to-wall unit was the only appropriate unit here, particularly given the fact that notwithstanding the presumption in favor of historical bargaining units, [00:17:17] Speaker 03: We cite ample authority really in this specific context of broadcasting and production employees for the proposition that wall-to-wall units are the only appropriate units. [00:17:27] Speaker 02: Were those successor cases? [00:17:29] Speaker 03: I don't believe that they were successor cases. [00:17:31] Speaker 02: That's different because there was no incumbent union. [00:17:34] Speaker 02: So there's no historical bargaining unit at that point. [00:17:37] Speaker 02: And in our cases, I don't think we could use stronger language about the presumption that you have to overcome. [00:17:44] Speaker 03: But the presumption can still be overcome. [00:17:47] Speaker 03: And our submission is that at a minimum, again, if this case is going to go back to the board, I don't think there's any harm in allowing the board [00:17:57] Speaker 03: fully to consider that issue, knowing that the board is also going to have to consider the issue of the propriety of the remedy. [00:18:03] Speaker 03: And of course, we have all of our arguments. [00:18:05] Speaker 02: Well, we can send it back. [00:18:06] Speaker 02: You're obviously right about the 8A5 claim about discrimination, and that would have to go back if the joint employer falls. [00:18:13] Speaker 02: And you would also be right about the 8A3 claim [00:18:18] Speaker 02: by terminating their employment. [00:18:19] Speaker 02: But the remainder of the case doesn't depend on joint employer. [00:18:24] Speaker 02: Most of it depends on successor employer. [00:18:28] Speaker 02: And we don't typically send something back just for the heck of it. [00:18:32] Speaker 02: We only send it back if we find an error and with our differential standard of review. [00:18:37] Speaker 03: And I just think, Chief Judge Garland, that applying chenery, I just don't think that it's sufficiently clear here that the board, in fact, made an affirmative determination that we were a successor in that traditional way. [00:18:50] Speaker 02: Do you think, as a gentleman, we do this a lot, so for the future, I'd like to know. [00:18:55] Speaker 02: We typically, and many of the board's opinions, in fact, one of the board's opinions that you cite is basically like six sentences long, and then there's a 100-page ALJ opinion. [00:19:06] Speaker 02: And all they say in the six sentences is, we adopt the ALJ. [00:19:11] Speaker 02: We typically don't require the board itself to do more than that. [00:19:14] Speaker 02: You think that we need to, if the ALJ has addressed the question? [00:19:17] Speaker 03: But I think you have to look at what the board actually says in its opinion. [00:19:20] Speaker 03: I think it's one thing when you have a case, and there are certainly plenty of cases that we cite on the joint employer issue that are in this category, where you have the board essentially doing nothing more than incorporating the ALJ's underlying decision. [00:19:34] Speaker 03: Here, to be sure, the board incorporates the ALJ's credibility determinations and the like in footnote one. [00:19:39] Speaker 03: But you have to look at the board's actual analysis. [00:19:42] Speaker 03: And again, Chief Judge Garland, I think, fairly read. [00:19:45] Speaker 03: When you look at the board's overall analysis on the successorship issue, it is really resting on the discrimination finding. [00:19:51] Speaker 03: And again, if the board on remand wants to say, come back and say. [00:19:55] Speaker 03: And of course, in some sense, the issue of whether CNN is a more traditional successor is an issue that you really only need to get to if you conclude that CNN did not engage in blanket discrimination because the remedies, as Judge Kavanaugh pointed out, are more narrow. [00:20:12] Speaker 03: And so at a minimum, it just seems to me appropriate [00:20:16] Speaker 03: for the board to be given the opportunity to consider this issue more fully on remand and then to decide what the appropriate remedy is, an issue that the board would only have to get to if on remand it concludes that we are neither a joint employer nor a successor that engages in blanket discrimination. [00:20:31] Speaker 01: On the wall-to-wall employer question, it seems there's a little temporal fudging going on in your position to the extent that don't we look at the [00:20:42] Speaker 01: moment when CNN takes over and at that moment it had not reorganized its workforce at all and so the logic of the pre-existing bargaining unit was still just as forceful as it had been. [00:20:55] Speaker 01: Well, I mean, over time, you're saying, well, things are evolving. [00:20:58] Speaker 01: We're trying to do this differently, but not at the relevant time for purposes of measuring successorship. [00:21:06] Speaker 03: I mean, I think you have to look at the workforce as it is at that point. [00:21:11] Speaker 03: But of course, you have to take into account [00:21:13] Speaker 03: at least to some extent, the reconstituted workforce because otherwise you would never have a basis for changing from the historical bargaining unit. [00:21:20] Speaker 03: In other words, to get back to Chief Judge Garland's question, I think that the way that this works in the successorship context is that you have to apply the familiar community of interest standard and to apply it looking at [00:21:34] Speaker 03: the workforce as it is after the successorship occurs. [00:21:39] Speaker 03: And of course, our argument is that when you take the positions that are the historical bargaining unit positions in that reorganized workforce, [00:21:48] Speaker 03: and you look at the other production employees at CNN, there is a complete community of interest. [00:21:53] Speaker 03: There's no basis for distinguishing between the former positions and the latter positions. [00:21:59] Speaker 03: And again, that's an issue that the board can analyze in greater detail and reach a contrary conclusion on in the event that this court sends the case back. [00:22:08] Speaker 03: And then the board can proceed to address the question of whether it thinks that a bargaining remedy is appropriate. [00:22:13] Speaker 03: And of course, if this court remands, it's presumably not going to reach any of the remedial issues that we raise at the back end of our briefs here. [00:22:22] Speaker 03: And so the board will have the opportunity to address those issues in the first instance should the case go back. [00:22:32] Speaker 02: OK. [00:22:33] Speaker 02: Thank you. [00:22:35] Speaker 02: We'll hear from the NLRB. [00:22:47] Speaker 04: May it please the court and Joan Hoyt, and I'm reserving three minutes of my time for intervener's counsel. [00:22:56] Speaker 04: Your Honor, for more than 30 years, CNN relied on a contractor to provide it with a unionized workforce. [00:23:11] Speaker 04: And then it determined to get rid and rid itself of the union obligations of that contractor by firing all the technicians that had been provided, changing their job descriptions, and replacing them through a hiring procedure, the implementation of which was patently and pervasively riddled with union animus. [00:23:40] Speaker 04: substantial evidence supports the board's finding that this conduct was unlawful. [00:23:46] Speaker 06: So on the joint employer issue, why don't we take the easy path and say the board itself in Browning Ferris said that the direct and immediate control standard had been the standard and was going to change it. [00:24:03] Speaker 06: And [00:24:05] Speaker 06: Here, the board did not apply the direct and immediate control standard. [00:24:12] Speaker 06: So it's got to go back to the board for them to decide, either we're going to apply the direct and immediate control standard, or we're going to apply a lesser standard. [00:24:21] Speaker 06: And if we apply the lesser standard, they have to confront retroactivity issues. [00:24:25] Speaker 06: Why isn't that just the, given what Brown and Ferris said, it's not us making up what the board precedent is. [00:24:30] Speaker 06: The board itself described this precedent. [00:24:33] Speaker 04: I think Brian Harris, if you read it to literally, says that [00:24:40] Speaker 04: Airborne Express, TLI, and Larco had been out there. [00:24:47] Speaker 04: I am not disputing that that case with direct and immediate control was there. [00:24:53] Speaker 04: But this circuit has endorsed in Dunkin' Donuts, which does not show up at all. [00:25:00] Speaker 02: The Dunkin' Donuts, the underlying NLRB case was before Airborne. [00:25:05] Speaker 04: I'm sorry? [00:25:05] Speaker 02: In Dunkin' Donuts, the underlying NLRB decision was before Airborne. [00:25:11] Speaker 04: That's correct, Your Honor. [00:25:13] Speaker 04: But this court's decision in that case issued in 2004, after Airborne was issued. [00:25:21] Speaker 04: And so if we take the argument that my opponent is making to its logical conclusion, then the court could have and perhaps should have done there what they're asking us, asking you to do here. [00:25:36] Speaker 02: Nobody was making the argument in that case. [00:25:39] Speaker 01: I thought your position was that in fact ALJ and the board [00:25:43] Speaker 01: effectively applied a direct and immediate control analysis. [00:25:46] Speaker 01: And if you look at the board's decision, talk about CNN playing a decisive role, its direct role in the assignment direction and supervision of the TVS employees, CNN was properly named as a joint employer here as it, quote, played a direct and key role in the events alleged. [00:26:07] Speaker 01: So I thought the position was, [00:26:10] Speaker 01: whatever the standard is, the narrowest standard, direct and immediate, that the ALJ's findings needed. [00:26:17] Speaker 04: I think what needs to be understood here is that Brown and Ferris 1, which is the Third Circuit's case in 1982, set up the standard which practically all circuits have followed, which says a joint employee should be determined if [00:26:37] Speaker 04: it shares and co-determines the essential elements in a significant way. [00:26:47] Speaker 04: TLI, LARCO, and Airborne Express all cited to Browning and Ferris. [00:26:55] Speaker 04: So Browning and Ferris won. [00:26:59] Speaker 04: So Browning and Ferris won is the overarching standard that the board has applied time and time again. [00:27:05] Speaker 06: But Browning and Ferris, the board's decision is very clear. [00:27:10] Speaker 06: that the standard has been added to. [00:27:13] Speaker 06: In fact, it talks, as you do, about Browning Ferris 1, and then says, but requirements have been added over time. [00:27:19] Speaker 06: We're now going to eliminate those requirements, in essence, the direct and immediate control test. [00:27:26] Speaker 06: And in the case we have, the board did not apply the direct and immediate control test, at least as I read it. [00:27:37] Speaker 04: Your Honor. [00:27:39] Speaker 04: The direct and immediate test was out there. [00:27:42] Speaker 04: But if you are asking me to say that was the test, it was not. [00:27:52] Speaker 02: I think what he's asking you to say is [00:27:55] Speaker 02: Did the board in this case, in the case in front of us now, apply the direct and immediate control test? [00:28:02] Speaker 04: Well, the language of the board's order certainly seems to infer that along with the sharing code determined, some parts of the analysis dealt with directly influences. [00:28:18] Speaker 04: So I think it's worked in here. [00:28:20] Speaker 02: I guess maybe I should ask, you didn't argue in your brief. [00:28:22] Speaker 04: I did not argue, Your Honor, but as Judge Poehler just said, she cited parts in the board's decision where the word direct, there's no control. [00:28:34] Speaker 06: But the board did not say, we're applying the direct and immediate controls test to these facts, and the test is met. [00:28:42] Speaker 06: It never said anything approaching that. [00:28:44] Speaker 04: The board didn't, because as I said again, the standard that the board has used again and again, and we cited all those cases in our brief, is to share and co-determine those factors. [00:28:58] Speaker 06: So I think that would be an interesting argument, and I would have been struggling with it, but I don't even think I necessarily need to struggle with it, because the board itself said what you just said is not right. [00:29:09] Speaker 06: The board itself said, actually, we have been applying a direct and immediate control test. [00:29:14] Speaker 06: That has been the test. [00:29:16] Speaker 06: And that's in Browning-Ferris, I mean. [00:29:20] Speaker 06: So you make a good point, I think, in terms of, could have struggled through these board precedents and found snippets here and snippets there to try to figure out what was going on. [00:29:29] Speaker 06: But the board itself in Browning-Ferris was very explicit, which it was not in this case, about what it wanted to do, standard-wise. [00:29:38] Speaker 04: Well I think the board was clear because it starts out on page 7245 to say that the standard that it has applied is [00:29:53] Speaker 04: where if the evidence shows that employees share or co-determine those matters governing essential terms and conditions, and if they do so in a meaningful way on such factors as hiring, discipline, supervision, and direction, then that would determine [00:30:14] Speaker 04: the joint employee status. [00:30:16] Speaker 04: So what the board applied the Browning and Farris. [00:30:19] Speaker 01: I am not... The Browning and Farris doesn't really answer the question that we have here because it's sort of, as you say, it's sort of the overall capstone description of, you know, shared responsibility. [00:30:34] Speaker 01: I thought in your brief you say [00:30:36] Speaker 01: You know, the board found CNN was a joint employer because it was intimately involved in practically every important aspect of the employment relationship. [00:30:46] Speaker 01: I mean, again and again, there are references in the board's decision that really do track direct and immediate control. [00:30:58] Speaker 01: I mean, these are all different locutions. [00:31:00] Speaker 01: You know, the analysis and the findings are very, so I don't know why you're resisting the notion that Directive Media Control was in fact what was being implemented here. [00:31:14] Speaker 01: And I don't understand you to have an argument that if they were otherwise that you avoid a remand. [00:31:22] Speaker 04: Your Honor, I can only represent my client as the decision appears. [00:31:28] Speaker 04: And if you notice, while direct and immediate control was raised, the board dropped footnote seven in which it said that the direct and immediate control arose in Airborne Express from where we know not. [00:31:50] Speaker 01: So they're just saying, you know, if people want to try to rationalize this, like, by the way, footnote, there's a little bit of a mess here, but in the work that they're doing in the text, as I said, [00:32:02] Speaker 01: CNN played a direct role in Simon Direction Supervision. [00:32:05] Speaker 01: CNN was properly named as a joint employer here as it played a direct and key role. [00:32:11] Speaker 01: I mean, I don't see a lot of daylight between direct role and all of these. [00:32:15] Speaker 01: And then the findings, you know, as you and Intervener correctly detail, CNN [00:32:23] Speaker 01: Set the number of hours TBS technicians worked by insisting they worked 40 hours, but getting approval from CNN for any overtime. [00:32:31] Speaker 01: When technicians called TBS assignment desk, their calls rolled directly to CNN assignment desk. [00:32:38] Speaker 01: CNNs, there were no TVS supervisors at the various satellite studios. [00:32:43] Speaker 01: So CNN producers gave the technicians their assignments. [00:32:48] Speaker 01: In emergency situations, they reassigned TVS technicians. [00:32:53] Speaker 01: CNN reassigned TVS technicians without checking with TVS. [00:32:57] Speaker 01: CNN directors called sick TVS people and said, come in, we need you right now. [00:33:03] Speaker 01: They demanded specific technicians. [00:33:05] Speaker 01: So it seems like the findings, when you read them, [00:33:07] Speaker 01: are all about direct and immediate, and I'm just not sure what, you know, why the flagging of this sort of messy issue that's being taken up in Browning Farris is not just sort of a sideshow. [00:33:24] Speaker 04: Well, I do think it's a sideshow, Your Honor. [00:33:26] Speaker 04: But that said, [00:33:32] Speaker 04: Much has been said about remand in this case, so that the board can look at it under direct and immediate control. [00:33:39] Speaker 04: Were you to do that, it would come out even stronger than it is right now. [00:33:47] Speaker 04: Because having read CNN's position and the parts of our brief that you cited too, which is gleaned from the record, [00:34:00] Speaker 04: would support the Brownian Fair. [00:34:02] Speaker 06: But we couldn't have the board do that and then a reviewing court could analyze that under the correct standard. [00:34:09] Speaker 06: But that, at least as I read it, I didn't read the board ever saying, we're applying the direct and immediate control test here. [00:34:15] Speaker 06: And I think you agreed with me on that. [00:34:17] Speaker 04: Well, I could not. [00:34:19] Speaker 02: do anything else because you were reading from the record and that i i cannot so you know if you are i'm listening to the previous case in which the suggestion was made that if and remand would come out the same way there's no reason to remand is that that i get that idea from yes you're on the issue that was only if it's not raised it wasn't raised in the prior case it's raised here so the distinction is not apt [00:34:46] Speaker 04: I want to move on to the successorship, if I may, because I noticed that when my colleague was up here, you had several questions about that. [00:34:58] Speaker 04: And I think the arguments he gave you for the analysis of successorship [00:35:04] Speaker 04: in this kind of case is completely wrong. [00:35:08] Speaker 04: This is the kind of case that the board calls or has been referred to as a U.S. [00:35:15] Speaker 04: Marine case. [00:35:17] Speaker 04: And in such a case, where you have a Burns successor, which we have here because CNN continued to perform the same operation on the day that [00:35:31] Speaker 04: It terminated the contract, and it continued to do so with a majority of its contractors' employees. [00:35:41] Speaker 04: Now, CNN's whole argument is based on this fact that you would agree that the wall-to-wall unit, which they unlawfully created by inverting [00:35:54] Speaker 04: bargaining units into is the unit, but the law is clear that in a situation like that, [00:36:04] Speaker 04: the historical unit is the presumptive unit, and we cannot go back to determining what units should be. [00:36:12] Speaker 04: So its argument about a wall-to-wall unit should be completely gotten rid of, because even the sentencing member in this case, and contrary to what my opponents said to you, there was not a unanimous decision on successorship. [00:36:31] Speaker 04: Sorry, there was not – there was – I'm sorry, let me correct myself. [00:36:35] Speaker 04: There was a unanimous decision on that, because even member Ms. [00:36:40] Speaker 04: Camaro came on board and said, this is a successor. [00:36:43] Speaker 06: But only on the traditional successor analysis. [00:36:46] Speaker 04: That's correct. [00:36:47] Speaker 06: But let's – Which has – just correct me if I'm wrong. [00:36:51] Speaker 06: That has far different implications for the remedy than the successor discrimination analysis. [00:36:58] Speaker 04: True. [00:36:59] Speaker 04: But my opponent did not admit to that. [00:37:01] Speaker 04: And the part of it that I think for the remedy that's important. [00:37:05] Speaker 06: They did say that. [00:37:06] Speaker 04: Oh, I did not get it. [00:37:07] Speaker 04: I'm sorry. [00:37:10] Speaker 04: But where you have [00:37:14] Speaker 04: the blatant anti-union hiring here. [00:37:19] Speaker 04: Let's speak about, if I may, how CNN conducted its hiring process. [00:37:25] Speaker 06: It hired a lot of union people. [00:37:27] Speaker 06: I don't understand that necessarily. [00:37:32] Speaker 06: The stats are [00:37:34] Speaker 06: that they hired a great number of former TVS employees and a great number of union members, including, I think, the majority of the union leadership. [00:37:43] Speaker 04: That is true, Your Honor. [00:37:45] Speaker 04: The fault in their hiring lies in the fact that they were tracking every fire they did because their position was that this was going to be a wall-to-wall unit. [00:37:59] Speaker 04: And as long as we keep the [00:38:04] Speaker 04: the contractor's employees to the minimum in this unit, we are going to be able to argue wall to wall. [00:38:12] Speaker 04: They ignore or perhaps were ignorant to the fact that where you have a Burns successor, [00:38:22] Speaker 04: And you continue to do the same work. [00:38:26] Speaker 04: And you hire a majority of the historical unit. [00:38:30] Speaker 04: You cannot accrete the unit by bringing in people who were not a part of the historical unit. [00:38:38] Speaker 04: That is what we have here. [00:38:40] Speaker 04: So it was a ruse just to expand the unit so they could come before the court and say, by the way, the appropriate unit, or please have the board determine the community of interest. [00:38:51] Speaker 04: Community of interest is never an analysis in this kind of case, on this kind of successive case, where the hirings were so fraught with anti-union animals. [00:39:06] Speaker 04: As to the remedy, [00:39:10] Speaker 04: CNN argues that the board did not do its due, its diligence in explaining the remedy. [00:39:23] Speaker 04: The case that it's cited to is capital cleaning, and post that out as the precedent for you to follow. [00:39:31] Speaker 04: As we've argued in our brief, capital cleaning also doesn't apply here. [00:39:38] Speaker 04: and cannot apply and has never applied in a situation if you agree with a joint employer status. [00:39:46] Speaker 04: But even if you were not to, and you look at Vincent factors, the Vincent Plastic case, which they also suggested [00:39:59] Speaker 04: could be an analysis here. [00:40:01] Speaker 04: That also has never been applied in a successorship case because the board and the courts have agreed there is no reason for an explanation where you fired your predecessor's employees unlawfully or failed to hire them unlawfully, tell them there would be absolutely no union, and proceed to conduct your hiring [00:40:28] Speaker 04: the way you did. [00:40:29] Speaker 04: Now, CNN also argues that the board's order would violate its First Amendment rights. [00:40:39] Speaker 04: As the Supreme Court has held, a restoration order does not undermine a company's [00:40:50] Speaker 04: First Amendment rights. [00:40:52] Speaker 04: We are not asking the company to do anything other than to restore the employees that it unlawfully terminated. [00:41:10] Speaker 04: If the court has no further questions. [00:41:13] Speaker 02: What about the bargaining order itself? [00:41:15] Speaker 04: The bargain and order, Your Honor, thank you for asking, goes again to the fact that there was a represented unit here. [00:41:27] Speaker 02: No, I understand. [00:41:28] Speaker 02: It's the Lee-Lumber problem in our circuit, where we said there has to be an explanation in going through all the factors. [00:41:34] Speaker 04: Well, again, in a situation like this, where there is a successor, the court has never required. [00:41:43] Speaker 04: And we have done some research to look into whether that has been required. [00:41:48] Speaker 04: And we have not found the case. [00:41:49] Speaker 02: So is there a difference? [00:41:50] Speaker 02: Lee Lumber is an incumbent union. [00:41:52] Speaker 02: What would the logical difference between them be? [00:41:57] Speaker 04: The logical difference would be because of the invasive [00:42:03] Speaker 04: anti-union animus here, and the fact that CNN is trying to add to the unit members that do not belong in the unit. [00:42:19] Speaker 04: In every case like this, the court has affirmed the board's... Do we have a case, a successor case, where we said that the Lee Lumber standard doesn't apply? [00:42:32] Speaker 04: Yes. [00:42:43] Speaker 04: There are several pieces. [00:42:55] Speaker 04: There's Regal Cinema, which is a 317F3rd 300 in a situation where [00:43:06] Speaker 04: There was a refusal to bargain and the replacement of a unionized employee. [00:43:14] Speaker 04: And the court enforced the board's restoration, affirmative bargain and order, and a reinstatement of the employees at their previous employment terms. [00:43:24] Speaker 04: And quote the board says, even when reinstatement requires hiring a redundant set of employees. [00:43:33] Speaker 04: There's also People, sorry, Powers, Inc. [00:43:36] Speaker 04: versus NLRB 40 F3rd at 409. [00:43:45] Speaker 04: It's a 1994 case. [00:43:47] Speaker 04: And it also literally copies what I just said about Regal, actually Regal Cinema's site to it. [00:44:00] Speaker 04: Of course, there's Dunkin' Donuts, which is a 2004 decision of the circuit. [00:44:06] Speaker 04: So, thank you. [00:44:09] Speaker 02: I will hear from the intervener. [00:44:21] Speaker 05: Okay, my name is Keith Pollock. [00:44:23] Speaker 05: I'm counsel for NAVIT Local 31, the intervener in this case. [00:44:27] Speaker 05: I really have seven points, so I'm going to try to run through these very quickly. [00:44:30] Speaker 05: I have seven points. [00:44:31] Speaker 05: Let's go back to the beginning. [00:44:33] Speaker 05: The standard for joint employer, it's basically a calculation. [00:44:37] Speaker 05: A plus B equals C. [00:44:39] Speaker 05: A being two or more employers share or co-determine the essential terms and conditions of employment. [00:44:47] Speaker 05: B being that the punitive joint employer meaningfully affects the employment relationships, such as hiring, firing, discipline, supervision, and direction. [00:44:55] Speaker 05: If you have A plus B, that equals a joint employer. [00:44:59] Speaker 05: A is derived from the Third Circuit's decision in BFI of Pennsylvania. [00:45:03] Speaker 05: B is derived from TLI and LERP. [00:45:07] Speaker 05: Now, that's the standard. [00:45:08] Speaker 05: It's been the standard since 1984. [00:45:10] Speaker 05: It's been the standard both before 2002 and after 2002. [00:45:14] Speaker 05: It was the standard until the BFI case was decided last year or the year before. [00:45:20] Speaker 05: The notion that direct and immediate control is part of the standard, if you look at Airborne Express itself... I just ask, does that mean that you think that [00:45:31] Speaker 02: What the board said in the second BFI is wrong. [00:45:35] Speaker 05: Yes. [00:45:36] Speaker 05: Because if you look at what Airborne Express says itself, end the decision. [00:45:43] Speaker 05: We reject member leavement suggestion that the board should revisit its standard determining joint employer standards. [00:45:48] Speaker 05: Joint employer standards simply put the board's task for determining whether two separate entities should be considered joint employers with respect to specific groups of employees has been settled for 20 years. [00:45:58] Speaker 05: So they're talking about the established standard. [00:46:01] Speaker 05: They go on to say what that standard is. [00:46:02] Speaker 05: What are you reading from? [00:46:03] Speaker 05: Sorry. [00:46:04] Speaker 05: I'm sorry. [00:46:04] Speaker 06: This is footnote one of Airborne Express. [00:46:07] Speaker 06: Right. [00:46:07] Speaker 06: So in Browning Ferris, though, [00:46:11] Speaker 06: I guess I'll repeat what I said. [00:46:13] Speaker 06: Your argument about the precedent would be a challenge for us, but the board itself seems to have said, no, our precedent required direct and immediate control. [00:46:22] Speaker 05: Actually, that gets to my second point. [00:46:24] Speaker 06: OK. [00:46:26] Speaker 06: Go for it. [00:46:27] Speaker 05: OK, so let's move to that point. [00:46:30] Speaker 05: This whole thing about direct and immediate control is really quibbling over semantics. [00:46:34] Speaker 05: because as Judge Pollard pointed out... Well, the semantics are critical in this context and in most legal contexts, so... But there's no principle of administrative law that says that an administrative agency must encamp specific words to achieve a certain conclusion. [00:46:48] Speaker 05: The board does not have to say complete and immediate control in order to find that. [00:46:53] Speaker 06: If the substantial evidence in the decision... But we can't be confident, we can't be confident [00:46:58] Speaker 06: that the board would have found that had that been the test that they explicitly applied. [00:47:03] Speaker 06: It may be, as counsel said, and as you're saying right now, it may be, and maybe they will, under a direct and immediate control standard. [00:47:10] Speaker 06: But I don't think we can be confident of that, and Chenery certainly tells us to be wary of doing something like that. [00:47:15] Speaker 05: Oh, I know you can't be confident. [00:47:16] Speaker 05: because not only did the board find, as Judge Pollard pointed out, the board found in certain circumstances, such as direction of employees, CNN exercised exclusive control. [00:47:26] Speaker 05: If you were a field tech and you went out to shoot a story, there were no TVS supervisors. [00:47:32] Speaker 05: There was only a CNN producer or a CNN reporter, and they didn't just tell [00:47:36] Speaker 05: a TVS employee, go shoot that story about a war hero. [00:47:39] Speaker 05: They said, sit the camera up here. [00:47:41] Speaker 05: Point the camera that way. [00:47:42] Speaker 05: I want this in the background. [00:47:43] Speaker 05: Zoom in at this point and zoom out at this point at my direction. [00:47:47] Speaker 05: That is complete control. [00:47:49] Speaker 05: Obviously, if you have complete control, you pretty much have direct and immediate control. [00:47:53] Speaker 05: And that doesn't apply just to supervision and direction. [00:47:56] Speaker 05: That applies to assignments. [00:47:58] Speaker 05: CNN was the one dictating the assignments, because the record shows that even though TVS was still in, someone to do a particular story, that came from CNN. [00:48:10] Speaker 05: And there's a footnote in the ALJ's decision, which is... The hiring and firing. [00:48:15] Speaker 05: I mean, you have some examples. [00:48:16] Speaker 05: The hiring and firing. [00:48:18] Speaker 05: Yes. [00:48:19] Speaker 05: What about that? [00:48:20] Speaker 05: The board points out, in 2001, CNN required TVS to fire employees, to lay them off. [00:48:28] Speaker 05: That was sufficient to find direct control under DNF Industries, which was issued the year after Airborne Express. [00:48:36] Speaker 05: In that case, the putative joint employer called the nominal employer to lay off employees, I think, at least once or twice. [00:48:44] Speaker 05: And they found that to be highly credible, highly significant evidence. [00:48:48] Speaker 05: That was a year after Airborne Express. [00:48:50] Speaker 05: One of the members on that board was member Wilma Leitman, who authored the concurrence of the Sutton Airborne Express. [00:48:57] Speaker 05: Now, if direction of media control was the standard, if that's what it was supposed to be at the time, one would think that Wilma Liebman would have said that in VNF Industries. [00:49:11] Speaker 05: But she didn't. [00:49:12] Speaker 05: They said, share or co-determine the essential terms and conditions of employment plus [00:49:19] Speaker 05: meaningfully affect the employment relationship, which is in the board's decision in this case. [00:49:23] Speaker 05: That is the standard. [00:49:25] Speaker 05: At best, directed immediate control is sort of a interpretation of what it means to meaningfully affect the employment relationship. [00:49:36] Speaker 05: So I've gotten through three points here. [00:49:37] Speaker 05: So let me go to number four. [00:49:39] Speaker 05: The notion that if the joint employer argument falls, that the discriminatory success relationship argument falls, [00:49:46] Speaker 05: is wrong. [00:49:47] Speaker 05: Because if you look at the board's... I think it's undermined, is the point. [00:49:51] Speaker 05: It's not undermined either. [00:49:52] Speaker 05: A discriminatory successor discriminates in the context of hiring. [00:49:58] Speaker 05: A joint employer can discriminate in the context of firing. [00:50:01] Speaker 05: And if you look at the board's decision, and at its order, the relevant language says, [00:50:11] Speaker 05: The cease and desist from discharging bargaining union employees from TVS. [00:50:15] Speaker 05: That's the context of being a joint employer. [00:50:17] Speaker 05: This is page 7266 of the Joint Appendix. [00:50:20] Speaker 05: It's page 24 of the board's decision. [00:50:23] Speaker 05: Discharging bargaining union employees from team video services. [00:50:26] Speaker 05: It's joint employer and predecessor employer at Washington DC because of the union affiliated representative status and TVS's operational because of the union activities for membership. [00:50:38] Speaker 05: And that's the joint employer. [00:50:41] Speaker 05: It goes on. [00:50:43] Speaker 05: Or otherwise discriminating against these employees to avoid having to recognize a bargain with NAVET Local 11 and NAVET Local 31. [00:50:51] Speaker 05: That is the discriminatory successor provision of the order. [00:50:55] Speaker 05: A discriminatory successor discriminates in the context of hiring. [00:51:00] Speaker 05: It doesn't discriminate in the context of firing. [00:51:02] Speaker 05: And the record shows that this whole facially neutral policy was rigged from the outgo. [00:51:09] Speaker 05: It didn't matter. [00:51:12] Speaker 05: At the end, whether it was facially neutral, because the only thing that was consistent in the Bureau of Staffing Project is that TVS applicants had to go through every step. [00:51:21] Speaker 05: They had to jump every hurdle. [00:51:23] Speaker 05: They had to overcome every obstacle in order to get hired. [00:51:26] Speaker 05: Non-TVS applicants, such as applicants from CNNs, other branches, didn't have to do that. [00:51:32] Speaker 05: And that's laid out in detail in the ALJ's decision. [00:51:35] Speaker 05: Applicants who had an initial screening, that was the first step. [00:51:39] Speaker 05: And you had to pass that initial screening in order to get interviewed by hiring managers. [00:51:44] Speaker 05: All the TVS applicants passed that initial step, and they went on to the hiring managers. [00:51:48] Speaker 05: Not all the non-TVS applicants did. [00:51:51] Speaker 05: In fact, many of them were rejected because they lacked the minimum skills and experience to be considered by hiring managers. [00:52:00] Speaker 05: But as detailed, both in the board's decision and in the ALJ's decision, they were still put in anyways. [00:52:07] Speaker 05: And many of them got hired. [00:52:10] Speaker 05: But then once you got to the hiring manager part, everyone was supposed to be interviewed by at least two managers. [00:52:15] Speaker 05: Because the thought was, you have this 10-page guide with multiple factors. [00:52:20] Speaker 05: And at the end, you're supposed to rank. [00:52:21] Speaker 05: And they wanted to be able to average out the rankings and list them all. [00:52:26] Speaker 05: Not all of the TVS applicants were interviewed by two people. [00:52:31] Speaker 05: Some were only interviewed by one. [00:52:32] Speaker 05: Yet they still got hired. [00:52:34] Speaker 05: There were two TVS applicants who did not get interviewed by at least two managers. [00:52:40] Speaker 05: They're Sarah Pacheco and Tyrone Riggs. [00:52:43] Speaker 05: They were interviewed by one. [00:52:44] Speaker 05: Neither one of them was hired, even though both of them had worked years, years for CNN and TVS. [00:52:53] Speaker 05: And even as you got past the whole [00:52:56] Speaker 05: hiring phase, then you have what they call the debriefing, which was when they ranked everybody and they put them in an order, and you had these butcher blocks, which are referred to throughout the decision, and managers were supposed to sit there and decide, how do we figure out who gets hired when? [00:53:11] Speaker 05: Or who do we hire? [00:53:13] Speaker 05: And then it came out that the rankings that they did were changed. [00:53:19] Speaker 05: And nobody knows how they were changed or why, because no CNN witness could testify as to how that happened. [00:53:24] Speaker 05: And to this regard, it's important to note the ALJ's credibility determinations. [00:53:28] Speaker 05: He rejected the credibility of every CNN witness, because they couldn't testify as to the basic facts. [00:53:35] Speaker 05: Who was in the meeting? [00:53:37] Speaker 05: What did somebody say? [00:53:39] Speaker 05: When they testified, it sounded more like they were defending against a discriminatory successor challenge. [00:53:45] Speaker 05: So after you got through the final rankings, then you had to have [00:53:48] Speaker 05: your reference is checked. [00:53:50] Speaker 05: Everybody had to have professional references. [00:53:53] Speaker 05: The problem was that some of the non-TVS applicants, their professional references didn't check out. [00:53:58] Speaker 05: They often thought they sometimes ended up being negative or sometimes didn't answer at all. [00:54:03] Speaker 05: So CNN deviated from its procedure and checked personal references so that they could get hired. [00:54:11] Speaker 05: They never did that for any TVS. [00:54:15] Speaker 05: I'm sorry. [00:54:18] Speaker 05: So let me get back to the historic leader. [00:54:22] Speaker 05: I'm sorry, I got wrapped up in that. [00:54:24] Speaker 05: Passion is good. [00:54:27] Speaker 05: The ALTEC did address the historical unit argument in CNN's challenge. [00:54:30] Speaker 05: You can find it in his decision in the discussion of accretion, because that's in essence what CNN was trying to do. [00:54:36] Speaker 05: They were trying to add job classifications to the historical unit, classifications like the informational technology section, the media coordinators. [00:54:45] Speaker 05: And the judge rejected that, because in essence what you're doing is you're taking the accretion doctrine, which is whether you have community of interests with the unit, and trying to deny people [00:54:55] Speaker 05: the right to have union representation. [00:54:57] Speaker 05: They were adding people to the unit to deprive those in the unit of union representation, and that was wrong. [00:55:04] Speaker 05: Point six. [00:55:09] Speaker 05: The successorship standard is viewed at the time the elements are met. [00:55:12] Speaker 05: And that was in December of 2003, January for DC, January 2004 for New York. [00:55:19] Speaker 05: And last but not least, Your Honor's argument about the fact that a lot of incumbents were hired and that should be something that should be considered, it's irrelevant. [00:55:29] Speaker 05: Because what the ALJ pointed out was that the single category that had the greatest success were the CNN applicants. [00:55:37] Speaker 05: Those people who came from within CNN to get a job, all but one were hired. [00:55:42] Speaker 05: TVS applicants. [00:55:44] Speaker 05: And they were all non-unit. [00:55:45] Speaker 05: And they were all non-unit. [00:55:47] Speaker 05: TVS applicants were hired, but they were hired with CNN expressly tracking the number of TVS applicants who were being hired, because they were looking at the big number. [00:55:56] Speaker 05: And the big number was that wall-to-wall unit. [00:55:59] Speaker 05: So when it ended up being the historical unit, yes, we had a lot of people in it, but that wasn't what they were trying to do at the time. [00:56:05] Speaker 05: So with that, those are my 7 points. [00:56:07] Speaker 06: So, remember, Ms. [00:56:08] Speaker 06: Camaro says that if that was their goal, it was an abject failure. [00:56:14] Speaker 05: Same thing the 6th Circuit said in Great Lake Chemical Court. [00:56:17] Speaker 05: That was their goal, but they screwed it up somewhere. [00:56:20] Speaker 05: And then they have to pay the price for it. [00:56:22] Speaker 05: Which case was that? [00:56:24] Speaker 05: Great Lakes Chemical Corporation. [00:56:25] Speaker 05: That's this good old circuit. [00:56:27] Speaker 05: I'm sorry? [00:56:27] Speaker 05: That's the D.C. [00:56:28] Speaker 05: Circuit. [00:56:28] Speaker 05: Is that the D.C. [00:56:29] Speaker 05: Circuit? [00:56:29] Speaker 05: I'm sorry, I don't think it was. [00:56:30] Speaker 05: Well, then that's the circuit set. [00:56:31] Speaker 05: Even better. [00:56:32] Speaker 05: That's even better. [00:56:33] Speaker 05: This is the circuit set. [00:56:36] Speaker 05: I was trying to help you there. [00:56:37] Speaker 05: Thank you very much. [00:56:38] Speaker 05: As the circuit said, it's their loss. [00:56:40] Speaker 05: They screwed up. [00:56:42] Speaker 05: So with that, I thank you very much. [00:56:44] Speaker 05: And I would ask that this court actually enforce the board's decision in its entirety so that this case can now move on to its next step. [00:56:51] Speaker 05: Thank you very much for the time. [00:56:54] Speaker 02: All right. [00:56:55] Speaker 02: I know Petitioner doesn't have any time, but that doesn't seem to be relevant this morning. [00:57:02] Speaker 02: The podium is yours. [00:57:03] Speaker 03: Well, thank you, Chief Judge Garland. [00:57:05] Speaker 03: My friend Mr. Bullock tried to make seven points in three minutes. [00:57:07] Speaker 03: I think I'm just going to try to make three points in two. [00:57:10] Speaker 03: First of all, on the joint employer issue, I think it's clear from the board's brief that the board's sole argument, at least in its brief, was that it has never required direct and immediate control. [00:57:20] Speaker 03: So to the extent that the board today tries to make the argument that that is, in fact, the standard that the board applied in this case and that that standard [00:57:28] Speaker 03: would support a determination that we're a joint employer, I would really be content to rest on member Ms. [00:57:34] Speaker 03: Gamera's dissent, which apply the direct and immediate control cases and focus on the relevant facts. [00:57:41] Speaker 03: First, TVS exercise control over hiring and firing. [00:57:45] Speaker 03: to the extent that the board cited three examples of cases where CNN asked TBS to take disciplinary action. [00:57:52] Speaker 03: It's true that in two of those cases, TBS did take the requested action. [00:57:56] Speaker 03: In the third, CNN requested that an employee be fired. [00:57:58] Speaker 03: And in fact, TBS did not fire the employee. [00:58:01] Speaker 03: And I think that those isolated examples are insufficient to give rise to direct and immediate control. [00:58:06] Speaker 03: TBS made assignments even to employees in the field, and to the extent that CNN [00:58:12] Speaker 03: did issue directions to camera operators to take certain shots and the like, under the direct and immediate control cases, that is insufficient. [00:58:20] Speaker 03: And I would really refer this court to the Am property case and the G. West case. [00:58:24] Speaker 03: So again. [00:58:25] Speaker 01: Mr. Schoening, in your briefs in this court, you rely on footnote seven in the board's decision quite, I mean, almost exclusively. [00:58:34] Speaker 01: But that wasn't part of the rehearing petition to the board. [00:58:37] Speaker 01: It wasn't mentioned. [00:58:39] Speaker 03: Yeah, but it doesn't need to be. [00:58:41] Speaker 03: And the re-hering, the re-motion-free consideration focused appropriately on the remedial issues. [00:58:46] Speaker 03: On the issue of liability, I'm content to focus on footnote seven. [00:58:50] Speaker 03: And I would just note that to the extent that Mr. Bullock, in particular, tried to make the argument that TLIE and LERCO were also applying essentially the same standard. [00:59:00] Speaker 03: other than a reference to Larico at the beginning of the discussion, the board's opinion, you don't see the board discussing all of these other cases like Southern California Gas and Flagstaff and TLI and Am Property and G. West, all of the cases in this body. [00:59:15] Speaker 03: And so again, I think at a minimum, those are reasons why the court ought to [00:59:19] Speaker 03: allow the board on remand to apply the direct and immediate control standard, other than somehow trying to conclude, contrary to the board's approach here, that under that standard, CNN still loses. [00:59:30] Speaker 03: I do want to say a bit about the successorship issue, because the court had a lot of questions about it, and I want to make sure that I'm clear about what it is that we think that the court should do. [00:59:40] Speaker 03: If the court agrees that the blanket discrimination finding cannot stand, there is, of course, still the question of whether CNN is a bear successor because of historical bargaining. [00:59:50] Speaker 02: Can you control for us, when you say the blanket discrimination, do you mean with respect to firing or with respect to hiring? [00:59:58] Speaker 03: I mean the determination that CNN engaged in mass anti-union animus when it did not hire any of the former TBS employees who it didn't hire. [01:00:08] Speaker 03: And with respect to Mr. Bolick's point on this... That's not part of the joint employer decision. [01:00:12] Speaker 02: The joint employer decision is the firing question. [01:00:15] Speaker 01: Right, he was talking about succession. [01:00:16] Speaker 03: Yes, that is correct. [01:00:17] Speaker 03: But on the issue of blanket discrimination, the board relied on the secretive termination of the contract as evidence that with regard to the subsequent hiring determinations, CNN acted with mass anti-union animus. [01:00:32] Speaker 03: And the best evidence of that is where that discussion is located. [01:00:36] Speaker 03: When you look at the discussion that I inverted to in my opening argument at pages 7260 to 7261, [01:00:41] Speaker 03: That is the first reason that's given in the successorship discussion. [01:00:45] Speaker 03: So that's why we think, at a minimum, the question for the board on remand would be whether the other evidence on which the board relied, the isolated statements that the board claims rise to the level of Section 81 violations, and the alleged deviations from what was otherwise a neutral hiring plan, are sufficient to support the finding. [01:01:04] Speaker 03: We would respectfully submit that those are insufficient, but that would be for the board to consider once the improper consideration is taken away. [01:01:12] Speaker 03: Now, on the issue of the historic bargaining unit, I do want to come back to my earlier colloquy with Chief Judge Garland, because I do think that when you look at the ALJ's underlying decision on this score, [01:01:22] Speaker 03: It isn't simply that the ALJ says that his determination rests on the discrimination finding and then goes on to conduct a correct analysis. [01:01:31] Speaker 03: If you take a look at the second column on page 7347 of the Joint Appendix, the ALJ basically proceeds to say [01:01:39] Speaker 03: looking at, by analogy, the cases involving the accretion doctrine, it's just inappropriate to apply any such analysis here because it would deprive former TVS employees of their statutory rights. [01:01:52] Speaker 03: And the ALJ proceeds to say, this is particularly true in light of my finding that if it were not for CNN's discrimination, team unit members would have constituted a majority of any CNN bargaining units. [01:02:02] Speaker 03: I don't think it's at all clear that once discrimination is taken off the table, the ALJ would have reached the same conclusion. [01:02:08] Speaker 03: But of course, our core submission is that the board didn't engage in sufficient analysis that this court can be confident that the board would have concluded that this historic bargaining unit is appropriate. [01:02:18] Speaker 03: It is certainly true that, ironically, enough member of Miss Kamara on this point was clear. [01:02:22] Speaker 03: that he thought that the historic bargaining unit was appropriate. [01:02:24] Speaker 03: But I don't think we can say that a majority of the board would have reached that conclusion, particularly in light of the fact that the board's historic practice in this industry has been to apply a wall-to-wall production unit. [01:02:35] Speaker 03: And after all, that was the historic bargaining unit at TVS. [01:02:38] Speaker 03: It was a wall-to-wall unit. [01:02:39] Speaker 03: And so I think there are very compelling arguments as to why a wall-to-wall unit at CNN would be appropriate as well. [01:02:45] Speaker 03: And finally, my third point on the issue of the appropriate remedy. [01:02:49] Speaker 03: We're at three minutes. [01:02:50] Speaker 03: You're a minute. [01:02:51] Speaker 03: I apologize for that. [01:02:58] Speaker 03: I was here a couple weeks ago when I think an intervener finished within three minutes, which I think you said was some sort of D.C. [01:03:03] Speaker 03: Circuit record. [01:03:05] Speaker 03: But my last point on the bargaining remedy is simply that, as we say in our brief, [01:03:10] Speaker 03: The board provided no reason explanation for the bargaining remedy and we believe that relying primarily on this court's decision in the Flamingo-Hilton case, the considerations such as employee turnover and the passage of time are appropriate in determining whether a bargaining remedy is appropriate. [01:03:27] Speaker 03: appropriate. [01:03:28] Speaker 03: And so if this court sends the case back and if the board on remand concludes that we are a bear successor without blanket discrimination, we certainly think at the minimum the board should provide a reasoned explanation as to why a bargaining remedy is appropriate to facilitate any further review by this court. [01:03:45] Speaker 03: And for those reasons, we submit that the board's order should be vacated. [01:03:48] Speaker 03: Thank you. [01:03:49] Speaker 03: We'll take the matter under submission. [01:03:50] Speaker 03: Thank you all.