Alcoa, Inc. v. National Labor Relations Board , 849 F.3d 250 ( 2017 )

Case: 15-60848 Document: 00513886242 Page: 1 Date Filed: 02/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2017
No. 15-60848
Lyle W. Cayce
Clerk
ALCOA, INCORPORATED; ALCOA COMMERCIAL WINDOWS, L.L.C.,
doing business as TRACO, a single employer,
Petitioners Cross-Respondents,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent Cross-Petitioner.
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Before CLEMENT, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
This Court is asked to review an order of the National Labor Relations
Board (“the NLRB” or “the Board”) finding that Alcoa, Inc. (“Alcoa”) and its
wholly owned subsidiary, Alcoa Commercial Windows, LLC d/b/a TRACO
(“TRACO”), violated the National Labor Relations Act (“the NLRA” or “the
Act”). Specifically, the Board determined that (1) Alcoa and TRACO
(collectively, “the Companies”) are a “single employer” and (2) the Companies
violated Section 8(a)(1) of the Act by denying Alcoa employees access to TRACO
facilities for handbilling purposes and engaging in unlawful surveillance of
handbillers. The Companies petition for review of the Board’s determination
Case: 15-60848 Document: 00513886242 Page: 2 Date Filed: 02/22/2017
No. 15-60848
that they constitute a single employer and that the single-employer doctrine
can be used to hold them liable under Section 8(a)(1). The Board cross-applies
for enforcement of its order.
Because substantial evidence supports the Board’s finding that the
Companies qualify as a single employer, and because it is reasonable and
consistent with the Act to apply the single-employer doctrine to the question of
liability under Section 8(a)(1), we DENY the petition for review and GRANT
the Board’s cross-petition for enforcement.
I. BACKGROUND
Alcoa is a multinational corporation that mines bauxite, produces
aluminum, and manufactures aluminum-related products (including
windows). TRACO manufactures windows and doors. TRACO is a wholly
owned subsidiary of Reynolds Metals Company (“Reynolds Metals”), which in
turn is a wholly owned subsidiary of Alcoa. TRACO was acquired by Reynolds
Metals in 2010 and became a part of the North American segment of Building
and Construction Systems (“BCS”), a business unit of Alcoa.
In late 2010, after Alcoa purchased TRACO, TRACO employees
contacted the United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union, AFL-CIO,
CLC (“the Union”) about obtaining union representation. Thereafter Philip
Ornot, a Union organizer, visited the TRACO facility to determine at which
locations Union representatives would be permitted to handbill. Local police
indicated handbilling could occur in the right-of-ways on the sides of public
roads adjacent to the facility and at crosswalks between the facility and
TRACO-owned parking lots.
On September 7, 2011, the Union held a conference near TRACO for
Union representatives and members employed at facilities owned by Alcoa.
Jim Robinson, who is employed by the Union, called Kevin O’Brien, the
2
Case: 15-60848 Document: 00513886242 Page: 3 Date Filed: 02/22/2017
No. 15-60848
director of industrial relations at Alcoa, to give him a “heads up” that Union
representatives—and some Alcoa employees who were Union members—
intended to handbill outside the TRACO facility the following day during a
shift change. O’Brien responded that handbilling in the right-of-ways was
permissible but that he would “need to get with [Alcoa] legal counsel” about
handbilling in TRACO parking lots. After their conversation, O’Brien
discussed the matter with two attorneys in the Alcoa legal department and
called Robinson back to inform him that “those individuals who were not
employees of TRACO could not enter the property, that they would need to stay
on the right-of-way . . . [, and] that it would not be proper for them to go in the
parking lot.”
After giving Robinson this directive, O’Brien informed TRACO
management of the impending union activity in a conference call with TRACO
General Manager Jeff Jost, several other TRACO managers, and Alcoa
attorneys. O’Brien testified that he wanted to warn Jost that there would be a
large crowd outside the facility and “give him . . . advice as to what was the
appropriate way to handle it.” O’Brien gave Jost his phone number and
instructed him that if there was a problem the next day, he could call O’Brien.
The following morning, Ornot and twenty-four conference attendees
went to pass out leaflets at the TRACO facility. Brad Manzolillo, the Union’s
attorney, spoke with three TRACO management officials and explained that
he believed several off-duty Alcoa employees who had chosen to accompany
him had a right to handbill in TRACO-owned parking lots and other outside
areas of the facility. Although Alcoa employees had previously been permitted
to enter the facility as long as they had their IDs and clearance, TRACO
management refused to allow the Alcoa employees to enter any TRACO
property.
3
Case: 15-60848 Document: 00513886242 Page: 4 Date Filed: 02/22/2017
No. 15-60848
After arriving on the scene, Jost reiterated this position to Manzolillo
and called O’Brien so that he could speak with the Union attorney. O’Brien
told Manzolillo the Alcoa employees would not be allowed on TRACO property.
When Manzolillo and the Alcoa employees crossed the street to join the rest of
the group handbilling in the public right-of-way, Jost positioned himself near
a group of handbillers outside the TRACO facility. As a result, any TRACO
employee seeking to obtain a leaflet would have to pass by Jost. Jost remained
in this position for approximately twenty to thirty minutes.
The Union filed the underlying charge in this case on September 23,
2011. Thereafter the Union amended the charge twice—once on November 23,
2011, and again on April 4, 2013. On April 18, 2013, the NLRB issued a
complaint in the case alleging the Companies had violated Section 8(a)(1) of
the Act in the following ways: (1) denying Alcoa employees access to the
TRACO facility for handbilling purposes; (2) unlawfully surveilling
handbillers; and (3) maintaining an overly broad distribution and solicitation
policy. The case was tried on July 10 and 11, 2013, before Administrative Law
Judge (“ALJ”) Mark Carissimi.
The ALJ issued his decision on September 20, 2013, and determined that
Alcoa and TRACO constitute a single employer within the meaning of the Act
and thus violated Section 8(a)(1) of the Act by refusing Alcoa employees entry
into the TRACO facility. He also concluded that the Companies engaged in
unlawful surveillance. 1 The Companies filed their exceptions to the decision,
and the NLRB General Counsel filed an answer to those exceptions. On taking
these into consideration, the NLRB issued its final Decision and Order on
November 16, 2015, adopting the ALJ’s recommended order. The Companies
1The ALJ dismissed the final allegation—that the Companies maintained an overly
broad solicitation and distribution policy—and that issue is not on appeal before this Court.
4
Case: 15-60848 Document: 00513886242 Page: 5 Date Filed: 02/22/2017
No. 15-60848
petitioned this Court for review of the Board’s order on December 2, 2015, and
the Board cross-applied for enforcement. The Union also filed a motion for
leave to intervene in this appeal, which was granted.
II. DISCUSSION
We review the NLRB’s policy determinations under a deferential
standard. The Supreme Court has recognized that Congress entrusted the
NLRB with “the task of ‘applying the Act’s general prohibitory language in the
light of the infinite combinations of events which might be charged as violative
of its terms.’” Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500–01 (1978) (quoting
Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945)). In other words,
“the NLRB has the primary responsibility for developing and applying national
labor policy,” and Board rules are thus afforded “considerable deference.”
NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 775, 786 (1990). Accordingly, this
Court will not disturb the Board’s policy determination “as long as it is rational
and consistent with the Act.” Trencor, Inc. v. NLRB, 110 F.3d 268, 279 (5th
Cir. 1997) (quoting Curtin Matheson, 494 U.S. at 787). So while the “standard
of review for a question of law decided by the Board is de novo, . . . if the Board’s
construction of the statute is ‘reasonably defensible,’ its orders are to be
enforced.” NLRB v. Motorola Inc., 991 F.2d 278, 282 (5th Cir. 1993) (quoting
Standard Fittings Co. v. NLRB, 845 F.2d 1311, 1314 (5th Cir. 1988)).
“When considering the [B]oard’s application for enforcement, we must
determine whether the underlying findings of fact are supported by substantial
evidence on the record considered as a whole.” Id.; 29 U.S.C. § 160(e). If
supported by substantial evidence, the Board’s findings of fact are “conclusive.”
29 U.S.C. § 160(e); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 477
(1951). “Substantial evidence is such relevant evidence that a reasonable mind
would accept to support a conclusion.” NLRB v. Allied Aviation Fueling of Dall.
LP, 490 F.3d 374, 378 (5th Cir. 2007) (internal quotation marks omitted). In
5
Case: 15-60848 Document: 00513886242 Page: 6 Date Filed: 02/22/2017
No. 15-60848
determining whether substantial evidence supports the Board’s conclusion,
this Court “do[es] not make credibility determinations or reweigh the
evidence.” Id. Rather, “[r]ecognizing the Board’s expertise in labor law, we will
defer to plausible inferences [the Board] draws from the evidence, even if we
might reach a contrary result were we deciding the case de novo.” NLRB v.
Thermon Heat Tracing Servs., Inc., 143 F.3d 181, 185 (5th Cir. 1998) (quoting
NLRB v. Turner Tool & Joint Rebuilders Corp., 670 F.2d 637, 641 (5th Cir.
1982)). But “in assessing whether the evidence in the record is substantial we
must consider the facts that militate or detract from the NLRB’s decision as
well as those that support it.” Id.
A. The Single-Employer Doctrine
Alcoa first argues that the Board incorrectly determined that it and
TRACO constitute a single employer within the meaning of the Act. “[I]n
determining the relevant employer, the Board considers several nominally
separate business entities to be a single employer where they comprise an
integrated enterprise.” S. Prairie Constr. Co. v. Local No. 627, Int’l Union of
Operating Eng’rs, 425 U.S. 800, 802 n.3 (1976) (quoting Radio & Television
Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile Inc., 380 U.S.
255, 256 (1965) (per curiam)). To determine whether several entities are a
single employer within the meaning of the Act, the Board looks to four factors:
(1) common ownership; (2) interrelation of operations; (3) common
management; and (4) centralized control of labor relations. Radio & Television
Broad., 380 U.S. at 256; NLRB v. DMR Corp., 699 F.2d 788, 790–91 (5th Cir.
1983). “However, no one of these factors is controlling, nor need all criteria be
present. Single employer status ultimately depends on ‘all the circumstances
of the case’ and is characterized as an absence of an ‘arm’s length relationship
found among unintegrated companies.’” DMR, 699 F.2d at 791 (quoting Local
627, Int’l Union of Operating Eng’rs v. NLRB, 518 F.2d 1040, 1045–46 (D.C.
6
Case: 15-60848 Document: 00513886242 Page: 7 Date Filed: 02/22/2017
No. 15-60848
Cir. 1975), aff’d in part on this issue, rev’d in part sub nom. S. Prairie Constr.,
425 U.S. 800). But, “the factors of common control over labor relations, common
management, and interrelation of operations are more critical than the factor
of common ownership” and “centralized control of labor relations is of
particular importance.” Oaktree Capital Mgmt., L.P. v. NLRB, 452 F. App’x
433, 438 (5th Cir. 2011) (per curiam) (quoting Covanta Energy Corp., 356
N.L.R.B. 706, 726 (2011)).
As an initial matter, both parties agree that Alcoa and TRACO share
common ownership as it is undisputed that TRACO is a wholly owned
subsidiary of Alcoa. See Masland Indus., Inc., 311 N.L.R.B. 184, 186 (1993)
(“With regard to common ownership, the relationship of [a] privately held
corporate parent to wholly owned corporate subsidiary eliminates that issue
from contention.”). In addition, neither party disputes the Board’s finding that
the Companies do not share “common day-to-day management.” See Cimato
Bros., Inc., 352 N.L.R.B. 797, 799 (2008). But the Companies and the NLRB
disagree as to whether the remaining two factors favor finding that the
Companies are a single employer under the Act. The Board based its finding
that the Companies are a single employer on its determination that: (1) Alcoa
and TRACO are commonly owned; (2) there is a substantial interrelationship
between the two; and (3) Alcoa controls the labor relations of TRACO at a policy
level. We agree. We turn now to the two disputed prongs of the single employer
test: interrelation of operations and common control of labor relations.
1. Interrelation of Operations
In determining whether two nominally separate entities have
interrelated operations, the Board considers a host of factors. For instance, as
it did in this case the Board can consider whether the subject entities hold
themselves out to the public and employees as a single business, Masland
Indus., 311 N.L.R.B. at 187, and whether the two actually deal with one
7
Case: 15-60848 Document: 00513886242 Page: 8 Date Filed: 02/22/2017
No. 15-60848
another at arm’s length, Spurlino Materials, LLC, 357 N.L.R.B. 1510, 1517
(2011). These factors are neither exclusive nor exhaustive, and they need not
all come out in favor of finding interrelation for the Board to reasonably reach
that conclusion. See, e.g., id. at 1516 (determining there was an interrelation
of operations even where two companies were created and licensed separately,
located in different states, served different markets, had their own personnel
and equipment, and kept separate financial records, credit cards, and bank
accounts).
Here, substantial evidence supports the Board’s finding that Alcoa and
TRACO held themselves out to the public and employees as a single entity.
First, Alcoa released several statements after it bought TRACO which
demonstrate that the acquisition was intended to merge the businesses of both
entities. When Alcoa purchased TRACO in 2010, its annual report stated that
it “added to [the Alcoa] portfolio the commercial window business of Traco,
which solidifies Alcoa’s exterior building and construction systems offerings.”
In a press release discussing the purchase, Alcoa described the “combination”
of businesses as expanding the “opportunities to grow [the Companies’]
collective business.” 2 Thereafter, Alcoa transferred all of its window and
window frame manufacturing to TRACO.
Second, since 2011 the Companies held themselves out to employees and
the public as a combined business through their own safety and employment
materials. For example, TRACO’s safety video refers to the company as “Alcoa,
Traco,” displays both companies’ logos side by side, and cautions viewers to
“abide by all Alcoa safety rules and regulations.” This video is shown to all
2 Although the Companies argue that these statements are describing the relationship
between BCS and TRACO, not that between Alcoa and TRACO, BCS is a “business
group/unit” of Alcoa. Thus the addition of TRACO to BCS is in effect the addition of TRACO
to Alcoa and serves as evidence of interrelation of operations.
8
Case: 15-60848 Document: 00513886242 Page: 9 Date Filed: 02/22/2017
No. 15-60848
visitors to the TRACO facility. In 2012, TRACO implemented a new employee
handbook. The handbook, like the video, repeatedly refers to Alcoa and its
policies and describes Alcoa’s position on unions. Even applications for
employment at TRACO between 2011 and 2012 “had the name ‘Alcoa’ at the
top . . . [and] also asked the question, ‘Have you ever been employed by Alcoa?’”
Although the Companies argue that use of the “Alcoa” name merely
shows that TRACO comes under the “brand-name umbrella” of Alcoa, there is
no support for this distinction. In fact, the Board has repeatedly found that use
of another entity’s name is a factor in favor of finding interrelation of
operations. See, e.g., Masland Indus., 311 N.L.R.B. at 187 (considering use of
uniforms and identification cards bearing the name of another company as
evidence of interrelation of operations); Cardio Data Sys. Corp., 264 N.L.R.B.
37, 41 (1982) (treating the use of another company’s stationery for an official
communication as evidence of interrelation of operations). Thus, the repeated
use of the “Alcoa” name is evidence that Alcoa and TRACO hold themselves
out to the public and employees as a consolidated entity.
Third, there is some evidence suggesting that Alcoa and TRACO may not
have dealt with one another at arm’s length. Alcoa provides TRACO with
various business services, and TRACO generally pays for these services
through intercompany accounting charges. Although the Board is correct that
nothing in the record establishes that TRACO generally pays Alcoa full and
fair value for its services, nothing suggests the contrary either. It is clear,
however, that TRACO was never charged for advice its management received
from Alcoa officials in connection with the events of this case. Together with
the use of intercompany accounting, TRACO’s non-payment for the advice from
Alcoa officials serves as some evidence that Alcoa and TRACO have
interrelated operations. See Spurlino, 357 N.L.R.B. at 1517 (finding lack of an
arm’s-length relationship where related entities recorded charges on a ledger
9
Case: 15-60848 Document: 00513886242 Page: 10 Date Filed: 02/22/2017
No. 15-60848
but “d[id] not actually invoice each other” and did not charge the actual cost of
some services); Bolivar-Tees, Inc., 349 N.L.R.B. 720, 721 (2007), enforced, 551
F.3d 722 (8th Cir. 2008) (“[N]on-arm’s length transactions at reduced prices or
without payment entirely [are] . . . probative of interrelation of operations.”
(quoting Lebanite Corp., 346 N.L.R.B. 748, 748 n.5 (2006))).
While the record does not show that Alcoa controls daily decisions at
TRACO, in an unpublished case this Court recognized that day-to-day control
of operations is not required to find that two entities are a single employer
under the NLRA. Oaktree, 452 F. App’x at 442. 3 We find this persuasive
particularly in light of the NLRB’s repeated recognition that such
overwhelming control is not required. See, e.g., Spurlino, 357 N.L.R.B. at 1516
(finding interrelated operations even though the entities “were created and
licensed separately, are geographically removed and serve different markets
in different states, and have their own personnel and equipment”); Royal
Typewriter Co., 209 N.L.R.B. 1006, 1010 (1974) (concluding that operations
were interrelated even though “day-to-day matters were of necessity left to the
separate divisions”), enforced, 533 F.2d 1030 (8th Cir. 1976).
Because there is evidence that, at least in some circumstances, TRACO
and Alcoa have held themselves out to the public and employees as a single
business, and there is some evidence that TRACO received management
services from Alcoa for which it did not pay, substantial evidence supports the
Board’s finding of interrelated operations.
3 In support of their argument that day-to-day control is required to find single-
employer status, the Companies cite Lusk v. Foxmeyer Health Corp., 129 F.3d 773 (5th Cir.
1997). Although in Lusk this Court did note the importance of considering day-to-day control
when conducting the single-employer inquiry, it only considered doing so in the context of the
ADEA. Id. at 777. Because this case involves the NLRA, the decision in Lusk does not guide
our analysis here.
10
Case: 15-60848 Document: 00513886242 Page: 11 Date Filed: 02/22/2017
No. 15-60848
2. Common Control of Labor Relations
In determining single-employer status, it is well recognized that the
factor of “centralized control of labor relations is of particular importance.”
Oaktree, 452 F. App’x at 438 (quoting Covanta, 356 N.L.R.B. at 726); accord
NLRB v. O’Neill, 965 F.2d 1522, 1529 (9th Cir. 1992); Penntech Papers, Inc. v.
NLRB, 706 F.2d 18, 26 (1st Cir. 1983). The “fundamental inquiry is whether
there exists overall control of critical matters at the policy level,” not whether
there is control over day-to-day labor decisions. Oaktree, 452 F. App’x at 438,
442 (quoting Covanta, 356 N.L.R.B. at 726). Here, the Board concluded that
the Companies share centralized control of labor relations. 4 We agree.
The trainings and materials given by Alcoa to TRACO support a finding
of common control of labor relations. Although TRACO paid for this
information, payment alone is not enough to establish independence of the two
entities with respect to their labor policies. See Covanta, 356 N.L.R.B. at 727.
The fact that the Companies characterize the information as “advice” that
TRACO officials were “not required to follow” or “even receive . . . at all,” does
not mean, as the Companies urge, that TRACO’s labor relations are totally
independent of Alcoa’s for the purpose of the single-employer inquiry, see
Pathology Inst., Inc., 320 N.L.R.B. 1050, 1059 (1996) (“[I]t is the existence of
interrelat[ion], not a compulsion to be interrelated, that is the material
consideration.”), enforced, 116 F.3d 482 (9th Cir. 1997). And regardless of any
requirement that TRACO follow Alcoa’s guidance, or lack thereof, Alcoa’s
policy with regard to unions was also clearly presented in the TRACO employee
4 The Board’s decision was primarily based on: (1) a daylong training Alcoa provided
to TRACO managers, which included information about keeping the facility free of unions;
(2) an instance where O’Brien gave instructions to TRACO management about the steps to
take if union literature were found at TRACO; (3) material the Alcoa labor relations
department gave to TRACO management following the handbilling incident; and (4)
O’Brien’s alleged direct involvement in the incidents involved in this case.
11
Case: 15-60848 Document: 00513886242 Page: 12 Date Filed: 02/22/2017
No. 15-60848
handbook. This demonstrates that TRACO adopted Alcoa’s policy as its own,
and moreover, as the events leading up to this case show, that Alcoa did
actually control certain aspects of TRACO’s labor policy.
Particularly, O’Brien’s communications with the Union and his direction
of TRACO management reveal such actual control. Although it appears that
Robinson, a representative of the Union, initially called O’Brien because the
two had a preexisting relationship, O’Brien made no attempt to refer him to
TRACO. Rather, O’Brien consulted with Alcoa legal counsel about whether it
would be proper for Union representatives to handbill on or near the TRACO
property without ever informing TRACO. In fact, O’Brien did not even initially
report the advice from legal counsel to TRACO management. Instead, he
simply informed Robinson that “individuals who were not employees of
TRACO . . . would need to stay on the right-of-way” when handbilling. In other
words, O’Brien, an Alcoa employee, made the ultimate decision as to whether
and where handbilling would be permitted at TRACO. Only after making the
decision himself did O’Brien call TRACO to inform management about the
imminent union activity and how management should deal with it. In O’Brien’s
own words, his “purpose in calling Mr. Jost was to first and foremost make sure
there was no incident, that the matter would be handled appropriately the next
day.” Such involvement in the underlying decision-making process that
resulted in the alleged unfair labor practices is probative of centralized control
of labor relations and single-employer status. See Oaktree, 452 F. App’x at 441–
42 (finding that the involvement of a corporate owner of a resort in the
“underlying incidents” giving rise to the litigation was evidence of centralized
control of labor relations); Royal Typewriter, 209 N.L.R.B. at 1010–11
(determining that labor relations were commonly controlled where there was
“extensive participation by officials of Litton Industries in the conduct
alleged . . . to constitute unfair labor practices”).
12
Case: 15-60848 Document: 00513886242 Page: 13 Date Filed: 02/22/2017
No. 15-60848
In sum, because there is substantial evidence showing common control
over labor relations as well as interrelation of operations and common
ownership, we hold the Board correctly determined that Alcoa and TRACO
constitute a single employer.
B. Violation of Section 8(a)(1) of the NLRA
After concluding that Alcoa and TRACO constitute a single employer
under the NLRA, the Board determined that the Companies had violated
Section 8(a)(1) of the NLRA by (1) excluding Alcoa employees from the TRACO
facility and (2) unlawfully surveilling handbilling activities. Section 8(a)(1) of
the NLRA makes it an unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed” by
Section 7 of the Act. 29 U.S.C. § 158. Section 7, in turn, gives employees the
“right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection.” 29 U.S.C. § 157. In fact, “the right to organize
is at the very core of the purpose for which the NLRA was enacted.” Sears,
Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180, 206
n.42 (1978). And this right “necessarily encompasses the right . . . to
communicate with one another regarding self-organization at the jobsite.” Beth
Israel, 437 U.S. at 491. We address the violations found by the Board in turn.
1. Exclusion of Alcoa Employees from the TRACO Facility
The Board first found that the exclusion of Alcoa employees from the
TRACO facility violated Section 8(a)(1) of the Act. It is well-established that
the Act permits employees to engage in protected union organizing activities
during nonworking time. Republic Aviation, 324 U.S. at 803–04 & n.10. Among
other things, Section 8(a)(1) protects “off-duty employees engaging in Section 7
activity in outside nonworking areas of their employer’s facilities.” Hillhaven
13
Case: 15-60848 Document: 00513886242 Page: 14 Date Filed: 02/22/2017
No. 15-60848
Highland House, 336 N.L.R.B. 646, 647 (2001), enforced, 344 F.3d 523 (6th Cir.
2003); accord ITT Indus., Inc. v. NLRB, 251 F.3d 995, 999–1000 (D.C. Cir.
2001). This includes union activity employees engage in at their employer’s
facilities “other than where they work[].” Hillhaven, 336 N.L.R.B. at 647;
accord ITT Indus., Inc. v. NLRB, 413 F.3d 64, 70–71 (D.C. Cir. 2005). In
Hillhaven, the Board explained that offsite employees are “‘employees’ in the
narrow sense”—that “[w]hen an offsite employee seeks to encourage the
organization of similarly situated employees at another employer facility, the
employee seeks to further his own welfare.” 336 N.L.R.B. at 648; accord ITT
Indus., 413 F.3d at 70–71. “In attempting to organize the unorganized,
employees seek strength in numbers to increase the power of their union and
ultimately to improve their own working conditions.” Hillhaven, 336 N.L.R.B.
at 648 (citing United Food & Commercial Workers Locals 951, 7 & 1036 (Meijer,
Inc.), 329 N.L.R.B. 730, 734 (1999)); accord ITT Indus., 413 F.3d at 71. Thus,
these rights are “personal rather than derivative.” ITT Indus., 413 F.3d at 71.
On the other hand, the Board recognizes that this derivative right of an
offsite employee must be balanced against the employer’s property and
managerial interests. Hillhaven, 336 N.L.R.B. at 650; accord ITT Indus., 413
F.3d at 72 (describing the “inherent tension” between these interests (quoting
Hillhaven, 336 N.L.R.B. at 650)). In balancing employee–employer interests
the Board considers, for instance, the potential that “an influx of offsite
employees might raise security problems, traffic control problems, or other
difficulties that might well justify an employer’s restriction (or even
prohibition) of such access.” Hillhaven, 336 N.L.R.B. at 650; accord ITT Indus.,
413 F.3d at 73. But at the same time, the Board cautions “that an employer
must demonstrate why its security needs or related business justifications
warrant restrictions on access by offsite visiting employees.” Hillhaven, 336
N.L.R.B. at 650; accord ITT Indus., 413 F.3d at 73.
14
Case: 15-60848 Document: 00513886242 Page: 15 Date Filed: 02/22/2017
No. 15-60848
Here, the Board applied the test from Hillhaven to the context of the
single-employer relationship. In its decision, the Board recognized that “no
prior Board precedent . . . expressly holds that the employees of one entity that
comprises part of a single employer have a right of access to the exterior areas
of the plant of another entity that is also part of the single employer for
purposes of organizational handbilling.” However, it concluded that such a
decision would be reasonable in light of the Board’s prior opinion in Mine
Workers (Boich Mining Co.), 301 N.L.R.B. 872 (1991). We agree.
In Boich, the Board determined that two wholly owned subsidiaries of a
holding company constituted a single employer. Id. at 872. As a result, it
concluded that the employees of one subsidiary could strike against the other
subsidiary pursuant to Section 8(b)(4)(B) of the NLRA. Id. In applying the
single-employer doctrine in the context of Section 8(b)(4)(B), the Board looked
to the purpose of that part of the statute: “[T]o preserve the traditional right of
striking employees to bring pressure against employers who are substantially
involved in their dispute, while protecting neutral employers from being
enmeshed in it.” Id. at 873 (quoting Curtin Matheson Sci., Inc., 248 N.L.R.B.
1212, 1212–13 (1980)). Because the purpose of the statute focused on the
neutrality of an employer with respect to a labor dispute, and since the Board
determined the two subsidiaries were so intertwined as to be a single employer,
the Board found it consistent to apply the single-employer doctrine to Section
8(b)(4)(B). Id. at 875. Two intertwined subsidiaries, in essence, could not be
neutral with respect to each other’s labor disputes.
Likewise, applying the single-employer doctrine to the question of
liability under Section 8(a)(1) is consistent with its purpose. In discussing why
Section 8(a)(1) rights apply to offsite employees, both Hillhaven and ITT stress
the idea that similarly situated employees (even at different facilities) derive
strength in numbers because together they can collectively push for better
15
Case: 15-60848 Document: 00513886242 Page: 16 Date Filed: 02/22/2017
No. 15-60848
working conditions. ITT Indus., 413 F.3d at 70–71; Hillhaven, 336 N.L.R.B. at
648. Thus, the question in determining consistency with the statute is really
whether applying the single-employer doctrine in this context serves to protect
employees’ rights to collectively pressure their employer. We hold that it does.
When two entities qualify as a single employer, a court, among other things,
considers whether the two entities share common control at a “policy level”—
including over labor relations. If there exists such a degree of common control
and interrelation, it follows that collective action efforts, like those involved in
this case, would help employees exert pressure on that common source of labor
policy. Thus, applying the single-employer doctrine in this context is consistent
with the purpose of Section 8(a)(1). See Trencor, 110 F.3d at 279 (stating that
this Court will not disturb the Board’s policy determination unless it is
unreasonable or inconsistent with the Act). Accordingly, we find this
application proper.
Barring their objection to application of the single-employer doctrine in
this case, the Companies do not dispute that substantial evidence supports the
Board’s finding that the Companies violated Section 8(a)(1) by denying Alcoa
employees access to TRACO facilities for handbilling purposes. Therefore, we
will summarily enforce the Board’s order with respect to liability under Section
8(a)(1) on this issue. See Sara Lee Bakery Grp., Inc. v. NLRB, 514 F.3d 422,
429 (5th Cir. 2008) (“[W]hen an employer does not challenge a finding of the
Board, the unchallenged issue is waived on appeal, entitling the Board to
summary enforcement.”).
2. Surveillance of Handbilling
The Board also determined that the Companies violated Section 8(a)(1)
of the Act by unlawfully surveilling union activity. It is undisputed that
TRACO General Manager Jost positioned himself outside the TRACO facility
near union handbillers so that he could see which TRACO employees accepted
16
Case: 15-60848 Document: 00513886242 Page: 17 Date Filed: 02/22/2017
No. 15-60848
handbills. Nor is the Board’s finding that this was out of the ordinary
contested. This sort of observation constitutes unlawful surveillance under the
Act. See NLRB v. Aero Corp., 581 F.2d 511, 512–13 (5th Cir. 1978) (determining
that a supervisor’s observation of his employees’ union activity in a public park
was unlawful surveillance); Aladdin Gaming, LLC, 345 N.L.R.B. 585, 585–86
(2005) (finding observation of employees’ union activities unlawful where it is
out of the ordinary). Because the Companies do not challenge this finding, we
likewise summarily enforce the Board’s order on the issue of unlawful
surveillance. See Sara Lee Bakery Grp., 514 F.3d at 429.
III. CONCLUSION
For the foregoing reasons, the Companies’ petition for review is
DENIED, and the Board’s cross-application for enforcement is GRANTED.
17