Adams & Associates, Inc. v. National Labor Relations Board

Case: 16-60333 Document: 00514157708 Page: 1 Date Filed: 09/15/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fif h Circuit
FILED
September 15, 2017
No. 16-60333
Lyle W. Cayce
Clerk
ADAMS AND ASSOCIATES, INCORPORATED; MCCONNELL, JONES,
LANIER & MURPHY, L.L.P.,
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 HIGGINBOTHAM, GRAVES, and HIGGINSON, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Adams and Associates, Inc. (“Adams”) and McConnell, Jones, Lanier &
Murphy LLP (“MJLM”) petition for review of an order of the National Labor
Relations Board, holding them liable for unfair labor practices in violation of
the National Labor Relations Act, 29 U.S.C. § 151 et seq. Adams and MJLM
operate a Job Corps Youth Training Center in Sacramento, California, under
a contract with the Department of Labor. The allegations in this case arose
from Petitioners’ successorship to the former contractor, Horizons Youth
Services, LLC (“Horizons”). During the period in which it operated the Center,
Horizons had a collective-bargaining agreement with Sacramento Jobs Corps
Case: 16-60333 Document: 00514157708 Page: 2 Date Filed: 09/15/2017
No. 16-60333
Federation of Teachers, AFT Local 4986, American Federation of Teachers (the
“Union”). The Board’s order found that Adams violated Sections 8(a)(3) and (1)
of the Act by discriminatorily refusing to hire five incumbent employees in
order to avoid an obligation to bargain with the Union; and violated Sections
8(a)(5) and (1) by unilaterally imposing initial terms and conditions of
employment on the unit employees and banning Union president Genesther
Taylor from the Center. The Board further found that MJLM and Adams are
joint employers and are jointly and severally liable for the aforementioned
violations. The Board cross-petitions for enforcement of its order. For the
reasons that follow, we deny the petition for review and grant the Board’s cross-
petition for enforcement of the order.
I. BACKGROUND
MJLM and Adams jointly bid for a contract with the Department of
Labor (“DOL”) to operate the Job Corps Center in Sacramento (the “Sacramento
Center” or the “Center”). The Job Corps program administered by the DOL
provides academic and vocational training to economically disadvantaged youth,
ages sixteen to twenty-four, at residential centers throughout the United States.
Both companies have contracts to operate various Job Corps centers across the
country. In early February 2014, the DOL awarded the primary contract to
MJLM to operate the Center with Adams as its subcontractor for residential,
wellness, recreation, counseling, and career services. MJLM has “overall
responsibility for management of the Center” and “directly handles education
and training, maintenance, finance, and administration.” Horizons had been
operating the Center since 2009. Its collective-bargaining agreement (“CBA”)
with the Union covered all bargaining unit employees, which included “[a]ll
full-time Residential Advisors (RA), Non-Residential Advisors, and Day
Residential Advisors employed at the [Center].” Horizons employed 26
bargaining unit RAs, who oversaw the students residing in the Center’s
2
Case: 16-60333 Document: 00514157708 Page: 3 Date Filed: 09/15/2017
No. 16-60333
dormitories. The most recent agreement between Horizons and the Union was
effective by its terms until June 2013, but had been extended to March 9, 2014.
Transition Process Begins
In early February 2014, MJLM and Adams opened a shared transition
office in the Sacramento Center. Both Adams and MJLM personnel participated
in the transition. From Adams, the transition management team consisted of
Executive Director Jimmy Gagnon, Executive Director of Human Resources
Valerie Weldon, and Deputy Center Director Kelly McGillis; from MJLM,
Partner Sharon Murphy, HR Director Joyce Barrett, and Center Director Erica
Evans participated. Adams’ CEO Roy Adams (“Roy”) and Vice President for
Human Resources and General Counsel Tiffinay Pagni provided additional
support from Adams’ headquarters. Evans had been the Horizons Center Director
and was hired by MJLM to fill that same position. McGillis directly reported
to Evans.
On February 11, the Union notified MJLM that it was the exclusive
collective-bargaining representative of the unit employees and requested
information concerning the hiring process. On February 13, Adams responded
to the Union and stated that it would be responsible for hiring and employment
of the Center’s RAs. That same day, Gagnon met with a group of Horizons RAs
to announce the transition and advise them about the hiring process. Former
Horizons RA and Union President Taylor attended the meeting. She later
testified that Gagnon told the RAs that they had been “doing a really good job”
and that “aside from disciplinary issues, he was 99 percent sure that [they]
would all have a job” after the transition. Gagnon also stated that Adams
planned to reduce the number of RAs from twenty-six to fifteen, but would also
hire five people in the new position of Residential Coordinator (“RC”). RCs would
have roughly the same job duties as RAs, but would also fill in for dormitory
supervisors and shift managers when necessary. The Horizons employees were
3
Case: 16-60333 Document: 00514157708 Page: 4 Date Filed: 09/15/2017
No. 16-60333
then invited to apply for up to two available positions and given twenty-four
hours to return completed applications. They were permitted to review job
descriptions at the meeting, but Taylor’s request for copies of the job descriptions
was denied. Fourteen incumbent RAs applied for the fifteen available RA
positions.
The following day, the Union demanded that Adams recognize and
bargain with it as the representative of the RAs. Adams did not respond. Also
on that day, Taylor visited the transition office to submit her employment
application. She again requested copies of the job descriptions and asked
Gagnon additional questions about the transition. Gagnon said that he was
unable to provide copies or answer any of her questions and directed her to
contact Pagni. Taylor also asked McGillis for a blank employment application
for a Horizons RA on medical leave. McGillis referred Taylor to Weldon.
The Hiring Process
The transition period was put on hold for two weeks during a contract
appeal and resumed in late February. Although Adams led the hiring process,
both Adams and MJLM personnel interviewed applicants and made hiring
recommendations. Gagnon made the final hiring decisions. In filling RA positions,
Adams was required to follow Executive Order 13495 Non-Displacement of
Qualified Workers under Service Contracts (“EO 13495”). EO 13495 incorporated
a right of first refusal for displaced employees and required successor contractors
to offer employment to all “qualified” incumbent employees of the predecessor
contractor. EO 13495 also required the successor to issue employment offers
no later than 10 days prior to the commencement of operations. To comply with
EO 13495, Adams, through Pagni, created a “Justification for Disqualification
of Potential Employment” form (“Disqualification Form”), which the transition
team used to document the reasons for not hiring any incumbent applicants.
4
Case: 16-60333 Document: 00514157708 Page: 5 Date Filed: 09/15/2017
No. 16-60333
It is Adams’s practice in such transitions to hire management personnel
first, in part so that they can provide input on the performance of incumbent
employees. A new contractor is typically not given access to the former
contractor’s personnel records and that was the case at the Sacramento Center.
Horizons, however, did provide a list of all its current employees, including
their job titles and hire and seniority dates (“Horizons List I”).
After Adams hired former Horizons dorm manager, Lee Bowman,
McGillis shared Horizons List I with Bowman and sought her feedback on RA
applicants. 1 Bowman placed an asterisk next to the names of incumbent RAs
she recommended for hire and a dot next to those whom she did not recommend
hiring. McGillis also annotated the list with Bowman’s comments. Horizons
List I was later copied with Bowman’s dots and asterisks, but not McGillis’
annotations, into another list (“Horizons List II”). McGillis testified that the
purpose of duplicating the list was to eliminate a comment regarding an
employee on medical leave, out of concern that it violated the individual’s
privacy rights under the Health Insurance Portability and Accountability Act.
Gagnon rewrote McGillis’ other annotations into Horizons List II, which
McGillis signed with the original date. Horizons List I no longer existed at the
time of trial.
Based on Bowman’s comments, McGillis completed Disqualification
Forms for five incumbent applicants, whom Adams did not hire: Genesther
Taylor, Shannon Cousins-Kamara, Andre Lang, Macord Nguyen, and Azaria
Ting. According to McGillis, the forms did not automatically disqualify the
applicant, but were simply one piece of information Adams considered in hiring.
Adams completed Disqualification Forms for nine of the fourteen incumbent
1 Gagnon and Murphy conducted the same process with other former Horizons managers
hired during the transition.
5
Case: 16-60333 Document: 00514157708 Page: 6 Date Filed: 09/15/2017
No. 16-60333
RA applicants. The transition team nonetheless interviewed all fourteen. For
each applicant, interviewers filled out an Interview Evaluation Form and
submitted it to Gagnon and Weldon. Applicants were rated in nine categories
on a scale of one to four, with one being excellent and four being unsatisfactory.
McGillis interviewed Taylor on February 28 and recommended that she
not be hired. McGillis admitted that sometime after the interview, she
amended Taylor’s Interview Evaluation Form, downgrading several of Taylor’s
interview scores from 2 (average) to 3 (below average). According to McGillis,
she made the changes because she realized after interviewing other applicants
that she had scored Taylor “much higher than she deserved.”
McGillis also interviewed Cousins-Kamara. McGillis testified that
Cousins-Kamara provided a lot of information, including that she had been
“awarded a dorm of the month recognition month after month and was
employee of the month,” which “sounded almost too good to be true.” Former
RA Andre Lang, however, testified that he had worked with Cousins-Kamara
in the Shasta dorm and that all the information Cousins-Kamara related was
true. McGillis completed an Interview Evaluation Form for Cousins-Kamara,
but after speaking with Bowman, she shredded the initial form and replaced it
with a second form recommending against hiring.
By late February or early March, when there were only a few RA
positions left to fill, Gagnon and Weldon had a conversation about four RA
applicants for whom Disqualification Forms had been completed, but who
interviewed well and received good scores: Diane Calahan, Andre Lang,
Vincente Moran, and Jill Ostrowski. Weldon testified that she told Gagnon,
“We can’t not hire these employees . . . just because they are part of the Union.”
Gagnon decided to extend offers to all four, although later rescinded the offer to
Lang after a background check indicated a potential discrepancy in employment
dates for a position he held before working at Horizons.
6
Case: 16-60333 Document: 00514157708 Page: 7 Date Filed: 09/15/2017
No. 16-60333
Adams ultimately hired nine incumbent RAs for the fifteen available
positions. Adams filled the remaining RA positions with non-bargaining unit
Horizons substitute RAs and a Horizons custodian. Four of the five substitute
RAs had been employed by Horizons for only a few months. Because Adams had
hired a majority of former bargaining unit employees, it incurred an obligation
to bargain with the Union.
Post-Hiring Events
On March 4, after it became clear that Adams had incurred a bargaining
obligation, Roy sent an email to hiring committee members, including Pagni,
Gagnon, and Weldon, which stated: “Unfortunately, we hired the majority of
the union members at Sacramento and we, therefore, must negotiate a
Collective Bargaining Agreement and incur other associated union legal costs.”
The following week, Roy visited the Sacramento Center and pulled Weldon aside
to ask her what happened. She related her conversation with Gagnon regarding
the four incumbent RAs whose interviewers had recommended hiring. Weldon
testified that Roy “was very angry and he said that we screwed up. The Union
was now involved and he was not happy.”
In late March, Weldon was sent back to Sacramento to gather additional
information about various non-hires because Pagni felt that the documentation
of their disqualification may not have been sufficient to comply with EO 13495.
While Weldon was there, she received an email from Pagni with instructions
for gathering supplemental information. Pagni wrote that the information
provided by Evans was not “really helpful” and that she “also mentioned the
union in her comments. Union involvement was not questioned or used as a
DQ’ing factor for these individuals and cannot be used in these further
supporting documents. We need to take any mention of union out.”
On March 22, Roy sent a “Memorandum for Personnel Files of Tiffinay
Pagni and Valerie Weldon” to Pagni. The memorandum, titled “Significant
7
Case: 16-60333 Document: 00514157708 Page: 8 Date Filed: 09/15/2017
No. 16-60333
Performance Concerns,” stated that Roy was “very concerned about the
performance of Executive level Human Resource staff with oversight
responsibility for the transition at the Sacramento Job Corps Center.” Among
the priorities for the transition that were not achieved, he listed “[w]ithin
compliance guidelines, avoid union recognition” and “[p]rotect the company
from expensive union-related costs.” The memorandum concluded:
Despite repeated direction, guidelines, forms, discussions, HR staff
experience, qualifications, 10 years of union avoidance responsibility
and, quite frankly, common sense, the company HR department
failed to achieve minimum performance at the Sacramento
transition.
On March 27, Pagni sent an email to Weldon, forwarding Roy’s
Memorandum and providing additional performance feedback. Pagni stated
that “[w]e were . . . expected to assure disqualification information was well-
documented and defensible and to avoid union recognition in order to protect
the company from significant union related expenses and challenges. Neither
of these things happened[.]” Pagni further commented that “[i]n preparing a
recent summary of individuals who applied versus those who were hired, there
are ample incumbent Sub RA’s on the list. These incumbent employees could
have been used to fill the RA positions without acknowledging the union. Roy
raised this issue repeatedly.” On April 25, Pagni presented Weldon with a Final
Written Warning, copying Roy and Adams President of Operations Susan
Larson. One of the performance concerns raised was that Weldon had failed to
conduct “Union Avoidance activities pursuant to policy, including training[.]”
Commencement of Operations and Changes to Employment Terms and
Conditions
Petitioners began operating the Center on March 11. Staff were employed
under new terms and conditions. Specifically, Petitioners had ceased to give
effect to the CBA’s progressive discipline, just cause, and grievance provisions;
implemented at-will employment, new disciplinary policies and procedures,
8
Case: 16-60333 Document: 00514157708 Page: 9 Date Filed: 09/15/2017
No. 16-60333
and a mandatory arbitration policy for employment-related disputes; modified
the terms of the existing probationary period; replaced existing health benefits
with a new plan; and changed some RAs’ schedules from fixed shifts to rotating
shifts. Adams also assigned RA work to employees in the new RC position,
which was not part of the bargaining unit. Adams notified new hires of these
changes in their offer letters and employment agreements.
Between April and September, Adams discharged four RAs: Sheila
Broadnax, Rolando Aspiras, Bienvenido Viloria, and Vincente Moran. They
were discharged without recourse to the CBA’s progressive discipline process.
Adams did not notify the Union about the discharges.
Union Negotiations
On March 11, the Union renewed its demand for recognition and
bargaining. On March 28, Adams recognized the Union as the bargaining
representative for RAs and agreed to bargain. Adams, however, refused to allow
Taylor access to the Center to attend bargaining sessions. As a result, the first
three bargaining sessions were held at the Union’s office. After the third
session, Adams agreed to allow Taylor access to the Center. The fourth session
took place there.
Procedural History
The Union filed charges with the NLRB alleging that Adams had
committed multiple violations of the NLRA. Thereafter, the Board’s General
Counsel (“General Counsel”) issued a consolidated, amended complaint against
Adams and MJLM as joint employers. The complaint alleged that Adams
violated the Act by refusing to hire Cousins-Kamara, Lang, Nguyen, Taylor,
and Ting in order to avoid a bargaining obligation, and additionally refused to
hire Taylor because of her union activity. Further, the complaint alleged that
Adams impermissibly made unilateral changes in the terms and conditions of
employment; discharged Broadnax, Aspiras, Viloria, and Moran without prior
9
Case: 16-60333 Document: 00514157708 Page: 10 Date Filed: 09/15/2017
No. 16-60333
notice to the Union or an opportunity to bargain; and refused to bargain with
the Union in good faith by barring Taylor from the Center and by refusing to
meet at reasonable times and places.
The case was tried before an Administrative Law Judge (“ALJ”) over
seven days in early 2015. The ALJ heard testimony from several witnesses and
admitted numerous documents in evidence. On June 16, 2015, the ALJ issued
a decision agreeing with the General Counsel in almost every respect. She
determined, inter alia, that a corporate successorship avoidance plan formed the
overarching basis for hiring during the transition and that Adams’s asserted
reasons for not hiring the five incumbent RAs were “patently pretextual.” The
ALJ, however, rejected the General Counsel’s argument that Adams was a
“perfectly clear” successor as of February 13, 2014, the date of Gagnon’s first
meeting with the RAs. Nevertheless, the ALJ found that Adams had forfeited
its right to unilaterally set initial terms and conditions of employment by
unlawfully discriminating against incumbent employees to avoid a bargaining
obligation. The ALJ declined to address the General Counsel’s alternative
theory that Taylor had not been hired due to her union activity, but noted that
were she to address it, she would find that Taylor’s union activity was part of
the basis for Adams’s decision not to hire her.
On May 17, 2016, a three-member panel of the Board affirmed the ALJ’s
decision and adopted the ALJ’s findings and recommendations with two
modifications. Unlike the ALJ, the Board determined that Adams was a “perfectly
clear” successor as of February 13. The Board also held that Taylor had been
denied employment on account of her Union activities, as well as to avoid a
bargaining obligation.
As a remedy for these violations, the Board has ordered Adams and
MJLM to offer instatement to the five incumbent RAs who were not hired
(Cousins-Kamara, Nguyen, Taylor, Lang, and Ting), offer reinstatement to the
10
Case: 16-60333 Document: 00514157708 Page: 11 Date Filed: 09/15/2017
No. 16-60333
four RAs later discharged (Broadnax, Viloria, Aspiras, and Moran), and make
all the discriminatees whole. Further, upon request from the Union, Adams
and MJLM must rescind the unilateral changes to employment terms and
conditions and restore the status quo ante until the parties reach a new
collective-bargaining agreement or lawful impasse. To remedy the unilateral
transfer of bargaining unit work from the RA to RC position, the Board ordered
Petitioners to recognize the Union as the exclusive collective-bargaining
representative of the RCs, and to make the RCs whole for any losses.
On May 27, 2016, Adams and MJLM jointly petitioned for review of the
Board’s order. The Union has intervened and filed a brief in support of the
Board. Meanwhile, Adams moved for reconsideration, which the Board denied
on July 29, 2016. On November 11, 2016, the Board cross-petitioned for
enforcement of its order.
II. STANDARD OF REVIEW
“We review the Board’s factual findings under a substantial evidence
standard and its legal conclusions de novo.” El Paso Elec. Co. v. N.L.R.B., 681
F.3d 651, 656 (5th Cir. 2012). But we defer to the legal conclusions of the Board
“if they have a reasonable basis in the law and are not inconsistent with the
Act.” Valmont Indus., Inc. v. N.L.R.B., 244 F.3d 454, 464 (5th Cir. 2001).
“Substantial evidence is ‘such relevant evidence as a reasonable mind would
accept to support a conclusion.’” J. Vallery Elec., Inc. v. N.L.R.B., 337 F.3d 446,
450 (5th Cir. 2003) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474,
477 (1951)). “It is more than a mere scintilla, and less than a preponderance.”
UNF W., Inc. v. N.L.R.B., 844 F.3d 451, 456 (5th Cir. 2016) (quoting El Paso
Elec., 681 F.3d at 656). “Although the reviewing court is ‘obligated to consider
evidence that detracts from the Board’s finding,’ the ALJ’s decision stands ‘if a
reasonable person could have found what the ALJ found, even if the appellate
court might have reached a different conclusion had the matter been presented
11
Case: 16-60333 Document: 00514157708 Page: 12 Date Filed: 09/15/2017
No. 16-60333
to it in the first instance.’” Id. at 456–57 (citations omitted). The ALJ’s credibility
determinations are binding unless: “(1) the credibility choice is unreasonable,
(2) the choice contradicts other findings, (3) the choice is based upon inadequate
reasons or no reason, or (4) the ALJ failed to justify [her] choice.” Id. at 457
(quoting Asarco, Inc. v. N.L.R.B., 86 F.3d 1401, 1406 (5th Cir. 1996)).
III. DISCUSSION
Adams argues that the Board’s findings are not supported by substantial
evidence. Specifically, Adams argues the Board erred by (1) concluding there
was substantial evidence of antiunion animus during the transition period;
(2) concluding that Adams was a “perfectly clear” successor to Horizons’ CBA
with the Union; (3) ordering as a remedy that Adams recognize the Union as the
bargaining representative of employees in the RC position; (4) concluding Adams
violated the Act by enforcing its site access rule against Taylor; and
(5) concluding that Adams and MJLM are joint employers under the NLRB.
MJLM contests only the joint employer finding. We address each argument in
turn.
A. The Record Contains Substantial Evidence of Antiunion Animus
A “successor is under no obligation to hire the employees of its
predecessor,” but this prerogative is “subject, of course, to the restriction that
it not discriminate against union employees in its hiring.” Fall River Dyeing &
Finishing Corp. v. N.L.R.B., 482 U.S. 27, 40 (1987). “[T]o establish a violation
of Section 8(a)(3) and (1) in cases where a refusal to hire is alleged in a
successorship context, the General Counsel has the burden to prove that the
employer failed to hire employees of its predecessor and was motivated by
antiunion animus.” 2 Planned Bldg. Servs., Inc., 347 N.L.R.B. 670, 673 (2006),
2 Sections 8(a)(1) and (3) provide in relevant part:
(a) It shall be an unfair labor practice for an employer–
12
Case: 16-60333 Document: 00514157708 Page: 13 Date Filed: 09/15/2017
No. 16-60333
overruled on other grounds by Pressroom Cleaners & Serv. Emps. Int’l Union,
Local 32BJ, 361 N.L.R.B. No. 57 (Sept. 30, 2014). Once this is shown, “the
burden then shifts to the employer to prove that it would not have hired the
predecessor’s employees even in the absence of its unlawful motive.” Id. at 674.
A violation can be established by factors such as:
substantial evidence of union animus; lack of a convincing
rationale for refusal to hire the predecessor’s employees;
inconsistent hiring practices or overt acts or conduct evidencing a
discriminatory motive; and evidence supporting a reasonable
inference that the new owner conducted its staffing in a manner
precluding the predecessor’s employees from being hired as a
majority of the new owner’s overall work force to avoid the Board’s
successorship doctrine.
U.S. Marine Corp., 293 N.L.R.B. 669, 670 (1989), enforced sub nom. U.S. Marine
Corp. v. N.L.R.B., 944 F.2d 1305 (7th Cir. 1991) (en banc). Antiunion animus
need not be the sole motivating factor for the employer’s refusal to hire, only
“a substantial or motivating factor in the adverse action.” N.L.R.B. v. Transp.
Mgmt. Corp., 462 U.S. 393, 401 (1983), abrogated on other grounds by Dir., Off.
of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267 (1994).
“Motive is a factual matter . . . and the Board reasonably may infer motive from
the circumstances surrounding the employer’s actions, as well as from direct
evidence.” Asarco, Inc., 86 F.3d at 1408.
Adams argues that the Board’s finding of antiunion animus in the
transition hiring process is infirm because it relied solely on “[s]uspicion,
(1) to interfere with, restrain, or coerce employees in the exercise of rights
guaranteed in section 157 of this title; . . .
(3) by discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any labor
organization.
29 U.S.C. § 158(a). “[A] violation of § 8(a)(3) constitutes a derivative violation of § 8(a)(1).”
Metro. Edison Co. v. N.L.R.B., 460 U.S. 693, 698 n.4 (1983).
13
Case: 16-60333 Document: 00514157708 Page: 14 Date Filed: 09/15/2017
No. 16-60333
conjecture, or theoretical speculation,” N.L.R.B. v. Mini-Togs, Inc., 980 F.2d
1027, 1032 (5th Cir. 1993). We disagree.
First, Roy’s own statements and actions evince an intent to avoid
bargaining with the Union. Adams does not deny that Roy explicitly voiced
displeasure at the transition team’s failure to avoid Union recognition. 3 Adams
asserts, however, that these statements merely voice a preference for avoiding
Union recognition and do not support the conclusion that Adams acted
consistently with that preference. It analogizes to the comments at issue in
Brown & Root, Inc. v. N.L.R.B., 333 F.3d 628 (5th Cir. 2003). That case also arose
in the successorship context. There, we determined that a project manager’s
statement during a confrontational meeting with incumbent employees that
“Brown & Root was non-union and would remain that way” was insufficient,
without more, to support a finding that Brown & Root’s hiring decisions were
in fact motivated by antiunion animus. Id. at 638–39. Adams’s reliance on
Brown & Root is misplaced. Roy’s statements did not merely express a personal
preference. They indicate that the CEO of Adams himself intended for the
company to avoid recognizing the Union. Furthermore, this corporate strategy
was so important that Roy seriously disciplined senior officers of the company
for failing to carry it out.
3 These statements appeared in an email that Roy wrote to Gagnon, Weldon, Pagni,
and others, shortly after it became clear that Adams had incurred an obligation to bargain
with the Union. Adams argues that the Board erroneously relied on this email and other
communications involving Pagni and/or Weldon, because they constituted inadmissible
evidence protected by the attorney-client privilege. Both Pagni and Weldon are licensed
attorneys and Pagni has a dual role as Adams’s senior HR executive and General Counsel.
Adams raised this same objection to the ALJ, who conducted an in camera review of the
documents and determined that they pertained principally to human resources or labor
relations, and not to legal advice. Therefore, the ALJ concluded they were not privileged
communications. Based on our independent review of these communications, we agree. See
EEOC v. BDO USA, L.L.P., 856 F.3d 356, 364 (5th Cir. 2017) (“[W]here business and legal
advice are intertwined, the legal advice must predominate for the communications to be
protected.” (citation omitted)).
14
Case: 16-60333 Document: 00514157708 Page: 15 Date Filed: 09/15/2017
No. 16-60333
Roy’s statements are also not the only ones indicative of a corporate
strategy of successorship avoidance. Pagni’s emails to Weldon reveal that
Adams’s top HR executive was well aware of this corporate strategy. And she
explicitly discussed one method of carrying it out—selecting non-bargaining
unit substitute RAs to fill RA positions, a tactic that Pagni said “Roy raised . . .
repeatedly.” Weldon also testified that it was “widely known” that Roy wanted
the company to avoid Union recognition. In addition, the record demonstrates
that the transition team sanitized records to remove references to the Union,
altered records, and shredded documents pertaining to the five bargaining unit
RAs who were not hired. These acts support the inference of a coordinated effort
to avoid hiring unit employees and an attempt to paper over that objective.
Adams protests that members of the transition team denied that they
were under direct orders not to hire bargaining unit employees. This, however,
is only a challenge to the ALJ’s credibility determinations. The ALJ discredited
the testimony of Adams’s witnesses on a number of points, based on their
demeanor and equivocation at the hearing, as well as the “overwhelming
evidence” of antiunion animus. These credibility determinations are binding
unless unreasonable, contradictory to other findings, or unjustified. UNF W.,
Inc., 844 F.3d at 456; El Paso Elec., 681 F.3d at 665. The ALJ provided her
reasons for each credibility determination and the record as a whole supports
them. Adams’s argument that it cannot be liable for its union avoidance activities
because it ultimately recognized and bargained with the Union is similarly
unpersuasive. As the ALJ noted, the fact that Adams’s plan to avoid successor
status failed does not negate the substantial evidence that it existed. See Great
Lakes Chem. Corp. v. N.L.R.B., 967 F.2d 624, 628 (D.C. Cir. 1992) (rejecting the
same argument because “the more reasonable inference is that the [e]mployer’s
discriminatory design ultimately failed, not that it wasn’t tried”).
15
Case: 16-60333 Document: 00514157708 Page: 16 Date Filed: 09/15/2017
No. 16-60333
Adams also contends that it had non-discriminatory reasons for not hiring
the five incumbent RAs. But it offered those same reasons to the ALJ, and she
determined that they were “patently pretextual.” The ALJ found that Adams
struggled to provide meaningful rationales for disqualifying the incumbent
bargaining unit candidates and had to send Weldon back for “further after-the-
fact evidence,” with instructions to sanitize documents by deleting any reference
to the Union. While each of these candidates had multiple years of experience
on the job, Adams instead hired non-unit Horizons substitute RAs, some with
only a few months of experience, and a Horizons custodian.
Furthermore, the ALJ made several credibility determinations in arriving
at her conclusions. As discussed above, such determinations require deference
except in unusual circumstances. Here, the ALJ provided thorough explanations
for her determinations, which are eminently reasonable. For example, McGillis
and Gagnon offered several reasons for not extending an offer of employment
to Taylor, including her alleged poor performance during the interview and
Bowman’s comment that she “doesn’t get much done.” But at trial, McGillis
and Taylor offered starkly different versions of the interview. The ALJ found
Taylor’s testimony to be “straightforward, convincing, and unflinching.” By
contrast, she found McGillis’s testimony to be “laced with examples of shredding,
back dating and signing forms to make them look like originals when they were
actually manufactured at a later time, [and] writing over interview forms in
an attempt to cover up original impressions.” McGillis also admitted that she
retroactively lowered Taylor’s interview scores by adding an extra loop to her
“2s” to make them look like “3s.” The ALJ found McGillis’s proffered explanation,
that she realized she had scored Taylor “much higher than she deserved,”
unconvincing. Furthermore, McGillis’s additional explanation that her changed
opinion was based on Taylor’s “very disruptive” visits to the transition office,
during which she was performing her duties as Union president, was itself
16
Case: 16-60333 Document: 00514157708 Page: 17 Date Filed: 09/15/2017
No. 16-60333
evidence that Taylor’s union activity contributed to McGillis’s and others’
negative impressions of her. 4 As for Bowman, the ALJ described her testimony
as “incredible” and her demeanor “somewhat uncooperative with a pronounced
lack of interest in providing truthful testimony.”
We have reviewed the ALJ’s findings and credibility determinations as to
Adams’s claimed reasons for refusing offers to Taylor, Cousins-Kamara, Lang,
Nguyen, and Ting and we see no reason to disturb them. As discussed above,
the ALJ’s credibility determinations are binding except in rare instances.
Asarco, 86 F.3d at 1406; see also N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404, 408
(1962) (explaining that the deferential standard of review is appropriate because
the “[the ALJ] . . . sees the witnesses and hears them testify, while the Board
and the reviewing court look only at cold records”). We are satisfied that the
ALJ’s and the Board’s findings as to the Section 8(a)(3) and (1) violations are
reasonable and supported by the record as a whole. Accordingly, we affirm
them. See Valmont Indus., 244 F.3d at 470.
B. Adams’s Unilateral Imposition of Initial Terms and Conditions of
Employment Violated the Act
The Board determined that Adams’s unilateral changes to mandatory
terms and conditions of employment violated Sections 8(a)(5) and (1) of the Act,
based on two alternative theories. 5 First, through its unlawful refusal to hire
Horizons employees in an effort to avoid bargaining with the Union, Adams
4 Gagnon also testified that he decided not to hire Taylor based, in part, on “[his]
interactions with her” and “[his] observations of her interactions” with others. The Board
found that it was undisputed that all of Gagnon’s interactions with Taylor and all of Taylor’s
interactions with others that Gagnon observed took place while Taylor was acting in her
capacity as Union president. We agree with the Board that the evidence supports the General
Counsel’s allegation that Adams refused to hire Taylor, in part, because of her union activity
and we affirm the Board’s finding of a separate Section 8(a)(3) violation on this ground.
5 Section 8(a)(5) of the Act provides that an employer engages in unfair labor practice
by “refus[ing] to bargain collectively with the representatives of his employees, subject to the
provisions of section 159(a) of this title.” 29 U.S.C. § 158(a)(5).
17
Case: 16-60333 Document: 00514157708 Page: 18 Date Filed: 09/15/2017
No. 16-60333
forfeited its right as a successor employer to set initial employment terms.
Second, by failing to announce its intent to change employment terms prior to,
or simultaneously with, its expressed intent to retain Horizons employees,
Adams became a “perfectly clear” successor with an obligation to bargain with
the Union. Adams directly challenges only the Board’s second theory—that
Adams was a “perfectly clear” successor.
Although a successor employer is ordinarily free to set initial terms on
which it will hire its predecessor’s employees, when a successor evinces a
“perfectly clear” intention to retain the predecessor’s employees, it must consult
with their bargaining representative before fixing its own terms. N.L.R.B. v.
Burns Int’l Sec. Servs., Inc., 406 U.S. 272, 294–95 (1972); see also Spruce Up
Corp., 209 N.L.R.B. 194, 195 (1974) (clarifying that the “perfectly clear” caveat
applies where, inter alia, successor “has failed to clearly announce its intent to
establish a new set of conditions prior to inviting former employees to accept
employment”), enforced sub nom. N.L.R.B. v. Spruce Up Corp., 529 F.2d 516(4th Cir. 1975) (per curiam).
The Board’s finding that Adams was a “perfectly clear” successor was
based on Gagnon’s meeting with the RAs on February 13, in which he told them
that they had been “doing a really good job” and that “aside from disciplinary
issues, he was 99 percent sure that [they] would all have a job” after the
transition. The Board determined that Gagnon’s comments during that meeting
“manifested an intent to retain the incumbent RAs.” Further, it determined
that Adams had not clearly announced its intent to establish new employment
terms prior to or simultaneously with the February 13 meeting.
Adams does not deny that it is a successor employer. Neither does it
dispute the Board’s finding that Gagnon’s comments at the February 13
meeting created an expectation that Horizons bargaining unit employees
would retain their employment after the transition. It contests only the Board’s
18
Case: 16-60333 Document: 00514157708 Page: 19 Date Filed: 09/15/2017
No. 16-60333
finding that Adams did not give prospective employees clear notice of its intent
to establish new employment conditions. Adams points to various statements
Gagnon made during the February 13 meeting, which Adams contends put the
RAs on notice that their employment would be under different terms: the
reduction in the number of RAs, the introduction of the new RC position, and
Adams’s provision of its own health insurance plan. 6 We observe that none of
these statements explicitly announced that Adams intended to change the terms
and conditions of the RAs’ employment. Ultimately, we find it unnecessary to
resolve whether or not these comments placed the RAs on constructive notice
because we have already determined that Adams discriminatorily failed to hire
the employees of its predecessor in order to avoid incurring a bargaining
obligation.
Under these circumstances, Adams forfeited its right to set initial terms.
“[A]n employer that attempts to avoid successorship th[r]ough discriminatory
hiring practices forfeits its right to set initial terms and conditions of
employment.” Pressroom Cleaners, 361 N.L.R.B. No. 57, at *1; see also N.L.R.B.
v. Katz, 369 U.S. 736, 743 (1962) (“We hold that an employer’s unilateral change
in conditions of employment under negotiation is similarly a violation of s[ection]
8(a)(5), for it is a circumvention of the duty to negotiate which frustrates the
objectives of s[ection] 8(a)(5) much as does a flat refusal.”). Consequently, Adams
6 Adams additionally argues that Horizons employees were placed on notice by the
proposed staffing model that MJLM and Adams included in their joint proposal to the DOL.
Adams does not assert, however, that Horizons employees were privy to the DOL proposal.
Consequently, any information contained in the proposal is immaterial to our inquiry, which
is conducted from the employees’ perspective. See Fall River, 482 U.S. at 43–44; N.L.R.B. v.
Hous. Bldg. Servs., Inc., 936 F.2d 178, 180 & n.1 (5th Cir. 1991) (per curiam). Adams also points
out that the offer letters and employment agreements provided to new hires apprised them
of different terms and conditions. But this information was provided only after the February
13 meeting and is therefore insufficient to satisfy the notice requirement. See, e.g., Canteen
Co., 317 N.L.R.B. 1052, 1054 (1995), enforced sub nom. Canteen Corp. v. N.L.R.B., 103 F.3d
1355 (7th Cir. 1997).
19
Case: 16-60333 Document: 00514157708 Page: 20 Date Filed: 09/15/2017
No. 16-60333
was obligated to maintain the status quo by honoring the substantive terms of
the CBA and to bargain with the Union about all changes to mandatory subjects
of bargaining.
We therefore affirm the Board’s finding of Sections 8(a)(5) and (1) violations
for Adams’s unilateral imposition of new terms and conditions of employment.
We also affirm the Board’s ordered remedy that Adams, upon request by the
Union, retroactively restore the CBA’s terms and rescind the unilateral changes
Adams made until such time as it and the Union reach an agreement on new
terms or a lawful impasse based on good-faith negotiations.
In its Reply, Adams argues that this remedy is improper because it
subsequently recognized and bargained with the Union. As a threshold matter,
arguments made only in a party’s reply brief are forfeited. See Tradewinds
Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 260 n.3 (5th
Cir. 2009). But even if Adams had not forfeited this argument, we would still
enforce this part of the Board’s order.
There is substantial agreement among our sister circuits that “[i]n such
cases the Board may impose a status quo ante remedy to restore the situation
to what it would have been absent the successor’s unfair labor practices.” See
U.S. Marine Corp., 944 F.2d at 1320 (collecting cases); see also Love’s Barbeque
Rest. No. 62, 245 N.L.R.B. 78, 82 (1979), enforced in part sub nom. Kallmann v.
N.L.R.B., 640 F.2d 1094 (9th Cir. 1981); accord Pressroom Cleaners, 361 N.L.R.B.
No. 57, at *1–2. Adams cites no decision from this court, or any other, denying
enforcement of the traditional Love’s Barbeque remedy because the employer
began complying with its obligations under the Act at some point after its initial
violations. And one of the Board’s decisions that Adams does cite demonstrates
the flaw in its logic.
In Pressroom Cleaners, the Board clarified that in showing compliance
with a Love’s Barbeque remedy, “the employer is not permitted to show . . . that
20
Case: 16-60333 Document: 00514157708 Page: 21 Date Filed: 09/15/2017
No. 16-60333
it would have agreed to different terms, or reached impasse earlier, if it had
bargained lawfully in the first place.” 361 N.L.R.B. No. 57, at *3. Pressroom
Cleaners indicates that Adams’s subsequent participation in the bargaining
process does not dissipate its initial violation of unilaterally imposing its own
terms and conditions of employment. Nor does it make bargaining unit employees
whole but for Adams’s unfair labor practice. Accordingly, we hold that restoring
the status quo ante is an appropriate remedy for Adams’s unlawful conduct.
C. The Board Did Not Err in Ordering Adams to Recognize the Union
as the Bargaining Representative for the RCs
Adams argues that the Board erred by ordering it to rescind its unlawful
transfer of bargaining unit work from the RA to the RC position and to recognize
and bargain with the Union as the exclusive representative of RCs. Adams
asserts that this is an extraordinary remedy akin to a Gissel bargaining order.
Such orders bypass a union election and direct an employer to begin bargaining
with the union immediately. See N.L.R.B. v. Gissel Packing Co., 395 U.S. 575,
582–86 (1969). The propriety of Gissel orders are limited to exceptional cases
where the employer’s attempts to circumvent the election process indicate that
the Board’s traditional remedies cannot ensure a fair election. Id. at 610–15.
The Board rejected this argument in denying Adams’s motion for
reconsideration. See Adams & Assocs., Inc., Nos. 20-CA-130613 & 20-CA-138046,
2016 WL 4087594, at *2 (N.L.R.B. July 29, 2016). The Board held that an order
to recognize and bargain with the union is the traditional remedy for an
employer’s unlawful unilateral transfer of bargaining unit work to a non-unit
position. Id. (citing Dixie Elec. Membership Corp., 358 N.L.R.B. 1089, 1094 (2012),
vacated, 361 N.L.R.B. No. 107 (Nov. 19, 2014), enforced sub nom. Dixie Elec.
Membership Corp. v. N.L.R.B., 814 F.3d 752 (5th Cir. 2016), and Mt. Sinai Hosp.,
331 N.L.R.B. 895, 912 (2000), enforced sub nom. N.L.R.B. v. Mt. Sinai Hosp., 8
F. App’x 111 (2d Cir. 2001) (per curiam)).
21
Case: 16-60333 Document: 00514157708 Page: 22 Date Filed: 09/15/2017
No. 16-60333
We conclude that the Board’s remedy is sufficiently within its broad
discretion to fashion. See Fibreboard Paper Prods. Corp. v. N.L.R.B., 379 U.S.
203, 216 (1964) (“The Board’s [remedial] power is a broad discretionary one,
subject to limited judicial review.”). Furthermore, Adams’s analogy to Gissel is
misplaced. Gissel orders remedy pre-election unfair labor practices. Here, the
Union was the duly elected bargaining agent for RA bargaining unit work. The
Board found that the duties of RC and RA employees are substantially identical.
Adams does not dispute this. Transferring bargaining unit work to non-unit
personnel is a mandatory subject of bargaining; an employer’s unilateral transfer
of such work violates the Act. Hampton House, 317 N.L.R.B. 1005, 1005 (1995)
(“[O]nce a specific job has been included within the scope of the bargaining unit
by either Board action or the consent of the parties, the employer cannot remove
or modify the position without first securing the consent of the union or the
Board.”). The traditional remedy for such a violation is to order the employer
to recognize the union as the bargaining representative for employees in the
non-unit position to which the unit work was transferred. See, e.g., Mt. Sinai
Hosp., 8 F. App’x at 116 (enforcing order requiring employer to include in
bargaining unit all employees in non-unit position to which employer unlawfully
transferred work); Great Lakes Chem. Corp., 967 F.2d at 262–63 (same).
Adams attempts to sidestep this remedy by arguing that the RC position
is a supervisory position pursuant to Section 2(11) of the NLRA and thus exempt
from bargaining. See Dynasteel Corp. v. N.L.R.B., 476 F.3d 253, 257 (5th Cir.
2007) (“The NLRA generally only protects employees, thereby excluding
supervisors from its protections.”). Adams has the burden of demonstrating a
job position’s supervisory status. Id. at 257–58. The ALJ found, and the Board
affirmed, that RCs are not supervisory employees because “[t]here is no dispute
that RCs have no authority to hire, transfer, suspend, layoff, discharge, recall,
promote, reward, or assign duties,” nor can they “meaningfully recommend
22
Case: 16-60333 Document: 00514157708 Page: 23 Date Filed: 09/15/2017
No. 16-60333
such actions.” See 29 U.S.C. § 152(11). Adams renews the same argument that
the Board rejected, namely that RCs are supervisors because they “oversee the
dorm area, regularly fill in for managers and supervisors, and manage staff on
occasion.” We agree with the Board that the RCs’ intermittent substitution for
supervisors without any other indicia of supervisory authority does not
transform them into supervisors. See Masterform Tool Co., 327 N.L.R.B. 1071,
1071 (1999) (“[T]he exercise of some ‘supervisory authority’ in a merely . . .
sporadic manner does not confer supervisory status.”).
D. The Board Did Not Err in Finding that Adams Violated the Act by
Refusing to Grant Taylor Access to the Center
Adams challenges the Board’s finding that it committed a Section 8(a)(5)
violation by barring Taylor from access to the Center for collective-bargaining
sessions. As Union president, Taylor was the Union’s chosen representative for
bargaining with Adams. When Horizons operated the Center, bargaining sessions
typically took place there. But Adams denied Taylor access to the Center, citing
its facility access rule:
Former staff and students, regardless of reason for separation, will
not be allowed on Center without the prior authorization of the
Center Director or his/her designee.
No group or individual who has been previously barred from the
Center or whose purpose can reasonably be expected to create
controversy or disturbance among staff members or students, or
who might interfere with their welfare or training, will be allowed
on-Center.
As a result, the first three collective-bargaining sessions took place off-site at
the Union’s office. After the third session, Taylor was permitted on the Center.
The fourth session took place there.
“It is well established that each party to a collective-bargaining
relationship has both the right to select its representative for bargaining and
negotiations and the duty to deal with the chosen representative of the other
23
Case: 16-60333 Document: 00514157708 Page: 24 Date Filed: 09/15/2017
No. 16-60333
party.” See Fitzsimons Mfg. Co., 251 N.L.R.B. 375, 379 (1980), enforced sub
nom. Int’l Union, United Auto, Aerospace & Agr. Implement Workers of Am. v.
N.L.R.B., 670 F.2d 663 (6th Cir. 1982). The General Counsel relies on Modern
Management Services, LLC, 361 N.L.R.B. No. 24, 2014 WL 4076358 (Aug. 18,
2014), enforced sub nom. Modern Mgmt. Servs., LLC v. N.L.R.B., No. 14-1160,
2016 WL 3040484 (D.C. Cir. May 18, 2016), and KSL Claremont Resort, Inc.,
344 N.L.R.B. 832 (2005), to argue that a ban on union representatives who are
also former employees constitutes a refusal to bargain with the Union’s chosen
representative in violation of Section 8(a)(5) of the Act. In both cases, the Board
found Section 8(a)(5) violations stemming from an employer’s refusal to allow a
former employee access to its facility to carry out union-related responsibilities.
But Adams asserts that it should not be liable because there was no
evidence that its enforcement of its facility access rule was either selective or
disparate. Adams cites us no authority indicating that non-selective enforcement
of its rule is material. The probative facts are that Taylor was the Union’s
chosen representative and that she was denied access to the location typically
used for bargaining sessions. Moreover, Adams does not contend that her
presence would create ill will and render good-faith negotiations impossible,
such that it would be justified in refusing to meet with her. See KSL Claremont,
344 N.L.R.B. at 835.
Adams also argues that liability is inappropriate because Taylor’s
inability to be on-site did not actually hinder bargaining. But a Section 8(a)(5)
violation does not require a showing that the employer absolutely impeded the
bargaining process. In Modern Management, the Board found a Section 8(a)(5)
violation despite evidence that the employer was willing to bargain, and had
bargained, with the former employee as union representative at other locations
than the employer’s facility. The ALJ found that Taylor’s presence as Union
president was of paramount importance to the Union. Prior to her ban from
24
Case: 16-60333 Document: 00514157708 Page: 25 Date Filed: 09/15/2017
No. 16-60333
the Center, bargaining sessions ordinarily took place there. It was undoubtedly
less convenient to hold sessions elsewhere, particularly for any current Center
employees who might wish to participate.
Because there is substantial evidence, i.e., more than “a mere scintilla,”
UNF W., 844 F.3d at 456, supporting the Board’s finding that Adams refused
to bargain in good faith by denying Taylor access to the Center, we affirm.
E. The Board’s Finding that Adams and MJLM Are Joint Employers
Is Supported by Substantial Evidence
Adams and MJLM contest the finding that they are joint employers,
jointly and severally liable for unfair labor practices.
As an initial matter, MJLM spends a significant portion of its brief
arguing that the Board’s purportedly new joint-employer test, announced in
Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (Aug. 27,
2015), is arbitrary and capricious. Whatever the merits of that test may be, it
is not properly before us. The ALJ and the Board relied on the test for joint-
employer status propounded in N.L.R.B. v. Browning-Ferris Industries Inc.,
691 F.2d 1117 (3d Cir. 1982), which we have previously endorsed, see Tex. World
Serv. Co., Inc. v. N.L.R.B., 928 F.2d 1426, 1432 (5th Cir. 1991). Under this test,
joint employers “share or co-determine those matters governing essential terms
and conditions of employment.” Id. (quoting Browning-Ferris Indus. Inc., 691
F.2d at 1124); see also Laerco Transp., 269 N.L.R.B. 324, 325 (1984). “To establish
joint employer status there must be a showing that the employer meaningfully
affects matters relating to the employment relationship such as hiring, firing,
discipline, supervision, and direction.” Laerco Transp., 269 N.L.R.B. at 325.
“Whether a joint employer relationship exists is ‘essentially a factual issue.’”
Tex. World Serv., 928 F.2d at 1432 (quoting Boire v. Greyhound Corp., 376 U.S.
473, 481 (1964)). The relevant time period for assessing joint-employer status
25
Case: 16-60333 Document: 00514157708 Page: 26 Date Filed: 09/15/2017
No. 16-60333
is the period in which the unfair labor practices occurred—here, the transition
period. Id.The ALJ relied on the following facts demonstrating joint-employer
status: (1) Adams and MJLM jointly developed the wage structure for all staffing;
(2) MJLM personnel were involved in the interviewing and hiring process of
Adams’s employees; (3) MJLM exclusively determined the holiday schedule for
all Center employees; (4) MJLM reserved the right to take personnel action
against Adams staff for violation of Center rules or policies; (5) Adams Deputy
Center Director McGillis reported directly to MJLM Center Director Evans;
and (6) Adams shared interview forms, standard operating procedures, and job
descriptions with MJLM during the transition. The Board adopted these
findings in full. It also noted that “MJLM does not contend that it neither knew,
nor should have known, of Adams’ unlawful actions. Nor does it contend that
it took all measures within its power to resist those actions.”
By contrast, the ALJ found that, in general, Adams is solely responsible
for setting the staff schedule for its employees and for ensuring that its staff
meets all hiring criteria required by the DOL; there is no evidence that MJLM
retains authority over hiring, supervision, and direction of Adams employees;
and the two companies have separate benefits packages and disciplinary policies.
On balance, this is a close case for joint-employer liability. Our standard
of review, however, is deferential. We must uphold the Board’s decision if it is
reasonable, even if we might have reached a different conclusion had the matter
been presented to us in the first instance. UNF W., 844 F.3d at 456–57. There
is sufficient evidence in the record to support the Board’s finding.
First, there is the joint development of the wage structure, which MJLM
and Adams submitted in their proposal to the DOL. A significant factor in
determining whether one company has immediate control over another
company’s employees is influence over wages. See Tex. World Serv., 928 F.2d
26Case: 16-60333 Document: 00514157708 Page: 27 Date Filed: 09/15/2017
No. 16-60333
at 1432 (citing Clinton’s Ditch Coop. Co. v. N.L.R.B., 778 F.2d 132, 138 (2d Cir.
1985)). Adams disputes that MJLM had any role in setting wages for Adams
employees. But in an affidavit, which the ALJ credited, Gagnon stated that the
two companies “jointly developed” the wage structure. The ALJ also relied on
the joint proposal to the DOL in finding that the companies jointly developed the
wage structure for all staffing at the Center. The ALJ’s credibility determination
is reasonable.
Second, it is undisputed that MJLM was involved in the hiring process
for Adams employees during the transition period. Influence over hiring
decisions is another significant factor in the joint-employer determination. See,
e.g., id. at 1433; N.L.R.B. v. W. Temp. Servs., Inc., 821 F.2d 1258, 1266 (7th Cir.
1987). MJLM personnel, including MJLM Partner Murphy, conducted interviews
of Adams applicants and made hiring recommendations. During the transition
period, MJLM and Adams also daily reviewed the latest hiring data and open
positions remaining to be filled. These activities are indicative of coordination
in hiring during the relevant period.
Third, in the subcontract agreement between MJLM and Adams, MJLM’s
exclusive determination of the holiday schedule for Center staff is some evidence
of its influence over the terms and conditions of employment for Adams
employees. See Quantum Res. Corp., 305 N.L.R.B. 759, 760–61 (1991). We agree
with Petitioners, however, that the reservation of MJLM’s right to discipline
Adams staff for violation of Center rules and policies is insufficient to establish
a joint-employer finding, absent evidence that the right was ever exercised. See
Am Prop. Holding Corp., 350 N.L.R.B. 998, 1000 (2007) (“In assessing whether
a joint employer relationship exists, the Board does not rely merely on the
existence of such contractual provisions, but rather looks to the actual practice
of the parties.”).
27
Case: 16-60333 Document: 00514157708 Page: 28 Date Filed: 09/15/2017
No. 16-60333
Fourth, the direct reporting structure between McGillis, the highest
ranking Adams representative on site, and Evans, the Center Director, reflects
the reality of the companies’ joint relationship in operating the Center and the
coordination necessary to ensure a seamless operation. The ALJ found that
McGillis and Evans consulted on matters such as students, dormitories, career
and social counseling, and policies of the Center. Similarly, Weldon and MJLM
HR Director Barrett shared an office during the transition and “consulted with
each other on human resources matters.”
Finally, Adams shared interview forms, standard operating procedures,
and job descriptions with MJLM during the transition. Pagni described Adams’s
relationship with MJLM as not only a subcontractor but also a mentor. Adams
operates roughly sixteen Job Corps Centers as the prime contractor. The
Sacramento Jobs Corps Center was Adams’s first experience as a subcontractor.
At the Sacramento Center, the companies decided “to be under the same
umbrella.” Consequently, forms that Adams typically utilized were given to
MJLM to revise and use. This is further evidence supporting the Board’s joint-
employer finding. See Browning-Ferris Indus., 691 F.2d at 1125 (sharing of
forms for record keeping purposes indicative of joint-employer status).
Adams and MJLM rely heavily on two NLRB decisions: Laerco
Transportation, 269 N.L.R.B. 324 (1984), and TLI, Inc., 271 N.L.R.B. 798 (1984).
Both cases involved servicing relationships, in which one company contracted
for labor provided by another. Although the contracting company in each case
exercised some control over the supplier’s labor force, the Board found that the
control was minimal and routine in nature; it did not meaningfully affect the
terms and conditions of employment. See Laerco Transp., 269 N.L.R.B. at 325–
26; TLI, Inc., 271 N.L.R.B. at 799. Petitioners argue that MJLM also exercised
only minimal control of a routine nature over Adams employees and did not
materially affect the terms and conditions of their employment.
28
Case: 16-60333 Document: 00514157708 Page: 29 Date Filed: 09/15/2017
No. 16-60333
Laerco and TLI are distinguishable. None of the aforementioned factors
was present in those cases. The nature of Petitioners’ relationship as prime
contractor and subcontractor jointly operating the Sacramento Center is
different than the customer/supplier relationships at issue in Laerco and TLI.
And the record as a whole demonstrates that the level of control MJLM
exercised over Adams Center employees rose above the minimal showing in
Laerco and TLI. Moreover, MJLM’s influence over Adams employees, including
its participation in the hiring process and the management reporting
structure, is far from routine in nature.
In sum, there is substantial evidence in the record to support the Board’s
joint-employer finding. Under the Board’s precedent, the burden then shifts to
MJLM in seeking to escape liability “to show that it neither knew, nor should
have known, of the reason for the other employer’s action or that, if it knew, it
took all measures within its power to resist the unlawful action.” Capitol EMI
Music, 311 N.L.R.B. 997, 1000 (1993), enforced sub nom. Capitol EMI Music,
Inc. v. N.L.R.B., 23 F.3d 399 (4th Cir. 1994). MJLM has not made this showing.
Accordingly, the Board’s finding of joint liability is appropriate.
IV. CONCLUSION
Because we find that, on the record as a whole, substantial evidence
supports the Board’s findings and conclusions, the Petition for review is
DENIED. The Board’s Cross-Petition for enforcement of its order is GRANTED.
29