Alcoa, Inc. v. National Labor Relations Board

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

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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

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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.

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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.

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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

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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.

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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

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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.

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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

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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.

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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 NLRB 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.

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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”).

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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

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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.

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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

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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

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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.

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