Alcoa, Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 22 February 2017
• Docket Number: No. 15-60848,15-60848
• Citation: 849 F.3d 250
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

849 F.3d 250

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.

No. 15-60848

United States Court of Appeals, Fifth Circuit.

Filed February 22, 2017

Brian Hayes, Esq., Ogletree Deakins, P.C., Washington, DC, Thomas Alfred Smock, Esq., Ogletree Deakins, P.C., Pittsburgh, PA, for Petitioners Cross–Respondents.

Linda Dreeben, Esq., Deputy Associate General Counsel, Julie Brock Broido, Supervisory Attorney, Milakshmi Varuni Rajapakse, Esq., National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, Martha Elaine Kinard, Esq., Director, National Labor Relations Board, Fort Worth, TX, for Respondent Cross–Petitioner.

Mariana Padias, Keren Wheeler, Assistant General Counsels, Daniel M. Kovalik, Esq., Associate General Counsel, United Steelworkers of America, Pittsburgh, PA, for Intervenor United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL–CIO, CLC.

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 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 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.

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 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, 98 S.Ct. 2463, 57 L.Ed.2d 370 (1978) (quoting Republic Aviation Corp. v. NLRB , 324 U.S. 793, 798, 65 S.Ct. 982, 89 L.Ed. 1372 (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, 110 S.Ct. 1542, 108 L.Ed.2d 801 (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, 110 S.Ct. 1542 ). 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, 71 S.Ct. 456, 95 L.Ed. 456 (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 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....