under the national labor relations act an employer may be required to relinquish its property rights to allow limited access to its property by its own off duty employees and offsite employees in the present matter however the national labor relations board seeks to compel petitioner trade go windows to provide such legally ban dated employee access to individuals  hire cannot fire the tray co does not direct who are trade go determine any of the wages hours worked in the divisions or other terms and conditions of employment for those individuals to provide the decision in order in this case actually sweeps far more broadly than simply break out in this isolated incident indeed if you follow the logic of the board's decision in order in this case what they're effectively saying is some sixty one that wasn't employees who work for alcoa incorporated or one of its more than three hundred subsidiary companies would have employee access rights at incorporated and trade to windows are a quote unquote single employer over that single employer finding is predicated on in our view nothing more than the common every day interchange and interaction that occurs all the time between a parent corporation and its subsidiaries indeed if on this record alcoa and  employer i would submit that most corporations most parent corporations in their subsidiary corporations in the united states are also single employers think that's the result here and i think that the result is wrong because of two fundamental flaws in the board's decision in order first of all the record evidence in the case simply does not support the finding single employer under the law in this circuit or in any other for that matter or even under the board's own precedent and second the board in this case seeks to apply the single employer construct in a manner in which it is never been applied by any federal court or by the board itself in the eighty years that the national labor relations act has been in existence yet it does so here without extensively so i will try to deal with it as summary fashion as i possibly can finding that the two are a single employer is the exception not the rule that exception to be predicated on the existence of four factors that were in the courts typically referred to in this instance only two of them are a bit italy in play first of which is the control of labor relations by a parent of its subsidiary in this instance the board finds that make only is this that there is nothing in the record and there is no finding by the board that trait that alcoa inc plays any role whatsoever in determining the wages hours working conditions terms or conditions of employment of any employee trait that and similarly there is nothing in the record nor is there any finding that trait though determines the wages hours working conditions or any term or condition of employment for any employee that works for alcoa incorporated i think that that absence of that evidence in the absence of that finding is your honor with respect significant in this case simply because the law in this circuit and in other words and indeed the board's omh precedent suggests that control of labor relations really talks about whether a parent corporation can control all those incidents of of deployment that i just listed for the employees in the subsidiary corporation we know with respect to each and every case that the board is cited for the proposition that the record here shows that alcoa controls the labor relations of trade it in each and every one of the parent corporation controlled the process by which wages hours working conditions for subsidiary employees were determined that's not present here what the board principally relies on do for its conclusion in this case is a single isolated incident occurring back in september of two thousand and eleven in that instance in the union which seek access to trachoma property for the purposes of handling in the alcoa co's attorneys determined that that was not appropriate and so advised the union also consulted with play in davenport iowa so what access to the property of trade though in cranbury pennsylvania at that access was not is on that incident wired if the board predicates the conclusion that alcoa somehow controls the labor relations of trade what about the handbook that says talks and speaks in terms of al nonunion labor force is better for everybody that's true your honor whether that rises to the level of in the context of a war in it and circuit precedent of controlling labor relations i think is is is a bridge pretty far that alcoa would this statement with respect to the unions in any hamburg is is is something that is protected by the national labor relations and and there is nothing that suggests that out of it they trade co it's not free to conduct its labor relations with its own employees or with any union that they might have in any manner that they see fit but then i've often said that the the hammock direct employees to report any violations of standards to alcoa's general complement that's correct does it in other words any good there are ethical norms that alcoa applies to all its subsidiaries to the conduct of business by all of its subsidiaries and if in fact there are a transgressions that anybody who works in any of the subsidiaries that sees it with respect to the to be ethical norms that elko insists upon yes there is a procedure for employees to report that is in fact controlling labor relations i don't believe so you are not well i believe that what this circuit has said if you take a look for example at oak tree capital the most recent case out of this circuit what what we look at in terms of whether or not labor relations are controlled is the grist of the employment relationship who decides what people get paid who decides if they get hired who decides what their vacation is who decides what their benefits are not is there a process by which employees can report violations to a parent corporation of ethical standards that the parent corporation may problem get to protect its brain the incident of september is really nothing more than alcoa attempting to control the behavior of alcoa employees and not no no one ploy access to its own property no employee of trade was denied the opportunity to handle the only thing that resulted out of the interchange in september of two thousand and eleven employees were not permitted on the property of trade who made that decision well the the board i think makes a leap that that decision was made by alcoa and in fact alcoa communicated to the union interview that they did not have the right to be on that property they then consulted with  and made that opinion known to the management of the a subsidiary now the board concludes that that that that demonstrates that alcoa made the judgment i would suggest that there's no real evidence of th on the record or no persuasive evidence on the record as to who made the final call it was really a consultation was an idea employed telling our manager and whoever was the lawyer telling management in the subsidiary that their position was that alcoa employees didn't have that right now that's not to say that in the record does indicate that tray co is free to take advice or not take advice from alcoa's attorneys is there any evidence that they rejected  but again i would return for a moment to the to the labor relations piece and simply point to the fact that in every case from oak tree royal typewriter co van to penn t gee institute in every one of them the control of labor relations piece is predicated on the fact that the parent company regulated the process by which the wages hours and working conditions of the subsidiaries of employees were arrived at that's a fact not present here at all let me just quickly shift for one moment to the second argument and that is that as i said never before in the eighty years of the national labor relations act has the board ever tried to apply the single employer construct to grant property rights to individuals who are not the statutory employees of a given employer now the problem is that the board has articulated for this court no reason why it's appropriate to use the single employer construct in this particular way in this case i submit to you that it isn't the only only thing that the board refers to is a secondary boycott case or i would suggest that the underlying statutory  that analysis in a secondary boycott case are vastly different than they are in an access case and access case i might a second rate wipe out case where as a balancing of the rights the property rights of the employer with the section seven rights of the employees there's no balancing at all in this case the board merely concluded that there were a single employer therefore that's the same thing as if it's the same ploy never said that before and there's no basis for them to say here and now labor relations as this court said in oak tree which is a case that the company has drawn to the court's attention today the fundamental inquiry is whether there exists overall control of critical matters at the policy level and i would submit to this court that that fundamental showing has been made on the evidence in this case specifically trade goes handbook imposes alcoa's position on unions it imposes al business conduct policies it instructs employees to report infractions to alcoa's general counsel trade goes safety video imposes alcoa's safety rules alcoa also imposed it's very obvious anti union stance on trade go in this case and the judge in the board reasonably viewed all of the evidence and most of it by the way was provided by the industrial relations director kevin o'brien and that evidence shows that alcoa has a policy of union avoidance and essentially at every turn it impose that policy on trade goes so you see that in the events of september seventh and eighth two thousand and eleven you also see it before that when alcoa was industrial relations director instructed trade goes human resource manager on how to handle union literature that was discovered at the facility you see it in the period shortly after the handling incident in this case when alcoa provided materials on union avoidance for presentation by trade go managers at a town hall meeting you see it in the fact that out coa trained to treat those managers for roughly six hours on union avoidance which is alcoa's policy so there is a great deal of evidence of control by the parent corporation to the wages and the salary is that of a key issue i would say no your honor and the reason for that is as follows in the single employer analysis and the statement i just quoted identifies this the issue is not day to day control of matters that the issue is critical control of paul excuse me control of critical matters at the policy level at your best cases that's factually simone that does not go off on control of wage not a king i want to what's the closest one name one or three that do not go off on wages benefits that sort of thing and go off on something more like this i think pathology institute i think  typewriter spirally no materials those are three very good cases that emphasize that especially royal typewriter that control of day to day matters is not determinative in this area if you had for example a joint employer and i was determined what is determined in those cases in those cases it is again control of critical matters of the policy level were the facts so in royal typewriter for example the parent company in that case controlled labor relations in terms of negotiating with unions for the subsidiary company and so in this case we don't have an established collective bargaining relationship so when you look at labor relations as relevant in this case there is no there is no case that involves these facts many of the cases involve mature or established collective bargaining relationships so they are different on their facts but in this case the critical issue is what is the labor relations policy that alcoa imposed on trick oh and it is this policy of union avoidance and that is the comparative or that i think exists between this case and the other cases that's the only government to control that you have regulations well it's also for labor relations yes but there's also as i said other aspects of control there's imposition of rules safety rules business conduct policies i mean alcoa is very involved in setting policy schenn early for this trade go facility and so all of that is relevant to the single employer analysis and the company suggests that what the board has didn't wouldn't you think that safety rules and ethical conduct would be pretty much the same regardless of industry wide regardless of ownership i mean i don't think you can say that from this record your honor i mean we have to look at what is in the record the company is submitting based on no evidence that what it has done in terms of its relationship with its subsidiary in this case is just standard industry practice but we have no evidence to evaluate that  ethical conduct then having common accountants and so on you see where i'm headed mean that that's the sort of thing that you would expect to be consistent company wide and it makes total sense to have common a single provider for those sorts of things for an economic standpoint it doesn't seem to me to be controlling lybrel ations but that is i will say first of all that is just one of the sort of cluster of factors that the board took into account there were facts relating to control which i recited and then there are facts relating to just integration and lack of arm's length relationship so i think what your honor is referring to is the separate evidence that it does not actually that shouldn't be factored into it because every global company has those sorts of organizations the board i think the board looked at this from the perspective of of precedent and under  royal typewriter cardio data systems these are cases where there were centralized services and that was for light upon as one factor to show integration of the operation it's not that those factors were decisive but they were relevant in determining whether the two entities are the two or three or four in the case of royal typewriter or a single integrated business enterprise what's also relevant in this case in terms of the centralized services your honor is the fact that alcoa did not charge for some of the services that were being provided that is very probative of lack of which i'm willing excuse me which services so for example when the industrial relations department consulted with trade go over the phone there was kevin o'brien testify that there was no charge for that kind of service for any money for the advice correct for the advice provided over the phone or of your honor would yes the board would call it direction and guidance because again alcoa is imposing its policies on tray co so those services were provided free of charge and in general i will say all of the charged quote unquote charged by intercounty company accounting charges which were applied by alcoa was accounting department to the books that it kept for again that every company in the states government for that matter knows that i mean that doesn't seem to me well your honor the the board relied on a series of cases full of parties or leno materials royal typewriter cardio data systems all of those cases involved a finding of a non arm's length relationship between a parent and a subsidy just you can cut checks back and forth that there's no material difference if that's true you honor and if they were cutting checks back and forth that would be an entirely different situation here what i think is critical from the board's perspective is the alcoa accounting depart there is no trick of accounting department al accounting department applied these charges to books that it kept for trey co that is not an arm's length relationship in the board's view and so that was according to the board that was a very relevant piece of information expensive for the not going to pay it or just automatically double that is what it appears what the situation appears to be from this record your honor and that and the board looked at all of the evidence and drew reasonable inferences from the evidence in terms of integrations as judge oh and has expressed some interest in that i will also say for a period of about a year there was no trade go job applications so job applicants applied on an alcoa application that made no reference to trade whatsoever they are repeated references to the trade go facility as alcoa trade go in the safety video that is in the record there were repeated references to alcoa period of coa in the trade go employee handbook so all of these pieces of evidence the board looked at and considered to be highly relevant on integration of operations and also if the evidence also went to control as i've said once the board reviewed all of this evidence and found that on the preponderance of the evidence that al a single integrated emperor and enterprise it determined that they are an employer for purposes of the act and then the board just proceeded to apply the act as it normally would to an employer and this is where the board access finding comes into play because alcoa and tray co are a single employer for the for purposes of the act alcoa employees are offsite employees in relation to the troika facility and under well settled board law that has been approved by several courts offsite employees have a limited right of property access to the exterior non production areas  facility that is under the control of their employer so all the board did was apply that very straightforward rule in this case and the company claims that the board has opened the floodgates essentially to having to basically tolerate access rights at all of its subsidiaries for any employee from any subsidiary or from alcoa and that's simply not the case the board's finding is very much tailored to the facts in the record about alcoa and tray co only this this decision has nothing to do with any of the other subsidiaries of alcoa and for all we know they may have a very different more formal relationship with their parent company so this decision only applies to these two entities and the trick of facility it really does not go any further to the sixty one thousand other employees that al has so the board's admits that this is not a sweeping decision at any time if the tray co managers on site feel that it would compromise safety or any other legitimate concern to have offsite employees on their property they can present that justification and if it's legitimate they can bar access so this is not at all is sweeping policy the board has and acted it's simply the hill haven policy that has been on comments about the scope of this case alleges that is sixty one thousand employees three hundred subsidiaries i want to call us back to lusk which which centralizes the question on the precise issue at hand l seven seventy seven says that whether the parent corporation was a final decision maker in connection with the employment matters underlying the litigation so here the handling the off site employees access than all four of factors are examined only as they bear on this precise issue this is accurate in royal typewriter which says that the single employer which found a single employer status where the parent company showed sufficient participation in unfair labor practices as to require it to remedy remedy them with the board is seeking to do is hold the parties responsible for the violation of the national labor relations act to hold them responsible and require them to participate in the remedy so it's not so much and mashing a neutral distant isolated employer it's looking at who was an active participant in the decision here the active participant was o'brian with the phone is an attorney i think it would be different if o'brien after receiving the phone call from the union instead of consulting his attorneys calling the union back with his decision if instead he had received the phone call and then called trey co and said hey or that this is going to happen and then trigger would have had the opportunity to exert its control over labor relations and say oh we don't know what to do can you give us some advice about that that would have made it more difficult to prove who the critical relations which is what alcoa is saying trachoma hass what o'brien did instead was take away trade was opportunity to make this decision and he made the decision that the alcoa in compliance wouldn't be allowed on to trickle property although as alcoa employees and alcoa makes the argument that he was seeking to control alcoa employees so if they had misbehaved or in some way not acted properly while handling entre co property presumably they would have been open to alcoa discipline so i think the looking out coal is allegations about the scope of this decision why are we even looking at these other employer situation i apologize for that i'm just focusing on it because i think it's a critical issue but i think as the other cases show us that context is also important what the four factors you look at common own ownership you look at common management you look at interrelation of operations you look at centralize control labor relations if we only had the phone call it would also be a difficult case because the rest of the four of four factors would be lacking here in addition to the phone call which is what bears on this precise issue of that offsite employee access we also have alcoa's union avoidance policy which i think is part of labor relations because even though it's not wages hours and terms and conditions of employment although i think requiring them to report to the general council determine condition of employment surely it hearings to the national labor relations act is in compassed and labor relations and surely alcoa ink's employees and that the union avoidance posse to make sure that it doesn't violate the national labor relations act so i think the other facts that we have here shed light on the context but we're looking at this precise issue of the handling that occurred on september eighth we're looking at who made the decision and it was o'brian it was enforced by o'brien on a phone call when the handling was incurred was occurring he said he he told the union's attorney his position not true goes position let me if i may just briefly address the us to counsel for the general counsel to indicate a couple of cases that the board presumed to be controlling here one of them was sport lino  me briefly note that in spring lino involved two companies that were owned by the same person two or man who both who manage both the companies who had the authority to determine all the incidents of employment for the employees of both of the companies who protest was who conducted the collective bargaining negotiations in both companies both of the companies provide want to be exactly the same work to use exactly the same company name and shared a common website there was a significant history in both cases that the board notes of permanent and temporary interchange between the two companies without benefit of any application process and there was continuously day to day contact and coordination of work between the two companies they regularly shifted funds between one another made loans and advances to each other without agreements without interest or the out terms and they paid each other's bills and received combining invoices from third party vendors that is in no way even close to the relationship between  there is no evidence that on a temporary or permanent basis they interchanging ploy ease they have no shared equipment no shared space no shared accounts there's no evidence that they perform the same work but they produce the same products and what you said no shared account is there affirmative evidence that they have separate bank accounts yes that there is no evidence that they are part of an integrated production process and no evidence of any proposition that they these individuals should be or these two companies should be considered a single employer it's frankly escapes me as to what the factual similarities are the same is true by the way of the oil typewriter and while typewriter the eight circuit specifically says that the reason why they should be considered a single employer is because of the litany industries participated in and had over unquote clout in the labor negotiations between whale typewriter and the union that represented them in other words little industries was the prime mover in the very process  poor so neither one of those cases stands for the proposition which the counsel for the general counsel has indicated that it does to return to to the question of the fact that there happen to be standardized safety policies or ethics policies heavens those requirements are external to the company osha has safety standards and so it's not unusual for a parent corporation to indicate to its subsidiaries that these are the legally required steps that you're supposed to take with respect to be cheering the safety of the planes that work in the facility we come back to the anti union well a couple of things first of all there is nothing in the record the only evidence in the record is that tray co was free to accept or to reject the advice and counsel that it might have received from alcoa there is nothing that suggests that trachoma was rock wired to promulgated the handbook or to establish any particular policy there's just no evidence in the record of that the fact that they did it is a matter of surmise why they did they could have reached that conclusion by themselves but absent that affirmative evidence even that is not persuasive of the fact that