### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-60749

OAKTREE CAPITAL MANAGEMENT, L.P.; TBR PROPERTY, L.L.C., doing business as Turtle Bay Resorts; BENCHMARK HOSPITALITY, INC., Petitioners - Cross-Respondents
v. NATIONAL LABOR RELATIONS BOARD, Respondent - Cross-Petitioner

Petition for Review and Cross Petition for Enforcement of an Order of the National Labor Relations Board

Before JONES, Chief Judge, and BARKSDALE and GRAVES, Circuit Judges. PER CURIAM: * Oaktree Capital Management, L.P. (formerly L.L.C.), T BR Property, L.L.C., doing business as Turtle Bay Resorts, and Benchmark Hospitality, Inc., challenge the National Labor Relations Board’s (NLRB or the Board) affirming

an administrative law judge’s (ALJ) decision in favor of the NLRB. NLRB seeks order enforcement. At issue are the Board’s findings t h a t : O aktree and TBR constitute a single employer for pur p oses of the National Labor Relations Act (NLRA), 29 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 2 6, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-60749 Document: 00511613704 Page: 1 Date Filed: 09/26/2011No. 10-60749

U.S.C. §§ 151-69; and petitioners engaged in unfair labor practices regarding Union representatives’ access to, and collection of dues at, the Turtle Bay Hotel and Resort (the Resort), in violation of NLRA § 8(a)(1), 29 U.S.C. § 1 5 8 ( a) (1) (un f a ir labor practice “to interfere with, restrain, or coerce employees in the exercise of the rights [to engage in or refrain from self-organization, to form, join,

or assist labor organizations, and to bargain co l l e ctively]”), and § 8(a)(5), 29 U.S.C. § 158(a)(5) (unfair l ab or practice “to refuse to bargain collectively with the representatives of employees”). PETITION FOR REVIEW DENIED; BOARD’S ORDER ENFORCED. I. The Resort is located in Kahuku, Hawaii, on the island of Oahu. UNITE HERE! Local 5 (the Union), repres e n t i n g approximately 360 employees at the Resort, claimed petitioners engaged in unfair labor p r a c tices arising from the Union’s campaign, during February 2004 through September 2005, to obtain a
new collective bargaining agreement (CBA). The prior CBA had either expired

or been termi n a t e d ( e n ded) on 25 November 2003. The parties agree that the CBA’s access provision survived and was in effect while a n ew CBA was being negotiated. The NLRB charged: Oaktree and TBR constituted a single employer for
purposes of the NLRA; and petitioners violated NLRA § 8(a)(1) and (5) by, inter

a l i a , r e stricting Union representatives’ access to the Resort on 14 and 18 February 2004, and prohibiting them from collecting dues at the Resort. Only these three claims are at issue. During all tim e s relevant to this proceeding, Oaktree was a California limited liability company (L.L.C.). I t became a limited partnership (L.P.) in 2007. Oaktree was either the general partner or investment manager for sever al investment funds, three being: Oak t r e e C a pital Management Real Estate Opportunities Fund A, L.P.; Oaktree Capital Management Real Estate Opportunities Fund B, L.P.; and Gryphon Domestic VII, L.L.C. (collectively, the
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Funds). In 2000, Oaktree, on behalf of the Funds, purchased entities that owned Kuilima Resort Company (Kuilima), which had, with its predecessor in interest, Kuilima Development Company, owned the Resort. Oaktree retained Kuilima as part of the Resort’s ownership structure. In August 2001, TBR, a newly created Kuilima subsidiary, le a sed the Resort from Kuilima. That September, TBR contracted with Benchmark to manage the Resort. Those working at the Resort, howeve r, are not solely Benchmark employees—Benchmark employees manage other employees at the Resort. In that regard, unchallenged here is the Board’s finding that TBR and Benchmark

are joint employers. On the other hand, at issue is whether, for purposes of the NLRA, R esort employees are employed by Oaktree and TBR, as a single employer, or only by TBR. As n o t e d , the CBA ended on 25 November 2003. Negotiations for a new CBA were ongoing in 2004 when the charged unfair labor practices occurred. On 12 February 2004, while a wedding was taking pla c e at the Resort, Union representatives a n d R e s o r t employees held a rally on a public beach adjacent to the Resort. The rally was held to demonstrate support for the CBA

n e go tiations. Wedding guests confronted the group and asked it to di s p e r s e because the wedding was bei n g di s r u p ted. After the group declined, Resort security evicted its members and called the police. Shortly thereafter, on 14 and 18 February, Union representatives were at the Resort to conduct normal Union business. They were issued trespass notices and directed to leave the premises. That April, the practice of deducting Union d ues from employees’ paychecks was ended. Th a t May, Union representatives were informed that they were prohibited from collecting Union dues at the Resort from employees. In 2006, after extensive hearings in 2 0 0 5 , the ALJ ruled, inter alia : Oaktree and TBR cons titut e d a single employer, based on finding, inter alia , that
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Oaktree “acquired ownership and control of Turtle Bay Resort in 2000”; and petitioners violated NLRA § 8(a)(1) and (5) , b y r e s tricting Union representatives’

access to the Resort on 12 and 14 February 2004 and by prohibiting them from collecting Uni o n dues at the Resort. Oaktree Capital Mgmt., L.L.C. , 353 N.L.R.B. No. 127 , a t *9, *17-21, *27-29, *31, *60-67, *86-87 (2009). In 2009, a B o ar d two - m e mber panel affirmed the ALJ’s decision, and the petition and cro s s petition were filed here. Our court remanded in the light of New Process Steel, L.P. v. NLRB , 130 S. Ct. 2635, 2644-45 (2010) (holding Board panels must consist of three or more members). Oaktree Capital Mgmt., L.P. v. NLRB , No. 09-60327 (5th Cir. 7 J u ly 2 010) (order granting NLRB’s unopposed motion to remand). In 2010, a Board three-member panel affirmed the ALJ’s decision and incorporated the Board’s 2009 decision. See Oaktree Capital Mgmt., L.L.C. , 355 N.L.R.B. No. 147, at *1 (2010). Through a brief decision and order, that 2009 decision affirmed the ALJ’s 78-page rulings, findings, a n d c onclusions, adopted a modified version of the ALJ ’ s r e commended order, attached the ALJ’s decision, and, for the reasons stated by the ALJ, ruled, inter alia : Oaktree and TBR constitute d a single employer; petitioners violated NLRA § 8(a)(1) on 12 a n d 14 February 2004, by informing Union representatives t h a t t h ey were trespassing, contrary to their contractually-established right of access, issuing trespas s n o t ices to them, evicting them from the Re s ort , an d s u m m o nin g l aw enforcement to remove them; and petitioners violated NLRA § 8(a)(5) by unilaterally ch a nging CBA access provisions. Oaktree Capital Mgmt. , 353 N.L.R.B. No. 127 at *1-5 & nn.5 -6. II. At issue are: the single-employer finding (Oaktree and TBR join t l y a nd

sever a l l y liable for remedying unfair labor practices at the Resort), contested only by Oaktree; and some of the findings on claimed N L RA § 8(a)(1) and (5) violatio n s , r egarding Union representatives’ access to, and dues collection at, the Resort, contested by all petitioners. NLRB cross petitions for enforcement of the
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Board’s order. See Raven Servs. Corp

. v . N LRB , 315 F.3d 499, 509 (5th Cir. 2002) (NLRB order must be enforced by federal court to carry effect of law). Our review is of the Board’s decision, which, inter alia , affirmed the ALJ’s rulings, findings, and conclusions. See, e.g. , J. Vallery Elec., Inc. v. NLRB , 337 F .3d 446, 449-50 (5th Cir. 2003). The Board’s findings of fact, an d i t s applications of law to those facts, are reviewed for substantial evidence; its legal conclusions, de novo , and accorded deference if they are reasonably based in the law and not in c o n s i s t e n t with the NLRA. E.g. , Sara Lee Bakery Grp., Inc. v. NLRB , 514 F.3d 422, 428 (5th Cir. 2008); Tellepsen Pipeline Servs. v. NLRB , 320 F.3d 554, 559 (5th Cir. 2003); s e e also 29 U.S.C. § 160(f) (“the findings of the Board with respect to questions of fact if supported by substantial evidenc e on the record c o n s idered as a whole shall in like manner be conclusive”).

“ Substantial evidence” is “such relevant evidence as a reasonable mind wo u l d accept to support a conclusion”. Sara Lee Bakery , 514 F.3d at 428 (citation and internal quotation marks omitted). In other words, under the substantial-evidence standard, the record is reviewed as a whole, and the Board’s findings of fact, along with its application of law to those f

a c t s , “ m u s t be upheld if a reasonable person could have found what [i t] f

o u nd, even if the appellate court might have reached a different conclusion had the matter been presented to it in the first instance”. Valmont Indus., Inc. v. NLRB , 244 F.3d 454, 463 (5th Cir. 200 1) (citation and internal quotation marks omitted); e.g. , Tellepsen Pipeline , 320 F

. 3 d a t 559. “In determining whether the Board’s factual findings are supported by the record,

we do not make credibility determinations or reweigh the evidence.” NLRB v. Allied Aviation Fueling of Dallas, L.P. , 490 F.3d 37 4 , 378 (5th Cir. 2007) (citation omitted). Therefore, under this standard of review, “the possibility of drawing two inconsistent conclusions from the evidence does not preve n t an administrative agency’s finding from being supported by substantial evidence”. Consolo v. Fed. Mar. Comm’n , 383 U.S. 607, 620 (1966).
5 Case: 10-60749 Document: 00511613704 Page: 5 Date Filed: 09/26/2011No. 10-60749 A. Before reaching the three issues raised in the petition, we address NLRB’s contention that it is entitled to summary enforcement of the Board’s uncontested findings. “Case law has established that when an employer does not challenge

a finding of the Board, the unchallenged issue is waived [in our court], entitling [NLRB] to summary enforcement.” Sara Lee Bakery , 514 F.3d at 429 (citing NLRB v. Brookshire Grocery Co. , 919 F.2d 359, 363 n.2 (5th Cir. 1 990)). As noted, challenged are only the Board’s findings regarding: the singleemployer determination; an d cl ai m e d NLRA § 8 (a) ( 1 ) and (5) violations involving Union access to, and dues collection at, the Resort. Because petitioners do not contest findings regarding the numerous other unfair labor practices addressed in t h e B o a rd’s order, NLRB is entitled to summary enforcement of those findings. See Oaktree Capital Mgmt. , 353 N.L.R.B. No. 1 2 7 a t * 2-5 (e.g. , maintaining overly broad rules t h a t prohibit employees from soliciting or distributing literature in nonwork areas and duri n g nonwork time; following Union representativ e s , eavesdropping on their conversations with employees, and videotaping or photographing them engaged in peaceful demonstrations; preventing them and employees f r o m accessing public beaches adjacent to the Resort; threatening to close the Resort in retaliation for protected activity, such

as demonstrations and boycotts; and failing or refusing to bargain in good faith with the Union, by failing to provide requested information). B. Regarding the Board’s finding that Oaktree and TBR constituted a single

e m p loyer, at issue is whether Oaktree is sufficiently connected to TBR so that Oaktree is jointly and severally l i ab l e w i t h TBR, as a single employer, for remedying unfair labor practices. See, e.g. , Vance v. NLRB , 71 F.3d 486, 488-89, 494-95 (4th Cir. 1995) (companies found to be single employer held jointly and severally liable for remedying claimed unfair labor practices); Apex Elec. Servs., Inc. , 356 N.L.R.B. No. 172, at *2 (2011) (same); Summit Express, Inc. , 350
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N.L.R.B. 592, 596-97 (2007) (same). The objective is to ensure that the Board’s decision and order are binding on the entity or entities r e s p o nsible for controlling labor relations at the Resort. As noted supra , petitioners do not contest the finding that Benchmark and TBR constit u t e a joint employer. At issue is whether Oaktree is part of that joint employment. The ALJ found that TBR was “a shell cor p o r a t i o n with no purpose other than to provide insulation to Kuilima and Oaktree from TBR[’s]

. . . selection of Benchmark as the operator and manager of the resort”. Oaktree Capital Mgmt. , 353 N.L.R.B. No. 127 at *11. For the reasons discussed below, substantial evidence s u p p orts the single-employer finding. See, e.g. , NLRB v. DMR Corp. , 699 F.2d 788, 791 ( 5 t h C ir. 1983) (single-employer determination is primarily factual and reviewed under substantial-evidence standard).

“ Single employer status ultimately depen d s o n ‘ all th e circu m s t anc e s of th e case’ and is characterized as an absence of an ‘arm’s length relationship found among unintegrated companies.’” Id. at 791 ( quoting Local 627, I nt’l Union of Operating Eng’rs v . N LRB , 518 F.2d 1040, 1045-46 (D.C. Cir. 1975)); see, e.g. , Covanta Energy Corp. , 356 N.L.R.B. No. 98, at *35 ( 2 0 1 1 ) (absence of arm’s length rel a t i o nship is hallmark of single employer). Whether two or more entities are sufficiently integrated to be deemed a single employer is determined by analyzing the following factors: (1) common ownership or financial control; (2) common m a nagement; (3) centralized control of labor relations; and (4) interrelation of operations. Radio & Television Broad. Technicians Local Union 1264 v. Broad. Serv. of Mobile, Inc. , 380 U.S. 255, 256 (1965); DMR Corp. , 699 F.2d at 790-91; Carnival Carting, Inc. , 355 N.L.R.B. No. 51, at *6-8 (2010). “[N]o

one of these factors is controlling, nor need all criteria be present”. DMR Corp. , 699 F.2d at 791. “A single-employer analysis is appropriate where two ongoing businesses are coordinated by a common master.” Covanta Energy Corp. , 3 5 6 N.L.R.B. No. 98 at *34 (citations omitted). For this analysis, “the fundamental

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inquiry is whether there exi s t s overall control of critical matters at the policy level”. Id. (citation and internal quotation marks omitted). “The Board has held that the factors of common control o v er labor relatio n s , co m m o n m an a ge m e nt , an d int errelation of operations are more critical than the factor of common ownership or financial control, and that centralized control of labor relations is of particular importance bec a u s e it tends to demonstrate operational inte gr atio n .” Id. at *35 (citation and internal quotation marks omitted). In any event, substantial evidence su pports all four singleemployer criteria being present. The dissent takes issue w i th t h e NLRB, rather than this opinion, for, in the dissent’s view, appl yi n g the single-employer theory to Oaktree “when no labor law policy is advanced”. Dissent at 9. As demonstrated below, that is not the case. In any even t , t he dissent never attempts to come to grips with our above-discussed, controlling standard of review: whether substantial evidence supports the single-employer finding. As also demonstrated below, it does. In replying to this opinion’s noting this fundamental failure by th e di s s e n t, it justifies, as a matter of law, not applying the substantial-evidence standard by maintaining: “as applied to th i s case, the single employer theory itself is unjustifiable”. Id . at 1 n.1. This point of law, however, was not raised here by Oaktree; accordingly, we can not consider it. Alternatively, even if an extremely strained reading of Oaktree’s opening brief so much as suggests that point of law, it was not adequately briefed by Oaktree and is, of course, waived. Finally, in the further alternative, even if that point of law can be considered, it fails for the reasons discussed below. Simply put, the extensive record reflects, i n te r a l ia , that Oaktree, an asset manager in addition to being an investment manager or financial adviser, was far more involved in management of the Resort, including labor relations, than the dissent recognizes.

8 Case: 10-60749 Document: 00511613704 Page: 8 Date Filed: 09/26/2011No. 10-60749 1. Regarding common ownership or financial control, Oaktree contends that, in 1998, the Funds purchased entities that collectively owned the Resort. On the other hand, the NLRB contends that Oaktree purchased the Resort in 2000 from

a Japanese corporation. It is not clear whether Oaktree directly owned the Resort. Substantial evidence, however, supports the finding that Oaktree initially pu r c h a s ed the Resort on behalf of the Funds and participated significantly in its financial control, as discussed infra

. At the hearing before the ALJ, Oaktree’s custodian of records and senior vice president, legal, Marc Porosoff, testified: the Resort is owned by Kuilima,

a Hawaii general partnership; Kuilima has two general partners, one of which—Turtle Bay Holding, L.L.C.—is a “99 percent general partner”, and the other—A.J. Plaza Hawaii Company, Limited—is wholly own e d b y Turtle Bay A.J. Plaza, L.L.C.; there are three members of Turtle Bay Holding, L.L.C., and Turtle Bay A.J. Plaza, L

. L

. C

. ; those three members are the Funds, with OCM Real Estate Opportunities Fund A, L.P., ownin g 2 8%, OCM Real Estate Opportunities Fund B, L.P., 68%, and Gryphon Domestic VII, L

. L

. C

. , 4%; Oaktree is the general partner for OCM Real Estate Opportunities Funds A and B and the investment m a n a g e r for Gryphon Domestic VII; TBR, Kuilima’s wholly-owned subsidiary, leases the Resort from Kuilima; and TBR entered into

a management agreement with Benchmark to operate the Resort “on a day-today basis”. Oaktree’s brief for the ALJ, filed here via motion granted by our court, however, reflects that Oaktree, directly or indirectly through th e Funds, purchased the Resort from a Japanese corporation in 2000. That brief states: “[that Japanese corporation] was unable to invest in Turtle Bay’s upkee p and, in 2000, sold the resort to Oaktree Capital Management, LLC, a n asset and investment manager”. (Emphasis added.) Further, Benchmark’s staff handbook lists Oaktree as the Resort owner and notes that Oaktree purchased the Resort
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in 2000. The ALJ found: “Oaktree owns the owner of Kuilima, which, in turn, owns TBR . . . .” Oaktree Capital Mgmt. , 353 N.L.R.B. No. 127 at *12. Accordingly, substantial evidence supports the finding that Oaktree purchased the Resort as an investment for the Funds. Substantial evidence also shows that, since 2000, Oaktree has invested $50 million to renovate the Resort and has created or purchased various other entities and pl a c e d t h em in the ownership chain between itself and the Resort. As noted, it is not clear whether Oaktree itself owned the Resort; however, ownership is relatively unimportant in the light of substantial record evidence, di s c u s s e d below, that Oaktree maintained ultimate control over the Resort, including its labor relations. 2. Regarding common management, substantial evidence supports the finding that it exists for Oaktree and TBR. Russell Bernard, who did not testify,

was a m e mb e r and principal of Oaktree, as well as the portfolio manager for Oaktree’s real-estate funds, including OCM Real Estate Opportunities Funds A and B. Bernard was also the president of TBR. In addition to being Oaktree’s senior vice president, legal, Porosoff was TBR’s vice president and treasurer. Oaktree provided Porosoff, as its custodian of records, to testify on its behalf. Notably, at the hearing before the ALJ, when asked his positions with TBR, Porosoff responded: “I believe I’m a vice president of TBR

. . . . I may also be the treasurer of TBR

. . . but I would have to see the operating agreement to be sure”. (Emphasis ad d e d

. ) P orosoff stated he “believed” he had been a n officer with TBR since it was formed, which he “believed” was in “2001, probably August or September . . . . ” When questioned about a chart his office had created, that was provided t o t h e ALJ to assist in explaining the Resort’s ownership structure, Poros o f f testified: “We create organizational charts for different assets that we manage”. (Emphasis added.) When asked who he meant by “we”, he answered: “Oaktree. Oaktree is an investment manager and an asset manager”. (Emphasis added.)
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Additionally, Porosoff reiterated that Oaktree manages “assets”. Substantial evidence shows that the Resort was an asset, and that Oaktree, as its manager,
was the e n t i t y t h at had to be consulted before any significant decisions were made at the Resort, as discussed infra

. Stephanie Schulman serv e d a s Oaktree in-house counsel and TBR vice president and secretary. Along that line, there is no record evidence that TBR “ha[d] any officers, managers, or principal s o t h e r than [those] of Oaktree”. Oaktree Capital Mgmt. , 353 N.L.R.B. No. 127 at *12. Furth er , altho u gh H y Adel man did not testify, Nancy R a m o s , B e nch m ark’ s director of human r e sources, testified that Adelman was “a representative of Oaktree” and had an offi c e o n t h e Resort’s grounds. Abid Butt, Benchmark’s vi c e p r esident and general manager, testified: Adelman was an Oaktree employee; he had an office on the Resort’s grounds; and Butt met with Adelman in Adelman’s capacity as the “owner representative”. When asked if that “owner representative” was Oakt r e e , B utt testified: “[Adelman is] the person responsible for the overall resort

. . . .” On the other hand, Porosoff testified that he believed Adelman worked for Kuilima and was not an Oaktree employee. On at least one occasion, Adelman signed a housekeeping supply agreement as “general manager” on behalf of “owner/representative”. Oaktree does not dispute that i t s h ared common managers with TBR. Instead, it relies on Lusk v. FoxMeyer Health Corporation , 129 F.3d 773, 779-80 (5th Cir. 1997), for the rule that individuals with roles in the paren t a nd a subsidiary company m a y wear multiple hats, discharging responsibilities to

m ore than one entity. Lusk ruled, however, under de novo review, tha t t h e r e
was no single employer because appel l a n t s h a d failed to point to any evidence demonstrating that officers holding positions with both the parent and subsidiary were acting in their capacity a s officers of the parent when they engaged in alleged discriminatory conduct. Id. at 776, 779-81 (“appellants point

us to no evidence that these t h r e e [officers] ever sought approval from or even
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consult e d a nyone else in the [parent] organization”). As demonstrated infra , substantial evidence supports the finding that Bernard was acting on Oaktree’s behalf in controlling the Resort’s labor relations. 3. Regarding centralized control of labor relatio n s , s ubstantial evidence supports the finding that Oaktree, through Bernard, controlled those relations and negotiations between the Resort and the Union. As noted, the underlying incidents began in February 2004. Earlier, by a 24 April 2003 letter on Oaktree letterhead, addressed “Dear Partner” and signed Oaktree “principal”, Bernard discussed, inter alia , labor negotiations with the Union:

You may have recently received correspondence from Local 5, the union representing

. . . employees a t our Turtle Bay Resort. I am writing to giv e you some background. . . . The stated purpose of Local 5’s letter is to express its concern regardi n g t he pace of negotiations for a new contr a c t w ith its members who work at the hotel. We would like to assure you that, contrary to the union’s assertions, we have been acting in good faith to reach a fair and equitable agreement with Local 5

. . . . S ince our funds acquired 100% ownership a n d c o n trol of the Turtle Bay Resort in the fourth quarter of 2000, we have worked diligently to turn around the property , guided by the principle that if the hotel is successful, then the employees will be among the beneficiaries of that success. . . . [W]e have invested approximately $ 5 0 million over the last two years to ren ovate the [Resort]

. . . . [W]e have not cut t h e number of employees on the payroll and we hav e actually increased the employment opportunities at the p r o p e rty.

. . . While many of the other unions
r e p r esenting

. . . employees support [a ballro o m renovation], Local 5’s management has lobbied against it

. . . . We wish the hotel’s performance allo w e d us to offer Local 5 the generous contract it wants

. . . . [W]e believe we have offered Local 5 a fair and eq u i table agreement

. . . . Once the hotel’s performance improves

. . . we will be happy to share the property’s success with Local 5’s members.
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(Emphasis added.) O a k tree contends “we” means TBR; NLRB, that it means Oaktree. Later, on 8 November 2003, the Union’s financial secretary-treasurer sent

a letter to Bernard, in his capacity as Oaktree representative (“Russ Bernard[,] Oaktree Capital Management[,] Via email: [to his O a k t r e e email address]”). The letter discussed, inter alia , “contract negotiations for the Turtle Bay Resort [employment] agreement”, a “settlement offer”, “the employer’s wage offer”, and

an offer to “withdraw the outstanding NLRB charge

. . . on condition that you direct your management staff and security chief to cease and desist their unwarranted interference with our legitimate right of access . . . .” (Emphasis added.) That letter stated in pertinent part:

Thank you for your telephone communication with me. We have discussed the situation in our contra ct negotiations for the Turtle Bay Resort agreement, and I agreed to clearly outline the open [collective bargaining] issues for you, and to offer what the Union b e lieves is the basis for a settlement.

. . . [A] s I indicated in our phone conversation, we are willing to withdraw the outstanding NLRB c h a rge, assuming there is a satisfactory settlement on the outstanding items listed above, and o n condition that you direct your management staff and security chief to cease and desist their unwarranted interference with our legiti m a t e right of access to the property and our membership. Accordingly, substantial evidence supports the finding that Bernard was acting on Oaktree’s behalf when he participated in labor negotiations with the Union—a failed activity which ultimately lead to the above-described p ub l icb e ach rally on 12 February 2004 and the charged unfair labor practice s

r egarding Union access and dues collection. See, e.g. , Asher Candy, Inc. v. NLRB , 258 F. App’x 334, at *1 (D.C. C i r . 2 0 0 7) (“[C]entralized control of labor relations is evident from the [subsidiary’s] inability to enter into a coll e c t ive

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bargaining agreement without the approval of [the parent company’s] board of directors”. (citation omitted)). Oaktree contends that involvement in high-level decisions affecting labor relations was insufficient for the Board to “pierce the corpo r a t e v e i l” and find Oaktree to be a si n gl e employer with TBR. The Board did so by reaching through the subsidiary (TBR) to hold the parent (Oaktree) liable for unfair labor practices. See Johnson v. Flowe rs I n dus., Inc. , 814 F.2d 978, 980-81 (4th Cir. 1987) (“Courts will p e e r b e h i n d the corporate veil if the parent dominates the subsidiary ‘to the extent that the [subsidiary]

. . . functions solely to achieve the
purposes of the [parent] corporation.’” (quoting Krivo Indus. Supply Co. v. Nat’l Distillers & Chem. Corp. , 483 F.2d 1098, 1106 (5th Cir. 1 973)). Oaktree maintains a single employer must be involved in the day-to-day management of labor relations, citing Lusk , 129 F.3d at 777 n.3, which stated:

[B]efore pi e r c i ng the corporate veil in the employment discrimination context , we and other courts h ave focused on the core activities regulated by the antidiscrimination laws a n d, therefore, on whether the parent c orporation was so involved in the daily employment decisions of the subsidiary as t o justify treating the two corporations as a single employer. (Emphasis added.) As Oaktree notes, Lusk held, in tha t c ontext, that the “analysis ultimately focuses on . . . whether the parent corporation was a final d e c ision-maker in connection with the employment matters underlying th e litigation . . . .” Id. at 777 (citation omitted). Al th o u gh this is true for an employment-discrimination claim, which usuall y i nv olves a single person or entity responsible for a definitive act of discrimination, it is not necessarily true for a dispute, as here, concerning labor practices and failed CBA negotiat i o n s . Notably, even in the employmentdiscrimination context, our court has held no s i n gle-employer status because appellant “fail[ed] to present any evidence that [the parent entity] actually made any of [the subsidiary’s] labor decisions, inc l u d i ng decisions regarding [the
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underlying litigation]”. Johnson v. Crown Enters. , 398 F

. 3 d 339, 344 (5th Cir. 2005) (emphasis added). 4. Regarding interrelation of operations, in its above-referenced brief for the ALJ, Oaktree acknowledged: “TBR

. . . is nothing more than the legal lessor of the property upon which the

. . . Resort is situated”. Oaktree Capital Mgmt. , 353 N.L.R.B. No. 127 at *11 (internal quotation marks omitted). That admission is further demonstrated by substantial evidence of interrelation of operations. That eviden c e supports the finding that, in addition to controlling labor relations, Bernard (Oakt r ee member and principal and TBR president) participated in negotiating sessions, in which he was involved in discussing and approving the Resort’s economic package, which included the Resort’s position
on, inter alia , successorship and subcontracting. Bern a r d was copied on an email from petitioners’ outside counsel to the Union’s f i n a n cial secretarytreasurer, with the subject line r e a di n g “Re: turtle bay”, regarding a draft of “our subcontracting proposal” that had been “reviewed and approved by [Bernard]”. Bernard also reviewed financial reports for the Resort and required information from human resources concerning Resort “staf f b o die s or salaries for an owners[’] report”. Also, the lease agreement between Kuilima and TBR was signed for each by Bernard and Porosoff, in their respective capacities as Oaktree principal and senior vice pre s ident, legal. The “Landlord” description on the signatory page f o r t h a t agreement provides: “Kuilima .

. . [,] By: Turtle Bay Holding, L. L

. C

. , its general partner[,] By: Oaktree

. . . , its manager[,] By: Russel S. Bernard

. . . [,] Principal[, and]

. . . Marc Porosoff

. . . [,] Senior Vic e P resident, Legal”. The “Tenant” section on that page similarly provides: “TBR

. . . [,] By: Oaktree

. . . , its manager[,] By: Russel S. Bernard

. . . [, ] P ri n c i p al[, and]

. . . Marc Porosoff

. . . [,] Senior Vi c e President, Legal”. Further, the management agreement between TBR and Benchmark was signed for TBR by Bernard and
15 Case: 10-60749 Document: 00511613704 Page: 15 Date Filed: 09/26/2011No. 10-60749

Porosoff, again in their respective capacities as Oaktree principal and senior vic e pres i d e n t, legal. Again, beneath TBR’s name appears the description: “TBR

. . . [,] By: Oaktree

. . . , its Manager[,] By: Russel S. Bernard

. . . [,] Principal[, and] . . . Marc Porosoff . . . [,] Senior VP, Legal”. Accordingly, neith e r o f t hese two agreements provide a signature “by” a TBR representative; each is signed “by” an Oaktree representative. Substantial evidence supports the ALJ’s finding that h avi n g Oaktree representatives sign these agreements on behalf of Oak t r e e i s unusual because “Oaktree was not ostensibly a party to those agreements, unless the parties to those agreements recognized that Oaktree was the entity in control of TBR

. . . , Kuilima, and [the Resort]”. Oaktree Capital Mgmt. , 353 N.L.R.B. No. 127 at *12. Porosoff (Oaktree senior vice president, legal, and T B R’s vice president and treasurer) assisted in negotiatin g th e m an a ge ment agreement between TBR and Benchmark. In addition, that agreement not only listed TBR as having the

same address as Oaktree, but also gave notice t h a t correspondence should be sent to TBR, in care of Oaktree, to the attention of Bernard and Porosoff. Under the terms of the management agreement, TBR was liable for all of the Resort’s operating expenses, includin g p ayroll an d e m p loye e b e n ef it s , and TBR controlled the bank accounts which Benchmark used for management of the Resort. Section 9.02(c) of that agreement provides that all funds in each bank account used by Benchmark are property of TBR and those funds are controlled by designated TBR signatories, two of whom are Bernard and Porosoff. Further,

as provided in the reciprocal trade agreement contract between the Resort and

a video-production company, before that company was allowed to f i l m a t the Resort, it was required to obtain insurance covering, inter alia , “Oaktree Capital Management, . . . individually and as agent”. In sum, substantial evidence supports the finding that “[t]he overbearing presence in these relationships is Oaktree, the effective owner of the resort, which must be consulted, eithe r dir e c t l y or through TBR

. . . before any 16 Case: 10-60749 Document: 00511613704 Page: 16 Date Filed: 09/26/2011No. 10-60749

significant decisions are made by or at [the Resort], including decisions on labor matters”. Id. at *11. Nevertheless, Oaktree contends that, as noted supra , we should follow our court’s employment-discrimination decision in Lusk , 129 F.3d at 780, and hold there was no single-employer rela t i o n s h i p. Oaktree fails to acknowledge, however, that, like our decision here, Lusk was decided on its own facts ( a n d , as noted supra , under a more lenient de novo review). Id. Lusk stated: “ [ I]t appears that on every occasion in which [the officers working for both the subsidiary and parent] took any action in connection with the [layoff] plan, they were acting in concert only with other [subsidiary] officials. In fact, the record is replete wit h e xamples of how executives from [the subsidiary companies]

. . . devised and implemented everyaspect of the [layoff] plan”. Id. (emphasis added). Unlike Lusk , substantial evidence does not support: that TBR (the subsidiary), not Oaktree (the parent), was the entity controlling labor relations with the Union; that TBR officers, if there were any that were not also Oaktree officers, were involved with labor relations o r d e t a i l s of the Union access and dues-collection issues before us; or that the persons directly involved in preventing Union representatives from accessing the Resort or collecting dues there, were employees of TBR, not Oaktree. Oaktree also contends: it can not be found to be an “employer” of Resort employees because it is an investment manager; and, therefore, its only role is t o a dvise Oaktree’s investors, who are the Resort owners, but who exercise no day-to-day control over the Resort or any aspect of labor relations. As discussed
supra , Oaktree was not acting solely as an “investment manager” or “financial adviser”; it was admittedly also acting as a n “ a sset manager”. Substantial evidence supports finding the Resort was one of those managed assets. As Oaktree notes, Lusk described as “deficient” any “approaches to piercing the corporate veil which fail to recognize the[] important public policy considerations underlying the doctrine [of limite d li ab ility]”. 129 F.3d at 777 n.3.
17 Case: 10-60749 Document: 00511613704 Page: 17 Date Filed: 09/26/2011No. 10-60749

“Limited liability prevents a parent

. . . from being held responsible for the acts of its subsidiaries unless the separateness of the entities is a sham, and ‘there is an absence of an arm’s-length relationship among the companies.’” Romano

v. U-Haul Int’l , 233 F.3d 655, 666 (1st Cir. 2000) (quoting Knowlton v. Teltrust Phones, Inc. , 1 8 9 F

. 3 d 1 177, 1184 (10th Cir. 1999) (holding the “heart of the [single-employer] inquiry is whet h e r t h e re is an absence of an arm’s-length relationship”)); DMR Corp. , 699 F.2d at 7 9 1 ; C o v an ta Energy Corp. , 356 N.L.R.B. No. 98 at *35. On the other hand, “the f i c tion of corporate separateness is not sacrosanct.

. . . C o u r t s will peer behind the corporate veil if the parent dominates the subsidiary ‘to the extent that the subservient corporation manifests no separate corporate interests of its own and funct i o n s s olely to achieve the purposes of the dominant corporation.’” Flowers Indus. , 814 F.2d at 980-81 (quoting Krivo Indus. Supply Co. , 483 F.2d at 1106) (i n t e rnal citations omitted). For the numerous above-di scussed reasons, substantial evidence supports the Board’s finding t h a t Oaktree and TBR constituted a single employer. C. In challenging the above-described Union access and dues-collection findings, petitioners maintain th e B o a rd failed to hold NLRB to its burden of establis hin g viol atio n s of NLRA § 8(a)(1) and (5). Substantial evidence, however, supports the Board’s findings. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1), provides that it “shall be an unfair labor practice for an employer

. . . to interfere with, restrain, or coerce employees in the exercise of th e rights guaranteed in section 157 of this title” (e.g. , to

s elf

- or gani z e , f

or m an d join labor organizations, and bargain collectively thro u gh chosen representatives). Similarly, § 8(a)(5), 29 U.S.C. § 158(a)(5), provides that it “shall be an unfair labor practice

. . . to refuse to bargain collectively with the representatives of [an employer’s] employees

. . . .” Together, these provisions require petitioners to notify and consult th e Union before making changes in,
18 Case: 10-60749 Document: 00511613704 Page: 18 Date Filed: 09/26/2011No. 10-60749

inter alia , wages, hours, and conditions of employme nt. NLRB v. PinkstonHollar Constr. Servs., Inc. , 954 F.2d 306, 310 (5th Cir. 199 2). At issue are th e e v e n t s o n four dates: 14 and 18 February 2004, concerning restricting Union representatives’ access to the Resort; and 24 May and 22 June 2004, concerning preventing Union representatives from collecting dues from Resort employees in the employee cafeteria at the Resort. For those dates, the Board found: restricting access and preventing dues collection constituted unfair labor practices. Oaktree Capital Mgmt. , 353 N.L.R.B. No. 127 at *1-2. As discussed supra , a Board decision is upheld if supported by substantial evidence, based upon the record as a whole. E.g. , Strand Theatre of Shreveport Corp. v. NLRB , 493 F.3 d 515, 518 (5th Cir. 2007); Entergy Gulf States, Inc. v. N LRB , 253 F.3d 203, 208 (5th Cir. 2001) (“Substantial evidence is evidenc e a reasonable mind might accept as adequate to support a conclusion.”). A s also discussed supra , the Board’s findings of fact, along with its applications of law to facts, are reviewed for substantial evidence; its legal conclusions, such as the interpretation of a CBA provision, de novo . E.g. , Strand T h e a t re , 493 F.3d at 518. 1. As noted, NLRA § 7, 29 U.S.C. § 157, give s e m ployees the right to self-organize, to form and join labor o r g a nizations, “to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining

. . . .” Along that line, NLRA § 8( a) ( 5 ), 29 U.S.C. § 158(a)(5), prevents an employer from making unilateral changes to the terms of employment that are mandatory bargaining subjects

w i th o u t f

i r s t givi n g n o ti c e t o , a n d b a r g a i n i n g w i th , e m p l o y e e s ’ representatives—here, the Union. NLRB v. Katz , 369 U.S. 736, 742-43 (1962). Consequently, an employer’s unilateral change in employment conditions that

are under negotiation is equivalent to refusal to bargain w h e n those changes
19 Case: 10-60749 Document: 00511613704 Page: 19 Date Filed: 09/26/2011No. 10-60749

concern , i n t e r alia , wages, hours, and conditions of employment. Id. at 743; Pinkston-Hollar Constr. Servs., Inc. , 954 F.2d at 310. The terms of a CBA inform whether a § 8 ( a) (5) violation has occurred. Along that line, deference is accorded to the Board’s “expertise i n i n terpreting collective bargaining agreements”. J. Vallery Elec., Inc. , 337 F

. 3 d a t 450 (citation and internal quotation marks omitted). As discussed, the CBA ended in N o v e mber 2003; however, as also discussed, the parties agree that its access provision (allowing Union access to the Resort) survived and was in effect while the parties were negotiating a new CBA in 2004. See NLRB v. Gre a t W

. Coca-Cola Bottling Co. , 740 F.2d 398, 403-04 (5th Cir. 1984) ( employer commits unfair labor practice by unilaterally imposing new access restrictions after contract expiration but while employeerepresentation question pending). Accordingly, the CBA access provis i o n w as in effect in February 2004, when the events leading to the acce s s - r e striction i ssues occurred. That provision stated: “Authorized representatives of the Union shall be free to visit the [Resort] hotel at all reasonable hours and shall be permitted to carry on their duties, provided they shall first notify the management or its designated representative, and there shall be no interference with the normal conduct of business”. Prior to the relevant dat e s , Union representatives were allowed to frequent, among other places, certain work areas, the lower level of the Resort’s hotel lobby, and the employee cafeteria. On 14 February 2004, Marian Marsh,

a Union representative assigned to t he Resort, entered it and met with employees in that cafeteria. Tom Dougher, the Resort’s head of security, entered the cafeteria and informed Marsh: she was not allowed on the Resort property;

s h e was trespassing (because she had received a verbal trespass notice on 12 February, following the public-beach r a l l y) ; and he had notified the Honolulu P o l i c e Department of her unwanted presence at the Resort. Dougher then directed Resort security o f f i c i als to escort Marsh off the property. (Marsh left

20 Case: 10-60749 Document: 00511613704 Page: 20 Date Filed: 09/26/2011No. 10-60749

before the police officer arrived.) In addition to escorting Marsh from the Resort, Resort personnel gave her a verbal trespass notice, stating that Union representatives were excluded from the property. On 18 February, two Union repr e s e n t atives, Marsh and Claire Shi m ab u k u r o entered the property and met with Resort employees in the employee cafeteria. A Resort security officer: directed them to leave; gave them written trespass notices; and contacted the Honolulu Police Department. Upon arrivin g a n d f

inding that the Union had not disturbed the Resort, the police officer informed Marsh, Shimabukuro, and Reso r t p e r s onnel: Union presence at the Resort fell under the NLRB’s jurisdiction; and t h e Union’s alleged trespass was not a criminal matter. Based u p o n the foregoing, substantial evidence supports the Board’s finding that petitioners committed an unfair labor practice in violation of NLRA § 8(a)(5). That is, there is substantial evidence to support the finding that petitioners denied the Union access to the Resort on 14 and 18 February 2004, which constituted a material change in past practice. Prior to those dates, Union representatives were allowed to frequent certain hotel ar e a s , including the employee cafeteria, to speak with employees and conduct Union business. Additionally, substantial evidence supports the Board’s finding that a § 8(a)(1) violation (unfair labor practice to interfere with rights to, inter alia , engage in self-organization, join labor organizations, and bargain colle c t iv e ly) occurred when Union representatives were deprived Resort access on 14 and 18 February 2004. Se e T R W

- U n i t ed v. NLRB , 637 F.2d 410, 415 (5th Cir. 1981) ( e mployer violates NLRA § 8(a)(1) when conduct tends to interfere, coe r c e , o r restrain employees in exercise of § 7 ri ghts). Trespass notices’ (verbal and written) being i ssued and Union representatives’ being ordered off Resort property constitute substantial evidence supporting the Board’s finding that petitioners violated § 8(a)(1). That is, there is substantial evidence showing that petitioners interfered with Union activities at the Resort. Additionally, as noted
21 Case: 10-60749 Document: 00511613704 Page: 21 Date Filed: 09/26/2011No. 10-60749

by the ALJ, Oaktree Ca p i t a l M gmt. , 353 N.L.R.B. No. 127 at *62, petitioners’ acts of contacting police on 14 and 18 Febr u a ry c o nstituted an ipso facto violation of § 8(a)(1). See, e.g. , NLRB v. Consol. Biscuit Co. , 301 F. App’ x 4 1 1 , 438 (6th Cir. 2008); C u m b e rland Farms, Inc. v. NLRB , 984 F.2d 556, 559 (1st Cir. 1993). Although petitioners acknowledge Union access was denied on 14 and 18 February, they contend the access was not “material” and had “no significant consequences” because the Union was not deprived of access to its employees. Their position, however, is meritless in the light of substantial evidence showing the CBA contractual provision was clearly breached on 14 and 18 February. See, e.g. , Frontier Hotel & Cas i n o , 309 N.L.R.B. 761, 766-67 (1992) (breach of CBA contractual provision, designed to protect employees’ § 7 rights , i s material change in violation of § 8(a)(1) and (5)); see also Great W. Coca-Cola Bottling Co. , 740 F.2d at 403-04 (“[A] unilateral change in the manner and degree o f a c c ess afforded

. . . e m p loyees’ representative[s] constitutes a ‘basic change’ in the agreement”.). Further, to the extent petitioners assert § 8(a)(1) was not violated because they wer e a c t i n g on the basis of a reasonable concern (fearful that Union representatives would disturb the Resort and its guests, in the light of the 12 February disruptive beach rally), substantial evidence supports that position’s being equally un av a i l i n g. On 14 February, only Union representative Marsh, and on 18 February, only Marsh and Shimabukuro, were on the premises when Resort officials ejected them from the property. Substantial evidence supports t h e i r presence not posing a reasonable concern for public safety or busines s operations. There was no indication that either Union representative interfered with, or disrupted, the Resort’s normal business operations—particularly in the light of the much larger number of individual s p r o t e s t i ng on 12 February. In fact, one Resort security official informed the police officer on 18 February that the two Union representatives had notthen been disruptive.
22 Case: 10-60749 Document: 00511613704 Page: 22 Date Filed: 09/26/2011No. 10-60749 2. Petitioner s claim the Board failed to hold NLRB to its burden of establish i ng a § 8(a)(5) violation regarding Union dues-collection; specifically, that it failed to establish a past practice for that collection at the Resort. In that regard, pe t itioners contend there was no evidence that they unilaterally, and without not i ce, made a material, substantial, and significant change in a contractual, premises-access provision. As a threshold matt e r for this point, petitioners do not contest the findings underpinning the rulin g th at th ey violated § 8(a)(5) and (1); in other words, they concede they prohib i t e d the Union from collecting dues on 24 May and 22 June 2004. Petitioners do ch allenge, however, whether that denial was a departure from past practice. Determining wh e t h e r t he dues-collection denial was an unlawful, material change requires de novo review of the CBA’s access provision, according def

e r e nce to the Board if its decision is reasonably grounded in law and not inconsistent with the NLRA. Sara Lee Bakery , 514 F.3d at 428. NLRA § 8(a)(5), 29 U.S.C. § 158(a)(5), makes it an unfair labor practice for

an employer “to refuse to bargain collectively wi th the representatives of his employees”. The Board adopted the ALJ’s findings that: “collecting dues

. . . is within the union access provision that contractually bound [p e t i t ioners]”; “[p]reventing the Union from collecting dues at [the Resort] was a material, substantial, and significant change and interference with the Union’s access to [the Resort]”; and “[petitioners] unilaterally imposed t h i s change and this restriction on the Union.

. . . [And,] [b]y doing so . . . violated [§] 8(a)(5) and (1) of the [NLRA]”. Oaktree Capital Mgmt. , 353 N.L.R.B. No. 127 at *2, *66

. Before and after the CBA ended in 2003, petitioners deducted Union dues from Resort employees’ wages; however, in April 2004, petitioners stopped doing

so. And, on 6 May 2004, petitioners n o t i f i e d the Union that it was prohibited from collecting dues from employees at the Resort. As a result, on 24 May and 22 June 2004, w h e n U nion representatives attempted to collect dues at the
23 Case: 10-60749 Document: 00511613704 Page: 23 Date Filed: 09/26/2011No. 10-60749

Resort, petitioners prevented their doing so by giving them trespass notices and ejecting them from the property. As discussed s u

p ra , although the CBA ended in November 2003, the parties agree that its access provision remained in effect. Ag ai n , i t p rovided: “Authorized representatives of the Union shall be free to visit the [Resort] hotel at all reasonable hours and shall be permitted to carry on their duties , provided they shall first notify the management or its d e s i gn ated representative, and there shall be no interference with the normal conduct of business”. (Emphasis added.) Although t h e r e is no precise definition for the term “duties”, union

access provisions are generally interpreted broadly. Se e generally Gilliam Candy Co. , 282 N.L.R.B. 624 (1987). And, the parties do not dispute that “[c]ollecting dues from members is one of the duties of the Union

. . . .” Oaktree Capital Mgmt. , 3 5 3 N.L.R.B. No. 127 at *66; see Pleasantview Nursing Home, Inc. v. NLRB , 351 F.3d 747, 754 (6th Cir. 2003) (“Collection of union fees is

. . . intricately connected to the right to bargain collectively protected by the NLRB under NLRA § 8(a)(5)

. . . .”); Int’l Union , 337 N.L.R.B. 237, 241 (2001) (noting d u e s - c o llection prohibition interferes with union’s ability to fulfil l “representative functions”). Accordingly, dues collection, a necessary function and requirement of maintaining representative organizations, guaranteed the Union the right to

access the Resort under the existing access provision—the permission “to carry
on duties”. Furthermore, substantial evidence supports th at: petitioners

un der s to o d Unio n r e p r esentatives could collect dues, unless they were di s or derly
o r h a r assing; and those representatives did not interfere with petitioners’ normal business operations on 24 May or 22 June 2004. Therefore, substantial evide n c e supports the Board’s conclusion that preventing dues collection on 24 May and 22 June was a material, substantial, and s i gni ficant change and interference with the Union’s access to the Resort. That evidence is particularly substantial in the light of: the broad interpretation
24 Case: 10-60749 Document: 00511613704 Page: 24 Date Filed: 09/26/2011No. 10-60749

of access provisions; the general understanding that dues collecti o n i s a necessary Union function; and substantial evidence that Union representatives

were neither disorderly nor harassing on 24 May or 22 June. See NLRB v. Am. Nat’l. Can Co. , 924 F

. 2 d 5 18, 524 (4th Cir. 1991) (“[W]hen it is found that responsible repres e ntation requires union access to the employer’s premises, the employer’s property rights must yield to the extent necessary to achieve this end without unwarranted interruption of the employer’s operations”.); Great W. Coca-Cola Bottling Co. , 740 F.2d at 403 (“It is clear that access by the employees’ representatives constitutes a mandatory bargaining subject,

. . . and a unilateral change in the manner and degree of access afford e d t h e employees’ representative constitutes a basic change in the agreement.” (citations and internal quotation marks omitted)). III. For the fo r e go i n g reasons, the petition for review is DENIED and the Board’s order is ENFORCED.

25 Case: 10-60749 Document: 00511613704 Page: 25 Date Filed: 09/26/2011No. 10-60749

EDITH H. JONES, Chief Judge, dissenting:
With due respect to the meticulous opinion for the majority, I cannot agree with the NLRB’s imposition of liability on Oaktree Capital Management, L .P.,

an investment adviser, for labor law violations committed by Turtle Bay Resorts (TBR) and Benchmark Hospitality, the resort lessor/operators. NLRB cites no authority that applies the “single employer” theory to an investment adviser/manager. See Oaktree Capital Management, L.L.C. , 353 NLRB No. 127 (2009) (adopted by the Board by reference in Oaktree Capital M a n a ge ment, L.L.C. , 355 NLRB No. 147, at *1). Although the Board’s use o f th e single employer theory has been sanctioned by t h e S u p r e me Court in two narrow instances, more recent pronouncements demonstrate the Court’s fid e lity to enforcing corporate separatenes s , a doctrine on which much of our current

economy depends to safeguard risk-taking and investment. The Board’s use of single employer theory in this case is gratuitous and unnecessary inasmuch as TB R a nd Benchmark together are indisputably joint employers whose ability and motivation to comply with the Board’s order are not in doubt. 1

In r e s pons e to the majo rit y’s foc us on the sub st antia l evide nce st andar d of revie w, 1 Ma jori ty at 8, I note that as app lied to this cas e, the sin gle em plo yer theo ry its elf is unjust ifi able. The NLRB’s inte rp ret atio n of the NLRA, its governi ng st atut e, is ord inari ly due Chev ron def

ere nce. Lechm ere, Inc. v. NLRB , 502 U. S. 527, 536- 37 (199 2). Court s give no def ere nce to the NLRB, how ever, if its inte rp ret atio n “re st [s ] on err oneo us legal fou ndat ions ,” Id. at 539 (quot ing NLRB v. Babcoc k & Wilc ox Co. , 351 U. S. 105, 112 (195 6)) , or theNLRB’s pos itio n is an un r e a s onable inte rp ret atio n of the Act. First He al thcare Corp

. v. NLRB , 344 F.3d 523, 546 (6t h Cir. 2006)

. Given the rec ent Sup rem e Court pr ece dent on the cor por ate for m, t he NLRB’s ext ens ion of the “s ingle em plo yer” doc tri ne is on sha ky legal ground

. The NLRB’s unpr ece d e n t ed att em pt to dis regar d the com ple x cor por ate st ruc tur e in the ins tant 26 Case: 10-60749 Document: 00511613704 Page: 26 Date Filed: 09/26/2011No. 10-60749

The Board’s single employer theory evolved from a rule re gu l ating the jurisdictional limit of the NLRB, Radio & Television Broad. Technicians Local
Union 1264 v. Broad. Serv. of Mobile, Inc. , 380 U.S. 2 5 5 (U S 1965), to one concerned with vario u s m anip ul atio n s of tr a ditio n al intr ac orp or at e r elationships that, deliberately or not, evaded federal labor law. S. Prairie Constr. Co. v. Local
No. 627, Int’l Union of Operating Eng’rs , 425 U.S. 800 (1976). The Board’s four part test to assess single employer liability is thus understandably a somewhat 2
lower bar than the common law doctrine necessary to pierce the corporate veil. See, e.g. , Dole Food Co. v. Patrickson , 538 U.S. 468, 475 (2003) (noting that “[t]he
doctrin e o f p i e r c i n g the corporate veil

. . . is the rare exception, applied in the

case of fraud or certain other exceptional circumstances”); Vance v. NLRB , 71 F.3d 486, 490-91 (4th Cir. 1995) (noting that piercing t h e c o rporate veil generally requires unlawful motive or intent while f i n ding single employer status requires no such finding).
Taken too generally, however, the elemen t s of the NLRB test would impose responsibility on virtually any corporate parent for sub s idiary or affiliate actions, because the subsidiary is ultimately accountable to its parent company and because they often share common employees or officers. But a unanimous

cas e is unrea so nab l e e s p e cially given the fac ts in this cas e wh ere a culp able and so lvent sub sid iary is not denyi ng li abilit y.

The fou r par t tes t to det erm ine “s ingle em plo yer” st atus inclu des the f o l l o w i n g 2
cons ide rat ions : “int err elat ion of ope rat ions , com mo n man agem ent, cent rali zed cont rol of labor rela tio ns and com mo n o wn ers hip. ” Radi o &T elev is ionBroad. T

ech nic ia ns , 380 U. S. at256

. 27 Case: 10-60749 Document: 00511613704 Page: 27 Date Filed: 09/26/2011No. 10-60749

Suprem e C o u rt has recognized that “it cannot be enough to establish liability
here that dua l o f

f i c ers and directors made policy decisions and supervised
activities at the facility.” United States v. Bestfoods , 524 U.S. 51, 69-70 (1998). Indeed, the Court relied on this court ’ s decision in Lusk v. FoxMeyer Health Corporation, 129 F.3d 773, 779 (5th Cir. 1997), observing the “well established princip l e s ” that not only do such officers frequently “change hats” in representing a parent or subsidiary, but c o urt s “ generally presume ‘that they are wearing the “subsidiary’s hat”

. . . when acting for the subsidiary.’” Bestfoods , 5 2 4 U.S. at 69. Even more recently, the Court refused to affix liability o n a n investment adviser under federal securities law for misleadin g s t atements made by a fund administered by the advisor. Janus Capital Grp., Inc. v. First
Derivative Traders , 131 S. Ct. 2296, 2305 (2011). The majority declined “to disregard the corporate form” b e c au s e th e e ntiti e s m aint ain e d l e gal s ep ar ateness and followed corporate formalities, id. at 2304, even though all of the officers of
the fund were also employees of the advisor, id. at 2306 (Breyer, J., dissenting).
The Board’s reliance on the single employer theory to conflate “Oaktree”
and TBR bears no relation to the corporate structure of the entities and even less to labor law policy. On the latter score, it is clear that TBR, rather than being

a mere “shell”, as alleged by the Board in Oaktree Capital Management, L.L.C. ,

28 Case: 10-60749 Document: 00511613704 Page: 28 Date Filed: 09/26/2011No. 10-60749

353 NLRB No. 127, at *11 (2009), was the financial center for the resort, while 3
Benchmark had a contract for day to day management. Only on-site employees
took the actions that became the subject of the B o a r d ’ s findings of unfair practices. Together, as an admitted joint employer, TBR and Benchmark were fully accountable, solvent and responsible parties for the Board’s purposes. No obvious labor law policy is being served by holding Oaktree liable in a ddition.
How the Board applied the single employer t heory, however, is as unf o rtunate as its lack of policy grounding. First, Oaktree did not “own” TBR

or even stand within the corporate chain that leads back to the investment funds
for which Oaktree LP is the general partner. This chart portrays the complex, albeit hardly extraordinary, corporate structure.

All revenu es fr om the o p e r a t i on of Turt le Bay Reso rt are dep os ite d into an acc ount 3 cont roll ed by TBR and TBR is liable for all ope rating expe nse s. Oa ktree Cap ital Ma nagem ent, L.L. C. , 353 NLRB No. 127 , at *11. 29 Case: 10-60749 Document: 00511613704 Page: 29 Date Filed: 09/26/2011No. 10-60749

Oaktree, des p i t e being an investment adviser and asset manager to the
funds and involved in managing TBR, holds no direct ownership of the resort as evidenced by the chart above. NL R B s i m p ly erred, as the majority opinion

a l m o s t admits. Thus, to conclude that TBR was a “conduit”, id. at *12, f o r Oaktree has no legal significance. There is no evidence disputing TBR’s
financial independence as the resort’s lessor or that corporate formalities within the members of the ownership chain were ignored. OAKTREE I S G.P.OF FUND B OAKTREE I S INVESTMENT ADVISOR TO GRYPHON OAKTREE I S G.P.OF FUND A

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Second, the NLRB’s finding of “common man a g e ment” between Oaktree
and TBR proves nothing more than is allowed b y “general principles” of corporate law, as emphasized by the S u p r e me Court. The majority opinion
elaborates on this element of NLRB’s test by stating, inter alia, that Russell Bernard, Pres i d e n t o f TBR, was also a principal in Oaktree and “portfolio manager” for t h e investment funds; and the majority concludes that Bernard

was “acting on Oaktree’s behalf in controlling the Resort’s labor relations.” This
conclusion is unsupported by evidence showing why or how “Oaktree” directly
benefitted from controlling the resort’s labor relations. In other single employer

cases, the “common management” criterion demonstrates that a corporate parent, or sibling, will benefit by the closing down of one (unionized) operation; shifting operations from a union to non-union subsidiary; or otherwise reorganizing the company to the detriment of a union contract. See., e.g. , NLRB
v. O’Neill , 965 F.2d 1522, 1525-26, 1530 (9th Cir. 1992) (finding that an owner

s h u t down his union factory only to use other entities he owned to reo p e n th e factory without union workers). Not so here. In fact, nothing distinguishes the
NLRB’s finding against “Oaktree” from a finding it could equally have made against the Funds themselves: Oaktree, after all, is general partner of two of the
funds and adviser to the t h i r d ! NLRB has inverted the Supreme Court’s

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proposition in Be s tf

oods that corporate officers or managers may indeed wear
two hats, and are presume d t o wear the proper hat, in attending to their dual
duties. Third, t h e m o s t important element of the test is centralized control of
labor relations. Naperville Ready Mix, Inc. v. NLRB , 242 F.3d 744, 752 (7th Cir. 2001); O’Neill , 965 F.2d at 1529. The majority rely on ju s t t wo pieces of correspondence, one in which Bernard reported to the Funds on the status of
labor negotiations (in response to a letter sent by the Union to the Fund
invest o r s ) , a n d o ne sent by the Union to Bernard on a similar subject. Yet
Bernard was authorized to wear s e p a rate hats in reporting as the funds’
inve s tment adviser, on one hand, and dealing through TBR, on the other. Moreover, in the absence of some scheme to deceive the Union as to the identity
of the “employer,” how the Union addresses Bernard s h o u l d not be probative against Oaktree. The “control” exhibited for purposes of these violations, however, had nothing to do with Bernard’s correspondence. All violations were committed by employees on the premises at Turtle Bay (eg, the resort’s director
of human resources, the security chief, Bench m a rk ’ s general manager, resort

r e s t aur ant m an a ger s)

. Oak t ree C a p i tal Management, L.L.C. , 353 NLRB No. 127,
at *53-86. None of the violations were committed by or at the behest of Bernard

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and other “Oaktree” personnel headquartered in New York. T h a t there is no evidence linking “Oaktree” to the retaliatory acts of on-site mana g e m e nt personnel for the union’s extremely disruptive conduct speaks loudly to the lack
of “centralized” labor relations between Oaktree and TBR.
And this lack of evidence stands in stark contrast to the traditional cases in which NLRB has applied the single employer test. In prior cases, the uniform
theme is that one integrated company in an integra t ed business is managing
overall labor relations among t h e r e lated entities in order to disadvantage a union and directly benefit its bottom line. See, e.g., Cov a n t a Energy Corp. , 356 NLRB No. 98 at *34, 38 (2011) (finding that the subsidiary wa s an integrated part of the corpora t e parent and that this integrated employer
discontinued paying corporate bonuses to workers to discourage union activity).
H e r e , there is no “centralization” of the enterprise. Oaktree’s business i s th e

m a n a gement of some $80 billion in forty investment funds for clients like universities, charitable trusts, and public and private pension funds. Global
Presence , O A KT R E E , http://www.oaktreecapital.com/about/global-presence.aspx (last visited S e p t

. 1 2 , 2011). The Resort’s business, managed by
TBR/Benc h m a r k , is unrelated functionally to that of Oaktree. There is no

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“t h e re” behind the conclusion that management of the Resort’s labor relat i o n s was centrally controlled by Oaktree.
The final element of NLRB’s test, as related by the majority, is operational
int e gration. The majority supports the NLRB’s conclusion with referenc e , a gain , to the overlap between Oaktree representatives and TBR’s management. Even
if this is so, and even if O a k t r e e “operated” TBR, and TBR, along with Benchmark, ran the Resort, this is not the t yp e o f “ operational integration” contemplated in the NLRB’s prior cases. Oaktree created o r u s e d T B R as a

s elf

- s uf f ici ent corporate vehicle for an individual investment opportunity . I t h a d

no integrated relationship with other resort properties that could be affected by
Turtle Bay’s unions or could disadvantage those unions. Yet it i s t h e overall

consequence for the integrated operation to which NLRB has looked in the past and that alone justifies ignoring the integrity of corporate relations.
I r e iterate one major point. There is no dispute that together, T B R a n d
Benchmark Hospitality are solvent, respons ible and liable parties. Fixing
addi tional liability on an unrelated corporate entity, Oaktree, was wholly superfluous. The cost of discarding the corporate form is not justified when no labor law policy is advanced. For all these reasons, the shell of the NLRB’s test

appears to be intact, but the substance of the test—and its connection with the

34 Case: 10-60749 Document: 00511613704 Page: 34 Date Filed: 09/26/2011No. 10-60749

purposes of federal labor policy—are absent. I respectfully dissent from the enforcement of the Board’s order against Oaktree.

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