Adams & Associates, Inc. and McConnell, Jones Lanier & Murphy, LLP, Joint Employers

National Labor Relations Board - Board Decisions

May 17, 2016

363 NLRB No. 193 (N.L.R.B. 2016)

363 NLRB No. 193
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Adams & Associates, Inc. and McConnell, Jones, La-
nier & Murphy, LLP and Sacramento Job
Corps Federation of Teachers, AFT Local 4986,
American Federation of Teachers. Cases 20–
CA–130613 and 20–CA–138046
May 17, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On June 16, 2015, Administrative Law Judge Mary
Miller Cracraft issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, Ad-
ams & Associates, Inc. (Adams) filed an answering brief,
and the General Counsel filed a reply brief. Adams and
McConnell, Jones, Lanier & Murphy, LLP (MJLM) also
filed exceptions, cross exceptions, and supporting briefs,
and the General Counsel filed answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1
and conclusions as modified,2 to amend the recommend-
ed remedy,3 and to adopt the recommended Order as
modified and set forth in full below.4
I. INTRODUCTION
Adams and MJLM (collectively the Respondent) oper-
ate Job Corps Youth Training Centers under contracts

1 There are no exceptions to the judge’s finding that the Respondent
did not violate Sec. 8(a)(5) and (1) by unilaterally discontinuing dues
checkoff.
Adams has excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
2 We have amended the judge’s conclusions of law consistent with
our findings.
3 We have amended the judge’s recommended remedy to conform
to the violations found and to better effectuate the policies of the Act.
We have also modified the judge’s recommended tax compensation and
Social Security reporting remedy in accordance with our decision in
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016).
4 We shall modify the judge’s recommended Order to conform to
the violations found, to our amended remedy, and to the Board’s stand-
ard remedial language. We shall substitute a new notice to conform to
the Order as modified and in accordance with our decision in Durham
School Services, 360 NLRB No. 85 (2014).
with the Department of Labor (the DOL). The allega-
tions in this case arose from the Respondent’s successful
bid to operate a Job Corp Youth Training Center in Sac-
ramento, California, that was previously operated by
Horizons Youth Services, LLC. We agree with the
judge, essentially for the reasons she states, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discriminatorily refusing to hire five incumbent employ-
ees in order to avoid an obligation to bargain with the
Sacramento Job Corps Federation of Teachers, AFT Lo-
cal 4986, American Federation of Teachers (Union),5 and
that the Respondent violated Section 8(a)(5) and (1) by
unilaterally imposing initial terms and conditions of em-
ployment on the unit employees and banning Union pres-
ident Genesther Taylor from the Center.6 We further
agree with the judge, for the reasons she states, that
MJLM and Adams are joint employers, and we adopt the
judge’s finding that MJLM and Adams are jointly and
severally liable for the unfair labor practices.7
We also find, however, contrary to the judge, that the
Respondent is a “perfectly clear” successor within the
meaning of Spruce Up Corp., 209 NLRB 194, 195
(1974), enfd. per curiam 529 F.2d 516 (4th Cir. 1975),
and that this independently made unlawful its unilateral
setting of initial terms. We additionally find that the
Respondent violated Section 8(a)(3) and (1) of the Act
by refusing to hire Union President Genesther Taylor
because of her union activities, as well as to avoid a bar-
gaining obligation.

5 Adams excepted to admission of General Counsel Exhibits 11(a)–
(b) and (d)–(l) and certain testimony on the grounds that they were
protected by the attorney-client privilege. In adopting the refusal-to-
hire violations, we find it unnecessary to rely on General Counsel Ex-
hibits 11(d), (g) and (h) or the testimony of Adams’ former Executive
Director for Human Resources Valerie Weldon regarding her conversa-
tion with Adams’ executive director, Jimmy Gagnon, concerning
whether to hire certain incumbent employees. We find that other rec-
ord evidence establishes that the Respondent’s refusal to hire the five
incumbent employees was motivated by a desire to avoid a bargaining
obligation.
6 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by barring Taylor from the Center, we find it unneces-
sary to rely on the judge’s findings that the Respondent’s conduct was
motivated by antiunion animus or that the Respondent selectively and
disparately enforced its access rule against Taylor.
7 In adopting the judge’s finding that MJLM and Adams are jointly
and severally liable for the unfair labor practices, we emphasize that
MJLM does not contend that it neither knew, nor should have known,
of Adams’ unlawful actions. Nor does it contend that it took all
measures within its power to resist those actions. Under established
precedent, therefore, a finding of joint liability is appropriate. Capitol
EMI Music, 311 NLRB 997, 1000 (1993) (burden on the joint employer
seeking to escape liability for the other employer’s unlawfully motivat-
ed action to show that “it neither knew, nor should have known, of the
reason for the other employer’s action or that, if it knew, it took all
measures within its power to resist the unlawful action” (emphasis in
original)), enfd. 23 F.3d 399 (4th Cir. 1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. “PERFECTLY CLEAR” SUCCESSORSHIP
A. Factual Background
In early 2014, MJLM successfully bid on a contract to
operate a Job Corps Youth Training Center in Sacramen-
to, California (the Center), that was previously operated
by Horizons Youth Services, LLC (Horizons or the pre-
decessor).8 Horizons and the Union had a collective-
bargaining relationship. Their most recent collective-
bargaining agreement was effective by its terms from
September 1, 2010, until June 30, 2013, and was extend-
ed through March 9, 2014. The unit included “All full-
time Residential Advisors, Non-Residential Advisors,
and Day Residential Advisors employed at the [Center]”
(collectively, RAs or unit employees).
On February 7, the Union was informed by Horizons
that MJLM had been awarded the contract to operate the
Center, along with its subcontractor, Adams. By letter
dated February 11, the Union notified MJLM that it was
the exclusive collective-bargaining representative of the
unit employees, and it requested information regarding
the hiring process. By email dated February 13, Adams
responded in relevant part:
[P]lease be advised that Adams and Associates, Inc., as
a first-tier subcontractor of MJLM, will be responsible
for the hiring and employment of Residential Advisors
at the Sacramento Center. Adams will follow all appli-
cable laws and regulations regarding the interview and
hiring process. This of course will include discussion
and/or negotiation of a collective bargaining agree-
ment, if required, once the transition is complete.
Also on February 13, Adams Executive Director Jim-
my Gagnon met with incumbent employees to announce
the transition and to inform them about the hiring pro-
cess. Gagnon began by stating that the employees had
been “doing a really good job” and that Adams “didn’t
want to rock the boat” and “wanted a smooth transition.”
When the meeting was opened for questions, RA
Genesther Taylor identified herself as the Union presi-
dent and asked about the availability of RA positions and
what might prevent an incumbent employee from being
hired. Gagnon responded that, “aside from disciplinary
issues, he was 99 percent sure that [they] would all have
a job.” Gagnon also mentioned, however, that Adams
planned to reduce the number of RAs at the Center from
25 to 15. Taylor then raised a concern about student-
staff ratios, to which Gagnon responded that “there
would be a new position that was being introduced . . .
called a residential coordinator [and] . . . also that the

8 All dates are in 2014 unless otherwise specified.
supervisors would be in the dorms to help with interact-
ing with the students and monitoring the dorms.” The
Horizons employees were then invited to review job de-
scriptions of available positions and to apply for up to
two.9 Taylor requested, but was not permitted, to retain
copies of the job descriptions. Instead, employees were
allowed only “a couple of minutes” to review the job
descriptions, and they were then escorted out of the
room. Employees were given 24 hours to return com-
pleted applications.
By letter dated February 14, the Union demanded that
Adams recognize and bargain with it as the exclusive
bargaining representative of the unit employees. Adams
did not respond.
Between February 28 and March 10, applicants to
whom Adams extended offers of employment signed
offer letters. In pertinent part, the offer letters:
 specified the wage rate (which was the same
as the RAs’ wage rate under Horizons);
 stated that they were “eligible for all Compa-
ny-sponsored benefits, as defined by our Hu-
man Resources Policies”;
 set forth their schedule (which for some in-
cumbent RAs differed from their schedule
under Horizons);
 stated that “Adams and Associates reserves
the right to adjust work schedules as a busi-
ness necessity and/or to meet program service
needs”; and
 stated that employment would be “at-will and
there is no written or implied contract for
continued employment. . . . Adams and Asso-
ciates is free to terminate your employment at
any time for any reason except as may be
prohibited by law.”
Successful RA applicants also signed employment
agreements before commencing work for Adams. The
employment agreements provided, among other things,
that:
 employment would be at-will;
 employees would be subject to Adams’ disci-
plinary policies and procedures; and
 employees would be required to resolve em-
ployment-related disputes though mandatory
arbitration.

9 Hence, incumbent RAs could apply for an RA and a residential
coordinator (RC) position or any two positions for which MJLM and
Adams were hiring. Therefore, Gagnon’s statement that he was 99
percent sure that all incumbent RAs would have a job absent discipli-
nary problems was not irreconcilable with his statement that Adams
was reducing the number of RAs from 25 to 15.
ADAMS & ASSOCIATES, INC. 3
On March 11, the Respondent began operating the
Center in basically unchanged form. On that date, the
Respondent employed 15 RAs, 9 of whom (a majority)
were former unit employees. On and after March 11,
consistent with the offer letters and employment agree-
ments, the Respondent unilaterally implemented certain
changes in the unit employees’ terms and conditions of
employment, including ceasing to give effect to the pro-
gressive discipline, just cause, and grievance provisions
of Horizons’ most recent collective-bargaining agree-
ment with the Union; implementing new disciplinary
policies and procedures, at-will employment, and a man-
datory arbitration policy for employment-related dis-
putes; modifying the terms of the existing probationary
period; eliminating existing health benefits; and changing
from a fixed shift schedule to a rotating shift schedule for
some RAs. The Respondent also unilaterally transferred
bargaining unit work outside of the collective-bargaining
unit by assigning residential advisor work to the func-
tionally equivalent position of residential coordinator.
B. Analysis
Under NLRB v. Burns Security Services, 406 U.S. 272,
281–295 (1972), a successor is not bound by the substan-
tive terms of a collective-bargaining agreement negotiat-
ed by the predecessor and is ordinarily free to set initial
terms and conditions of employment unilaterally. The
Court explained that the duty to bargain will not normal-
ly arise before the successor sets initial terms because it
is not usually evident whether the union will retain ma-
jority status in the new workforce until after the succes-
sor has hired a full complement of employees. Id. at 295.
The Court recognized, however, that “there will be in-
stances in which it is perfectly clear that the new em-
ployer plans to retain all of the employees in the unit and
in which it will be appropriate to have him initially con-
sult with the employees’ bargaining representative before
he fixes terms.” Id. at 294–295.
In Spruce Up Corp., 209 NLRB 194 (1974), enfd. per
curiam 529 F.2d 516 (4th Cir. 1975), the Board interpret-
ed the “perfectly clear” caveat in Burns as “restricted to
circumstances in which the new employer has either ac-
tively or, by tacit inference, misled employees into be-
lieving they would all be retained without change in their
wages, hours, or conditions of employment, or at least to
circumstances where the new employer . . . has failed to
clearly announce its intent to establish a new set of con-
ditions prior to inviting former employees to accept em-
ployment.” Id. at 195 (footnote omitted). The Board
reasoned that “[w]hen an employer who has not yet
commenced operations announces new terms prior to or
simultaneously with his invitation to the previous work
force to accept employment under those terms, we do not
think it can fairly be said that the new employer ‘plans to
retain all of the employees in the unit,’ as that phrase was
intended by the Supreme Court” because of the possibil-
ity that many of the employees will reject employment
under the new terms, and therefore the union’s majority
status will not continue in the new workforce. Id.
In subsequent cases, the Board has clarified that, alt-
hough the Court in Burns, and the Board in Spruce Up,
spoke in terms of a “plan[] to retain all of the employees
in the unit” (emphasis added), the relevant inquiry is
whether the successor “[p]lanned to retain a sufficient
number of predecessor employees to make it evident that
the Union’s majority status would continue” in the new
workforce. Galloway School Lines, 321 NLRB 1422,
1426–1427 (1996); Spitzer Akron, Inc., 219 NLRB 20,
22 (1975) (“Clearly, the phrase ‘plans to retain all the
employees in the unit,’ . . . would cover not only the situ-
ation where the successor’s plan includes every employ-
ee in the unit, but also situations where it includes a less-
er number but still enough to make it evident that the
union’s majority status will continue.”), enfd. 540 F.2d
841 (6th Cir. 1976), cert. denied 429 U.S. 1040 (1977).
The Board has also clarified that the exception is not
limited to situations where the successor fails to an-
nounce initial employment terms before the hiring pro-
cess begins. Rather, the bargaining obligation attaches
when a successor expresses an intent to retain the prede-
cessor’s employees without making it clear that em-
ployment will be conditioned on acceptance of new
terms. Canteen Co., 317 NLRB 1052, 1053–1054
(1995), enfd. 103 F.3d 1355 (7th Cir. 1997).10 The
Board has consistently held, moreover, that a subsequent
announcement of new terms, even if made before formal
offers of employment are extended, or before the succes-
sor commences operations, will not vitiate the bargaining
obligation that is triggered when a successor expresses an
intent to retain the predecessor’s employees without
making it clear that their employment is conditioned on
the acceptance of new terms.11 Thus, to avoid “perfectly

10 In Canteen, the Board found that a successor “effectively and
clearly communicated . . . its plan to retain the predecessor employees”
by expressing to the union its desire to have the employees serve a
probationary period without mentioning any changes in employment
conditions. Therefore, it became a perfectly clear successor at that
point, and “was not entitled to unilaterally implement new wage rates”
the next day, during employment interviews. Id., citing Fremont Ford
Sales, 289 NLRB 1290, 1296–1297 (1988); Roman Catholic Diocese of
Brooklyn, 222 NLRB 1052 (1976), enf. denied in relevant part sub
nom. Nazareth Regional High School v. NLRB, 549 F.2d 873 (2d Cir.
1977).
11 See, e.g., DuPont Dow Elastomers LLC, 332 NLRB 1071, 1074
(2000) (“The Board has consistently found that an announcement of
new terms will not justify a refusal to bargain if . . . the employer has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
clear” successor status, a new employer must clearly
announce its intent to establish a new set of conditions
prior to, or simultaneously with, its expression of intent
to retain the predecessor’s employees.12
Application of the above principles to the facts of this
case compels a conclusion that the Respondent became a
“perfectly clear” successor on February 13. Gagnon
clearly manifested an intent to retain the incumbent RAs
when he stated at the February 13 meeting that they had
been “doing a really good job,” that Adams “didn’t want
to rock the boat” and “wanted a smooth transition,” and
that, “aside from disciplinary issues, he was 99 percent
sure that [they] would all have a job.” See Hilton’s Envi-
ronmental, Inc., 320 NLRB 437, 438 (1995) (new em-
ployer expressed an intent to retain incumbent employees
when it solicited applications and assured employees that
they would all be hired unless some problem arose as a
result of information disclosed on their applications or in
the interview process); Fremont Ford, 289 NLRB at
1296–1297 (new employer expressed an intent to retain

earlier expressed an intent to retain its predecessor’s employees without
indicating that employment is conditioned on acceptance of new
terms.”), enfd. 296 F.3d 495 (6th Cir. 2002); Canteen, 317 NLRB at
1053–1054; Starco Farmers Market, 237 NLRB 373, 373 (1978) (ex-
plaining that “[W]here the new employer’s offer of different terms was
simultaneous with the expression of intent to retain the predecessor’s
employees, the Board has found no duty to bargain over initial em-
ployment terms. However, where the offer of different terms was sub-
sequent to the expression of intent to retain the predecessor’s employ-
ees, the Board has regarded the expression of intent as controlling and
has found that the new employer was obligated to bargain with union
before fixing initial terms.” (internal citations omitted)); Roman Catho-
lic Diocese of Brooklyn, 222 NLRB at 1055 (obligation to bargain over
initial terms commenced when the chairman of the new employer’s
board of trustees expressed an intent to retain the predecessor’s em-
ployees without mentioning any changes in preexisting terms; obliga-
tion was not vitiated when promise to retain was later disavowed and
employees were specifically informed—before formal offers of em-
ployment were extended and operations began—that employment
would be on new terms and that the new employer “has no intention of
being bound by the terms and conditions of employment which pre-
vailed” under the predecessor).
12 See, e.g., Elf Atochem North America, Inc., 339 NLRB 796, 807
(2003) (successor incurs “obligation to bargain over initial terms of
employment when it displays an intent to employ the predecessor’s
employees without making it clear to those employees that their em-
ployment will be on terms different from those in place with the prede-
cessor employer”); Helnick Corp, 301 NLRB 128, 128 fn. 1 (1991)
(obligation to bargain over initial terms commenced when new em-
ployer informed employees that they could expect to be retained with-
out mentioning changes in preexisting terms); C.M.E., Inc., 225 NLRB
514, 514–515 (1976) (obligation to bargain over initial terms com-
menced when new employer informed the union that it intended to
rehire the predecessor’s employees without mentioning changes in
preexisting terms, rather than on later dates when applications for em-
ployment were solicited or when the union and the new employer met
to discuss contract revisions).
incumbent employees when it told the union it had
doubts about retention of only a few unit employees).
Consistent with the principles discussed above, there-
fore, in order to preserve its authority to set initial terms
and conditions of employment unilaterally and avoid
“perfectly clear” successor status, the Respondent was
required to “clearly announce its intent to establish a new
set of conditions” on or before February 13. Spruce Up,
209 NLRB at 195; Canteen, 317 NLRB at 1052–1054.
The Respondent, however, did not inform the employees
that employment would be on new terms until the hiring
process was nearly complete, when it distributed offer
letters and employment agreements to successful appli-
cants.
In her decision, the judge placed considerable weight
on Gagnon’s announcement on February 13 that the Re-
spondent planned to reduce the number of RAs. In light
of that announcement, the judge found that the Respond-
ent was not a “perfectly clear” successor because it “did
not actively or tacitly express a clear intention that it
would retain all 25 incumbent RAs.” The judge also
found that the announcement should have signaled to the
incumbent RAs that terms and conditions would differ
from those they enjoyed under the predecessor.13
As discussed above, however, the Board has held that
to become a “perfectly clear” successor, a new employer
need not retain all of the employees in the unit. Rather,
the relevant inquiry is whether the successor intends to
retain a sufficient number to continue the union’s majori-
ty status. Galloway School Lines, 321 NLRB at 1426–
1427; Spitzer Akron, 219 NLRB at 22. By telling the
incumbent RAs on February 13 that they had been “do-
ing a really good job” and that, “aside from disciplinary
issues, he was 99 percent sure that [they] would all have
a job,” Gagnon expressed an intent to retain a sufficient
number of incumbent RAs to continue the Union’s ma-
jority status in the Respondent’s new workforce. And
the Respondent did, in fact, hire a majority of employees.
In sum, we find that the Respondent is a “perfectly
clear” successor and, for this additional and independent

13 Contrary to the judge, we do not think that the Respondent or the
employees understood the announcement of the reduction in the num-
ber of RAs to signal a material change in terms and conditions of em-
ployment. When questioned by Union President Taylor about the ef-
fect of the reduction on student/staff ratios, Gagnon gave assurances
that RCs and dorm supervisors would be available to help the RAs
oversee the students. (The Respondent hired 5 RCs—whose duties are
nearly identical to those of RAs—and 5 dorm supervisors to work in
the dorms with the RAs. Under Horizons, there were no comparable
positions to RCs and dorm supervisors.) Moreover, Gagnon testified at
the hearing that he did not know whether the number of students the
RAs were responsible for increased after the transition, and former RA
Sheila Broadnax testified that there was no change in the number of
students she was responsible for after the transition.
ADAMS & ASSOCIATES, INC. 5
reason, we affirm the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) of the Act by failing to
continue the terms and conditions maintained by Hori-
zons at the time of succession.
III. REFUSAL TO HIRE GENESTHER TAYLOR
A. Factual Background
The judge found, and we agree for the reasons she
stated, that the Respondent violated Section 8(a)(3) and
(1) of the Act by refusing to hire five incumbent RAs,
including Union President Genesther Taylor, in order to
avoid a bargaining obligation. The General Counsel ex-
cepts to the judge’s failure to pass upon his alternative
theory, as alleged in the complaint, that the Respondent
refused to hire Taylor because of her union activity. We
find merit to this exception.
Taylor was employed by Horizons from 2008 until the
Respondent took over operation of the Center on March
11, 2014. As discussed, at the initial meeting between
the Respondent and the Horizons employees on February
13, Taylor introduced herself as the Union president,
asked several questions about the hiring process, and
requested copies of job descriptions. The following
morning, Taylor visited the transition office at the Center
to turn in her completed employment application. While
Taylor was in the transition office, she asked to speak to
Gagnon. When Gagnon appeared, Taylor again request-
ed copies of the job descriptions. She also attempted to
ask Gagnon additional questions about the transition.
Gagnon stated that he was not able to provide her with
the job descriptions or answer any of her questions, and
he instructed her to contact Adams’ General Counsel
Tiffany Pagni. Taylor also asked Adams’ Deputy Direc-
tor Kelly McGillis for a blank employment application
for a Horizons RA who was in the hospital on medical
leave. McGillis referred Taylor to Adams’ Executive
Director for Human Resources Valerie Weldon. On Feb-
ruary 25 or 26, Taylor returned to the transition office
and turned in the completed application for the RA on
medical leave.
On February 27, McGillis completed and signed a
form entitled “Justification for Disqualification of Poten-
tial Employment,” which provides, in relevant part:
“Genesther Taylor is not eligible and/or qualified [for] an
offer of employment with Adams and Associates, Inc., . .
. for the following reasons: Adams has reason to believe,
based upon written credible information from a knowl-
edgeable source, that this employee’s job performance
while working on the current contract has been unsuita-
ble.” McGillis testified that, in completing the form, she
relied on information provided by Horizons’ former Res-
idential Manager Lee Bowman, whom Adams had hired
as its Center Shift Manager, that Taylor “doesn’t get
much done.” The record reflects that similar disqualifi-
cation forms were completed for 14 of the approximately
76 incumbent applicants, including 9 incumbent RAs
who had applied for RA positions.
Adams interviewed all incumbent applicants, including
those who were deemed disqualified for an offer of em-
ployment. Adams documented each interview with an
interview evaluation form, on which the interviewer
graded the applicant with a numerical score between one
and four in nine categories (with a score of one being the
best) and made a hiring recommendation. Based on in-
formation provided by former Horizons managers and
feedback from the interviewers, McGillis made the initial
hiring recommendations for RA positions, and Gagnon
made the final hiring decisions.
Taylor was interviewed on February 28 by McGillis,
who recommended that Taylor not be hired. Taylor’s
interview evaluation form reflects that McGillis initially
gave Taylor a score of one, or “excellent,” in two catego-
ries (skills and education and technical ability); two, or
“average,” in six categories (relevant experience, ac-
complishments, job knowledge, leadership, communica-
tion skills and interpersonal skills); and three, or “below
average,” in one category (appearance). Sometime after
the interview, McGillis revised Taylor’s interview evalu-
ation form by changing the twos to threes in four catego-
ries (accomplishments, job knowledge, leadership, and
interpersonal skills). McGillis testified that she down-
graded Taylor because “I realized I had scored her much
higher than she deserved.” On cross-examination,
McGillis elaborated that she downgraded Taylor based
on “all the cumulative information” she had, including
Taylor’s performance during her interview, information
she had about the other candidates she had interviewed,
and Taylor’s visits to the transition office when she was
performing her duties as Union president, which
McGillis characterized as “very disruptive.”
On March 3, Gagnon summarized in writing his rea-
sons for not extending an offer of employment to Taylor,
as follows: “she does not get her assigned work complet-
ed on her shift, had difficulty in dealing with staff who
were not RAs and was looking for reasons to complain.”
The statement “does not get her assigned work complet-
ed” relates to Bowman’s alleged comment that Taylor
“doesn’t get much done.” However, apart from Taylor’s
union activities, Gagnon struggled in his testimony to
explain the basis for his comments that Taylor “had dif-
ficulty in dealing with staff who were not RAs and was
looking for reasons to complain.” Significantly, Gagnon
testified that he decided not to hire Taylor based, in part,
on “my interactions with her” and “my observations of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
her interactions” with others, which Gagnon described as
“rude” and “unprofessional.” It is undisputed that all of
Gagnon’s interactions with Taylor, and Taylor’s interac-
tions with others that were observed by Gagnon, took
place while Taylor was acting in her capacity as Union
president, questioning him about the transition and its
effects on unit employees, requesting copies of job de-
scriptions, and requesting an employment application for
an RA who was on medical leave.
B. Analysis
In cases involving 8(a)(3) allegations that turn on the
employer’s motivation, the Board applies the analysis set
forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983). Under that analysis,
the General Counsel must prove that an employee’s un-
ion or other protected activity was a motivating factor in
the employer’s action against the employee. The ele-
ments required to support such a showing are union or
protected concerted activity, employer knowledge of that
activity, and union animus on the part of the employer.
See, e.g., Consolidated Bus Transit, 350 NLRB 1064,
1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). Once
the General Counsel makes this initial showing, the bur-
den of persuasion shifts to the employer to prove as an
affirmative defense that it would have taken the same
action even if the employee had not engaged in protected
activity. Manno Electric, 321 NLRB 278, 283 fn. 12
(1996), enfd. mem. 127 F.3d 34 (5th Cir. 1997).
In this case, the General Counsel met his initial burden
of showing that antiunion motivation played a part in the
Respondent’s decision not to hire Taylor. There is no
dispute that Taylor was engaged in union activity pro-
tected by Section 7 of the Act when she questioned Gag-
non about the transition, requested job descriptions, and
requested an application for a unit employee who was on
medical leave.14 And the testimony of the Respondent’s
own witnesses establish that its refusal to hire Taylor was
motivated, in part, by particular animus toward her dili-
gent pursuit of her duties as Union president.15

14 The Respondent does not contend that Taylor’s actions ever
crossed the line from protected to nonprotected under Atlantic Steel
Co., 245 NLRB 814 (1979).
15 We find additional evidence of antiunion animus in: (1) the com-
munications from Adams’ Owner and President Roy Adams to Weldon,
Pagni, and others expressing his displeasure that the Respondent had
incurred a bargaining obligation by hiring incumbent RAs as a majority
of its new RA workforce; (2) the March 27 email from Pagni to Wel-
don, sent at the direction of Roy Adams after the Respondent had in-
curred a bargaining obligation, pointing out that there were “ample
incumbent [non-unit] Sub RA’s” who “could have been used to fill RA
positions without acknowledging the union,” and emphasizing that
Although McGillis and Gagnon advanced several other
reasons for not extending an offer of employment to Tay-
lor, i.e., Taylor’s alleged poor performance during the
interview and Bowman’s comment that she “doesn’t get
much done,” the judge rejected those reasons based on
her credibility determinations and found that Adams’
reliance on those factors was pretextual. Thus, the judge
did not credit McGillis’ version of Taylor’s interview, in
which Taylor allegedly stated that she found superintend-
ing 23 students on the graveyard shift to be “harrowing,”
that she had trouble finishing her room checks in the
morning, and that she had proposed, but failed to follow
through on, a murder-mystery program. Nor did the
judge credit Bowman’s statement that Taylor “doesn’t
get much done,” finding her testimony “incredible” and
that she showed “a pronounced lack of interest in provid-
ing truthful testimony.” In sum, the judge found, based
on her credibility determinations, that all of the Re-
spondent’s proffered nondiscriminatory reasons for re-
fusing to hire Taylor were “patently pretextual.” The
Respondent has provided no compelling reason to over-
turn these credibility determinations, and we affirm
them.
It is well established that where an administrative law
judge has evaluated the employer’s explanation for its
action and concluded that the reasons advanced by the
employer were pretextual, that determination constitutes
a finding that the reasons advanced by the employer ei-
ther did not exist or were not in fact relied upon. In these
circumstances, the employer fails by definition to show it
would have taken the same action in the absence of the
protected conduct and its Wright Line defense necessari-
ly fails. Libertyville Toyota, 360 NLRB No. 141, slip op.
at 4 (2014), enfd. sub. nom. AutoNation, Inc. v. NLRB,
801 F.3d 767 (7th Cir. 2015); Metropolitan Transporta-
tion Services, Inc., 351 NLRB 657, 659 (2007); Lime-
stone Apparel Corp., 255 NLRB 722, 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982). See also Wright Line, su-
pra, 251 NLRB at 1083–1084 (where an employer’s “as-
serted justification is a sham in that the purported rule or
circumstance advanced by the employer did not exist, or
was not, in fact, relied upon . . . no legitimate business
justification for the discipline exists [and] there is, by
strict definition, no dual motive”).

“Roy [Adams] raised this issue repeatedly”; and (3) the April 25 Final
Written Warning that the Respondent issued to Weldon based on her
performance during the transition, stating that she needed improvement
in the areas of “union avoidance activities” and “where there is union
involvement . . . supervision and direction of hiring activities.” Finally,
we infer animus from the pretextual rationale offered by the Respond-
ent for its refusal to hire Taylor. As discussed below, the judge found
that all of the Respondent’s proffered reasons for its action, apart from
Taylor’s protected union activity, were “patently pretextual.”
ADAMS & ASSOCIATES, INC. 7
Accordingly, we find that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to hire
Taylor because of her union activity, as well as to avoid a
bargaining obligation.
AMENDED CONCLUSIONS OF LAW
1. Adams & Associates, Inc. and McConnell, Jones,
Lanier & Murphy, LLP are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. At all material times, Adams & Associates, Inc. and
McConnell, Jones, Lanier & Murphy, LLP (collectively,
the Respondent) have been joint employers under the
Act. Each is therefore jointly and severally responsible
for remedying the unfair labor practices of the other.
3. Sacramento Job Corps Federation of Teachers, AFT
Local 4986, American Federation of Teachers (the Un-
ion) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. The following unit is appropriate for the purposes of
collective bargaining within the meaning of Section 9(b)
of the Act: “All full-time Residential Advisors, Non-
Residential Advisors, and Day Residential Advisors em-
ployed at the [Sacramento Jobs Corps Center]” (collec-
tively, RAs or unit employees).
5. At all material times, the Union has been the exclu-
sive representative of the employees in the above-
described appropriate unit, for the purposes of collective
bargaining with respect to wages, rates of pay, hours of
employment, and other terms and conditions of employ-
ment.
6. Since February 13, 2014, the Respondent has been a
“perfectly clear” successor to Horizons Youth Services,
LLC, and was obligated to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the unit employees within the meaning of
Section 9(a) of the Act.
7. The Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(3) and (1) of the
Act by:
(a) refusing to hire Shannon Cousins-Kamara, Macord
Nguyen, Genesther Taylor, and Azaria Ting, and rescind-
ing an offer to hire Andre Lang, in an attempt to avoid
the obligation to recognize and bargain with the Union as
the exclusive collective-bargaining representative of the
unit employees; and
(b) refusing to hire Union President Genesther Taylor
because of her union activities.
8. The Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(5) and (1) of the
Act by:
(a) announcing and implementing unilateral changes in
the unit employees’ existing terms and conditions of em-
ployment on and after March 11, 2014, including ceasing
to give effect to the progressive disciplinary, just cause,
and grievance provisions of Horizons’ most recent col-
lective-bargaining agreement with the Union; imple-
menting new disciplinary policies and procedures, at-will
employment, and a mandatory arbitration policy for em-
ployment-related disputes; modifying the terms of the
existing probationary period; eliminating existing health
benefits; and changing from a fixed shift schedule to a
rotating shift schedule for some RAs;
(b) unilaterally transferring bargaining unit work out-
side of the collective-bargaining unit, by assigning RA
work to the functionally equivalent position of residential
coordinator (RC); and
(c) enforcing its access rule against Union president
Genesther Taylor, who sought entry to the Sacramento
Job Corps Center for purposes of collective bargaining.
9. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. The Respondent has not otherwise violated the Act
as alleged in the complaint.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent discriminatorily re-
fused to hire Shannon Cousins-Kamara, Macord Nguyen,
Genesther Taylor, and Azaria Ting, and discriminatorily
rescinded Andre Lang’s offer of employment, we shall
order the Respondent to offer to these employees in-
statement in the positions for which they would have
been hired, absent the Respondent’s unlawful discrimina-
tion, or, if those positions no longer exist, to substantially
equivalent positions without prejudice to their seniority
and other rights and privileges enjoyed, discharging if
necessary any employees hired in their place. The em-
ployees listed above shall be made whole for any loss of
earnings they may have suffered due to the discrimina-
tion against them. Backpay shall be computed in accord-
ance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest at the rate prescribed in New Horizons, 283
NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010).
The Respondent shall also be required to expunge from
its files any reference to the unlawful refusals to hire the
employees listed above and the unlawful rescission of the
offer to hire Andre Lang, and to notify the discriminatees
in writing that this has been done.
In addition, having found that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally chang-
ing terms and conditions of employment for the unit em-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
ployees, including ceasing to give effect to the progres-
sive disciplinary, just cause, and grievance provisions of
Horizons’ most recent collective-bargaining agreement
with the Union; implementing new disciplinary policies
and procedures, at-will employment, and a mandatory
arbitration policy for employment-related disputes; mod-
ifying the terms of the existing probationary period;
eliminating existing health benefits; and changing from a
fixed shift schedule to a rotating shift schedule for some
RAs, we shall order the Respondent, on request of the
Union, to retroactively restore the terms and conditions
of employment established in the most recent collective-
bargaining agreement between the Union and predeces-
sor Horizons, and to rescind the unilateral changes it has
made, until such time as the Respondent and the Union
reach an agreement for a new collective-bargaining
agreement or a lawful impasse based on good-faith nego-
tiations.16 The Respondent shall also be required to
make whole the unit employees for any loss of wages or
other benefits they suffered as a result of the unilateral
changes in the manner set forth in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons, su-
pra, compounded daily as prescribed in Kentucky River,
supra. With respect to the Respondent’s unilateral ter-
mination of the unit employees’ preexisting health care
benefits, we shall order the Respondent to restore, upon
request of the Union, the preexisting health care benefits
and reimburse the unit employees for any expenses ensu-
ing from the Respondent’s failure to continue the preex-
isting health care coverage, as set forth in Kraft Plumb-
ing & Heating, 252 NLRB 891, 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981), such amounts to be
computed in the manner set forth in Ogle Protection,
supra, with interest at the rate prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky
River, supra.
In addition, we shall order the Respondent to offer
Sheila Broadnax, Bienvenida Viloria, Rolando Aspiras,
and Vicente Moran full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, discharging
if necessary any employees hired in their place. The
employees listed above shall be made whole for any loss
of earnings they may have suffered due to the unlawful
discharges. Backpay shall be computed in accordance

16 Pressroom Cleaners, 361 NLRB No. 57 (2014), motion for re-
consideration denied 361 NLRB No. 133 (2014).
The Order shall not be construed as requiring or authorizing the Re-
spondent to rescind any improvements in the unit employees’ terms and
conditions of employment unless requested to do so by the Union.
with F. W. Woolworth, supra, with interest at the rate
prescribed in New Horizons, supra, compounded daily as
prescribed in Kentucky River, supra. The Respondent
shall also be required to expunge from its files any refer-
ence to the unlawful discharges and to notify the
discriminatees in writing that this has been done. How-
ever, the Respondent is entitled to show, at compliance,
that it would have discharged the employees under the
preexisting terms and conditions, avoiding as to those
employees any reinstatement, expunction, and backpay
obligation.17
To remedy the Respondent’s unilateral transfer of unit
work outside the collective-bargaining unit, we shall or-
der the Respondent to rescind the transfer of the work;
recognize the Union as the exclusive collective-
bargaining representative of employees occupying the
Residential Coordinator position; and, upon request, bar-
gain with the Union regarding those employees’ wages,
hours, and other terms and conditions of employment.
However, nothing herein shall be construed to authorize
or require the withdrawal or elimination of any wage
increase or other improved benefits or terms or condi-
tions of employment, which may have been afforded to
the Residential Coordinator employees, as compared to
the wages, benefits, and terms or conditions of employ-
ment of bargaining unit employees.
Although it does not appear from the record herein that
any employees suffered any economic loss as a conse-
quence of the Respondent’s unilateral transfer of unit
work, we shall nevertheless order it to make whole any
employees who are shown to have suffered any loss of
wages or benefits as a result of the unlawful actions, in
the manner set forth in Ogle Protection, supra, with in-
terest at the rate prescribed in New Horizons, supra,
compounded daily as prescribed in Kentucky River, su-
pra.
Finally, the Respondent shall be required to compen-
sate affected employees for the adverse tax consequenc-
es, if any, of receiving lump-sum backpay awards, and
file with the Regional Director for Region 20, within 21
days of the date the amount of backpay is fixed, either by

17 See Pacific Beach Hotel, 356 NLRB 1392, 1400 (2011); Uniserv,
351 NLRB 1361, 1361 fn. 1 (2007); Allied Aviation Fueling of Dallas,
LP, 347 NLRB 248, 248 fn. 2 (2006), enfd. 490 F.3d 374 (5th Cir.
2007).
Because the Respondent will have the opportunity at compliance to
show that it would have discharged or disciplined the above-named
employees even absent the unilateral changes, the Order and notice
shall not include the requirement that the reinstatement offers or ex-
punction be completed “within 14 days of the date of the Board’s Or-
der.” Allied Aviation, supra, 347 NLRB at 248 fn. 3. We note, however,
that such a showing would not change our finding of the underlying
violation.
ADAMS & ASSOCIATES, INC. 9
agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for
each employee. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).
ORDER
The National Labor Relations Board orders that the
Respondent, Adams & Associates, Inc., Sacramento,
California, its officers, agents, successors, and assigns,
and joint employer McConnell, Jones, Lanier & Murphy,
Sacramento, California, its officers, agents, successors,
and assigns shall
1. Cease and desist from
(a) Refusing to hire, and rescinding offers to hire, em-
ployees of predecessor Horizons Youth Services, LLC,
in an attempt to avoid the obligation to recognize and
bargain with Sacramento Job Corps Federation of Teach-
ers, AFT Local 4986, American Federation of Teachers
(the Union) as the exclusive collective-bargaining repre-
sentative of employees in the following appropriate unit:
“All Full-time Residential Advisors, Non-Residential
Advisors, and Day Residential Advisors employed at the
Sacramento Job Corps Center.”
(b) Discharging or otherwise discriminating against
employees for supporting the Union or any other labor
organization.
(c) Unilaterally changing the terms and conditions of
employment of the unit employees, including but not
limited to ceasing to give effect to the progressive disci-
plinary, just cause, and grievance provisions of the most
recent collective-bargaining agreement between Horizon
and the Union; modifying the terms of the probationary
period for unit employees; eliminating health benefits;
and modifying schedules, without providing the Union
with notice and an opportunity to bargain.
(d) Unilaterally transferring bargaining unit work out-
side the bargaining unit, without prior notice to the Un-
ion and without affording the Union notice and an oppor-
tunity to bargain with respect to this conduct.
(e) Failing and refusing to recognize the Union as the
exclusive collective-bargaining representative of em-
ployees occupying the position of Residential Coordina-
tor.
(f) Enforcing access rules against Genesther Taylor,
who sought entry to the Center for purposes of bargain-
ing with Adams.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Shannon Cousins-Kamara, Macord Nguyen, Genesther
Taylor, Azaria Ting, and Andre Lang employment in
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed, discharging if necessary any employees hired in
their place.
(b) Make Shannon Cousins-Kamara, Macord Nguyen,
Genesther Taylor, Azaria Ting, and Andre Lang whole
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner
set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful refusals
to hire Shannon Cousins-Kamara, Macord Nguyen,
Genesther Taylor, and Azaria Ting, and the unlawful
rescission of the offer to hire Andre Lang, and within 3
days thereafter, notify the employees in writing that this
has been done and that the refusal to hire or rescinding of
the offer will not be used against them in any way.
(d) On request by the Union, rescind the changes in
the terms and conditions of employment for the unit em-
ployees that were unilaterally implemented on and after
March 11, 2014, and restore the status quo ante until
such time as the Respondent and the Union reach an
agreement for a new collective-bargaining agreement or
a lawful impasse based on good-faith negotiations.
(e) Make the unit employees whole, with interest, for
any losses sustained as a result of the unilateral changes
in terms and conditions of employment in the manner set
forth in the remedy section of this decision.
(f) Offer Sheila Broadnax, Rolando Aspiras,
Bienvenida Viloria, and Vicente Moran full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously
enjoyed, unless it is shown that the Respondent would
have discharged those employees under the preexisting
terms and conditions of employment.
(g) Make Sheila Broadnax, Rolando Aspiras,
Bienvenida Viloria, and Vicente Moran whole for any
loss of earnings and other benefits suffered as a result of
the discharges, in the manner set forth in the remedy sec-
tion of this decision, unless it is shown that the Respond-
ent would have discharged those employees under the
preexisting terms and conditions of employment.
(h) Remove from its files any reference to the dis-
charges of Sheila Broadnax, Rolando Aspiras,
Bienvenida Viloria, and Vicente Moran, and within 3
days thereafter notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way, unless it is shown that the Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
spondent would have discharged those employees under
the preexisting terms and conditions of employment.
(i) Rescind the transfer of bargaining unit work out-
side the collective-bargaining unit.
(j) Recognize the Union as the exclusive collective-
bargaining representative of the employees occupying
the Residential Coordinator position and, upon request,
bargain with the Union regarding those employees’ wag-
es, hours, and other terms and conditions of employment.
(k) Make employees occupying the Residential Coor-
dinator position whole for any loss of earnings and other
benefits suffered as a result of the Respondent’s unlawful
actions, in the manner set forth in the remedy section of
this decision.
(l) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region
20, within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay awards to the appropriate calendar
years for each employee.
(m) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(n) Allow Union President Genesther Taylor access to
the Sacramento Job Corps Youth Training Center for
purposes of union and collective-bargaining activity.
(o) Within 14 days after service by the Region, post at
its facility in Sacramento, California, copies of the at-
tached notice marked “Appendix.”18 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 20, after being signed by the Respondent’s author-
ized representatives, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-

18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 13, 2014.
(p) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. May 17, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to hire you or rescind your offer
of employment because of your prior union-represented
employment with Horizons Youth Services, LLC, or
otherwise discriminate against you to avoid having to
recognize and bargain with Sacramento Job Corps Fed-
ADAMS & ASSOCIATES, INC. 11
eration of Teachers, AFT, Local 4986, American Federa-
tion of Teachers (the Union) as the exclusive bargaining
representative of “All full-time Residential Advisors,
Non-Residential Advisors, and Day Residential Advisors
employed at the Sacramento Job Corps Center” (the
unit).
WE WILL NOT discharge or otherwise discriminate
against you for supporting the Union or any other labor
organization.
WE WILL NOT change the terms and conditions of em-
ployment of our unit employees without first notifying
the Union and giving it an opportunity to bargain, includ-
ing by unilaterally ceasing to give effect to the progres-
sive disciplinary, just cause, and grievance provisions of
the most recent collective-bargaining agreement between
Horizons Youth Services and the Union; implementing
new disciplinary policies and procedures and a mandato-
ry arbitration policy; modifying the terms of the proba-
tionary period; eliminating health benefits; and changing
from a fixed shift schedule to a rotating shift schedule.
WE WILL NOT transfer bargaining unit work outside the
collective-bargaining unit, without first notifying the
Union and giving it an opportunity to bargain.
WE WILL NOT fail and refuse to recognize the Union as
the exclusive collective-bargaining representative of our
employees who are performing bargaining unit work,
including Residential Coordinators.
WE WILL NOT enforce an access rule against Union
President Genesther Taylor who sought access to the
Center for purposes of collective bargaining.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to the following former unit
employees of the predecessor, Horizons Youth Services,
who would have been employed by us but for the unlaw-
ful discrimination against them, in their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any oth-
er rights or privileges previously enjoyed, discharging if
necessary any employees hired in their places.
Shannon Cousins-Kamara
Macord Nguyen
Genesther Taylor
Azaria Ting
Andre Lang
WE WILL make the above-named employees whole for
any loss of earnings and other benefits suffered as a re-
sult of our unlawful refusal to hire them, less any net
interim earnings, plus interest compounded daily.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to hire or unlawful rescission of an offer to
hire regarding the above-named employees, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that our unlawful refusal to hire
or unlawful rescission of an offer to hire them will not be
used against them in any way.
WE WILL, on request by the Union, rescind the changes
in the terms and conditions of employment of our unit
employees that we unilaterally implemented on and after
March 11, 2014, and retroactively restore the preexisting
terms and conditions of employment as set forth in the
most recent collective-bargaining agreement between
Horizons Youth Services and the Union, until we have
reached an agreement with the Union for a new collec-
tive-bargaining agreement or a lawful impasse based on
good-faith negotiations.
WE WILL make the unit employees whole for any loss-
es sustained as a result of the unilateral changes in terms
and conditions of employment, plus interest compounded
daily.
WE WILL offer the following unit employees who were
discharged pursuant to our unilaterally implemented dis-
ciplinary policies and procedures, full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed, discharging if necessary any employees hired in
their places, subject to our demonstrating in a compli-
ance hearing that we would have discharged the employ-
ees even under the terms and conditions of employment
that existed immediately prior to the takeover of prede-
cessor Horizons Youth Services’ operation.
Sheila Broadnax
Rolando Aspiras
Bienvenida Viloria
Vicente Moran
WE WILL, subject to the condition set forth above,
make the-above named employees whole for any loss of
earnings and other benefits suffered as a result of the
discharges, less any net interim earnings, plus interest
compounded daily.
WE WILL, subject to the condition set forth above, re-
move from our files any reference to the unlawful dis-
charges of the above-named employees, and WE WILL,
within 3 days thereafter, notify the employees in writing
that this has been done and that the discharges will not be
used against them in any way.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
WE WILL rescind our transfer of bargaining unit work
outside the collective-bargaining unit.
WE WILL notify and, upon request, bargain with the
Union in good faith before transferring any work outside
the collective-bargaining unit.
WE WILL recognize the Union as the exclusive collec-
tive-bargaining representative of employees occupying
the position of Residential Coordinator and, upon re-
quest, bargain with the Union regarding those employ-
ees’ wages, hours, and other terms and conditions of em-
ployment.
WE WILL make whole employees who have occupied
the position of Residential Coordinator for any loss of
earnings and other benefits suffered as a result of our
unlawful actions, with interest, compounded daily.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 20, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WE WILL allow Union President Genesther Taylor ac-
cess to the Sacramento Job Corps Center for purposes of
union and collective-bargaining activity.
ADAMS & ASSOCIATES, INC. AND MCCONNELL,
JONES, LANIER & MURPHY, LLP
The Board’s decision can be found at
www.nlrb.gov/case/20-CA-130613 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273–1940.
Joseph D. Richardson, Esq., and David Reeves, Esq., for the
General Counsel.
Hope J. Singer, Esq., for the Charging Party.
Matthew J. Ruggles, Esq., and Michael G.Pidhirney, Esq., for
Respondent Adams & Associates, Inc.
Mickey L. Washington, Esq., for Respondent McConnell, Jones,
Lanier & Murphy, LLP.
DECISION
MARY MILLER CRACRAFT, Administrative Law Judge. The
General Counsel alleges that Respondent Adams & Associates,
Inc. (Adams) is a successor to the bargaining obligation be-
tween Charging Party Sacramento Job Corps Federation of
Teachers, AFT Local 4986, American Federation of Teachers
(the Union) and predecessor Horizons Youth Services, LLC
(Horizons).1 The General Counsel also asserts that Adams re-
fused to hire five2 Horizons employees in order to avoid a suc-
cessor obligation or, alternatively, refused to hire one Horizons
employee because of her Union activity. Further, the General
Counsel alleges that Adams discharged four employees without
prior notice to the Union or opportunity to bargain in violation
of Alan Ritchey, 359 NLRB No. 40 (2012); made unilateral
changes in terms and conditions of employment; barred a Un-
ion representative from the premises; and refused to bargain
with the Union by refusing to meet at reasonable times and
places. Alleging that Respondent McConnell, Jones, Lanier &
Murphy, LLP (MJLM) and Adams (jointly Respondents) are
joint employers, the General Counsel seeks Respondents’ joint
and several liability for remedying the alleged violations.
Hearing was held in Sacramento, California on January 26–
30 and February 4–5, 2015. On the entire record, including my
observation of the demeanor of the witnesses,
3
and after con-
sidering the briefs filed by counsel for the General Counsel,
counsel for the Union, counsel for Adams, and counsel for
MJLM, the following findings of fact and conclusions of law
are made.
JURISDICTION
Adams is a Nevada corporation providing management and
student services at Job Corps centers both inside and outside
the State of California including at the Sacramento Job Corps
Center (the Center). MJLM is a Texas LLP with an office and
place of business in Sacramento, California. It provides man-
agement, educational, and student services at Job Corps centers
both inside and outside the State of California. Both Adams and
MJLM admit that they meet the Board’s jurisdictional stand-
ards for nonretail direct outflow4 and are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of

1 The underlying unfair labor practice charge in Case 20–CA–
130613, the first amended charge and second amended charge were
filed by the Union respectively on June 10, July 30, and August 11,
2014. The underlying unfair labor practice charge in Case 20–CA–
138046 was filed by the Union on October 1, 2014. The complaint, first
amended consolidated complaint, and second amended consolidated
complaint were issued respectively on November 12, 2014, November
24, 2014, and January 6, 2015.
2 The second amended consolidated complaint was amended at the
hearing to increase the number of alleged unlawful refusals to hire from
three to five individuals. The second amended consolidated complaint
as amended at hearing will be referred to as the complaint.
3 There is little dispute with regard to the facts of this case. Howev-
er, when necessary, credibility resolutions have been made based upon
a review of the entire record and all exhibits in this proceeding. Witness
demeanor and inherent probability of the testimony have been utilized
to assess credibility. Testimony contrary to my findings has been dis-
credited on some occasions because it was in conflict with credited
testimony or documents or because it was inherently incredible and
unworthy of belief.
4 Siemons Mailing Service, 122 NLRB 81 (1958).
ADAMS & ASSOCIATES, INC. 13
the National Labor Relations Act (the Act).5
The parties agree that the Union is a labor organization with-
in the meaning of Section 2(5) of the Act. Thus, this dispute
affects interstate commerce and the Board has jurisdiction of
this case pursuant to Section 10(a) of the Act.
CORPORATE/CENTER HIERARCHY
The Job Corps program is administered by the United States
Department of Labor (DOL). It provides training to economi-
cally disadvantaged 16- to 24-year-old individuals who have
barriers to achieving academic or career training goals. The Job
Corps program provides academic training toward a high
school diploma and vocational training including career success
skills. DOL contracts for administration of Job Corps facilities.
Both Adams and MJLM have such administration contracts for
various Job Corps centers throughout the United States. MJLM
was awarded the Sacramento contract in early February 2014.6
Adams has about 2000 employees at 16 different Job Corps
facilities. At most of these facilities, Adams contracts directly
with DOL. At the Sacramento Center, however, Adams func-
tions as a first-tier subcontractor of MJLM. Roy A. Adams is
president and CEO of Adams and will be referred to as CEO
Adams. Jimmy Gagnon (Gagnon) is Adams’ executive director,
Valerie Weldon (Weldon), was executive director of human
resources at all relevant times, and Kelly McGillis (McGillis) is
deputy center director, the highest ranking Adams’ representa-
tive at the Center. McGillis reports to MJLM’s Center director,
Erica Evans (Evans). Adams’ Center shift managers are Lee
Bowman (Bowman) and Eric Cordero (Cordero). These indi-
viduals are admitted supervisors and/or agents of Adams within
the meaning of Section 2(11) and 2(13) of the Act. Tiffany
Pagni (Pagni) is General Counsel and vice president of human
resources for Adams.
MJLM has overall responsibility for management of the
Center. It directly handles education and training, maintenance,
finance, and administration. MJLM personnel in Sacramento
are Evans, the Center director, and Sharon E. Murphy (Mur-
phy), Partner. Both Adams and MJLM deny that these individ-
uals are supervisors or agents within the meaning of the Act.
Murphy signed the subcontract agreement between MJLM and
Adams and was the highest ranking MJLM individual on site
during the transition. Evans was the former Center director for
Horizons and was hired by MJLM to fill that same position for
them. After she was hired by MJLM, she, along with Murphy,
interviewed applicants during the transition period and recom-
mended hiring. I find that both Evans and Murphy were mean-
ingfully involved in recommending hire and therefore find that
they are supervisors within the meaning of Section 2(11) of the
Act. I further find substantial evidence on the record that Mur-
phy is an agent of MJLM within the meaning of Section 2(13)
of the Act.7

5 29 U.S.C. §151 et seq.
6
Unless otherwise referenced, all dates are in 2014.
7
Sec. 2(13) of the Act, 29 U.S.C. § 152(13), provides that, “In de-
termining whether any person is acting as an ‘agent’ of another person
so as to make such other person responsible for his acts, the question of
whether the specific acts performed were actually authorized or subse-
COLLECTIVE-BARGAINING RELATIONSHIP
From roughly 2009 through March 11, 2014, Horizons oper-
ated the Center pursuant to a contract with DOL. However, on
or about February 7, DOL awarded the contract to operate the
Center to MJLM and on March 11, MJLM together with its
first-tier subcontractor Adams, began operating the Center.
Adams was responsible for residential, counseling, career prep-
aration, career transition, recreation, and wellness services. At
the time of takeover, there were approximately 372 students
enrolled in the Sacramento program. Most of these students
were housed in Center dormitories and were overseen in the
dormitories by Residential Advisors (RAs).
Horizons and the Union had a collective-bargaining relation-
ship. Their most recent collective-bargaining agreement was
effective by its terms from September 1, 2010, until June 30,
2013. It was extended three times thereafter through March 9,
2014. The Union was the exclusive collective-bargaining repre-
sentative within the meaning of Section 9(a)8 of the Act for
“All full-time Residential Advisors, Non-Residential Advisors,
and Day Residential Advisors employed at the [Center],” an
appropriate unit within the meaning of Section 9(b)9 of the Act.
In March 2014, Horizons employed 26 bargaining unit employ-
ees including 24 RAs, one non-residential advisor and one day
residential advisor.10 These three bargaining unit positions will
be referred to collectively as “RAs.”
Under Horizons’ administration, the RAs were responsible
for about 23–34 students in one wing of each dormitory. Prior
to beginning its operations, Adams announced its intention to
hire only 15 RAs and to increase the number of students per

quently ratified shall not be controlling.” In determining whether a
person acts as an agent of another, the Board applies the common-law
principles of agency. Dr. Rico Perez Products, 353 NLRB 453, 463
(2008). Under the common-law rules of agency, an agency relationship
can be established by vesting an agent with actual or apparent authority.
Actual authority is “created by a principal's manifestation to an agent
that, as reasonably understood by the agent, expresses the principal's
assent that the agent takes action on the principal's behalf.” Restatement
(Third) of Agency, Section 3.01 “Apparent authority is the power held
by an agent or other actor to affect a principal's legal relations with
third parties when a third party reasonably believes the actor has au-
thority to act on behalf of the principal and that belief is traceable to the
principal's manifestations.” Restatement (Third) of Agency, Section
2.03. Certainly, by signing the subcontract with Adams, Murphy was at
a minimum an apparent agent of MJLM.
8 Sec. 9(a) of the Act, 29 U.S.C. § 159(a), provides, inter alia, that
“Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representatives of all the employ-
ees in such unit for the purposes of collective bargaining . . . .”
9 Sec. 9(b) of the Act, 29 U.S.C. § 159(b), provides that, “The Board
shall decide in each case whether, in order to assure to employees the
fullest freedom in exercising the rights guaranteed by this Act, the unit
appropriate for the purposes of collective bargaining shall be the em-
ployer unit, craft unit, plant unit, or subdivision thereof . . . .”
10 These numbers are taken from a Horizons list provided to MJLM.
RAs staff Center dormitories 24 hours a day, 7 days a week working on
day shift, swing shift, or graveyard shift. About 25 unit members were
RAs. One “non-residential advisor” works with students who are not
housed at Center dormitories. One “day residential advisor” works from
6 a.m. to 3:30 p.m. and performs inspections of the dormitories.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
RA. Horizons employed about 25 RAs. Adams also announced
it would hire five Residential Coordinators (RCs), a position
not utilized by Horizons. RCs have roughly the same job duties
as RAs but in addition to those duties, they fill in for the dormi-
tory supervisors and center shift manager when necessary. Ad-
ams considers RCs an entry-level management position. Adams
utilizes this position at its other centers throughout the United
States.
HIRING
During the transition period, all hiring was completed includ-
ing RAs and RCs. Ultimately, Adams hired 9 of its 15 RAs
from the Horizons bargaining unit. Nevertheless, the General
Counsel claims that five former Horizons RAs were not hired
due to Adams’ plan to avoid successorship by refusing to hire
its predecessor’s unit employees.
General Hiring Contours
Adams operates roughly 16 Job Corps Centers as the prime
contractor. The Sacramento Job Corps Center was Adams’ first
experience as a subcontractor to the prime contractor. The peri-
od from award to commencing operation, the transition period,
was truncated in Sacramento due to a contract appeal filed ei-
ther by Horizons or a Horizons’ subcontractor, Insights. Typi-
cally, there is a 30-day transition period between contractors. In
this case, the actual transition period began around February 13
but was blocked by the appeal on or about February 15. Adams
and MJLM packed their transition materials and equipment and
sent them to storage. Adams and MJLM returned following the
appeal and completed the transition from February 24 to March
10.
Typically, the new contractor is not given access to the old
contractor’s personnel records and this was the case in Sacra-
mento. Although Horizons did not turn over its personnel rec-
ords to MJLM, Horizons provided MJLM a list of all its current
employees (“Horizons List”) with their job titles, hire dates,
and seniority dates. MJLM shared the Horizons List with Ad-
ams. Consistent with its past practice in other transitions, in
filling positions at Sacramento, Adams’ strategy was to fill
management positions first.
In filling RA positions, Adams was required to follow Exec-
utive Order 13495 Non-Displacement of Qualified Workers
under Service Contracts (referred to here as the EO). The EO
implementing regulations went into effect in 2013 and incorpo-
rated a right of first refusal for displaced employees requiring
successor contractors and subcontractors to offer employment
to predecessor contractor “qualified” employees. The regula-
tions also required that offers of employment be issued no later
than 10 days prior to the contractor taking over the operations.
That is, Adams was required to offer qualified Horizons RAs
positions no later than March 1.
Adams provided Horizons employees with a Notice to Ser-
vice Contract Employees which provided, in part:
Adams will offer a first right of refusal for employment to
those eligible and qualified employees who worked on the
Horizons contract during the last 30 days of that contract
[with certain exceptions including]
 Adams may reduce the size of the current workforce;
therefore, only a portion of the existing eligible
workforce may receive employment offers. How-
ever, Adams will offer positions to the displaced
employees (for which they are qualified) if any
openings occur during the first 90 days of perfor-
mance on the new contract.
 Where Adams has reason to believe that an employ-
ee’s job performance while working on the current
contract has been unsuitable, the employee is not
entitled to an offer of employment on the new con-
tract.
Thus, Adams first interviewed qualified incumbent employ-
ees, that is, employees of Horizons, the contractor losing the
contract. These qualified incumbents were given the right to
apply for positions before outside applicants were considered.
Adams interviewed them and if they were “qualified,” offered
them a position. For unfilled spots, Adams recruited from the
outside.
As far as setting interview times, incumbent applicants could
come into the Center transition office and sign the list at the
front desk for an interview time. The transition team double
checked the interview schedule to make sure all incumbent
applicants were scheduled for an interview in order to issue job
offers within the transition timeframe of 10 days prior to com-
mencement of operations or March 1. If incumbent applicants
did not sign up for an interview, they were contacted by the
transition team to set up an interview time.
Residential Advisor Hiring
FACTS
At the end of each day, the interviewers met with Weldon
and Gagnon. Gagnon made the final decision on which appli-
cants to hire. The decisions to hire were made on an ongoing
basis throughout the transition period. Gagnon testified that he
used a variety of information in determining which incumbent
employees to hire including completed interview evaluation
forms, an annotated Horizons List, and disqualification forms
(which were sometimes completed in advance of interviews).
Finally, Gagnon was under corporate instruction throughout the
hiring process and these instructions impacted hiring as well.
Interview Evaluation Forms
Applications and resumes were placed in bins by job. All RA
applications were placed in a single bin and all RC applications
in another bin. Subject matter specialists, who were conducting
interviews, went through these bins and determined which ap-
plicants to interview. With regard to RA and RC applicants,
these experts were Antoinette Holman (Holman), a manager
from the Maryland corporate office; Babette Connor (Connor),
career preparation manager from the Adams Treasure Island
Job Corps Center; and McGillis. All incumbent applicants were
interviewed.
Interview evaluation forms were completed by each inter-
viewer in nine categories: skills, education, etc.; relevant expe-
rience; accomplishments; technical ability; job knowledge;
appearance; leadership; communication skills; and interperson-
al skills. Interviewers rated each applicant on a scale of one to
ADAMS & ASSOCIATES, INC. 15
four with one being excellent; two, average; three, below aver-
age; and four, unsatisfactory. Thus, an overall evaluation score
of 9 would indicate an excellent candidate in every category
and an overall evaluation score of 36 would indicate an unsatis-
factory candidate in every category.
The Horizons Lists
As soon as Adams hired its management staff, they dis-
cussed the Horizons List with these future managers to obtain
insight into which incumbent employees the future managers
thought should be hired. Specifically, as relates to RA hiring,
newly-hired center shift manager Bowman (a former Horizons’
dorm supervisor and later dorm manager with four dorm super-
visors reporting to her) spoke with McGillis on February 27
about RA and RC incumbent applicants.11
Based on Bowman’s information, the Horizons List was an-
notated by Bowman and McGillis (Horizons List I). That is,
according to McGillis, Bowman placed dots by the names of
incumbent applicants she did not recommend hiring and aster-
isks or stars by those she did recommend hiring. McGillis took
notes on the list indicating what Bowman said about various
incumbent applicants.
Horizons List I no longer existed at the time of trial. There is
no dispute that Horizons List I was copied with the dots and
stars or asterisks of Bowman but McGillis’ annotations of
Bowman’s comments were deleted. The stated purpose of
copying Horizons List I without McGillis’ annotations was to
eliminate an “inappropriate” ADA12 remark that did not relate
to an RA or RC applicant. The original handwritten notes were
McGillis’ but when the document was recreated (Horizons List
II) Gagnon wrote McGillis’ remarks. McGillis signed Horizons
List II using the original date of signing. Regarding the five
alleged discriminatees, Horizons List II states as follows:
Name Hire Date Start Date Annota-
tion
Cousins-
Kamara,
Shannon
12/27/10 12/27/10 integrity issue
Lang, Andre 08/16/11 08/16/11 no annotation
Nguyen,
Macord
07/01/08 03/29/04 sleeps +
steels [sic]
Taylor,
Genesther
08/18/08 08/18/08 Doesn’t get
much done

11 Gagnon spoke with Joe Pearson about non-RA employees on the
Horizons List and annotated particular employees with Pearson’s feed-
back. Gagnon signed this annotated Horizons List on February 26, the
date he spoke to Pearson. Newly hired Center director Evans was inter-
viewed by Sharon Murphy of MJLM about various non-RA former
Horizons’ employees on February 26 and Murphy annotated a Horizons
List to reflect Evans’ comments.
12 The Americans with Disabilities Act (ADA), 42 U.S.C. §12101 et
seq. prohibits discrimination against people with disabilities in em-
ployment, among other things.
Ting, Azaria 09/25/12 09/25/12 Not good at
doing job
Disqualification Forms
Although many of the individuals about whom Bowman
gave negative information had not yet been interviewed,
McGillis nevertheless completed “Justification for Disqualifica-
tion of Potential Employment” (disqualification forms) for
them on February 27. Based on Bowman’s information,
McGillis marked each of the five alleged discriminatees’ forms
with an “X” for, “Adams has reason to believe, based upon
written credible information from a knowledgeable source, that
this employee’s job performance while working on the current
contract has been unsuitable.”
RA applicants for whom the forms were completed included
the five alleged discriminatees as well as four individuals who
were ultimately hired as RAs. According to McGillis, her com-
pletion of this form was just one piece of information but did
not automatically disqualify individuals from being hired. Gag-
non had the completed disqualification forms in front of him
when he made the decisions to hire or not to hire. The five al-
leged discriminatees’ application and interview process was
conducted within these general contours.
Corporate Hiring Instruction
The record indicates that a corporate successorship avoid-
ance plan formed the overarching basis for hiring. Although
CEO Adams wanted to avoid successor status, his team failed
him and ultimately Horizons RAs made up a majority of Ad-
ams’ RAs. CEO Adams disciplined his team for their failure.
Based on these facts, I find that from the beginning of the tran-
sition, the corporate plan was to avoid successor status.
In late February or early March, at a time when there were
just a few more RA slots to fill, Gagnon explained that Adams
was having difficulty determining whether there was sufficient
information to disqualify certain incumbent applicants as RAs
because they had interviewed well and had good scores.
Around this time, Gagnon recalled a conversation with Weldon
about whether to hire Calahan,1913 Lang,14 Moran,15 and/or
Ostrowski16 as RAs. Although Gagnon did not recall whether
they spoke about the Union, Weldon confirmed that they did.
Weldon credibly testified that on this occasion in late Febru-
ary or early March, she and Gagnon went through the four ap-
plicants’ folders and noted that these incumbent employees had
been recommended by their interviewers for hire. She told
Gagnon, “We can’t not hire these employees . . . just because
they are part of the Union. We have to hire them because they

13 Calahan was interviewed by Murphy and was given an overall
score of two which is average with a recommendation to hire.
14 Lang scored a perfect one overall evaluation from interviewer
Antionette Holman. Holman recommended hiring him.
15 Moran was interviewed by Don Khajavi (Khajavi), an MJLM
consultant, who recommended hiring him and gave him an overall
evaluation score of one which is the highest score and signifies excel-
lent.
16 Ostrowski was interviewed by Khajavi on February 27 and scored
1.5 on her overall evaluation. Khajavi recommended hiring.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
are—based upon our interview process they passed and they
should be hired.”
Ultimately Gagnon decided to hire the individuals. Some-
time after the meeting, probably toward the end of the week
when they had finished hiring, CEO Adams pulled Weldon
aside and told her that these hires had caused Adams to incur a
bargaining obligation with the Union. He stated, “[W]e screwed
up. The Union was now involved and he was not happy.”
On March 4, CEO Adams sent an email to Pagni, Gagnon,
Weldon and others stating,
Unfortunately, we hired the majority of the union members at
Sacramento and we, therefore, must negotiate a Collective
Bargaining Agreement and incur other associated union legal
costs. We should capture the union associated costs incurred
at Treasure Island and use a basis to revise our Sacramento
budget to cover those expenses.
In late March, Weldon was sent back to Sacramento to gath-
er additional information for various Horizons employees who
were not hired by Adams. While there, she received an email
from Pagni telling her that Erica [Evans] comments were not
helpful supplemental information and Evans had mentioned the
union in her comments. Pagni continued, “Union involvement
was not questioned or used as a [disqualify]ing factor for these
individuals and cannot be used in these further supporting doc-
uments. We need to take any mention of union out.” Prior to
receiving this email, Weldon recalled that Pagni told her in a
phone conversation or in person that the union was not to be
referenced in the supplemental information.
In CEO Adams’ email of March 22, “Significant Perfor-
mance Concerns,” however, he noted that a priority to “Within
compliance guidelines, avoid union recognition” had not been
achieved. He concluded, “Despite repeated direction, guide-
lines, forms, discussion, HR staff experience, qualifications, 10
years of union avoidance responsibility, and, quite frankly,
common sense, the company HR department failed to achieve
minimum performance at the Sacramento transition.”
In any event, during the week of March 24, Weldon gathered
additional information by interviewing former Horizons’ su-
pervisors about employees who were not hired by Adams. She
completed a “Qualification Assessment” for each individual she
was told needed bolstering information. She interviewed man-
agers during that week regarding former Horizons RAs Cous-
ins-Kamara, Azyha Jones, Nguyen, and Ting. She also com-
pleted similar information for some non-RA employees.
On March 26, Pagni sent an email to Weldon, “Quick clean-
up” asking among other things that Weldon “(take out union
reference in [Taylor’s] statement).” Weldon responded,
“Done.”
On March 27, Pagni propounded a set of questions to Wel-
don regarding human resources performance during the transi-
tion. One set of questions along with Weldon’s answers fol-
lows. In understanding the questions, it is important to note that
a substitute resident advisor, “Sub RA,” is not a bargaining unit
position.
Question: In preparing a recent summary of individuals who
applied versus those who were hired, there are ample incum-
bent Sub RA’s on the list. These incumbent employees could
have been used to fill RA positions without acknowledging
the union. Roy [Adams] raised this issue repeatedly.
Answer: This was not raised to me.
Question: Do you know why these individuals were passed
over for [fulltime] RAs?
Answer: We were instructed to provide everyone on the in-
cumbent list the opportunity for an interview. As far as I
know, everyone was interviewed. The decision to hire was not
mine, but the people who were in charge in conjunction with
the people who conducted the interviews.
On April 25, Weldon received a Final Written Warning. One
of the performance concerns raised was that she had completely
failed to provide union avoidance training. Weldon had never
received a written warning after completing any other transi-
tions.17
In an email dated March 22, owner Adams wrote to Pagni
stating that he was concerned about human resources oversight
failures in the Sacramento transition listing various priorities of
the transition including, “Within compliance guidelines, avoid
union recognition” and “Protect the company from expensive
union-related costs. . . .” Pagni’s email to Weldon of March 27
notes that owner Adams repeated raised the issue of why sub-
stitute RAs were not hired over fulltime RAs.
Based upon this evidence, I find that the corporate intent to
avoid successor status and avoid recognition of the Union was
in place from the beginning of the transition period. Hiring
records were sanitized to omit mention of the Union, the Hori-
zons List among them. Interview forms were altered and shred-
ded and are thus unreliable. Immediately upon the hiring of
four incumbent RA applicants, CEO Adams expressed his dis-
pleasure that a majority of his RA work force were former Ho-
rizons RAs. Weldon was sent back to strengthen the reasons for
not hiring some of the five alleged discriminatees. Weldon was
disciplined for failing to avoid Union recognition. CEO Adams
voiced displeasure at his teams’ failure to hire non-unit substi-
tute RAs as is apparent from Pagni’s subsequent communica-
tions with Weldon, and Weldon was disciplined for failure to
avoid successor status.
Ultimate Hiring
Fourteen members of the Horizons bargaining unit applied
for RA positions with Adams. Nine of them were hired as Ad-
ams RAs. These were Rolando Aspiras, Sheila Broadnax, Di-
ane Calahan, Carmen Cole, Vicente Moran, Karine Osaki, Jill
Ostrowski, Olaisa Talakai, and Bienvenida Viloria. Horizons
RA Lang was also extended an offer but it was subsequently
rescinded. Thus, the five alleged discriminatees were not hired
as Adams RAs. Instead, former Horizons substitute RAs and
one former Horizons custodian were hired for those positions.
ANALYSIS
While a successor employer is not obligated to hire its pre-
decessor's employees, it may not discriminate against those
employees on the basis of antiunion animus. NLRB v. Burns

17 Although she did not recall any prior corrective action, Adams’
files contained one from 2007 due to performance issues. This correc-
tive action did not involve a transition effort.
ADAMS & ASSOCIATES, INC. 17
International Security Services, 406 U.S. 272, 280–281 (1972);
see also, U. S. Marine Corp., 293 NLRB 669, 670 (1989), enfd.
944 F.2d 1305 (7th Cir. 1991), cert. denied, 503 U.S. 936
(1992) (same).
In the context of successor avoidance, the General Counsel
has the burden to prove that the employer failed to hire em-
ployees of its predecessor and was motivated by antiunion ani-
mus. Planned Building Services, 347 NLRB 670, 673 (2006)
(incorporating Wright Line18 and rejecting the analytical
framework of FES19 in the successor avoidance context).20
Once this is shown, the burden then shifts to the employer to
prove that it would not have hired the predecessor’s employees
even in the absence of its unlawful motive. Planned Building
Services, supra, 347 NLRB at 674. The Board examines factors
such as substantial evidence of union animus, lack of a con-
vincing rationale for refusal to hire the predecessor's employ-
ees, inconsistent hiring practices or overt acts or conduct evi-
dencing a discriminatory motive, and evidence supporting a
reasonable inference that the new owner conducted its staffing
in a manner precluding the predecessor's employees from being
hired as a majority of the new owner's overall work force to
avoid the Board’s successorship doctrine. U. S. Marine Corp.,
supra, 293 NLRB at 670.
Overwhelming evidence supports the government’s allega-
tion that Adams refused to hire former employees Cousins-
Kamara, Lang, Nguyen, Taylor, and Ting in order to avoid the
obligation to recognize and bargain with the Union as a succes-
sor employer. The General Counsel has satisfied its initial bur-
den by showing substantial evidence of union animus in the
corporate hiring plan, conduct specifically incorporating a dis-
criminatory motive, i.e., Adams’ anti-union plan to avoid suc-
cessor status, and staffing priorities specifically established to
avoid hiring a majority of its work force from its predecessor.
Hence, the General Counsel has shown that Adams’ hiring
personnel were under orders to avoid hiring former unit em-
ployees in an effort to avoid an obligation to recognize the Un-
ion.

18 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983) (In broad terms,
General Counsel must prove employer’s action was result of animus
toward union; employer must prove it would have taken the same ac-
tion in any event).
19
FES, 331 NLRB 9 (2000), supplementing Wright Line and
providing an analysis for discriminatory refusal to hire or to consider
for hire. FES requires, generally, that in addition to proving unlawful
motive, the General Counsel establish that the employer was hiring and
that the applicants were qualified or the qualifications were not applied
or were pretextual.
20 In Pressroom Cleaners, 361 NLRB No. 57, slip op. at 6 (2014),
motion for reconsideration denied, 361 NLRB No. 133 (2014), the
Board overruled Planned Building Services to the extent it allowed an
employer to show in compliance that if it had bargained in good faith, it
would not have agreed to the monetary provisions of its predecessor’s
collective-bargaining agreement. The Board returned to its prior stand-
ard requiring that the monetary portion of the remedy be measured by
the predecessor’s terms and conditions until the parties reach agreement
or impasse, as set forth in State Distributing Co., 282 NLRB 1048,
1049 (1987).
CEO Adams’ corporate goal was to avoid Union recognition.
He made this clear in his March 4 email: “Unfortunately, we
hired the majority of the union members at Sacramento. . . .”
and in his subsequent disciplinary action lodged against Wel-
don for failure, among other things, to provide union avoidance
training and her lack of familiarity with the use of company
forms and procedures especially where union involvement is
present. Moreover, CEO Adams repeatedly stressed the need to
hire non-bargaining unit substitute RAs over the bargaining
unit RAs in order to avoid successor status. Although this evi-
dence of corporate strategy post-dates the hiring, I find it clear-
ly evinces a plan from the beginning of hiring to avoid union
recognition. The fact that the anti-union corporate strategy
failed does not negate the evidence of animus.
Adams’ explanations for its refusal to hire the alleged
discriminatees are patently pretextual. Adams struggled to pro-
vide meaningful rationale for disqualifying incumbent bargain-
ing unit candidates Cousins-Kamara, Nguyen, Taylor and Ting,
sending Weldon back for further after-the-fact evidence and
instructing her to sanitize documents by deleting any reference
to the Union. Instead of hiring these experienced candidates,
Adams chose non-unit Horizons substitute RAs and one Hori-
zons custodian.
Further, regarding these five candidates, at least one of their
original interview forms was shredded, others were altered, and
Bowman’s feedback regarding them, as recorded by McGillis,
was sanitized to remove reference to the Union. Further, even
absent shredding, alteration, and sanitization, the purported
reasons for failure to hire are pretextual.
Regarding Cousins-Kamara, who was hired by Horizons De-
cember 27, 2010 and worked on the swing shift in the Shasta
dorm as an RA, McGillis recalled interviewing her on February
27. She testified that Cousins-Kamara provided a lot of infor-
mation “that sounded almost too good to be true.” For instance,
according to McGillis, Cousins-Kamara said she was awarded a
dorm of the month recognition month after month and was
employee of the month. “And she really kind of went on and on
about how wonderful she was in the dorm that she was assigned
to perform.” According to the unrebutted testimony of Andre
Lang, who worked with Cousins-Kamara in the Shasta dorm,
all of this information was true. And despite her avowed skepti-
cism at the hearing, McGillis nevertheless completed an origi-
nal interview evaluation form based on what Cousins-Kamara
told her and then shredded it after speaking with Bowman.
McGillis admitted that she shredded this form and replaced it
with a second form after speaking with former dormitory su-
pervisor Bowman. On the second form, McGillis recommended
not hiring Cousins-Kamara commenting, “Interviewer felt
[Cousins-Kamara] was not forth coming when asked ques-
tions.” This is obviously a false statement. McGillis actually
believed Cousins-Kamara and completed an original form
based on what Cousins-Kamara told her. On the second form,
McGillis decided to give Cousins-Kamara an overall rating of
average. There is no evidence regarding what score she gave
Cousins-Kamara on the first form. Interestingly, Gagnon did
not rely on McGillis’ second interview form either. On March
3, in summarizing his reasons for not extending an offer to
Cousins-Kamara, Gagnon relied on the Horizons List II stating
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
that “Adams management received information from current
center management that the applicant had integrity issues.”
Gagnon never spoke to Bowman. I find the trail of shredding
and sanitization covers original positive impressions of Cous-
ins-Kamara and an intent to hire. The papering over of original
documents convinces me that Adams’ reasons for not hiring
Cousins-Kamara are pretextual. Thus I find that failure to hire
Cousins-Kamara was due to Adams successor avoidance plan
and violated Section 8(a)(3) and (1) of the Act.
Similarly, with regard to withdrawal of the offer to Lang,
there can be no doubt that his offer was withdrawn for specious
reasons contrary to other applicants whose background checks
showed similar disparities. Thus, Adams utilized an incon-
sistent policy by hiring non-unit employees with background
check inconsistencies but by withdrawing its offer of employ-
ment to Lang, who scored a perfect one in every category of the
employment interview, because his dates were different than
the ones provided on a background check. The dates were not
necessarily incorrect but were different due to a restriction on
information the reporting company could provide.
Lang worked for Horizons as on-call RA (a non-bargaining
unit position) for seven months and then on August 2, 2011, he
was hired full-time as an RA on the swing shift (3 p.m. to mid-
night). He worked with Cousins-Kamara at the Shasta dorm.
According to his undisputed testimony, they won the dorm of
the month award on three occasions and a dorm of the year
award for 2013 as well.
On February 27, Lang achieved an excellent overall evalua-
tion score from Holman, his interviewer, who recommended
that he be offered an RA position. Lang received a one (excel-
lent) on all nine of the criteria. Lang was offered and accepted
an RA position.
Lang’s offer was withdrawn after a background check re-
vealed that the dates he provided for a former position with a
temporary employment agency, April 2008 to April 2009,21 did
not match the verified dates of employment reported to the
background checker: “February 6, 2013 to present (Original
hire date: 2004) (note discrepancy).” The background check
further stated, “We contacted this [employer] and this was all
the information that they can provide. We were advised that
they can only provide the original hire date and most recent
dates of employment.” Gagnon did not look into this matter by
contacting Lang. The discrepancy in dates of employment on
the background check was the only reason Lang’s offer of em-
ployment was rescinded.
Other individuals who were offered employment with Ad-
ams and whose background checks showed discrepancies did
not have their offers rescinded. However, none of them were
prior Horizons’ bargaining unit employees. For instance, suc-
cessful RA applicant Siegfried Coleman’s background check
revealed a discrepancy between his stated dates of prior em-

21 The actual dates listed on Lang’s application were May 2007 to
January 2008 not, as stated on the background check, April 2008 to
April 2009. This background check mistake did not affect the ultimate
background check finding of discrepancy as under either set of facts, it
was impossible to verify the dates of employment due to Lang’s past
employer’s refusal to provide any information other than original hire
date and most recent dates of employment.
ployment of October 2008 to present to the verified dates of
October 2008 to January 2009. Successful RA applicant Janelle
Carroll listed her dates of employment with a prior employer as
January 2012 to September 2013 while the verified dates were
November 2011 to September 2013. Anthony Davis’ RA offer
from Adams was not rescinded although he listed prior em-
ployment as “Youth Program Management” when his verified
employment was “Child Care Worker.” Amy Mathers’ offer
from Adams to be a substitute RA was not rescinded although
her background check revealed prior employment from 1995 to
2009 rather than 1995 to 2008, as stated in Mathers’ applica-
tion. Similarly, two discrepancies in Sharytta Scroggins’ em-
ployment dates did not result in her RA offer being rescinded.
One discrepancy listed past employment from 2005 to 2010 and
no records could be verified. The other listed past employment
from 2004 to 2005 but was verified for January 2006 to Febru-
ary 2006.
At hearing, Gagnon explained that he had never seen these
discrepancies. Other than Lang’s, he recalled seeing one other
residential advisor background check discrepancy and it was
resolved by Weldon. In that case, he recalled the background
checker could not verify a high school diploma. The applicant
was contacted and brought in a copy of the diploma for verifi-
cation. As to other background check discrepancies, he was
unaware whether Weldon investigated them. Accepting Gag-
non’s explanation as true, it merely highlights the fact that prior
Horizons employees were given extra scrutiny. The background
check was used as a pretext to withdraw Lang’s offer. From the
evidence, I conclude that but for his status as a former member
of the Horizons bargaining unit, Lang’s offer would not have
been withdrawn. Thus I find that rescinding the offer to Lang
was due to Adams’ successor avoidance plan and violated Sec-
tion 8(a)(3) and (1) of the Act.
Nguyen worked for Sacramento Job Corps contractors since
2004. He served as union treasurer. When Gagnon interviewed
Nguyen, he rated him as average or above average in every
category except communication skills, giving Nguyen a below
average rating and noting “hard to understand, broken English.”
Gagnon testified that he did not rely on his perception that
Nguyen was difficult to understand when making a decision to
hire or not hire Nguyen. On the interview form, Gagnon did not
mark a recommendation to hire or not to hire. On March 3,
Gagnon memorialized his reasons for not hiring Nguyen in-
cluding, “data integrity issues” and “sleeping on the job.” Gag-
non could not recall what he was referring to when he men-
tioned “data integrity issues.” However, it is obviously a refer-
ence to the Horizons List II. I find that Adams has not shown
that it would not have hired Nguyen in any event. Rather, I find
that Horizons rejected Nguyen’s 10 years of experience in favor
of hiring inexperienced nonbargaining unit substitute RAs or a
custodian in order to avoid hiring a majority of its unit employ-
ees from the Horizons unit. Accordingly, I find that Adams
refused to hire Nguyen as part of its successor avoidance plan
in violation of Section 8(a)(3) and (1) of the Act.
Horizons employed Taylor as an RA from August 2008
through March 10, 2014. From 2009 through 2014, she worked
Monday through Friday on the so-called “graveyard” shift
(11:30 p.m. to 8 a.m.) Her supervisor was initially Siona
ADAMS & ASSOCIATES, INC. 19
Nusilla and when he left in 2012, her supervisor was Vando
Tamanalevu (Tamanalevu). Taylor was responsible for the
Lassen and Donner dormitories until 2013 when the Lassen
dorm was closed. Thereafter, she was responsible for the Don-
ner dormitory. Taylor estimated there were typically 23 to 34
students in each dorm.
Adams purportedly relied on interviews and feedback from
Bowman in not hiring Taylor. Regarding the interview, Taylor
and McGillis might as well have been at separate meetings
given the disparity of their testimony about the interview. As
between Taylor and McGillis, based on their relative demean-
ors,
22
I credit Taylor that she told McGillis that she completed
a murder mystery program for the students rather than
McGillis’ version that Taylor said she thought about a murder
mystery program but never brought it to fruition. Further, I
credit Taylor that she did not tell McGillis that she had “har-
rowing” experiences in the dormitory. Apart from my demean-
or finding above, McGillis’ testimony about the murder mys-
tery and the “harrowing” experiences is not inherently credible
based on the common sense that no candidate for hiring, espe-
cially one as experienced as Taylor, would have made such
statements.
Additionally, I note that McGillis admitted that she lowered
Taylor’s interview scores by adding an extra loop to her “2”s to
make them look like “3”s based not only on the interview but
also on Taylor’s “rude” “unprofessional” behavior in the transi-
tion office when Taylor was pursuing Union activities.23 Final-
ly, Bowman’s feedback, which McGillis had at the time of her
interview with Taylor,24 was that Taylor did not get much done.
On March 3, Gagnon signed a summary of the reasons he did
not hire Taylor as follows: “she does not get her assigned work
completed on her shift, had difficulty in dealing with staff who
were not RAs and was looking for reasons to complain.” It is

22 Taylor’s testimony was straight-forward, convincing, and un-
flinching. McGillis’ testimony was laced with examples of shredding,
back dating and signing forms to make them look like originals when
they were actually manufactured at a later time, writing over interview
forms in an attempt to cover up original impressions. Based on
McGillis’ friendly demeanor, these corporate mis-steps took on a surre-
al quality inviting one to accept these actions as an ordinary day at the
office.
23 McGillis reported for duty in Sacramento on February 25. Ac-
cording to McGillis, within five minutes of arriving at the Sacramento
transition office, she encountered Taylor. McGillis was unloading
boxes. She and others were engaged in trying to set up the transition
room. Taylor was speaking in a loud voice and requested a blank Ad-
ams’ application form for Gloria Franklin, a Horizons RA who was out
on leave. McGillis described Taylor as “very insistent” and saying
things like, “she wasn’t going to wait, she wasn’t going to leave, she
didn’t have time, those types of things.”
24 Bowman had no recollection of what feedback she provided and
attempts to refresh her recollection failed. In an affidavit given to the
NLRB, Bowman also stated that she had no recollection of her state-
ments to McGillis. In a subsequent affidavit submitted by Adams in a
federal court 10(j) proceeding, Bowman’s recollection had improved
but by the time of trial, she no longer recalled anything. All in all,
Bowman’s testimony was incredible and her demeanor somewhat un-
cooperative with a pronounced lack of interest in providing truthful
testimony.
unclear where these perceptions originated.25 In utilizing the
criteria that Taylor “was looking for reasons to complain,”
Taylor’s activities as Union president are implicated. Further,
Adams’ reliance on McGillis’ comment regarding Taylor’s
rude, unprofessional behavior while in the transition office also
indicates anti-union animus.26 Thus I find on the record as a
whole that Respondent has not produced sufficient evidence to
prove that it would not have hired Taylor in any event. 27 I
further find that failure to hire Taylor was due to a corporate
strategy to avoid successor status and violates Section 8(a)(3)
and (1) of the Act.
Ting worked for Horizons as an RA since September 25,
2012. She was interviewed by Connor on February 27 for the
RA position. She scored slightly below average and was not
recommended for hire. Connor wrote, “Could not explain “‘re-
tention’; weakness/challenge ‘not being perfect.’” Connor
could not recall Ting’s interview when she was questioned at
the hearing and did not participate in the decision regarding
employment of Ting.
Gagnon testified that he made the decision not to hire Ting
based on a meeting with Evans on February 25. Evans related
that Ting had an accountability issue, “not showing up for
work.” Gagnon also relied on Ting’s interview form. Ting was
interviewed by Babette Connor (Connor), the counseling man-
ager from Adams’ Treasure Island Center, on February 27.
Connor’s overall evaluation was below average with a recom-
mendation not to hire. Her comment stated, “Could not explain
“Retention Weakness/challenge ‘not being perfect.” Gagnon
summarized the reasons for not hiring Ting in a memorandum
of March 4 as follows: “Ms. Ting was not good at doing RA
tasks. Additionally, Adams management had received addition-
al information on 02/25/2014 that Ms. Ting had accountability
issues and would not regularly show up for her scheduled work
hours.”
Although Adams defends its failure to hire Ting with docu-
ments and testimony which are neutral in nature, it is difficult
to credit these reasons for not hiring Ting in light of the corpo-
rate policy of successor avoidance. Further, Connor could not

25 Gagnon testified that his affidavit statement that he relied heavily
on McGillis’ interview notes from Taylor’s interview in not hiring
Taylor was in error. A statement in his affidavit that he also relied on a
qualification assessment signed by Bowman in not hiring Taylor was in
error, so he testified. His affidavit statement that he relied on another
qualification assessment with the name Eric Cordero on it in not hiring
Taylor was also in error according to his testimony.
26 See, e.g., Bruce Packing Co., Inc., 357 NLRB 1084, 1085 (2011)
(“bad attitude” is veiled reference to protected, concerted activity);
Promenade Garage Corp., 314 NLRB 172, 179–180 (1994) 9(same).
27 In light of my conclusion, it is unnecessary to address the General
Counsel’s alternate theory that Taylor was not hired due to her Union
activity. Were it necessary to address, I would find, consistent with the
general refusal to hire analysis, that Taylor was specifically not hired
due to her Union activity. Both McGillis and Bowman made comments
suggesting a negative view of Taylor’s Union activity claiming she
abused her position and attempted to make issues where there were
none. McGillis admitted that Taylor’s “inappropriate” and “demand-
ing” behavior occurred when Taylor was engaged in Union activity.
This evidence constitutes specific evidence of animus toward Taylor’s
Union activity.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
independently recall her interview of Ting and, in any event,
Gagnon testified he did not rely on the interviewer’s recom-
mendation to hire or not to hire. Due to the corporate successor
strategy, I find that these reasons for failure to hire Ting cannot
be credited and are pretextual. Thus, I find that Adams failed to
hire Ting as part of its unsuccessful successor avoidance policy
in violation of Section 8(a)(3) and (1) of the Act.
As the record on the whole amply proves, motivated by anti-
union animus Adams failed to hire Cousins-Kamara, Nyugen,
Taylor, and Ting and rescinded Lang’s offer of employment.
Adams has not shown that it would not have hired these em-
ployees and would not have rescinded Lang’s offer of employ-
ment even in the absence of the unlawful motive. I find that but
for Adams’ unlawful animus as illustrated by its corporate
scheme, Adams would have filled five vacancies with Horizons
employees Cousins-Kamara, Lang, Nyugen, Taylor, and Ting.
Accordingly, I find that in refusing to hire Cousins-Kamara,
Nyugen, Taylor, and Ting, and by rescinding Lang’s offer of
employment, Adams violated Section 8(a)(3) and (1) of the
Act.
ALLEGED UNILATERAL CHANGES
FACTS
The General Counsel alleges Adams implemented “whole-
sale changes to the employment relationship.”28 The complaint
specifically alleges29 that Adams
 unilaterally removed work from the unit by reclassi-
fying employees as RCs;
 unilaterally removed work by reclassifying the non-
resident advisor as a non-resident counselor;
 ceased giving effect the dues deduction provision of
the contract;
 cease giving effect to progressive discipline provi-
sions of the contract;
 ceased honoring the grievance provision of the con-
tract;
 eliminated unit health benefits;
 changed from a fixed scheduled to a rotating shift
schedule for some unit employees; and
 modified the probationary period terms for unit em-
ployees.
The record reflects that all of these changes were made.
Some were made prior to the hiring of employees and some
were made after a full employee complement was on board. All
were made prior to the March 28 recognition of the Union. It is
without dispute that no notice or opportunity to bargain was

28 It is worthy of note that the General Counsel does not allege that
reducing the number of RAs from approximately 25 to 15 constituted a
unilateral change. Pursuant to the General Counsel’s “perfectly clear”
successor theory, this change was announced prior to attachment of a
bargaining obligation on March 11.
29 General Counsel’s request to withdraw paragraph 13(e) of the
complaint is granted. That paragraph alleged that Adams ceased giving
effect to the seniority provisions of the most recent collective bargain-
ing agreement between Horizons and the Union without affording
notice and opportunity to bargain.
afforded the Union regarding any of these changes.
ANALYSIS
In Burns supra, 406 U.S. at 280–281, the Court held that an
employer is a “successor” to a prior employer’s bargaining
obligation when it maintains substantial continuity of opera-
tions and hires a majority of its own employee complement
from the prior employer’s unit employees. Determination of
substantial continuity is based on a comparison of business
operations, physical facilities, work force, jobs, working condi-
tions, supervisors, machinery, equipment, production methods,
and product. See also, Fall River Dying Corp. v. NLRB, 482
U.S. 27, 42–46 (1987).
There is no dispute that on March 11, the date when Adams
began operating the Center, a majority of its own employee
complement were bargaining unit employees from Horizons.30
Further, Adams continued substantially identical operations
using the identical physical facility, the Center, and identical
equipment (all equipment belonged to the Job Corps) to that
used by Horizons. Similarly, the same students remained and
many Horizons’ managers were retained by Adams. Adams
RAs worked in the same dormitories housing the same students
that were utilized by Horizons. Adams was required to perform
the same services as Horizons under the same DOL require-
ments. I find on the record as a whole that these facts establish
that Adams was a Burns successor to the bargaining obligation
of Horizons.
On March 11, the Union demanded recognition and bargain-
ing. Although Adams initially refused to bargain, on March 28,
Adams recognized the Union as the bargaining representative
for its RAs. Adams does not challenge and, in fact, concedes its
successor status. What is at issue is whether Adams could make
changes in terms and conditions of employment without first
bargaining with the Union including changes made before
March 11 when it began operating with a majority of its RAs
hired from Horizons.
Before it hires a majority of its unit employees from the pre-
decessor, a putative Burns successor may set initial terms and
conditions of employment. Burns, supra, 406 U.S. at 294. Once
the putative successor employer becomes an actual successor
employer, it is obligated to recognize and bargain with the pre-
decessor employees’ union before changing terms and condi-
tions of employment. Burns, supra, at 278–279; Fall River
Dyeing, supra, 482 U.S. at 41.
However, the Burns right to set initial terms and conditions
may be lost. If a successor employer unlawfully refuses to hire
its predecessor’s employees, it may not set initial terms and

30 The record reveals only that a majority of the workforce were
former employees of Horizons as of March 11, the first day of Adams’
operation. Employees signed employment agreements and offer letters
on various dates in late February and early March. It is possible to find
dates for seven former Horizons RAs who signed either an offer letter
or an employment agreement as follows: Broadnax, March 6; Calahan,
March 8; Cole, February 28; Osaki, March 1; Ostrowski, March 3;
Talakai, March 2; and Villoria, February 28. The remaining former
Horizons RAs who were hired, Aspiras and Moran, were certainly hired
by the first date of operation, March 11. Thus, I have used this date for
the attachment of majority status.
ADAMS & ASSOCIATES, INC. 21
conditions of employment. Pressroom Cleaners, 361 NLRB
No. 57 (2014); Planned Building Services, 347 NLRB 670, 674
(2006), both relying on Love’s Barbeque Restaurant No. 62,
245 NLRB 78, 82 (1979), enfd. in relevant part sub nom.
Kallmann v. NLRB, 640 F.2d 1094 (9th Cir. 1981) (employer
who discriminately refuses to hire predecessor employees may
not unilaterally set initial terms and conditions).
Further, in situations where the putative successor actually
hires a majority of its predecessor’s unit, if it does so utilizing
an unlawful purpose, it forfeits the Burns right to set initial
terms. This was the case in Advanced Stretchforming Interna-
tional, Inc., 323 NLRB 529 (1997), enfd in relevant part, 208
F.3d 801 (9th Cir. 2000); amended 233 F.3d 1176 (9th Cir.
2000), cert denied, 534 U.S. 948 (2001), in which the employer
hired a majority of its workforce from its predecessor while
telling them it would not recognize the union. The Board stated,
Id. at 530:
The fundamental premise for the forfeiture doctrine is that it
would be contrary to statutory policy to “confer Burns rights
on an employer that has not conducted itself like a lawful
Burns successor because it has unlawfully blocked the process
by which the obligations and rights of such a successor are in-
curred.” State Distributing Co., 282 NLRB 1048, 1049
(1987).
A second example of loss of the right to set initial terms and
conditions of employment occurs when it is “perfectly clear”
that the putative successor will hire all of its predecessor’s em-
ployees. The General Counsel’s brief regarding the unlawful-
ness of the alleged unilateral changes is not based upon the
Love’s Barbeque theory. Rather, the General Counsel asserts
that Adams is a “perfectly clear” Burns successor and thus
violated Section 8(a)(5) of the Act by setting initial terms with-
out first bargaining with the Union. I reject this argument be-
cause I find that Adams was not a “perfectly clear” Burns suc-
cessor as limited by Spruce Up Corp., 209 NLRB 194 (1974),
enfd. mem. 529 F.2d 516 (4th Cir. 1975).
As mentioned before, ordinarily, a statutory successor is not
bound by the substantive terms of the predecessor’s collective-
bargaining agreement and, prior to hiring a majority, may set
initial terms and conditions of employment. Burns, supra, 406
U.S. at 280–281.The Court noted that there might be exceptions
in which a successor must bargain with the union before setting
initial terms. Id. at 294–295. This is known as the “perfectly
clear” caveat:
Although a successor employer is ordinarily free to set initial
terms on which it will hire the employees of a predecessor,
there will be instances in which it is perfectly clear that the
new employer plans to retain all of the employees in the unit,
and in which it will be appropriate to have him initially con-
sult with the employees’ bargaining representative before he
fixes terms. In other words, it may not be clear until the suc-
cessor employer has hired a full complement of employees
that he has a duty to bargain with a union since it will not be
evident until then that the bargaining representative represents
a majority of the employees in the unit as required by Section
9(a) of the Act, 29 U.S.C. § 159(a).
Thus the Court stated that a “perfectly clear” successor
would be appropriately restricted in setting its initial terms and
conditions of employment and instead must first consult with
the union before fixing terms and conditions of employment. In
Spruce Up Corp., supra, 209 NLRB at 195, the Board “con-
cede[d] that the precise meaning and application of the Court’s
[“perfectly clear”] caveat is not easy to discern.” After making
this observation, a majority of the Board (Chairman Miller and
Member Jenkins with Member Kennedy concurring in relevant
part; Members Fanning and Panello dissenting separately),
limited the “perfectly clear” caveat as follows, Id. at 195:
We believe the caveat in Burns, therefore, should be restricted
to circumstances in which the new employer has either active-
ly or, by tacit inference, misled employees into believing they
would all be retained without change in their wages, hours, or
conditions of employment, [footnote omitted] or at least to
circumstances where the new employer, unlike the Respond-
ent here, has failed to clearly announce its intent to establish a
new set of conditions prior to inviting former employees to
accept employment.
Adams was not a “perfectly clear” Burns successor as lim-
ited in Spruce Up. Adams did not actively or tacitly indicate
that all employees would be retained. Further, even were there
evidence sufficient to make such a finding, Adams indicated
prior to hiring each employee that it planned to change many
terms and conditions of employment.
The regulatory framework applicable to the transition from
one contractor to the next did not mandate that all incumbent
Horizons employees be retained by Adams. Although there is
no dispute that Adams was required to offer unit employees a
right of first refusal under the EO and DOL regulations, this
right of first refusal did not constitute a mandated blanket offer
to all employees. That is under the EO and DOL regulations, a
successor contractor could refuse to offer employment to an
incumbent employee when, among other reasons, it had credi-
ble information the applicant had not performed for the prior
contractor suitably. Thus, the applicable regulation, 29 C.F.R. §
9.12(c)(4), provides:
(4)Employee's past unsuitable performance.
(i) A contractor or subcontractor is not required to offer em-
ployment to any employee of the predecessor contractor for
whom the contractor or any of its subcontractors reasonably
believes, based on the particular employee's past performance,
has failed to perform suitably on the job.
(ii
(A) The contractor must presume that all employees working
under the predecessor contract in the last month of perfor-
mance performed suitable work on the contract, absent an
ability to demonstrate a reasonable belief to the contrary that
is based upon written credible information provided by a
knowledgeable source such as the predecessor contractor and
its subcontractors, the local supervisor, the employee, or the
contracting agency.
(B) For example, a contractor may demonstrate its reasonable
belief that the employee, in fact, failed to perform suitably on
the predecessor contract through written evidence of discipli-
nary action taken for poor performance or evidence directly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
from the contracting agency that the particular employee did
not perform suitably. The performance determination must be
made on an individual basis for each employee. Information
regarding the general performance of the predecessor contrac-
tor is not sufficient to claim this exception.
Based on these regulations, it is not possible to find on the
record as a whole that Adams was obligated to retain all of the
incumbent employees. Further, although I credit Taylor’s testi-
mony that in a February 7 pre-application meeting held by
Gagnon with incumbent employees,31 Gagnon told employees
that “aside from disciplinary issues, he was 99 percent sure that
we would all have a job,” I find that, in context, this statement
cannot be treated as a perfectly clear indication that the entire
unit of Horizons employees would be hired.
According to Taylor, at a transition meeting, Gagnon an-
nounced that Adams was reducing the number of RAs to 15 and
hiring 5 RCs, a new position. When Taylor questioned Gagnon
about whether all 25 incumbent RAs would be hired, Gagnon
responded that “aside from disciplinary reasons, he was 99
percent sure they would be hired.” Viewed from Taylor’s per-
spective, this statement did not make sense. In other words if
there are 25 incumbent RAs and only 15 new RA positions,
how could the 25 incumbent RAs all be hired. Taylor persisted,
asking Gagnon how that was possible. Gagnon responded that
DOL had approved the lower number. Gagnon’s “99 percent”
statement, in context, falls short of making it perfectly clear
that all employees would be hired. Disciplinary reasons could
disqualify some incumbent applicants from being hired and
simple arithmetic would eliminate others.
Thus I find that Adams, through its statements and actions,
did not actively or tacitly express a clear intention that it would
retain all 25 incumbent RAs. Adams announced that it only had
15 RA positions and there were 25 incumbent RA potential
applicants. The EO and DOL hiring criteria do not mandate
hiring of all incumbents.
Further, even if Adams evinced an intention to hire all in-
cumbent applicants, it clearly announced its intent to establish
new conditions. Prior to beginning operations, Adams formu-
lated its own operational plan and it told employees there
would be a reduction in staff. In its hiring agreements, present-
ed to each RA at the time of hire, Adams set forth wages, shifts,
a mandatory arbitration agreement to resolve employment dis-
putes, at will employment, a new disciplinary system, and new
insurance. Based on these facts, I find that Adams was not a
“perfectly clear” successor as envisioned in Burns and as lim-
ited by Spruce Up.
The General Counsel argues that Spruce Up should be re-
examined in light of the number and scale of corporate mergers
and acquisitions in the 40 years since it was decided. The Gen-
eral Counsel further argues that the majority holding in Spruce
Up misconstrued Burns and has led to inconsistent results. It
may be that this argument will be addressed by the Board but
administrative law judges are bound by extant law. Thus I will

31 Gagnon’s testimony is not to the contrary. Although Gagnon had
little recollection of the specifics of this meeting, he testified he did not
tell employees that everyone would get a job. Taylor’s testimony is
consistent with this.
not address these issues.
Although Adams is not a “perfectly clear” successor, it nev-
ertheless had a duty to bargain with the Union because it un-
lawfully refused to hire its predecessor’s employees. Pressroom
Cleaners, supra, 361 NLRB No. 57, slip op. at 1; Planned
Building Services, supra, 347 NLRB at 674. An employer with
an obligation to bargain collectively may not make changes to
mandatory subjects of bargaining without first bargaining to
valid impasse because it is a circumvention of the duty to nego-
tiate which frustrates the obligation of Section 8(a)(5) as much
as a flat refusal to bargain. NLRB v. Katz, 369 U.S. 736, 743
(1962).
Because Adams lost its Burns right to set initial terms by its
unlawful refusal to hire its predecessor’s employees, Adams
was obligated to maintain the status quo by honoring the sub-
stantive terms as set forth in the expired collective-bargaining
agreement with Horizons and to bargain with the Union about
all changes to mandatory subjects of bargaining. There is no
dispute that with regard to each of the alleged unilateral chang-
es, Adams did not provide advance notice and an opportunity to
bargain prior to implementation.
Removal of unit work by creating non-unit classification of
Residential Coordinator and Non-Resident Counselor
Facts
Adams unilaterally established a new classification of RC
consisting of five residential coordinators and one nonresident
counselor.32 The new RC position is treated by Adams as an
entry-level supervisory, non-bargaining unit position. The new
non-resident counselor position is also treated as a non-unit
position.
The duties of RC and RA employees are substantially identi-
cal. Thus, both perform locker inspections, health and safety
inspections, hold dorm meetings, counsel and direct students,
and complete evaluations of student progress. Both report any
incidents such as emergency transport or altercation directly to
the center shift manager. Both have a desk in the office area of
the dorm. At various times, depending on the day and shift,
RAs and RCs are directly supervised by dormitory supervisors
or in their absence by the center shift manager. There is no
evidence that Adams interviewed for the RC position on an
accelerated schedule as it did for upper management positions
such as Center shift supervisor. There is no dispute that these
duties are bargaining unit work. These same duties were per-
formed by Charles King, the non-resident advisor for Horizons,
except that he performed these duties off-campus for students
who did not live in the dormitories. King was hired by Adams
as a non-resident counselor, a non-unit position.
Removal of RA work from the bargaining unit and assigning
it to RCs diverted bargaining unit work. The two classifications
perform essentially the same duties. The work was lost to the
bargaining unit although it is indisputably work historically

32 Although the complaint alleges that Adams removed unit work by
unilaterally creating a classification of non-residential counselor and
eliminating the unit position of non-residential advisor, this issue is not
briefed and the record does not contain further elucidation regarding
this allegation. Accordingly, this allegation is dismissed.
ADAMS & ASSOCIATES, INC. 23
performed by the unit. Adams did not bargain about the crea-
tion of the RC classification. It was announced prior to hiring.
Analysis
Adams was not free to remove work from the bargaining unit
without proposing such a move to the Union and bargaining
with the Union regarding removal of the work. The RA unit
had an extensive bargaining history. As a successor, Adams
continued the operations including the work of RAs with sub-
stantial continuity. Thus Adams assumed the historical unit.
Mere change in ownership does not uproot bargaining units that
have enjoyed a history of collective bargaining. Indianapolis
Mack Sales & Service, Inc., 288 NLRB 1123, fn. 5 (1988); see
also, SFX Target Center Arena Management, LLC, 342 NLRB
725, 734 (2004) (units with extensive bargaining history remain
intact unless repugnant to the Act).33
Adams asserts that the RCs cannot be included in the bar-
gaining unit because they are supervisory employees. I find
they are not. There is no dispute that RCs have no authority to
hire, transfer, suspend, layoff, discharge, recall, promote, re-
ward, or assign duties. There is no evidence that they can mean-
ingfully recommend such actions. According to Adams, the
difference in the two positions is that RCs become the lead staff
in the absence of the dorm supervisor while RAs do not. How-
ever, in at least one instance, an RA assumed this role. Further,
if need be, RCs may be assigned to act as center shift manager.
However, even as acting center shift manager, an RC may not
authorize overtime or exercise supervisory functions such as
disciplining employees. Although Adams argues that RCs are
given higher levels of assignments such as providing input into
evaluations of student progress, RAs also perform this function.
Sometimes, dorm supervisors utilize RCs for assistance in
completing CSSR, a weekly scoring system for students in each
dorm or classroom. RAs also provide such feedback on an in-
formal basis. The qualification for RA is a valid California
driver’s license and a high school diploma. Experience is pref-
erable but not always required. The qualification for an RC is
the same except experience is required.
RCs do not have authority to hire, fire, suspend, layoff, re-
call, or discipline RAs or promote them. RCs do not have au-
thority to transfer. RCs may approve overtime only in an emer-
gency situation if no one else is available and no one can be
reached for approval by phone. They have not been told they
are to supervise RAs. RCs fill in for the center shift manager
RC pay is higher than RA pay. RCs may recommend employ-
ees to the dorm supervisor for discretionary incentives such as
monthly awards, certificates or gift cards. The dorm supervisor
need not pass these recommendations on to the social develop-
ment director if the dorm supervisor disagrees with the recom-
mendation. In any event, the social development director in

33 The General Counsel alleges that the creation of these new posi-
tions constitutes reassignment of unit work to non-unit employees.
Citing Hilton Environmental, 320 NLRB 437, 439 fn. 12 (1995) (by
unilaterally removing clerk position from bargaining unit, “perfectly
clear” successor transferred unit work, a mandatory subject of bargain-
ing), the General Counsel asserts that diversion of unit work is a man-
datory subject of bargaining. Because I do not find that Adams is a
“perfectly clear” successor, I do not rely on this case.
consultation with the dorm supervisor makes the final determi-
nation on such matters. If the supervisor does not feel a rec-
ommendation is appropriate, it is not passed on. RCs do not
complete performance evaluations for RAs. In the absence of a
dorm supervisor, the RC ensures the RA is performing the
regular duty of monitoring that clean-up duty is being done and
ensuring that accountability meetings are conducted. RCs do
not adjust employees’ grievances.
The record as a whole reflects that RCs perform essentially
the same work that RAs perform. Their intermittent substitution
for supervisors without any indicia of supervisory authority
does not transform them into supervisors. Moreover, even if
RCs qualified as 2(11) supervisors, they may be voluntarily
included in a bargaining unit. See, e.g., Wackenhut Corp., 345
NLRB 850, 852–853 (2005).
Having assumed the historic bargaining unit, employees—
whether RAs or RCs—continue to spend most of their working
hours performing the same tasks, using the same skills they had
used in their work for the predecessor. When employees con-
tinue doing substantially the same work they did for a prede-
cessor, the Board will not find that the addition of some new
job duties is likely to change employee attitudes towards their
jobs to such an extent that it defeats a finding of community of
interest. Phoenix Pipe & Tube Co., 302 NLRB 122 (1981),
enfd. 955 F.2d 852 (3d Cir. 1991). Thus, I find that RCs per-
form substantially the same work as RAs. Creation of a sub-
stantially similar non-unit RC position diverted work to non-
unit employees and Adams violated Section 8(a)(5) and (1) by
diverting the unit work to nonunit employees.
Probationary Period
RAs were required to sign employment agreements at their
orientation sessions on or shortly after March 11. One of the
employment agreement subjects was a requirement that em-
ployees serve a six-month introductory probationary period.
The Horizons probationary period was three months and could
be extended for another 90 days only if the employee failed to
obtain a “meets expectations” evaluation. (Article IV. Proba-
tionary Period) Additionally, Adams applied its probationary
period to predecessor unit employees.
Probationary periods constitute a mandatory subject of bar-
gaining. Puerto Rico Junior College, 265 NLRB 72, 77 (1982).
Thus, Adams violated Section 8(a)(5) and (1) when it failed to
provide notice and opportunity to bargain prior to implement-
ing the probationary period. See, Camelot Terrace, 357 NLRB
1934, 1936, 1941 (2011).
Discipline
The employment agreement also sets forth numerous
grounds for discipline, up to and including discharge. The Ho-
rizons contract with the Union, on the other hand, provided that
employees could be disciplined or disciplined for just cause
pursuant to a progressive disciplinary system. (Article XII.
Discipline). Employee discipline is a mandatory subject of
bargaining. Kennametal, Inc., 358 NLRB 553, 556 (2012) (re-
lied upon by the General Counsel). There is no dispute that
Adams failed to afford the Union notice or an opportunity to
bargain regarding either the disciplinary system or the “at will”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
status of employees. Thus I find a violation of Section 8(a)(5)
and (1) of the Act.34
Grievance Provisions
Another portion of the employment agreement mandates ar-
bitration of “any and all disputes directly or indirectly arising
out of or in any way connected with my employment with [Ad-
ams] or the termination of that employment . . .” Just to be
clear, there is no allegation that this clause independently vio-
lates the Act.35 Rather, the relevant allegation is that insertion
of arbitration into the employment agreement supplants the
contract grievance mechanism (Article IV. Grievance Proce-
dure) and thus constitutes a unilateral change. There is no dis-
pute that the Union was not afforded notice and an opportunity
to bargain about this mandatory subject of bargaining. Thus, I
find that Adams violated Section 8(a)(5) and (1) by unilaterally
instituting mandatory arbitration and failing to honor the terms
of the grievance system of the expired contract.
Health Benefits
The status quo terms and conditions provided for health ben-
efits for unit employees including medical, dental, and vision
plans. Health benefits are a mandatory subject of bargaining.
The Southern New England Tel. Co., 356 NLRB 338, 351
(2010) (citing Mid-Continent Concrete, 336 NLRB 258, 259
(2001), enfd sub nom. NLRB v. Hardesty, 308 F.3d. 859 (8th
Cir. 2002). Adams did not honor the health benefits in place.
Rather, 30 days after beginning their employment, unit em-
ployees were eligible for Adams’ health benefits. There is no
dispute that the Union was not notified of this change. Thus, by
unilaterally implementing its own health benefits without noti-
fying the Union or providing an opportunity to bargain, Adams
violated Section 8(a)(5) and (1) of the Act.
Shift Schedules
Horizons established employee shifts at the time of hire.
Employees worked either the day shift, swing shift, or midnight
shift without rotation into other shifts on various days of the
week. When Adams began operations, it implemented a rotat-
ing shift for at least five of the RAs as reflected on their written
offers of employment. As Section 8(a)(5) of the Act clearly
states, hours of work are a mandatory subject of bargaining.
There is no dispute that the Union was not notified of this
change and there is no dispute that the Union was afforded an
opportunity to bargain regarding this change. Accordingly, I
find that by unilaterally instituting rotating shifts without notice

34 In its brief, the General Counsel notes that the employment
agreement also creates an “at will” status for employees and argues that
this change should be found unlawful as well. The complaint does not
allege that the “at will” status of employees was a unilateral change.
Nevertheless, I find that restoration of the status quo to incorporate
good cause should, in effect, remedy the “at will” situation.
35 In Murphy Oil USA, Inc., 361 NLRB No. 72 (2014), the Board
adopted the holding of D. R. Horton, 357 NLRB 2277 (2012), reversed
in relevant part, 737 F.3d 344 (5th Cir. 2013), reaffirming that an em-
ployer violates the Act when, as a condition of employment, it requires
employees to sign an agreement that precludes them from filing joint
class or collective claims regarding wages, hours or other working
conditions against the employer in any forum, arbitral or judicial.
or opportunity to bargain, Adams violated Section 8(a)(5) and
(1) of the Act.
Union Dues
One further change to the status quo is alleged as a violation
of Section 8(a)(5) and (1). This change does not derive from the
employment agreement, however. Rather, this change consti-
tutes alleged failure of Adams to adhere to its predecessor’s
terms and conditions of employment. As a successor who un-
lawfully refused to hire its predecessor’s employees, Adams
was required to maintain the status quo by continuing Hori-
zons’ terms and conditions of employment. Pressroom Clean-
ers, 361 NLRB No. 57, slip op. at 1 (2014), citing Advanced
Stretchforming International, 323 NLRB 529, 530–531 (1997),
enfd. in relevant part 233 F.3d 1176 (9th Cir. 2000), cert. de-
nied 534 U.S. 948 (2001); Love’s Barbeque, 245 NLRB 78, 82
(1979), enfd. in relevant part sub nom Kallmann v. NLRB, 640
F.2d 1094 (9th Cir. 1981).
There is no dispute that Adams has not honored the dues-
deduction provision of the Horizons contract. Adams admitted
this allegation in its answer to the complaint and Gagnon con-
firmed that Adams was not honoring dues deduction. Although
the Board (Chairman Pearce and Members Griffin, and Block;
Member Hayes dissenting) held that an employer must continue
to honor dues-checkoff provisions of a collective-bargaining
agreement even after expiration of the contract, 36 the continu-
ing validity of that decision is in doubt due to the constitution-
ality of two of the Members’ appointments.37 Accordingly,
prior precedent,38 which did not recognize a continuing duty to
honor dues checkoff postexpiration, controls and requires that
this allegation be dismissed.
ALAN RITCHEY ALLEGATIONS
In Alan Ritchey, Inc., 359 NLRB No. 40, slip op. at 1–2, 8–
10 (2012), a three-member panel of the Board (Chairman
Pearce and then-Members Griffin and Block) held, inter alia,
that during the period after a union is recognized but before a
first contract or an interim grievance procedure is in place, an
employer must bargain with the union before exercising its
discretion to impose certain discipline such as suspension, de-
motion, or discharge. Recognizing that it had never before
clearly and adequately explained that the duty to bargain over
discretionary changes in terms and conditions of employment
included discipline such as suspension, demotion, or discharge,
the Board applied its decision prospectively only.
However, two years later, in Noel Canning,39 the recess ap-

36 WKYC-TV, 359 NLRB No. 30, slip op. at 8 (2012).
37 In Noel Canning, 573 U.S. ___, 134 S.Ct 2550 (2014), ), the
Court held that the President’s authority to make recess appointments
does not extend to three-day periods between pro forma sessions) Then-
Members Griffin and Block were appointed during three-day periods
between Senate pro forma sessions and their appointments were held
invalid.
38 Bethlehem Steel, 136 NLRB 1500 (1962), remanded on other
grounds sub nom. Marine & Shipbuilding Workers v. NLRB, 320 F.2d
615 (3d Cir. 1963).
39 NLRB v. Noel Canning, supra (President’s authority to make re-
cess appointments does not extend to three-day period between pro
forma sessions).
ADAMS & ASSOCIATES, INC. 25
pointments of Members Griffin and Block were held invalid.
Since Noel Canning’s issuance, Alan Ritchey has not been
adopted or reaffirmed by a validly-constituted Board. Neverthe-
less, the complaint alleges that when Adams imposed discre-
tionary discipline by discharging five employees it violated
Section 8(a)(5) and (1) of the Act because it did not first bar-
gain with the Union as required in Alan Ritchey. 40
It is unclear whether the current Board will adhere to Alan
Ritchey. Although the General Counsel continues to urge that
Alan Ritchey was correctly decided, until it is reaffirmed or
adopted by the Board, it is not controlling. The analysis in Alan
Ritchey is quite persuasive and it is tempting to apply it, assum-
ing that at some point it will be adopted by a duly appointed-
Board. However, I am mindful that in Alan Ritchey the Board
recognized it had not previously explained the duty to bargain
over discretionary imposition of discipline and determined that
due process required prospective application only. Three of the
four discharges involved here post-dated Noel Canning and
thus occurred when it was clear that Alan Ritchey could no
longer be relied upon. Under these circumstances, it would
work an injustice to require Respondent to adhere to Alan
Ritchey.
Were Alan Ritchey applied here, the allegations would be
meritorious. There is no dispute that RAs Sheila Broadnax,
Rolando Aspiras, Bienvenida Viloria, and Vicente Moran were
discharged after Adams began its operations. Adams utilized
discretion under its unlawfully implemented employment
agreement terms. Progressive discipline was not included in the
employment agreement terms. Rather, the employment agree-
ment set forth numerous grounds for discretionary discipline up
to and including discharge.41 Thus there can be no doubt that
discretion was utilized. Further, there is no dispute that the
Union was not afforded notice or an opportunity to bargain
regarding the discharges. Finally, although the expired contract
contained a grievance procedure, Adams had unlawfully sup-
planted it with a mandatory arbitration agreement so there was
no binding agreement with the Union covering discipline.
Ultimately, however, it is unnecessary to determine whether
failure to afford notice and the opportunity to bargain over
these discharges would have violated Alan Ritchey. These em-
ployees were discharged pursuant to the terms of unlawfully
implemented employment agreements which removed progres-
sive discipline. Thus, these discharges are subsumed in the
prior finding that Adams unlawfully implemented the terms of
the employment agreements rather than adhering to the status
quo ante of just cause and progressive discipline and the further
finding that Adams unlawfully ceased adhering to the Hori-

40 In McKesson Corp., JD(ATL)–30–14 (Nov. 4. 2014), Administra-
tive Law Judge Locke refused to apply Alan Ritchey due to its Noel
Canning infirmities. However, in other instances Administrative Law
Judges Cates and Etchingham found the reasoning of Alan Ritchey
persuasive and relied on it. See, SMG Puerto Rico, II, JD(ATL)–07–15
(April 17, 2015); Latino Express, JD(SF)–09–15 (March 17, 2015); and
South Lexington Management Corp., JD(ATL)–02–15 (Jan. 29, 2015)
41 The employment agreement included examples of offenses for
which employees could be disciplined, up to and including dismissal.
This provision alone illustrates a high degree of discretion regarding the
degree of discipline for each offense.
zon’s contract grievance procedure. The remedy for these viola-
tions will require restoration of the status quo, reconsideration
of the discharges applying the contractual just cause standard,
and waiver of time limits for filing grievances on behalf of
these employees should Respondent’s reconsideration result in
a discharge finding.
BARRING TAYLOR’S ACCESS TO THE CENTER
Facts
The General Counsel alleges that Respondent selectively and
disparately enforced a no access rule against Taylor to bar her
from the Center. The rule states:
Former staff and students, regardless of reason for separation,
will not be allowed on Center without the prior authorization
of the Center Director or his/her designee.
No group or individual who has been previously barred from
the Center or whose purpose can reasonably be expected to
create controversy or disturbance among staff members of
students, or who might interfere with their welfare or training,
will be allowed on-Center.
Prior to the first bargaining session, set for September 10, the
Union requested that bargaining be held at the Center. Re-
spondent refused to bargain at the Center stating that it would
not allow Taylor on the Center premises. At the September 10
bargaining session held at the Union hall, the Union renewed its
request to bargain at the Center. At the second and third bar-
gaining sessions, held October 14 and November 17 respective-
ly, the Union continued to raise the issue of Taylor’s access to
the site for bargaining and Adams continued to deny the request
to meet at the Center. After the third session, the Union was
notified in early December that Taylor would be allowed onto
the Center. The fourth session, held on January 9 or 10, 2015,
was at the Center.
Analysis
Adams’ rule barred access to “former staff” and individuals
who might “create controversy or disturbance . . . or who might
interfere with [staff members or student] welfare or training”
Adams’ refusal to allow Taylor onto the Center involved at best
a misinterpretation of Adams’ rule barring former staff from the
Center. Taylor was not a former staff of Adams. Further, there
is no evidence that Taylor might interfere with the welfare or
training of staff or students. Were there such evidence, there
might have been some legitimacy to Adams’ interpretation of
the rule. What remains to enlighten understanding of Adams’
interpretation of the rule is its anti-union animus. Thus it is
apparent that Adams did not desire Taylor’s presence at the
Center to conduct Union business because she was the Union
president.
Relying on Modern Honolulu, 361 NLRB No. 24, slip op. at
2 (2014), the General Counsel urges that the bargaining access
of union representatives who are former employees constitutes
a refusal to bargain in good faith. Taylor’s presence as Union
president was of paramount importance to the Union. There is
no evidence that her presence would create ill will or in any
way make good faith bargaining impossible. In agreement with
the General Counsel, I find that by banning Taylor from the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
Center from September through early December, Respondent
refused to bargain in good faith in violation of Section 8(a)(5)
and (1) of the Act.
REFUSAL TO MEET FOR BARGAINING AT REASONABLE TIMES
AND PLACES
Facts
The General Counsel alleges that Respondent refused to
meet with the Union at reasonable places not only by selective-
ly and disparately enforcing a work rule against Union presi-
dent Taylor to bar her from the Center but also by generally
refusing to bargain at the Center. The record reflects that Hori-
zons and the Union bargained at the Center. Moreover, the
General Counsel asserts that Respondent refused to meet at
reasonable times by insisting on meeting at 5 p.m. rather than at
3:30 p.m. The record reflects that Horizons and the Union met
at 3:30 p.m. through a release time system in order to accom-
modate employee-negotiators.
Analysis
The complaint does not allege that Adams altered a past
practice. Rather, it alleges failure to meet at reasonable times
and places. No authority is cited for the proposition that insist-
ing on meeting at an inconvenient time of day for a member of
the other side’s bargaining committee constitutes refusal to
meet at reasonable times. As the “reasonable times” concept is
typically understood, it refers to meeting a reasonable number
of times and in meetings long enough to accomplish good faith
bargaining. Calex Corp., 322 NLRB 977 (1997), enfd. 144 F.3d
904 (6th Cir. (1998). As the Board has stated in a situation in
which the “busy negotiator” defense was attempted, “Consider-
ations of personal convenience, including geographical or pro-
fessional conflicts, do not take precedence over the statutory
demand that the bargaining process take place with expedition
and regularity.” Caribe Staple Co., 313 NLRB 877, 893 (1994).
Thus I find that by refusing to meet at 3:30 p.m., Adams did not
refuse to meet at reasonable times. I further find that to the
extent the General Counsel alleges that Adams refused to meet
at “reasonable places,” this is subsumed in my finding above
that Adams refused to bargain in good faith by unlawfully en-
forcing its access rule to ban Taylor from the Center.
CONCLUSIONS OF LAW
1. Since at least March 11, 2014, Adams has been a succes-
sor employer to Horizons and was obligated to recognize and
bargain with the Union, as the exclusive representative within
the meaning of Section 9(a) of the Act, in the following unit
appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All Full-time Residential Advisors, Non-Residential Advi-
sors, and Day Residential Advisors employed at the Sacra-
mento Job Corps Center.
2. By refusing to hire Shannon Cousins-Kamara, Macord
Nguyen, Genesther Taylor, and Azaria Ting and by rescinding
its offer to Andre Lang in an attempt to avoid the obligation to
recognize and bargain with the Union as the exclusive collec-
tive-bargaining representative of unit employees, Adams has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of
the Act.
3. By unilaterally implementing changes to certain mandato-
ry terms and conditions of unit employees’ employment, Ad-
ams violated Section 8(a)(5) and (1) of the Act. These changes
are as follows:
(a) Removing work from the unit by replacing RA positions
with new RC positions;
(b) Ceasing to give effect to the progressive disciplinary and
just cause provisions of the most recent collective-bargaining
agreement between Horizon and the Union;
(c) Ceasing to give effect to the grievance provision of the
most recent collective-bargaining agreement between Horizon
and the Union;
(d) Eliminating unit employees health benefits;
(e) Changing from a fixed shift schedule to a rotating shift
schedule for some unit employees; and
(f) Modifying the terms of the probationary period for unit
employees.
4. By failing to afford the Union notice and an opportunity
to bargain prior to the discretionary discharges of Sheila
Broadnax, Macord Nguyen, Bienvenida Viloria, Rolando
Aspiras, and Vicente Moran, Adams did not violate Section
8(a)(5) and (1) as set forth in Alan Ritchey, 359 NLRB No. 40
(2012), because Alan Ritchey has not been reaffirmed or adopt-
ed by a validly-appointed panel of the Board. Nevertheless, due
to Adams’ disregard of the progressive discipline and just cause
terms and the grievance provisions of the Horizons contract,
these discharges are subsumed in the remedy for the unilateral
changes.
5. By selectively and disparately enforcing an access rule
against Genesther Taylor, a Union agent, who sought entry to
the Center for purposes of bargaining with Adams, Adams
failed to bargain in good faith in violation of Section 8(a)(5)
and (1) of the Act.
6. By insisting on meeting at 5 p.m., Adams did not violate
Section 8(a)(5) and (1) of the Act.
JOINT EMPLOYER
Having found that the Respondent Adams has engaged in
certain unfair labor practices, it now remains to be determined
whether, as alleged by the General Counsel, MJLM should also
be held liable for remedying these unfair labor practices as a
joint employer.
To establish that two or more employers are joint employers
of a single work force, there must be a showing that the em-
ployers share or codetermine essential terms and conditions of
employment such as hiring, firing, discipline, supervision, and
direction. CNN America, Inc., 361 NLRB No. 47, slip op. at 2–
3 (2014), correcting Order on denial of reconsideration, 2015
WL 1292226 (March 20, 2015). The standard relied upon in
CNN, was originally adopted in Laerco Transportation, 269
NLRB 324 (1984), and TLI, Inc., 271 NLRB 798 (1984), enfd
772 F.2d 894 (3d Cir. 1985). Other factors considered include
an employer’s involvement in decisions relating to wages and
compensation, the number of job vacancies to be filled, work
hours, the assignment of work and equipment, employment
ADAMS & ASSOCIATES, INC. 27
tenure, and an employer’s involvement in the collective bar-
gaining process. CNN, supra, slip op. at 3 n.7, and 7.
Facts
The management services agreement between Adams and
MJLM, signed on February 13, provides that Adams will pro-
vide the following management services to MJLM:
 Overall Center performance management and direc-
tion;
 Proposal development, implementation, and compli-
ance oversight;
 Policy, plan, and procedure development, submission,
and implementation;
 Job Corps operational and technical assistance;
 Program assessment, direction, oversight, and integri-
ty audits;
 Participation in corporate training (staff travel and per
diem at MJLM expense)
 Transition assistance; and
 Mentor MJLM in the operation of the Sacramento
Job Corps Center.
The General Counsel specifically relies on codetermination
of wages, MJLM’s involvement in interviewing and hiring
Adams employees, MJLM’s exclusive determination of holiday
schedules, MJLM’s retention of operational control requiring
that Adams Deputy Center Director McGillis report directly to
MJLM Center Director Erica Evans, and Adams provision of
core services in fulfillment of MJLM’s contract with DOL.
As to wages, the wage levels for all staffing were developed
through a salary survey provided by DOL as well as local area
wage information. Although Gagnon stated that the wage struc-
ture was “jointly developed” between Adams and MJLM in his
Board affidavit, he stated at the hearing that he did not know
any specifics about such “joint” development. Gagnon did
agree that the wage rates for all Center positions were reflected
in the joint proposal to DOL.42 I find, based on Gagnon’s affi-
davit to the Board as well as the joint proposal to DOL, that the
wage structure in general was developed jointly between Ad-
ams and MJLM.
The subcontract agreement provides that Adams will, “Pro-
vide a staff schedule that establishes required coverage and
services on a 24/7 basis. Center holidays shall be observed in
accordance with MJLM prime contract. . . .” Adams alone is
responsible for ensuring that its staff “meet the minimum re-
quirements and possess the necessary educational criteria, ex-
perience and skills as established by USDOL and MJLM.”
MJLM is required to provide advance notification to Adams
prior to taking any personnel action affecting Adams’ direct
staff. Further, “MJLM reserves the right to suspend and/or re-
move Adams’ staff from the Center if staff willfully violate
Center rules, regulations and/or established policy standards.”

42 Later, in response to questioning from MJLM’s counsel, Gagnon
corrected his characterization of the term “joint proposal” stating that
Adams submitted its information to MJLM and MJLM incorporated
this information into a single proposal to the DOL. (Tr. 731). This
appears to be a distinction without a difference.
Based on these provisions, I find that in general the staff sched-
ule for Adams’ employees is set solely by Adams and Adams
alone is responsible for ensuring that its staff meets all hiring
criteria required by USDOL and MJLM. However, MJLM has
reserved a right to take personnel action against Adams staff for
violation of Center rules or policies and MJLM sets the holiday
schedule.
MJLM and Adams have separate benefit packages and disci-
plinary policies. When Gagnon first spoke to employees about
the Adams’ application process, Sharon Murphy spoke to em-
ployees also about the MJLM application process.
During the transition period, MJLM sometimes conducted
interviews for Adams’ applicants. Each evening, both MJLM
and Adams reviewed the Sacramento Direct Hire List to deter-
mine which positions remained vacant which had been filled.
For instance, Don Khajavi, a consultant for MJLM assisting in
the transition, interviewed Broadnax and Ostrowski and rec-
ommended both of them for hire. MJLM partner Sharon Mur-
phy interviewed Diane Calahan. Thus, at least during the transi-
tion period, Adams and MJLM jointly determined which em-
ployees Adams would hire.
Weldon prepared interview packets for the interviewers (in-
cluding resumes, applications, an evaluation form, and an offer
sheet) and drafted offer letters for successful applicants and
rejection letters for applicants who did not receive offers.
MJLM prime contractor Sharon Murphy worked with the Ad-
ams team as did MJLM human resources director Joyce Barrett
and several other MJLM personnel.
During the transition period, Murphy interviewed newly
hired Center director Evans about Horizons employees includ-
ing Romona Anthony, a Horizons clerk. Afterwards, Murphy
and Gagnon discussed Anthony as a wellness monitor, a posi-
tion Adams was filling. They also discussed one other applicant
for an Adams position whom Murphy had discussed with Ev-
ans. None of the other employees discussed by Murphy with
Evans were for positions being filled by Adams.
Pagni described Adams relationship with MJLM as not only
a subcontractor but also a mentor. She was aware that Adams’
SOPs were sent to MJLM but she did not send them.
According to Weldon, she and MJLM HR director Barrett
shared an office in the transition center and consulted with each
other on human resources matters. Since this was MJLM’s first
contract, Weldon was instructed by Gagnon to share infor-
mation and assist as needed so that the transition would run
smoothly. Weldon characterized her role as mentoring or
coaching. Further, because Adams was a subcontractor of
MJLM, the parties decided to “be under the same umbrella.” In
other words, forms that were utilized by Adams were given to
MJLM to revise and use. Interview forms, standard operating
procedures,43 job descriptions were shared with MJLM. MJLM
utilized Adams’ standard operating procedures after Adams
changed the titles, headers and footers to reflect MJLM.

43 Pagni testified that Adams’ SOPs were revised to state “Sacra-
mento Job Corps” but do not indicate MJLM on them anywhere. This
testimony does not necessarily contradict Weldon’s testimony and, in
any event, because Weldon was on the scene in Sacramento and Pagni
was not, I credit Weldon’s testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
Each evening, Barrett and Weldon updated the Direct Staff-
ing List to fill in the names of employees who were hired by
each company. The list was presented to the team leaders on a
daily basis. Additionally, Barrett and Weldon shared forms
such as hiring forms and information such as standard operating
procedures. Weldon explained that she revised the Adams’
standard operating procedures to reflect MJLM because Adams
was not the prime contractor. This basically involved changing
the headers and footers from Adams to MJLM.
Adams provides residential counseling, career preparation
and transition, recreation and wellness services. These services
are central to the effectiveness of the Center. In operating the
Center, McGillis, the highest ranking Adams representative on
site, consults with MJLM director Evans on matters such as
students, dormitories, career and social counseling, and policies
of the Center. McGillis consults also with Adams executive
director Gagnon on matters regarding Adams issues such as
staffing.
Analysis
At least during the transition period, the relevant period for
purposes of this analysis, MJLM shared or codetermined essen-
tial terms and conditions of employment of Adams’ employees.
Thus, the initial wage structure was jointly developed. There is
no further elucidation regarding ongoing wage issues beyond
the transition period. The record does not reveal whether
MJLM continues to be involved in Adams’ employee wages.
However, the time period which is relevant for this analysis is
the transition period and immediately thereafter. During that
time, MJLM and Adams jointly developed the Adams wage
structure.
Adams employees follow the MJLM holiday schedule. Alt-
hough this does not give MJLM blanket control over hours of
work, it is evidence of some control over hours. MJLM has
retained some functions to discipline Adams’ employees sub-
ject to notice to Adams.44 Through routine consultation be-
tween McGillis and Evans, MJLM is informed on all matters
performed by Adams.
During the transition period, MJLM representatives inter-
viewed Adams applicants and meaningfully recommended
whether these applicants were to be hired. There is no evidence
that this involvement in hiring has continued past the transition
period and I will not make this assumption. However, there was
joint control over hiring during the transition period.
The fact that Adams’ highest ranking official reports to
MJLM’s highest ranking official on site ensures a coordinated
operation. This is consistent with MJLM being the prime con-
tractor but does not, standing alone, warrant an inference that
MJLM dictates how Adams will provide specific services.
Of course, as the General Counsel points out, Adams Sacra-
mento RAs work exclusively for MJLM. However, it should be
noted that Adams has RAs working in many other locations.
Although the fact that a subcontractor’s employees worked

44 MJLM relies on AM Property Holiday Corp., 350 NLRB 998,
1000 (2007), in which the Board disregarded lease agreement language
and relied instead on the employer’s actual role. There is, however, no
evidence contrary to the lease agreement language in this case. Thus, I
rely on it.
exclusively for CNN was relied upon in part in CNN, supra, the
facts here are easily distinguished. CNN retained considerable
authority over hiring, supervision and direction of the employ-
ees of TVS. There is no evidence that MJLM retains such au-
thority. CNN prohibited hiring employees from CNN competi-
tors.
There is no evidence that MJLM has such a prohibition.
CNN retained substantial control over the number of techni-
cians to be hired by TVS, CNN retained control over the num-
ber of hours and the overtime hours of TVS technicians, and
field staff assignments were made by CNN. MJLM does not
have these authorities. There is no evidence that it controls the
number of RAs, their hours of work or eligibility for overtime.
There is no evidence that MJLM makes assignments to Adams’
staff.
Thus, based on the record as a whole, I find that Adams and
MJLM were joint employers during the relevant period herein.
MJLM shared or codetermined matters governing the essential
terms and conditions of employment of Adams’ employees
including meaningfully affecting hiring, discipline, and direc-
tion.
Alternatively, the General Counsel urges the Board to aban-
don its existing joint employer standard claiming that standard
undermines the policy of the Act to encourage stable and mean-
ingful collective bargaining.45 Thus, the General Counsel urges
a return to the Board’s “traditional” pre-Laerco, pre-TLI stand-
ard. Under this approach, in an analysis of whether two entities
share or codetermine or meaningfully affected the other’s terms
and conditions of employment, “no distinction [would be made]
between direct, indirect, and potential control over working
conditions and would find joint employer status where ‘indus-
trial realities’ make an entity essential for meaningful bargain-
ing.”46 This would include situations where the putative joint
employer wielded sufficient influence through direct control,
indirect control, or potential control such that meaningful bar-
gaining could not occur in its absence. Further, the putative
joint employer’s control over working conditions might be
based not on specific contractual provisions but on the industri-
al realities of certain business relationships that make an entity
essential for meaningful bargaining. The essential inquiry
would be the influence or potential influence of the putative
joint employer over employees’ working conditions and thus on
the collective-bargaining process.47

45 See Amicus Brief of the General Counsel in Browning-Ferris In-
dustries, 32–RC–109684, currently pending before the Board.
46 General Counsel’s Amicus Brief at p. 17, Browning-Ferrris In-
dustries, supra.
47 Floyd Epperson, 202 NLRB 23, 23 (1973), enfd., 491 F.2d 1390
(6th Cir. 1974) (joint employer status found where user firm with indi-
rect control over employee discipline and wages informed Epperson,
the supplier firm, that a particular drivers was consistently late and
Epperson thereafter removed the employee from the route, and where
Epperson increased the drivers’ wages when it was given a raise by the
user firm), enfd. mem. 494 F.2d 1390 (6th Cir. 1974); Globe Discount
City, 171 NLRB 830, 830–832 (1968) (licensor was joint employer of
its licensee’s employees where the licensor retained substantial contrac-
tual power “to control or influence the labor policies of the licensees,”
and retained “the right to terminate either license for default,” thereby
ADAMS & ASSOCIATES, INC. 29
There may well be important policy reasons to return to the
Board’s earlier test for determining joint employer status. How-
ever, these matters are more appropriately addressed to the
Board. Thus, in conclusion, I find that MJLM and Adams are
joint employers and they are jointly and severally liable for all
unfair labor practices.
REMEDY
Having found that Respondents have engaged in certain un-
fair labor practices, I shall order them to cease and desist from
such violations and take certain affirmative action designed to
effectuate the policies of the Act.
Having discriminatorily refused to hire Cousins-Kamara,
Nguyen, Taylor and Ting and having discriminatorily rescinded
Lang’s offer of employment, Respondents must offer them
instatement and make them whole for any loss of earnings and
other benefits as set forth in Pressroom Cleaners, supra, 361
NLRB No. 57, slip op. at 6 (that is restoration of the predeces-
sor’s terms and conditions until the parties bargain in good faith
to agreement or impasse. Employer may no longer attempt to
prove what the terms and conditions would have been if it had
complied with its obligation to bargain). Backpay shall be
computed in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), with interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
Respondents shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondents shall also compensate the discriminatees
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year. Don Chavas, LLC d/b/a Tortillas Don Chavas 361 NLRB
No. 10 (2014).
Respondents will be ordered to rescind the changes it made
to mandatory terms of employment and implement in their
place the terms of the Horizons’ contract. Thus Respondents
must rescind removal of work from the bargaining unit, rescind
the employment contract discipline provision, rescind the uni-
laterally implemented arbitration agreement in the employment
contract, rescind elimination or substitution of health benefits,
rescind the rotating shift schedule, and rescind modification of
the probationary period.
In ordering Respondents to rescind the employment contract
discipline provision, Adams must also reconsider the discharg-
es of Sheila Broadnax, Bienvenida Viloria, Rolando Aspiras,
and Vicente Moran pursuant to the just cause provisions of the
Horizons collective-bargaining agreement and, if those dis-
charges are upheld on reconsideration, waive any time limits
for the filing of grievances regarding those discharges.
I also recommend that Respondents be ordered, within 14
days after service by the Region, to post an appropriate “Notice
to Employees” in order that employees may be apprised of their
rights under the Act and the Respondents’ obligation to remedy
their unfair labor practices.
On these findings of fact and conclusions of law and on the

insuring “that its wishes in regard to labor relations matters will be
carried out by the licensees”).
entire record, I issue the following recommended48
ORDER
Respondent Adams & Associates, Inc., Sacramento, Califor-
nia, its officers, agents, successors, and assigns, and joint em-
ployer McConnell, Jones, Lanier & Murphy, Sacramento, Cali-
fornia, its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Refusing to hire Shannon Cousins-Kamara, Macord
Nguyen, Andre Lang, Genesther Taylor, and Atiria Ting in an
attempt to avoid the obligation to recognize and bargain with
the Union as the exclusive collective-bargaining representative
of unit employees in the following appropriate unit: “All Full-
time Residential Advisors, Non-Residential Advisors, and Day
Residential Advisors employed at the Sacramento Job Corps
Center.”
(b) Unilaterally implementing changes to certain mandatory
terms and conditions of unit employees’ employment, as fol-
lows:
(1) Removing work from the unit by replacing RA positions
with new RC positions;
(2) Ceasing to give effect to the progressive disciplinary pro-
vision of the most recent collective-bargaining agreement be-
tween Horizon and the Union;
(3) Ceasing to give effect to the grievance provision of the
most recent collective-bargaining agreement between Horizon
and the Union;
(4) Eliminating unit employees’ health benefits;
(5) Changing from a fixed shift schedule to a rotating shift
schedule for some unit employees; and
(6) Modifying the terms of the probationary period for unit
employees.
(c) Selectively and disparately enforcing access rules against
Genesther Taylor, who sought entry to the Center for purposes
of bargaining with Adams.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Having discriminatorily refused to hire Shannon Cous-
ins-Kamara, Macord Nguyen, Genesther Taylor, and Azaria
Ting and unlawfully rescinded an offer to Andre Lang, Re-
spondents must offer them instatement within 14 days of the
date of this Order as Residential Advisors, or if such position
no longer exists, in a substantially equivalent position, without
prejudice to their seniority or any other privileges to which they
would have been entitled if they had not been discriminated
against.
(b) Make Shannon Cousins-Kamara, Andre Lang, Macord
Nguyen, Genesther Taylor, and Azaria Ting whole for any loss
of earnings and other benefits. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),

48 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
with interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010).
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful refusals to
hire or the unlawful rescinding of the offer of employment, and
within 3 days thereafter notify the employees in writing that
this has been done and that the refusals to hire or rescinding of
the offer will not be used against them in any way.
(d) Respondents shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. Respondents shall also compensate the discriminatees
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year. Don Chavas, LLC d/b/a Tortillas Don Chavas 361 NLRB
No. 10 (2014).
(e) Within 14 days of the date of this Order, rescind, in writ-
ing, its diversion of residential advisor and non-residential ad-
visor work from the bargaining unit by reclassifying the work
as that of residential coordinator and nonresidential coordina-
tor, rescind the unilaterally implemented at will disciplinary
system, the unilaterally implemented arbitration agreement, the
unilaterally implemented health benefits, the unilaterally im-
plemented rotating shift schedule and the unilaterally imple-
mented probationary period and restore the status quo ante by
restoring unit work to the bargaining unit, giving effect to the
just cause terms of the Horizons’ collective-bargaining agree-
ment, giving effect to the grievance provisions of the agree-
ment, restoring health benefits, shift schedules, and complying
with the probationary period.
(f) Reconsider the discharges of Sheila Broadnax,
Bienvenida Viloria, Rolando Aspiras, and Vicente Moran pur-
suant to the just cause terms of the Horizons collective-
bargaining agreement and, if those discharges are upheld on
reconsideration, waive any time limits for the filing of griev-
ances regarding those discharges.
(g) Before implementing any changes in wages, hours, or
other terms of employment, notify, and, upon request, bargain
with the Union as the exclusive collective-bargaining repre-
sentative of employees in the following appropriate unit: All
Full-time Residential Advisors, Non-Residential Advisors, and
Day Residential Advisors employed at the Sacramento Job
Corps Center.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its fa-
cilities in Sacramento, California, copies of the attached notice
marked “Appendix.”49 Copies of the notice, on forms provided

49 If This Order is enforced by a judgment of a United States court
of appeal, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to Judgment
by the Regional Director for Region 20, after being signed by
the Respondents authorized representative(s), shall be posted
by the Respondents and maintained for 60 consecutive days in
conspicuous places including all places where notices to em-
ployees are customarily posted. In addition to physical posting
of paper notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondents customarily com-
municate with their employees by such means. Reasonable
steps shall be taken by the Respondents to ensure that the notic-
es are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondents have gone out of business or closed the facility
involved in these proceedings, the Respondents shall duplicate
and mail, at their own expense, a copy of the notice to all cur-
rent employees and former employees employed by the Re-
spondents at any time since February 7, 2014.
(j) Within 21 days after service by the Region, file with the
Regional Director for Region 20 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondents have taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. June 16, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to hire you or rescind your employment
offer because of your prior union-represented employment with
Horizons Youth Services LLC or your union activities and
membership, or otherwise discriminate against you to avoid
having to recognize and bargain with Sacramento Job Corps
Federation of Teachers, AFT, Local 4986, American Federation
of Teachers (the Union) as the exclusive bargaining representa-
tive of “All full-time Residential Advisors, Non-Residential
Advisors, and Day Residential Advisors employed at the Sac-
ramento Job Corps Center.”
WE WILL NOT remove bargaining unit work from the Resi-

of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.”
ADAMS & ASSOCIATES, INC. 31
dent Advisors and Non-Resident Advisors by giving Resident
Advisor and Non-Resident Advisor work to the functionally
equivalent positions, Residential Coordinators and Non-
Resident Counselor.
WE WILL NOT change your terms and conditions of employ-
ment such as disciplinary rules, grievance provisions, health
benefits, shifts, and probationary periods without first notifying
the Union and giving it an opportunity to bargain about any
such changes.
WE WILL NOT selectively and disparately enforce an access
rule against Union President Genesther Taylor who sought
access for purposes of collective bargaining.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Federal labor law.
WE WILL make whole those Horizons unit employees that we
unlawfully refused to hire or whose offer we unlawfully re-
voked for their losses with interest.
WE WILL, within 14 days from the date of the Board's Order,
offer employment to the following named former employees of
Horizons in their former positions or, if those jobs no longer
exist, in substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed, discharging if necessary any employees hired in their
places: Shannon Cousins-Kamara, Andre Lang, Macord Ngu-
yen, Genesther Taylor, and Azaria Ting.
WE WILL compensate these employees for the adverse tax
consequences, if any, of receiving a lump-sum backpay award,
and WE WILL file a report with the Social Security Administra-
tion allocating the backpay award to the appropriate calendar
quarters.
WE WILL provide to the above-named employees whatever
training we have provided since the takeover of the Sacramento
Job Corps Center, if such training is necessary to allow them to
perform their former jobs or substantially equivalent positions.
WE WILL, within 14 days from the date of the Board's Order,
remove from our files any reference to our unlawful refusal to
hire or unlawful rescinding of an offer to hire regarding the
above-named employees, and WE WILL, within 3 days thereaf-
ter, notify them in writing that this has been done and that our
unlawful refusal to hire or unlawful rescinding of an offer to
them will not be used against them in any way.
WE WILL rescind any changes in your terms and conditions
of employment that we unilaterally implemented during and
after the 2014 transition from Horizons to Adams & Associates,
and retroactively restore the preexisting terms and conditions of
employment, including the bargaining unit work of residential
coordinators and non-residential coordinators, probationary
period, discipline, grievance provisions, health benefits, and
shift schedules.
WE WILL apply our access policies fairly and non-
discriminately and, specifically, we will allow Union President
Genesther Taylor access for purposes of union and collective-
bargaining activity.
WE WILL, before implementing any changes in wages, hours,
or other terms and conditions of your employment, notify, and
on request, bargain with the Union as your exclusive collective-
bargaining representative.
ADAMS & ASSOCIATES, INC. AND MCCONNELL, JONES,
LANIER & MURPHY, LLP
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20-CA-130613 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273–1940.