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

National Labor Relations Board - Administrative Judge Opinions

Jun 16, 2015

20-CA-130613 (N.L.R.B. Jun. 16, 2015)

JD(SF)–25–15
Sacramento, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ADAMS & ASSOCIATES, INC. and
McCONNELL, JONES, LANIER &
MURPHY, LLP
and Cases 20-CA-130613
20-CA-138046
SACRAMENTO JOB CORPS
FEDERATION OF TEACHERS, AFT
LOCAL 4986, AMERICAN FEDERATION
OF TEACHERS
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
between 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 refused to hire five2 Horizons
employees in order to avoid a successor 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

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.
JD(SF)–25–15
2
violation of Alan Ritchey, 359 NLRB No. 40 (2012); made unilateral changes in terms and
conditions of employment; barred a Union 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 5
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 10
considering 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.
JURISDICTION15
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 management, educational, and student services at Job Corps centers both 20
inside and outside the State of California. Both Adams and MJLM admit that they meet the
Board’s jurisdictional standards for nonretail direct outflow4 and are employers engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act
(the Act).5
25
The parties agree that the Union is a labor organization within 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 HIERARCHY30
The Job Corps program is administered by the United States Department of Labor
(DOL). It provides training to economically 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 35
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

3 There is little dispute with regard to the facts of this case. However, 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 discredited 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).
5 29 U.S.C. §151 et seq.
6 Unless otherwise referenced, all dates are in 2014.
JD(SF)–25–15
3
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
functions 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, and5
Kelly McGillis (McGillis) is Deputy Center Director, the highest ranking Adams’ representative
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 individuals 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 10
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 (Murphy), Partner. Both 15
Adams and MJLM deny that these individuals 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 20
recommended hiring. I find that both Evans and Murphy were meaningfully 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 Murphy is an agent of
MJLM within the meaning of Section 2(13) of the Act.7
25
COLLECTIVE-BARGAINING RELATIONSHIP
From roughly 2009 through March 11, 2014, Horizons operated 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 30
operating the Center. Adams was responsible for residential, counseling, career preparation,
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

7 Sec. 2(13) of the Act, 29 U.S.C. § 152(13), provides that, “In determining 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 subsequently 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 authority 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.
JD(SF)–25–15
4
housed in Center dormitories and were overseen in the dormitories by Residential Advisors
(RAs).
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 5
30, 2013. It was extended three times thereafter through March 9, 2014. The Union was the
exclusive collective-bargaining representative 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 employees including 24 RAs, one non-10
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 15
hire only 15 RAs and to increase the number of students per 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 dormitory supervisors and center shift manager when necessary. Adams
considers RCs an entry-level management position. Adams utilizes this position at its other 20
centers throughout the United States.
HIRING
During the transition period, all hiring was completed including RAs and RCs. 25
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 Contours30
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
period from award to commencing operation, the transition period, was truncated in Sacramento
due to a contract appeal filed either by Horizons or a Horizons’ subcontractor, Insights. 35

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 employees 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 employer 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.
JD(SF)–25–15
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Typically, 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. 5
Typically, the new contractor is not given access to the old contractor’s personnel records
and this was the case in Sacramento. Although Horizons did not turn over its personnel records
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 Adams. 10
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 Executive Order 13495 Non-
Displacement of Qualified Workers under Service Contracts (referred to here as the EO). The 15
EO implementing regulations went into effect in 2013 and incorporated a right of first refusal for
displaced employees requiring successor contractors and subcontractors to offer employment to
predecessor contractor “qualified” employees. The regulations 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 1.20
Adams provided Horizons employees with a Notice to Service Contract Employees
which provided, in part:
Adams will offer a first right of refusal for employment to those eligible and 25
qualified employees who worked on the Horizons contract during the last 30 days
of that contract [with certain exceptions including]
ï‚· Adams may reduce the size of the current workforce; therefore, only a
portion of the existing eligible workforce may receive employment
offers. However, Adams will offer positions to the displaced 30
employees (for which they are qualified) if any openings occur during
the first 90 days of performance on the new contract.
 Where Adams has reason to believe that an employee’s job
performance while working on the current contract has been
unsuitable, the employee is not entitled to an offer of employment on 35
the new contract.
Thus, Adams first interviewed qualified incumbent employees, 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 40
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 45
double checked the interview schedule to make sure all incumbent applicants were scheduled for
JD(SF)–25–15
6
an interview in order to issue job offers within the transition timeframe of 10 days prior to
commencement 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 Hiring5
FACTS
At the end of each day, the interviewers met with Weldon and Gagnon. Gagnon made the
final decision on which applicants to hire. The decisions to hire were made on an ongoing basis 10
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.15
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 20
conducting interviews, went through these bins and determined which applicants 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.25
Interview evaluation forms were completed by each interviewer in nine categories: skills,
education, etc.; relevant experience; accomplishments; technical ability; job knowledge;
appearance; leadership; communication skills; and interpersonal skills. Interviewers rated each
applicant on a scale of one to four with one being excellent; two, average; three, below average; 30
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
unsatisfactory candidate in every category.
The Horizons Lists35
As soon as Adams hired its management staff, they discussed 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 40
supervisors reporting to her) spoke with McGillis on February 27 about RA and RC incumbent
applicants.11

11 Gagnon spoke with Joe Pearson about non-RA employees on the Horizons List and annotated
particular employees with Pearson’s feedback. Gagnon signed this annotated Horizons List on February
26, the date he spoke to Pearson. Newly hired Center director Evans was interviewed by Sharon Murphy
of MJLM about various non-RA former Horizons’ employees on February 26 and Murphy annotated a
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Based on Bowman’s information, the Horizons List was annotated 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 asterisks or stars by those she did
recommend hiring. McGillis took notes on the list indicating what Bowman said about various 5
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 10
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:15
Name Hire Date Start Date Annotation
ï‚· Cousins-Kamara, Shannon 12/27/10 12/27/10 integrity issue
ï‚· Lang, Andre 08/16/11 08/16/11 no annotation20
ï‚· Nguyen, Macord 07/01/08 03/29/04 sleeps + steels [sic]
 Taylor, Genesther 08/18/08 08/18/08 Doesn’t get much
done
ï‚· Ting, Azaria 09/25/12 09/25/12 Not good at doing job
25
Disqualification Forms
Although many of the individuals about whom Bowman gave negative information had
not yet been interviewed, McGillis nevertheless completed “Justification for Disqualification of
Potential Employment” (disqualification forms) for them on February 27. Based on Bowman’s 30
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.”
35
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 completion of this form was just one piece of information but did not automatically
disqualify individuals from being hired. Gagnon had the completed disqualification forms in
front of him when he made the decisions to hire or not to hire. The five alleged discriminatees’ 40
application and interview process was conducted within these general contours.
Corporate Hiring Instruction

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 employment, among other things.
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8
The record indicates that a corporate successorship avoidance 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 Adams’ RAs. CEO Adams
disciplined his team for their failure. Based on these facts, I find that from the beginning of the 5
transition, 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 10
interviewed well and had good scores. Around this time, Gagnon recalled a conversation with
Weldon about whether to hire Calahan,13 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 February or early March, she and 15
Gagnon went through the four applicants’ 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 are –
based upon our interview process they passed and they should be hired.”
20
Ultimately Gagnon decided to hire the individuals. Sometime 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.”
25
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 30
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 gather additional information for
various Horizons employees who were not hired by Adams. While there, she received an email 35
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

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 excellent.
16 Ostrowski was interviewed by Khajavi on February 27 and scored 1.5 on her overall evaluation.
Khajavi recommended hiring.
JD(SF)–25–15
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these further supporting documents. 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 Performance Concerns,” however, he 5
noted that a priority to “Within compliance guidelines, avoid union recognition” had not been
achieved. He concluded, “Despite repeated direction, guidelines, 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.” 10
In any event, during the week of March 24, Weldon gathered additional information by
interviewing former Horizons’ supervisors about employees who were not hired by Adams. She
completed a “Qualification Assessment” for each individual she was told needed bolstering
information. She interviewed managers during that week regarding former Horizons RAs 15
Cousins-Kamara, Azyha Jones, Nguyen, and Ting. She also completed 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, 20
“Done.”
On March 27, Pagni propounded a set of questions to Weldon regarding human resources
performance during the transition. One set of questions along with Weldon’s answers follows. In
understanding the questions, it is important to note that a substitute resident advisor, “Sub RA,” 25
is not a bargaining unit position.
Question: In preparing a recent summary of individuals who applied versus those
who were hired, there are ample incumbent Sub RA’s on the list. These
incumbent employees could have been used to fill RA positions without 30
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 incumbent list the 35
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 40
concerns raised was that she had completely failed to provide union avoidance training. Weldon
had never received a written warning after completing any other transitions.17

17 Although she did not recall any prior corrective action, Adams’ files contained one from 2007 due
to performance issues. This corrective action did not involve a transition effort.
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10
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 substitute RAs were not hired over 5
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 Horizons List among them. Interview 10
forms were altered and shredded and are thus unreliable. Immediately upon the hiring of four
incumbent RA applicants, CEO Adams expressed his displeasure that a majority of his RA work
force were former Horizons 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 substitute RAs 15
as is apparent from Pagni’s subsequent communications with Weldon, and Weldon was
disciplined for failure to avoid successor status.
Ultimate Hiring
20
Fourteen members of the Horizons bargaining unit applied for RA positions with Adams.
Nine of them were hired as Adams RAs. These were Rolando Aspiras, Sheila Broadnax, Diane
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 25
Horizons substitute RAs and one former Horizons custodian were hired for those positions.
ANALYSIS
While a successor employer is not obligated to hire its predecessor's employees, it may 30
not discriminate against those employees on the basis of antiunion animus. NLRB v. Burns
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).
35
In the context of successor avoidance, the General Counsel has the burden to prove that
the employer failed to hire employees of its predecessor and was motivated by antiunion animus.
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

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. Transportation 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 action 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
JD(SF)–25–15
11
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 convincing rationale for refusal to hire the predecessor's employees,
inconsistent hiring practices or overt acts or conduct evidencing a discriminatory motive, and 5
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.
10
Overwhelming evidence supports the government’s allegation 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 successor employer. The General
Counsel has satisfied its initial burden by showing substantial evidence of union animus in the
corporate hiring plan, conduct specifically incorporating a discriminatory motive, i.e., Adams’ 15
anti-union plan to avoid successor 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 employees in an
effort to avoid an obligation to recognize the Union.
20
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 Weldon 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 25
repeatedly stressed the need to hire non-bargaining unit substitute RAs over the bargaining unit
RAs in order to avoid successor status. Although this evidence of corporate strategy post-dates
the hiring, I find it clearly 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.
30
Adams’ explanations for its refusal to hire the alleged discriminatees are patently
pretextual. Adams struggled to provide meaningful rationale for disqualifying incumbent
bargaining 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 35
Horizons substitute RAs and one Horizons custodian.

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
standard 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).
JD(SF)–25–15
12
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.
5
Regarding Cousins-Kamara, who was hired by Horizons December 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 information “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 10
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 skepticism
at the hearing, McGillis nevertheless completed an original interview evaluation form based on
what Cousins-Kamara told her and then shredded it after speaking with Bowman. 15
McGillis admitted that she shredded this form and replaced it with a second form after
speaking with former dormitory supervisor Bowman. On the second form, McGillis
recommended not hiring Cousins-Kamara commenting, “Interviewer felt [Cousins-Kamara] was
not forth coming when asked questions.” This is obviously a false statement. McGillis actually 20
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 25
Horizons List II stating 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 Cousins-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 30
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 inconsistent policy by hiring non-unit 35
employees with background check inconsistencies but by withdrawing its offer of employment 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. 40
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
midnight). 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 45
award for 2013 as well.
JD(SF)–25–15
13
On February 27, Lang achieved an excellent overall evaluation score from Holman, his
interviewer, who recommended that he be offered an RA position. Lang received a one
(excellent) on all nine of the criteria. Lang was offered and accepted an RA position.
Lang’s offer was withdrawn after a background check revealed that the dates he provided 5
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.” 10
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 employment was
rescinded.
Other individuals who were offered employment with Adams and whose background 15
checks showed discrepancies did not have their offers rescinded. However, none of them were
prior Horizons’ bargaining unit employees. For instance, successful RA applicant Siegfried
Coleman’s background check revealed a discrepancy between his stated dates of prior
employment 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 20
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
employment 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 25
stated in Mathers’ application. Similarly, two discrepancies in Sharytta Scroggins’ employment
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 February 2006.
30
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
verification. As to other background check discrepancies, he was unaware whether Weldon 35
investigated them. Accepting Gagnon’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 40
violated Section 8(a)(3) and (1) of the Act.

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.
JD(SF)–25–15
14
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 5
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 including, “data integrity issues” and “sleeping
on the job.” Gagnon could not recall what he was referring to when he mentioned “data integrity
issues.” However, it is obviously a reference to the Horizons List II. I find that Adams has not 10
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 non-bargaining unit substitute
RAs or a custodian in order to avoid hiring a majority of its unit employees 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.15
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 Nusilla and when he left in 2012, her
supervisor was Vando Tamanalevu (Tamanalevu). Taylor was responsible for the Lassen and 20
Donner dormitories until 2013 when the Lassen dorm was closed. Thereafter, she was
responsible for the Donner 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. 25
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 demeanors,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 30
that she did not tell McGillis that she had “harrowing” experiences in the dormitory. Apart from
my demeanor finding above, McGillis’ testimony about the murder mystery and the “harrowing”
experiences is not inherently credible based on the common sense that no candidate for hiring,
especially one as experienced as Taylor, would have made such statements.
35
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 transition office when Taylor was

22 Taylor’s testimony was straight-forward, convincing, and unflinching. 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 surreal
quality inviting one to accept these actions as an ordinary day at the office.
JD(SF)–25–15
15
pursuing Union activities.23 Finally, 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 5
who were not RAs and was looking for reasons to complain.” It is 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 10
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 15
Connor on February 27 for the RA position. She scored slightly below average and was not
recommended for hire. Connor wrote, “Could not explain “‘retention’; 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.
20
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

23
McGillis reported for duty in Sacramento on February 25. According 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
Adams’ 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
statements 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 uncooperative with a pronounced lack
of interest in providing truthful testimony.
25Gagnon 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 669, 670 (2011)(“bad attitude” is veiled reference to
protected, concerted activity); Promenade Garage Corp., 314 NLRB 172, 179-180 (1994)(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 “demanding” behavior occurred when Taylor was engaged in Union
activity. This evidence constitutes specific evidence of animus toward Taylor’s Union activity.
JD(SF)–25–15
16
work.” Gagnon also relied on Ting’s interview form. Ting was interviewed by Babette Connor
(Connor), the counseling manager from Adams’ Treasure Island Center, on February 27.
Connor’s overall evaluation was below average with a recommendation 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 5
was not good at doing RA tasks. Additionally, Adams management had received additional
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 documents and testimony which are 10
neutral in nature, it is difficult to credit these reasons for not hiring Ting in light of the corporate
policy of successor avoidance. Further, Connor could not independently recall her interview of
Ting and, in any event, Gagnon testified he did not rely on the interviewer’s recommendation 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 15
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 antiunion animus Adams failed
to hire Cousins-Kamara, Nyugen, Taylor, and Ting and rescinded Lang’s offer of employment. 20
Adams has not shown that it would not have hired these employees and would not have
rescinded Lang’s offer of employment 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 25
rescinding Lang’s offer of employment, Adams violated Section 8(a)(3) and (1) of the Act.
ALLEGED UNILATERAL CHANGES
FACTS30
The General Counsel alleges Adams implemented “wholesale changes to the employment
relationship.”28 The complaint specifically alleges29 that Adams
ï‚· unilaterally removed work from the unit by reclassifying employees as RCs;35
ï‚· unilaterally removed work by reclassifying the non-resident advisor as a non-resident
counselor;
ï‚· ceased giving effect the dues deduction provision of the contract;

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
bargaining agreement between Horizons and the Union without affording notice and opportunity to
bargain.
JD(SF)–25–15
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ï‚· cease giving effect to progressive discipline provisions of the contract;
ï‚· ceased honoring the grievance provision of the contract;
ï‚· eliminated unit health benefits;
ï‚· changed from a fixed scheduled to a rotating shift schedule for some unit employees; and
ï‚· modified the probationary period terms for unit employees.5
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 afforded the Union regarding any of these changes.10
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 operations 15
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 conditions, supervisors, machinery, equipment, production
methods, and product. See also, Fall River Dying Corp. v. NLRB, 482 U.S. 27, 42-46 (1987).
20
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 25
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 requirements. I find on the record as a whole that these facts establish that Adams
was a Burns successor to the bargaining obligation of Horizons.
30
On March 11, the Union demanded recognition and bargaining. 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 35
with a majority of its RAs hired from Horizons.

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.
JD(SF)–25–15
18
Before it hires a majority of its unit employees from the predecessor, 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 predecessor employees’ union before changing terms and
conditions of employment. Burns, supra, at 278-279; Fall River Dyeing, supra, 482 U.S. at 41.5
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
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 10
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 15
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 International, 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 20
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 25
by which the obligations and rights of such a successor are incurred.” 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 30
employees. The General Counsel’s brief regarding the unlawfulness 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 without first bargaining with the Union. I reject this argument because I find
that Adams was not a “perfectly clear” Burns successor as limited by Spruce Up Corp., 209 35
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 40
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 45
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 consult with the
JD(SF)–25–15
19
employees’ bargaining representative before he fixes terms. In other words, it
may not be clear until the successor 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).5
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 “concede[d] that the precise meaning and application of the Court’s [“perfectly 10
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:
15
We believe the caveat in Burns, therefore, should be restricted to circumstances in
which the new employer has either actively 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 Respondent here, has failed to 20
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 limited in Spruce Up. Adams did
not actively or tacitly indicate that all employees would be retained. Further, even were there 25
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 30
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 credible
information the applicant had not performed for the prior contractor suitably. Thus, the 35
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 employment to any
employee of the predecessor contractor for whom the contractor or any of its 40
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 performance performed suitable work on 45
the contract, absent an ability to demonstrate a reasonable belief to the contrary
that is based upon written credible information provided by a knowledgeable
JD(SF)–25–15
20
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 disciplinary action taken for poor performance or evidence 5
directly 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
contractor is not sufficient to claim this exception.
10
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
testimony 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 15
perfectly clear indication that the entire unit of Horizons employees would be hired.
According to Taylor, at a transition meeting, Gagnon announced 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 20
from disciplinary reasons, he was 99 percent sure they would be hired.” Viewed from Taylor’s
perspective, 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 25
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 30
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 incumbent applicants, it clearly
announced its intent to establish new conditions. Prior to beginning operations, Adams 35
formulated its own operational plan and it told employees there would be a reduction in staff. In
its hiring agreements, presented to each RA at the time of hire, Adams set forth wages, shifts, a
mandatory arbitration agreement to resolve employment disputes, 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 limited by Spruce Up.40
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 General

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.
JD(SF)–25–15
21
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 not address these issues.
Although Adams is not a “perfectly clear” successor, it nevertheless had a duty to bargain 5
with the Union because it unlawfully 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 negotiate which frustrates the obligation of Section 8(a)(5) as much 10
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
substantive terms as set forth in the expired collective-bargaining agreement with Horizons and 15
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 changes, 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 Counselor and Non-20
Resident Counselor
Facts
Adams unilaterally established a new classification of RC consisting of five residential 25
counselors and one non-resident 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 identical. Thus, both perform 30
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. 35
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 performed 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 40
non-unit position.

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.
JD(SF)–25–15
22
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 performed by the unit.
Adams did not bargain about the creation of the RC classification. It was announced prior to
hiring.5
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 10
had an extensive bargaining history. As a successor, Adams continued the operations including
the work of RAs with substantial 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 15
bargaining history remain intact unless repugnant to the Act).33
Adams asserts that the RCs cannot be included in the bargaining 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, reward, or assign duties. There is no 20
evidence that they can meaningfully 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. However, 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 25
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
informal basis. The qualification for RA is a valid California driver’s license and a high school 30
diploma. Experience is preferable 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, recall, or discipline RAs or
promote them. RCs do not have authority to transfer. RCs may approve overtime only in an 35
emergency 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 employees 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 development director if the dorm 40

33 The General Counsel alleges that the creation of these new positions constitutes reassignment of
unit work to non-unit employees. Citing Hilton Environmental, 320 NLRB 437, 439 n. 12 (1995) (by
unilaterally removing clerk position from bargaining unit, “perfectly clear” successor transferred unit
work, a mandatory subject of bargaining), the General Counsel asserts that diversion of unit work is a
mandatory subject of bargaining. Because I do not find that Adams is a “perfectly clear” successor, I do
not rely on this case.
JD(SF)–25–15
23
supervisor disagrees with the recommendation. In any event, the social development director in
consultation with the dorm supervisor makes the final determination on such matters. If the
supervisor does not feel a recommendation 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 5
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) 10
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 15
they had used in their work for the predecessor. When employees continue doing substantially
the same work they did for a predecessor, 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 perform substantially the same work as 20
RAs. Creation of a substantially 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 non-unit
employees.
Probationary Period25
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
employees 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 30
to obtain a “meets expectations” evaluation. (Article IV. Probationary Period) Additionally,
Adams applied its probationary period to predecessor unit employees.
Probationary periods constitute a mandatory subject of bargaining. Puerto Rico Junior
College, 265 NLRB 72, 77 (1982). Thus, Adams violated Section 8(a)(5) and (1) when it failed 35
to provide notice and opportunity to bargain prior to implementing the probationary period. See,
Camelot Terrace, 357 NLRB No. 161, slip op. at 3, 8 (2011).
Discipline
40
The employment agreement also sets forth numerous grounds for discipline, up to and
including discharge. The Horizons 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 No. 68, slip op. at 4 (2012) (relied upon by the General 45
Counsel). There is no dispute that Adams failed to afford the Union notice or an opportunity to
JD(SF)–25–15
24
bargain regarding either the disciplinary system or the “at will” status of employees. Thus I find
a violation of Section 8(a)(5) and (1) of the Act.34
Grievance Provisions
5
Another portion of the employment agreement mandates arbitration of “any and all
disputes directly or indirectly arising out of or in any way connected with my employment with
[Adams] or the termination of that employment . . .” Just to be clear, there is no allegation that
this clause independently violates the Act.35 Rather, the relevant allegation is that insertion of
arbitration into the employment agreement supplants the contract grievance mechanism (Article 10
IV. Grievance Procedure) and thus constitutes a unilateral change. There is no dispute 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.15
Health Benefits
The status quo terms and conditions provided for health benefits for unit employees
including medical, dental, and vision plans. Health benefits are a mandatory subject of 20
bargaining. The Southern New England Tel. Co., 356 NLRB No. 62, slip op at 14 (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 employees were eligible for Adams’ health benefits. There is
no dispute that the Union was not notified of this change. Thus, by unilaterally implementing its 25
own health benefits without notifying the Union or providing an opportunity to bargain, Adams
violated Section 8(a)(5) and (1) of the Act.
Shift Schedules
30
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 rotating 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 35
notified of this change and there is no dispute that the Union was afforded an opportunity to

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 No. 184 (2012), reversed in relevant part, 737 F.3d 344 (5th Cir. 2013), reaffirming that an
employer 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.
JD(SF)–25–15
25
bargain regarding this change. Accordingly, I find that by unilaterally instituting rotating shifts
without notice or opportunity to bargain, Adams violated Section 8(a)(5) and (1) of the Act.
Union Dues
5
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
constitutes alleged failure of Adams to adhere to its predecessor’s terms and conditions of
employment. As a successor who unlawfully refused to hire its predecessor’s employees, Adams
was required to maintain the status quo by continuing Horizons’ terms and conditions of 10
employment. Pressroom Cleaners, 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. denied 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).
15
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
confirmed 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 20
expiration of the contract, 36 the continuing validity of that decision is in doubt due to the
constitutionality of two of the Members’ appointments.37 Accordingly, prior precedent,38 which
did not recognize a continuing duty to honor dues checkoff post-expiration, controls and requires
that this allegation be dismissed.
25
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 30
procedure is in place, an employer must bargain with the union before exercising its discretion to
impose certain discipline such as suspension, demotion, 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. 35
However, two years later, in Noel Canning,39 the recess appointments of Members
Griffin and Block were held invalid. Since Noel Canning’s issuance, Alan Ritchey has not been

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 recess appointments does not extend
JD(SF)–25–15
26
adopted or reaffirmed by a validly-constituted Board. Nevertheless, the complaint alleges that
when Adams imposed discretionary discipline by discharging five employees it violated Section
8(a)(5) and (1) of the Act because it did not first bargain with the Union as required in Alan
Ritchey. 40
5
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, assuming 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 10
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.15
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 20
employment agreement terms. Rather, the employment agreement 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 supplanted it with a mandatory arbitration 25
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
employees were discharged pursuant to the terms of unlawfully implemented employment 30
agreements which removed progressive 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 Horizon’s contract grievance procedure.
The remedy for these violations will require restoration of the status quo, reconsideration of the 35
discharges applying the contractual just cause standard, and waiver of time limits for filing

to three-day period between pro forma sessions).
40 In McKesson Corp., JD(ATL)-30-14 (Nov. 4. 2014), Administrative 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.
JD(SF)–25–15
27
grievances on behalf of these employees should Respondent’s reconsideration result in a
discharge finding.
BARRING TAYLOR’S ACCESS TO THE CENTER
5
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:
10
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 15
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 20
bargaining be held at the Center. Respondent 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
bargaining sessions, held October 14 and November 17 respectively, the Union continued to
raise the issue of Taylor’s access to the site for bargaining and Adams continued to deny the 25
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.
Analysis30
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. 35
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.40
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 45
or in any way make good faith bargaining impossible. In agreement with the General Counsel, I
JD(SF)–25–15
28
find that by banning Taylor from the 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 PLACES5
Facts
The General Counsel alleges that Respondent refused to meet with the Union at
reasonable places not only by selectively and disparately enforcing a work rule against Union 10
president Taylor to bar her from the Center but also by generally refusing to bargain at the
Center. The record reflects that Horizons 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 accommodate employee-negotiators. 15
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 insisting on 20
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 25
attempted, “Considerations of personal convenience, including geographical or professional
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 30
“reasonable places,” this is subsumed in my finding above that Adams refused to bargain in good
faith by unlawfully enforcing its access rule to ban Taylor from the Center.
Conclusions of Law
35
1. Since at least March 11, 2014, Adams has been a successor 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:
40
All Full-time Residential Advisors, Non-Residential Advisors, and Day
Residential Advisors employed at the Sacramento Job Corps Center.
2. By refusing to hire Shannon Cousins-Kamara, Macord Nguyen, Genesther Taylor, and
Atiria 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 collective-bargaining 45
JD(SF)–25–15
29
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 mandatory terms and conditions of unit 5
employees’ employment, Adams 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;10
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; and15
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 20
set forth in Alan Ritchey, 359 NLRB No. 40 (2012), because Alan Ritchey has not been
reaffirmed or adopted 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.25
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.
30
6. By insisting on meeting at 5 p.m., Adams did not violate Section 8(a)(5) and (1) of the
Act.
Joint Employer
35
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 40
must be a showing that the employers 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 45
(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
JD(SF)–25–15
30
of work and equipment, employment tenure, and an employer’s involvement in the collective
bargaining process. CNN, supra, slip op. at 3 n.7, and 7.
Facts
5
The management services agreement between Adams and MJLM, signed on February 13,
provides that Adams will provide the following management services to MJLM:
ï‚· Overall Center performance management and direction;
ï‚· Proposal development, implementation, and compliance oversight;10
ï‚· Policy, plan, and procedure development, submission, and implementation;
ï‚· Job Corps operational and technical assistance;
ï‚· Program assessment, direction, oversight, and integrity audits;
ï‚· Participation in corporate training (staff travel and per diem at MJLM expense)
ï‚· Transition assistance; and15
ï‚· 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 20
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 25
structure 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 affidavit to the Board as well as the joint proposal to DOL, that the wage
structure in general was developed jointly between Adams and MJLM.30
The subcontract agreement provides that Adams will, “Provide 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 requirements and possess the necessary educational criteria, experience 35
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 remove Adams’ staff from the Center if staff
willfully violate Center rules, regulations and/or established policy standards.” Based on these
provisions, I find that in general the staff schedule for Adams’ employees is set solely by Adams 40
and Adams alone is responsible for ensuring that its staff meets all hiring criteria required by

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.
JD(SF)–25–15
31
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 disciplinary policies. When
Gagnon first spoke to employees about the Adams’ application process, Sharon Murphy spoke to 5
employees 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
determine which positions remained vacant which had been filled. For instance, Don Khajavi, a 10
consultant for MJLM assisting in the transition, interviewed Broadnax and Ostrowski and
recommended both of them for hire. MJLM partner Sharon Murphy interviewed Diane Calahan.
Thus, at least during the transition period, Adams and MJLM jointly determined which
employees Adams would hire.
15
Weldon prepared interview packets for the interviewers (including 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 Adams team as did MJLM human resources director Joyce Barrett and
several other MJLM personnel.20
During the transition period, Murphy interviewed newly hired Center director Evans
about Horizons employees including Romona Anthony, a Horizons clerk. Afterwards, Murphy
and Gagnon discussed Anthony as a wellness monitor, a position Adams was filling. They also
discussed one other applicant for an Adams position whom Murphy had discussed with Evans. 25
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. 30
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 information and assist as
needed so that the transition would run smoothly. Weldon characterized her role as mentoring or 35
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. 40
Each evening, Barrett and Weldon updated the Direct Staffing List to fill in the names of
employees who were hired by each company. The list was presented to the team leaders on a

43 Pagni testified that Adams’ SOPs were revised to state “Sacramento 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.
JD(SF)–25–15
32
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.
5
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 10
Adams issues such as staffing.
Analysis
At least during the transition period, the relevant period for purposes of this analysis, 15
MJLM shared or codetermined essential 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, 20
MJLM and Adams jointly developed the Adams wage structure.
Adams employees follow the MJLM holiday schedule. Although 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 subject to notice to Adams. 44 Through 25
routine consultation between McGllis and Evans, MJLM is informed on all matters performed by
Adams.
During the transition period, MJLM representatives interviewed Adams applicants and
meaningfully recommended whether these applicants were to be hired. There is no evidence that 30
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 contractor 35
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 Sacramento RAs work exclusively
for MJLM. However, it should be noted that Adams has RAs working in many other locations. 40
Although the fact that a subcontractor’s employees worked exclusively for CNN was relied upon
in part in CNN, supra, the facts here are easily distinguished. CNN retained considerable

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.
JD(SF)–25–15
33
authority over hiring, supervision and direction of the employees of TVS. There is no evidence
that MJLM retains such authority. CNN prohibited hiring employees from CNN competitors.
There is no evidence that MJLM has such a prohibition. CNN retained substantial control
over the number of technicians to be hired by TVS, CNN retained control over the number of 5
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.
10
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 direction.
15
Alternatively, the General Counsel urges the Board to abandon its existing joint employer
standard claiming that standard undermines the policy of the Act to encourage stable and
meaningful collective bargaining.45 Thus, the General Counsel urges a return to the Board’s
“traditional” pre- Laerco, pre-TLI standard. Under this approach, in an analysis of whether two
entities share or codetermine or meaningfully affected the other’s terms and conditions of 20
employment, “no distinction [would be made] between direct, indirect, and potential control over
working conditions and would find joint employer status where ‘industrial realities’ make an
entity essential for meaningful bargaining.”46 This would include situations where the putative
joint employer wielded sufficient influence through direct control, indirect control, or potential
control such that meaningful bargaining could not occur in its absence. Further, the putative joint 25
employer’s control over working conditions might be based not on specific contractual
provisions but on the industrial 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.4730
There may well be important policy reasons to return to the Board’s earlier test for
determining joint employer status. However, 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.35

45 See Amicus Brief of the General Counsel in Browning-Ferris Industries, 32-RC-109684, currently
pending before the Board.
46 General Counsel’s Amicus Brief at p. 17, Browning-Ferrris Industries, 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 indirect 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 contractual power “to control or influence the labor policies of the licensees,” and
retained “the right to terminate either license for default,” thereby insuring “that its wishes in regard to
labor relations matters will be carried out by the licensees”).
JD(SF)–25–15
34
Remedy
Having found that Respondents have engaged in certain unfair labor practices, I shall
order them to cease and desist from such violations and take certain affirmative action designed 5
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 10
Presssroom Cleaners, supra, 361 NLRB No. 57, slip op. at 6 (that is restoration of the
predecessor’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 15
Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010).
Respondents shall file a report with the Social Security Administration allocating
backpay to the appropriate calendar quarters. Respondents shall also compensate the 20
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 25
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 unilaterally 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.30
In ordering Respondents to rescind the employment contract discipline provision, Adams
must also reconsider the discharges 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 discharges are upheld on reconsideration, waive any time limits for the 35
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 40
practices.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended48

48 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
JD(SF)–25–15
35
Order
Respondent Adams & Associates, Inc., Sacramento, California, its officers, agents,
successors, and assigns, and joint employer McConnell, Jones, Lanier & Murphy, Sacramento, 5
California, ets 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 10
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 15
unit employees’ employment, as follows:
1) Removing work from the unit by replacing RA positions with new RC
positions;
2) Ceasing to give effect to the progressive disciplinary provision of the most
recent collective-bargaining agreement between Horizon and the Union;20
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; and25
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, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.30
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a) Having discriminatorily refused to hire Shannon Cousins-Kamara, Nguyen
Macord, Genesther Taylor, and Azaria Ting and unlawfully rescinded an offer to 35
Andre Lang, Respondents 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.40
b) Make Shannon Cousins-Kamara, Andre Lang, Macord Nyugen, 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), with interest at the rate prescribed in New Horizons, 283 NLRB 1173

by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–25–15
36
(1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB No. 8 (2010).
c) Within 14 days from the date of the Board’s Order, remove 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 5
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 10
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 writing, its diversion of
residential advisor and non-residential advisor work from the bargaining unit by
reclassifying the work as that of residential coordinator and non-residential 15
coordinator, rescind the unilaterally implemented at will disciplinary system, the
unilaterally implemented arbitration agreement, the unilaterally implemented
health benefits, the unilaterally implemented rotating shift schedule and the
unilaterally implemented probationary period and restore the status quo ante by
restoring unit work to the bargaining unit, giving effect to the just cause terms of 20
the Horizons’ collective-bargaining agreement, giving effect to the grievance
provisions of the agreement, 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 pursuant to the just cause terms of the Horizons 25
collective-bargaining agreement and, if those discharges are upheld on
reconsideration, waive any time limits for the filing of grievances 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-30
bargaining representative 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 additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place 35
designated by the Board or its agents, all payroll records, social security payment
records, 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 facilities in Sacramento,40
California, copies of the attached notice marked “Appendix.”49 Copies of the
notice, on forms provided by the Regional Director for Region 20, after being

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 National Labor Relations Board” shall read “Posted Pursuant to
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD(SF)–25–15
37
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 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 5
other electronic means, if the Respondents customarily communicate with their
employees by such means. Reasonable steps shall be taken by the Respondents 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 Respondents have
gone out of business or closed the facility involved in these proceedings, the 10
Respondents shall duplicate and mail, at their own expense, a copy of the notice
to all current employees and former employees employed by the Respondents 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 responsible official on a form provided by the 15
Region attesting to the steps that the Respondents have taken to comply.
It is further ordered that the complaint is dismissed insofar as it alleges violations of the Act not
specifically found.
20
Dated, Washington, D.C. June 16, 2015
____________________
Mary Miller Cracraft25
Administrative Law Judge
JD–25–15
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 benefit and protection
Choose not to engage in any of these protected activities.
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 representative of “All full-time Residential Advisors, Non-Residential Advisors, and Day
Residential Advisors employed at the Sacramento Job Corps Center.”
WE WILL NOT remove bargaining unit work from the Resident Advisors and Non-Resident Advisors by
giving Resident Advisor and Non-Resident Advisor work to the functionally equivalent positions,
Resident Counselors and Non-Resident Counselor.
WE WILL NOT change your terms and conditions of employment 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, restrain, 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 revoked 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
enjoyed, discharging if necessary any employees hired in their places: Shannon Cousins-Kamara, Andre
Lang, Nguyen Macord, Genesther Taylor, and Azaria Ting.
JD(SF)–25–15
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 Administration 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 thereafter, 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.
(Joint Employer)
Dated By
(Representative) (Title)
McCONNELL, JONES, LANIER & MURPHY, LLP
(Joint Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
JD(SF)–25–15
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
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, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (415) 356-5183.