American Sales and Management Organization, LLC d/b/a Eulen America

National Labor Relations Board - Board Decisions

Dec 4, 2018

367 NLRB No. 42 (N.L.R.B. 2018)

367 NLRB No. 42
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
American Sales and Management Organization, LLC
d/b/a Eulen America and Service Employees In-
ternational Union, Local 32BJ. Cases 12–CA–
163435 and 12–CA–176653
December 4, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On January 30, 2018, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
filed exceptions and a supporting brief, and it also filed
amended exceptions and an amended supporting brief.1
The General Counsel and the Charging Party each filed
an answering brief, and the Respondent filed a reply
brief.
The National Labor Relations Board (NLRB or the
Board) has delegated its authority in this proceeding to a
three-member panel.
The Board has considered the decision and the record
in light of the amended exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as modi-
fied and set forth in full below.3
The judge found that the Respondent, a contractor
providing ground handling and passenger support ser-
vices to six air carriers at the Fort Lauderdale-Hollywood
International Airport (FLL), is an employer within the
meaning of Section 2(2) of the Act and subject to the
Board’s jurisdiction. The judge further found that the
Respondent violated Section 8(a)(3) and (1) of the Act

1 The Charging Party filed a motion to strike, alleging that the Re-
spondent’s exceptions failed to comply with the Board’s Rules and
Regulations because they contained argument. The Charging Party also
asserted that the Respondent’s exceptions and supporting brief should
be rejected because they exceeded the page limit. On May 23, 2018,
the Associate Executive Secretary wrote the Respondent stating that its
filings did not comply with the Board’s Rules and allowing the Re-
spondent to resubmit its exceptions and supporting brief. Thereafter,
on May 29, 2018, the Respondent filed amended exceptions and an
amended supporting brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language for the violation found, and we
shall substitute a new notice to conform to the Order as modified.
by discharging and refusing to rehire employee Joanne
Alexandre because she engaged in union activity. For
the reasons set forth below, we affirm the judge’s find-
ings, but we clarify the judge’s analysis of the jurisdic-
tional issue.4
Facts
The Respondent is a contractor that provides a variety
of services to six air carriers at FLL.5 The parties stipu-
lated that the Respondent directly hires its employees,
provides their pay and benefits, generates employees’
work schedules, and reviews its employees’ requests for
time off. The parties also stipulated that the Respondent
maintains and distributes an employee handbook that
describes the employees’ terms and conditions of em-
ployment. In addition, the record shows that the Re-
spondent provides employees with a 900-page safety and
training manual and is solely responsible for training its
employees on safety matters and ensuring they receive
the appropriate training as required by each carrier.6
About 90 percent of the Respondent’s employees wear
the Respondent’s uniforms and badges.
The carriers retain a contractual right to audit the Re-
spondent’s cabin cleaning performance and to access the
Respondent’s books and records, and several carriers
exercise that right. However, the carriers do not dictate
how the Respondent determines staffing levels or shift
assignments, and the Respondent’s supervisors, not the

4 The Respondent filed only bare exceptions to the judge’s finding
that it violated Sec. 8(a)(3) and (1) by discharging and refusing to re-
hire employee Joanne Alexandre. Because the Respondent has not
presented any argument in support of these exceptions, we find in ac-
cordance with Sec. 102.46(a)(1)(ii) of the Board’s Rules and Regula-
tions that these exceptions should be disregarded. See, e.g., Natural
Life, Inc. d/b/a Heart & Weight Institute, 366 NLRB No. 53, slip op. at
1 fn. 3 (2018); Holsum de Puerto Rico, Inc., 344 NLRB 694, 694 fn. 1
(2005), enfd. 456 F.3d 265 (1st Cir. 2006). Accordingly, we find it
unnecessary to consider whether the judge appropriately drew an ad-
verse inference against the Respondent for failing to call administrative
assistant Jodi-Ann Pagon and former Supervisors John Marrast and
Aurea Mendez to testify about the circumstances of Alexandre’s dis-
charge.
5 The services that the Respondent provides to carriers American
Airlines, Bahamasair, Delta, Jet Blue, Spirit and WestJet at FLL in-
clude checkpoint, counter, janitorial, bag room, ramp, and cabin ser-
vices.
6 The record shows that several carriers, including Delta and Spirit,
require supplementary training programs to inform the Respondent’s
employees of the individual carriers’ expectations for providing par-
ticular services. The Respondent’s employees generally complete such
training using the carriers’ computers. Some of the carriers play a role
in training the Respondent’s trainers, and the Respondent sometimes
assists the carriers in developing training programs. For example, Delta
requires the Respondent to have a Delta-trained trainer instruct the
Respondent’s employees about how Delta expects them to clean its
cabins. Although some of the supplementary training emphasizes the
expectations of particular carriers, the majority of that training is feder-
ally mandated.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
carriers, oversee the assignment and direction of the Re-
spondent’s employees. Apart from a handful of isolated
episodes,7 the carriers play no role in hiring, firing, or
disciplining the Respondent’s employees.
Discussion
In relevant part, Section 2(2) of the Act defines the
term employer to exclude “any person subject to the
Railway Labor Act.” In addition, Section 2(3) of the Act
relevantly provides that the term employee does not in-
clude “any individual employed by an employer subject
to the Railway Labor Act.” The Railway Labor Act
(RLA), as amended, covers
every common carrier by air engaged in interstate or
foreign commerce, and every carrier by air transporting
mail for or under contract with the United States Gov-
ernment, and every air pilot or other person who per-
forms any work as an employee or subordinate official
of such carrier or carriers, subject to its or their continu-
ing authority to supervise and direct the manner or ren-
dition of his service.
45 U.S.C. § 151 First and 181.
When an employer is not itself a carrier, the National
Mediation Board (NMB) applies a two-part test to de-
termine whether it nonetheless has jurisdiction over that
employer. First, the NMB considers whether the em-
ployer performs work that is traditionally performed by
carrier employees. Second, the NMB evaluates whether
the employer is directly or indirectly owned or controlled
by, or under common control with, a carrier or carriers.
The NMB has traditionally considered the following six
factors in determining whether the second part of the test
is satisfied: (1) the extent to which the carrier controls
the manner in which a company conducts its business;
(2) access to the company’s operations and records; (3)
the carrier’s role in personnel decisions; (4) the carrier’s
degree of supervision; (5) the carrier’s control over train-
ing; and (6) whether the employees at issue are held out
to the public as employees of the carrier. See, e.g., Air
Serv Corp., 33 NMB 272, 285 (2006).
As explained in our recent decision in ABM Onsite
Services-West, Inc., 367 NLRB No. 35, slip op. at 1
(2018), in 2013 the NMB departed from its longstanding
six-factor test and began assigning greater weight to car-
riers’ control over personnel decisions. See, e.g.,

7 The credited testimony establishes that the Respondent conducts
its own investigations of alleged employee misconduct and makes an
independent decision regarding how to respond in each case. The
record shows one instance where a carrier recommended promoting an
employee and another instance where a carrier recommended hiring an
employee.
Huntleigh USA Corp., 40 NMB 130, 137 (2013). The
Board deferred to the NMB and asserted jurisdiction in
cases where the NMB declined to do so under its re-
balanced test. See, e.g., Airway Cleaners, LLC, 362
NLRB 760, 760 fn. 2 (2015). In 2017, the United States
Court of Appeals for the District of Columbia Circuit
criticized the NLRB and NMB for departing from the
traditional six-factor test without explaining why. ABM
Onsite Services – West, Inc. v. NLRB, 849 F.3d 1137
(D.C. Cir. 2017). The court found that the NMB’s recent
precedent overemphasized carriers’ control over discipli-
nary decisions without explaining why that factor should
be given greater weight than the others, id. at 1144–1146,
and it criticized the NLRB for following suit “without an
explanation for why it, too, was leaving behind settled
precedent,” id. at 1146. The court remanded the case,
instructing the NLRB to either “attempt[] to offer its own
reasoned explanation for effectively whittling down the
traditional six-factor test” or “refer[] this matter to the
NMB and ask[] that agency to explain its decision to
change course.” Id. at 1147.
Following the court’s remand, the NLRB referred
ABM Onsite Services to the NMB for an advisory opin-
ion. The NMB issued an opinion reaffirming the six-
factor test and also reaffirming that a carrier “must effec-
tively exercise a significant degree of influence over the
company’s daily operations and its employees’ perfor-
mance of services in order to establish RLA jurisdic-
tion.” ABM-Onsite Services, 45 NMB 27, 34 (2018). In
addition, the NMB emphasized that “[n]o one factor is
elevated above all others in determining whether this
significant degree of influence is established.” Id. at 34–
35. Applying the six-factor test, the NMB determined
that the employer’s operations were subject to the RLA.
Thereafter, the Board deferred to the NMB’s reaffirma-
tion of its six-factor analysis and its finding of RLA ju-
risdiction. See ABM Onsite Services-West, supra, 367
NLRB No. 35, slip op. at 2-3.
At issue in this case is whether the Respondent is an
employer under Section 2(2) of the Act or is subject to
RLA jurisdiction under the NMB’s reaffirmed six-factor
test. In making this determination, “[t]he Board and the
NMB each has independent authority to decide whether
the RLA bars the [Board’s] exercise of jurisdiction.”
Allied Aviation Service Co. of New Jersey v. NLRB, 854
F.3d 55, 62 (D.C. Cir. 2017); see also Spartan Aviation
Industries, Inc., 337 NLRB 708, 708 (2002). We find it
appropriate to exercise that authority here and evaluate
whether, in light of the D.C. Circuit’s decision in ABM
Onsite Services and the NMB’s subsequent advisory
opinion in that case, the judge correctly found that the
Respondent is subject to the Board’s jurisdiction. Hav-
AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC D/B/A EULEN AMERICA 3
ing done so, we affirm the judge’s conclusion that the
Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act. However, because the judge did not
separately analyze the facts of this case in light of each of
the six factors the NMB applies, we shall briefly clarify
the judge’s analysis.8 As explained below, we find that
five of the six factors, applied here, support a finding that
the carriers do not exercise a significant degree of influ-
ence over the Respondent’s operations and employees,
and the Respondent is therefore subject to the Board’s
jurisdiction.
First, the judge found, and all parties agree, that the
Respondent’s employees perform work that air carriers
have traditionally performed. As such, the first part of
the NMB’s two-part jurisdictional test is satisfied.
With respect to the second part of the test, whether an
entity is controlled by a carrier, the first factor the NMB
considers is the extent of carrier control over the manner
in which the company does business. Here, the judge
correctly found that the Respondent is solely responsible
for deciding the manner in which it provides services and
conducts its business. The Respondent determines its
employees’ terms and conditions of employment regard-
less of which carrier the employees are assigned to ser-
vice. In addition, the Respondent provides almost all its
own equipment. Because the carriers are not responsible
for determining how the Respondent fulfills its contrac-
tual obligations or how the Respondent’s employees per-
form their services, this factor weighs against a finding
of RLA jurisdiction. See, e.g., Signature Flight Support,
32 NMB 214, 224–225 (2005) (carrier did not exercise
control over the manner in which an employer did busi-
ness where the employer, not the carrier, was responsible
for determining how its employees provided services to
the carrier).
The second factor concerns the carriers’ access to a
company’s operations and records. As the judge found,
the carriers are contractually authorized to access the
Respondent’s books and records and to audit its perfor-
mance of its obligations, and the record shows that sev-
eral of the carriers exercise these contractual rights. This
factor, therefore, weighs in favor of a finding of RLA
jurisdiction. See ABM Onsite Services, supra, 45 NMB
at 35 (carrier consortium’s contractual “right to review
all records related to the services provided by” the em-
ployer weighs in favor of a finding of carrier control).
Under the third factor, the NMB considers the carrier’s
role in personnel decisions. As the judge correctly

8 To the extent the judge relied on Board and NMB decisions that
are no longer precedential because they did not correctly apply the six-
factor test, we do not rely on those decisions.
found, with the exception of two isolated incidents,9 the
carriers play no role in the Respondent’s personnel deci-
sions. The Respondent conducts its own investigations
into allegations of employee misconduct and makes dis-
ciplinary decisions based on those investigations. Be-
cause the Respondent independently determines how to
manage its work force and the appropriate response to
carrier feedback regarding employees’ performance, this
factor weighs against a finding of RLA jurisdiction. See,
e.g., Signature Flight Support, 32 NMB at 225–226 (car-
rier did not control an employer’s personnel decisions
where it was not involved in hiring, investigating allega-
tions of misconduct, or disciplining or discharging em-
ployees).
The fourth factor is the degree of carrier supervision.
The judge correctly found that the Respondent’s on-site
managers and supervisors are solely responsible for su-
pervising the Respondent’s employees. The carriers are
not authorized to determine staffing levels, assign em-
ployees work, direct employees in the performance of
their work, or authorize overtime. The credited testimo-
ny shows that the carriers’ supervisors do not communi-
cate directly with the Respondent’s employees regarding
their work performance. Accordingly, this factor weighs
against a finding of RLA jurisdiction. See Signature
Flight Support, 32 NMB at 225–226 (no carrier control
where carrier did not directly supervise the employer’s
employees or determine how to manage employees’ per-
formance); Air BP, A Division of BP Oil, 19 NMB 90, 92
(1991) (no carrier control where the employer had “sole
authority over its employees and the carriers ha[d] no
direct supervisory authority over [the employer’s] em-
ployees”).
The fifth factor addresses carrier control over employ-
ee training. The Respondent is solely responsible for
training employees on safety matters. The judge correct-
ly found that the Respondent maintains a detailed safety
and training manual and conducts extensive employee
training. Although the carriers provide supplementary
training and sometimes require that their employees train
the Respondent’s trainers, the majority of that training is
federally mandated. See, e.g., Ogden Aviation Services,
23 NMB 98, 103, 106–107 (1996) (no carrier control
where employees received “general on-the-job training”
from the employer and, from carriers, a limited amount
of training “necessary to satisfy security and safety re-
quirements”). Because the Respondent is principally
responsible for training its employees and the carriers

9 As noted above at fn. 7, the record shows that a carrier once rec-
ommended that the Respondent promote an employee and once rec-
ommended the hiring of an employee.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
play a limited role in employee training, this factor
weighs against a finding of RLA jurisdiction.
Finally, under the sixth factor the NMB evaluates
whether employees are held out to the public as carrier
employees. As the judge correctly found, the record
shows that about 90 percent of the Respondent’s em-
ployees wear the Respondent’s uniforms and badges.
This factor, therefore, weighs against a finding of RLA
jurisdiction. See Signature Flight Support, 32 NMB at
219, 225; Ogden Aviation Services, supra, 23 NMB at
107.
In sum, one factor weighs in favor of a finding of car-
rier control and RLA jurisdiction, and the other five fac-
tors weigh against such a finding. With respect to the
one factor weighing in favor of carrier control, we note
that the NMB has historically found that carriers’ access
to a contractor’s records is typical in subcontractor rela-
tionships and, as such, is insufficient to confer RLA ju-
risdiction. See, e.g., Air BP, 19 NMB at 91–93 (contrac-
tual requirement of “around the clock” service and right
to inspect the operations to ensure compliance with carri-
ers’ standards, training and recordkeeping requirements
insufficient to confer RLA jurisdiction). Accordingly,
this factor does not outweigh the other five factors.10
Having found that the one factor weighing in favor of
RLA jurisdiction does not outweigh the other factors that
do not favor RLA jurisdiction, we find that the Respond-
ent is not directly or indirectly controlled by a carrier.
Accordingly, the Respondent is an employer within the
meaning of Section 2(2) of the Act and subject to the
Board’s jurisdiction. Further, because the Respondent
filed only bare exceptions to the judge’s finding on the
merits of the unfair labor practice allegation, and we
have found it appropriate to disregard those exceptions,11
we adopt the judge’s finding that the Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discharging and

10 We further note that in Allied Aviation Service Co. of New Jersey
v. NLRB, the D.C. Circuit cited with approval the Board’s comparison
of the facts in that case with the facts on which NMB Member Geale
relied when dissenting from decisions placing enhanced emphasis on
carrier control over personnel decisions. 854 F.3d at 63, enforcing 362
NLRB 1392, 1393 (2015) (citing Airway Cleaners, LLC, 41 NMB 262,
273–280 (2014), and Menzies Aviation, Inc., 42 NMB 1, 7–9 (2014)).
Here, the record does not include evidence similar to that on which
Member Geale relied in his dissents. Specifically, in both Airway
Cleaners and Menzies Aviation, the contractors serviced only one carri-
er, and Member Geale noted the extent of the carrier’s broad oversight
and continuous monitoring of the contractor’s operations. Member
Geale also noted the carrier’s role in hiring, disciplining, training, and
determining the working conditions of the contractor’s employees.
Here, as discussed above, the Respondent services multiple carriers,
none of them engages in any such oversight or monitoring of opera-
tions, and none of them exerts similar control over the Respondent’s
employees.
11 See fn. 4, above.
refusing to rehire employee Joanne Alexandre because
she engaged in union activity.
ORDER
The National Labor Relations Board orders that the
Respondent, American Sales and Management Organiza-
tion, LLC d/b/a Eulen America, Fort Lauderdale, Florida,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, refusing to rehire, or otherwise dis-
criminating against employees because they engage in
activities on behalf of Service Employees International
Union, Local 32BJ or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Joanne Alexandre full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Joanne Alexandre whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against her, in the manner set forth in the remedy
section of the judge’s decision.
(c) Compensate Joanne Alexandre for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 12,
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Joanne Alexandre, and within 3 days thereafter, notify
her in writing that this has been done and that the dis-
charge will not be used against her in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facilities in Fort Lauderdale, Florida, copies of the
attached notice marked “Appendix,” in English, Haitian
AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC D/B/A EULEN AMERICA 5
Creole, and Spanish.12 Copies of the notice, on forms
provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since April 28, 2016.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 12 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. December 4, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, concurring.
For the reasons explained in my dissenting opinion in
ABM Onsite Services-West, Inc., 367 NLRB No. 35, slip
op. at 3−5 (2018), I believe that the National Mediation
Board has not adequately explained its decision to return
to the six-factor jurisdictional test that my colleagues
apply here, having failed in particular to respond to the
arguments made by dissenting Member Puchala in favor
of adhering to the NMB’s approach giving greater weight
to carriers’ control over personnel decisions. Neverthe-

12 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
less, I join in my colleagues’ decision to assert jurisdic-
tion, as the evidence demonstrates that the Respondent is
not subject to carrier control under either NMB standard.
Dated, Washington, D.C. December 4, 2018
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge, refuse to rehire, or otherwise
discriminate against you because you have engaged in
activities in support of Service Employees International
Union, Local 32BJ or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Joanne Alexandre full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Joanne Alexandre whole for any loss
of earnings and other benefits resulting from her dis-
charge, less any interim earnings, plus interest, and WE
WILL also make her whole for reasonable search-for-
work and interim employment expenses, plus interest.
WE WILL compensate Joanne Alexandre for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 12, within 21 days of the date the
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Joanne Alexandre, and WE WILL, within
3 days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.
AMERICAN SALES & MANAGEMENT
ORGANIZATION, LLC D/B/A EULEN AMERICA
The Board’s decision can be found at
https://www.nlrb.gov/case/12-CA-163435 or by using
the QR code below. Alternatively, you can obtain a copy
of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.
Caroline Leonard, Esq., for the General Counsel.
Brian Koji, Esq. (Allen Norton & Blue) and Jason S. Miller,
Esq., for the Respondent.
Jessica Drangel Ochs, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This matter is be-
fore me on a consolidated complaint and notice of hearing (the
complaint) issued on August 31, 2017, arising from unfair labor
practice charges that Service Employees International Union,
Local 32BJ (the Union) filed against American Sales and Man-
agement Organization, LLC d/b/a Eulen America (the Re-
spondent or Eulen). The allegations all relate to the Respond-
ent’s operations at Fort Lauderdale-Hollywood International
Airport (FLL or the airport),1 where the Respondent performs a
variety of services for a number of airline carriers.
Pursuant to notice, I conducted a trial in Miami, Florida, on
November 13–16, 2017, at which I afforded the parties a full
opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence.

1 At trial, counsel for the General Counsel (the General Counsel)
orally withdrew the allegations in the complaint pertaining to the Re-
spondent’s operations at Miami International Airport.
Issues
(1) Does the National Labor Relations Board (the Board) have
jurisdiction over Eulen or, as the Respondent contends, is the
nature of the airline carriers’ control over Eulen such that it
comes under the jurisdiction of the Railway Labor Act
(RLA)?
(2) Did the Respondent violate Section 8(a)(3) and (1) by dis-
charging Joanne Alexandre on April 28, 2016,2 and then re-
fusing to rehire her, because she engaged in union activity; or
were its actions justified because she failed to timely renew
her airport-required security badge prior to its April 20 expira-
tion?
For reasons to be stated, I conclude that the Board has jurisdic-
tion and that the Respondent’s discharge of Alexandre and its
refusal to rehire her violated the Act.
Wtnesses and Credibility
Witnesses testifying on the jurisdiction issue were:
For the General Counsel: Gayle Defrancesco, general
manager for American Airlines (AA) at FLL; and William
Rose, ramp and operations manager for Spirit Airlines
(Spirit) at FLL.
For the Respondent: Yasmin Kendrick, Eulen’s Re-
gional Director at FLL; and John Foster, Eulen’s national
director of corporate safety and compliance.
Witnesses testifying on Alexandre’s discharge were:
For the General Counsel: Alexandre; Harris Harrigan,
the lead organizer for the Union; and Kendrick as an ad-
verse witness under Section 611(c).
For the Union: Catherine Duarte, a research analyst
for the Union.
For the Respondent: Wilner Baptiste, Alexandre’s su-
pervisor; and Frank Capello, enterprise director of security
for Broward County Aviation Department (BCAD), which
operates FLL.
The Respondent did not call Jodi-Ann Pagon, who was
Kendrick’s administrative assistant and acted at Kendrick’s
direction; or operations managers and admitted supervisors
John Marrast and Aurea (Audie) Mendez, regarding Alexan-
dre’s badge renewal. Marrast voluntarily left Eulen’s employ-
ment, and Mendez also is no longer an employee. The record
does not disclose whether the Respondent still employs Pagon.
An administrative law judge normally has the discretion to
draw an adverse inference based on a party’s failure to call a
witness who may reasonably assumed to be favorably disposed
to the party and who could reasonably be expected to corrobo-
rate its version of events, particularly when the witness is the
party’s agent and thus within its authority or control. Roosevelt

2 All dates hereinafter occurred in 2016 unless otherwise indicated
expressly or by context.
AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC D/B/A EULEN AMERICA 7
Memorial Medical Center, 348 NLRB 1016, 1022 (2006); see
also Martin Luther King, Sr. Nursing Center, 231 NLRB 15, 15
fn. 1 (1977); Underwriters Laboratories Inc. v. NLRB, 147 F.3d
1048, 1054 (9th Cir. 1998). In that event, drawing an adverse
inference regarding any factual question on which the witness
is likely to have knowledge is appropriate. International Auto-
mated Machines, 285 NLRB 1122, 1123 (1987), enfd. mem.
861 F.2d 720 (6th Cir. 1988).
Here, the Respondent offered no explanation of why Pagon,
Marrast, or Mendez could not be available as witnesses or show
that it sought to secure their presence, by subpoena if neces-
sary. Accordingly, the Respondent’s failure to call them leads
to an adverse inference that their testimony would not have
been favorable to the Respondent, and I credit the unrebutted
accounts of witnesses who testified about incidents in which
those individuals participated.
Capello of BCAD, Defrancesco of AA, and Rose of Spirit, as
neutral third-party witnesses with no stakes in the proceeding,
had no reason to testify untruthfully. In this regard, all of them
answered questions without hesitation on both direct and cross-
examination, and none of them demonstrated any suggestion
that they were trying to skew their testimony either for or
against Eulen. I therefore credit their testimony.
With regard to the jurisdiction facet of the case, witnesses
agreed for the most part on underlying facts. Nor, with respect
to Alexandre’s discharge, was there much divergence in testi-
mony about BCAD’s badge renewal process.
Credibility resolution does come into play in terms of who
was responsible for Alexandre’s failure to timely renew her
badge and the Respondent’s motivation for refusing to allow
her to file a new application and then rehire her.
Particularly as to Kendrick, I note the well-established pre-
cept that a witness may be found partially credible; the mere
fact that the witness is discredited on one point does not auto-
matically mean that he or she must be discredited in all re-
spects. Golden Hours Convalescent Hospitals, 182 NLRB 796,
799 (1970). Rather, a witness’ testimony is appropriately
weighed with the evidence as a whole and evaluated for plausi-
bility. Id. at 798–799; see also MEMC Electronic Materials,
Inc., 342 NLRB 1172, 1183 fn. 13 (2004), quoting Americare
Pine Lodge Nursing, 325 NLRB 98, 98 fn. 1 (1997), enf. grant-
ed in part, denied in part 164 F.3d 867 (4th Cir. 1999); Excel
Container, 325 NLRB 17, 17 fn. 1 (1997). As Chief Judge
Learned Hand stated in NLRB v. Universal Camera Corp., 179
F.2d 749, 754 (2d Cir. 1950), regarding witness testimony,
“[N]othing is more common in all kinds of judicial decisions
than to believe some and not all.”
Kendrick’s testimony about Eulen’s relationship with its car-
rier customers presented an interesting dichotomy. On the one
hand, when Kendrick was asked questions on direct examina-
tion that called for conclusions, she gave what seemed to be
“canned” answers that did not deviate from the Company’s
claim that airlines control Eulen’s operations. On the other
hand, she generally answered specific questions in a straight-
forward manner that did not appear slanted in favor of the Re-
spondent’s position, and her answers were consistent with the
testimony of Defrancesco and Rose. For example, on direct
examination, when she was asked how often airlines contact
Eulen over Eulen employee issues, whether discipline, com-
plaints or performance, she replied, “seldom” and could recall
only one airline that had done so.3 And, on cross-examination
by the Union about airline staff contact with Eulen employees,
she volunteered that “our employees do not have communica-
tions with the clients; it’s understood.”4
Turning to Alexandre’s permanent discharge, I find that
Kendrick was not a believable witness as to the circumstances
surrounding why management did not notify Alexandre prior to
April 20 that Eulen had received her badge-renewal approval
from BCAD, or why Kendrick decided that Alexandre was
ineligible for rehire. I base this on (1) Alexandre’s credited
testimony concerning her efforts to get the approval notice from
Eulen, (2) Supervisor Baptiste’s unrebutted testimony about
his conversation with Manager Marrast on about April 27 and
what he told Alexandre that same day concerning the approval
notice, (3) Baptiste’s unrebutted testimony that if the Eulen
office cannot reach an employee to tell him or her that the ap-
proval paper is ready, they send him an email or tell him to find
and inform the employee, (4) the Respondent’s submission of
new applications for other employees whose BCAD badges
expired (required by BCAD if a badge is not timely renewed),
and (5) the ease with which the Respondent could have filed a
new application for Alexandre. I will further address these
points in the Facts and Analysis and Conclusions sections.
Facts
Based on the entire record, including testimony and my ob-
servations of witness demeanor, documents, written and oral
stipulations, and the thoughtful posttrial briefs that the General
Counsel, the Union, and the Respondent filed, I find the follow-
ing.
At all times material, the Respondent has been a Florida lim-
ited-liability company headquartered in Miami, Florida, en-
gaged in providing aviation support services for various air
carriers at airports, including FLL, in seven states. It is not
owned by any of its client carriers. The Respondent has admit-
ted the interstate commerce facts necessary to establish Board
jurisdiction assuming that it does not fall under RLA jurisdic-
tion, and I so find.
I. JURISDICTION
Eulen’s website advertises to the public that it “provides a
full-range of ground handling and passenger support services
for domestic and international carriers” throughout the United
States (see Jt. Exh. 20 at 1). Pursuant to various contracts with
client airline carriers (see Joint Exhibits 6–17, 25–27), Eulen
employees perform the following services at FLL:
(1) AA – checkpoint and janitorial on Terminal (T) 3.
(2) Bahamasair (Bahamas) – bag room, cabin services
(cleaning of planes), janitorial, and ramp, T3 at relevant
times.
(3) Delta Airlines (Delta) – cabin services, T2.
(4) Jet Blue Airlines (JetBLue) – checkpoint, T3.
(5) Spirit – cabin services, T4.

3 Tr. 522.
4 Tr. 577.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(6) WestJet Airlines (West Jet) – bag room, cabin services,
counter, janitorial, and ramp. T1.
Neither the General Counsel nor the Union dispute that all of
the above work has been traditionally performed by airline
carriers themselves.5 At the airport, Eulen employs 172 rank-
and-file employees and 19 supervisors (see Jt. Exh. 2, Para. 15
and 17, as amended by oral stipulation). Regional Director
Yasmin Kendrick, who came to FLL in February, is the high-
est-ranked Eulen official at the airport. She is assisted by an
administrative assistant. Below her in the organizational struc-
ture are operations managers and supervisors who are assigned
to specific airlines. The number of employees assigned to each
carrier is:
(1) AA – approximately 10 or 12.
(2) Bahamas – approximately 20.
(3) Delta – approximately 40.
(4) JetBlue – approximately 10 or 12.
(5) Spirit – between 50 and 60.
(6) WestJet – between 25 and 30.
Eulen’s administrative office is located on T2 in Delta’s cab-
in-cleaning section (the Delta office), in space that Delta pro-
vides. The Eulen office has its own separate entrance that Del-
ta’s employees do not use. WestJet also provides Eulen space
(the WestJet office). In addition, Eulen leases space on T4 (the
Spirit office). Each office has a time clock that employees use
to clock in and out.
The Role of Airlines in the Respondent’s Operations
Hiring and Supervision
The parties stipulated that the Respondent directly hires its
employees, including those at FLL; employees are paid and
otherwise compensated solely by the Eulen; airlines do not
review, consider or approve employees’ time off requests; and
Eulen’s supervisors generate their work schedules (see Jt. Exh.
2).
The Respondent provides new hires with a new hire packet
(Jt. Exh. 18 is an exemplar). It includes provisions stating that
employees are compensated by Eulen and paid through Eulen’s
contractor, ADP; airlines do not compensate them or provide
them any benefits; airlines have no role with regard to their
time off requests; and Eulen’s supervisors generate and publish
their work schedules.
The Respondent has its own employee handbook (Jt. Exhs.
3–5, covering different relevant time periods) that sets out
many terms and conditions of employment, including apprais-
als by supervisors, paid time off and other leave policies,
grooming and appearance standards, rules of conduct and disci-
pline, and attendance policy.
Contracts in the record from four of the six carriers contain
provisions explicitly stating in one way or another that Eulen is
solely responsible for the assignment, supervision and direction
of its employees and how they perform their work. See Jt. Exh.
6 at 19, (AA); Jt. Exh. 10 at 3, 4; Jt. Exh. 11 at 2 (Delta); Jt.
Exh. 13 at 12 (JetBlue); and Jt. Exh. 15 at 3, 5 (Spirit). The
Delta contract specifically states that Eulen is an independent

5 GC’s opening statement at Tr. 27; Union Br. at 21.
contractor and that Delta has no employer role over Eulen’s
employees. The WestJet contract and the standard ground han-
dling agreement that governs the services that Eulen provides to
Bahamas (Jt. Exh. 9) do not specifically address those matters.
Both Gayle Defrancesco of AA and William Rose of Spirit
testified unequivocally that their respective airlines do not dic-
tate staffing levels and that their supervisors have no superviso-
ry role over Eulen’s employees, including assignments, direc-
tion, authorization of overtime, or discipline. Neither has ever
requested that a Eulen employee be transferred from serving
their airline. Defrancesco did complain about janitorial em-
ployee Hermogenes Vasquez Ramos (Vasquez) but simply
asked Operations Manager Michael Oviedo to speak with him
(R. Exh. 2 at 2). At FLL, AA has never exercised its reserved
contractual right (Jt. Exh. 6 at 19) to interview and approve
Eulen’s station management and other employees. Rose com-
plained on one occasion about a Eulen dispatcher, whom
Kendrick transferred from Spirit, but he made no recommenda-
tion for discipline (see R. Exh. 3 at 2).
Kendrick’s testimony substantially comported with theirs.
Thus, Eulen’s policy is that its employees do not have commu-
nications directly with airlines’ personnel, and airlines seldom
contact her over Eulen employees.
On some occasions, an airline has complained about the per-
formance of a Eulen employee and/or requested that Eulen
remove a particular employee from servicing it as a customer.
In such cases, Kendrick has conducted her own investigation
before taking any action. She did not cite any instances when a
carrier has recommended any disciplinary action be taken
against an employee.
Respondent’s Exhibit 3 reflects a number of carrier com-
plaints. As a result, Kendrick terminated one employee for
tardiness, and two supervisors and an employee as a result of a
WestJet investigation that concluded they had been stealing;
offered to transfer two employees to jobs with other carriers
(both voluntarily resigned); and issued an oral warning to one
employee (there is no indication of whether he was transferred).
In at least two situations, Kendrick issued lesser discipline
following a carrier complaint, and the employee was transferred
to work for another airline. In the first, Bahamas complained
about the rude behavior of counter agent Vasquez (mentioned
above), as a result of which Oviedo issued him a written warn-
ing, and he was transferred to AA (GC Exh. 8). Oviedo, wrote
in the discipline that although the offense was grounds for ter-
mination, “[W]e believe on[sic] giving our employees a second
opportunity,” and Kendrick testified that this sentiment was
communicated to Vasquez in the meeting that she and Oviedo
conducted with him. The following month, AA complained
about Vasquez’ inappropriate behavior as a janitor, resulting in
Kendrick suspending him until further investigation (R. Exh.
2). Ultimately, he was not terminated. In the second (see R.
Exh. 11), Bahamas complained about the conduct of a bag
room employee, who received a written warning and was trans-
ferred to WestJet cabin cleaning.
Kendrick could recall only one instance when a carrier has
made a recommendation for a promotion; when an assistant
manager at Bahamas recommended that ramp lead Brian Bolt
be promoted to a supervisor when the position opened up at
AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC D/B/A EULEN AMERICA 9
Bahamas (see R. Exh. 8). As to hiring, Kendrick could recall
only one time that a carrier has recommended that Eulen hire
someone; when Ginella Alvarez of Delta management recom-
mended the hiring of John Vixamar, a Delta employee.
Kendrick made the decision to accept both recommendations.
As far as regular audits of Eulen’s employees performing
cabin cleaning, Spirit tries to have supervisors audit turnaround
flights (turns) weekly and overnight aircrafts (“remain over
nights” or RONs) once or twice a week, using set check-list
criteria established by Spirit’s cabin-cleaning department.6
Individual employees are not evaluated, and Rose was unaware
if such audits have any impact on Spirit’s payment to Eulen.
Delta performs audits on cabin cleaning on RONs at least three
times a week and submits copies of the audit reports to
Kendrick, who calls a meeting of her supervisors if she sees
any area that needs to be discussed. AA does not conduct regu-
lar audits or evaluations of Eulen’s work as it has the right to do
under their contract. WestJet has a traveling auditing team that
has not yet come to FLL.
On a more informal basis, Kendrick receives about one call a
month in which an airline supervisor discusses his or her obser-
vations of Eulen employees’ performance.
Training
The contracts that Eulen has with carriers provide that Eulen
is responsible for ensuring that its employees receive proper
training as required by the particular carrier. See Jt. Exh. 6 at
19, Jt. Exh. 7 at 4 (AA); Jt. Exh. 10 at 3, Jt. Exh. 11 at 2, 4
(Delta); Jt. Exh. 13 at 12 (JetBlue); Jt. Exh. 15 at 6 (Spirit); and
Jt. Exh. 17 at 14 (WestJet).
Eulen has its own safety and training manual of over 900
pages that covers training not mandated by its carrier-clients
(Jt. Exh. 28 is the table of contents and chapter 1). Safety mat-
ters are handled solely by Eulen and not the carriers (ibid at 34,
35). When Eulen’s safety and training manual provided more
stringent standards for ramp agents than Delta’s training re-
quired, Eulen requested and received from Delta permission to
impose them.
Delta establishes the training path for cabin cleaning and re-
quires Eulen to have a Delta-trained and qualified trainer to
conduct some of the training (see R. Exh. 5). Both John Foster,
Eulen’s national director of corporate safety and compliance,
and Kendrick have attended such trainer training (see R. Exh.
6). Some Delta training is computer-based (CBT), using Del-
ta’s computers in Delta’s space at FLL. Other carriers also
require Eulen representatives to undergo carrier training to
qualify them as trainers of other Eulen employees.
Of the training that Delta requires, including annual qualifi-
cation training, probably 60 percent is mandated by various
Federal agencies, as opposed to the Delta’s own requirements.7
The agencies include the Environmental Protection Agency,
Federal Aviation Authority, Occupational Safety and Health
Agency, Transportation Safety Agency (TSA), and U.S. Cus-

6 For turnaround flights, the average time on board spent cleaning is
5 minutes; for RONs, the cleaning is more in-depth, averaging between
50 and 60 minutes.
7 Foster at Tr. 422.
toms and Border Protection.
AA does not require any training for the jobs that Eulen em-
ployees perform. Spirit provides a module for Eulen for a CBT
program that Eulen has a trainer schedule and conduct yearly in
its own location using Spirit computers. The training sets out
Spirit’s cabin-cleaning specifications for turns and RONs.
Bahamas did not have a ramp training program when Eulen
got the contract to perform that work. Foster jointly put togeth-
er such with a representative of Bahamas, using the Eulen
ramp-training program as a basis. This is the practice when a
client does not have its own established training.
Other Factors
All Eulen employees at FLL wear Eulen uniforms and name
tags (see GC Exh. 16), with the exception of WestJet passenger
services or counter agents (14, including 2 leads), who wear
WestJet uniforms and name tags (see R. Exh. 7). WestJet has
no other counter agents.
The only airline at FLL that provides equipment to Eulen is
Delta. This includes a lavatory truck, a garbage truck, and a tug
to which the garbage truck can be hooked. All of the airlines
for which Eulen does cabin cleaning furnish the cleaning im-
plements such as brushes. Some also provide the cleaning solu-
tions; for others, the responsibility is Eulen’s.
Several of the contracts, AA (Jt. Exh. 7 at 4), Delta (Jt. Exh.
10 at 10), JetBlue (Jt. Exh. 13 at 5), and Spirit (Jt. Exh. 15 at 7)
expressly state, with some variations in wording, that the carrier
has the right to audit Eulen’s books and records pertaining to
the services that Eulen provides to them. The Delta contract
(ibid) also includes records relating to Eulen’s provision of
services to other air carriers at the applicable airports. None of
these contractual provisions make an exception for personnel or
employment matters.
II. ALEXANDRE’S PERMANENT DISCHARGE
BCAD-issued Badges
All Eulen employees are required to have BCAD-issued
identification badges needed to “swipe” in for access to secured
areas of FLL (security identification display areas or SIDAs).
Each of the over 1,000 companies doing business at FLL has a
designated point of contact or signatory with BCAD, which
maintains an office in the security department at the airport.
The procedure for any company employee to receive an ini-
tial badge is as follows. The employer fills out and approves an
application, which the employee takes to the BCAD office,
where he or she is fingerprinted for purposes of a background
investigation. Such investigation takes from under 3 to over 5
days, depending on the applicant’s place of birth and any crim-
inal record. Once BCAD receives notification that the employ-
ee has passed the background investigation, BCAD sends an
approval notice (media application approval notice) to the em-
ployer’s signatory that the applicant is cleared and can come
back to BCAD to take sensitive security training, including
proper use of the badge. After the employee passes the train-
ing, BCAD photographs the employees and issues the badge.
The initial badge is good for 6 months, expiring at midnight
on the day of expiration; the first renewal is good for 1 year;
and renewal periods thereafter are 2 years following expiration
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on the employee’s birthday. The processing time for a renewal
is virtually the same as for the initial badge. If a badge expires,
it is deactivated, and the employee loses access to SIDAs and
normally must reapply as a new applicant. There is no differ-
ence in processing time between a new application and a post-
expiration application.
Alexandre’s Employment
Joanne Alexandre worked for Eulen at FLL from October
2014 until her termination on April 20. At all times, she was a
cabin service agent for Spirit RONs on the 10:30 p.m. to 6:30
a.m. shift, supervised by Jean Baptiste. The sole reason that the
Respondent has advanced for discharging Alexandre is her
failure to timely renew her badge.
General Counsel’s Exhibit 15 is Alexandre’s initial badge
application, which she and Eulen Signatory Jorge Santana
signed on October 1, 2014, and she took to the BCAD office
that day. Operations Manager Aurea (Audie) Mendez later
called her on her personal cell phone and let her know that the
approval paper was ready. They met in the lobby, where Men-
dez gave it to her. Alexandre went to the badge office, took
and passed the security training, and received her badge, all on
the same day.
The badge was valid until April 20, 2015. In 2015, Alexan-
dre followed the same procedure in renewing her badge, which
was good until April 20.
On April 5, Alexandre went to the Delta office, where she
and Administrative Assistant Jodi-Ann Pagon signed Alexan-
dre’s application for a second renewal (Jt. Exh. 22). Alexandre
took it to the BCAD badge office that day, where she was fin-
gerprinted. She testified that BCAD told her they would send
the approval notice to Eulen, either in a week or two (Tr. 169)
or 8 days (Tr. 175); thereafter, she could come back for the
security training test and get her badge.8 On April 11, BCAD
emailed Alexandre’s approval notice to Eulen (Jt. Exh. 23).
After April 5, Alexandre continued to go to work. For the
following reasons, I credit Alexandre’s account of her conver-
sations with Baptiste on the subject of the renewal over his.
Firstly, Alexandre’s testimony was more plausible. Second-
ly, Baptiste’s testimony was that he put the onus on Alexandre
by repeatedly telling her to call the office and find out if it was
ready. This is contradicted by his testimony that the normal
practice is that Eulen notifies the employee of the approval, as
well as his testimony that when management cannot reach em-
ployees to tell them that their approval papers are ready, they
email or tell him orally to find the employees and so inform
them (Kendrick testified similarly). Finally, Alexandre’s testi-
mony on direct and cross-examination was consistent.

8 The difference in time frame that Alexandre gave is immaterial.
The Respondent’s counsel objected that this was hearsay. However, as
I stated at trial, the Board does not invoke a technical rule of exclusion
but admits hearsay evidence and gives it ‘‘such weight as its inherent
quality justifies.’’ Midland Hilton & Towers, 324 NLRB 1141, 1141 fn.
1 (1997), enf. denied on other grounds, 598 F.2d 1267 (2d Cir. 1979),
citing Alvin J. Bart & Co., 236 NLRB 242, 242 (1978). Here, this
testimony was credible and substantially consistent with other record
evidence, including the testimony of Kendrick and Frank Capello,
BCAD’s enterprise director of security.
I am cognizant of the fact that Alexandre did not mention
those conversations in her affidavit (R. Exh. 4). However, the
affidavit is silent on whether or not any such conversations
occurred, and Baptiste also testified that they had conversations
on the subject. Accordingly, I decline to find that such omis-
sion in her affidavit bears negatively on her credibility.
Accordingly, I find the following. Alexandre asked Baptiste
at work a number of times starting on about April 15 whether
her paperwork was ready at the Eulen office, to which he re-
plied that they had not heard anything. She received no phone
calls on her cell phone (her only personal phone) or emails
from Eulen about the approval. On April 19, when Alexandre
called, Baptiste told her not to report to work that evening be-
cause her badge expired at midnight.
Kendrick testified that the normal procedure is that when the
BCAD sends Eulen the media application approval notice for
an employee’s badge, the administrative assistant attempts to
reach the employee by phone and also puts in a clipboard post-
ed by the time clock used by the employee. However, she con-
ceded that she had no personal knowledge that this practice was
followed with respect to Alexandre’s renewal.
In this regard, although Kendrick testified that Pagon at-
tempted to reach Alexandre by telephone, Pagon was not called
to testify, and she did not keep a log or other record of any such
calls. Kendrick further testified that the normal procedure
would have been for Pagon to tell Baptiste that Alexandre’s
approval notification was put in the clipboard posted by the
time clock in the Spirit office. However, Baptiste testified
about no such conversations with Pagon and that he first
learned about the approval from Operations Manager John
Marrast on April 27. As noted above, Baptiste further testified
that when management cannot reach employees to tell them
that their approval papers are ready, they ask him to find the
employees and so inform them. In this case, he received no
such communication.
I credit Alexandre’s unrebutted testimony that after April 19,
she continually called Baptiste and asked if the approval paper
had arrived. On the evening of April 27, Marrast told Baptiste
to inform Alexandre that the approval paper was ready for her
to renew her badge. Baptiste almost immediately afterward
called Alexandre and told her.
On the morning of April 28, Alexandre went to FLL and
called the Delta office from the lobby. Mendez brought her the
paper but said nothing. Alexandre took the badge to the BCAD
office, where she was told that he could not take the test with
that document because her prior badge had already expired, and
that she would have to get a new application from the Eulen
office. Her badge was confiscated. Alexandre returned to the
lobby and called Mendez. After about 2-1/2 hours, Mendez
arrived and told Alexandre that she could not do anything for
her because the badge had expired and Alexandre was therefore
no longer employed. Alexandre asked if she could be rehired if
she filled out a new employment application. Mendez replied
no, because there was no vacancy. Mendez asked if Alexandre
had changed her phone number because they had called her
many times, and she never returned the calls. Alexandre re-
sponded that she had never before missed their calls.
Alexandre’s termination notice (Jt. Exh. 21) was dated April
AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC D/B/A EULEN AMERICA 11
29 and signed by Kendrick and Pagon. It stated: “Ms. Joanne
Alexandre[sic] badge was confiscated by BCAD as it was ex-
pired for 8 days already although we made all possible attempts
to communicate to Ms. Alexandre to come in to take the class
prior to the expiration of the ID.” It also checked off that she
was not eligible for rehire.
Kendrick testimony as to the exact reason Alexandre was
permanently discharged was markedly equivocal and convolut-
ed.9 She testified that after receiving notice that BCAD confis-
cated Alexandre’s badge, she had to terminate Alexandre be-
cause Alexandre could not continue to work. At another point,
she explained that Alexandre went to BCAD after the badge
expired and they confiscated it, instead of her having reached
out to Eulen to help her after she missed the deadline, thereby
suggesting that constituted misconduct on Alexandre’s part.
However, Kendrick also testified that it is “no problem for us to
try to help somebody” who has missed the deadline.10 Fur-
thermore, when Kendrick was asked if employees are eligible
to be rehired if their badge expires and they therefore have to
be terminated, she answered yes but then gave an ambiguous
explanation. In sum, she did not offer a cogent rationale for
why she deemed Alexandre ineligible for reemployment. I will
later address the treatment of other employees whose badges
expired.
Alexandre’s Union Activity
For several years, the Union has engaged in organizing ef-
forts aimed at Eulen and a couple of other contractors at FLL.
In November 2015 and March, the Union engaged in an “esca-
lation” of those efforts by publicizing its presence and calling a
1-day strike. During these escalations, Harris Harrigan and
other organizers, who sometimes wore purple and yellow shirts
with the union logo (GC Exh. 17), spent most of each day on
the ground arrivals level of all four terminals and conversed
with employees who were swiping their badges for entry to
SIDAs.
On November 18, 2015, the Union sent to Eulen’s Chief Ex-
ecutive Officer Llavero Hervas and Chief Operations Officer
Livan Acosta notice of a 1-day strike at FLL, to begin that af-
ternoon, to protest the Company’s prohibitively expensive
health plan and lack of respect for employees’ organizing rights
(GC Exh. 10). The following day, the Union sent them an un-
conditional offer to return to work on behalf of all striking Eu-
len employees who had gone on strike (GC Exh. 11).
On March 30, The Union sent a similar strike notice to
Hervas and Acosta, stating that a 1-day strike would start at 5
p.m. that day, to protest several cited working conditions (GC
Exh. 12). A similar unconditional offer to return to work was
sent to them the following day (GC Exh. 13).11
In 2015, approximately 34 or 35 Eulen employees participat-
ed in the strike out of approximately 100 who were scheduled;

9 See Tr. 47–48.
10 Tr. 47.
11 The Union faxed and emailed GC Exhs. 10–13. The Respondent
questioned whether Hervas and Acosta received the faxes but stipulated
that the Respondent did receive the emails. Accordingly, the receipt of
all four documents is admitted regardless of whether or not the Re-
spondent’s officials also received them by fax.
in 2016, about 70 out of the same scheduled number did so.
Alexandre participated in both strikes. She appears in three
photographs taken at the 2015 strike that were uploaded on the
Union’s website in March (CP Exhs. 4–7). In two of them, she
is clearly visible wearing a shirt with union insignia.
In the 2016 strike, she wore either a Eulen or a union shirt
(GC Exh. 17) and was in a group of Eulen employees who car-
ried signs and went back and forth between T1 and T2. Every-
one in her crew participated in the strike. She observed that
Eulen supervisors saw them as the supervisors went to their
cars after their shifts concluded.
When Alexandre returned to work after the 2016 strike, Bap-
tiste spoke to her and others in her crew. He said that he was
angry about having had to work alone to clean all the planes.
In her testimony, Alexandre candidly added that he was not
angry at them for their participation in the strike. Harrigan
testified that Baptiste made very similar comments to him on
the T4 arrivals level late in the evening of March 30, stating to
the effect that it was an impressive strike and that he was going
to have to work all night by himself, and that “it sucks.”12
Baptiste was not asked if he said the above to Alexandre and
her coworkers or to Harrigan. When a witness was not ques-
tioned about potentially damaging statements attributed to him
or her by an opposing witness, it is appropriate to draw an ad-
verse inference and find that the witness would not have dis-
puted such testimony. See LSF Transportation, Inc., 330
NLRB 1054, 1063 fn. 11 (2000); Asarco, Inc., 316 NLRB 636,
640 fn. 15 (1995), modified on other grounds 86 F.3d 1401 (5th
Cir. 1996). I therefore credit Alexandre’s and Harrigan’s un-
controverted testimony.
Treatment of Other Employees
The General Counsel offered a series of documents (GC
Exhs. 2–7) concerning employees whose termination forms
referenced the badge requirement:13 By order of exhibit num-
ber they are:
(1) Fordline Jean Baptiste, March 2, 2017 – voluntarily ter-
minated; voluntarily did not renew her badge. Kendrick
testified that Baptiste was not renewing her badge be-
cause she was thinking of relocating out of the area. The
form marked her eligible for rehire.
(2) Charilus Nodieu, October 20 – involuntarily terminated;
took the SIDA class three times and did not pass.
Kendrick testified that he would have had to go through
the whole process of getting a new badge. Eligible for
rehire.
(3) Wheeler Deland, June 7 – involuntarily terminated be-
cause TSA did not approve his application for a renewal
badge. Ineligible for rehire.
(4) Tevin Charles, February 28, 2017 – voluntarily termi-
nated; did not renew his badge. This followed a meet-
ing that Kendrick and Marrast held with him on Febru-
ary 27, at which Charles was presented with a discipli-
nary action form terminating him for “unsatisfactory

12 Tr. 148.
13 Some of these documents are duplicated in R. Exh. 1.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
performance.” Marrast wrote thereon, “Mr. Charles left
his ID after this warning” which was to expire on March
1, and Kendrick testified that when Charles left his
badge, he stated that he was not coming back. On about
February 27, Charles had also received a final written
warning for absenteeism/ tardiness. Eligible for rehire.
(5) Jean Villain, February 28, 2017 – voluntarily separated;
did not renew his badge. On March 8, Administrative
Assistant Edith Carbonara (who had replaced Mendez in
that position) approved a new badge application for him
to take to BCAD, which approved his application, and
he filled out a new hire payroll sheet on March 27. Eli-
gible for rehire.
In addition, the Respondent submitted documents (R. Exh. 1)
showing the following:
(1) Sylvania Jeanty – voluntary terminated on October 1,
2015, for allowing her badge to expire and never return-
ing to work. Ineligible for rehire.
(2) Pichardo Natalia – involuntarily terminated on March 1,
2015, for refusing to meet with Broward County regard-
ing her missing/found badge by a BCAD employee. In-
eligible for rehire.
(3) Leonard Cadet – involuntarily terminated on July 6,
2017, because his badge expired and he could not renew
his badge because he lost his document. Ineligible for
rehire.
(4) Marie Carol Jean Paul – voluntarily terminated on July
6, 2017 because she lost her work permit and was unable
to renew her badge before it expired. Eligible for rehire.
Analysis and Conclusions
I. JURISDICTION
Section 2(2) of the Act defines “employer” to exclude any
person subject to the Railway Labor Act (RLA). The RLA, as
amended, applies to rail carriers, common air carriers, and “any
company which is directly or indirectly owned or controlled by
or under common control with any carrier.” 45 U.S.C. § 151
First, 181. Carriers hold no ownership interest in the Respond-
ent, which contends that carrier control brings it under the ju-
risdiction of the RLA. The Respondent bears the burden of
proof of showing that it is exempt from the Act and that its
employees do not enjoy the Act’s protections. See NLRB v.
Kentucky River Community Care, Inc., 532 U.S. 706 722
(2001); see also Holly Farms Corp. v. NLRB, 517 NLRB 392,
399 (1996).
The National Mediation Board (NMB) administers the RLA,
and the Board generally refers a claim of RLA jurisdiction to
the NMB for an advisory opinion; however, there is no statuto-
ry requirement that it do so before determining whether to as-
sert jurisdiction. Spartan Aviation Industries, Inc., 337 NLRB
708, 708 (2002), citing System One Corp., 322 NLRB 732, 732
(1996); see also Allied Aviation Service Co. of New Jersey v.
NLRB, 854 F.3d 55, 62 (D.C. Cir. 2017). When the Board de-
clines to refer an RLA jurisdictional issue to the NMB, it fol-
lows NMB precedent in deciding the matter. United Parcel
Service, Inc., 318 NLRB 778, 781 (1995), enfd. 92 F.3d 1221,
1221–1226 (D.C. Cir. 1996).
The NMB employs a two-part “function and control” test to
determine whether an employer that is not itself a carrier is
sufficiently controlled by a carrier to be subject to RLA juris-
diction. See Signature Flight Support of Nevada, 30 NMB 392,
399 (2003). The conjunctive test asks: (1) “whether the nature
of the work is that traditionally performed by employees of rail
or air carriers,” and (2) “whether the employer is directly or
indirectly controlled by, or under common control with a carri-
er or carriers.” Ibid. The Board utilizes this same standard.
See Spartan Aviation, above at 708, citing System One, above
at 732.
To determine whether an employer is under the control of a
carrier, the NMB traditionally considers six factors:
(1) The extent of the carrier’s control over the manner in
which the company conducts its business.
(2) Access to the company’s operations and records.
(3) The carrier’s role in personnel decisions.
(4) The degree of supervision exercised by the carrier.
(5) The carrier’s control over training.
(6) Whether the employees in question are held out to the
public as carrier employees.
Bags, Inc., 40 NMB 165, 169 (2013), citing, inter alia, Bradley
Pacific Aviation, Inc., 34 NMB 119 (2007), and Dobbs Interna-
tional Services, 34 NMB 97 (2007).
As earlier noted, neither the General Counsel nor the Union
dispute that the Respondent meets the first qualification; rather,
they argue that the Respondent does not also satisfy the carrier-
control test necessary for RLA jurisdiction. I now turn to a
consideration of the six factors.
Carrier Control Over Eulen and its Employees at FLL
Concerning control over the manner in which Eulen con-
ducts business at FLL, the primary role of the carriers is notify-
ing Eulen of flight schedules to ensure that Eulen provides
sufficient staffing to perform the services for which it has con-
tracted. The airlines play no part in specifying individual em-
ployees or when they will work. The Respondent’s contracts
with carriers and the carriers’ daily schedules dictate how Eulen
determines staffing levels and shift assignments. This does not
in and of itself establish carrier control over labor relations or
how Eulen carries out its contractual services. As the NMB
held in Bags, above at 169, “Bags has a contractual relationship
with [named carriers] to provide services, therefore, it is ex-
pected that Carriers will outline what services are necessary
. . . .” See also Aero Port Services, Inc., 40 NMB 139, 142
(2013).
Recent NMB decisions not finding RLA jurisdiction have
“emphasized in particular the absence of [carrier] control over
hiring, firing, and/or discipline.” Allied Aviation Service Co. of
New Jersey, 362 NLRB 1392, 1392 (2015), petition for review
denied 854 F.2d 55 (D.C. Cir. 2017), petition for certiorari
denied, --S.Ct.--, 2017 WL 4224908 (mem.) (November 13,
2017), citing Airway Cleaners, LLC, 41 NMB 262, 268 (2014),
AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC D/B/A EULEN AMERICA 13
and Menzies Aviation, Inc., 42 NMB 1, 7 (2014).14 The control
over personnel decisions must be “meaningful” and “not just
the type of control found in any contract for services” to estab-
lish RLA jurisdiction. Airway Cleaners at 268, citing Bags,
above at 170.
The Respondent directly hires its FLL employees, who are
paid and otherwise compensated solely by the Eulen. Eulen
alone approves employees’ overtime hours and time off re-
quests, and Eulen’s supervisors generate their work schedules.
No airline supervisors or employees have supervisory authority
over Eulen’s employees or can direct their work. Rather, carri-
ers must address any issues with Eulen employees with Eulen
management, Kendrick in particular.
Carriers have asked that certain Eulen employees be re-
moved from their operations, but there is no evidence that they
have ever recommended any of them be disciplined or fired.
When carriers complain about Eulen employees, Kendrick
conducts her own investigations before taking any actions, a
factor militating against finding carrier control in personnel
decisions (see Aero Port Services, above at 143). Significantly,
when Bahamas complained about counter agent Vazquez, he
received a written warning and was transferred to AA in janito-
rial service. AA also complained about him, as a result of
which he was suspended but ultimately not discharged. In an-
other case, a bag room employee who was the subject of a
complaint by Bahamas, received a written warning and was
transferred to WestJet cabin cleaning but not discharged. Two
other employees who were the subjects of carrier complaints
were offered the opportunity to transfer to work for other carri-
ers. Carrier ability to request removal of an employee is not
tantamount to control over discipline within the meaning of the
RLA, and an employer’s retention and exercise of the option to
utilize a removed employee elsewhere militates against finding
such control. See Menzies Aviation, above at 5.
At most, during Kendrick’s tenure as station manager since
February, there was one occasion when a carrier recommended
someone be hired and one occasion when a carrier recommend-
ed an employee be promoted to a supervisor position. This
hardly amounts to meaningful carrier input on hiring or promo-
tion. See Airway Cleaners, above at 268–269, citing Air Serv
Corp., 39 NMB 450, 457 (2012) (a carrier’s recommendation
for hiring does not establish requisite control when the carrier
has no involvement in the actual hiring process).
The Respondent (Br. 130) cites two NMB decisions, Com-
mand Security Corp., 27 NMB 581 (2000), and ServiceMaster
Aviation Services, 24 NMB 328 (1997), for the proposition that
the carrier’s right under contract to exercise indicia of control is
what is critical, not whether the carrier has exercised the right
only occasionally or not at all. However, those cases are dis-
tinguishable on their facts. In the first, the NMB concluded that

14 In affirming the Board’s assertion of jurisdiction, the court distin-
guished its decision denying enforcement in ABM Onsite Services-
West,Inc. v. NLRB, 849 F.3d 1137 (DC 2017), cited by the Respondent
(Br. at 143). Thus, in ABM the Board had departed from past practice
by effectively treating control over personnel decisions as ‘necessary’
rather than considering all of the traditional six factors, whereas the
Board in Allied had not relied ‘on only a single factor’ but had consid-
ered them all (854 F.3d at 63–64).
the contracts in question gave the carriers “substantial control
over the conduct and performance” of the contractor’s employ-
ees. In the second, the contract required, inter alia, that the
carrier approve all overtime in advance; that the contractor’s
supervisors be certified by the carrier; and that the contractor
immediately remove any employee whom the airline deemed
unqualified, create and submit its staffing plans to the carrier,
and create a career enhancement program acceptable to the
carrier.
In sum, the carriers here play no significant role in any per-
sonnel decisions or the supervision of Eulen’s employees,
which authority is vested exclusively in Eulen management and
supervisors. As the NMB has held, elements of control that are
“no greater than that found in a typical subcontractor relation-
ship” are insufficient to establish RLA jurisdiction. Allied Avi-
ation Co., above at slip op. 2, citing Menzies Aviation, above at
7; see also Bags, above at 169 ([T]he type of control exercised
by the Carriers over Bags is found in almost any contract be-
tween a service provider and a customer.”).
In terms of training, the contracts provide that Eulen is re-
sponsible for ensuring that its employees receive proper train-
ing as required by the carrier. At least some of the client air-
lines train Eulen employees to be trainers for other Eulen em-
ployees; airline personnel do not conduct the training. This
does not establish carrier control within the meaning of the
RLA. See Airway Cleaners, above at 268; Bags, ibid. For
CBT, the carrier may provide the training module and comput-
ers. However, most of the training that the carriers require is
mandated by various Federal agencies and that training is there-
fore not imposed as a matter of discretion by the airlines. Such
training does not constitute carrier control within the meaning
of the RLA. Aero Port Services, above at 143.
Delta and WestJet provide Eulen office space, Delta provides
a break room for Eulen’s employees, and Delta provides a few
pieces of equipment for Eulen employees’ use. Standing alone,
these factors are insufficient to establish material control by a
carrier. See Bags, ibid.
Other Factors
The carriers do have access to audit Eulen’s operations and
records. On the other hand, Eulen holds itself out to the public
as an employer that provides highly-qualified employees to
carriers, and over 90 percent of its employees at FLL wear
Eulen uniforms and badges with Eulen identification.
Conclusion
Considering all of the above factors, I conclude that the Re-
spondent has not met its burden of showing that the carriers
exercise the degree of control over the Respondent at FLL that
would remove the Respondent from Board jurisdiction under
Section 2(2) of the Act. I note in particular the essentially non-
existent role that the airlines play in Eulen’s hiring, disciplin-
ing, firing, directing, or supervising its employees.
II. ALEXANDRE’S DISCHARGE AND THE REFUSAL TO REHIRE HER
The framework for analyzing alleged violations of Section
8(a)(3) turning on employer motivation is Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). General Motors Corp., 347
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB No. 67 fn. 3 (2006) (not reported in Board volumes).
Under Wright Line, the General Counsel must make a prima
facie showing sufficient to support an inference that the em-
ployee’s protected conduct motivated an employer’s adverse
action. The General Counsel must show, either by direct or
circumstantial evidence, that the employee engaged in protect-
ed conduct, the employer knew or suspected the employee en-
gaged in such conduct, the employer harbored animus (which
may be inferred from all of the circumstances), and the em-
ployer took action because of this animus.
Under Wright Line, if the General Counsel establishes a pri-
ma facie case of discriminatory conduct, it meets its initial bur-
den to persuade, by a preponderance of the evidence, that pro-
tected activity was a motivating factor in the employer’s action.
The burden of persuasion then shifts to the employer to show
that it would have taken the same adverse action even in ab-
sence of such activity. NLRB v. Transportation Corp., 462
U.S. 393, 399−403 (1983); Kamtech, Inc. v. NLRB, 314 F.3d
800, 811 (6th Cir. 2002); Manno Electric, Inc., 321 NLRB 278,
280 fn. 12 (1996), enfd. 127 F.3d 34 (5th Cir. 1997) (per curi-
am). To meet this burden, “[A]n employer cannot simply pre-
sent a legitimate reason for its action but must persuade by a
preponderance of the evidence that the same action would have
taken place even in the absence of the protected conduct.”
Serrano Painting, 332 NLRB 1363, 1366 (2000), citing Roure
Bertrand Dupont, Inc., 271 NLRB 443 (1984).
If the employer’s proffered defenses are found to be a pre-
text, i.e., the reasons given for the employer’s actions are either
false or not, in fact, relied on, the employer fails by definition
to show that it would have taken the same action for those rea-
sons, and there is no need to perform the second part of the
Wright Line analysis. On the other hand, further analysis is
required if the defense is one of “dual motivation,” that is, the
employer defends that, even if an invalid reason might have
played some part in the employer’s motivation, the employer
would have taken the same action against the employee for
permissible reasons. Palace Sports & Entertainment, Inc. v.
NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
The General Counsel’s prima facie case:
Activity – Alexandre’s openly participated in the Union’s
November 2015 and March “escalations” at FLL, at which the
Union publicly solicited employee support and which culminat-
ed in two 1-day strikes.
Knowledge – Baptiste, Alexandre’s supervisor, had actual
knowledge that she engaged in the 2016 strike. It is well-
established that a supervisor’s knowledge of union activities is
imputed to the employer absent a credible denial of such
knowledge by management. State Plaza, Inc., 347 NLRB 755,
756–757 (2006); Dobbs International Services, Inc., 335 NLRB
972, 973 (2001); see also Clark & Wilkins Industries, Inc., 290
NLRB 106, 106 (1988), enfd. 887 F.2d 308 (D.C. Cir. 1989),
cert. denied 495 U.S. 934 (1990). In this regard, the Respond-
ent “could easily have produced its managers to testify” that
Baptiste did not communicate his knowledge to them.” See
State Plaza at 756, citing Dr. Phillip Megdal, D.D.S., Inc., 267
NLRB 82, 82 (1983). In light of this, I need not address the
Union’s assertions (Br. 35–36) that the Respondent’s
knowledge of Alexandre’s union activities should be inferred
from her photographs posted on the Union’s website, or other-
wise determine whether knowledge should also be inferred
from other circumstances.
Employer Action – The Respondent discharged Alexandre
on April 28 and thereafter refused to re-hire her.
Animus – There is no direct evidence of union animus.
However, a discriminatory motive may be inferred from cir-
cumstantial evidence and the record as whole. Grant Prideco,
L.P., 337 NLRB 99, 99 (2001), citing, inter alia, Fluor Daniel,
Inc., 304 NLRB 970, 970 (1991) and Davis Supermarkets, Inc.,
v. NLRB, 2 F.3d 1162, 1168 (D.C. Cir. 1993), cert. denied 511
U.S. 1003 (1994); see also In re Overnite Transp. Co., 335
NLRB 372, 375 (2001). Inferred animus can be based on such
factors as (1) timing and disparate treatment. Camaco Lorain
Mfg. Plant, 356 NLRB 1182, 1185 (2011), citing Grant
Prideco, ibid; Guardian Automotive, 340 NLRB 475, 475 fn. 1
(2003); (2) the employer’s failure to follow its normal practices
or procedures. Grand Central Partnership, 327 NLRB 966,
975 (1999); Woodlands Health Center, 325 NLRB 351, 362
(1998); and (3) the employer’s advancement of a reason that is
contrived or implausible. Montgomery Ward & Co., 316
NLRB 1248, 1253 (1995); Keller Mfg. Co., 237 NLRB 712,
717 (1978), enfd. in part, enf. den. in part without opinion 622
F.2d 592 (7th Cir. 1980).
Based on the following circumstantial evidence, I conclude
that the element of animus has been satisfied:15
(1) In terms of timing, Alexandre participated in the strike
on March 30. She went to the Eulen office on April 5 and got
her badge renewal application, which she took to the BCAD
office that same day. Eulen received the approved application
back from BCAD on April 11, yet not until April 27 (a week
after the badge expired) did Manager Marrast tell Supervisor
Baptiste to inform Alexandre that the application had been
approved. Taking April 11 as the operative date for timing, this
was less than 2 weeks after Alexandre engaged in union activi-
ty.
(2) The Respondent has treated differently other employees
whose badges have lapsed, in terms of being willing to submit
new badge applications on their behalves to BCAD and then
rehiring them. The Respondent argues (Br. at 123–124 fn. 15)
that comparing the treatment of other employees is of limited
probative value because all of the surrounding circumstances
are unknown. Nonetheless, the following clearly establishes
that the Respondent has no set policy of barring employees
whose badges have lapsed from being reemployed.
Thus, of nine other employees whose badges lapsed, five
were deemed eligible for rehire, four were not. Of the ones
marked ineligible for rehire, it appears that Jeanty stopped com-
ing to work, Deland failed the background investigation, Nata-
lia refused to meet with BCAD regarding her missing/found
badge, and Cadet could not renew his badge because he lost an
unspecified document. These five marked eligible for rehire

15 I find it unnecessary to consider whether Pagon’s statement to Al-
exandre on April 28 that she could not apply for rehire because the
Respondent had no vacancy amounted to a shifting defense that would
also give rise to an inference of unlawful motive.
AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC D/B/A EULEN AMERICA 15
included Baptiste, who did not renew her badge because she
was thinking of relocating; Nodieu, who failed the SIDA class
three times and would have to go through the whole process of
getting a new badge; Villain, who voluntarily separated and
was later rehired after Eulen submitted a new badge application
on his behalf, which BCAD approved; Paul, who lost her work
permit and was unable to renew it before her badge expired;
and Tevin Charles.
The Respondent’s refusal to reemploy Alexandre was partic-
ularly suspect in light of the Respondent’s willingness to rehire
Charles despite the following circumstances. On February 27,
after Kendrick and Marrast presented him with a termination
paper for unsatisfactory performance, he left his unexpired
badge and stated that he was not coming back—essentially
walking out on them. Furthermore, on about the same date, he
also received a final written warning for absenteeism/tardiness.
Thus, despite serious issues with his performance and his vol-
untarily surrendering his badge, the Respondent still considered
him eligible for rehire.
(3) The Respondent failed to follow its normal procedures in
notifying Alexandre that the approval notice had come back
from BCAD. It is undisputed that the administrative assistant
lets an employee know by telephone when Eulen has received
the document. Although Eulen received the approval notice on
April 11, Baptiste did not notify Alexandre of such until April
27. That Baptiste had no trouble reaching Alexandre on her
cell phone on the evening of April 27 raises doubts as to the
validity of the Respondent’s claim that Pagon could not reach
her in that manner. Kendrick further testified that the normal
procedure would have been for Pagon to tell Baptiste that Al-
exandre’s approval notification was put in the clipboard posted
by the time clock in the Spirit office. However, Baptiste testi-
fied about no such conversations with Pagon and that he first
learned about the approval from Marrast on about April 27.
Moreover, Baptiste further testified that when management
cannot reach employees to tell them that their approval papers
are ready, they ask him to find the employees and so inform
them, but he received no such communication in Alexandre’s
case prior to April 27.
(4) The Respondent offered no credible justification for it
unwillingness to rehire Alexandre by submitting a new BCAD
badge application on her behalf. As noted above, the Respond-
ent was willing to do this for other employees whose badges
expired, and in fact did so in Villain’s case.
Significantly, Kendrick testified that the Respondent has no
problem helping employees who have missed the deadline for
badge renewal and that they are eligible to be rehired. I further
note that Supervisor Oviedo wrote in a discipline that Eulen
believed in giving employees “a second opportunity,” which
sentiment Kendrick testified was conveyed to the employee in
question. Finally, it is significant that on April 27, a week after
Alexandre’s badge had expired, Marrast directed Baptiste to
call Alexandre and tell her that Eulen had her BCAP badge
approval notice. The only logical conclusion is that he assumed
she could be reinstated as a Eulen employee; otherwise, he
would have been engaging in an exercise in utter futility.
Accordingly, I conclude that the General Counsel has estab-
lished a prima facie case that Alexandre’s discharge on April
28, and the Respondent’s refusal to rehire her, were unlawful.
The Respondent’s defense relates to the BCAD requirement
that all Eulen employees have current ID badges to access se-
cured areas and the Respondent need to have all of its employ-
ees to have such access. Accordingly, I will treat this as a “dual
motivation” case.
I conclude that the Respondent has failed to meet is burden
of persuasion that it would have discharged Alexandre on April
28 and refused to rehire her even in the absence of her union
activity. I leave aside the issue of whether the operative date of
the Respondent’s conduct should be considered April 11, be-
cause starting that day it failed to notify Alexandre of her
BCAD badge approval in conformity with its normal practices
regarding notification to employees.
It is undisputed that Eulen employees need valid BCAD
badges to enter secure areas and perform their jobs. The fun-
damental question is whether Alexandre’s failure to renew her
badge before its expiration was due to malfeasance on her part
or to management’s conduct. As discussed above, the Re-
spondent failed to follow its normal procedures by not taking
steps to notify Alexandre in a timely fashion that her badge
approval notice had been received and that she could go to
BCAD to get it renewed. In this regard, the Respondent failed
to offer a satisfactory explanation for why, even though the
approval notice was received on April 11, management waited
until April 27 (a week after the badge expired) to tell her.
Thus, the Respondent bore the responsibility for causing Alex-
andre to lose her badge and the concomitant ability to perform
her duties and has not demonstrated a valid reason for such
conduct.
I now turn to the Respondent’s refusal to submit a new badge
application on Alexandre’s behalf. The Respondent’s designa-
tion of Alexandre as ineligible for rehire and its refusal to sub-
mit a new application on her behalf were at odds with the way a
number of other employees with lapsed badges have been treat-
ed. Nor has the Respondent shown that submitting a new ap-
plication for Alexandre would have been in any way onerous,
financially or otherwise. In any event, the Respondent was
responsible in the first place for Alexandre’s inability to timely
renew the badge and cannot turn around and rely on its own
improper actions to justify its subsequent refusal to rehire her.
So, rewarding the Respondent for its misconduct would be
untenable.
The Respondent’s defense (Br. 153) that it had knowledge of
other employees who went on strike and yet took no action
against them is unavailing. The fact that an employer does not
discharge all known union supporters is not a valid defense
because the discharge of even one employee may have, and
may have been intended to have, a chilling effect on other em-
ployees’ protected activity. Handicabs, Inc., 318 NLRB 890,
897–898 (1995), enfd. 95 F.3d 681 (8th Cir. 1996); see also
Rust Engineering Co. v. NLRB, 445 F.2d 172, 174 (6th Cir.
1971); NLRB v. Shedd-Brown Mfg. Co., 213 F.2d 163, 175 (7th
Cir. 1954) (discouragement of protected activities may be ef-
fected by making some employees “an example.”).
Because the Respondent has failed to rebut the General
Counsel’s prima facie case, I conclude that it violated Section
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(a)(3) and (1) by discharging Alexandre on April 28, and then
refusing to rehire her.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act and violated Section 8(a)(3)
and (1) of the Act: discharged and refused to rehire Joanne
Alexandre because she engaged in conduct on behalf of the
Union.
REMEDY
Because I have found that the Respondent has engaged in
certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act. The Respondent having
discriminatorily discharged Joanne Alexandre must make her
whole for any losses of earnings and other benefits suffered as a
result of her discharge and its failure to rehire her.
Specifically, the Respondent shall make Joanne Alexandre
whole for any losses, earnings, and other benefits that she suf-
fered as a result of her unlawful discharge. The make-whole
remedy 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 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). In accordance with King Soopers, Inc., 364 NLRB No.
93 (2016), the Respondent shall compensate Joanne Alexandre
for search-for-work and interim employment expenses regard-
less of whether those expenses exceed her interim earnings.
Search-for-work and interim employment expenses shall be
calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra., compounded daily
as prescribed in Kentucky River Medical Center, supra. In
accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas,
361 NLRB 101 (2014), the Respondent shall compensate Jo-
anne Alexandre for the adverse tax consequences, if any, of
receiving a lump sum backpay award, and, in accordance with
AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the
Respondent shall, within 21 days of the date the amount of
backpay is fixed either by agreement or Board order, file with
the Regional Director for Region 12 a report allocating backpay
to the appropriate calendar year for each employee. The Re-
gional Director will then assume responsibility for transmission
of the report to the Social Security Administration at the appro-
priate time and in the appropriate manner.
The Respondent also having discriminatorily failed and re-
fused to reemploy Joanne Alexandre must offer her full rein-
statement to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her sen-
iority or other rights or privileges previously enjoyed.
The Respondent shall expunge from its records any and all
references to the discharge of Joanne Alexandre.
The General Counsel (Br. at 56) seeks a posting of a notice
at all of the Respondent’s “active job sites.” However, inas-
much as the unfair labor practice was confined to only one of
the Respondent’s multiple locations nationwide, I find that a
posting is appropriately limited to that sole location. The Gen-
eral Counsel also requests (ibid) that the notice be posted in
Haitian Creole and Spanish. For the reasons she states, I will
so order, noting that Alexandre’s native language is Haitian
Creole and that she required an interpreter.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The Respondent, American Sales and Management Organi-
zation, LLC d/b/a Eulen America, Fort Lauderdale, Florida, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging, refusing to rehire, or otherwise discriminat-
ing against employees because they engage in activities on
behalf of Service Employees International Union, Local 32BJ
or any other labor organization.
(b) 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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Joann Alexandre full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Joann Alexandre whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful discharge of
Joann Alexandre, and within 3 days thereafter notify her in
writing that this has been done and that the discharge will not
be used against her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Fort Lauderdale, Florida, copies of the attached notice
marked “Appendix,” in English, Haitian Creole, and Spanish.17

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
17 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading ‘Posted by Order of the Na-
tional Labor Relations Board’ shall read ‘Posted Pursuant to a Judg-
AMERICAN SALES AND MANAGEMENT ORGANIZATION, LLC D/B/A EULEN AMERICA 17
Copies of the notice, on forms provided by the Regional Direc-
tor for Region 12, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places in-
cluding 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 set, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since April 28,
2016.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. January 30, 2018
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.’
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge, refuse to rehire, or otherwise dis-
criminate against you because you have engaged in activities in
support of Service Employees International Union, Local 32BJ
or any other labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Sec-
tion 7 of the Act, as set forth at the top of this notice.
WE WILL within 14 days from the date of the Board’s Order,
offer Joann Alexandre full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make Joann Alexandre whole for any loss of earn-
ings and other benefits she suffered as a result of our discrimi-
nation, with interest.
WE WILL remove from our files any references to the Joann
Alexandre’s discharge, and we will, within 3 days thereafter
notify her in writing that this has been done and that the dis-
charge will not be used against her in any way.
AMERICAN SALES AND MANAGEMENT
ORGANIZATION, LLC D/B/A EULEN AMERICA
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/12-CA-163435 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.