United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2002 Decided January 14, 2003

No. 01-1403

Waterbury Hotel Management, LLC and
Waterbury Hotel Equity, LLC,
Petitioners

v.

National Labor Relations Board,
Respondent

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

Scott V. Kamins argued the cause for petitioner. With him
on the briefs were Jay P. Krupin and D. Jay Sumner.
Alison N. Davis entered an appearance.

David A. Fleischer, Senior Attorney, National Labor Rela-
tions Board, argued the cause for respondent. With him on
the brief were Arthur F. Rosenfeld, General Counsel, John


H. Ferguson, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, and Fred L. Corn-
nell Jr., Supervisory Attorney.

Before: Sentelle, Henderson and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: The purchaser of a unionized hotel
petitions for review of the National Labor Relations Board's
finding that it committed unfair labor practices in an effort to
prevent further union activity at the hotel. Finding the
Board's determinations consistent with the National Labor
Relations Act and supported by substantial evidence, we deny
the petition for review and grant the Board's cross-application
for enforcement.

I.

The Waterbury Sheraton Hotel was first opened in the
mid-1980s by owners Joseph and Loretta Calabrese. The
Calabreses also owned a hotel management company, JLM,
Inc., which ran the hotel under a lease with the Calabreses.
In 1995, Local 217, Hotel and Restaurant Employees and
Bartenders Union, AFL-CIO, was certified as the bargaining
representative of the hotel's service, front desk, restaurant,
and maintenance employees.

When the Calabreses declared personal bankruptcy in
1994, Prudential Insurance Company, which held a mortgage
on the hotel property, began foreclosure proceedings. JLM
continued to operate the hotel for a short period, but it too
filed for bankruptcy, and the bankruptcy court appointed a
trustee who took over day-to-day operations of the hotel. In
the meantime, Prudential solicited and ultimately secured a
purchase offer from New Castle, LLC, a company that owns,
operates, and develops hotels and resorts throughout the
United States and Canada. New Castle acquired the facility,
then operating as a mid-market Sheraton Four Points hotel,
with the intention of converting it to a more upscale, four-star
operation. To run the hotel, New Castle set up two subsid-
iaries, Respondents Waterbury Hotel Equity and Waterbury


Hotel Management, to which we shall refer as "Waterbury."

Although the purchase and sale agreement, signed in No-
vember 1996, provided that Waterbury would "have no obli-
gation to hire any of the employees currently employed at the
Hotel property," New Castle President David Buffam and
other company representatives repeatedly assured the trust-
ee that Waterbury would interview current hotel employees.
When the trustee organized an on-site job fair at which
potential employers could interview the hotel's employees,
however, Waterbury refused to participate.

As it turned out, Waterbury had plans for its own job fair,
which it conducted over three days in late January. At the
fair, applicants were first interviewed by "screeners," who
would either reject them or pass them on for first, and
perhaps second, substantive interviews. In the end, Water-
bury hired 65 employees for positions within the bargaining
unit, 20 of whom had worked for the old hotel. The company
interviewed and rejected 62 other incumbent employees, in-
cluding all members of the Union's negotiating committee.
Among those hired were three Yale undergraduates and one
recent graduate whom, unbeknownst to Waterbury, the Un-
ion had asked to apply for jobs. Waterbury later fired two of
the undergraduates for wearing union buttons in violation of
the hotel's dress code. One week later, it fired the recent
graduate for job abandonment.

The Union filed unfair labor practice charges, alleging that
Waterbury violated sections 8(a)(1), (a)(3), and (a)(5) of the
National Labor Relations Act by discriminatorily refusing to
hire incumbent hotel employees, unilaterally setting initial
terms and conditions of employment without bargaining with
the Union, and discharging the three Yale students because
they supported the Union. See 29 U.S.C. s 158(a)(1), (a)(3),
(a)(5). After a hearing, the Administrative Law Judge found
in favor of the Union. The Board adopted the ALJ's findings
and conclusions, as well as his recommended order. Water-
bury Hotel Mgmt. LLC, 333 N.L.R.B. No. 60, 2001 NLRB


LEXIS 136 (Mar. 9, 2001). Waterbury petitions for review,
and the Board cross-applies for enforcement.

II.

As we often observe, our role in reviewing decisions of the
National Labor Relations Board is limited. We will set aside
the Board's decision only if the Board "acted arbitrarily or
otherwise erred in applying established law to the facts at
issue, or if its findings are not supported by substantial
evidence." Plumbers & Pipe Fitters Local Union No. 32 v.
NLRB, 50 F.3d 29, 32 (D.C. Cir. 1995) (internal quotation
marks and citations omitted). With this highly deferential
standard of review in mind, we consider each of Waterbury's
challenges to the Board's decision.

ALJ Bias

We begin with the company's claim that the ALJ deprived
it of a fair hearing. According to Waterbury, the ALJ, who
had presided over a previous hearing concerning the hotel, at
which he found that the Calabreses' management company
had committed unfair labor practices, J.L.M., Inc., 312
N.L.R.B. 304 (1993), enforced in part, 31 F.3d 79 (2d Cir.
1994), erred by not disclosing this source of potential bias.
But if, as the Supreme Court has held, an ALJ is not
disqualified from presiding over the remand of a case in
which he previously ruled against the same employer, NLRB
v. Donnelly Garment Co., 330 U.S. 219, 236-37 (1947), then
New Castle could not have obtained the ALJ's disqualification
simply because he had ruled against a different employer,
Waterbury's predecessor, in an unrelated case.

Waterbury next claims that the ALJ's bias is evident in his
decision to adopt the Board's post-hearing brief more or less
verbatim. Although we have held that wholesale cutting and
pasting from proposed findings and conclusions warrants
particularly close scrutiny, Berger v. Iron Workers Reinforced
Rodmen Local 201, 843 F.2d 1395, 1407-08 & n.3 (D.C. Cir.
1998) (per curiam), we have never held, as Waterbury insists,
that this practice alone demonstrates impermissible bias, id.;


see also Anderson v. Bessemer City, 470 U.S. 564, 572 (1985)
("[E]ven when the trial judge adopts proposed findings verba-
tim, the findings are those of the court and may be reversed
only if clearly erroneous."). In this case, we are satisfied that
the Board, recognizing that the ALJ had made extensive use
of the General Counsel's brief, gave the ALJ's findings the
appropriate scrutiny: It "independently reviewed the entire
record, including the judge's decision, in consideration of the
exceptions and briefs." Waterbury Hotel Mgmt., 333
N.L.R.B. No. 60, 2001 NLRB LEXIS 136, at *6.

Finally, Waterbury detects bias in the ALJ's decisions to
disallow or ignore evidence tending to rebut the Board's case.
In each instance Waterbury cites, however, the ALJ actually
admitted the evidence, but determined--reasonably, we be-
lieve--either to discredit the evidence or that it was entitled
to little weight. Such adverse rulings alone hardly demon-
strate "that the ALJ had a fixed opinion--a closed mind on
the merits of the case." Pharaon v. Bd. of Governors of the
Fed. Reserve Sys., 135 F.3d 148, 155 (D.C. Cir. 1998) (internal
quotation marks and citations omitted).

Unlawful Hiring Practices

NLRA section 8(a)(3) makes it an unfair labor practice for
an employer to discriminate in hiring or in other employment
decisions in order to encourage or discourage membership in
a labor union. 29 U.S.C. s 158(a)(3). This prohibition of
discriminatory hiring extends to employers that take over
another business. Although under no obligation to hire pre-
decessor employees, such employers may not lawfully refuse
to hire them because of their union affiliation. Howard
Johnson Co. v. Detroit Local Joint Executive Bd., Hotel &
Restaurant Employees, 417 U.S. 249, 261 & n.8 (1974); ac-
cord Capital Cleaning Contractors, Inc. v. NLRB, 147 F.3d
999, 1005 (D.C. Cir. 1998).

To establish a section 8(a)(3) violation, the Board must first
determine "whether the employer's actions are motivated by
anti-union considerations." Teamsters Local Union No. 171
v. NLRB, 863 F.2d 946, 955 (D.C. Cir. 1988) (internal quota-


tion marks and citation omitted). The Board may rely on
both direct and circumstantial evidence in resolving this
question of fact. Id.; Elastic Stop Nut Div. of Harvard
Indus. v. NLRB, 921 F.2d 1275, 1280 (D.C. Cir. 1990). Once
the General Counsel has established that the employer was in
fact motivated by anti-union animus, the Board must find a
violation of the Act unless the employer can show that "it
would have taken the [same] action regardless of the exis-
tence of such animus." Elastic Stop Nut, 921 F.2d at 1280;
see also NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 403-04
(1983), aff'g NLRB v. Wright Line, 251 N.L.R.B. 1083 (1980),
enforced, 662 F.2d 899 (1st Cir. 1981).

The record in this case contains substantial, unrebutted
evidence that Waterbury's hiring decisions were motivated by
anti-union animus. The trustee, whom the ALJ credited,
testified that New Castle President David Buffam, explaining
why the company refused to participate in the trustee's job
fair, said that "he had received advice of counsel and ...
needed to be concerned about who he hired and how he
hired"; that "there were certain hiring parameters that he
couldn't exceed"; and that "they could have labor issues down
the road." Waterbury Hotel Mgmt., 333 N.L.R.B. No. 60,
2001 NLRB LEXIS 136, at *53-*54. When a former employ-
ee was brought on as a temporary worker because of the
hotel's pressing need for banquet employees, but then denied
permanent employment, the acting banquet manager ex-
plained, "I'm sorry, but we were told not to hire any of the
old people back." Id. at *182. And when asked by one of the
Yale students if there was a union at the hotel, the accounting
director responded, "No, there is no union here, the word
'union' has been wiped clear of this place." Id. at *276.
From these and similar statements in the record, the ALJ
could have properly inferred that the company's hiring deci-
sions were motivated by anti-union animus. See, e.g., Capital
Cleaning Contractors, 147 F.3d at 1005 (upholding finding of
anti-union animus based on company vice-president's state-
ments that he did not want to hire union members); Elastic
Stop Nut, 921 F.2d at 1281 (statements that employer would
hire no more than 25 percent of predecessor's work force).


Substantial evidence also supports the Board's conclusion
that Waterbury was determined not to hire enough incum-
bent employees to trigger a bargaining obligation. To begin
with, record evidence indicates that Waterbury's hiring proce-
dures departed from its usual practice. Normally when New
Castle purchased a hotel, it interviewed the existing work-
force while the hotel was still operating. In this case, the
company refused to participate in the trustee's job fair for
former employees, instead conducting its own fair after the
predecessor hotel had closed. Cf. Southwire Co. v. NLRB,
820 F.2d 453, 460, 463 (D.C. Cir. 1987) (departing from usual
practice can be evidence of anti-union motive). Record evi-
dence also indicates that Waterbury conducted the job fair in
a manner that put incumbent employees at a disadvantage.
The ALJ found that the human resources director, in prepa-
ration for the job fair, winnowed Waterbury's list of post-
screening interview questions down to a few highly general,
abstract questions, excluding all inquiries relating to inter-
viewees' experience. As the ALJ saw it, this refusal to credit
job experience reflected a desire to avoid hiring incumbent,
union employees. We think this sufficient to establish a
prima facie case that Waterbury's hiring decisions were moti-
vated by anti-union considerations.

Waterbury argues that even if it did act with anti-union
animus, such animus was not a but-for cause of its hiring
decisions. According to Waterbury, it had legitimate reasons
for not considering incumbent employees' job experience,
given that they gained that experience while working for an
operation that ultimately fell into bankruptcy. But Water-
bury points to no evidence showing that any incumbent
employees were in any way responsible for the decline and
fall of the Calabreses' hotel. Quite to the contrary, in a
proposal seeking financing for its new hotel, the company
attributed the predecessor hotel's failure not to the employ-
ees, but to the "regional and national recession" and to the
"lack of experienced and efficient management." Cf. Capital
Cleaning Contractors, 147 F.3d at 1007 (rejecting an affirma-
tive defense based on clients' dissatisfaction with employees'


performance where there was no evidence that the client had
singled out any individual employees).

Waterbury contends that it would have refused to hire
incumbent employees no matter their union affiliation because
they failed to satisfy the neutral hiring criteria used at the
job fair. Record evidence shows, however, that the company
applied its neutral criteria inconsistently. For example, Wa-
terbury rejected incumbent employees on the basis of "incom-
patible hours" because they were in school, yet hired the two
Yale students, as well as other newcomers also attending
school. Waterbury also rejected incumbent employees on the
basis of "pay not acceptable" because they said they expected
$6.25 or $6.50 per hour for what was, unbeknownst to them, a
$6.00 per hour housekeeping job, yet hired nonincumbents
who asked for $7.00 per hour. The record is full of similar
inconsistencies. Substantial evidence thus supports the
Board's conclusion that the hiring criteria served as little
more than pretext for weeding out incumbent, union employ-
ees. See United Food & Commercial Workers Int'l Union v.
NLRB, 768 F.2d 1463, 1475 (D.C. Cir. 1985) (discrediting
employer's argument that neutral hiring criteria were imple-
mented for legitimate business purposes where they were
disproportionately applied against union employees).

Successorship

Waterbury next contends that it did not violate the NLRA
by unilaterally setting initial employment conditions for its
employees without first bargaining with the Union. Although
NLRA section 8(a)(5) makes it an unfair labor practice for an
employer "to refuse to bargain collectively with the represen-
tatives of [its] employees," 29 U.S.C. s 158(a)(5), a new
employer generally assumes an obligation to bargain with the
representative of its predecessor's employees only if the new
employer is considered a "successor" to the old--that is, if it
(1) conducts essentially the same business as its predecessor,
and (2) hires a "substantial and representative complement"
of the predecessor's work force, and a majority of the new
work force had been employees of the predecessor. Capital


Cleaning Contractors, 147 F.3d at 1005, 1007; see also Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 41
(1987). Waterbury contends that it fits neither of these two
criteria.

Whether a new employer is a successor to the old is a fact-
intensive inquiry requiring consideration of whether, in view
of "the totality of the circumstances," there is "substantial
continuity" between the new and predecessor employers.
Harter Tomato Prods. Co. v. NLRB, 133 F.3d 934, 937 (D.C.
Cir. 1998). Factors affecting the determination of whether
such continuity exists include "whether the business of both
employers is essentially the same; whether the employees of
the new company are doing the same jobs in the same
working conditions under the same supervisors; and whether
the new entity has the same production process, produces the
same products, and basically has the same body of custom-
ers." Fall River, 482 U.S. at 43. Because the NLRA's
purpose is to "further industrial peace," including avoiding
the labor unrest that might result if employees' "legitimate
expectations in continued representation by their union are
thwarted," the central question the Board must consider is
"whether those employees who have been retained will under-
standably view their job situations as essentially unaltered."
Id. at 39, 43 (internal quotation marks and citation omitted).

Pointing out that the Supreme Court has also said that the
substantial continuity test directs the Board to focus on
"whether the new company has 'acquired substantial assets of
its predecessor,' " id. (quoting Golden State Bottling Co. v.
NLRB, 414 U.S. 168, 184 (1973)), Waterbury argues that it
cannot be a successor because, although it acquired the
Calabreses' hotel from Prudential, it did not acquire the
substantial assets of JLM, the Calabreses' hotel management
company which employed the hotel's management team and
employees. We disagree. While the Supreme Court has
certainly said that acquisition of the predecessor's assets may
be evidence of substantial continuity in business operations,
as in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184
(1973), it has never held that transfer of assets is either a
necessary or a sufficient condition for that finding. The core


inquiry in the successorship analysis, after all, is not whether
assets have been transferred, but whether employees may
legitimately expect the change in control to affect their
continued union representation. We thus hold, as have all of
our sister circuits to have squarely considered the issue, that
the acquisition of substantial assets is not a prerequisite for
successorship. See Saks & Co. v. NLRB, 634 F.2d 681, 687
(2d Cir. 1980) ("[W]hile a transfer of assets may be evidence
of the requisite continuity of business operations, it has not
been thought to be a necessary condition...."); see also
NLRB v. Houston Bldg. Serv., Inc., 936 F.2d 178, 180-81 &
n.2 (5th Cir. 1991) ("Transfer of ownership of assets ... is
only one factor we consider."); Tom-a-Hawk Transit, Inc. v.
NLRB, 419 F.2d 1025, 1027-28 (7th Cir. 1969) ("The duty of
an employer who has taken over an 'employing industry' to
honor the employees' choice of bargaining agent is not one
that ... necessarily turns upon the acquisition of assets.")
(quoting Maintenance, Inc., 148 N.L.R.B. 1299, 1301 (1964)).

Considering the "totality of the circumstances," moreover,
we find in the record sufficient evidence of continuity of
business operations to support the Board's successorship
determination. Although it never acquired the assets of
JLM, the legal entity that ran the hotel, Waterbury did
acquire the assets--the hotel property, fixtures, and equip-
ment--of JLM's sole owners. Waterbury provides the same
type of service as its predecessor, and it does not dispute that
employees at the new hotel continue performing largely the
same set of jobs that they had performed before Waterbury
came on the scene.

Further objecting to the Board's successorship finding,
Waterbury points to extensive renovations and policy changes
it made in an effort to transform the facility into a more
upscale hotel targeted at "higher-caliber" customers. Peti-
tioners' Br. at 24. According to Waterbury, this attempt to
upgrade the quality of service marks a fundamental break
from the prior business. Record evidence, however, reveals
that for at least two years, Waterbury continued operating
the hotel as a mid-market Four Points hotel, rather than an


upscale Sheraton. And even though in its effort to enhance
the quality of hotel service, Waterbury changed a substantial
complement of the hotel managers, corporate policies, and
sales and service contracts, we believe the Board reasonably
determined that these changes were not "essential changes"
likely to affect employee attitudes about union representation.
See Clarion Hotel-Marin, 279 N.L.R.B. 481 (1986) (finding
that a hotel's conversion from a Holiday Inn to a Clarion
Hotel, with attendant changes to conform with Clarion stan-
dards, was not an "essential change" that would affect em-
ployee attitudes about representation); cf. Harter, 133 F.3d
at 938 ("We ask not whether [the employer's] view of the
facts supports its version of what happened, but rather
whether the Board's interpretation of the facts is reasonably
defensible.") (internal quotation marks and citation omitted).

Next, Waterbury argues that even if the record contains
substantial evidence of continuity of business operations, it
remained free to set initial terms and conditions of employ-
ment because a majority of its employees never worked for
its predecessor. See NLRB v. Burns Int'l Sec. Servs., Inc.,
406 U.S. 272, 281-82 (1972) (successors are generally free to
set initial terms and conditions of employment). But where,
as here, a successor refuses to hire predecessor employees
because of anti-union animus, the Board presumes that but
for such discrimination, the successor would have hired a
majority of incumbent employees. Capital Cleaning Contrac-
tors, 147 F.3d at 1008. In other words, "when a successor
refuses to hire its predecessor's employees based upon anti-
union animus, the successor loses the right unilaterally to set
the initial terms and conditions of employment." Id. Al-
though Waterbury thinks this rule is "unreasonable and
arbitrary," Petitioners' Br. at 42, both this and every other
circuit to have considered the issue have approved it. See
Capital Cleaning Contractors, 147 F.3d at 1008.

Employee Discharges

Finally, Waterbury challenges the Board's finding that it
violated NLRA section 8(a)(3), which makes it an unfair labor


practice for an employer to dismiss employees for engaging in
protected union activities, 29 U.S.C. s 158(a)(3), when it
dismissed the three Yale students--Joann Lo, Francis En-
gler, and Jonathan Zerolnick.

Waterbury fired Lo and Engler for wearing union buttons
in violation of the hotel's general prohibition against wearing
unauthorized pins and badges. Although the NLRA general-
ly protects employees' right to wear union buttons or other
insignia, Republic Aviation Corp. v. NLRB, 324 U.S. 793,
801-03 & n.7 (1945); accord Pioneer Hotel, Inc. v. NLRB, 182
F.3d 939, 946 (D.C. Cir. 1999), employers may enforce rules
that have the effect of interfering with such protected activi-
ties under "special circumstances." Pioneer Hotel, 182 F.3d
at 946. Citing Burger King Corp. v. NLRB, 725 F.2d 1053,
1054-55 (6th Cir. 1984), in which the Sixth Circuit held that
"where an employer enforces a policy that its employees may
only wear authorized uniforms in a consistent and nondiscrim-
inatory fashion and where those employees have contact with
the public, a 'special circumstance' exists as a matter of law
which justifies the banning of union buttons," Waterbury
argues that similar circumstances justified its dress code
because its employees deal with the public. Petitioners' Br.
at 42-43.

We need not consider the validity of Waterbury's across-
the-board no-buttons policy, however, for the record contains
substantial evidence that the company did not apply the
policy across the board. Both Lo and Engler testified that
they had worn unauthorized shamrock buttons in plain view
of hotel managers, and that the managers, perhaps swept up
in the St. Patrick's Day spirit, said not a word to them. In
contrast, when the two appeared at work wearing unautho-
rized union buttons, both were promptly reprimanded and
dismissed. Even if, as some courts have held, dress codes
such as Waterbury's might be valid, selective enforcement to
banish only pro-union buttons and insignia from the work-
place is certainly not. See Burger King, 725 F.2d at 1054-55
(6th Cir. 1994) (an employer may enforce a no-buttons policy
for employees who have contact with the public if it does so
"in a consistent and nondiscriminatory fashion").


One week after dismissing Lo and Engler, Waterbury also
fired their roommate, Jonathan Zerolnick, the recent Yale
graduate. Whether Waterbury fired Zerolnick for abandon-
ing his job, as the company claims, or for associating with
union supporters, as the Board found, is a close call. The
record certainly contains some evidence to support Water-
bury's claim that it fired Zerolnick for job abandonment.
After being told that he could take a temporary leave of
absence and that he should contact his supervisor when ready
to return, he made no contact with anyone at the hotel for
several weeks. Our job, however, is to determine whether
the Board's view of the facts, not the employer's, is supported
by substantial evidence. See Harter, 133 F.3d at 938. In
light of record evidence indicating that Waterbury granted
Zerolnick the leave of absence without setting firm dates for
his return to work or for contacting the hotel, that no one
from Waterbury contacted him before sending the termi-
nation letter, and that Waterbury sent the letter just one
week after discovering his roommates' union affiliation, we
think the Board had a sufficient basis for concluding that
Waterbury fired Zerolnick because of his association with
union supporters.

III.

Having considered Waterbury's remaining arguments and
found them to be without merit, we deny the petition for
review and grant the Board's cross-application for enforce-
ment.

So ordered.