U.S. Court of Appeals Finds That a Private Fund Manager and One of its Portfolio Companies May Constitute a Single Employer with Regard to Liability for Unfair Labor Practices

During the relevant period, investment manager Oaktree Capital Management, L.P. (Oaktree) indirectly owned TBR Property, L.L.C. (TBR), which operates the Hawaiian resort property known as the Turtle Bay Resort (Resort).  The collective bargaining agreement covering certain of the Resort’s employees expired in November 2003.  While a new contract was being negotiated, TBR and its third party resort manager barred certain union representatives from the Resort and refused to collect union dues from the employees.  As a result, the National Labor Relations Board (NLRB) brought unfair labor practice charges against Oaktree, TBR and the manager.  An administrative law judge found all three defendants liable, holding that Oaktree and TBR constituted a “single employer” and that, as a result, Oaktree was jointly and severally liable for the violations.  A panel of the NLRB upheld the administrative law judge’s decision.  An appeal was taken to the U.S. Court of Appeals for the Fifth Circuit.  We summarize the Court’s decision and reasoning, and highlight the criteria the NLRB used in making its determination.  The decision is relevant to hedge fund managers following control-oriented, private equity style strategies.

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