ADT, LLC v. Nat'l Labor Relations Bd.
| Decision Date | 02 December 2022 |
| Docket Number | 22-1629,22-1483 |
| Parties | ADT, LLC, Petitioner/Cross-Respondent, v. National Labor Relations Board, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
ARGUED OCTOBER 24, 2022
Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Nos 18-CA-264654, 18-CA-266951, 18-CA-270402.
Before HAMILTON, ST. EVE, and KIRSCH, Circuit Judges.
This case presents a disappointing and transparent attempt by an employer to avoid its obligations under the National Labor Relations Act, 29 U.S.C. § 151 et seq. Petitioner ADT combined a unionized office with a non-union office and tried unilaterally to withdraw recognition of the union based on a supposed decertification petition not signed by a single member of the bargaining unit. It's tempting to call the attempt unprecedented, but it is not. ADT tried a nearly identical maneuver in 2008 in Kalamazoo Michigan. The National Labor Relations Board found unfair labor practices then, and the Sixth Circuit enforced the Board's order. NLRB v. ADT Security Servs., Inc., 689 F.3d 628 (6th Cir. 2012). We agree with their reasoning in that case, and the findings and decision of the Board in this case are supported by substantial evidence. We deny ADT's petition for review and enforce the Board's order.
Drawn from the administrative record, the following facts accord with those found by the Administrative Law Judge and adopted by the Board in ADT, LLC &International Brotherhood of Electrical Workers Local Union 364, 371 NLRB No. 67, 2022 WL 511012, at *1-6 (Feb. 17, 2022).
ADT installs and services security systems. Before 2020, ADT had separate offices in Rockford, Illinois, and Madison, Wisconsin. Since 1994 the Rockford employees have been represented by the International Brotherhood of Electrical Workers Local 364. As certified, the Rockford bargaining unit encompassed "All full-time and regular part-time installers, technicians and service personnel employed by [ADT] at its 510 LaFayette Avenue, Rockford, Illinois facility." Over their almost 30-year bargaining history, ADT and the union have successfully negotiated eight or nine collective bargaining agreements. The most recent agreement ran from September 1, 2017 to August 31, 2020. The employees who worked out of the Madison office were not represented by a union.
In May 2019 ADT announced that it had decided to close both the Rockford and Madison facilities and to combine the operations in a new office in Janesville, Wisconsin. Rockford employees were concerned about what the consolidation would mean for their bargaining unit. They asked ADT management what would change. ADT was clear: other than the new facility location, "nothing would change." The Rockford employees would "stay in the Union" and work the same service area around Rockford that they had been covering for decades.
And at first, nothing did change. A few months later, though, ADT took an extraordinary step against the union. It purported to withdraw recognition of the union for the Rockford employees. ADT took this step based on a decertification petition that had not been signed by any member of the certified bargaining unit, let alone the majority that would be required. ADT then unilaterally changed several terms and conditions of the union members' employment. When members of the Rockford unit questioned these changes, management told them they were no longer "in the Union," that management "had done it in other branches," and that "it was all legal."
The Rockford unit employees did not take management's word on that score. The union filed unfair labor practice charges against ADT with the National Labor Relations Board. An Administrative Law Judge and the Board agreed with the employees and the union that ADT had violated multiple sections of the National Labor Relations Act. ADT, LLC, 2022 WL 511012, at *1. The Board found that ADT had unlawfully withdrawn recognition from the union, unlawfully made unilateral changes to the Rockford unit employees' terms and conditions of employment, and unlawfully interrogated and threatened a Rockford unit employee about his support for the union. Id. Based in part on ADT's history as "a recidivist violator of the Act" and "its evident disdain" for the rights of employees under the Act, the Board issued a broad remedial order. Id. at *1-2. ADT has petitioned for judicial review, and the Board has cross-petitioned for enforcement of its order.
"Our review of a Board decision is limited." Constellation Brands U.S. Operations, Inc. v. NLRB, 992 F.3d 642, 646 (7th Cir. 2021). "We look for whether substantial evidence supports the Board's factual findings and whether legal conclusions have a reasonable basis in law." Id.; 29 U.S.C. § 160(e) &(f). "These standards are not demanding: a finding is supported by substantial evidence if 'a reasonable mind might accept' its truth." Id., quoting SCA Tissue N. Am. LLC v. NLRB, 371 F.3d 983, 988 (7th Cir. 2004). We "do not reweigh the evidence," and the "presence of contrary evidence does not compel us to reverse the Board's order." Contemporary Cars, Inc. v. NLRB, 814 F.3d 859, 868-69 (7th Cir. 2016), citing NLRB v. KSM Industries, Inc., 682 F.3d 537, 543-44 (7th Cir. 2012), and NLRB v. Teamsters "General" Local Union No. 200, 723 F.3d 778, 783 (7th Cir. 2013).
Our deferential review extends to questions of substantive labor law. We will accept "the Board's interpretations of the law 'unless they are irrational or inconsistent with the Act.'" KSM Industries, 682 F.3d at 544, quoting Loparex LLC v. NLRB, 591 F.3d 540, 545 (7th Cir. 2009); NLRB v. GranCare, Inc., 170 F.3d 662, 666 (7th Cir. 1999) (en banc). "Where, as here, the Board adopts the ALJ's findings of fact and conclusions of law, our review focuses on the ALJ's order." Constellation Brands, 992 F.3d at 646. "The party challenging the Board's determination bears the burden of proof." Id. We should add, though, that even if we did not defer to the Board's interpretations of the law, we would agree with and enforce its order.
Under the National Labor Relations Act, employees "have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. An employer is guilty of unfair labor practices when it "refuse[s] to bargain collectively with the representatives of [its] employees." § 158(a)(5). The only representatives with whom an employer may bargain are those "designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes." § 159(a).
The central issue on the merits is whether changed circumstances, here the closing and consolidation of the Rockford and Madison offices, call for a change in the bargaining unit. There is also an issue about ADT's decision to withdraw recognition unilaterally, let alone on the basis of a decertification petition not signed by a majority of the bargaining unit. The Board explained in the nearly identical ADT case from Kalamazoo that, where "the issue is whether an existing unit remains appropriate in light of changed circumstances, the Board gives significant weight to the parties' history of bargaining." ADT Security Servs., Inc. &Local Union 131, Int'l Bhd. of Electrical Workers, 355 NLRB No. 223, 355 N.L.R.B. 1388, 1388 (2010), enforced, NLRB v. ADT Security Servs., Inc., 689 F.3d 628 (6th Cir. 2012).
Consistent with the deference we show Board decisions, we likewise pay heed to a "significant bargaining history" of the kind that exists between ADT and Local 364 in Rockford. Id. at 1396, quoting Canal Carting, Inc., 339 NLRB No. 121, 339 N.L.R.B. 969, 970 (2003); ADT Security Servs., 689 F.3d at 634 (); see also KSM Industries, 682 F.3d at 543 (). In light of these legal standards, we turn to the more specific facts and issues in this case, again giving deference to the ALJ's and Board's factual findings.
ADT's principal legal theory is that in combining the Rockford and Madison offices, it changed the work of the two groups of employees so substantially that it would be intolerable to keep them split for purposes of a bargaining unit. At relevant times, there was one more Madison employee than Rockford employees, so everyone expected that a majority vote of the combined group, if that were the proper bargaining unit, would reject union representation.
We start with ADT's announcement that it was withdrawing recognition of the union. We then consider in detail the facts relevant to whether the Rockford employees continued to be an appropriate bargaining unit, including the history of bargaining between the union and the employer and the facts about how the employees actually did their jobs.
In June 2020, after consolidation in Janesville, ADT Director of Labor Relations James Nixdorf informed Local 364 that "a majority of the ADT employees of the ... Local 364 bargaining unit in Janesville" had submitted to ADT a decertification petition demanding that the company "withdraw...
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