Int'l Bhd. of Elec. Workers v. Nat'l Labor Relations Bd.
| Decision Date | 12 August 2021 |
| Docket Number | No. 20-1163-ag,August Term 2020,20-1163-ag |
| Parties | INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 43, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and ADT LLC, Intervenor. |
| Court | U.S. Court of Appeals — Second Circuit |
Maneesh Sharma (Matthew J. Ginsburg, on the brief), AFL-CIO Office of the General Counsel, Washington, District of Columbia; Jonathan D. Newman, on the brief, Sherman Dunn, P.C., Washington, District of Columbia; Kenneth L. Wagner, on the brief, Blitman & King LLP, Syracuse, New York; for Petitioner International Brotherhood of Electrical Workers, Local Union 43.
Greg P. Lauro (Kira Dillinger Vol, on the brief), National Labor Relations Board, Washington, District of Columbia, for Respondent National Labor Relations Board.
Jeremy C. Moritz (Norma Manjarrez, on the brief), Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Chicago, Illinois, for Intervenor ADT, LLC.
Before: Walker, Leval, and Chin, Circuit Judges.
Local Union 43 of the International Brotherhood of Electrical Workers (the Union) petitions for review of a decision of the National Labor Relations Board (the Board) dismissing its unfair labor practice charges against ADT LLC (ADT). The Union alleges that, in September 2016, ADT violated Sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA or Act) by refusing to bargain before implementing a mandatory six-day workweek for nearly all technicians at its facilities in Albany and Syracuse, New York. Applying a recently adopted "contract coverage" standard, the Board dismissed the charges on the basis that the plain language of the relevant collective-bargaining agreements (CBAs) permitted ADT's unilateral change to the schedule.
In this petition, the Union argues that the Board erred in construing the CBAs by failing to give effect to scheduling provisions that limit ADT's rights to mandate overtime. Adopting the contract coverage standard, we agree. We conclude that the CBAs did not allow ADT to unilaterally impose a mandatory six-day workweek and that ADT violated Sections 8(a)(5) and (1) of the Act by refusing to bargain before implementing the change. We therefore VACATE the Board's order and REMAND for further consideration consistent with this opinion.
This case arises from ADT's decision to implement temporarily a mandatory six-day workweek for unionized technicians at its facilities in Albany and Syracuse, New York. We begin by describing ADT's relationship with the Union, including the key terms of the CBAs governing ADT's right to adjust its technicians’ schedules. We then explain the facts giving rise to ADT's decision to impose a six-day workweek, the Union's demand that ADT bargain before implementing the policy, and the prior proceedings before the Board. We draw this background from the Board's findings of fact, which, unless otherwise noted, are supported by substantial evidence.1
ADT installs and services security systems for residential and commercial property. Like other companies in the industry, ADT hires local technicians to install and service its systems. At two of ADT's facilities—those in Albany and Syracuse, New York—these technicians have elected to unionize. They formed two bargaining units (one in Albany and another in Syracuse), both of which are represented exclusively by the Union. As a general matter, ADT is required to bargain with the Union regarding employees’ wages, hours, and other terms and conditions of employment.2
For decades, ADT and the Union successfully negotiated terms and conditions of employment for Albany and Syracuse technicians and memorialized their bargain in their successive CBAs.3 As a general matter, the CBAs are broad in scope, addressing issues such as wages, benefits, safety, and the resolution of disputes. Most importantly for our purposes, they also contain the following three sections addressing ADT's right to set technicians’ schedules.
First, Article 1, Section 2 of the CBAs describes ADT's management rights, which include a general right to determine the "amount" of work required of its technicians. It states, in relevant part, that "[t]he operation of the Employer's business and the direction of the working force including ... the right to ... determine the reasonable amount and quality of work needed ... is vested exclusively in the Employer, subject, however to the provisions of this agreement."4
Second, Article 6, Section 1 of the CBAs defines the "Hours of Work" for Union technicians. It states that "[t]he workweek shall be forty (40) hours during any one workweek or eight (8) hours during any workday."5 It also describes technicians’ work schedules, which differ depending on whether the technician is assigned to the Service Department or the Installation Department. For technicians in the Service Department, the CBAs provide the following alternative schedules:
The normal work schedule ... shall be a shift of eight and one-half hours ... comprising of five consecutive days [5x8 Workweek], Monday through Saturday between the hours of 8:00 a.m. and 12 midnight. There will also be a four-day workweek comprised of ten and one half hour shifts [4x10 Workweek] ... between the hours of 8:00 a.m. and 12 midnight, Monday through Friday.6
For Technicians in the Installation Department, the CBAs provide a single schedule: "The Installation Department may be scheduled for any eight-hour period between 7:00 a.m. and 5:30 p.m. in any given day between Monday and Friday."7
Article 6, Section 1 also provides for limited departures from the regular schedules. For technicians in the Service Department, the CBAs provide that "[c]ustomer needs may periodically make it necessary for work to be performed beginning at 7:00 a.m."8 For technicians in the Installation Department, they provide that "[c]ustomer needs may periodically make it necessary for work to be performed on a second shift and/or Saturdays."9 Before assigning work beyond the regular schedule, however, the CBAs require ADT to follow certain procedures. For technicians in both departments, they provide, 10
Third, Article 6, Section 3 of the CBAs describes ADT's obligation to pay additional compensation for overtime. It states:
All time worked daily in excess of eight (8) hours in a scheduled 5 x 8 hour workweek, in excess of ten (10) hours in a 4 x 10 hour workweek, or weekly in excess of forty (40) hours, or on scheduled days off shall be compensated for at one and one-half (1½) times the employee's regular straight time hourly rate.11
In September 2016, the private equity firm Apollo Group purchased ADT and merged its operations with Protection One, Inc., one of ADT's competitors. At the time, Protection One had a customer-retention policy of responding to 75 percent of service calls within 24 hours. Recognizing the increased customer demand for fast and efficient service, Apollo Group decided to apply that same customer-retention policy to all of ADT's branches nationwide.
To meet the new customer service targets, ADT needed to reduce a backlog of open work orders at several of its locations. Accordingly, ADT announced on September 6 that it would implement a mandatory six-day workweek for service and installation technicians at nine branches in New York and Pennsylvania, including those in Albany and Syracuse. At the Albany branch, the new policy would apply to all workweeks. At the Syracuse branch, the new policy would apply only to the second and fourth workweeks of every month.12 In each case, ADT stated that the mandatory six-day workweeks would begin on September 22 and continue "until each market achieves the desired [customer service] target."13 While ADT acknowledged that the policy would burden its technicians, it stated that "the only exception at this time are those technicians that are currently attending classes and are enrolled in higher education."14
The Union immediately objected to the new policy, demanded that ADT rescind it, and asserted that ADT violated the NLRA by failing to bargain with the Union before implementing the new schedule. Undeterred, ADT implemented the policy as planned, maintaining a mandatory six-day workweek for two to three months at its Albany branch and for one month at its Syracuse branch. During this time, ADT paid its employees overtime. It did not, however, seek volunteers before scheduling overtime shifts or, in the absence of sufficient volunteers, allocate shifts based on reverse seniority. Except for employees pursuing higher education, all service and installation technicians worked six-days per week as ordered.15
Based on charges filed by the Union, the General Counsel for the Board issued a complaint alleging, inter alia , that ADT violated Sections 8(a)(5) and (1) of the Act by implementing the six-day workweek unilaterally—that is, without affording the Union notice or an opportunity to bargain.16 On August 4, 2017, an administrative law judge issued a decision and recommended order finding that ADT violated the Act as alleged.17 ADT filed exceptions to the recommend order and, on February 27, 2020, the Board reversed.18 Applying a newly adopted "contract coverage" standard, the Board held that ADT had no duty to bargain with the Union because the plain language of the CBAs granted ADT the right to impose the six-day workweek unilaterally.19
The Board's analysis of the CBAs was brief. It explained that "Article 6, [S]ection 3 of the Agreements provided for payment of overtime wages for work performed ‘weekly in excess of forty (40) hours, or on scheduled days off,’ " and that "Article 1, [S]ection 2 of the Agreements vested in...
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