Nat'l Labor Relations Bd. v. ADT Sec. Servs., Inc.
| Decision Date | 03 August 2012 |
| Docket Number | No. 10–2549.,10–2549. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADT SECURITY SERVICES, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ON BRIEF:Linda Dreeben, Robert J. Englehart, Zachary R. Henige, National Labor Relations Board, Washington, D.C., for Petitioner. Bernard P. Jeweler, Ogletree, Nash, Smoak & Stewart, P.C., Washington, D.C., for Respondent.
Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*
This case arises from the decision of the National Labor Relations Board that ADT engaged in unfair labor practices and is before this court on the Board's petition to enforce its remedial Order. The central question presented is whether the unit, long represented by Local 131 of the International Brotherhood of Electrical Workers (Union), retained its separate identity and remained an appropriate bargaining unit following ADT's decision to close the unionized plant, assign those employees to an unrepresented plant, and withdraw recognition of the Union. Because substantial evidence supports the Board's conclusion that the historic unit continued to be an appropriate unit and because the Board's Order was a proper exercise of its remedial authority, we ENFORCE the Board's Order that ADT rescind its unilateral actions and recognize and bargain in good faith with the Union.
ADT Security Services, Inc. is engaged in the national sale, installation, and service of burglar and fire alarms and other security devices. ADT's sales operations are separate from its installation and service operations and its service employees conduct their work of installing and servicing equipment at customer sites, not at the sales and service offices. Sales activities, storage of parts, administrative activities, and management offices are all located at the offices.
For almost twenty-nine years, since June 29, 1979, ADT recognized Local Union 131 as the exclusive representative of a unit of service employees, defined under the agreement as “all full-time and regular part-time servicemen employed by [ADT] at its Kalamazoo, Michigan facility; but excluding branch managers, service supervisors, chief clerks, office clerical associates, professional associates, guards, sales associates and supervisors as defined in the Act.”
On May 19, 2008, ADT manager Roy Rogers held a meeting where he informed the Kalamazoo employees that effective June 2, ADT would close its Kalamazoo facility, would consolidate its operations at the Wyoming, Michigan office, and would no longer recognize the Union as their bargaining representative. Rogers explained that the employees would continue to: service the same areas; go to their job assignments from their homes; and receive the same hourly wage rates and piece rates. However, he said their overtime and drive-time entitlements would be decreased. The employees would be paid overtime for hours worked over forty in one week, instead of over eight in one day, and they would not receive compensation until their commutes to their job sites exceeded forty-five minutes, rather than thirty minutes as set forth in the collective bargaining agreement. The rules for determining the employees' vacation eligibility also changed, which resulted in increased vacation time for some employees.
ADT did not notify the Union of the changes to the employees' working conditions. Instead, it sent the Union a letter announcing the consolidation of the fourteen unionized Kalamazoo employees with the twenty-seven unrepresented servicemen working in the Wyoming office. Because the Union would not represent a majority of employees located in the Wyoming facility, ADT announced it was withdrawing recognition from the Union as the representative of the former Kalamazoo employees, effective June 2.
As promised, in June 2008 ADT closed its Kalamazoo facility and reassigned the service employees to operate out of its Wyoming facility, located forty-five miles away from Kalamazoo. The former Kalamazoo employees continued to service southwestern Michigan. ADT continued to lease the Kalamazoo facility and two nonunionized sales employees continued to operate out of that office. At the time recognition of the Union was withdrawn, there was a collective bargaining agreement in effect that extended from January 24, 2007 until January 22, 2010.
Before and after June 2, 2008, the former Kalamazoo employees continued to perform the same work in the same distinct geographical area under largely unchanged terms and conditions. The collective bargaining unit referred to the Kalamazoo “service territory” and the Kalamazoo employees continued to be assigned work within that territory after the closure of the Kalamazoo facility. Both before and after the closing, the servicemen's work assignments were made by a national dispatching center and the employees continued to perform work in the field.
Following consolidation, ADT adjusted the way parts were delivered to the Kalamazoo employees and slightly altered the supervision structure. Following June 2, for a period of about six weeks, the same two employees who had previously delivered parts to the Kalamazoo facility met the Kalamazoo employees in a supermarket parking lot located down the street from the closed Kalamazoo facility. Thereafter, ADT shipped parts from the Wyoming office to the Kalmazoo employees' homes or delivered them to the employees' job sites or other prearranged locations. Starting in September—after the complaint in this case had been issued and shortly before the hearing was held—ADT began requiring certain Kalamazoo employees to report to the Wyoming warehouse once a week to get parts.
Prior to the consolidation, the Kalamazoo servicemen reported to a local supervisor, Mike Swift. Swift, in turn, reported to Roy Rogers, the branch manager for both Kalamazoo and Wyoming. The closure of the Kalamazoo facility eliminated Swift's position and the former Kalamazoo employees began reporting to Dave Fitzsimmons and Dan Beschel, who supervised the Wyoming servicemen. In late September, however, the supervisory structure was again changed and Rogers, Beschel, and Fitzsimmons managed the Kalamazoo and Wyoming servicemen, with Rogers being the senior manager in the office.
Before and after June 2, when numerous outages or malfunctions caused by a storm or other disaster occurred, installers would assist service technicians and ADT would, if necessary, assign servicemen from other locations. On such occasions, Kalamazoo servicemen might assist in the Wyoming service territory and vice versa.
In May and July 2008, the Union filed unfair-labor-practice charges against ADT based on ADT's withdrawal of recognition from the Union as the bargaining representative of the Kalamazoo bargaining unit. On August 12, General Counsel for the Board filed a complaint against ADT alleging violations of Sections 8(a)(1) and (5) of the National Labor Relations Act (the Act) by withdrawing recognition from the Union and thereafter making certain unilateral changes. Following a hearing, an Administrative Law Judge (ALJ) issued a decision and recommended order on December 30, 2008 in which he found merit to the complaint allegations. ADT filed timely exceptions to the ALJ's decision, seeking the Board's review.
On March 12, 2009, before the issuance of the Board's decision, the Regional Director filed for a preliminary injunction against ADT under Section 10(j) of the Act, 29 U.S.C. § 160(j). The petition sought an interim order requiring ADT to recognize and bargain in good faith with the Union, reinstate the collective bargaining agreement, and rescind the unilateral changes to the employees' working conditions. The district court denied the Director's petition and we reversed. We found reasonable cause to believe that an unfair labor practice had occurred and remanded the case for the district to determine in the first instance whether an injunction would be just and proper. Glasser v. ADT Sec. Servs., Inc., 379 Fed.Appx. 483, 488–89 (6th Cir.2010).
On September 30, 2010, before the district court decided the injunction issue on remand, the Board issued its Order, ending the district court's jurisdiction under Section 10(j). The Board affirmed the ALJ's findings and conclusions and adopted, with slight modification, the recommended remedial order. The Board's Order requires ADT to rescind the withdrawal of recognition, extend recognition to the Union as the bargaining representative of its former Kalamazoo employees, reinstate the collective bargaining agreement without retracting any benefit conferred, and bargain collectively in good faith with the Union. After ADT refused to comply, General Counsel for the Board applied to this court for enforcement of the Board's Order.
Our review of the Board's decisions is limited. NLRB v. Dole Fresh Vegetables, Inc., 334 F.3d 478, 484 (6th Cir.2003). The Board's factual findings and its application of the law to those facts are conclusive “if supported by substantial evidence on the record considered as a whole.” Id.(quoting 29 U.S.C. § 160(e)). “This test requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy the reasonable fact finder.” Frenchtown Acquisition Co. v. NLRB, 683 F.3d 298, 304 (6th Cir.2012) (quoting Rochelle Waste Disposal, LLC v. NLRB, 673 F.3d 587, 592 (7th Cir.2012)) (internal quotation marks omitted); see also Williamson v. NLRB, 643 F.3d 481, 485 (6th Cir.2011) (). We may not “displace the Board's choice between two fairly conflicting views, even though the...
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