The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0242p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
NATIONAL LABOR RELATIONS BOARD,
-
-
-
No. 10-2549
v.
,
>
-
Respondent. -
ADT SECURITY SERVICES, INC,
N
On Application for Enforcement of an Order of the
National Labor Relations Board.
No. 7-CA-51288.
Decided and Filed: August 3, 2012
Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*
_________________
COUNSEL
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.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit 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,
*
The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio,
sitting by designation.
1
No. 10-2549 NLRB v. ADT Sec. Serv. Page 2
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.
I. BACKGROUND
A. Factual Background
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
No. 10-2549 NLRB v. ADT Sec. Serv. Page 3
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.
No. 10-2549 NLRB v. ADT Sec. Serv. Page 4
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.
B. Procedural History
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.
No. 10-2549 NLRB v. ADT Sec. Serv. Page 5
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 F. App’x 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.
II. DISCUSSION
A. Standard of Review
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
No. 10-2549 NLRB v. ADT Sec. Serv. Page 6
Williamson v. NLRB, 643 F.3d 481, 485 (6th Cir. 2011) (determining that substantial
evidence is evidence that a reasonable person might accept as adequate to uphold the
Board’s decision, “even if there is also substantial evidence for an inconsistent
conclusion”). We may not “displace the Board’s choice between two fairly conflicting
views, even though the court would justifiably have made a different choice had the
matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951).
Although we review the Board’s legal conclusions de novo, NLRB v. Good
Shepherd Home, Inc., 145 F.3d 814, 816 (6th Cir. 1998), we uphold the Board’s
interpretation of the Act “as long as it is a permissible construction of the statute,”
Williamson, 643 F.3d at 485 (internal quotation marks omitted). As we noted in NLRB
v. Plainville Ready Mix Concrete,“the facts and complexities of the bargaining process
are ‘particularly amenable to the expertise of the Board as factfinder,’ and ‘few issues
are less suited to appellate judicial appraisal than evaluation of bargaining processes or
better suited to the expert experience of a Board [that] deals constantly with such
problems.’” 44 F.3d 1320, 1326 (6th Cir. 1995) (quoting Bolton-Emerson, Inc. v. NLRB,
899 F.2d 104, 108 (1st Cir. 1990)).
B. ADT’s Withdrawal of Recognition of Local Union 131
ADT claims the Board erred in its determination that the fourteen former
Kalamazoo employees remained an appropriate bargaining unit following June 2. ADT
asserts that its withdrawal of recognition of the Union was lawful because, following
consolidation of the Kalamazoo and Wyoming servicemen, the Kalamazoo employees
were no longer a distinct bargaining unit.
Section 9(b) of the Act vests in the Board authority to determine
“the unit appropriate for the purposes of collective bargaining.”
29 U.S.C. § 159(b). Determining an appropriate bargaining unit is closely tied to the
unique facts of any given case. Bry-Fern Care Ctr., Inc. v. NLRB, 21 F.3d 706, 709 (6th
Cir. 2009). In making a unit determination, the Board must select an “appropriate”
bargaining unit. 29 U.S.C. § 159(b). “Often there will be a range of appropriate units,
No. 10-2549 NLRB v. ADT Sec. Serv. Page 7
and the Board is not required to select the most appropriate unit.” Bry-Fern, 21 F.3d at
709 (emphasis in original) (citing American Hosp. Ass’n v. NLRB, 499 U.S. 606, 610
(1991)).
In evaluating the appropriateness of the Board’s designation of a bargaining unit,
we apply a “community of interests” test which requires simply that groups of
employees in the same bargaining unit “share a community of interests sufficient to
justify their mutual inclusion in a single bargaining unit.” Id. The “community of
interests” test includes the following factors: (1) similarity in skills, interests, duties and
working conditions; (2) functional integration of the plant, including interchange and
contact among the employees; (3) the employer’s organization and supervisory structure;
(4) the bargaining history; and (5) the extent of union organization among the
employees. Id.
“Because of its wide experience, the Board should be given some deference in
its selection of an appropriate bargaining unit through the application of the ‘community
of interests’ test.” Armco, Inc. v. NLRB, 832 F.2d 357, 362 (6th Cir. 1987) (citing South
Prairie Constr. Co. v. Local 627, Operating Eng’rs, 425 U.S. 800 (1976)). The Board’s
ultimate determination as to the appropriate unit must be upheld unless it is arbitrary,
unreasonable, or an abuse of discretion. Id. Therefore, although we review the Board’s
underlying factual findings for substantial evidence, we give the Board’s ultimate
weighing of those findings within the “community of interests” test more deference by
applying an abuse of discretion standard of review.
Further, the Supreme Court has held that it is within the Board’s purview to
develop rules “to circumscribe and to guide its discretion” in deciding disputes over the
appropriateness of a unit. American Hosp. Ass’n, 499 U.S. at 611-12. The Board has
done so by determining that bargaining history between the parties impacts the balancing
of factors in the “community of interests” test. Where an existing bargaining unit is
present, “[t]his fact alone suggests the appropriateness of a separate bargaining unit,”
Armco, 823 F.2d at 363, and the Board has required “compelling circumstances” to
overcome the significance of the bargaining history. Fisher Broadcasting, Inc.,
No. 10-2549 NLRB v. ADT Sec. Serv. Page 8
324 N.L.R.B. 256, 261 (1997). Such a determination is both within the Board’s
authority and its expertise. And it applies here. ADT is required to establish that
compelling circumstances overcome the almost twenty-nine-year bargaining history
between the parties. We turn to application of these standards to the facts.
There is no disagreement over the fact that, under the first factor of the
community-of-interests test, both the Kalamazoo and Wyoming servicemen have similar
skills and duties. However, they continued to exercise those skills in their own distinct
geographical areas. Under the second factor, the Board found that the record does not
establish that the Kalamazoo servicemen were “absorbed” or “integrated” into a unit
including all the servicemen who work out of the Wyoming facility. The Board noted
that “some of the most fundamental terms of employment that distinguished the
Kalamazoo servicemen from the Wyoming servicemen . . . not only remained intact
following the closure of the Kalamazoo facility, but continued to separate them from the
Wyoming servicemen.” Specifically, relying on the different “labor markets” in the
Kalamazoo service territory and the Wyoming/Grand Rapids service territory, ADT
continued to pay the former Kalamazoo servicemen lower wages and lower piece rates
than its Wyoming servicemen, even when the Kalamazoo servicemen answered calls in
the Wyoming service territory. The Board also noted that the ADT dispatch center
maintained separate “on call” lists for emergencies in the Kalamazoo and Wyoming
service territories. Under our deferential review, there is substantial evidence to support
the Board’s factual conclusion that the Kalamazoo employees were not functionally
integrated into the Wyoming facility and remained a distinct unit of servicemen.
Relating to the third factor, though previously working under different
intermediate supervisors, following consolidation both Wyoming and Kalamazoo
servicemen worked under the same intermediate supervisors. No change was made to
senior supervision as Rogers was the senior manager over both units of servicemen
before and after June 2. Although common supervision is a factor favoring a
determination that a unit has lost its separate identity, the Board weighed this factor less
heavily because the servicemen work out of their homes, have no onsite supervision, and
No. 10-2549 NLRB v. ADT Sec. Serv. Page 9
do not see their supervisors on a daily basis. See In re Comar, Inc., 339 NLRB 903, 909
(finding a distinct, appropriate bargaining unit remained notwithstanding common
supervision following relocation), enf’d 111 F. App’x 1 (D.C. Cir. 2004). The Board’s
finding that the servicemen were relatively independent from their intermediate
supervisors is clearly supported by substantial evidence given the consistent testimony
that the servicemen’s regular contact with their supervisor was almost exclusively by
phone with only sporadic in-person contact. In fact, the ALJ noted that the supervisor
“automatically calls them every Monday” and that “[a]pparently he just goes down the
list.”
Given the long and well established bargaining history between ADT and the
Union, factors four and five weigh strongly in favor of finding that the Kalamazoo
employees remained a distinct bargaining unit. The Board found the change in
intermediate supervisors did not amount to “compelling circumstances” that would
overcome the twenty-nine year bargaining history between the Union and ADT and the
fact that the Kalamazoo servicemen worked in their own separate historical unit that
maintained its integrity and remained distinct from the Wyoming servicemen.
We hold that the Board’s underlying factual conclusions, which form the basis
for its ultimate determination, are supported by substantial evidence. Based on those
findings, the Board did not abuse its discretion in (1) its application of the “community
of interests” test, (2) its determination that ADT had not shown “compelling
circumstances” to overcome the parties’ long bargaining history, and (3) its conclusion
that the former employee unit maintained its integrity following the closure of the
Kalamazoo facility and continued to be an appropriate unit with which ADT was
obligated to bargain. Given the deference to which the Board is entitled, we decline to
disturb the Board’s holding that ADT violated Sections 8(a)(1) and 8(a)(5) of the Act.
We turn now to the propriety of the Board’s Order.
No. 10-2549 NLRB v. ADT Sec. Serv. Page 10
C. Clarity of the Board’s Order
In its Order, the Board defined the bargaining unit as “servicemen regularly
assigned to work in the Kalamazoo service territory . . . .” In doing so, the Board
modified the definition from the collective bargaining agreement, which included
“servicemen employed by the Respondent at its Kalamazoo, Michigan facility . . . .”
ADT argues that this modification is beyond the Board’s power and that the description
of the bargaining unit is impermissibly vague.
The Board is granted broad discretion in fashioning remedies for violations of
the Act. As the Supreme Court has noted, “the Board draws on a fund of knowledge and
expertise all its own, and its choice of remedy must therefore be given special respect
by reviewing courts.” NLRB v. Gissel Packing Co., 395 U.S. 575, 613 n.32 (1969);
accord Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1300 (6th Cir. 1988). Therefore,
we will not disturb a Board’s remedial order “unless it can be shown that the order is a
patent attempt to achieve ends other than those which can fairly be said to effectuate the
policies of the Act.” Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943).
There is no such showing here.
The Board’s modification of the bargaining-unit description merely reflects the
realty that those employees are no longer employed at the Kalamazoo facility. Having
already determined that the unit retained its separate identity and remained an
appropriate bargaining unit following consolidation, the Board’s modification to more
accurately describe the bargaining unit is within the Board’s power and discretion. See
In re Comar Inc., 339 N.L.R.B. at 904 (requiring employer to continue to bargain with
representative of relocated employees and describing the unit in terms of those
“performing the work that was formerly done” at the previous plant), enf’d 111 F. App’x
1 (D.C. Cir. 2004).
Further, we find that the Board’s choice to geographically describe the unit is not
a patent attempt to achieve ends which do not effectuate the policies of the Act. The
Board’s choice appropriately flows from the evidence in the record: ADT still makes the
distinction between service areas, including the Kalamazoo service territory, using a
No. 10-2549 NLRB v. ADT Sec. Serv. Page 11
computer numbering system that separately identifies jobs performed in a particular area;
ADT still assigns Kalamazoo servicemen to work in a specific subdivision of the
Kalamazoo service territory as delineated by a color-coded map; and, most notably, ADT
still pays Kalamazoo servicemen a lower hourly and piece rate based on a discernable
labor market in the Kalamazoo service territory. It is within the Board’s purview to
determine the appropriate bargaining unit and to develop standards for ascertaining
whether one unit is more appropriate than another. See Am. Hosp. Ass’n v. NLRB,
499 U.S. 606, 611-12 (1991). The Board’s choice to describe the bargaining unit using
the same methods of distinction that ADT uses to assign work and pay to its employees
cannot be said to deviate from the policies of the Act.
III. CONCLUSION
For the foregoing reasons, we GRANT the Board’s Application for Enforcement
of its Order.