Universal Automation and Mechanical Services Inc. (01-CA-300935)

From:

To:

Sacks, Laura A.; Quigley, Thomas E.; Goldman, Emily G.; Duryea, Eric D.; SM-Region 1, Boston; SM-Region 34,

Hartford

Cc:

Lussier, Richard; Dodds, Amy L.; Walters, Kimberly; Shorter, LaDonna

Subject:

Universal Automation & Mechanical Services, 01-CA-300935 (case-closing email)

Date:

Friday, May 30, 2025 4:36:00 PM

The Region resubmitted this case for consideration of an employment agreement pursuant to

Memorandum GC 25-05, Rescission of Certain General Counsel Memoranda, dated February 14,

2025. The original submission sought advice on a compensation agreement that contains non-

compete provisions, the lawfulness of the agreement and whether the Employer violated Section 8(a)

(5) by unilaterally implementing the agreement and/or direct dealing, which in part depended on the

employee’s statutory and bargaining unit status at the time the agreement was signed and at the time

of the employee’s resignation. The Advice memorandum in this case issued on December 3, 2024

finding the following:

The Employer failed to establish that the individual is a manager or supervisor at the

relevant times;

The non-compete provision is lawful;

The non-solicitation of employees and customers provisions are overbroad;

The Employer violated 8(a)(5) by failing to give the Union notice and opportunity to

bargain over the Agreement;

The Employer engaged in direct dealing with the individual over the Agreement; and

The Employer’s cease-and-desist letters to the individual violated 8(a)(1).

The Region was instructed to urge the Board to adopt as a standard remedy for overbroad rules and

contract provisions a make-whole remedy for the individual and any similarly situated employees

who may have been harmed by the unlawful non-solicitation of employees provision.

The Region has not yet issued complaint. Upon further review, we conclude that there is insufficient

evidence that the individual at issue was a statutory employee in the bargaining unit at the time

entered into the employment agreement with the Employer

medy for the individual and any similarly situated employees

who may have been harmed by the unlawful non-solicitation of employees provision.

The Region has not yet issued complaint. Upon further review, we conclude that there is insufficient

evidence that the individual at issue was a statutory employee in the bargaining unit at the time

entered into the employment agreement with the Employer. Therefore, the agreement was not

unlawfully obtained nor did the Employer’s efforts to enforce the agreement violate the Act. The prior

Advice memorandum is therefore rescinded and replaced by this email, and the Region should

dismiss the charge in its entirety, absent withdrawal.

The Employer, Universal Automation & Mechanical Services, Inc., is an HVAC service business

employing a variety of trades. It is a member of a multi-employer group that has a collective-

bargaining agreement with the Union, Local 537 of the United Association of Journeymen and

Apprentices of the Plumbing and Pipefitting Industry, covering a unit of employees who perform

instillation, repair, and maintenance work on all types of refrigeration and air conditioning equipment.

The individual was

hired by the Employer in

on the basis of a

was a dues paying member of the Union throughout

employment with the

Employer (as were other managerial employees, a practice to which the Union acquiesced).

did

(b) (6), (b) (7)(C)

(b) (6)

(b) (6), (b) (7)

(b) (6),

(b) (6),

(b) (6),

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

geration and air conditioning equipment.

The individual was

hired by the Employer in

on the basis of a

was a dues paying member of the Union throughout

employment with the

Employer (as were other managerial employees, a practice to which the Union acquiesced).

did

(b) (6), (b) (7)(C)

(b) (6)

(b) (6), (b) (7)

(b) (6),

(b) (6),

(b) (6),

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

some work as a

, but primarily did

management work

under various titles, including

. After

working for the Employer for about

years, the individual asked for a raise to reflect the additional

duties

performed, and in 2010 directly negotiated with the Employer a compensation agreement

that contained substantial additional compensation over the contract rate and Non-Compensation

Non-Solicitation Agreement provisions (Article 3) which set forth the following:

Paragraph A. subsection (b) states: While employed by [the Employer], and for a

period of two (2) years following the termination of employment for any reason,

Employee shall not, in any capacity, directly or indirectly, request, cause, solicit,

induce, attempt to hire or hire any employee of, or consultant to, [the Employer], or

any other person who may have been employed by [the Employer] during the last

year of the term of employment with [the Employer], to perform work or services for

any person or entity other than [the Employer], or assist in such hiring by any other

person or business entity or encourage any such employee or consultant to

terminate his or her employment or consulting relationship with [the Employer].

Paragraph A

n who may have been employed by [the Employer] during the last

year of the term of employment with [the Employer], to perform work or services for

any person or entity other than [the Employer], or assist in such hiring by any other

person or business entity or encourage any such employee or consultant to

terminate his or her employment or consulting relationship with [the Employer].

Paragraph A. subsection (c) states: While employed by [the Employer] and for a

period of two (2) years following the termination of employment by [the Employer] for

any reason, Employee shall not, in any capacity, directly or indirectly, on

own

behalf or on behalf of any other person or entity, solicit or accept business from, or

provide products or services of any kind to, any customer, or other supplier with

respect thereto with whom [the Employer] had business dealings at the time of such

termination to the extent that any of such activities compete with [the Employer].

The available evidence shows that for much of

employment, the individual performed primarily

non-unit work such as making

,

, and managing

was also listed as part of the management team on the Employer’s website. The

individual has been inconsistent in describing the extent of how much non-unit work

performed.

Beginning in 2020, at the outset of the Covid pandemic, the individual’s bargaining unit work greatly

increased to approximately 50 percent of

work hours as the Employer changed its operation. The

individual was no longer listed as part of the management team as of

2021.

In

2022, the individual resigned from the Employer. Shortly thereafter, the Employer sent a

cease-and-desist letter to the individual alleging that

had solicited business from an Employer

customer in violation of the agreement. The individual then contacted the Union, which was the first

time the Union learned about the compensation agreement

isted as part of the management team as of

2021.

In

2022, the individual resigned from the Employer. Shortly thereafter, the Employer sent a

cease-and-desist letter to the individual alleging that

had solicited business from an Employer

customer in violation of the agreement. The individual then contacted the Union, which was the first

time the Union learned about the compensation agreement. The Employer then issued a cease-and-

desist letter to the individual’s new employer advising the company of the non-solicitation agreement

and providing a list of customers that the individual had worked with at the Employer. In November

2022, the Employer sent another cease-and-desist letter to the individual alleging that the individual

had solicited additional Employer customers. The Employer has not taken any further legal action.

(b) (6),

(b) (6),

(b) (6),

(b) (6)

(b) (6),

(b) (6), (b) (7

(b) (6)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6),

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Upon reconsideration, we find that the Employer will likely be able to establish that, at the time the

individual entered the agreement with the Employer in 2010,

was not in the bargaining unit but was

instead employed in a

managerial capacity. Given that the sparse evidence for that period

in 2010 includes the individual’s own inconsistent descriptions of

work during that time, the

evidence demonstrates that the individual was performing the work of a

manager, such as

and therefore was not a statutory employee. See Republican Co.,

361 NLRB 93 (2014) (managerial employees defined as “those who formulate and effectuate high-

level employer policies” and have discretion in representing management interests). As a manager,

was not part of the bargaining unit, and the Employer had no obligation to bargain with the Union

over any changes to

working terms and conditions

herefore was not a statutory employee. See Republican Co.,

361 NLRB 93 (2014) (managerial employees defined as “those who formulate and effectuate high-

level employer policies” and have discretion in representing management interests). As a manager,

was not part of the bargaining unit, and the Employer had no obligation to bargain with the Union

over any changes to

working terms and conditions. Therefore, there were no 8(a)(1) and (5)

violations when the Employer entered into the compensation agreement with the individual.

Even assuming the individual was a statutory employee in the bargaining unit at the time

resigned

in 2022, the Employer’s efforts to enforce the agreement thereafter do not violate the Act. Based on

the cease-and-desist letters, the Employer was just seeking to enforce the lawful non-solicitation of

customers provision (Article 3, A(c)). And, since the individual was not a statutory employee when

entered into the agreement with the Employer in 2010, there is no argument that the Employer was

seeking to enforce an unlawfully obtained agreement. Cf. Nat’l Licorice Co. v. NLRB, 309 U.S. 350,

361, 365 (1940) (upholding affirmative relief of releasing employees from contracts negotiated by

company-dominated labor organization and requiring employer to cease enforcing those contracts

since they were “fruits of unfair labor practices”). Accordingly, the cease-and-desist letters seeking

to enforce the agreement do not violate the Act.

Finally, we find that it would not effectuate the Act to issue complaint on the non-solicitation of

employees provision in the agreement. The Board has long distinguished the act of abandoning

employment, i.e., voluntarily resigning from an employer, from a conditional threat to resign in the

future if certain conditions are not met by the employer. See Crescent Wharf and Warehouse

Company, 104 NLRB 860, 861-62 & n.4 (1953) (the act of resigning is unprotected whereas the

threat to quit could be protected)

rovision in the agreement. The Board has long distinguished the act of abandoning

employment, i.e., voluntarily resigning from an employer, from a conditional threat to resign in the

future if certain conditions are not met by the employer. See Crescent Wharf and Warehouse

Company, 104 NLRB 860, 861-62 & n.4 (1953) (the act of resigning is unprotected whereas the

threat to quit could be protected). See also Technicolor Services, 276 NLRB 383, 385-89 (1985)

(union steward’s efforts to have his coworkers fill out applications for other companies was

protected as it was in the interest of better job security for the employees and not intended to

undermine or harm the employer), enforced, 795 F.2d 916 (11th Cir. 1986). This case does not

present those considerations. The Region should therefore dismiss the entire charge, absent

withdrawal.

Please contact us with any questions.

(b) (6), (b) (7)(C)

(b) (6)

(b) (6),

(b) (6)

(b) (6),

(b) (6)

(b) (6)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

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