ADT, LLC

National Labor Relations Board - Board Decisions

May 17, 2017

365 NLRB No. 77 (N.L.R.B. 2017)

365 NLRB No. 77
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
ADT, LLC, Employer-Petitioner and Communication
Workers of America, Local 6215. Case 16–RM–
123509
May 17, 2017
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
Introduction
The issue in this case is whether the Employer’s RM
petition meets the requirements of Section 9(c)(1)(B) of
the Act, namely whether the Employer demonstrated that
the Union made a demand for recognition in the peti-
tioned-for unit and whether the Employer established
that it had a good-faith reasonable uncertainty regarding
the Union’s majority status. This case arises from the
Employer’s reorganization of several of its Texas facili-
ties in a manner that resulted in employees who histori-
cally had been represented by the Union working along-
side unrepresented employees whom the Employer had
inherited as a result of a merger with another company.
The Union never sought to represent those inherited em-
ployees, and employees currently represented by the Un-
ion never indicated a desire to end the Union’s represen-
tation of them. The Employer nevertheless filed a peti-
tion seeking an election among the combined group of
employees to determine whether a majority of the whole
group wished to be represented by the Union. Notwith-
standing the absence of any claim by the Union to repre-
sent the inherited employees and the lack of any evidence
that the Union had lost support among its current bar-
gaining unit members, the Regional Director for Region
16 decided to process the Employer’s petition.
On March 9, 2015, the Regional Director issued a De-
cision and Direction of Election in a unit of “all installa-
tion and service technicians employed by the Employer
in the Dallas/Fort Worth area at its Carrollton, Haltom
City, Trinity, and Tyler facilities.” The Regional Direc-
tor found that the Employer met the “threshold showing”
necessary for processing the petition. The election was
held on April 8, 2015, and the ballots were impounded.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Union filed a timely
request for review, contending that the petition is inap-
propriate under Board precedent and should be dis-
missed. The Employer filed an opposition. On April 22,
2015, the Board granted the Union’s request for review.1
After carefully considering the entire record in this
proceeding, including the Employer’s and the Union’s
briefs on review, the Employer’s supplemental brief, and
the Union’s response, for the reasons set forth below, we
reverse the Regional Director’s decision to process the
petition. Contrary to the Regional Director and our dis-
senting colleague, we find that the Employer’s petition
does not meet the requirements of Section 9(c)(1)(B).2
We therefore vacate the direction of an election and dis-
miss the petition.
Facts
The Employer installs and repairs security systems for
private residences and small businesses. It employs in-
staller technicians and service technicians who travel to
job sites to perform their work. The Employer and the
Union have had a collective-bargaining relationship since
1978, when the Union was certified as the exclusive col-
lective-bargaining representative of certain of those tech-
nicians. The current collective-bargaining agreement
between the parties defines the bargaining unit as “all
servicemen employed by the Employer at its facilities
located in Dallas and Fort Worth, Texas.”3
Until 2010, the Employer had facilities located in Car-
rollton and Haltom City, Texas. In 2010, the Employer
acquired Broadview, another security systems company,
and took over Broadview’s three Texas locations (Mes-
quite, Irving, and Fort Worth). Although the Broadview
technicians became the Employer’s technicians in 2010,
the parties never applied the collective-bargaining
agreement to them, and the Union does not currently
represent them. Until early 2014, the 70 former Broad-
view technicians worked at the three former Broadview
facilities, separate from the Employer’s 58 unit techni-

1 Chairman Pearce and Member McFerran; Member Miscimarra
dissenting.
2 Sec. 9(c)(1)(B) provides that a petition may be filed
by an employer, alleging that one or more individuals or labor organi-
zations have presented to him [her] a claim to be recognized as the
representative defined in section 9(a) [subsection (a) of this section];
the Board shall investigate such petition and if it has reasonable cause
to believe that a question of representation affecting commerce exists
shall provide for an appropriate hearing upon due notice. Such hear-
ing may be conducted by an officer or employee of the regional office,
who shall not make any recommendations with respect thereto. If the
Board finds upon the record of such hearing that such a question of
representation exists, it shall direct an election by secret ballot and
shall certify the results thereof.
3 By its terms, the agreement was effective from May 29, 2011
through May 28, 2014, with an automatic year-to-year renewal provi-
sion. No party contends there is a contract bar.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
cians who worked at its two locations in Carrollton and
Haltom City.
In February 2014, the Employer closed offices, com-
bined locations, and created new office locations. It
moved the Carrollton office to a new address in Carroll-
ton and created a satellite office in Tyler, Texas. It creat-
ed a new office location in Trinity, Texas, but retained
the Haltom City location. The former Broadview techni-
cians were combined with the Employer’s existing unit
technicians at all locations except Tyler, where some unit
technicians but no former Broadview technicians were
reassigned.4 The three former Broadview offices were
closed.
All the technicians work under similar working condi-
tions, and the parties stipulated that all the technicians
perform the same or similar work. Most benefits are the
same for all technicians. Although the method of com-
pensation differs between the represented and unrepre-
sented technicians, wages overall are comparable. The
parties stipulated that should an election be held, the peti-
tioned-for unit would be an appropriate unit, but the Un-
ion reserved its right to seek review of the decision to
process the petition.
The Employer filed the instant petition on March 3,
2014,5 seeking an election in a unit of all “install and
service technicians at ADT’s Carrollton, Tyler, Trinity,
and Haltom City facilities in the Dallas/Fort Worth area.”
The petition submitted to the Regional Director was ac-
companied by a letter from the Employer’s director of
labor relations, James Nixdorf. The letter set forth the
basis for the petition, including a “claim for continued
recognition” by the Union and a “question as to majority
status” on the part of the Employer. The Employer in-
ferred the claim for continued recognition from an email
communication between Union Vice President Bonnie
Mathias and Nixdorf on February 3, in which Mathias
purportedly claimed to represent “some, if not all, of the
integrated offices.” The Employer’s asserted doubt as to
the Union’s majority status was based on the Employer’s
final integration of its offices, after which, based on a
chart “showing the current numbers of represented and
unrepresented technicians in each office,”6 the Employer

4 The composition of the facilities are as follows: Carrollton: 19
former Broadview technicians and 25 existing unit technicians; Tyler:
no former Broadview technicians and 6 existing unit technicians; Trini-
ty: 23 former Broadview technicians and 14 existing unit technicians;
and Haltom City: 28 former Broadview technicians and 13 existing unit
technicians. The total number of technicians is 128.
5 All dates are in 2014 unless otherwise indicated.
6 The chart characterized the former Broadview technicians as non-
union and the existing technicians as union technicians. See fn. 4,
above.
contended that it had a reasonable good-faith uncertainty
as to the Union’s continued majority status.
THE REGIONAL DIRECTOR'S DECISION
Prior to the hearing, the Union filed a motion to dis-
miss the petition, alleging that the Employer’s asserted
grounds for good-faith uncertainty were insufficient.
The Regional Director denied the motion. Following the
hearing, the Regional Director issued an order to reopen
the record in which she also determined, pursuant to Sec-
tions 11021 and 11042 of the Board’s Casehandling
Manual, Part Two, Representation Proceedings (CHM),7
that the Employer had met the necessary threshold show-
ing for processing the petition. In the Decision and Di-
rection of Election, citing her previous denial, the Re-
gional Director denied a renewed motion to dismiss by
the Union made during the reopened hearing. The Re-
gional Director concluded that the Union “claims to rep-
resent certain employees of the Employer and that the
Employer has provided sufficient evidence to establish a
good faith uncertainty as to the Union’s majority status.”
Further the Regional Director found that a question con-
cerning representation exists, and that a unit of “[a]ll
installation and service technicians employed by the Em-
ployer in the Dallas/Fort Worth area at its Carrollton,
Haltom City, Trinity, and Tyler facilities” is an appropri-
ate unit.
The Parties’ Contentions
On review, the Union asks the Board to reverse the
Regional Director’s decision, asserting that it has “never”
claimed to represent the former Broadview technicians
and challenging the Employer’s view that the parties’
February 3 email correspondence indicates that the Un-
ion was making such a claim. The Union further con-

7 Sec. 11021 indicates that the investigation of the extent of a
showing of interest in support of a petition is an administrative matter
not subject to litigation and is within the discretion of the Board. Sec.
11042, entitled “Objective Considerations in RM Petition,” provides
that “[t]he Regional Director should process a RM petition based on a
prima facie showing of objective considerations that a union has lost its
majority status.” More specifically, Sec. 11042.1 states in part:
The RM petition must be supported by evidence, viewed in
its entirety, which might establish good-faith uncertainty as to the
union’s continued majority status. The information submitted by
the employer must be specific and detailed: for example, names of
employees must be listed. The evidence must be objective and re-
liably indicate that a majority of the employees oppose the in-
cumbent union, rather than mere speculation. Such evidence
would include, but is not limited to, anti-union petitions signed by
unit employees, firsthand employee statements indicating a desire
to no longer be represented by the incumbent union, employees’
unverified statements regarding other employees’ antiunion sen-
timents, and employees’ statements expressing dissatisfaction
with the union’s performance as bargaining representative. Levitz,
supra at 728, 729. See also GC 02–01 at 9.
ADT, LLC 3
tends that the Employer presented “zero objective evi-
dence” of employee opposition to the Union. It also
maintains that the Employer’s actions effectuated only a
relocation of represented bargaining unit technicians,
under which the technicians were entitled to continued
representation by the Union.
The Employer counters that the Regional Director’s
decision should be affirmed because it is consistent with
applicable principles of accretion. In addition to the evi-
dence in support of its petition submitted below, it con-
tends that the Union lost its majority status when the
larger group of unrepresented technicians “merged” with
the smaller group of represented technicians. In support,
the Employer relies principally on Nott Co., 345 NLRB
396, 401 (2005), and the cases cited therein, including
Geo. V. Hamilton, 289 NLRB 1335, 1339 (1988), and
Renaissance Center Partnership, 239 NLRB 1247
(1979), for the proposition that, where a new group of
unrepresented employees is added to an extant unit, and
the new group equals or outnumbers the extant group,
there is a question raised as to whether a majority of the
employees in the combined group support the union.8
The Employer further asserts that Levitz Furniture Co.,
recognizes that an election is the preferred method of
testing the employees’ support for the Union. Notably,
however, it acknowledges that “the Union claimed a con-
tinued representational interest in only those employees
who had been represented prior to the consolidation.”9
Discussion
To warrant processing a petition under Section
9(c)(1)(B), an employer must demonstrate both that the
union has made a claim for recognition and, by objective
considerations, that the employer has a reasonable good-
faith uncertainty as to the union’s continuing majority
status in the unit it currently represents. Levitz Furniture
Co., supra at 727; Postal Service, 256 NLRB 502, 503
(1981); United States Gypsum Co., 157 NLRB 652, 656
(1966); CHM, Secs. 11003.1(b) and 11042. The burden
is on the employer to demonstrate that a request for
recognition has been made. Brylane, L.P., 338 NLRB
538, 542 (2002). Reasonable good-faith uncertainty
must be based on evidence that objectively and reliably
indicates employee opposition to an incumbent union,
and is not merely speculative. Levitz Furniture Co.,

8 To the extent that Nott Co., above, is applicable, the Union con-
tends it should be overruled as inconsistent with Levitz Furniture Co.,
of the Pacific, 333 NLRB 717, 723 (2001) .
9 The Employer also requests that the Board take administrative no-
tice of a decertification petition filed in May 2015 (Case 16–RD-
152333). Contrary to the Employer’s assertion, that petition is irrele-
vant in this proceeding regarding the Employer’s March 2014 RM
petition.
above at 729. Such evidence may include “antiunion
petitions signed by unit employees and first hand state-
ments by employees concerning personal opposition to
an incumbent union.” Id. at 728. Levitz emphasizes,
however, that all evidence should be taken into account
which, viewed in its entirety, might establish uncertainty
as to the union’s continued majority status. Id. For the
reasons discussed below, we find that the Employer has
not established that either of these criteria has been met
in this case.10
A. The Absence of a Demand for Recognition
In a letter accompanying its petition, the Employer al-
leges a claim for recognition by the Union based on the
contents of an email from Director of Labor Relations
Nixdorf to Union Vice President Mathias recounting a
telephone conversation between the two. Although the
Employer's letter states that Mathias’ statements indicat-
ed that the Union claimed to recognize “some, if not all,”
technicians “in the integrated offices,” the underlying
email does not support that assertion. The relevant
email, sent by Nixdorf to Mathias, reads in part as fol-
lows:
Thanks for taking my call the other day. I just wanted
to confirm my understanding of our conversation in
which we discussed your presence at the opening meet-
ing in the Trinity office of the newly reorganized Dal-
las-Fort Worth (“DFW”) ADT operation. When I
asked if your visit there on Monday meant the CWA
was trying to represent the employees in the recently
integrated ADT and heritage Broadview DFW offices,
you said no. However, you did say that you were there
because the CWA had “bargained-for employees.”
ADT can only interpret this as a statement that the un-
ion claims to represent some —if not all—employees
in the DFW offices.
In this email, the only statements attributed to Mathias
are his “no,” in response to Nixdorf’s query whether Ma-
thias’ visit to the Trinity office “meant the CWA was
trying to represent the technicians in the recently inte-
grated ADT and heritage Broadview DFW offices,” and
Mathias’ explanation that he visited the Trinity office

10 We also note that the Regional Director, in denying the Union’s
motions to dismiss, limited her analysis to whether the Employer had a
reasonable good-faith uncertainty as to the Union’s continuing majority
status because of the merger of its represented and unrepresented tech-
nicians. Although the Union’s motions to dismiss were primarily con-
cerned with whether there was a reasonable good-faith uncertainty, as
discussed below, the issue of whether there was a claim for recognition
also was presented because the Union did not seek to represent the
former Broadview technicians. The failure to specifically address the
issue of whether there was a claim for recognition–a statutory mandate
–undermines the Regional Director’s decision to process the petition.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
“because the CWA had ‘bargained-for employees’”
there. The Employer presented no other basis to support
its assertion that the Union claimed to represent the dis-
puted employees.
We conclude that neither of the statements attributed
to Mathias constitutes a demand for recognition of the
combined group of technicians. The first attribution ne-
gates any argument that the Union was seeking to repre-
sent the integrated unit, i.e., that of technicians currently
covered by the contract and the former Broadview tech-
nicians not covered by the agreement. Nor can the Em-
ployer find sufficient support in the second attribution,
that Mathias was at the facility because the Union had
“bargained-for employees.” This statement does not
convey a claim or demand for recognition either with
respect to the so-called “integrated” unit of former
Broadview technicians and the existing technicians or for
a separate unit excluding the pre-Broadview existing
technicians. The Employer therefore failed to meet its
burden of demonstrating that the Union “presented . . . a
claim to be recognized as the representative defined in
section 9(a)” as required under Section 9(c)(1)(B).11 In
the absence of a demand for recognition, the Board will
normally dismiss an RM petition on the ground that no
question of representation exists. See Postal Service,
above; PMS Steel Construction, 309 NLRB 1302, 1303
fn. 9 (1992).12

11 “The legislative history . . . shows that Congress understood this
provision to mean that ‘[e]mployers may ask for elections, but only
after a representative has claimed collective-bargaining rights.’”
Windee’s Metal Industries, 309 NLRB 1074, 1075 (1992) (citing from
the legislative history of Sec. 9(c)(1)(B)) (emphasis in original).
12 We also find unpersuasive our dissenting colleague’s position that
the Union’s request for a private non-Board election among the former
Broadview technicians constitutes a claim to represent those employ-
ees. Contrary to our colleague’s argument, evidence that the Union is
seeking a private self-determination election does not support pro-
cessing the RM petition at issue here. At the outset, we note that the
agreement was not entered into the record and there was no testimony
concerning it at the hearing. Even so, the non-Board agreement, by its
own terms, states that it is not to be used as evidence in any other pro-
ceeding, except as to its own enforcement. Moreover, even were we to
take judicial notice of the proceedings to enforce the non-Board agree-
ment, it would be insufficient to constitute a claim by the Union. The
Board has long allowed unions to add unrepresented employees to units
of historically represented employees via self-determination elections.
But we have found no case holding that the Board will conduct an
election among a combined group of those employees pursuant to an
RM petition rather than a self-determination election among a subset
simply because the union seeks to add the subset to a unit via the self-
determination process. Doing so would have the adverse consequence
of allowing employers to force unions to defend their majority each
time the union sought to add employees via a self-determination elec-
tion. It would also deprive the historically unrepresented employees of
the ability to determine, as a group unto themselves, whether they wish
to be a part of the existing unit. Indeed, those unrepresented employees
B. The Absence of a Reasonable Good-faith Uncertainty
as to the Union’s Majority Status
The Employer provided no evidence that unit employ-
ees were dissatisfied with the Union, let alone wished to
no longer be represented by the Union, to satisfy the sec-
ond element of its burden under Levitz, above. The Em-
ployer instead relied solely on the reorganization of its
operations to support its claim of good-faith uncertainty
as to the Union’s continued majority status. The Em-
ployer thus describes the reorganization of the five
preexisting offices and their technicians into the one
preexisting office, two new offices and one satellite of-
fice, and argues that, consistent with accretion principles,
there is a reasonable good-faith uncertainty regarding the
Union’s continuing majority status because the overall
number of “unrepresented” technicians exceeds the num-
ber of “represented” technicians following the reorgani-
zation. In support, the Employer and the dissent cite
cases involving the merger or integration of represented
and unrepresented employees into the same unit in which
the Board found an accretion issue and a question of ma-
jority status because the number of unrepresented em-
ployees being merged was equal to or exceeded the
number of represented employees in the unit. See Nott
Co., above; Geo. V. Hamilton, above; Renaissance Cen-
ter Partnership, above. This position and cited cases are
not persuasive.
Importantly, the Union has never sought to represent
the unrepresented Broadview technicians or apply the
contract to them. Thus, this case does not present an
accretion issue or a question concerning majority status
in the unit the Union currently represents. By contrast, in
the three cases relied on by the Employer and our dis-
senting colleague, the Board found that an accretion is-
sue and a question of majority status were raised because
the union claimed to represent the unrepresented em-
ployees in the same unit with the represented employ-
ees.13 In none of those cases did the union expressly

could potentially be swept into the unit against their will in circum-
stances where they are outnumbered by the existing unit employees.
Contrary to the dissent, we find that the Union’s January 2015 unfair
labor practice charge in Case 16–CA–144548 is irrelevant in this pro-
ceeding regarding the Employer’s March 2014 RM petition. In any
event, as our colleague acknowledges, the Union’s charge relates only
to the Employer’s “newly hired” employees. Thus, even if the charge
was deemed relevant, it does not demonstrate that the Union seeks to
represent the former Broadview employees.
13 For example, in Renaissance Center Partnership, the union filed a
unit clarification petition seeking to include unrepresented security
officers and guards in an existing unit with security officers and guards
represented by the union. 239 NLRB at 1247–1248. The Board in that
case directed an election because the union claimed to represent all the
employer’s security officers and guards. Id. at 1248. Likewise, in Nott
Co., the union contended that new employees from an acquired em-
ADT, LLC 5
deny, as the Union did here, that it was seeking to repre-
sent the unrepresented employees as part of an existing
unit. Absent a claim or demand to represent the former
Broadview technicians in the current unit, the accretion
and majority status issues present in those cases do not
exist in this case.14
We also reject our dissenting colleague’s view that we
must uphold the processing of the petition because a unit
of all technicians would be an appropriate unit if a new
election were to be held today.15 The dissent asserts that
if the Union were to file a new petition for only the em-
ployees it historically represented, such a unit would be
inappropriate as a matter of law, and that the Board
should therefore uphold the Regional Director’s decision
to process the petition. We disagree. Even if the historic
bargaining unit may no longer be an appropriate unit
because of the merger, we emphasize again that the issue
before us is not the continuing appropriateness of the
historical unit, but whether an election is appropriate
under Section 9(c)(1)(B). On that point, moreover,
“[t]he Board has never held . . . that merely because an
existing recognized unit may be inappropriate for certifi-
cation, an employer may force a labor organization to an
election in a larger unit alleged to be appropriate.” Post-
al Service, 256 NLRB at 504; see also Abbott-
Northwestern Hospital, 274 NLRB 1063 (1985) (em-
ployer petitions for an election not processed because no
question concerning representation was raised and no
demand for recognition had been made). In addition,
under Section 9(c)(1)(B), the Board will not force a un-
ion to an election in a larger unit alleged to be appropri-
ate if the union does not seek to represent all the employ-
ees in that larger unit. Contrary to our dissenting col-
league’s claims, the fact that the Union continues to de-
mand recognition as the representative of its historic
members does not mean that it is “inescapably” claiming
a potential combined unit.
We also reject the dissent’s related assertions that the
Employer was not required to present evidence that the
Union lost majority support among the historically-

ployer were an “expansion” of the existing unit represented by the
union. 345 NLRB at 397. And in Geo. V. Hamilton, the union con-
tended that it was the exclusive representative of the employees work-
ing in two warehouses, one of which was recently acquired by the
employer, and that an existing collective-bargaining agreement between
the union and the employer was applicable to them. 289 NLRB at
1339–1340.
14 We note that this case does not involve a successorship issue, and
thus, the case and legal principles cited by our dissenting colleague are
not applicable in this proceeding.
15 In her unit findings, the Regional Director found that the former
Broadview technicians share a “significant community of interest” with
the Employer’s existing technicians. In view of our dismissal of the
petition, we find it unnecessary to address that finding.
represented employees and that the correct measure of
the Union’s support is with reference to the entire group
of technicians. Our dissenting colleague relies in par-
ticular on Renaissance Center Partnership, above, a case
that is distinguishable in its procedural posture from the
present matter. In Renaissance Center Partnership, the
Union’s unit clarification petition, expressing a desire to
include the newly consolidated employees, opened the
door for the Board to consider the appropriateness of the
unit and whether accretion or an election would be war-
ranted. 239 NLRB at 1247–1248. Here, in contrast,
there has been no unit clarification petition, no sugges-
tion from the Union that it wishes to represent the
merged employees, and no withdrawal of recognition.
There has been only the Employer’s RM petition, which
must be analyzed under the Levitz framework we apply
today. This requires the Employer to establish a good-
faith belief that the Union has lost majority support
amongst those employees it currently represents, not that
the Union may lack majority support in a combined unit
of those employees and employees it has never repre-
sented.
Nor do we find persuasive the Employer’s related sug-
gestion that if this was an unfair labor practice case, it
would be privileged to withdraw recognition from the
Union under Nott, Co., because, it contends, the Union
has actually lost its majority status. 345 NLRB at 401;
Levitz Furniture Co., 333 NLRB at 717. First, we reject
the Employer’s attempt to import the principles dis-
cussed in Nott, Co., into this case because the question of
whether a withdrawal of recognition would be lawful
simply is not before us. In this case, we consider and
apply only Section 9(c)(1)(B) and the requisite elements
for determining whether an employer RM petition should
be processed, not Section 8(a)(5) and the different crite-
ria for determining whether a withdrawal of recognition
violates the Act.16 Second, as explained, Nott, Co., and
its progeny are inapposite because the Union has never
claimed to represent a combined unit including both the
historically represented employees and the former

16 The Board has acknowledged in some circumstances the practical
difficulty and unworkability of the continued recognition of an historic
bargaining unit where, as the result of a merger, unit employees worked
side-by-side with nonunit employees performing the same work. See
Abbott-Northwestern Hospital, 274 NLRB at 1064 (withdrawal of
recognition lawful). But we decline to create a rule in representation
cases presuming that all such arrangements, including this one, are
unworkable and that a reasonable good-faith uncertainty as to the un-
ion’s continued majority status will automatically exist. Notably, while
the withdrawal of recognition in Abbott-Northwestern Hospital was
lawful, previous employer petitions in that case were dismissed by the
Board, in part, because as here, no demand for recognition had been
made. Id. at 1063.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Broadview employees. Thus, the Employer failed to
meet its burden of establishing a reasonable good-faith
uncertainty regarding the Union’s majority status as re-
quired by Section 9(c)(1)(B).17
Conclusion
In declining to process the Employer’s petition, we are
mindful of the changes made in Levitz to “enable em-
ployers who seek to test a union’s majority status to use
the Board’s election procedures . . . rather than the more
disruptive process of unilateral withdrawal of recogni-
tion.” 333 NLRB at 717. And we share the Levitz
Board’s sentiment that there are good reasons to prefer
that questions concerning a union’s continuing majority
status be resolved through elections rather than self-help.
Levitz, however, did not confer on employers an absolute
right to file an RM petition. Employer-petitioners are
still bound to the statutory requirements of Section
9(c)(1)(B), and for the reasons we have stated, the Em-
ployer has not satisfied those requirements. According-
ly, the Employer's petition must be dismissed.
ORDER
The Regional Director’s Decision is reversed, the Di-
rection of Election is vacated, and the petition is dis-
missed.
Dated, Washington, D.C. May 17, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting.
Unlike my colleagues, I would affirm the Regional Di-
rector’s decision to process the Employer’s petition seek-
ing an election in a unit of all installation and service
technicians (collectively “technicians”) employed by the
Employer at its Carrollton, Haltom City, Trinity, and
Tyler, Texas facilities. Following its acquisition of an-

17 Contrary to the position of our dissenting colleague, our applica-
tion of Sec. 9(c)(1)(B) here is not improperly inflexible. To the contra-
ry, our application of the Levitz standard to the facts, based on the RM
petition before us, reflects an interest in predictability and consistency
across cases. These statutory requirements and precedential legal prin-
ciples cannot be disregarded simply because in this particular case the
Employer may be in a challenging position.
other company and subsequent restructuring of its opera-
tions, the Employer merged an existing group of repre-
sented technicians with a larger group of unrepresented
technicians who had previously worked for the acquired
company. Accordingly, the preacquisition unit of repre-
sented technicians no longer exists. I believe that these
facts sufficiently call into question the continuing majori-
ty status of the Union in the only appropriate unit here—
the merged unit in which unrepresented technicians out-
number historically represented technicians. Moreover,
and contrary to the majority, the Union has taken
measures that can only be understood as a claim for
recognition in the consolidated unit of technicians. In
these circumstances, I believe the Board must process the
petition and direct an election, which is the preferred
means of resolving a question regarding whether a union
enjoys majority status in an appropriate bargaining unit.
Facts and Background
The Employer installs and services residential and
commercial security systems nationwide, including in the
Dallas/Fort Worth, Texas area. Technicians perform this
work. Beginning in 1978, the Union represented all of
the Employer’s technicians in the Dallas/Fort Worth ar-
ea, who worked out of facilities in Carrollton and Haltom
City, Texas.1 In May 2010, the Employer acquired
Broadview, another security systems company operating
in the Dallas/Fort Worth area. In addition to its two ex-
isting facilities in Carrollton and Haltom City, the Em-
ployer chose to maintain Broadview’s three Texas facili-
ties (in Mesquite, Irving, and Forth Worth), and it hired
all of the technicians that worked at those three facilities.
Technicians covered by the collective-bargaining agree-
ment with the Union continued to work out of the Car-
rollton and Haltom City facilities. Former Broadview
technicians—now employed by the Employer—
continued to work out of the Mesquite, Irving, and Fort
Worth facilities, and the Employer did not apply the
terms of the collective-bargaining agreement to the for-
mer Broadview technicians.
In February 2014, the Employer restructured its opera-
tions. It closed the three Broadview facilities, retained
its Haltom City facility, moved its Carrollton facility to a
new Carrollton address, and opened new facilities in Ty-
ler and Trinity, Texas. Accordingly, the Employer now
maintains facilities in Carrollton, Haltom City, Trinity,
and Tyler. This restructuring resulted in the merger of
the unrepresented former Broadview technicians with
union-represented technicians. As the Regional Director
found, at the time of the February 2015 hearing there

1 The most recent collective-bargaining agreement was effective
May 29, 2011 through May 28, 2014.
ADT, LLC 7
were 89 former Broadview technicians and 51 union-
represented technicians working out of the four facili-
ties.2 The Employer has continued to apply the collec-
tive-bargaining agreement to just those technicians his-
torically represented by the Union. In response to this
restructuring and merger of unrepresented and represent-
ed technicians, in March 2014 the Union demanded that
the Employer agree to a private, non-Board election
among the former Broadview employees—pursuant to an
alleged agreement providing for such an election—and to
their inclusion in the existing unit and coverage under the
parties’ then-current collective-bargaining agreement if
the former Broadview employees voted in favor of repre-
sentation. When the Employer refused this demand, the
Union filed a lawsuit in federal district court seeking to
enforce the alleged election agreement. See Communica-
tion Workers of America v. ADT, LLC, Civil Action No.
3–14–CV–04205. In February 2015, the Union also filed
a Board charge in Case 16–CA–144548 alleging, among
other things, that the Employer was violating Section
8(a)(5) by “refusing to apply to newly hired bargaining
unit employees the terms and conditions of the current
labor agreement between the parties.”
On March 3, 2014, the Employer filed an RM petition
seeking an election in a unit of all technicians at its four
facilities. Citing its restructuring, the subsequent integra-
tion of its work force, and the fact that its nonunion tech-
nicians outnumber its union technicians, the Employer
asserted that it had a reasonable good-faith uncertainty as
to the Union’s continued majority status.
Based on evidence introduced at the preelection hear-
ing, the Regional Director found, and no party disputes,
the following facts:
 All of the Employer’s technicians, union and
non-union alike, perform the same or similar
types of work.
 The technicians work side by side with one
another, share common supervision, engage
in significant cross-facility interchange, and
are functionally integrated within the Em-
ployer’s operations. They share the same re-
tirement, disability, medical and dental bene-
fits. They wear the same uniforms, receive

2 More specifically, at the time of the hearing, there were 23 union-
represented technicians and 32 nonunion technicians at the Carrollton
facility, 16 union-represented technicians and 32 nonunion technicians
in Haltom City, 5 union-represented technicians and 23 nonunion tech-
nicians in Trinity, and 7 union-represented technicians and 2 nonunion
technicians in Tyler.
My colleagues cite the work force composition at the time the Em-
ployer filed its petition, when there were 70 non-union technicians and
58 union-represented technicians.
the same allowance for safety equipment, use
the same company equipment and tools, drive
the same company vehicles, and receive the
same holidays, sick days, and additional
leave. They also share the same work sched-
ules, the same types of job assignments, and
the same training.
 Although the collective bargaining agreement
establishes the method of compensation for
those technicians that have historically been
represented by the Union, all technicians earn
similar wages and fall within similar hourly
pay ranges..
Based on the above facts, the Regional Director found
that unrepresented technicians share an “overwhelming
community of interest” with the technicians covered by
the collective-bargaining agreement. Moreover, the par-
ties stipulated that if the Board decides to hold an elec-
tion, a unit consisting of all technicians at the four facili-
ties is appropriate.3
In these circumstances, the Regional Director found
that “due to the Employer’s 2010 acquisition of . . .
Broadview, as well as a subsequent 2014 restructuring of
its facilities, locations, and employees, . . . the Union’s
continued majority status among such unit, is no longer
clear.” In addition, the Regional Director previously
made a determination that the Employer had met the
“threshold showing necessary for processing” the peti-
tion, i.e., a demand to be recognized and “a good faith

3 In doing so, the Regional Director cited Specialty Healthcare &
Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. 727 F.3d
552 (6th Cir. 2013). Under the standard established there, when a party
contends that the smallest appropriate unit must include employees in
addition to those in the petitioned-for unit, the burden on the party “so
contending [is] to demonstrate that the excluded employees share an
overwhelming community of interest with the included employees.”
357 NLRB at 934. I would not apply this “overwhelming community
of interest” standard to determine whether a petitioned-for unit must
include additional employees. See generally Macy’s, Inc., 361 NLRB
No. 4, slip op. at 22–33 (2014) (Member Miscimarra, dissenting).
Rather, I would apply the Board’s traditional standards, including an
assessment of “‘whether the interests of the [petitioned-for] group . . .
are sufficiently distinct from those of other employees to warrant the
establishment of a separate unit.’” Wheeling Island Gaming, 355
NLRB 637, 637 fn. 2 (2010) (quoting Newton-Wellesley Hospital, 250
NLRB 409, 411–412 (1980) (emphasis in Wheeling Island Gaming));
see also Constellation Brands v. NLRB, 842 F.3d 784, 787 (2d Cir.
2016) (holding that before the Board may proceed to apply the “over-
whelming community of interest” standard, it must first determine
“whether the excluded employees ha[ve] meaningfully distinct interests
from members of the petitioned-for unit in the context of collective
bargaining that outweigh similarities with unit members”). Nonethe-
less, under either standard, I agree that a unit consisting of all techni-
cians at the four facilities is appropriate, and the parties so stipulated.
Indeed, as the Regional Director found, such a unit is the only appropri-
ate unit.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
uncertainty” as to the Union’s majority status.4 Accord-
ingly, the Regional Director directed an election among
the petitioned-for unit employees to determine whether
they wish to be represented by the Union. The election
was held in April 2015, and the ballots were impounded.
For the reasons stated below, I would affirm the Re-
gional Director’s decision, open and count the impound-
ed ballots, and issue the appropriate certification. My
colleagues disagree and, instead, reverse the Regional
Director’s decision and dismiss the RM petition, which
prevents the Board from even considering the results of
the election.
Discussion
It is hard to believe that the issues in this case have
been decided by the same Agency that, approximately 2
years ago, adopted an Election Rule that rewrote most of
the Board’s representation-election procedures, ostensi-
bly based on the importance of conducting elections at
the earliest date practicable, with the premise that the
Board would give effect to the election results to deter-
mine whether an employee majority supports union rep-
resentation.5 In the instant case, the prior union-
represented bargaining unit has been extinguished, and
there is only one existing bargaining unit, in which a
majority of employees have never been represented by
the Union. Moreover, the employer has not withdrawn
recognition, but rather has filed a petition seeking an
election to determine whether a majority of employees in
the sole existing unit favor union representation, and my
colleagues find that the outcome of the election should
be disregarded. Indeed, because the majority orders the
petition’s dismissal, we will never even know the out-
come of the election. For several reasons, I believe the
Board is required to uphold the Regional Director’s deci-
sion to process the petition, and the Regional Director
should be directed to open and count the impounded bal-
lots and issue the appropriate certification.
First, the facts bear out a plain truth: after restructur-
ing, the Employer’s work force consisted of an integrated
whole that combines the previously represented and un-
represented groups. As the Regional Director correctly

4 See Levitz Furniture Co. of the Pacific, 333 NLRB 717, 723
(2001) (the Board will process an RM petition if the employer can
demonstrate “reasonable good faith uncertainty” as to a union’s contin-
ued majority status). I did not participate in Levitz Furniture, and I
express no views on the merits of that decision. The Regional Direc-
tor’s previous determination was in her February 10, 2015 Order Reo-
pening Record and Notice of Representation Hearing.
5 For reasons not directly relevant to the disposition of the instant
case, I disagree with the Election Rule for reasons articulated at length
in the dissenting views that I jointly authored with former Member
Johnson. See 79 Fed. Reg. 74308, 74430–74460 (December 15, 2014)
(dissenting views of Members Miscimarra and Johnson).
determined, the prior unit of historically represented
technicians no longer exists, and the only appropriate
unit is one that includes all of the Employer’s technicians
at the four facilities. Indeed, the Regional Director found
that all technicians at the four facilities share an “over-
whelming community of interest.” As described in more
detail in the Regional Director’s decision, union and
nonunion technicians engage in significant interchange,
contribute equally to the Employer’s operations, and
share virtually identical terms and conditions of em-
ployment, including job duties, supervision, and wages
and benefits. Even under the Board’s strict Specialty
Healthcare standard,6 these facts preclude the appropri-
ateness of any unit that does not include all technicians.
See 357 NLRB at 943–945 (when community-of-interest
factors “overlap almost completely,” all employees must
be included in a single unit). Accordingly, if the Union
now sought to represent a unit limited to the group of
employees it has historically represented, such a peti-
tioned-for unit would be inappropriate as a matter of law.
The parties understand this new reality: they stipulated
that if the Board were to hold an election, a unit of all
technicians would be appropriate.
Second, I believe that my colleagues err by failing to
accord a further undisputed fact the weight it deserves:
the majority of technicians in the only appropriate unit
have never been represented by the Union. At the time
the Employer filed its petition, it employed 70 unrepre-
sented and 58 represented technicians. This disparity has
only grown. At the time of the hearing, nonunion techni-
cians outnumbered union technicians 89 to 51. For the
Employer to continue to recognize and bargain with the
Union would be inconsistent with Section 9(a) of the
National Labor Relations Act (the Act), which provides
for union representation only where the union has been
designated or selected for the purposes of collective bar-
gaining by the majority of employees in an appropriate
unit. As explained above, a unit limited to the historical-
ly represented employees within the merged unit is not
an appropriate unit. Moreover, recognizing and negotiat-
ing with a minority-supported union violates Section
8(a)(2) of the Act. See International Ladies’ Garment
Workers’ Union v. NLRB (Bernhard-Altmann), 366 U.S.
731 (1961).
Third, given these facts, I agree with the Regional Di-
rector that pursuant to Levitz, the Employer has demon-
strated a good-faith uncertainty as to the continuing ma-
jority status of the Union in the only appropriate unit.
Specifically, evidence that the former unit employees
have been consolidated into a numerically larger unrep-

6 I disagree with Specialty Healthcare, as indicated in fn. 3, supra.
ADT, LLC 9
resented group of employees, rendering the two groups
of employees indistinguishable, raises a question con-
cerning representation that can only be resolved through
an election in the new, consolidated unit. See Renais-
sance Center Partnership, 239 NLRB 1247 (1979); see
also Nott Co., 345 NLRB 396 (2005) (finding that em-
ployer lawfully withdrew recognition following consoli-
dation of represented employees with equal number of
unrepresented employees); Geo. V. Hamilton, 289 NLRB
1335 (1988) (finding that employer lawfully refused to
recognize union as representative of a consolidated unit
consisting of equal numbers of unrepresented and previ-
ously represented employees). In Renaissance Center
Partnership, supra, the Board, as here, was presented
with a situation in which the employer consolidated a
certified unit of represented employees with a greater
number of unrepresented employees. Finding the certi-
fied unit no longer appropriate, the Board directed an
election in the consolidated unit without requiring evi-
dence that the union had lost majority support in the cer-
tified unit. Renaissance Center Partnership compels the
same outcome here. 7 Because the historically represent-
ed unit is no longer appropriate, the Employer was not
required to present evidence that the Union had lost ma-
jority support among the historically represented em-
ployees. Instead, the Union’s majority status can only be
measured by reference to the entire appropriate unit, not
some segment of that unit. My colleagues therefore err
in dismissing the evidence of good-faith uncertainty dis-
cussed above and instead focusing on the fact that the
Employer provided no evidence that employees in the
prior certified unit “were dissatisfied with the Union, let
alone wished to no longer be represented by the Union.”
Under the circumstances presented here, such evidence is
not required to support an RM petition. 8
Fourth, directing an election pursuant to the Employ-
er’s RM petition also accords with the policy the Board

7 The majority vainly attempts to distinguish Renaissance Center
Partnership on the grounds that there, the union filed a unit clarifica-
tion petition seeking to include the newly consolidated employees,
which “opened the door” for the Board to direct an election in the con-
solidated unit. As noted infra, the Board has also found that continuing
claims by competing unions to represent portions of a merged unit that
are no longer appropriate separate units “opened the door” for an elec-
tion in the merged unit even though no union sought to represent all of
the employees in that unit. I believe that the Board should “open the
door” in this case as well.
8 Under Levitz, RM cases should be decided on “a case-by-case basis,”
333 NLRB at 729, and “regional offices should take into account all of
the evidence which, viewed in its entirety, might establish uncertainty
as to unions’ continued majority status,” id. at 728. In my view, this
case requires the Board to acknowledge the unusual circumstances here
rather than focusing on the Employer’s failure to provide the type of
evidence present in a standard Levitz case.
emphasized in Levitz—that “Board-conducted elections
are the preferred way to resolve questions regarding em-
ployees’ support for unions.” 333 NLRB at 723. To
further that policy, the Board in Levitz established differ-
ent standards governing when an employer may with-
draw recognition from a union and when it may file an
RM petition. In Levitz, the Board adopted a “stringent”
requirement that an employer may withdraw recognition
only if the union has actually lost majority support, while
at the same time adopting the “more lenient” “reasonable
good faith uncertainty” standard for RM petitions. Id.
The Board adopted this approach to encourage employ-
ers to pursue RM elections, which the Levitz Board
viewed as “a more attractive alternative to unilateral ac-
tion” because it promotes “both employee free choice . . .
and stability in collective-bargaining relationships.” Id.
at 727.9 The Employer here did precisely what Levitz
prescribes. The Employer had a reasonable good faith
uncertainty as to the continuing majority status of the
Union, it refrained from withdrawing recognition, and it
filed an RM petition seeking an election. In this respect,
today’s decision upsets the balance devised by the Board
in Levitz because future employers will be deterred from
taking the more measured approach adopted by the Em-
ployer when it sought an election by filing an RM peti-
tion instead of withdrawing recognition.
Abbot-Northwestern Hospital, 274 NLRB 1063
(1985), an unfair labor practice case on which my col-
leagues rely, illustrates the flaws in the approach they
adopt today. In representation proceedings predating this
case, the Board refused to process RM petitions filed by
the employer based on a merger of represented employ-
ees with a larger group of unrepresented employees into
a single unit similar to this case, on the grounds that the
union had made no cognizable demand for recognition.
Thereafter, in the cited case, the Board found that the
employer lawfully withdrew recognition from the union
because (1) the employer had no obligation to bargain in
the overall unit; (2) a unit limited to the formerly repre-
sented employees was inappropriate because they had
been merged into the larger employee group; and (3) the
Board lacked authority to order bargaining in an inap-
propriate unit. Had the Board processed the RM peti-
tions, the parties would have been spared the withdrawal
of recognition and ensuing litigation disputing that ac-
tion.10 The majority’s decision to follow that course here

9 Again, I express no views regarding the “actual loss of majority
support” standard adopted in Levitz for determining whether a with-
drawal of recognition is lawful.
10 The Board in Abbot-Northwestern Hospital noted that “[n]one of
[its] current members participated in those representation proceedings.
Id. at 1063 n.1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
not only places the Employer in a “challenging position,”
as my colleagues acknowledge, but also raises a real risk
of precisely the sort of disruption of commerce this
agency has been charged by Congress to prevent. See
National Labor Relations Act Section 1.
Fifth, my colleagues’ decision is also inconsistent with
the law in the related areas of successorship and accre-
tion. Under this law, the courts and the Board recognize
that (i) bargaining units may be materially altered or ex-
tinguished based on major business changes, such as the
integration of previously represented and unrepresented
employees as occurred here based on the Employer’s
2014 restructuring; (ii) the only appropriate unit follow-
ing such a transition may be the post-transition combined
group of employees; and (iii) a union’s representative
status, following such a transition, should turn on wheth-
er it has majority support in the posttransition unit. See
NLRB v. Burns Security Services, 406 U.S. 272 (1972)
(assuming substantial continuity between the predeces-
sor’s and successor’s business operations, successor em-
ployer must recognize and bargain with union that repre-
sented predecessor employer’s employees only if a ma-
jority of the successor’s work force in an appropriate unit
consists of represented employees previously employed
by the predecessor); Renaissance Center Partnership,
239 NLRB at 1247–1248 (where employer’s consolida-
tion of its security forces resulted in a single security-
guard work force in which unrepresented employees out-
numbered unit employees, the Board rejected the union’s
petition to clarify the unit by accreting the nonunion em-
ployees into the prior unit and instead ordered an election
because “only the overall security force of the
[e]mployer [was] now appropriate”); Nott Co., 345
NLRB at 401 (“[A]n employer is not obligated to contin-
ue to recognize and bargain with a union as the exclusive
bargaining representative of one group of employees
when that represented group is merged with an unrepre-
sented group in such a manner that an accretion cannot
be found and the original represented group is no longer
identifiable.”).
Finally, I disagree with my colleagues’ view that the
election is inappropriate on the grounds that the Union
never sought to represent the merged group of techni-
cians.11 Here, my colleagues contend that the Union “has

11 Sec. 9(c)(1)(B) provides that where a petition is filed “by an em-
ployer, alleging that one or more labor organizations have presented to
him a claim to be recognized as the representative defined in section
9(a) . . . the Board shall [process the petition].” The legislative history
of Sec. 9(c)(1)(B) reveals a narrow congressional focus on a concern
that is absent here. Congress “recognized that there was a potential for
abuse in giving employers expanded rights to petition for an election, in
that employers might file petitions early in organizational campaigns in
an effort to obtain a vote rejecting the union before the union had a
never sought to represent the unrepresented technicians.”
However, this contention is contradicted by the Union’s
claim in a different proceeding (Case 16–CA–144548) to
be recognized on behalf of the Employer’s “newly hired”
unit employees.12 My colleagues also give no weight to
the Union’s demand for a private, non-Board election
among the former Broadview technicians and for their
inclusion in the certified unit if they vote for representa-
tion, as well as the Union’s lawsuit filed in federal dis-
trict court seeking to enforce an alleged agreement to
conduct this private election.13 Moreover, to the extent
the Union continues to demand recognition, this inescap-
ably involves a claim for recognition as the representa-
tive of the combined unit, which is the only bargaining
unit that remains in existence because the prior unit con-
sisting of the previously represented technicians has been
extinguished. These considerations are more than suffi-
cient to satisfy the statutory requirement of “a claim to be
recognized,” and it exalts form over substance to find
that the Union has not demanded recognition on behalf
of the combined unit. In fact, had the Union filed a peti-
tion to clarify the unit to include the former Broadview
technicians, the Board would have directed an election in
the overall consolidated unit. Renaissance Center Part-
nership, above.
Citing Postal Service, 256 NLRB 502 (1981), my col-
leagues contend that even if the Union’s historical unit is
no longer appropriate, the Employer cannot “force” the
Union into an election in a broader unit unless the Union
explicitly seeks to represent all the employees in the

reasonable opportunity to organize.” New Otani Hotel & Garden, 331
NLRB 1078, 1078 (2000). I believe that my colleagues’ inflexible
application of Sec. 9(c)(1)(B) is further misguided because the concerns
that prompted the statutory mandate are not present here.
12 Because the number of non-union technicians has increased while
the number of union technicians has decreased, I believe that the Un-
ion’s claim to represent “newly hired” employees reasonably included
employees outside of the historical unit.
13 Invoking a version of the “slippery slope” argument, the majority
contends that the Union’s demand for this election should not be treated
as a “claim to be recognized” as the representative of the former
Broadview technicians because otherwise a union that seeks a self-
determination election to add an unrepresented group of employees to
an existing unit could always be forced into an election in the combined
employee group. I disagree. In cases where, unlike here, the existing
unit remains appropriate without the inclusion of the unrepresented
employees, neither the union’s claim to be recognized as the repre-
sentative of the existing unit nor the filing of a petition for a self-
determination election for the unrepresented employees creates a ques-
tion concerning representation in either the existing unit or in an overall
unit. In those circumstances, an election in the overall unit would not
only be unwarranted, it would deprive the unrepresented employees of
their opportunity to express their wishes concerning representation,
which is the purpose for holding a self-determination election in the
first place. Here, however, the existing unit does not remain appropri-
ate, and the only appropriate unit is the merged unit.
ADT, LLC 11
larger unit. But the Board in that case specifically
acknowledged that such an election would be appropriate
where a merger of units “trigger[s] the need for the RM
petition.” Id. at 504. In support of that point, the Postal
Service Board cited several cases where the Board di-
rected an election in an overall unit despite the fact that
“there has been no demand for representation by one
Union in an overall unit.”14 Instead, the continued de-
mand by competing unions to represent some of the em-
ployees in the merged unit was sufficient to warrant pro-
cessing the RM petition where “there [was] no basis on
which the employees who are members of the separate
Unions could be deemed to be appropriate separate
units” and all of the employees “appropriately belong in
the same unit.” Boston Gas, supra, 221 NLRB at 629.
Even though this case does not involve competing un-
ions, I believe that, as in Boston Gas and other cases cit-
ed above, the Union’s claim to represent employees in a
merged unit who could not appropriately be separately
represented is a claim for representation in the overall
unit in the circumstances presented here.

14 Boston Gas Co., 221 NLRB 628, 629 (1975) (directing election in
merged unit of customer service employees who had formerly been
represented by different unions in separate units where neither union
claimed to represent entire unit). See also Westinghouse Electric
Corp., 144 NLRB 455 (1963) (directing election in merged unit of
maintenance employees who had formerly been represented by differ-
ent unions in separate units where neither union claimed to represent
entire unit); Massachusetts Electric Co., 248 NLRB 155 (1980) (direct-
ing election in merged unit of “physical” employees who had formerly
been represented by different unions in separate units where neith The
Denver Publishing Co., 238 NLRB 207 (1978), where an election was
directed in a merged unit of electronic maintenance employees who had
formerly been represented by different unions in separate units, where
both unions “currently” disclaimed an interest in representing all the
employees. I believe that these cases, rather than Postal Service, supra,
are more apposite to the situation presented here.
Conclusion
The only appropriate unit that exists here is one that
includes all technicians employed by the Employer at all
four facilities. If the Union wishes to continue its repre-
sentative status, this necessarily requires the Union to
seek recognition on behalf of all technicians. To the ex-
tent the Union is only willing to represent the subset of
technicians that it has historically represented, this is
tantamount to a disclaimer of interest in representing the
Employer’s technicians because the prior bargaining unit
has been extinguished. Obviously, the Union continues
to claim a right to recognition. In the circumstances pre-
sented here, the only conceivable way that the Union can
claim representative status is to have majority support in
a unit consisting of all technicians at all four facilities.
This makes it appropriate to process the RM petition and
to give effect to the results of the election. As noted
above, employees in the combined unit have now cast
their ballots expressing their wishes concerning represen-
tation. By reversing the Regional Director, my col-
leagues extinguish the right of the employees, the Union
and the Employer to have the ballots counted. This is the
opposite of what Congress contemplated that the Board
should do when resolving a question concerning repre-
sentation. Accordingly, I respectfully dissent.
Dated, Washington, D.C. May 17, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD