ADT, LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 16, 2018

16-CA-144548 (N.L.R.B. Nov. 16, 2018)

JD–74–18
Forth Worth, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ADT, LLC
and Cases 16–CA–144548
16–CA–168863
16–CA–172713
COMMUNICATION WORKERS OF AMERICA, 16–CA–179506
AFL-CIO 16–CA–180805
16–CA–181198
16–CA–187487
Art Laurel and Maxie Gallardo, Esqs., 16–CA–191963
for the General Counsel. 16–CA–199947
Jeremy Moritz and Norma Manjarrez, Esqs. (Ogletree Deakins, P.C.), 16–CA–200961
for the Respondent. 16–CA–209070
Matthew Holder, Esq. (David Van Os & Associates, P.C.), 16–CA–209995
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT A. RINGLER, Administrative Law Judge. This case was heard in Fort Worth,
Texas over several days in March, April and May 2018. The complaint alleged that ADT, LLC
(ADT or the Respondent) violated the National Labor Relations Act (the Act) by, inter alia:
making various threats; firing Arthur Whittington because of his protected activities; refusing to
apply its contract with the Communication Workers of America (the Union) to new hires in the
bargaining unit; withdrawing Union recognition; making several unilateral changes in working
conditions; and by neglecting several valid Union information requests.
On the entire record, including my observation of the witnesses’ demeanors and
consideration of post-hearing briefs, I make the following
FINDINGS OF FACT1
I. JURISDICTION
At all material times, ADT,2 a corporation with several Dallas–Fort Worth (DFW) area
facilities, has sold, installed and serviced security systems. Annually, it purchases and receives
at its DFW facilities goods worth more than $50,000 directly from out–of–state locales. It, thus

1 Unless otherwise stated, factual findings arise from joint exhibits, stipulations, and undisputed evidence.
2 ADT was previously owned by Tyco International (Tyco). (CP Exh. 7). In 2012, ADT and Tyco separated.
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admits, and I find, that it is an employer engaged in commerce, within the meaning of §2(2), (6)
and (7) of the Act. It also admits, and I find, that the Union is a §2(5) labor organization.
II. ALLEGED UNFAIR LABOR PRACTICES3
5
A. Background
ADT’s servicemen travel to DFW jobsites to install and service security systems. They
are unionized. Their long-term bargaining relationship was memorialized in a collective-
bargaining agreement that ran from May 29, 2011 to May 28, 2014 (the 2011–14 CBA). (GC 10
Exh. 4). It described the Union as the exclusive representative of this unit (the Unit):
[A]ll servicemen employed by … [ADT] … at its [DFW] facilities; excluding
operators, office clerical employees, salesmen, confidential employees, alarm
service investigators, supervisors, relief service supervisors and guards ….15
(Id. at Art. 1). This litigation stems from a chronology of events, which is outlined below:
Date Description Pled as
Unlawful
Found
Unlawful
2010 ADT acquires Brinks Home Security Holdings, Inc., i.e., a non-Union security
firm employing servicemen doing the same work as the Unit in the DFW region
(the Brinks group). ADT kept these equally-sized groups (i.e., 48 in the Unit
and 49 in the Brinks group) separate.
No N/A
2010 to
Sept.
2014
ADT hires more servicemen. It places some in the Unit, and others in the non-
Union Brinks group (i.e., by the end of Sept. 2014, there were 57 in the Unit
and 78 in the Brinks group).
No N/A
Sept.
2014
ADT stops placing new servicemen in the Unit, and greatly accelerates its
hiring in the Brinks group. This results in the Brinks group becoming the
overwhelming majority of servicemen (i.e., by 2017, there were 51 in the Unit
and 152 in the non-Union Brinks group).
Yes Yes
Sept.
2014
ADT reorganizes its workforce, commingles the Unit and Brinks groups, and
places all servicemen under equivalent working conditions.
No N/A
May
2017
ADT asserts that, because the Brinks group now outnumbers the Unit by a 3 to
1 ratio, and all servicemen perform the same jobs, are intermingled and work
under equivalent conditions, the Unit’s discrete identity has been lost and
withdrawal of recognition is warranted.
Yes Yes
B. 2010 – Brinks Acquisition20
In May 2010, ADT, which employed the DFW Unit, acquired Brinks, which employed
the Brinks group (i.e., non-Union servicemen performing the same security work in the same
DFW market).4 (CP Exh. 7). This resulted in ADT maintaining Unit facilities in Carrollton and
Halthom City, and non-Union Brinks facilities in Mesquite, Irving and South Loop. 25

3 Judicial notice is taken of ADT, LLC, 365 NLRB No. 77 (2017) (i.e., a connected litigation involving an RM
petition in the same bargaining unit), which involves many of the same undisputed facts at issue herein.
4 Brinks operated a security system business called Broadview Security (Broadview).
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C. 2014 – ADT’s Integration of the Unit and Brinks Groups
On February 3, 2014, ADT reorganized its DFW operations. It relocated its Carrollton
office to a new Carrollton address, created 2 new facilities in Tyler and Trinity, retained its
Halthom City office, and closed 3 former Brinks offices in Mesquite, Irving and Fort Worth. 5
These changes resulted in the Brinks servicemen being integrated with Unit servicemen at all
DFW offices,5 with the exception of Tyler, which remained solely staffed by Unit servicemen.
Following this reorganization, all DFW servicemen, whether included in the Unit or not:
performed the same assignments under constant working conditions; generally enjoyed
comparable wages,6 benefits, and work hours; possessed the same skills and overall experience; 10
utilized the same tools, equipment, and vehicles to perform their tasks;7 were employed in the
same geographic region under the same conditions;8 and were subject to the same supervision,
overall management and policies.9 ADT, supra, slip op. at 1–2.
D. RM–Petition Filing15
On February 5, 2014, ADT emailed the Union and raised concerns regarding its ongoing
majority status. On March 3, 2014, ADT filed an RM–petition with Region 16 of the National
Labor Relations Board (the Board), which sought an election in a unit of all DFW servicemen
(i.e., the extant Unit and the Brinks group). Following a hearing, Region 16 found that an 20
election was warranted amongst all servicemen. This decision was appealed to the Board.
E. ADT’s Placement of Newly-Hired Servicemen Outside of the Unit
Following the Brinks acquisition, ADT’s DFW servicemen workforce grew 25
exponentially. This chart demonstrates this growth and the placement of new servicemen hires:
Year Union Non-Union (i.e., Brinks group)
2010 48 49
2011 53 49
2012 57 58
2013 57 67
2014 (before 9/2014) 57 78
2014 (after 9/2014) 57 (0 more after 9/2014) 97 (21 more after 9/2014))
2015 56 (1 less after 9/2014) 117 (41more after 9/2014))
2016 51 (6 less after 9/2014) 134 (56 more after 9/2014))
2017 51 (6 less after 9/2014) 152 (74 more after 9/2014))
2018 51 165

5 As a result of ADT combining its Union and non-Union servicemen at the Carrollton, Halthom City and Trinity
offices, the majority of the servicemen at these offices were not members of the historical Unit.
6 Although their method of compensation differs, overall wages are comparable.
7 Assignments depend upon one’s residence and operational issues.
8 Employees from different offices periodically work together. There are transfers between offices.
9 Labor Relations Manager James Nixdorf testified that ADT’s historical Unit employees and the Brinks group had
similar wages, jobs, tools and equipment, and were held out to the public as an interchangeable group. He added
that they were regulated by a single human resources department, and shared the same community of interest. He
stated that they were supported by a single management team, and received the same assignments in the same area.
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(R. Exhs. 8-9; and R. Exh. 3(from Case 16-RM-123509)).10 The above chart demonstrates that,
while the Unit grew from 48 to 51 employees from 2010 to 2018 (i.e., by 6%), the Brinks group
grew from 49 to 165 employees during the same period (i.e., by 337%). ADT failed to explain
why it grew its workforce in this manner, although this strategy clearly buffered its legal theory.
5
F. RM–Petition Dismissal
On May 17, 2017, the Board dismissed ADT’s RM-petition. ADT, supra. ADT
subsequently filed a motion for reconsideration, which was similarly denied.
10
G. ADT’s Withdrawal of Recognition
On May 31, 2017, ADT refused to recognize the Union as the Unit’s representative.
(R. Exh. 11). At that time, the parties were bargaining for a successor agreement. (R. Exh. 7).
15
H. Whittington Discharge
1. Background
In 2001, ADT hired Whittington as a serviceman. He was continuously employed until 20
July 2016, when he was fired for exceeding his allotted lunch break. Manager Derek Roberts
was his direct supervisor. Whittington had extensive Union activity; he filed grievances, aided
arbitrations,11 served as an election observer, was a steward,12 and bargaining team member.13
2. Prior Discipline25
On January 26, 2016, ADT issued Whittington a verbal writing warning for failing to
follow instructions. (GC Exh. 34). On April 4, 2016, ADT issued him a written warning for
unsatisfactory work. (GC Exh. 33).
30
3. Termination Summary Template
On July 13, 2016, Whittington was discharged for “fraud, falsification of company
records, falsification of information, [and] misstatement of facts … while on duty,” on the basis
of these incidents: 35
During an audit of timecards, … [he]claimed 30 minutes for lunch each day but
did not claim the drive time to his home where he was taking his lunch. Going
home each day was out of his way and not close to his assigned jobs. On 6/1/16,
lunch and drive time totaled 99 minutes, 6/8/1, 70 minutes, 6/10/16, 104 minutes, 40
6/14/16, 78 minutes, 6/17/16, 64 minutes, and 6/20/16, 53 minutes….

10 Judicial notice has been taken of the underlying record and exhibits in Case 16-RM-123509.
11 See, e.g., (GC Exhs. 27, 31).
12 He was the lead shop steward, and estimated that, in 2015 and 2016, he filed 50 grievances.
13 He attended 10 negotiating sessions in 2016 before his firing, and 3 sessions thereafter.
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(GC Exh. 32).
4. Lunch Duration
As an initial matter, in order to determine whether Whittington exceeded his lunch, it is 5
first necessary to determine how long his lunch was. The 2011-14 CBA covers this issue and
states that Unit employees receive “a one (1) hour lunch period … between 11:00 a.m. and 2:00
p.m.” (GC Exh. 4 at Art. 6). ADT’s legal counsel conceded this point.14 Brief at 8, fn. 6.
5. The Witnesses 10
a. ADT’s Stance
Roberts testified that he accidentally uncovered Whittington’s lunch violations, while
looking over job reports. He stated that he noted lengthy drive times for Whittington on certain 15
dates, which led him to discover that he was stopping at home for lunch and lingering.
Following this discovery, he emailed Human Resources Director Carolyn Vassey on June 16,
2016, and lobbied for Whittington’s firing. (R. Exh. 2). Vassey directed him to gather
supporting documents, which he did. (R. Exh. 5). Prior to meeting with Whittington, he accrued
GPS and other records of his travel times and whereabouts.15 (R. Exhs. 4–5). 20
On June 30, 2016, Roberts summoned Whittington to an investigatory meeting, where he
was suspended pending investigation. He recollected Whittington speculating about his actions,
but, generally failing to offer a concrete explanation.16 Roberts contended that lunch begins
when you leave a customer’s house, but, acknowledged that he has not directly discussed lunch 25
stop and start times with his subordinates. Although Roberts acknowledged that he never
traveled the routes at issue to observe if there were construction delays or other traffic issues, he
said that the insufficiency of Whittington’s excuses and recall, and the supporting documentation
showing that he exceeded his lunch break merited dismissal.
30
Roberts noted that Whittington claimed that drive time was not included in his lunch
period, and denied breaching any policy. (GC Exh. 32). He also reported that a “random sample
of four service techs was reviewed for … June ….[and] each tech had one day where they failed
to enter their lunch period on their timecard, but, no other discrepancies …. [and] appropriate
coaching will be done.”17(Id.). He noted that he reviewed Whittington’s driving records to 35
gauge if it was a one-time or multiple-time event before considering his termination, and
concluded that he was a repeat offender, who warranted discharge.

14 This is a surprisingly murky point in the record. First, Whittington’s time cards always (i.e., on days at issue and
days not) record a 30-minute lunch, instead of the contractual hour. There is no explanation for this anomaly.
Second, both employees Skelton and Whittington credibly testified that management told them that lunch was only
30 minutes. There was, again, no explanation. These facts are noted, but, outweighed by the 2011-14 CBA and
counsel’s concession.
15 Data was derived from company vehicles, which are equipped with GPS and tracking systems.
16 He denied that Whittington raised his diabetes or a need to check his blood sugar levels at home as a rationale.
17 This memo failed to note that these employees had their GPS checked in the same manner as Whittington, and
whether any conclusions were reached. It also acknowledged that these employees were only coached, as opposed
to terminated, as was the case with Whittington.
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Labor Relations Manager Nixdorf testified that Whittington’s actions were intentional
and merited removal. He denied knowing that he had diabetes when he was fired. He averred
that driving time counted towards lunch, unless lunch was en route to the next assignment.
b. GC’s Position5
Whittington said that he was blindsided by the June 30 meeting. He said that, when
Roberts asked him about his lunch usage, he speculated that he might have faced road delays,
but, was unsure about specifics due to the passage of time. He agreed, however, that he
occasionally went home for lunch due to his diabetes and need to check his blood sugar levels,10
which management knew about. He said that, even though management told him that lunch was
30 minutes, he still took up to an hour under the 2011-14 CBA. Employees Lindner, Skelton and
Whittington testified that lunch began when one arrived at their lunch stop (i.e., not when you
left your last assignment).
15
6. Dates at Issue
ADT terminated Whittington for exceeding his allotted lunch on June 1, 8, 10, 14, 17 and
20. Although the validity of his discipline is evaluated in the Analysis section below, it is worth
noting that his discipline is premised upon 2 bases: (1) he exceeded his allotted lunch; and (2) in 20
doing so, his drive time to his break destination counts towards lunch.18
a. June 1, 2016
On this date, he was accused of taking a 99-minute lunch. (GC Exh. 32). Records show 25
that he left his assignment at Texas Drive Auto in Dallas at 11:14 am and arrived in Richardson
at 1:24 pm for his next assignment (i.e., 130 minutes later). (R. Exh. 5). Given that his drive
between assignments was 30 minutes,19 if his 60 minute lunch were added in, he went over his
lunch by 40 minutes on this date (i.e., not including drive time to lunch),20 which is excessive.
30
b. June 8, 2016
On this date, he was accused of taking a 70-minute lunch. (GC Exh. 32). Records show
that he left Monta Ramen Restaurant in Richardson at 12:44 p.m., stopped at home, and arrived
at Fuzzy’s Taco Shop in Lewisville at 2:24 p.m. (i.e., 100 minutes later). (R. Exhs. 2, 5). 35
Google Maps shows that, if he proceeded directly from Monta Ramen to Fuzzy’s, he would have
driven for 32 minutes. (Id.). Thus, if his 60 minute lunch and valid 32 minute commute are
added, he could have properly expended 92 minutes between assignments. Although his 100-
minute hiatus between assignments went over by 8 minutes (i.e., not including drive time to
lunch), this was reasonable.2140

18 This section evaluates whether he exceeded his allotted 1-hour lunch; the drive time issue is subsequently
evaluated in the Analysis sections under unilateral changes.
19 Judicial notice is taken of https://www.mapquest.com/directions to calculate route distance.
20 He did not stop at his home address on this date.
21 An 8-minute delay in a major urban area such as Dallas, where traffic periodically arises, is not unreasonable.
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c. June 10, 2016
On this date, he was accused of taking a 104-minute lunch. (GC Exh. 32). Records show
that he left Leann Bridal in McKinney at 10:47 a.m., stopped at home,22 and arrived at SFMG
Wealth Advisors in Plano at 1:01 p.m. (i.e., 134 minutes later). (R. Exhs. 1, 2, 5). Google maps 5
shows that the direct route from Leann Bridle to SFMG is 30 minutes. (Id.). Thus, if his 60
minute lunch and valid 30 minute commute are added, he could have reasonably expended 90
minutes between assignments. However, he took 134 minutes, which went over his allotted
lunch by 44 minutes (i.e., not including drive time to lunch), which was clearly excessive.
10
d. June 14, 2016
On this date, he was accused of taking a 78-minute lunch. (GC Exh. 32). Records show
that he left Linda Parker, MD in Allen at 11:11 a.m., stopped at home,23 and arrived at Flag
Systems in Farmers Branch at 1:07 p.m. (i.e., 110 minutes later). (R. Exhs. 2, 5). Parker was 32 15
minutes from Flag Systems,24 which means that, if his 60-minute lunch were included, he went
over his lunch by 18 minutes, which is not excessive, given the likelihood of driving delays.
e. June 17, 2016
20
On this date, he was accused taking a 64-minute lunch. (GC Exh. 32). Records show
that he left Envision Imaging in McKinney at 11:57 a.m. and arrived at Sassy Beauty in Dallas at
1:37 p.m. (i.e., 100 minutes later).25 (R. Exhs. 2, 5). Envision Imaging is 37 minutes from Sassy
Beauty,26 which means that, if his 60-minute lunch were included, he would have gone over his
lunch by 3 minutes, which was reasonable. 25

f. June 20, 2016
On this date, he was accused of taking a 53-minute lunch.27 (GC Exh. 32). Records
show that he left Kilburn Investment in Frisco at 10:36 a.m. and arrived at Kula Sushi in Plano at 30
11:56 a.m. (i.e., 90 minutes later).28 (R. Exhs. 2, 5). Kilburn Investment is about 24 minutes
from Kula Sushi,29 which means that, if his 60-minute lunch were included, he would have gone
over his lunch by 6 minutes, which does not appear excessive.
35

22 ADT received a Geofence alert showing that he went to his home address during work hours. (R. Exh. 5).
23 ADT received a Geofence alert showing that he went to his home address during work hours. (R. Exh. 5).
24 Judicial notice is taken of https://www.mapquest.com/directions to calculate route distance.
25 He did not stop at home on this date.
26 Judicial notice is taken of https://www.mapquest.com/directions to calculate route distance.
27 Given that lunch is an hour, it’s unclear why he was even disciplined for a 53-minute lunch. However, as will be
discussed, his time usage was nevertheless reasonable on this date.
28 He did not stop at home on this date.
29 Judicial notice is taken of https://www.mapquest.com/directions to calculate route distance.
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g. Summary
In sum, although ADT fired Whittington for exceeding his lunch on June 1, 8, 10, 14, 17
and 20, the records reveal that he only acted unreasonably on June 1 and 10, and acted
reasonably on the other days at issue. This assessment does not consider whether Whittington 5
was permitted to use reasonable additional time to address his diabetes, or whether drive time to
a reasonably-distanced lunch stop is properly excluded from one’s 1-hour lunch, which are 2
additional factors that turn in Whittington’s favor, as described in the Analysis section.
I. Information Requests10
1. October and December 2014 Requests
In October, Whittington asked ADT for new hire information. In December, Union
Representative Kevin Kimber reiterated this request, and asked for new hire list with seniority 15
dates. On December 19, Kimber requested a list of Unit and non-Unit Brinks servicemen.
(CP Exh. 1). On the same date, Nixdorf asked why this information was relevant. (GC Exh. 8,
R. Exh. 12). There is no evidence that ADT replied, beyond Nixdorf’s query.
2. October 29, 2015 Request20
Union Representative Jerell Miller asked for this data regarding pending grievances:
i. The reasons for the company decision … complained of in the grievance.
ii. All company policies that the company contends support the decision ….25
iii. All documents … reviewed … [in] making the company decision ….
iv. All documents … relied upon … [in] making the company decision ….
v. Specification of all … agreement terms … relied on ….
vi. Specification of … bargaining history that the company relied on ….
vii. Any … bargaining history records … relied on …. 30
viii. Any … arbitration awards that the company relied on ….
ix. Specification of … past practices relied upon ….
x. Any … records of past practices relied upon by the company ….
xi. Any … employee training records relating to the company decision ….
xii. If the company contends that the grievance is not … arbitrable, 35
specification of … reasons for such contention.
(GC Exhs. 9-18). ADT did not reply to this request.
3. October 30, 2015 Request40
Miller asked ADT for this information on Brian Sauser’s disciplinary grievances:
[The] … policy under which … [he] was suspended/terminated….
[G]uidelines, … utilized … in evaluating [his] … request for … leave …. 45
[G]uidelines, … concerning … rules for attendance; ….
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[All] performance evaluations ….
[All] commendations received … from … supervisors, and customers ….
[A]ttendance records for the two years prior to the … suspension/termination; ….
[T]he Grievant's personnel file; and ….
[D]ocuments stating … all reasons [behind his termination]….5
[A]ll documents relied upon … in reaching the company decision ….
(GC Exh. 19). ADT did not reply.
4. November 19, 2015 Request10
Miller requested this information on another pending grievance:
i. The reasons for the company decision ….
ii. All company policies that … support the decision …. 15
iii. All documents … reviewed … [in] making the company decision ….
iv. All documents … relied upon … [in] making the company decision ….
v. … [A]ll … agreement terms … relied on in … the company decision ….
vi. … [A]ll bargaining history … relied on in … the company decision ….
vii. … [A]ll bargaining … records … relied on …. 20
viii. … [P]ast practices relied upon … in reaching the company decision ….
ix. … [R]ecords of past practices relied upon ….
x. [All of ADT’s] reasons [and defenses, if any, regarding arbitrability]….
(GC Exh. 20). ADT did not reply.25
5. January 8, 2016 Request
The Union sought personnel records for Chad Short. (GC Exh. 22). ADT did not reply.
30
6. July 15 and 27, 2016 Requests
On July 15, the Union sought these documents connected to Whittington’s firing:
i. All … records … [of] work performance … [for the last] 2 years ….35
ii. All … records … [of] conduct … [for the last] 2 years ….
iii. … [A]nnual performance appraisals … [for the last] 3 [years] ….
iv. A list of all employees … interviewed ….
v. A list of all … [non] employees … interviewed ….
vi. All … arbitration awards … relied on in reaching the decision …. 40
vii. All non-company documents … relied on in reaching the decision ….
viii. A list of all other employees in the … [DFW] area who have been
disciplined … for … similar reasons within the past … 3 … years.
(GC Exh. 23). On July 27, it also sought this information for Whittington:45
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i. What technology … track[s] … [Unit] employees while on the job?
ii. Is the employee's location determined by a device on the … truck?
iii. Is the employee's location determined by … a Company issued phone?
iv. Is the employee's location determined by … a Company issued laptop?
v. Is there more than one device tracked for each employee? 5
vi. If … tracking [occurs by] ... alternative means, … specify that technology.
vii. How is this information tabulated?
viii. … [[C]opies of … data collected during … April, May and June of 2016
for … [Unit] employees….
10
(GC Exh. 24). ADT partially replied on July 22 and August 9, 2016. (R. Exhs. 13–14).
7. March 23, 2017 Request
The Union requested this information regarding subcontracting of Unit work: 15
i. [From 2015 to 2017] … dollars spent on [DFW] subcontracting ….
ii. … [For a]ll [DFW] subcontractors … [in these years]:
a. The number of contracts
b. The total cost of each contract 20
c. The type of work performed
d. The reason for such subcontracting
e. The number of hours worked on each subcontract
f. The criteria used to evaluate … job bids ….
iii. Provide criteria for acceptance of work by each subcontractor. 25
iv. Provide … [the] nature of work and geographic location.
v. Provide … all analyses of contract labor work quality and productivity.
(GC Exh. 25). ADT did not reply.
30
8. March 24, 2017 Request
The Union requested the following in connection with an arbitral award:
i. Identify all persons … employed by ADT … perform[ing] security system 35
installation and repair in the … [DFW region] ….
ii. Payroll records … for [such] employees …. from January 1, 2014 to the
date of this request.
iii. The quarterly Texas Workforce Commission Form C-3 filings … for
[such] employees … from January 1, 2014 to the date of this request.40
iv. … [S]ummary plan descriptions for health and welfare benefits provided
to [such] employees … from January 1, 2014 to the date of this request.
v. For each SPD produced …, identify … [the applicable] employees ….
vi. … SPDs for pension and/or retirement benefits provided to employees in
[DFW] … who performed security system installation and repair from45
January 1, 2014 to the date of this request.
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vii. For each SPD produced …, identify … [the applicable] employees ….
(GC Exh. 26). ADT did not reply.
J. December 15, 2015 Meeting5
ADT Manager Roberts acknowledged that he told Unit employees at a December 2015
training meeting that, if they didn’t like what he was saying, they could leave and find other jobs.
He recalled adding that, if they did not like ADT, there were plenty of other employers hiring.
(Tr. 58). He recalled making this comment in relation to complaints about assignments. 10
Employees Lindner, Bieker, and Skelton corroborated Roberts’ account.
K. May 20, 2016 Meeting
Employees Bieker and Skelton testified that, on this date, manager Andy Shedd stated at 15
a meeting in response to complaints about sick leave policy that, if you don’t like it, you can
leave. Roberts did not recall this statement. For several reasons, I credit Bieker and Skelton and
find that Shedd made this comment. First, they were credible witnesses, with strong demeanors
and recollections, who testified in straightforward and consistent manners. Second, Roberts had
a poor recollection of this meeting. Finally, Shedd was not called to deny the comment.3020
L. August 2017 Meeting
Employees Grinnell and Skelton testified that, at a training meeting, supervisor Raymond
said that employees would not receive raises because of the Union contract. Roberts did not 25
recollect this comment. I credit Grinnell and Skelton. First, they were each credible and
consistent witnesses, with strong demeanors. Second, Roberts had a poor recollection of the
meeting. Finally, Raymond was not called to deny the comment. Douglas Aircraft, supra.
M. Unilateral Changes30
The complaint alleges that ADT made unilateral changes in the Unit’s terms and
conditions of employment. Some changes occurred before the withdrawal of recognition and
some after. Although that ADT failed to notify the Union or bargain over these changes, it
asserts that it was contractually permitted to enact certain changes, it did not change anything in 35
other cases, and it validly made most changes after lawfully withdrawing recognition.
1. Pre-Withdrawal of Recognition Changes
a. May 2016 – Sick Leave40
Employees Bieker and Lindner said that ADT previously let workers use sick leave with
an hour’s notice of their intended absence and that there was no doctor’s note requirement. They

30 See Douglas Aircraft Co., 308 NLRB 1217 (1992) (failure to call a witness “who may reasonably be assumed to
be favorably disposed to the party, [supports] an adverse inference … regarding any factual question on which
the witness is likely to have knowledge.”).
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said that, in May 2016, ADT began requiring a doctor’s note. ADT acknowledges this change.
b. May 2016 – Lunch Breaks
Employees Lindner and Bieker said that ADT changed its lunch break policy from one 5
where a break began once employees arrived at their meal destination (i.e., the commute from
your assignment to a lunch destination did not count) to one where lunch began once you left
your last assignment. ADT disputed making this change; Nixdorf testified that lunch always
began when you left your assignment. For several reasons, I credit employees Lindner and
Beiker. First, they were stellar witnesses with strong demeanors. Second, Nixdorf appeared less 10
than credible. He seemed to be more concerned with advocating ADT’s labor relations stance
than providing a candid account. Finally, if the lunch start time procedure were as well-
entrenched, ADT claims, it would surely have been able to produce documents supporting its
allegedly concrete past practice, which it conspicuously failed to do.
15
2. Post-Withdrawal of Recognition Changes
After withdrawing recognition, ADT made these undisputed unilateral changes: it
stopped providing separate vacation and sick leave banks, and combined all leave into a single
paid time off (PTO) bank; it reduced bereavement leave from 5 to 3 days; it changed its pay 20
policies to reward customer upsells, create new sales quotas, and implement discipline for
missed quotas; it stopped processing grievances; it ceased deducting Union dues from
paychecks; and it changed pay periods from weekly to biweekly.
III. ANALYSIS25
A. §8(a)(1) Allegations
1. December 15, 2015 (Roberts’ Threat)31 and May 20, 2016 (Shedd’s Threat)32
30
Roberts and Shedd violated the Act. Roberts told employees that, if they didn’t like
ADT’s assignment policy, they should leave. Shedd related that, if workers didn’t like the sick
leave policy change, they should resign. Such commentary is unlawful, and is treated as an
implicit discharge threat of discharge. See, e.g., Ozburn-Hessey Logistics, LLC, 366 NLRB No.
177, slip op. at 1 (2018); McDaniel Ford, Inc., 322 NLRB 956 (1997). 35
2. August 2017 – Raymond’s Comment33
Raymond unlawfully told employees that they could not receive raises because of the
Union contract. An employer violates the Act, when, “it advises employees that it will withhold 40
wage increases or accrued benefits because of union activities.” Invista, 346 NLRB 1269, 1270
(2006); Earthgrains Baking Cos., 339 NLRB 24, 28 (2003).

31 This allegation is listed under complaint pars. 7 and 32.
32 This allegation is listed under complaint pars. 8 and 32.
33 This allegation is listed under complaint pars. 9 and 32.
JD–74–18
13
B. §8(a)(3) Allegations34
ADT unlawfully fired Whittington. The GC made a prima facie showing. ADT failed to
show that it would have taken such action, absent his protected activity.
5
1. Legal Precedent
The framework for analyzing whether discipline violates §8(a)(3) is set out in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), which requires the GC to show, by a preponderance of the evidence, that protected 10
conduct was a motivating factor in the adverse action. This initial burden is met by showing
protected activity, employer knowledge and animus. If the GC meets this showing, the burden
shifts to the employer to prove that it would have taken the same adverse action, absent the
protected activity. Mesker Door, 357 NLRB 591–592 (2011). The employer cannot meet its
burden, however, merely by showing that it had a legitimate reason for its action; rather, it must 15
demonstrate that it would have taken the same action, absent the protected conduct. Bruce
Packing Co., 357 NLRB 1084, 1086, 1087 (2011). If the employer's proffered reasons are
pretextual (i.e., either false or not actually relied on), it fails to show that it would have taken the
same action for those reasons regardless of the protected conduct. Metropolitan Transportation
Services, 351 NLRB 657, 659 (2007). Further analysis is, however, required if the defense is 20
one of “dual motivation,” that is, the employer defends that, even if an invalid reason might have
played some part in its motivation, it would have still taken the same action for permissible
reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005).
2. Prima Facie Case25
The GC made a prima facie showing that Whittington’s protected activity was a
motivating factor. He was a shop steward, grievance-filer, election observer, arbitral advocate,
and bargaining team member. ADT was aware of these activities. There is evidence of animus
in the form of threats, and improper withdrawal of Union recognition. 30
3. Affirmative Defense
For several reasons, ADT failed to show that it would have fired Whittington, absent his
protected activity. First, although it fired him for exceeding his lunch break on 6 occasions, he 35
only acted unreasonably on 2 of the 6 dates. Hence, the vast majority of its rationale for firing
him was pretextual. Its willingness to forge ahead with a firing, when 4 of its 6 underlying
accusations were false, is deeply suspect. Second, ADT wholly failed to show: that other
servicemen never exceeded their lunch breaks as Whittington did; never took less efficient routes
between assignments as Whittington did; or that it consistently reacted in the same way 40
whenever such transgressions occur. Roberts painted a very different picture, and only indicated
that he made a cursory and random review of some other drivers, and reached the conclusion that
Whittington was the sole violator.35 Whittington’s discipline, as a result, appears to be more

34 This allegation is listed under complaint pars. 10-13, and 33.
35 This is not credible, given that Robert never said who else he investigated, or provided corroborating details and
records. It is not plausible that, out of 200 workers, Whittington is the sole worker who took exceeded his lunch.
JD–74–18
14
focused on ADT trying to rid itself of a Union adherent rather than evenhandedly enforcing its
rules.36 Third, it is suspect that, even though ADT receives immediate Geofence alerts
whenever workers drive company cars to their homes during business hours, it tacitly ignored
multiple Geofence alerts for Whittington, in order to allow his discharge case to build. Its failure
to promptly intervene and opt to, instead, build up a termination case against a long term 5
employee suggests invidious treatment.37 Fourth, ADT has not demonstrated Whittington’s
route choices were unreasonable, or that he was always obligated to take the most efficient route
as presented by Google Maps or Mapquest. ADT lacks a definitive policy on these issues.38
Additionally, ADT never researched Whittington’s specific route choices on the days at issue to
confirm that he was not traveling in a reasonable way to avoid traffic. Fifth, ADT’s policy 10
regarding lunch break length and whether drive time to lunch is included in a break is
ambiguous, at best. Some employees think that drive time is a part of their lunch and others do
not. Although the 2011–14 CBA expressly states that the lunch break is an hour in length, some
employees still think that it is 30 minutes in length based upon management comments. Even
though ADT could have cleared up these ambiguities regarding a basic and repeated personnel 15
issue, there is no evidence that it has ever done so. It, instead, seized upon this its murky lunch
period rule to use it as a mechanism to eliminate a Union adherent, which is suspect.39 Sixth, as
will be discussed more fully below, Whittington was disciplined, in part, on basis of ADT’s
invalid unilateral change that newly included drive time to a lunch stop as part of one’s lunch
break. Finally, ADT’s unwillingness to investigate the diabetes component of Whittington’s 20
case raises another red flag.40 Based upon these reasons, all of which would stand in isolation, I
find that Whittington’s firing was invalid.
C. §8(a)(5) Allegations
25
1. Placement of New Servicemen Outside of the Unit41
The complaint alleges that, since September 1, 2014, ADT has not applied the 2011–14
CBA to new servicemen. ADT does not dispute this action, and avers that it validly placed new
servicemen outside the extant Unit because it was both awaiting the Board’s RM-petition30
decision, and because it could have withdrawn Union recognition.

36 If ADT wished to evenhandedly enforce its rules, it would have investigated the lunch break usage of its entire
DFW servicemen workforce. Its glaring failure to do so suggests a willingness to blindly accept other foreseeable
lunch violations, in order to eradicate a Union adherent.
37 Its unwillingness to promptly intervene suggests that it was more focused on removing a Union adherent rather
than rehabilitating a long-term worker, with a reliable track record who held a substantial training investment.
38 ADT could easily remedy this route choice issue, but, has taken no action in this regard.
39 ADT could, for example, easily create a rule that governs: lunch period length; whether drive time to lunch is
included; whether short detours are valid; whether eating lunch at home is valid; and whether one must follow the
best GPS route. Its failure to address these clear and foreseeable issues, and, instead, use the ambiguity that it
created through inaction to remove a Union adherent smacks of invidious intent.
40 I credit Whittington’s testimony that he advised Roberts about his diabetes. He was a credible witness, with a
stellar demeanor. ADT wholly failed to investigate whether diabetes played a role in his legitimate need to go home
for lunch or sporadically caused him to exceed his break. This investigatory failure suggests invalid treatment.
41 This allegation is listed under complaint pars. 17 and 34.
JD–74–18
15
a. Precedent
Generally, an employer violates §8(a)(5), when it fails to maintain existing conditions of
employment for bargaining unit employees following the expiration of their contract.
Allied Signal, 330 NLRB 1201, 1216 (2000). This obligation to maintain the status quo reflects 5
black-letter labor law. See, e.g., Litton Business Systems v. NLRB, 501 U.S. 190, 198
(1991); Avery Dennison, 330 NLRB 389, 391 (1999). The Board has, therefore, consistently
reached this holding in scenarios, where employers failed to apply collective-bargaining
agreements to new hires covered by a contract’s recognition clause. See, e.g., Triple A Fire
Protection, 315 NLRB 409, 416-419 (1994) (failure to contractual wage increases after contract 10
expiration to new hires); Utility Vault Co., 345 NLRB 79, n. 2, 82-88 (2005).
b. Analysis
ADT violated §8(a)(5) by failing to include new employees in the Unit since September 15
2014. It is well-established that the recognition clause in a collective-bargaining agreement must
be applied to new hires in covered classifications. The Board has held that:
It is axiomatic that when an established bargaining unit expressly encompasses
employees in a specific classification, new employees hired into that 20
classification are included in the unit. This inclusion is mandated by the Board's
certification of the unit or by the parties' agreement regarding the unit's
composition.
Gourmet Award Foods, 336 NLRB 872, 873 (2001) (emphasis added). Given that the Unit 25
described in the 2011–14 CBA plainly and clearly covers newly hired “servicemen employed by
the Employer at its facilities located in Dallas and Fort Worth, Texas,” ADT lacked a valid basis
for not including such employees in the Unit. (GC Exh. 4). It is undisputed that these
employees performed Unit work, and there is simply no exception in the CBA regarding the
inclusion of these employees. As a result, a plain reading of the CBA requires that, as long as 30
the collective-bargaining relationship existed, which was the case from at least September 2014
until ADT’s May 2017 withdrawal of recognition, the Unit’s recognition clause had to be applied
to new hires in covered classifications.42
ADT’s asserted defenses are invalid. First, it contends that the pendency of the RM-35
petition excused it from applying the Unit recognition clause to new hires. This contention has
been repeatedly rejected by the Board, which has very clearly held that employers are required to
apply their contract’s unit recognition clause and all other aspects of the collective-bargaining
agreement while an RM-petition is pending. See, e.g., W. A. Krueger, 299 NLRB 914,
915 (1990) (holding that obligations to bargain are not be suspended, until the date the RD or 40
RM certification issues, and, therefore, any unilateral changes made before the issuance of the

42 ADT’s actions in this regard can also be analogized to unilaterally reassigning unit work to individuals outside
the unit, without providing the collective bargaining representative with notice and an opportunity to bargain, which
is similarly unlawful. See, e.g., St. George Warehouse, Inc., 341 NLRB 904, 905-06 and 924 (2004), enfd. 420 F.3d
294 (3d Cir. 2005); Stevens International, 337 NLRB 143 (2001); Regal Cinemas, Inc., 334 NLRB 304 (2001),
enfd. 317 F.3d 300 (D.C. Cir. 2003).
JD–74–18
16
certification are unlawful). Second, it contends in its brief that, because it allegedly could have
withdrawn recognition of the Union in early 2014, it earned the right to place new hires outside
of the Unit since that point. This argument is invalid. ADT cites no precedent for this
conclusion. In addition, ADT’s claim that it could have withdrawn recognition in early 2014 is
just surmise. The reasonableness of this claim is undercut by the overwhelming reality that it5
never tested its hypothesis in a contemporaneous Board proceeding.43 As a result, this claim is
“Revisionist history.”44 Finally, even assuming arguendo that ADT could have momentarily
withdrawn recognition for a narrow window in 2014, its window was fleeting and it abruptly lost
this right, once it exponentially expanded a new hire workforce that should have been included
in the Unit. As will be discussed more fully below, the Brinks majority quickly became an 10
isolated minority, once ADT hired several new servicemen in 2014 and 2015.45
In sum, given that the established Unit expressly covered newly-hired DFW servicemen,
such new servicemen must be included in the Unit. The following chart summarizes how the
Unit should have grown, had ADT properly placed new servicemen in the Unit:15
Year Existing
Unit
New Hires to be
Included in Unit
Total Unit Non-Union Brinks
Group
2014 (before 9/1) 57 57 78
2014 (after 9/1) 57 21 78 78
2015 56 41 97 78
2016 51 56 107 78
2017 51 74 125 78
2. Pre-Withdrawal of Recognition Unilateral Changes46
ADT unlawfully changed its sick leave and lunch policies in May 2016. It changed its 20
sick leave policy from one where employees could use leave with an hour’s notice to one where
they had to provide a doctor’s note. It changed its lunch policy from one where lunch began at
your lunch stop to one where it began once you left your assignment before lunch.
a. Legal Precedent25
The Board has held that, “[u]nder the unilateral change doctrine, an employer's duty to
bargain under the Act includes the obligation to refrain from changing its employees' terms and
conditions of employment without first bargaining to impasse with the employees' collective-
bargaining representative concerning the contemplated changes.” Lawrence Livermore National 30
Security, LLC, 357 NLRB 203, 205 (2011). An employer's regular and longstanding practices
that are neither random nor intermittent become terms and conditions of employment, even
where such practices are not expressly set forth within a collective-bargaining agreement. Id.
The party asserting the existence of a past practice bears the burden of proof on the issue, and

43 It is implausible that ADT would have voluntarily endured a heavily-litigated RM petition and met its other labor
relations commitments , if it could have withdrawn recognition and divorced an unwanted partner.
44 “Revisionist history” is a podcast by commentator Malcolm Gladwell, which revisits misunderstood past events.
45 ADT’s tenuous withdrawal theory was an evolving landscape that shifted against its favor with its hiring surge.
46 This allegation is listed under complaint pars. 18-20, and 34.
JD–74–18
17
must show that the practice occurred with such regularity and frequency that employees could
reasonably expect it to reoccur on a consistent basis. Palm Beach Metro Transportation, LLC,
357 NLRB 180, 183-184 (2011), enfd. 459 Fed. Appx. 874 (11th Cir. 2012).
b. Analysis5
ADT unlawfully unilaterally changed its sick leave and lunch break polices. These
subjects are mandatory bargaining topics, which were modified without affording the Union
notice or an opportunity to bargain. See, e.g., Flambeau Airmold Corp., 334 NLRB 165
(2001) (sick leave); Interstate Transport Security, 240 NLRB 274, 279 (1979) (doctor's note for 10
sick leave); Mackie Automotive Systems, 336 NLRB 347, 350 (2001) (lunch).
Although ADT contends in its brief that it was permitted to modify the sick leave policy
under the management rights clause, this argument is flawed on two bases. First, the Board has
consistently held that a waiver of bargaining rights under a management-rights clause does not 15
survive the expiration of a contract. See, e.g., Buck Creek Coal, 310 NLRB 1240
(1993); Kendall College of Art, 288 NLRB 1205, 1212 (1988). In the instant case, ADT
unilaterally changed its sick leave policy 2 years after the 2011-14 CBA expired. Second, even
assuming arguendo that the management rights clause survived contract expiration, the very
general waiver present in the 2011-14 CBA is a broadly worded management rights clause that 20
does not contain a clear and unmistakable waiver of the Union’s right to bargain over sick leave
policy. See, e.g., California Offset Printers, 349 NLRB 732, 733 (2007) (reversing judge for
relying on “general authority” of employer under contract to “establish and enforce shop rules”
to “discipline or discharge for cause” and “to establish work schedules and make changes
therein,” to find waiver of right to bargain over establishment of rule requiring employees to be 25
on call for sudden schedule changes); Ciba-Geigy Pharmaceuticals, 264 NLRB 1013, 1016
(1982) (employer's authority under management-rights clause to continue and change reasonable
rules and regulations as it may deem necessary does not establish “that the Union waived its right
to bargain about absentee rules” as this clause lacks express reference to absenteeism or tardiness
rules).30
Regarding the lunch policy, ADT contends that it was never modified. This argument is
invalid, inasmuch as the record reflects that the lunch policy changed from one where lunch
previously began when an employee arrived at his lunch destination to one where it now began
when you left your last assignment. 35
3. Withdrawal of Recognition and Accretion47
a. Withdrawal of Recognition
40
ADT unlawfully withdrew Union recognition on May 31, 2017. It contends that it
withdrew Union recognition because the Union represented a minority of servicemen. As
discussed above, this assertion is flawed. Specifically, if ADT properly included new hires in the

47 This allegation is listed under complaint pars. 17 and 34. As noted, ADT withdrew recognition in May 2017.
JD–74–18
18
Unit, unionized servicemen would have outnumbered the non-Union Brinks group by an almost
a 2 to 1 ratio at the time of its withdrawal of recognition.48
b. Accretion
5
A key question raised by ADT’s withdrawal of recognition is exactly what Unit it must
now recognize. This is a novel issue, given that it is generally clear what group is a stake. This
case, however, presents 3 groups of employees at issue. These groups are: Group 1 (i.e., the
historical Unit); Group 2 (the Brinks group that was never unionized); and Group 3 (new
servicemen hires since September 2014). Although this decision has already found that ADT 10
must recognize Group 1 (the historical Unit), and Group 3 (new hires, as analyzed above), the
question of whether the Brinks group can stand alone, or should be accreted to the Unit must be
gauged in order for ADT to know exactly what Unit it must recognize under the Board’s Order.
As discussed below, the Brinks group should be accreted to the Unit.
15
i. Legal Precedent
The accretion doctrine seeks to “preserve industrial stability by allowing adjustments in
bargaining units to conform to new industrial conditions without requiring an adversary election
every time new jobs are created or other alterations in industrial routine are made.” Frontier 20
Telephone, Inc., 344 NLRB 1270 (2005). Since accretion forecloses employees’ basic right to
select a union representative by being absorbed into an existing bargaining unit, historically, the
Board has followed a restrictive policy in applying the doctrine. Towne Ford Sales, 270 NLRB
311 (1984), enfd. 759 F.2d 1477 (9th Cir. 1985). As a result, the Board finds accretion “only
where the employees sought to be added to an existing bargaining unit have little or no separate 25
identity and share an overwhelming community of interest with the preexisting unit to which
they are accreted.” E. I. Du Pont, Inc., 341 NLRB 607, 608 (2004), quoting Ready Mix USA,
Inc., 340 NLRB 946, 946-948 (2003) (citing Safeway Stores, 256 NLRB 918 (1981)).
In applying this standard, the Board examines several factors, including: interchange and 30
contact among employees, degree of functional integration, geographic proximity, similarity of
working conditions, similarity of employee skills and functions; supervision and collective-
bargaining history. Archer Daniels Midland Co., 333 NLRB 673, 675 (2001). In determining,
under this standard, whether the requisite overwhelming community of interest exists to warrant
an accretion, the Board considers many of the same factors relevant to unit determinations in 35
initial representation cases, i.e., integration of operations, centralized control of management and
labor relations, geographic proximity, similarity of terms and conditions of employment,
similarity of skills and functions, physical contact among employees, collective bargaining
history, degree of separate daily supervision, and degree of employee interchange. E. I. Du Pont,
supra at 608; Compact Video Services, 284 NLRB 117, 119 (1987). However, as stated in E. I. 40

48 It is also noteworthy that the decertification petition that was signed by several unit employees in 2015 is
irrelevant to this inquiry. First, this petition, which was created in mid-2015, was too far removed in time from
ADT’s withdrawal of recognition. Second, it is well-established that an employer cannot lawfully withdraw
recognition from a union where it has committed unfair labor practices that directly relate to the employee
decertification effort. See Hearst Corp., 281 NLRB 764 (1986), enfd. 837 F.2d 1088 (5th Cir. 1988)). In the instant
case, ADT’s wholesale exclusion of all new employees from the Unit and its other unfair labor practices tainted the
resulting employee disaffection in the petition. Ardsley Bus Corp., 357 NLRB 1009 (2011).
JD–74–18
19
Du Pont, the “two most important factors” to an accretion finding are employee interchange and
common day-to-day supervision. Super Valu Stores, 283 NLRB 134, 136 (1987), citing Towne
Ford Sales, 270 NLRB 311, 312 (1984). Whereas with initial bargaining, a unit need only be
appropriate, and not the most appropriate, the Board will only uphold accretion if the community
of interest between the existing unit and the employees to be accreted is so closely integrated that 5
the latter employees have “no true identity distinct from” the existing unit. Frontier
Telephone, 344 NLRB at 259 fn. 6. As held in Safeway Stores, 256 NLRB 918 (1981), for the
Board to find a valid accretion, the additional employees must not only share an overwhelming
community of interest with the preexisting unit but must “have little or no separate group identity
and thus cannot be considered to be a separate appropriate unit.” Moreover, as held in a case 10
cited by Local 249, Universal Security Instruments v. NLRB, 649 F.2d 247, 255 (4th Cir. 1981),
cert. denied 454 U.S. 965 (1981), “The accretion doctrine is applied more strictly when the new
group of employees is larger than the original unit.”
ii. Analysis15
In the instant case, all factors support accretion. As a threshold matter, the unionized
contingent (i.e., including the disputed new hires) forms a majority of the servicemen workforce
by a 2 to 1 margin. Regarding integration of operations, ADT relocated its Carrollton office to a
new Carrollton address, created 2 new DFW facilities in Tyler and Trinity, retained its Halthom 20
City office, and closed 3 former Brinks offices in Mesquite, Irving and Fort Worth. This resulted
in the Brinks group being fully integrated with Unit servicemen at all DFW offices, with the
exception of Tyler. Regarding centralized control of management and labor relations, these
integrated offices are centrally controlled and managed by the same figures at ADT (i.e.,
Raymond, Vassey, Nixdorf, Roberts, Shedd, Arceneaux, etc.). Regarding geographic proximity 25
and physical contact of employees, all servicemen have been commingled at the same DFW
offices, with the exception of the Tyler office that employs only historical Unit employees.
Regarding terms and conditions of employment, similarity of skills and functions, interchange,
and degree of separate daily supervision, following the 2014 reorganization, all servicemen at
ADT’s DFW facilities, whether included in the Unit or not: perform the same or work under the 30
same working conditions; generally enjoy comparable wages, benefits, and hours of work;
possess the same skills and overall experience; utilize the same tools, equipment, and vehicles to
perform their identical duties and assignments; are employed in the same geographic region
under the same overall conditions; and are subject to the same supervision, managerial hierarchy,
and personnel policies. All of these factors overwhelmingly support accretion, including the two 35
most important factors, employee interchange and common day-to-day supervision. Simply put,
ADT’s 2014 reorganization resulted in the Brinks group losing its separate identity, which
warrants accretion to the larger unit.49
40

49 ADT advanced this position, when it advocated the RM-petition at issue herein. ADT, supra. In that case, ADT
vociferously contended that a wall-to-wall unit of all servicemen was the only appropriate unit on the basis of all of
the factors described above. Region 16 also endorsed this position, when it found that an election in the entire group
of servicemen (i.e., historical Unit, Brinks group and new servicemen) was warranted.
JD–74–18
20
4. Post-Withdrawal of Recognition Unilateral Changes50
ADT violated the Act, when it unilaterally changed the Unit’s paid leave system,51
bereavement leave,52 sales compensation system,53 grievance procedure,54 and pay periods.55 It
is well-established that, once a company unlawfully withdraws recognition from the union, its 5
subsequent unilateral changes regarding wages, hours and other mandatory subjects are similarly
unlawful. See, e.g., Northwest Graphics, Inc., 342 NRLB 1288, 1288 (2004); Turtle Bay
Resorts, supra, 353 NLRB at 1275. ADT also violated the Act, when it unilaterally failed to
remit dues to the Union. Lincoln Lutheran of Racine, 362 NLRB 1655 (2015) (under §8(a)(5),
an employer's obligation to check off union dues continues after the expiration of a collective-10
bargaining agreement that establishes such an arrangement).
5. Information Requests
ADT unlawfully failed to reply to the Union’s information several requests. Given that 15
its recognition withdrawal was invalid, it remained obligated to fulfill the Union’s valid requests.
a. Legal Precedent
An employer must provide requested information to a union representing its employees, 20
whenever there is a probability that such information is necessary and relevant to its
representational duties. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). This duty
encompasses the obligation to provide relevant bargaining and grievance-processing materials.
Postal Service, 337 NLRB 820, 822 (2002). Information, which concerns unit terms and
conditions of employment, is “so intrinsic to the core of the employer-employee relationship” 25
that it is presumptively relevant. U.S. Information Services, 341 NLRB 988 (2004). Information
about persons outside the unit, however, does not enjoy a presumption of relevance. Caldwell
Mfg. Co., 346 NLRB 1159 (2006). Nevertheless, the burden to establish the relevance of extra-
unit information requests is “not exceptionally heavy.” Leland Stanford Junior University, 262
NLRB 136, 139 (1982), enfd. 715 F.2d 473 (9th Cir. 1983). In such cases, the Board uses a 30
broad, discovery-type of standard to assess relevance. Shoppers Food Warehouse Corp., 315
NLRB 258, 259 (1994).
b. Analysis
35
i. October and December 2014 Requests About New Hires
ADT unlawfully neglected the Union’s requests for new hire information. The Union,
via Whittington and Kimber, repeatedly sought new hire information. This information was

50 These allegations are listed under pars. 34–37 and 41 of the complaint.
51 ADT combined all leave hours into a single PTO bank.
52 ADT reduced its bereavement leave benefit 3 days.
53 ADT changed its sales compensation system by rewarding upsells of equipment and services to customers,
implementing a sales quota, and enacting disciplinary consequences for the failure to make a sales quota.
54 ADT proclaimed that it would no longer process grievances.
55 ADT changed its pay periods from weekly to biweekly.
JD–74–18
21
relevant to the Union’s determination of whether ADT was breaching the CBA’s recognition
clause. There is no evidence that ADT replied to these requests or otherwise provided
responsive information, beyond Nixdorf questioning its relevance.56 (GC Exh. 8, R. Rxh. 12).
ii. October 29, 2015 Requests Regarding Grievances 5
ADT unlawfully failed to respond to the Union’s information requests regarding its
pending out-of-classification work, overtime and work hour grievances. (GC Exhs. 9–18).
These requests involved mandatory bargaining subjects and were connected to grievances. It is
undisputed that ADT did not reply; its sole defense rested upon its withdrawal of recognition. 10
iii. October 30, 2015 and January 8, 2016 Requests About Unit Discipline
ADT unlawfully failed to respond to the Union’s information requests about Brian
Sauser’s and Chad Short’s disciplines (GC Exhs. 19–22). It also violated the Act, when it failed 15
to fully respond to Union’s information requests about Whittington’s firing. (GC Exhs. 23–24).
As a threshold matter, it is well-established that disciplinary information is relevant and
necessary to the Union’s duty to advocate for disciplined members in grievances and arbitrations.
Although ADT partially replied to the Union’s request on Whittington (R Exh. 14),57 this reply
omitted several items, including his past performance appraisals. 20
iv. November 19, 2015 Request Concerning “Dominguez & Averitt”
ADT did not violate the Act, when it failed to comply with the Union’s November 19,
2015 information request connected to “Dominguez & Averitt – Appropriate Materials.” It is 25
unclear exactly what this information request involved. Hence, it is not possible to assess
whether the Union was seeking relevant information.
v. March 23, 2017 Request on Subcontracting
30
ADT unlawfully failed to comply with the Union’s March 23, 2017 information request
for subcontracting information. (GC Exh. 25). There is no evidence that ADT replied to this
requests. Subcontracting of Unit work and connected information is relevant.
vi. March 24, 2017 Request Concerning Arbitral Award35
ADT unlawfully failed to comply with this arbitration data request. (GC Exh. 26). This
request sought information about new hires excluded from the Unit in order to assess their
damages under a connected arbitral award. (GC Exh. 31). This information was, and remains,
relevant to the Union’s representational responsibilities regarding such workers. 40

56 Even though the Union later received employee lists at the ULP and RM hearings, its unfair delay was unlawful.
57 ADT partially replied via an email dated July 22, 2016, and letter dated August 9, 2016. (R. Exhs. 13–14).
JD–74–18
22
CONCLUSIONS OF LAW
1. ADT is an employer engaged in commerce within the meaning of §2(2), (6), and
(7) of the Act.
5
2. The Union is a labor organization within the meaning of §2(5) of the Act.
3. The Union is, and, at all material times, was the exclusive bargaining
representative for the following appropriate unit:
10
[A]ll servicemen employed by the Employer at its facilities located in Dallas and
Fort Worth, Texas; excluding operators, office clerical employees, salesmen,
confidential employees, alarm service investigators, supervisors, relief service
supervisors and guards as defined in Act.
15
4. ADT violated §8(a)(1) by:
a. Inviting employees to quit in response to their activities on behalf of the
Union and exercise of protected concerted activities.
20
b. Threatening employees that their pay raises would be withheld in an effort
to discourage their support for the Union.

5. ADT violated §8(a)(3) by suspending and discharging Whittington because he
engaged in Union and other protected concerted activities.25
6. ADT violated §8(a)(5) by:
a. Withdrawing recognition from the Union on May 31, 2017.
30
b. Refusing to recognize the Unit as the collective-bargaining representative
of newly hired servicemen since September 1, 2104, and failing to include
these employees in the Unit.
c. Unilaterally changing its sick leave policy by requiring a doctor’s note.35
d. Unilaterally changing its lunch start time by beginning lunch once
employees leave their assignment immediately before lunch.
e. Unilaterally changing its leave system by combining vacation and sick 40
time into a single PTO leave bank.
f. Unilaterally reducing its bereavement leave benefit from 5 to 3 days.
g. Unilaterally changing its sales quotas and connected disciplinary system.45
JD–74–18
23
h. Unilaterally eliminating the grievance and arbitration procedure.
i. Unilaterally purging its Union dues deduction and remittance procedure.
j. Unilaterally changing pay periods from weekly to biweekly. 5
k. Failing and refusing to provide, and unreasonably delaying the provision
of, information requested by the Union, which was relevant to its representational duties.
7. The unfair labor practices set forth above affect commerce within the meaning of 10
§2(6) and (7) of the Act.
REMEDY
Having found that ADT committed unfair labor practices, it is ordered to cease and desist 15
and to take certain affirmative action designed to effectuate the Act’s policies.
Regarding Whittington, it must make him whole for any losses of earnings and other
benefits. His make whole remedy shall be computed in accordance with F.W. Woolworth Co.,
90 NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 20
(1987), that is compounded daily as set forth in Kentucky River Medical Center, 356 NLRB 6
(2010). Under King Soopers, Inc., 364 NLRB No. 93 (2016), it shall also compensate him for
search-for-work and interim employment expenses, regardless of whether those expenses exceed
his interim earnings.58
25
In light of ADT’s withdrawal of recognition and refusal to bargain with the Union, it
must recognize and bargain with the Union for a reasonable period of time as the bargaining
representative of Unit employees. An affirmative bargaining order is a reasonable exercise of
the Board's broad discretionary remedial authority. Caterair International, 322 NLRB 64, 64-68
(1996). As the Board stated in Anderson Lumber, 360 NLRB 538 (2014), “We adhere to the 30
view that an affirmative bargaining order is ‘the traditional, appropriate remedy for an 8(a)(5)
refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of
employees.”’ Id., slip op. at 1, quoting Caterair, supra, 322 NLRB at 68.
In several cases, however, the U.S. Court of Appeals for the District of Columbia Circuit 35
has required the Board to justify, on the facts of each case, the imposition of an affirmative
bargaining order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 738-739
(D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C.
Cir. 1997). In Vincent, supra at 738, the court summarized its requirement that an affirmative
bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of 40
three considerations: (1) the employees' §7 rights; (2) whether other purposes of the Act override
the rights of employees to choose their bargaining representatives; and (3) whether alternative
remedies are adequate to remedy the violations of the Act.” In the instant case, a balancing of
the three factors warrants an affirmative bargaining order. First, an affirmative bargaining order

58 Search-for-work and interim employment expenses shall be calculated separately from taxable net backpay, with
interest at the rate set in New Horizons, supra, compounded daily under Kentucky River Medical Center, supra.
JD–74–18
24
in this case vindicates the §7 rights of the Unit employees who were denied the benefits of
collective bargaining through their designated representative by ADT’s withdrawal of
recognition and resultant refusal to bargain with the Union. Second, an affirmative bargaining
order also serves the policies of the Act by fostering meaningful collective bargaining and
industrial peace. It removes ADT’s incentive to delay bargaining in the hope of further 5
discouraging support for the Union. It also ensures that the Union will not be pressured by the
possibility of a decertification petition or by the prospect of an imminent withdrawal of
recognition to achieve immediate results at the bargaining table following the Board's resolution
of its unfair labor practice charges and the issuance of a cease-and-desist order. Third, a cease-
and-desist order, without a temporary decertification bar, would be inadequate to remedy ADT’s 10
withdrawal of recognition and refusal to bargain with the Union because it would permit another
challenge to the Union's majority status before the taint of the Respondent's previous unlawful
withdrawal of recognition has dissipated. Allowing another challenge to the Union's majority
status without a reasonable period for bargaining would be particularly unjust in light of the fact
that the litigation of the Union's charges took several years and, as a result, the Union needs to 15
reestablish its representative status with unit employees (i.e., the unlawfully excluded new hires
and accreted workers that the Union has had little or no contact with). Further, ADT’s
withdrawal of recognition would likely have a continuing effect, thereby tainting any employee
disaffection from the Union arising during that period or immediately thereafter. In these
circumstances, permitting a decertification petition to be filed immediately might very well allow 20
ADT to profit from its own unlawful conduct. In sum, these circumstances greatly outweigh the
temporary impact the affirmative bargaining order might have on the rights of employees who
oppose continued union representation. An affirmative bargaining order with its temporary
decertification bar is, therefore, necessary to fully remedy the violations in this case. In
addition, ADT must commence bargaining, upon request, with the Union as the exclusive 25
collective-bargaining representative of employees in an appropriate bargaining unit, and embody
any understanding reached in a signed agreement.
Regarding ADT’s failure to place employees in the Unit, including its failure to properly
accrete workers into the Unit as described above, it shall make those employees make whole for 30
any loss of wages or other benefits suffered as a result in the manner set forth in Ogle Protection
Service, 183 NLRB 682 (1970), enfd.444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons, supra, compounded daily as prescribed in Kentucky River, supra.
Regarding the several unilateral changes at issue herein, which included changes to 35
ADT’s sick leave, lunch, PTO, bereavement leave, sales quota and compensation, grievance
procedure, dues deduction, and pay period policies, it shall, on request of the Union,59
retroactively restore any unilaterally modified terms and conditions of employment, and rescind
the unilateral changes it has made, until such time as ADT and the Union reach an agreement for
a new collective-bargaining agreement, or a lawful impasse based on good-faith negotiations.40
Regarding ADT’s failure to provide relevant requested information to the Union, it shall
provide such information to the extent that it has not already done so. ADT shall also post the
attached notice in accord with J. Picini Flooring, 356 NLRB 11 (2010).

59 To the extent that these changes have improved Unit terms and conditions of employment, the recommended
Order below shall not be construed as requiring rescission of such improvements, unless requested by the Union.
JD–74–18
25
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended60
ORDER
5
ADT, LLC, its officers, agents, successors, and assigns, shall
1. Cease and desist from
a. Inviting employees to resign in response to their activities on behalf of the 10
Union or exercise of other protected concerted activities.
b. Threatening employees that wage raises would be withheld in an effort to
discourage their support for the Union.
15
c. Discharging or otherwise discriminating against employees because they
engage in Union and other protected concerted activities.
d. Withdrawing recognition from the Union, and failing and refusing to
bargain with it as the exclusive collective-bargaining representative of its Unit employees. 20
e. Refusing to recognize the Union as the collective-bargaining
representative of newly hired servicemen and other accreted servicemen, and failing to include
such employees in the Unit.
25
f. Changing wages, benefits, or other terms and conditions of employment of
its Unit employees without first notifying the Union and giving it an opportunity to bargain.
g. Refusing to bargain collectively with the Union by failing and refusing to
furnish it with, or delaying the provision of, requested information that is relevant and necessary 30
to the Union's performance of its functions as the collective-bargaining representative of its Unit
employees.
2. Take the following affirmative action necessary to effectuate the policies of the
Act35
a. Within 14 days from the date of the Board’s Order, offer Whittington full
reinstatement to his former job or, if such job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other rights or privileges previously enjoyed.
40
b. Make Whittington whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in the manner set forth in the Remedy
section of the decision, compensate him for the adverse tax consequences, if any, of receiving a

60 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings,
conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all
objections to them shall be deemed waived for all purposes.
JD–74–18
26
lump-sum backpay award, and file with the Regional Director, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board Order, a report allocating the backpay
award to the appropriate calendar year.
c. Within 14 days from the date of the Board’s Order, remove from its files 5
any reference to Whittington’s unlawful discharge, and within 3 days thereafter, notify him in
writing that this has been done and that his discharge will not be used against him in any way.
d. Preserve and, within 14 days of a request, or such additional time as the
Regional Director may allow for good cause shown, provide at a reasonable place designated by 10
the Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of the
Board’s Order.
15
e. Recognize and, upon request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in the following appropriate unit, which
includes newly-hired and accreted servicemen, concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding in a signed agreement:
20
[A]ll servicemen employed by the Employer at its facilities located in Dallas and
Fort Worth, Texas; excluding operators, office clerical employees, salesmen,
confidential employees, alarm service investigators, supervisors, relief service
supervisors and guards as defined in Act.
25
f. Recognize the Union as the collective-bargaining representative of newly
hired servicemen and accreted servicemen, and include such employees in the Unit.
g. On request by the Union, rescind the changes to its Unit employees' terms
and conditions of employment that were unilaterally implemented since May 2016.30
h. Make whole all newly hired Unit employees, including accreted
employees, in the manner set forth in the Remedy section of the Decision, for losses caused by its
failure to include them in the Unit and apply the Unit’s terms and conditions of employment.
35
i. Make whole Unit employees, in the manner set forth in the Remedy
section of the Decision, for losses caused by the several unilateral changes at issue herein.
j. Furnish to the Union in a timely manner the information it has requested
since October 2014, unless it has already done so. 40
k. Within 14 days after service by Region 16, post at its several DFW offices
and facilities copies of the attached notice marked “Appendix.”61 Copies of the notice, on forms

61 If this Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading
“Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations Board.”
JD–74–18
27
provided by the Regional Director, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other electronic means, if the 5
Respondent customarily communicates with its employees by such means. Reasonable steps
shall be taken to ensure that the notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or closed the facility involved in these
proceedings, it shall duplicate and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by it at any time since September 1, 2014.10
l. Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that it has taken to comply.
15
Dated Washington, D.C., November 16, 2018.
_________________________________20
Robert A. Ringler
Administrative Law Judge
/Zft7~2,
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT invite you to quit in response to your activities on behalf of the
Communication Workers of America, AFL-CIO (the Union) or your exercise of other protected
concerted activities.
WE WILL NOT threaten that wage raises would be withheld in an effort to discourage your
support for the Union.
WE WILL NOT fire you or otherwise discriminate against you because you engaged in Union
or other protected concerted activities.
WE WILL NOT withdraw recognition from, and fail and refuse to recognize and bargain with,
the Union as the exclusive collective-bargaining representative of our employees in the
bargaining unit.
WE WILL NOT refuse to recognize the Union as the collective-bargaining representative of
newly hired servicemen and other accreted servicemen, and fail to include these employees in
the bargaining unit.
WE WILL NOT refuse to bargain collectively with the Union by failing and refusing to furnish
it with requested information that is relevant and necessary to its performance of its functions as
the collective-bargaining representative of our unit employees.
WE WILL NOT change your wages, benefits, or other terms and conditions of employment
without first notifying the Union and giving it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.

WE WILL make Whittington whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest, plus reasonable search-for-work and
interim employment expenses.
WE WILL, within 14 days from the date of the Board’s Order, remove from our files any
reference to the unlawful discharge of Whittington, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that his discharge will not be used against him
in any way.
WE WILL compensate Whittington for the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and WE WILL file with the Regional Director, within 21 days of the date
the amount of backpay is fixed, either by agreement or Board Order, a report assigning his
backpay awards to the appropriate calendar year.
WE WILL recognize and, on request, bargain with the Union as the exclusive collective-
bargaining representative of the employees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is reached, embody the understanding in
a signed agreement:
[A]ll servicemen employed by the Employer at its facilities located in Dallas and
Fort Worth, Texas; excluding operators, office clerical employees, salesmen,
confidential employees, alarm service investigators, supervisors, relief service
supervisors and guards as defined in Act.
WE WILL recognize the Union as the collective-bargaining representative of newly hired
servicemen and accreted former Brinks servicemen, and include such employees in the Unit.
WE WILL, on request by the Union, rescind the changes in bargaining unit employees' terms
and conditions of employment that were unilaterally implemented since May 2016.
WE WILL make whole all newly hired bargaining unit employees, including accreted former
Brinks employees for losses caused by our failure to include them in the bargaining unit and
apply the unit’s terms and conditions of employment.
WE WILL make whole bargaining unit employees for losses caused by our several unilateral
changes.
WE WILL furnish to the Union in a timely manner the information requested since October
2014, unless we have already done so.
ADT, LLC
(Employer)
Dated: ________________ By: ________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees
want union representation and it investigates and remedies unfair labor practices by employers and
unions. To find out more about your rights under the Act and how to file a charge or election petition,
you may speak confidentially to any agent with the Board’s Regional Office set forth below. You
may also obtain information from the Board’s website: www.nlrb.gov.
819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/16-CA-144548 or by
using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by
calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER