ADT Security Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 30, 2008

07-CA-051288 (N.L.R.B. Dec. 30, 2008)

JD(ATL)–45–08
Wyoming, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
ADT SECURITY SERVICES, INC.
and
LOCAL UNION 131, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS
(IBEW), AFL-CIO
Case GR–7–CA–51288
A. Bradley Howell, Esq., for the General Counsel.
Bernard P. Jeweler, Esq., for the Respondent.
DECISION
Statement of the Case
GEORGE CARSON II, Administrative Law Judge. This case was tried in Grand Rapids,
Michigan, on October 28 and 29, 2008. The complaint issued on August 12, 2008, and alleges
that the Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act by
withdrawing recognition from the Union and thereafter making certain unilateral changes.1 The
Respondent filed an answer admitting that it withdrew recognition from the Union but denying
that its actions violated the Act. I find that the Respondent violated the Act substantially as
alleged in the complaint.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and the Respondent, I make the
following
Findings of Fact
I. Jurisdiction
The Respondent, ADT Security Services, Inc., the Company, is a corporation with
facilities throughout the United States including its facility in Wyoming, Michigan, where it is
engaged in the sale, installation, and service of security systems. The Company annually
purchases and receives goods and services valued in excess of $50,000 directly from points
located outside the State of Michigan. The Company admits, and I find and conclude, that it is
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Local Union 131, International
Brotherhood of Electrical Workers (IBEW), AFL-CIO, the Union, is a labor organization within
the meaning of Section 2(5) of the Act.

1 All dates are in 2008 unless otherwise indicated. The charge was filed on May 29 and was
amended on July 14.
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II. Alleged Unfair Labor Practices
A. Facts
1. Introduction
The Company operates nationally selling, installing, and maintaining various types of
security systems. The Company’s sales operations are separate from its installation and service
operations. The employees who install and service the security systems are referred to as
servicemen with subclassifications as installers and service technicians.
The facts herein are virtually undisputed. The issues presented arose when the
Company, on May 19, announced that the installation and service component of its facility in
Kalamazoo, Michigan, would close on June 2 and that the Company would no longer recognize
the Union as the representative of those 14 servicemen, who it contended were being
consolidated with the 27 unrepresented servicemen who worked out of its Wyoming, Michigan,
facility. As admitted in the answer to the complaint, the Union had represented the Kalamazoo
employees for almost 29 years, since June 29, 1979. At the time recognition was withdrawn,
there was a collective-bargaining agreement in effect that extended from January 24, 2007,
until January 22, 2010, and which recognized the Union as the exclusive collective bargaining
representative of employees in the following appropriate unit:
All full-time and regular part-time servicemen employed by the Respondent at its
Kalamazoo, Michigan, facility; but excluding branch managers, service supervisors,
chief clerks, office clerical associates, professional associates, guards, sales associates
and supervisors as defined in the Act.
2. The Company’s Operations
In the State of Michigan, the Company employs servicemen at Detroit, which also
serves the Ann Arbor metropolitan area; at Flint, which also serves the Saginaw area; at
Lansing, which also serves the Jackson area; and, prior to June 2, at Grand Rapids and
Kalamazoo. The addresses of the facilities do not, in all cases, coincide with the metropolitan
area. The Lansing facility is actually located in the suburb of Okemos, Michigan. The Grand
Rapids facility is located in the suburb of Wyoming, Michigan. Thus, references in testimony to
Grand Rapids and Wyoming refer to the same facility. That facility served western and
northwestern Michigan including Traverse City, some three hours from Grand Rapids, up to the
Mackinac Bridge, the northernmost point on the Michigan Lower Peninsula. The Kalamazoo
facility served southwestern Michigan including Kalamazoo, Battle Creek, and Benton Harbor.
The collective-bargaining agreement uses the term “service territory,” and that territory is shown
on a Company color coded map. Work performed in that territory is identified on computer
printouts by code numbers 45 and 230.
The term serviceman, as already noted, refers to installers and service technicians.
Installers typically handle the same type of installations. Thus, residential installers, most of
whom are classified as high volume residential installers, perform installations at individual
residences and are paid pursuant to a piece rate schedule for the components that they install.
Small business installers handle small commercial installations and are paid an hourly wage.
Commercial installers, referred to as core commercial installers, install multiple systems in large
buildings and factories and are also paid hourly. Service technicians, who handle problems that
develop or repairs that need to be made after the systems are installed, are also paid hourly.
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Immediately prior to June 2, Mike Swift was Installation and Service Manager at
Kalamazoo. He reported to Roy Rogers, who was Branch Manager over both the Wyoming and
Kalamazoo facilities. From June 2 until late September, he remained as Branch Manager over
the Wyoming facility. The closure of the service and installation function in Kalamazoo
eliminated Swift’s position. He worked as a serviceman for a short period after the elimination of
his supervisory position and then left the Company.
The residential installers and service technicians who had been employed at Kalamazoo
were initially placed under the supervision of Dave Fitzsimmons, who supervised the Wyoming
service technicians and residential installers. The Kalamazoo small business and core
commercial installers were placed under the supervision of Dan Beschel, who supervised the
Wyoming employees who performed that work.
In late September, the Company reconfigured it supervisory hierarchy. Rogers,
who had formerly been Branch Manager, was assigned as Manager of Core Commercial
installations. Dan Beschel, who formerly supervised core commercial installations and
small business installations, was assigned as Manager of Residential and Small
Business installations. Fitzsimmons, who had formerly overseen both service technicians
and residential installations, became Service Manager over the service technicians.
According to Rogers, the foregoing three positions are of equal rank, but he is the
“senior manager in the office.”
The Company installs multiple types of systems including security systems, fire alarm
systems, and card access systems. Notwithstanding the different types of systems, Manager
Rogers explained that ninety percent of the work is generic and able to be performed by any
serviceman. Before and after June 2, when numerous outages or malfunctions caused by a
storm or other disaster occurred, installers would assist service technicians and the Company
would, if necessary, assign servicemen from other locations. Thus, Kalamazoo servicemen
might assist in the Grand Rapids area and vice versa. Similarly, when a job required a specific
skill or certification or when assistance was needed for a large installation, servicemen would be
assigned from their normal service area. Employee Donald Berry, currently a service technician
but formerly a Kalamazoo commercial installer, was once assigned work in the Lansing area.
3. The Withdrawal of Recognition
On May 19, the Company’s Director of Labor Relations, James Nixdorf, wrote the Union
the following letter:
I’m writing to notify Local 131 the Company will be absorbing the Kalamazoo office into
our Wyoming, Michigan[,] office effective June 2, 2008. All managerial, operations and
administrative functions formerly housed in Kalamazoo will now be conducted in the
Wyoming office. Given the Kalamazoo unit employees will now be Wyoming employees
and Local 131 does not represent a majority of the employees located in Wyoming, the
Company is withdrawing recognition of Local 131 as agent for the former Kalamazoo
bargaining unit effective June 2, 2008.
Please let me know if you have any questions or wish to discuss this issue further.
Also on May 19, the Company, without notifying the Union, held a meeting with the
Kalamazoo unit employees in which the closure of the installation and service function at
Kalamazoo was announced directly to them. Rekha Agrawal, who at that time was General
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Manager for the Midwest, was present as was then Branch Manager Rogers, who was the
principal speaker. Manager Dave Fitzsimons was also present. Employee Bruce Abrams
recalled that Rogers informed the employees of the closure and consolidation, but he stated
that the employees’ jobs “would basically remain the same,” that they would be serving the
same areas and would be going to jobs from their homes, and that their wages would remain
the same. Rogers told the servicemen that the service technicians and residential installers
would be supervised by Fitzsimmons and the small business and core commercial installers
would be supervised by Dan Beuschel. Employee Abrams recalled that Rogers, in response to
questions, stated that overtime would be for work over 40 hours in a week whereas, under the
collective-bargaining agreement, hourly employees had received overtime if they had to work
over 8 hours on a single day. Employee Leonard Dean Osborn recalled that Rogers also spoke
about travel time, explaining to the employees that they would not receive compensation for
commuting until the trip exceeded 45 minutes rather than the 30 minutes specified in the
collective-bargaining agreement. Rogers did not dispute any of the foregoing testimony.
On May 29, the Union filed the charge herein and Business Manager Leroy Crabtree
wrote Nixdorf stating:
I am writing to notify you that on May 29, 2008, IBEW Local 131 filed an 8(a)(5) ULP
against ADT Security Service Inc. for unilaterally repudiating our collective bargaining
agreement.
Please feel free to contact me at any time.
Director of Labor Relations Nixdorf denied receiving the foregoing letter but admitted
receiving the charge. Whether he did or did not receive the letter is irrelevant. In response to
questioning by Counsel for Respondent, Business Agent Crabtree admitted that the Union
never requested “effects bargaining.” Insofar as the Union had been informed that the
Company would no longer recognize the Union, any such request would have been futile. Port
Printing AD and Specialties, 351 NLRB No. 91, slip op. at 2 (2007).
General Manager for the Midwest Agrawal made the decision to consolidate the
installation and service function at Kalamazoo into the Wyoming office “because the cost
structure in that branch … was too high.” Agrawal testified that she made the decision in
consultation with Manager Rogers and “input from other managers” and that the cost savings
realized was the elimination of Swift’s supervisory position and one clerical position. There was
no reduction in the number of servicemen.
When asked about the decision regarding the compensation of the Kalamazoo
employees whose collective-bargaining representative the Company no longer recognized,
General Manager Agrawal testified that “we essentially deferred to Jim Nixdorf's expertise
on that.” Director of Labor Relations Nixdorf, who “negotiate[s] [and] adminsister[s] all
the collective agreements” between the Company and various unions, confirmed that he
was involved in the decision to continue paying the former Kalamazoo employees the
contractual wage rate, although he acknowledged that it was a “fair statement” that the
Wyoming employees generally made more than the Kalamazoo employees. In explaining
the decision, Nixdorf noted that, pursuant to the contract, the Kalamazoo employees had
received a raise in January, that the Company made wage adjustments in January and,
therefore, it was decided that “we’d approach it at that point.” On cross examination,
Nixdorf admitted that, when negotiating a particular contract, “whatever the wages are in
that particular market, that's what we address.” When asked whether it was a market
based consideration that the Company could “pay people in Kalamazoo less and retain
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them” while having “to pay people in Grand Rapids more,” Nixdorf answered, “Absolutely.
We don't pay all of our bargained for employees and we don't pay all our non-bargaining
unit cities the same.”
The building out of which the employees had worked is leased by the Company, and the
lease runs until 2012. Because of competitors in the Kalamazoo area, the Company decided to
maintain a presence in Kalamazoo by keeping the sales office open. Efforts to sublease the
space have been unsuccessful. Thus, two salesmen currently work out of the otherwise
unoccupied leased building. Manager Agrawal acknowledged that there was “no sophisticated
analysis” regarding the consolidation decision. No financial documents or documents reflecting
financial projections and savings were offered into evidence. Agrawal acknowledged that the
Company was aware that it would still have to get parts and materials to the employees, either
by delivering them or paying to have them delivered, but “we never did a formal cost analysis of
what that would look like.”
4. Effect of the Closure upon Employees
a. Unchanged Conditions
On May 19, the employees were told that they would continue to receive the same
wages, and the Company continued to pay the contractual rate after the closure of the
Kalamazoo facility. Director Nixdorf confirmed that it was a “fair statement” that the Wyoming
employees made more than the Kalamazoo employees. The piece rate schedules pursuant to
which high volume residential installers are compensated are different for the Kalamazoo and
Wyoming installers. The Company continued to pay the Kalamazoo residential installers
according to the Kalamazoo piece rates.
The collective-bargaining agreement provides for “Tyco benefits,” the corporate benefit
package of Tyco, the parent company of ADT; thus there was no change in the employee
benefits of health insurance, pension, or the 401(k) plan, although it appears that employees in
the 401(k) plan were assigned a different account number.
As already mentioned, when additional help is needed in a specific area, both before
and after June 2, employees assigned to other locations would be called in. Manager Rogers
acknowledged that “when the need arises,” as in a storm situation, installers would assist the
service technicians. He acknowledged that, before June 2, Kalamazoo employees would go
into the Grand Rapids service area to perform work “[o]nce in a while,” and that Wyoming
employees would go into the Kalamazoo area “off and on.” In a pretrial affidavit Rogers
admitted that there “hadn't been much change.” That, of course, is consistent with what
he told the employees on May 19, and it continued to be true until a few weeks before
the hearing herein when, as hereinafter discussed, the Company began requiring
Kalamazoo employees to report to the Wyoming office one day a week for materials.
The collective-bargaining agreement refers to the Kalamazoo “service territory.” The
employees take their company owned vehicles to their homes at night. Both before and after
the consolidation, service technicians have been dispatched by a national dispatching center in
Rochester, New York, where “optimizers,” according to zip code, identify the closest available
technician who can respond to a reported problem. Manager Rogers acknowledged that, in
order to “save on expenses,” service technicians would typically be routed “to the closest spot
to their house,” explaining that the Company sought to have people that lived in the area do the
work because that was the least expensive. Manager Rogers confirmed that Fitzsimmons had
assigned the former Kalamazoo service technicians various areas that corresponded to
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subdivisions of the Kalamazoo service territory as shown on a Company map that is color
coded, General Counsel’s Exhibit 13.
Rogers testified that assignments to installers are made on the same basis: whoever is
the closest available installer “and the travel time.” Residential installers are scheduled out of a
national dispatching center in Jacksonville, Florida.
Thus, with the exception of the new requirement that servicemen report to Wyoming one
day each week for replenishment of parts, at which time the servicemen are assigned work in
the Grand Rapids area in order to eliminate unproductive travel time, there has been virtually no
change in the work the service technicians and installers perform or where they perform it.
In order to handle emergencies on nights and weekends, employees are assigned “on
call” duty pursuant to a weekly rotating schedule. The Kalamazoo contract, Article 6, Section 3,
provided that “[s]eparate call out lists will be created for Commercial and Residential Service,”
whereas only one Wyoming employee was on call each week. Employee Grant Korteway, a
Kalamazoo commercial service technician on the commercial call out list, testified that, after the
consolidation, when he has received calls that should have been routed to the residential
employee who was on call, he would explain the dual Kalamazoo list to the dispatcher. Manager
Rogers confirmed that the dual call out list is being used for the former Kalamazoo employees.
b. Changed Conditions
When the termination of the service and installation function at Kalamazoo was
announced, the employees were informed that they would no longer receive overtime for
working over 8 hours in a single day as provided in the collective-bargaining agreement.
The employees were also told that uncompensated travel time would be 45 minutes
rather than 30 minutes. Article 6, Section 1, of the contract provided that employees would be
compensated at their regular rate of pay for “traveling time in excess of thirty (30) minutes.”
Manager Rogers confirmed that those changes did occur, and Business Agent
Crabtree’s uncontradicted testimony established that there was no notice to or bargaining with
the Union with regard to any changes that have been made.
The collective-bargaining agreement, in Article 3, required that the Company notify the
Union, “if practicable,” when subcontractors or non-Kalamazoo ADT employees were
“performing work in the Kalamazoo service territory.” Manager Rogers admitted that he
understood that provision existed because the Union was “concerned about people doing
their work,” i.e. unit work, in the Kalamazoo service territory. He acknowledged that the
Company no longer “had that restriction.”
The Company extended its vacation eligibility policy to the Kalamazoo employees, which
resulted in some employees receiving one additional week of vacation.
The building in Kalamazoo out of which the Company operated contained the working
area of two clerical employees, the offices of two salespersons, the office of Manager Mike
Swift, and the area to which the security devices and equipment, such as wiring, used by the
servicemen were delivered. Unit employees had turned in their weekly time sheets at that office
on Wednesdays. After June 2, the Company provided facsimile machines to those employees
who did not have one so that their time sheets could be faxed to the Wyoming office.
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Prior to June 2, Dave Ross or Jeff Griffioen, the warehousemen at Wyoming, would
place the parts needed by particular employees in separate plastic bins and then travel to
Kalamazoo to distribute the parts to the employees. They generally did this twice a week.
After June 2, for about six weeks, Ross and/or Griffioen drove to a Meijer’s supermarket
parking lot where the materials used by the Kalamazoo employees were distributed. General
Manager Agrawal explained that, although the Company’s leased building remained available,
the distribution of materials was made in the Meijer’s parking lot because “we didn’t have a
management presence” and the Company did not want the employees to “have access to that
office.” The employees’ access cards to the building had been deactivated. Agrawal did not
explain how, given the deactivation of the employee access cards, the pickup of parts could not
have been carried out at the Company’s unused leased facility in the presence of the same
individuals who had been entrusted with the parts for delivery at a supermarket parking lot. The
supermarket distribution appears to have been designed to underscore the termination of the
service and installation function at the Kalamazoo facility.
After about six weeks, the Company began shipping parts to employees or distributing
them at meeting points individually prearranged between the serviceman receiving the materials
and another serviceman or supervisor. Manager Rogers explained that it had been the intention
of the Company to utilize Federal Express to get parts to the servicemen, but that “a whole host
of issues” caused the Company to abandon that procedure.
Beginning in September, the Company began phasing in a requirement that Kalamazoo
employees report to the Wyoming warehouse one day each week in order to obtain their parts
and supplies. According to Manager Beuschel, the Company phased in this requirement to
avoid inundating that system and “creat[ing] havoc.” Thus, at the time of the hearing, some of
the Kalamazoo employees, including Jason Raymond, had been coming to Wyoming once
each week for as many as six weeks whereas others, including Chris Green who lives in
Decatur, Michigan, some 75 miles from Grand Rapids, had come only once or twice. On the
day that an employee comes to the warehouse, the Company gives the warehouse address to
the dispatching centers as that employee’s starting location on that day, which results in the
employee working in the Grand Rapids area, thus avoiding unproductive time and travel.
B. Analysis and Concluding Findings
The complaint alleges that the Respondent, on June 2, unlawfully withdrew recognition
from the Union and thereafter unilaterally implemented changes relative to travel time, overtime,
“and possibly other terms and conditions of employment” of the unit employees.
1. The Withdrawal of Recognition
The General Counsel argues that, notwithstanding the consolidation, the Kalamazoo
unit is an historical unit that has maintained its identity and that the Respondent was not
privileged to terminate this “long standing bargaining relationship” by withdrawing recognition
from the Union as the exclusive collective bargaining representative of the employees in that
historic unit.
The Respondent contends that it has consolidated the Kalamazoo employees with the
Wyoming employees and that, insofar as the 14 former Kalamazoo employees constitute only
slightly more than a third, 34 percent, of the larger employee complement at Wyoming, it was
privileged to withdraw recognition from the Union. Although the brief of the Respondent
acknowledges that the former Kalamazoo unit employees continue to perform “most of their
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work” in the Kalamazoo area because of the proximity of the employees to the work, the
Respondent argues that those employees “share working conditions, supervisors, and every
other conceivable indicia or aspect of employment” with the Wyoming employees. I disagree.
The Respondent’s brief does not acknowledge or discuss the undisputed fact that the former
Kalamazoo employees continue to be paid at the Kalamazoo contractual rate or that Director of
Labor Relations Nixdorf admitted that Kalamazoo was a separate labor market. More
significantly, the Respondent’s brief, neither in its argument nor in the precedent cited, does not
address the status of the Kalamazoo unit as an historical unit with a bargaining history of almost
29 years, since June 29, 1979.
In addressing the Respondent’s withdrawal of recognition, my analysis begins with
precedent establishing that a historic bargaining relationship will not be disturbed absent
compelling circumstances. In that regard, the decision of the Board in Canal Carting, Inc., 339
NLRB 969 (2003), is instructive. In that case, the Board reversed a Regional Director’s decision
that disregarded the presence of a bargaining history that began in “the 1970s.” Although the
date the history began is not specified, the historic relationship existed for at least 24 years.
The bargaining history in this case is almost 29 years. In Canal Carting, Inc., the Board stated:
In our view, the Regional Director failed properly to consider the importance of
bargaining history in making his determination on the appropriateness of Sanitation's
unit and on the contract bar issue. As one court has noted, “the Board usually applies
the community-of-interest and plant-wide unit tests only when delineating units of
previously unrepresented employees, not, as here, when it is assessing historical units
that have had long periods of successful collective bargaining.” Trident Seafoods, Inc. v.
NLRB, 101 F.3d 111, 118 (D.C. Cir. 1996). Rather than pursue solely a community-of-
interest analysis, the Regional Director should have considered whether compelling
circumstances warranted disturbing the historical bargaining units that developed at
Carting and Sanitation.
….It is well settled that the existence of significant bargaining history weighs
heavily in favor of a finding that a historic unit is appropriate, and that the party
challenging the historical [unit] bears the burden of showing that the unit is no longer
appropriate. See Children’s Hospital of San Francisco, 312 NLRB 920, 929 (1993)
(“Both the Board and the courts have long recognized not only that the traditional
factors, which tend to support the finding of a larger or single unit as being appropriate,
are of lesser cogency where a history of meaningful bargaining has developed, but also
that this fact alone suggests the appropriateness of a separate bargaining unit and that
compelling circumstances are required to overcome the significance of bargaining
history.”) (internal quotation marks omitted), enfd. sub nom. California Pacific Medical
Center v. NLRB, 87 F.3d 304 (9th Cir. 1996). See also Fisher Broadcasting, Inc., 324
NLRB 256, 262-263 (1997); Buffalo Broadcasting Co., 242 NLRB 1105, 1105 fn. 2
(1979) (“The Board is reluctant to disturb units established by collective bargaining as
long as those units are not repugnant to Board policy or so constituted as to hamper
employees in fully exercising rights guaranteed by the Act.”); Columbia Broadcasting
System, Inc., 214 NLRB 637, 643 (1974); Great Atlantic & Pacific Tea Co., 153 NLRB
1549, 1550 (1965) (“[T] he Board has long held that it will not disturb an established
bargaining relationship unless required to do so by the dictates of the Act or other
compelling circumstances.”). Id. at 969, 970.
There are no compelling circumstances that support the withdrawal of recognition from
the historic Kalamazoo unit. The letter of May 19 states that the Company was “absorbing the
Kalamazoo office into our Wyoming, Michigan, office” and “withdrawing recognition” from the
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Union. The withdrawal of recognition was predicated upon the number of unrepresented
employees at Wyoming, but the Respondent did not “absorb” the Kalamazoo employees. They
continue, as the Respondent admits and the record establishes, to perform “most of their work”
in the Kalamazoo area. The term “service territory” is used in the collective-bargaining
agreement and is shown on the Respondent’s color coded map. The work performed in that
territory is identified on computer printouts by the code numbers 45 and 230.
Director of Labor Relations Nixdorf’s testimony confirms that the Kalamazoo employees
were not absorbed into Wyoming. Despite the consolidation, Nixdorf decided that the
Respondent would not pay the Kalamazoo employees the same wages being paid to the
Wyoming employees because they had received their contractual wage increase the previous
January. Although acknowledging that it was a “fair statement” that the Wyoming employees
made more than the Kalamazoo employees who had purportedly been absorbed into Wyoming,
he defended the discrepancy by explaining that the wages paid by the Respondent were
dependent upon the market, and that the Respondent could pay less than the Wyoming/Grand
Rapids rate to employees in the Kalamazoo metropolitan area and retain them. The foregoing
testimony establishes that the Respondent recognizes that Kalamazoo is a separate labor
market and pays the employees accordingly. Thus, on the basis of the wage rate alone, the
Kalamazoo employees were not absorbed, and they remain a separate identifiable unit.
The collective-bargaining agreement refers to the Kalamazoo “service territory,”
jurisdiction over which the Union sought to maintain pursuant to the provision in the contract
that provided for notification if employees not assigned to Kalamazoo were sent to work in that
service territory. Manager Fitzsimmons informed the purportedly absorbed service technicians
of their respective areas, and the Respondent’s color coded map shows the subdivisions within
the Kalamazoo service territory to which Manager Rogers acknowledged they had been
assigned. Manager Rogers confirmed that installation jobs are assigned similarly, to the closest
available installer based upon “the travel time.” Both before and after June 2, Kalamazoo
employees were sent to work outside the Kalamazoo area and employees from other locations
were sent to the Kalamazoo area when needed. Such work assignments were dictated by the
need for a specific skill certification, the size of an installation job, or a natural disaster that
affected installed security systems. The Respondent’s assignment of installation and service
jobs in the Grand Rapids area on the weekday that the former Kalamazoo employees are
required to report to Wyoming simply assures that they will not be unproductive for a significant
proportion of the day and that the Respondent will not be compensating them for traveling time.
The overwhelming majority of their work is performed in the Kalamazoo service territory. The
Kalamazoo employees are compensated at the contractual wage rate even when working in the
Grand Rapids area. The Kalamazoo unit is not only identified by the wage scale being paid but
also by the geographic area in which the employees have continued to work.
The Respondent has continued to use the Kalamazoo contractual dual call out roster
that separates employees on the basis of their assignment to commercial or residential work.
Although the supervisory position of Swift was abolished, the Kalamazoo employees
remained under the ultimate supervision of Branch Manager Rogers, who, as Branch Manager
of the Kalamazoo office, had been Swift’s direct supervisor. The record does not reflect
whether, following the corporate reconfiguration that occurred about a month before the hearing
herein, Rogers, as Senior Manager, remains as the individual ultimately in charge at Wyoming.
His current authority is immaterial insofar as an employer may not escape its obligation to
bargain by employing different supervisors. See University Medical Center, 335 NLRB 1318,
1332 (2001), enfd. in pertinent part, 335 F.3d 1079, 1085 (D.C. Cir 2003).
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The fact that the former Kalamazoo employees, like all ADT employees, are subject to
the same handbook rules, wear the same uniforms, and perform the same work does not
render the historic unit inappropriate and does not privilege the Respondent to withdraw
recognition from it. As pointed out in P. J. Dick Contracting, 290 NLRB 150, 151 (1988), “units
with extensive bargaining history remain intact unless repugnant to Board policy.” The unit
herein is not repugnant to Board policy. Neither is it repugnant to any policy of the Respondent
which regards Kalamazoo as a separate labor market and has continued to pay the Kalamazoo
hourly employees the contractual wage rate rather than the higher wages paid to Wyoming
employees and to pay residential installers the contractual piece rates rather than Wyoming
piece rates. Changes made by the Respondent that conformed the working conditions of the
Kalamazoo employees to the policies in effect at the Wyoming office, such as overtime and
travel time, insofar they were made unilaterally, do not detract from the separate identity of the
historical unit. See Comar, Inc., 339 NLRB 903, 911 (2003); Holly Farms Corp., 311 NLRB
273,279 (1993); see also Serramonte Oldsmobile, 318 NLRB 80, 104 fn. 67 (1995).
The Respondent, by withdrawing recognition from the Union as the representative of the
employees in the historic Kalamazoo unit, violated Section 8(a)(1) and (5) of the Act.
I shall, consistent with precedent, alter the description of the appropriate unit to reflect
the current reality and specify that the unit consists of employees regularly assigned to work in
the Kalamazoo service territory, which thereby includes the former Kalamazoo unit employees
as well as any employees hired to fill future unit vacancies. See Comar, Inc., supra at 911.
2. The Unilateral Changes
It is undisputed that the Respondent, pursuant to what I have found was its unlawful
withdrawal of recognition on June 2, changed the terms and conditions of the employment of
unit employees by ceasing to pay overtime for working more than 8 hours in a single day,
increasing unpaid travel time from 30 minutes to 45 minutes, and altering vacation eligibility
without notice to or bargaining with the Union. By unilaterally changing the terms and conditions
of employment of the unit employees in the foregoing manner, the Respondent violated Section
8(a)(5) of the Act.
There is no evidence that the failure of the Respondent to honor the contractual
requirement of notification to the Union regarding the presence of nonunit employees in the
Kalamazoo service territory has affected any employee. Insofar as my recommended order
shall direct reinstatement of the contract, the Respondent must honor that provision.
Conclusions of Law
1. By withdrawing recognition from the Union, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section
2(6) and (7) of the Act.
2. By unilaterally, without notice to and bargaining with the Union, changing the manner
in which overtime is paid to unit employees, increasing unpaid travel time, and altering vacation
eligibility, the Respondent has engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
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that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having unlawfully withdrawn recognition from the Union, it must extend
recognition to the Union as the bargaining representative of its former Kalamazoo employees,
reinstate the collective-bargaining agreement without retracting any benefit conferred, and
bargain collectively in good faith with the Union. Cook County School Bus, Inc., 333 NLRB 647
(2001); Custom Manufacturing Company, 220 NLRB 1256, 1258 (1975).
The Respondent, having unilaterally changed the terms and conditions of employment
of the unit employees by altering the manner in which overtime and travel time are paid, must
make whole any employees whose benefits were decreased as a result of those unilateral
change, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Consistent with Cook County School Bus, Inc., supra at 648 and 654, and Children’s
Hospital, 312 NLRB 920, 931 (1993), the Respondent shall not rescind the unilaterally changed
benefit with regard to vacation eligibility unless requested to do so by the Union.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended2
ORDER
The Respondent, ADT Security Services, Inc., Wyoming, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from:
(a) Withdrawing recognition from and failing and refusing to recognize and bargain with
Local Union 131, International Brotherhood of Electrical Workers (IBEW), AFL-CIO, as the
exclusive collective bargaining representative of employees in the following appropriate unit:
All full-time and regular part-time servicemen regularly assigned to work in the
Kalamazoo service territory employed at its Wyoming, Michigan, facility; but excluding
branch managers, service supervisors, chief clerks, office clerical associates,
professional associates, guards, sales associates and supervisors as defined in the Act.
(b) Unilaterally, without notice to and bargaining with the Union, changing the manner in
which overtime is paid to unit employees, increasing unpaid travel time from 30 minutes to 45
minutes, and altering vacation eligibility.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:

2 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.
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(a) Rescind the withdrawal of recognition and extend recognition to the Union as the
bargaining representative of its former Kalamazoo employees, reinstate the collective-
bargaining agreement without retracting any benefit conferred, and bargain collectively in good
faith with Local Union 131, International Brotherhood of Electrical Workers (IBEW), AFL-CIO,
as the exclusive collective bargaining representative of employees in the appropriate unit set
out above.
(b) Rescind the unilateral changes made in the manner in which overtime and travel
time are paid to unit employees and make whole any employees whose benefits were
decreased as a result of those unilateral changes plus interest.
(c) Only upon request by the Union, rescind the manner in which vacation eligibility is
determined.
(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 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 determine the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its facility in Wyoming, Michigan,
copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by
the Regional Director for Region 7, 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.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
May 19, 2008.
(f) 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
the Respondent has taken to comply.
Dated, Washington, D.C., December 30, 2008.
_____________________
George Carson II
Administrative Law Judge

3 If this Order is enforced by a Judgment of the 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(ATL)–45–08
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 had 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 withdraw recognition from and fail and refuse to recognize and bargain with
Local Union 131, International Brotherhood of Electrical Workers (IBEW), AFL-CIO, as the
exclusive collective bargaining representative of employees in the following appropriate unit:
All full-time and regular part-time servicemen regularly assigned to work in the
Kalamazoo service territory employed at its Wyoming, Michigan, facility; but excluding
branch managers, service supervisors, chief clerks, office clerical associates,
professional associates, guards, sales associates and supervisors as defined in the Act.
WE WILL NOT unilaterally, without notice to and bargaining with the Union, change the manner
in which overtime is paid to you who are in the foregoing unit, increase your unpaid travel time
from 30 minutes to 45 minutes, or alter vacation eligibility.
WE WILL rescind our withdrawal of recognition from the Union, and WE WILL extend
recognition to the Union as the bargaining representative of our former Kalamazoo employees,
reinstate the collective-bargaining agreement without retracting any benefit conferred, and
bargain collectively in good faith with the Union as the exclusive collective bargaining
representative of the employees in the foregoing appropriate unit.
WE WILL rescind the unilateral changes made in the manner in which overtime and travel time
are paid to unit employees and make whole any of you whose benefits were decreased as a
result of those unilateral changes plus interest.
WE WILL, only if requested by the Union, rescind the manner in which vacation eligibility is
determined.
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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.
ADT SECURITY SERVICES, INC.
(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.
477 Michigan Avenue, Federal Building, Room 300, Detroit, MI 48226–2569
(313) 226–3200, Hours: 8:15 a.m. to 4:45 p.m.
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 (313) 226–3244