NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.
ADT, LLC, Employer-Petitioner and Communication Workers of America, Local 6215. Case 16–RM– 123509
May 17, 2017
DECISION ON REVIEW AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN
The issue in this case is whether the Employer’s RM petition meets the requirements of Section 9(c)(1)(B) of the Act, namely whether the Employer demonstrated that the Union made a demand for recognition in the petitioned-for unit and whether the Employer established that it had a good-faith reasonable uncertainty regarding the Union’s majority status. This case arises from the Employer’s reorganization of several of its Texas facilities in a manner that resulted in employees who historically had been represented by the Union working alongside unrepresented employees whom the Employer had inherited as a result of a merger with another company. The Union never sought to represent those inherited employees, and employees currently represented by the Union never indicated a desire to end the Union’s representation of them. The Employer nevertheless filed a petition seeking an election among the combined group of employees to determine whether a majority of the whole group wished to be represented by the Union. Notwithstanding the absence of any claim by the Union to represent the inherited employees and the lack of any evidence that the Union had lost support among its current bargaining unit members, the Regional Director for Region 16 decided to process the Employer’s petition.
On March 9, 2015, the Regional Director issued a Decision and Direction of Election in a unit of “all installation and service technicians employed by the Employer in the Dallas/Fort Worth area at its Carrollton, Haltom City, Trinity, and Tyler facilities.” The Regional Director found that the Employer met the “threshold showing” necessary for processing the petition. The election was held on April 8, 2015, and the ballots were impounded. Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Union filed a timely request for review, contending that the petition is inappropriate under Board precedent and should be dis-
missed. The Employer filed an opposition. On April 22, 2015, the Board granted the Union’s request for review.1
After carefully considering the entire record in this proceeding, including the Employer’s and the Union’s briefs on review, the Employer’s supplemental brief, and the Union’s response, for the reasons set forth below, we reverse the Regional Director’s decision to process the petition. Contrary to the Regional Director and our dissenting colleague, we find that the Employer’s petition does not meet the requirements of Section 9(c)(1)(B).2
We therefore vacate the direction of an election and dismiss the petition.
The Employer installs and repairs security systems for private residences and small businesses. It employs installer technicians and service technicians who travel to job sites to perform their work. The Employer and the Union have had a collective-bargaining relationship since 1978, when the Union was certified as the exclusive collective-bargaining representative of certain of those technicians. The current collective-bargaining agreement between the parties defines the bargaining unit as “all servicemen employed by the Employer at its facilities located in Dallas and Fort Worth, Texas.”3
Until 2010, the Employer had facilities located in Carrollton and Haltom City, Texas. In 2010, the Employer acquired Broadview, another security systems company, and took over Broadview’s three Texas locations (Mesquite, Irving, and Fort Worth). Although the Broadview technicians became the Employer’s technicians in 2010, the parties never applied the collective-bargaining agreement to them, and the Union does not currently represent them. Until early 2014, the 70 former Broadview technicians worked at the three former Broadview facilities, separate from the Employer’s 58 unit techni
1 Chairman Pearce and Member McFerran; Member Miscimarra dissenting.
2 Sec. 9(c)(1)(B) provides that a petition may be filed
by an employer, alleging that one or more individuals or labor organizations have presented to him [her] a claim to be recognized as the representative defined in section 9(a) [subsection (a) of this section]; the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.
3 By its terms, the agreement was effective from May 29, 2011 through May 28, 2014, with an automatic year-to-year renewal provision. No party contends there is a contract bar.
cians who worked at its two locations in Carrollton and Haltom City.
In February 2014, the Employer closed offices, combined locations, and created new office locations. It moved the Carrollton office to a new address in Carrollton and created a satellite office in Tyler, Texas. It created a new office location in Trinity, Texas, but retained the Haltom City location. The former Broadview technicians were combined with the Employer’s existing unit technicians at all locations except Tyler, where some unit technicians but no former Broadview technicians were reassigned.4 The three former Broadview offices were closed.
All the technicians work under similar working conditions, and the parties stipulated that all the technicians perform the same or similar work. Most benefits are the same for all technicians. Although the method of compensation differs between the represented and unrepresented technicians, wages overall are comparable. The parties stipulated that should an election be held, the petitioned-for unit would be an appropriate unit, but the Union reserved its right to seek review of the decision to process the petition.
The Employer filed the instant petition on March 3, 2014,5 seeking an election in a unit of all “install and service technicians at ADT’s Carrollton, Tyler, Trinity, and Haltom City facilities in the Dallas/Fort Worth area.” The petition submitted to the Regional Director was accompanied by a letter from the Employer’s director of labor relations, James Nixdorf. The letter set forth the basis for the petition, including a “claim for continued recognition” by the Union and a “question as to majority status” on the part of the Employer. The Employer inferred the claim for continued recognition from an email communication between Union Vice President Bonnie Mathias and Nixdorf on February 3, in which Mathias purportedly claimed to represent “some, if not all, of the integrated offices.” The Employer’s asserted doubt as to the Union’s majority status was based on the Employer’s final integration of its offices, after which, based on a chart “showing the current numbers of represented and unrepresented technicians in each office,”6 the Employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The composition of the facilities are as follows: Carrollton: 19 former Broadview technicians and 25 existing unit technicians; Tyler: no former Broadview technicians and 6 existing unit technicians; Trinity: 23 former Broadview technicians and 14 existing unit technicians; and Haltom City: 28 former Broadview technicians and 13 existing unit technicians. The total number of technicians is 128.
5 All dates are in 2014 unless otherwise indicated.
6 The chart characterized the former Broadview technicians as nonunion and the existing technicians as union technicians. See fn. 4, above.
contended that it had a reasonable good-faith uncertainty as to the Union’s continued majority status.
THE REGIONAL DIRECTOR'S DECISION
Prior to the hearing, the Union filed a motion to dismiss the petition, alleging that the Employer’s asserted grounds for good-faith uncertainty were insufficient. The Regional Director denied the motion. Following the hearing, the Regional Director issued an order to reopen the record in which she also determined, pursuant to Sections 11021 and 11042 of the Board’s Casehandling Manual, Part Two, Representation Proceedings (CHM),7 that the Employer had met the necessary threshold showing for processing the petition. In the Decision and Direction of Election, citing her previous denial, the Regional Director denied a renewed motion to dismiss by the Union made during the reopened hearing. The Regional Director concluded that the Union “claims to represent certain employees of the Employer and that the Employer has provided sufficient evidence to establish a good faith uncertainty as to the Union’s majority status.” Further the Regional Director found that a question concerning representation exists, and that a unit of “[a]ll installation and service technicians employed by the Employer in the Dallas/Fort Worth area at its Carrollton, Haltom City, Trinity, and Tyler facilities” is an appropriate unit.
The Parties’ Contentions
On review, the Union asks the Board to reverse the Regional Director’s decision, asserting that it has “never” claimed to represent the former Broadview technicians and challenging the Employer’s view that the parties’ February 3 email correspondence indicates that the Union was making such a claim. The Union further con
7 Sec. 11021 indicates that the investigation of the extent of a showing of...
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