Continuing Union Representation After a Change in an Employer’s Structure

from the September 2012 LEL Labor and Employment Law News

The central question in this case, as the court succinctly puts it, is “whether the unit, long represented by Local 131 of the International Brotherhood of Electrical Workers (Union), retained its separate identity and remained an appropriate bargaining unit following ADT’s decision to close the unionized plant, assign those employees to an unrepresented plant, and withdraw recognition of the Union.” National Labor Relations Bd. v. ADT Security Services., Inc., Case No.10-2549 (6th Cir. Aug. 3, 2012). http://www.michbar.org/opinions/us_appeals/2012/080312/52374.pdf

The ADT manager told the Kalamazoo employees that the employees would continue to: service the same areas and receive the same hourly wage rates and piece rates, while overtime and drive-time entitlements would be decreased. Other changes were also made without notice to the employees’ union representative or negotiating. Instead, ADT sent the Union notice that the jobs of the fourteen unionized Kalamazoo employees had been consolidated with the twenty-seven unrepresented servicemen working in ADT’s Wyoming office. ADT also announced that because the union would not represent a majority of the employees located in ADT’s Wyoming facility, ADT was withdrawing recognition from the Union as the representative of the former Kalamazoo employees.

The parties’ collective bargaining agreement was still in effect at this time, and the former Kalamazoo employees continued to perform the same work in the same geographical area under largely unchanged terms and conditions. However, after the NLRB issued the complaint in this case ADT began requiring certain Kalamazoo employees to report to the Wyoming warehouse once a week to get parts.

After the case was heard, the Board ordered ADT to rescind its withdrawal of recognition, recognize the Union as the bargaining representative of ADT’s former Kalamazoo employees, reinstate the collective bargaining agreement without retracting any benefit conferred, and bargain collectively in good faith with the Union. On appeal, the court of appeals observed that when there is an existing bargaining unit this “‘fact alone suggests the appropriateness of a separate bargaining unit’,” unless there are “compelling circumstances” to overcome the significance of the bargaining history. In this, ADT would have to establish that “compelling circumstances overcome the almost twenty-nine-year bargaining history between the parties.” The decision includes additional findings that led the court of appeals to enforce the Board’s order.