*

The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0242p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

NATIONAL LABOR RELATIONS BOARD,

 Petitioner,

v.

ADT SECURITY SERVICES, INC,

 Respondent.

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No. 10-2549

On Application for Enforcement of an Order of the 

National Labor Relations Board.

No. 7-CA-51288.

Decided and Filed: August 3, 2012 

Before: ROGERS and STRANCH, Circuit Judges; PEARSON, District Judge.*

_________________

COUNSEL

ON BRIEF: Linda Dreeben, Robert J. Englehart, Zachary R. Henige, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Bernard P. Jeweler,

OGLETREE, NASH, SMOAK & STEWART, P.C., Washington, D.C., for Respondent.

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. This case arises from the decision of the

National Labor Relations Board that ADT engaged in unfair labor practices and is before

this court on the Board’s petition to enforce its remedial Order. The central question

presented 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,

1
No. 10-2549 NLRB v. ADT Sec. Serv. Page 2

assign those employees to an unrepresented plant, and withdraw recognition of the

Union. Because substantial evidence supports the Board’s conclusion that the historic

unit continued to be an appropriate unit and because the Board’s Order was a proper

exercise of its remedial authority, we ENFORCE the Board’s Order that ADT rescind

its unilateral actions and recognize and bargain in good faith with the Union.

I. BACKGROUND

A. Factual Background

ADT Security Services, Inc. is engaged in the national sale, installation, and

service of burglar and fire alarms and other security devices. ADT’s sales operations are

separate from its installation and service operations and its service employees conduct

their work of installing and servicing equipment at customer sites, not at the sales and

service offices. Sales activities, storage of parts, administrative activities, and

management offices are all located at the offices.

For almost twenty-nine years, since June 29, 1979, ADT recognized Local Union

131 as the exclusive representative of a unit of service employees, defined under the

agreement as “all full-time and regular part-time servicemen employed by [ADT] 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.”

On May 19, 2008, ADT manager Roy Rogers held a meeting where he informed

the Kalamazoo employees that effective June 2, ADT would close its Kalamazoo

facility, would consolidate its operations at the Wyoming, Michigan office, and would

no longer recognize the Union as their bargaining representative. Rogers explained that

the employees would continue to: service the same areas; go to their job assignments

from their homes; and receive the same hourly wage rates and piece rates. However, he

said their overtime and drive-time entitlements would be decreased. The employees

would be paid overtime for hours worked over forty in one week, instead of over eight

in one day, and they would not receive compensation until their commutes to their job
No. 10-2549 NLRB v. ADT Sec. Serv. Page 3

sites exceeded forty-five minutes, rather than thirty minutes as set forth in the collective

bargaining agreement. The rules for determining the employees’ vacation eligibility also

changed, which resulted in increased vacation time for some employees.

ADT did not notify the Union of the changes to the employees’ working

conditions. Instead, it sent the Union a letter announcing the consolidation of the

fourteen unionized Kalamazoo employees with the twenty-seven unrepresented

servicemen working in the Wyoming office. Because the Union would not represent a

majority of employees located in the Wyoming facility, ADT announced it was

withdrawing recognition from the Union as the representative of the former Kalamazoo

employees, effective June 2.

As promised, in June 2008 ADT closed its Kalamazoo facility and reassigned the

service employees to operate out of its Wyoming facility, located forty-five miles away

from Kalamazoo. The former Kalamazoo employees continued to service southwestern

Michigan. ADT continued to lease the Kalamazoo facility and two nonunionized sales

employees continued to operate out of that office. At the time recognition of the Union

was withdrawn, there was a collective bargaining agreement in effect that extended from

January 24, 2007 until January 22, 2010.

Before and after June 2, 2008, the former Kalamazoo employees continued to

perform the same work in the same distinct geographical area under largely unchanged

terms and conditions. The collective bargaining unit referred to the Kalamazoo “service

territory” and the Kalamazoo employees continued to be assigned work within that

territory after the closure of the Kalamazoo facility. Both before and after the closing,

the servicemen’s work assignments were made by a national dispatching center and the

employees continued to perform work in the field.

Following consolidation, ADT adjusted the way parts were delivered to the

Kalamazoo employees and slightly altered the supervision structure. Following

June 2, for a period of about six weeks, the same two employees who had previously

delivered parts to the Kalamazoo facility met the Kalamazoo employees in a

supermarket parking lot located down the street from the closed Kalamazoo facility.
No. 10-2549 NLRB v. ADT Sec. Serv. Page 4

Thereafter, ADT shipped parts from the Wyoming office to the Kalmazoo employees’

homes or delivered them to the employees’ job sites or other prearranged locations.

Starting in September—after the complaint in this case had been issued and shortly

before the hearing was held—ADT began requiring certain Kalamazoo employees to

report to the Wyoming warehouse once a week to get parts.

Prior to the consolidation, the Kalamazoo servicemen reported to a local

supervisor, Mike Swift. Swift, in turn, reported to Roy Rogers, the branch manager for

both Kalamazoo and Wyoming. The closure of the Kalamazoo facility eliminated

Swift’s position and the former Kalamazoo employees began reporting to Dave

Fitzsimmons and Dan Beschel, who supervised the Wyoming servicemen. In late

September, however, the supervisory structure was again changed and Rogers, Beschel,

and Fitzsimmons managed the Kalamazoo and Wyoming servicemen, with Rogers being

the senior manager in the office.

Before and after June 2, when numerous outages or malfunctions caused by a

storm or other disaster occurred, installers would assist service technicians and ADT

would, if necessary, assign servicemen from other locations. On such occasions,

Kalamazoo servicemen might assist in the Wyoming service territory and vice versa.

B. Procedural History

In May and July 2008, the Union filed unfair-labor-practice charges against ADT

based on ADT’s withdrawal of recognition from the Union as the bargaining

representative of the Kalamazoo bargaining unit. On August 12, General Counsel for

the Board filed a complaint against ADT alleging violations of Sections 8(a)(1) and

(5) of the National Labor Relations Act (the Act) by withdrawing recognition from the

Union and thereafter making certain unilateral changes. Following a hearing, an

Administrative Law Judge (ALJ) issued a decision and recommended order on

December 30, 2008 in which he found merit to the complaint allegations. ADT filed

timely exceptions to the ALJ’s decision, seeking the Board’s review.
No. 10-2549 NLRB v. ADT Sec. Serv. Page 5

On March 12, 2009, before the issuance of the Board’s decision, the Regional

Director filed for a preliminary injunction against ADT under Section 10(j) of the Act,

29 U.S.C. § 160(j). The petition sought an interim order requiring ADT to recognize and

bargain in good faith with the Union, reinstate the collective bargaining agreement, and

rescind the unilateral changes to the employees’ working conditions. The district court

denied the Director’s petition and we reversed. We found reasonable cause to believe

that an unfair labor practice had occurred and remanded the case for the district to

determine in the first instance whether an injunction would be just and proper.

Glasser v. ADT Sec. Servs., Inc., 379 F. App’x 483, 488-89 (6th Cir. 2010).

On September 30, 2010, before the district court decided the injunction issue on

remand, the Board issued its Order, ending the district court’s jurisdiction under Section

10(j). The Board affirmed the ALJ’s findings and conclusions and adopted, with slight

modification, the recommended remedial order. The Board’s Order requires ADT to

rescind the withdrawal of recognition, 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. After ADT refused to comply, General Counsel for the Board

applied to this court for enforcement of the Board’s Order.

II. DISCUSSION

A. Standard of Review

Our review of the Board’s decisions is limited. NLRB v. Dole Fresh Vegetables,

Inc., 334 F.3d 478, 484 (6th Cir. 2003). The Board’s factual findings and its application

of the law to those facts are conclusive “if supported by substantial evidence on the

record considered as a whole.” Id. (quoting 29 U.S.C. § 160(e)). “This test requires not

the degree of evidence which satisfies the court that the requisite fact exists, but merely

the degree that could satisfy the reasonable fact finder.” Frenchtown Acquisition Co. v.

NLRB, 683 F.3d 298, 304, (6th Cir. 2012) (quoting Rochelle Waste Disposal, LLC v.

NLRB, 673 F.3d 587, 592 (7th Cir. 2012)) (internal quotation marks omitted); see also
No. 10-2549 NLRB v. ADT Sec. Serv. Page 6

Williamson v. NLRB, 643 F.3d 481, 485 (6th Cir. 2011) (determining that substantial

evidence is evidence that a reasonable person might accept as adequate to uphold the

Board’s decision, “even if there is also substantial evidence for an inconsistent

conclusion”). We may not “displace the Board’s choice between two fairly conflicting

views, even though the court would justifiably have made a different choice had the

matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951).

Although we review the Board’s legal conclusions de novo, NLRB v. Good

Shepherd Home, Inc., 145 F.3d 814, 816 (6th Cir. 1998), we uphold the Board’s

interpretation of the Act “as long as it is a permissible construction of the statute,”

Williamson, 643 F.3d at 485 (internal quotation marks omitted). As we noted in NLRB

v. Plainville Ready Mix Concrete,“the facts and complexities of the bargaining process

are ‘particularly amenable to the expertise of the Board as factfinder,’ and ‘few issues

are less suited to appellate judicial appraisal than evaluation of bargaining processes or

better suited to the expert experience of a Board [that] deals constantly with such

problems.’” 44 F.3d 1320, 1326 (6th Cir. 1995) (quoting Bolton-Emerson, Inc. v. NLRB,

899 F.2d 104, 108 (1st Cir. 1990)).

B. ADT’s Withdrawal of Recognition of Local Union 131

ADT claims the Board erred in its determination that the fourteen former

Kalamazoo employees remained an appropriate bargaining unit following June 2. ADT

asserts that its withdrawal of recognition of the Union was lawful because, following

consolidation of the Kalamazoo and Wyoming servicemen, the Kalamazoo employees

were no longer a distinct bargaining unit.

Section 9(b) of the Act vests in the Board authority to determine

“the unit appropriate for the purposes of collective bargaining.”

29 U.S.C. § 159(b). Determining an appropriate bargaining unit is closely tied to the

unique facts of any given case. Bry-Fern Care Ctr., Inc. v. NLRB, 21 F.3d 706, 709 (6th

Cir. 2009). In making a unit determination, the Board must select an “appropriate”

bargaining unit. 29 U.S.C. § 159(b). “Often there will be a range of appropriate units,
No. 10-2549 NLRB v. ADT Sec. Serv. Page 7

and the Board is not required to select the most appropriate unit.” Bry-Fern, 21 F.3d at

709 (emphasis in original) (citing American Hosp. Ass’n v. NLRB, 499 U.S. 606, 610

(1991)).

In evaluating the appropriateness of the Board’s designation of a bargaining unit,

we apply a “community of interests” test which requires simply that groups of

employees in the same bargaining unit “share a community of interests sufficient to

justify their mutual inclusion in a single bargaining unit.” Id. The “community of

interests” test includes the following factors: (1) similarity in skills, interests, duties and

working conditions; (2) functional integration of the plant, including interchange and

contact among the employees; (3) the employer’s organization and supervisory structure;

(4) the bargaining history; and (5) the extent of union organization among the

employees. Id.

“Because of its wide experience, the Board should be given some deference in

its selection of an appropriate bargaining unit through the application of the ‘community

of interests’ test.” Armco, Inc. v. NLRB, 832 F.2d 357, 362 (6th Cir. 1987) (citing South

Prairie Constr. Co. v. Local 627, Operating Eng’rs, 425 U.S. 800 (1976)). The Board’s

ultimate determination as to the appropriate unit must be upheld unless it is arbitrary,

unreasonable, or an abuse of discretion. Id. Therefore, although we review the Board’s

underlying factual findings for substantial evidence, we give the Board’s ultimate

weighing of those findings within the “community of interests” test more deference by

applying an abuse of discretion standard of review.

Further, the Supreme Court has held that it is within the Board’s purview to

develop rules “to circumscribe and to guide its discretion” in deciding disputes over the

appropriateness of a unit. American Hosp. Ass’n, 499 U.S. at 611-12. The Board has

done so by determining that bargaining history between the parties impacts the balancing

of factors in the “community of interests” test. Where an existing bargaining unit is

present, “[t]his fact alone suggests the appropriateness of a separate bargaining unit,”

Armco, 823 F.2d at 363, and the Board has required “compelling circumstances” to

overcome the significance of the bargaining history. Fisher Broadcasting, Inc.,
No. 10-2549 NLRB v. ADT Sec. Serv. Page 8

324 N.L.R.B. 256, 261 (1997). Such a determination is both within the Board’s

authority and its expertise. And it applies here. ADT is required to establish that

compelling circumstances overcome the almost twenty-nine-year bargaining history

between the parties. We turn to application of these standards to the facts.

There is no disagreement over the fact that, under the first factor of the

community-of-interests test, both the Kalamazoo and Wyoming servicemen have similar

skills and duties. However, they continued to exercise those skills in their own distinct

geographical areas. Under the second factor, the Board found that the record does not

establish that the Kalamazoo servicemen were “absorbed” or “integrated” into a unit

including all the servicemen who work out of the Wyoming facility. The Board noted

that “some of the most fundamental terms of employment that distinguished the

Kalamazoo servicemen from the Wyoming servicemen . . . not only remained intact

following the closure of the Kalamazoo facility, but continued to separate them from the

Wyoming servicemen.” Specifically, relying on the different “labor markets” in the

Kalamazoo service territory and the Wyoming/Grand Rapids service territory, ADT

continued to pay the former Kalamazoo servicemen lower wages and lower piece rates

than its Wyoming servicemen, even when the Kalamazoo servicemen answered calls in

the Wyoming service territory. The Board also noted that the ADT dispatch center

maintained separate “on call” lists for emergencies in the Kalamazoo and Wyoming

service territories. Under our deferential review, there is substantial evidence to support

the Board’s factual conclusion that the Kalamazoo employees were not functionally

integrated into the Wyoming facility and remained a distinct unit of servicemen.

Relating to the third factor, though previously working under different

intermediate supervisors, following consolidation both Wyoming and Kalamazoo

servicemen worked under the same intermediate supervisors. No change was made to

senior supervision as Rogers was the senior manager over both units of servicemen

before and after June 2. Although common supervision is a factor favoring a

determination that a unit has lost its separate identity, the Board weighed this factor less

heavily because the servicemen work out of their homes, have no onsite supervision, and
No. 10-2549 NLRB v. ADT Sec. Serv. Page 9

do not see their supervisors on a daily basis. See In re Comar, Inc., 339 NLRB 903, 909

(finding a distinct, appropriate bargaining unit remained notwithstanding common

supervision following relocation), enf’d 111 F. App’x 1 (D.C. Cir. 2004). The Board’s

finding that the servicemen were relatively independent from their intermediate

supervisors is clearly supported by substantial evidence given the consistent testimony

that the servicemen’s regular contact with their supervisor was almost exclusively by

phone with only sporadic in-person contact. In fact, the ALJ noted that the supervisor

“automatically calls them every Monday” and that “[a]pparently he just goes down the

list.”

Given the long and well established bargaining history between ADT and the

Union, factors four and five weigh strongly in favor of finding that the Kalamazoo

employees remained a distinct bargaining unit. The Board found the change in

intermediate supervisors did not amount to “compelling circumstances” that would

overcome the twenty-nine year bargaining history between the Union and ADT and the

fact that the Kalamazoo servicemen worked in their own separate historical unit that

maintained its integrity and remained distinct from the Wyoming servicemen.

We hold that the Board’s underlying factual conclusions, which form the basis

for its ultimate determination, are supported by substantial evidence. Based on those

findings, the Board did not abuse its discretion in (1) its application of the “community

of interests” test, (2) its determination that ADT had not shown “compelling

circumstances” to overcome the parties’ long bargaining history, and (3) its conclusion

that the former employee unit maintained its integrity following the closure of the

Kalamazoo facility and continued to be an appropriate unit with which ADT was

obligated to bargain. Given the deference to which the Board is entitled, we decline to

disturb the Board’s holding that ADT violated Sections 8(a)(1) and 8(a)(5) of the Act.

We turn now to the propriety of the Board’s Order.
No. 10-2549 NLRB v. ADT Sec. Serv. Page 10

C. Clarity of the Board’s Order

In its Order, the Board defined the bargaining unit as “servicemen regularly

assigned to work in the Kalamazoo service territory . . . .” In doing so, the Board

modified the definition from the collective bargaining agreement, which included

“servicemen employed by the Respondent at its Kalamazoo, Michigan facility . . . .”

ADT argues that this modification is beyond the Board’s power and that the description

of the bargaining unit is impermissibly vague.

The Board is granted broad discretion in fashioning remedies for violations of

the Act. As the Supreme Court has noted, “the Board draws on a fund of knowledge and

expertise all its own, and its choice of remedy must therefore be given special respect

by reviewing courts.” NLRB v. Gissel Packing Co., 395 U.S. 575, 613 n.32 (1969);

accord Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1300 (6th Cir. 1988). Therefore,

we will not disturb a Board’s remedial order “unless it can be shown that the order is a

patent attempt to achieve ends other than those which can fairly be said to effectuate the

policies of the Act.” Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943).

There is no such showing here.

The Board’s modification of the bargaining-unit description merely reflects the

realty that those employees are no longer employed at the Kalamazoo facility. Having

already determined that the unit retained its separate identity and remained an

appropriate bargaining unit following consolidation, the Board’s modification to more

accurately describe the bargaining unit is within the Board’s power and discretion. See

In re Comar Inc., 339 N.L.R.B. at 904 (requiring employer to continue to bargain with

representative of relocated employees and describing the unit in terms of those

“performing the work that was formerly done” at the previous plant), enf’d 111 F. App’x

1 (D.C. Cir. 2004).

Further, we find that the Board’s choice to geographically describe the unit is not

a patent attempt to achieve ends which do not effectuate the policies of the Act. The

Board’s choice appropriately flows from the evidence in the record: ADT still makes the

distinction between service areas, including the Kalamazoo service territory, using a
No. 10-2549 NLRB v. ADT Sec. Serv. Page 11

computer numbering system that separately identifies jobs performed in a particular area;

ADT still assigns Kalamazoo servicemen to work in a specific subdivision of the

Kalamazoo service territory as delineated by a color-coded map; and, most notably, ADT

still pays Kalamazoo servicemen a lower hourly and piece rate based on a discernable

labor market in the Kalamazoo service territory. It is within the Board’s purview to

determine the appropriate bargaining unit and to develop standards for ascertaining

whether one unit is more appropriate than another. See Am. Hosp. Ass’n v. NLRB,

499 U.S. 606, 611-12 (1991). The Board’s choice to describe the bargaining unit using

the same methods of distinction that ADT uses to assign work and pay to its employees

cannot be said to deviate from the policies of the Act.

III. CONCLUSION

For the foregoing reasons, we GRANT the Board’s Application for Enforcement

of its Order.