ADT Security Services

National Labor Relations Board - Administrative Judge Opinions

Jun 17, 2019

03-CA-230714 (N.L.R.B. Jun. 17, 2019)

JD–51–19
Orem, UT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ADT, LLC, d/b/a ADT SECURITY SERVICES
and Case Nos. 03-CA-230714
03-CA-234585
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 43
Caroline Wolkoff, Esq., for the General Counsel.
Jeremy Moritz, Esq., (Ogletree Deakins Nash Smoak & Stewart, PC, Chicago, Illinois)
for the Respondent.
Bryan Arnault, Esq, (Blitman & King, Syracuse, New York)
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Albany, New York
on April 17, 2019. IBEW Local 43 filed the charges giving rise to this case on November 8, 2018
and January 24, 2019. The General Counsel issued a consolidated complaint in both cases on
March 1, 2019.
The General Counsel alleges that, on or about October 10, 2018, Respondent by Ben
Clark, Vice-President Central Operations, solicited employees’ signatures for a decertification
petition in violation of the Act. He alleges this solicitation also constitutes an illegal
interrogation and polling of employees’ union sentiments. The General Counsel further alleges
that Clark provided more than ministerial assistance in assisting employees to decertify the
Union.
Additionally, the General Counsel alleges that Respondent violated the Act by
withdrawing recognition from the Union on November 2, 2018, refusing to sign a collective
bargaining agreement, the terms of which it had agreed to on October 18, 2018, and failing to
continue in effect the terms of that agreement by granting a wage increase to unit member John
Brady and repudiating the dues deduction provisions of that agreement.
JD–51–19
2
On the entire record,1 including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, Respondent and Charging Party Union,
I make the following
5
FINDINGS OF FACT
I. JURISDICTION
Respondent, ADT, LLC is a Delaware corporation that has its headquarters in Orem, 10
Utah. ADT installs and services residential and commercial security systems throughout the
United States, including the State of New York. Respondent derives annual revenues in excess
of $500,000 and purchases goods and materials valued in excess of $5,000 directly from points
outside of New York State. Respondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union, 15
International Brotherhood of Electrical Workers (IBEW) Local 43, is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
20
In 1968, IBEW Local 43 was certified as the exclusive bargaining representative of
ADT’s installers and service technicians at its facility in Albany, New York.2 As of mid-2017,
ADT maintained an office in Clifton, New York. In September 2017, it closed that facility.
Afterwards, installers and service technicians worked out of their homes and reported to a
supervisor in Orem, Utah.25
A collective bargaining agreement between the Union and ADT ran from June 11, 2015-
June 10, 2018. The parties engaged in negotiations for a successor agreement. They had a
preliminary meeting in May 2018 and then had 2 negotiating sessions; the first on September 7,
2018; the second and last on October 18, 2018. On September 7, the Union was represented by 30
Alan Marzullo, Local 43’s Business Manager, Richard Gooden, Assistant Business Manager and
John Brady, a bargaining unit member.3 Respondent was represented by James Nixdorf, senior
director of labor relations for ADT in North America.
On October 9, 2018, Ben Clark, ADT’s vice-president for central operations sent the 35
following message by text and email to Kenneth Johnson and David Hardy, who were
performing installation and service work for ADT in the Albany area, G.C Exhs. 2 and 15.4

1 Line 18 on transcript page 142 should read “objective” rather than “subjective.”
Line 19, on transcript page 132 should be Arnault rather than Moritz.
2 Local 43 also represents a bargaining unit in Syracuse, New York.
3 As of March 2018 ADT had 6 installers working in the Albany area. John Brady and Joe Reid, who
were ADT employees and union members, Dave Hardy, whose status at the time is unclear and 3
contractor employees, one of whom was Kenneth Johnson, G.C. 24. Reed’s employment with ADT
ended in August 2018. Brady, like Johnson, worked installing and servicing ADT equipment for a
contractor, Tech Systems, prior to being placed on the ADT payroll in January 2017.
4 When Johnson became an employee of ADT, as opposed to an employee of a subcontractor,
is unclear. Johnson began doing installation work for ADT in January 2018. He did not
JD–51–19
3
Dave, Ken,
We are at a point where I need to get your intentions in writing to help us move forward
with the union.5
I wanted to give these 4 in each area to at least inform you about Unions. Basically, they
are casing (sic) more dues and increased hardships for you. In the past, the unions helped
create correct working cultures to ensure employees were treated fairly. This is not the
case today. HR is working hard to protect your rights, and ensure you have every tool 10
and support needed to protect your employment. States have laws that companies must
follow. Paying a union to do what a company must due (sic) to laws and regulations
places a middle man in the works, that you must pay due (sic) to have, that is no longer
needed.
15
Here are a few Pros and cons of the union.
Pros:
1. Unions can increase pay and benefits for workers.20
a. Both union and non-union are effected by any increase.
2. Unions set up formal procedures for disputes.
25
a. Can make it easier to handle disputes. These roles are now supported by HR.
3. Unions make political organizing easier.
a. Can make it easier to advance political causes.30
4. Unions set Norms and Regulations
a. Work to ensure standards are met like the 40 hour work week.
35
Cons:
1. Unions can make it harder to promote great workers.
a. Unions tend to follow seniority. This can limit work to less experienced 40
employees and dismiss poor work from a senior person.

officially become an ADT employee until after ADT withdrew recognition from the Union on
November 2, 2018, Tr. 252-53.
JD–51–19
4
2. Unions can require dues and fees.
a. Unions force you to join and set the price you must pay.
5
3. Unions can make it hard to diversify the workplace.
a. Unions have a closed culture and tend to protect member misconduct.
4. Unions can drive up the cost and cause bad relationships between labor and 10
management.
To ensure we are able to move forward and hire without limitations forcing new hires to
join the union, I need a written or typed letter stating the following.
15
“I Dave Hardy or Kenneth Johnson, do not want to be represented by the IBEW.
“Sign and date” (handwritten signature).
I need your actual copy so I will sent (sic) label to overnight to me. Please get this done 20
tomorrow.
Thank you very much! Call if you have questions.
Clark provided Hardy and Johnson shipping labels to use in sending their letters back to 25
him.
Ken Johnson was working with ADT employee and Local 43 member John Brady when
he received this message as text on his phone. Johnson showed the message to Brady and let
him take photographs of the message. Brady texted the photo to Richard Gooden, Assistant 30
Business Manager of Local 43.
Clark followed-up on his email/text to Hardy and Johnson on October 10, asking them to
let him know, “when you get this done!” On the morning of October 12, Clark emailed Johnson
and Hardy again. He asked, “Please update me on the progress of this. This needs to be 35
completed today, I had planned on the letters arriving today, but I have not heard back on this
from either of you.” G.C. Exh. 17. There is no explanation in this record for Clark’s impatience.
In the absence of such explanation, I infer his impatience was due to Respondent’s desire to
withdraw recognition before or at the bargaining session scheduled for October 18.5

5 That ADT had plans to decertify the Union is indicated in an email from Logan Cornwall
on which Clark was copied in January 15, 2018. Cornwall stated, “ADT is in the process of
decertifying the Union in Albany.” G.C. Exh. 29. Respondent’s suggestion that Cornwall’s
use of the term “decertification” referred to the closing or consolidation of the Albany office
and not to decertification of the Union is not credible. Ben Clark used the same word in an
inquiry to James Nixdorf on January 16 and Nixdorf used the word in replying to Clark.
Ibid. It defies credulity that Clark and Cornwall thought decertification was the same thing as
JD–51–19
5
At 7:20 p.m. on October 12, Clark texted Hardy, “Dave, I have not heard from you about
the union letter. What’s the progress?” Hardy responded, “I’ll get back to U I literally get home
sleep wake up and get back to it.” Clark replied, “Thank you, I get you are busy. I only ask that
you keep me updated if unable to make [rest of text not included in exhibit]. Hardy wrote back, 5
“I don’t have a printer can I hand write it and text a picture of it?” Clark replied, “No, but you
can hand write it and then mail that letter back to me. It does not have to printed very simple just
says I Dave Hardy do not want to be represented by the IBEW. Sign and date and then overnight
it back to me with the label you can walk in to FEDEX with that label and they can print it for
you.” G.C. Exh. 28.10
At 7:27 p.m. Clark texted Johnson, “Ken, I need an update on the union I requested.
Please update me on the progress. Thank you,” G.C. Exh. 27. Clark had additional telephone
conversations with Johnson on October 19 and 22. There is no evidence in this record as to the
substance of these conversations apart from what size uniform Johnson required. Clark was at 15
least 2 levels above Johnson and Hardy in the company hierarchy. Their immediate supervisor
had recently been terminated, thus, they reported to Logan Cornwall, who reported to Clark.6 It
is very unlikely that someone at Clark’s level would call Johnson merely to discuss pants sizes.
October 12, David Hardy signed a statement that he did not want to be represented by the 20
IBEW.7 Ken Johnson signed an identical statement on October 23. These statements were sent
to Ben Clark with the shipping labels he provided. Clark transmitted those statement to James
Nixdorf on October 24.
On October 16, 2018, Local 43 Business Manager Alan Marzullo sent an email to Labor 25
Relations Director Nixdorf. Referring to Ben Clark’s October 9 text message to Ken Johnson
and Dave Hardy, Marzullo stated:
If ADT is unwilling to disavow these statements, I will be filing a ULP charge
with the NLRB to address this matter.30
ADT must immediately send a letter to Dave Hardy and Kenneth Johnson
retracting the Clark communications, indicating the Union is the designated bargaining
representative for the bargaining unit, and advising it will not, in any way, interfere with
the employees’ ability to join or be represented by the Union. If a letter is not sent by 35
close of business on Friday, October 19, the Union will file a ULP charge on Monday
morning.

the physical closing of the Albany office. Moreover, the opening of Clark’s October 9
message, “We are at a point where I need to get your intentions in writing to help us move
forward with the union,” suggests a pre-existing plan to get rid of the Union in Albany.
6 In April 2019, John Brady reported to Anthony Ferra, who reported to Cornwall, who reported to
Ben Clark.
7 However, on October 23, Clark reported to Nixdorf that Hardy was avoiding returning the Union’s
calls because he did not know if he was staying in New York or if he wanted to join the Union, G.C. Exh.
32.
JD–51–19
6
Marzullo and Nixdorf also discussed the Clark text by telephone on October 16.
Events of October 18, 2018
At the parties’ second and last bargaining session, October 18, 2018, ADT, represented 5
by James Nixdorf, and the Union, represented by Business Manager Marzullo and Assistant
Business Manager Gooden, reached agreement on a successor collective bargaining agreement
effective retroactively from June 11, 2018-June 10, 2021.8 In accordance with its past practice
the Union proposed to submit the contract to a ratification vote by its members.9
10
During this meeting James Nixdorf’s computer failed and he borrowed Marzullo’s
computer. He drafted a letter on Marzullo’s computer to send to Ken Johnson, Dave Hardy and
John Brady about the October 9 text/email Johnson and Hardy received from Ben Clark.
Nixdorf then sent the following email to Marzullo and Gooden.
15
As we discussed yesterday, I appreciate your offer to resolve this issue without going
through the ULP process. I know Ben had been asked questions regarding the union and
the text was he thought an efficient way to respond. Below is the e-mail I plan to send
out. I[s] there anything else you think I should add?
20
You may have received a text message from Ben Clark in response to some questions
raised regarding the IBEW.10 I wanted to clarify any confusion which may have occurred
and ensure that ADT has a clear policy and will treat employees fairly regardless of
whether they belong to a union or not. ADT will honor its obligations with the IBEW
and any other union and negotiate in good faith. Make no mistake, the decision to be 25
represented by a Union or not rests solely with employees. ADT will honor its
employees decision.
As you may or may not know, there is an expired collective bargaining agreement which
ADT is negotiating with the IBEW. All employees working the service territory formerly 30
covered by the Albany office are covered by the terms and conditions of that contract;

8 Respondent submits that, “no rational employer would embark upon these schemes [to withdraw
recognition] only to fully undermine the alleged effort by reaching a final tentative agreement after only
two or three bargaining sessions, R. brief at 3. While this would appear to be correct in the abstract, other
evidence, such as Ben Clark’s impatience in getting responses from Hardy and Johnson, indicates the
contrary. It is well within the realm of possibility that Respondent expected the desired responses from
Hardy and Johnson before the October 18 meeting. Also, Respondent had no way of knowing that
Johnson would show the October 9 message to Brady and that the Union would find out about it.
9 The Union’s by-laws do not require ratification. Local 43 could have signed the CBA on October
18. In 2009, the agreement reached between Local 43 and ADT was rejected in the ratification vote.
Afterwards, ADT and the Union returned to bargaining table.
10 There is no credible evidence that Clark’s email/texts were made in response to any inquiry by
Hardy and/or Johnson. In fact, John Brady’s account of his conversation with Johnson on October 9 or
10, establishes that Johnson had no idea why he was receiving this message from Clark, Tr. 35. I do not
credit Ben Clark’s testimony on this point at Tr. 172. There is no evidence that either Hardy or Johnson
had been contacted by the Union prior to October 9.
JD–51–19
7
however, there are some provisions, since the contract is expired, which currently do not
apply. Once the contract is renewed all provisions will apply.
Marzullo approved the text on October 18 and never suggested that ADT say anything
else to the three employees about the Clark text. Nixdorf then emailed a letter to Hardy, Johnson 5
and Brady, R. Exh. 3; on October 18, which is identical to the last 2 paragraphs of the draft
shown to Marzullo, Tr. 239.11 The Union also did not file an unfair labor practice charge about
the Clark text message prior to November 8, 2018, Tr. 136-142.
The ratification vote was originally scheduled for October 25. Nixdorf asked the Union 10
to delay it pending the completion of paperwork to put Ken Johnson on its payroll. The vote was
rescheduled for November 2, 2018.
Ben Clark’s November 1, 2018 text message to John Brady
15
On the morning of November 1, 2018, Ben Clark sent the following text to John Brady.
Good morning John. This is Ben from ADT. I have been informed your offer letter has
been sent. Please check your email and complete the packet as soon as possible. Call
with any questions! Very excited to get you working.20
G.C. Exh. 26.
Clark explained that the purpose of this text was to switch Brady from a union employee
to a non-union employee, Tr. 208-09.25
This text indicates that Respondent planned to withdraw recognition from the Union
before it received the communications from Dave Hardy and Ken Johnson on November 2, on
which it now relies.12

11 Nixdorf’s letter to the employees concluded, “If you have any further questions regarding the
contract, please feel free to contact me at the number below.”
12 Respondent characterizes Clark’s emails as an inadvertent product of his lack of experience with
regard to union matters. It defies credulity to believe that a manager of Clark’s rank would transmit a
message such as the October 9 message without checking with someone more knowledgeable. Indeed,
the record shows that Clark knew who to call and had discussed union matters regarding Albany with
Nixdorf previously. On January 16, 2018 he sent the following inquiry to Nixdorf.
Jim,
Can you give us an update on the Union Status in Albany? We have a tech coming off leave from an
injury over a year ago. Last we talked the union was in the process of decertifying and I would like
some direction on what to do with this tech.
Nixdorf responded
Sorry about the delay. I’m in the middle of a union decertification campaign in Seattle (90
employees). I will give you a call tomorrow to discuss.
G.C. Exh. 29.
JD–51–19
8
Events of November 2, 2018
John Brady invited David Hardy and Kenneth Johnson to the ratification vote scheduled
for November 2. Union Assistant Business Manager Richard Gooden spoke to David Hardy on 5
November 2. During that conversation Hardy told Gooden that he and Ken Johnson would vote
against ratification. Gooden responded that unless Hardy and Johnson joined the Union, they
would not be allowed to vote.
While waiting for a flight at the Lexington, Kentucky airport on the afternoon of 10
November 2, 2018, ADT Labor Relations Director James Nixdorf received a telephone call from
David Hardy.13 Hardy told Nixdorf that he had received a call from union assistant business
manager Richard Gooden who informed him that there would be a vote on whether to ratify the
collective bargaining agreement that evening. According to Nixdorf, Hardy told him neither he
nor Ken Johnson wanted anything to do with the Union.14 Nixdorf told Hardy that if that was the 15
case he could sign a petition to that effect and have Johnson sign it as well. Tr. 256.15
At 2:35 p.m. on November 2, Hardy sent Nixdorf a statement signed by himself and
Johnson stating that they “choose not to be members of the international brotherhood of
electrical workers.” Nixdorf texted back to Hardy that the statement, “needs to say not 20
represented by…,” R. Exh. 7.16
At 2:46 p.m. Eastern Time, Nixdorf informed Business Manager Marzullo that
Respondent had objective evidence that the Union no longer represented a majority of unit
employees in Albany and that Respondent was withdrawing recognition from the Union, G.C. 25
Exh. 9. After Respondent withdrew recognition, Hardy followed up at 2:51 with a revised
statement stating that he and Johnson no longer wished to be represented by the Union, G.C.
Exh. 10, pg. 2.
The same evening the Union held its ratification meeting. Although John Brady invited 30
Johnson and Hardy to the meeting, neither showed up. After waiting until 5:42, Brady, the only
union member, voted to ratify the tentative agreement reached on October 18.

13 At page 13 of its brief, Respondent states, “There is no evidence that Clark, Nixdorf, or any other
Company official communicated with employees regarding union related issues between October 18,
2018 and November 2, 2018.” To the contrary there is a strong indication that Clark spoke to Hardy
about the Union on or about October 23, G.C. Exh. 32.
14 Neither Hardy nor Johnson testified in this proceeding.
15 As the General Counsel points out in its brief at footnote 8, page 12, there is no evidence explaining
how Hardy and Johnson knew that their October 12 and 23 signatures were not sufficient and that
additional signatures were required to decertify the Union. I infer this was communicated to them by
Respondent at some point not reflected in this record.
16 I do not credit Nixdorf’s testimony at Tr. 258 that Hardy had already explained what he wanted to
do. This is somewhat inconsistent with Respondent’s representation that neither Nixdorf nor Clark had
any union-related discussions with Hardy between October 18 and November 2. If Nixdorf was referring
to Hardy’s October 12 statement, that was tainted by Clark’s unlawful solicitation. If he is referring to his
November 2 conversation with Hardy, Nixdorf’s testimony at Tr. 255-56 belies the notion that Hardy
came up with the idea that he didn’t want union representation without prompting from Nixdorf.
JD–51–19
9
On November 7, 2018, the Union demanded that Respondent sign the collective
bargaining agreement agreed to on October 18. Respondent refused to do so on the grounds that
the Union no longer represented its Albany employees. Respondent ceased deducting and
remitting union dues and granted John Brady a wage increase in accordance with its policies for 5
unrepresented employees.
Issues
Was Respondent entitled to rely on the November 2, 2018 statements from David Hardy 10
and Ken Johnson in withdrawing recognition from the Union?
Did Respondent sufficiently disavow the text/email messages sent to Hardy and Johnson
on October 9, 2018?
15
Did the Union waive its right to object to withdrawal due to failure to object to Nixdorf’s
email to Hardy and Johnson on October 18, 2018, or demand changes or additions to that
email?
Did Respondent, by Ben Clark, illegally interrogate employees and/or poll them about 20
their union sympathies?
ANALYSIS
Respondent, by Ben Clark, illegally solicited messages from employees stating that they 25
did not wish to be represented by the Union and illegally interrogated and polled employees.
An employer violates Section 8(a)(1) by “actively soliciting, encouraging, promoting or
providing assistance in the initiation, signing, or filing of an employee petition seeking to
decertify a bargaining representative. In determining whether an employer’s assistance is 30
unlawful, the appropriate inquiry is whether an employer’s assistance constitutes more than
ministerial aid. In making that inquiry, the Board considers the circumstances to determine
whether “the preparation, circulation, and signing of the petition constituted the free and
uncoerced act of the employees concerned,” Mickey’s Linen & Towel Supply, 349 NLRB 790,
791 (2007); Sociedad Espanola de Auxilo Mutuo y Beneficencia de P.R., 342 NLRB 458, 459 35
(2004).
There is no question that Respondent, by Ben Clark, violated Section 8(a)(1) by soliciting
letters from David Hardy and Kenneth Johnson disavowing representation by the Union.
Moreover, he violated the Act by monitoring their response to his solicitation. By doing so, he 40
put Hardy and Johnson in the position of risking his displeasure if they did not follow through
and submit letters rejecting representation by the Union, Bay Area Mack, 293 NLRB 125, 133-34
(1989). His messages also constituted an illegal interrogation and polling as to their attitude
towards the Union.17

17 The Board’s standards for evaluating alleged interrogations are set forth in Rossmore House, 296
NLRB 1176 (1976) enfd. 760 F. 2d 1006 (9th Cir. 1985); and Kellwood Co., 299 NLRB 1026
JD–51–19
10
Respondent did not sufficiently disavow Ben Clark’s October 9 text/email prior to
withdrawing recognition from the Union?
In order to relieve itself of liability for unlawful conduct by repudiating the conduct, such 5
repudiation must be timely, unambiguous and specific in nature to the coercive conduct . It also
must be adequately publicized and there must be no proscribed conduct by the employer after the
publication. The disavowal should also give assurances to employees that in the future the
employer will not interfere with the exercise of their Section 7 rights, Passavant Memorial Area
Hospital, 237 NLRB 138, 139 (1978).10
Nixdorf’s letter to unit employees falls short of the Board’s requirements in Passavant.
Most notably it does not address that fact that Ben Clark blatantly violated the Act by soliciting
decertification letters from employees and by interrogating and polling them. Moreover,
Nixdorf’s letter addresses only “a text message from Ben Clark.” It does not address the follow-15
up messages Clark sent the employees of October 10 and 12. Respondent’s failure to
specifically disavow Clark’s wrongdoing is fatal to its attempt to negate its coercive effect,
Rivers Casino, 356 NLRB 1151, 1152-53 (2011); Holly Farms Corp., 311 NLRB 273, 274
(1993) enfd. 48 F.3d 1360 (4th Cir. 1994); Pacific Coast M.S. Industries, 355 NLRB 1422, 1422-
23 fn. 9 (2010). Nixdorf’s desire to clarify “confusion” doesn’t repudiate anything and thus fails 20
to adequately disavow Clark’s conduct, Powellton Coal Co., 354 NLRB 419, 419 fn. 2, 422,
incorporated by reference Powellton Coal Co., 355 NLRB 407 (2010)
Further, the letter does not give any assurances that Respondent will not engage in such
solicitation/interrogation in the future. Specific repudiation of Clark’s text/email and follow-up 25
messages is necessary to cure his violation of the Act. Particularly in this case where 2 of the
unit employees were new to ADT [indeed Kenneth Johnson was not yet an ADT employee]
several messages from a high-level manager expressing his desire that employees disavow
representation is highly coercive. If there was any doubt in employees’ minds as to how
important decertification was to Clark and ADT, he dispelled such doubt with his follow-up 30
messages on October 10 and 12 [of which the Union was not aware]. The delay by Hardy and
particularly by Johnson in responding to Clark’s entreaties is a strong indication that they were in
fact coerced.

(1990).Whether interrogation violates the Act depends on several factors: the background of the
interrogation, e.g., the hostility of the Respondent towards unionization; the nature of the information
sought, i.e., whether the interrogator appears to be seeking a basis to retaliate against the employee; the
identity of the questioner, i.e., his or her place in the company hierarchy; the place and method of
interrogation, the truthfulness of the interrogated employee’s reply and whether or not the employee
questioned was an open and active union supporter. These factors are not to be applied mechanically,
Camaco Lorain Mfg. Plant, 356 NLRB 1182 (2011). Applying these factors, I find Clark’s inquiry to be
illegal based his position in the company, the obvious hostility expressed towards unionization and the
fact that there is no evidence that Hardy or Johnson had expressed an opinion about unionization
beforehand. As an employee not yet on the ADT payroll, Johnson was likely to very susceptible to
coercion. I also find that Respondent illegally polled employees as to their union sympathies.
Respondent did not observe the safeguards required, Struksnes Construction Co, 165 NLRB 1062 (1967).
JD–51–19
11
Finally, Respondent, by James Nixdorf, violated the Act on November 2, 2018, as
discussed below, in rendering more than ministerial assistance to the decertification effort. This
proscribed conduct also negates any attempt by Respondent to claim that it effectively
disavowed the misconduct by Ben Clark.5
The Union did not waive its right to object to the withdrawal of recognition by tacitly
giving its approval to Nixdorf’s October 18, 2018 email.
The Union’s tacit approval of Nixdorf’s October 18 email to unit employees did not 10
waive its right to object to Respondent’s withdrawal of recognition. This is so because its
approval was not given with full knowledge of the extent of Clark’s coercion of unit employees.
There is no evidence that the Union was aware of Clark’s highly coercive follow-up messages to
Ken Johnson and David Hardy on October 10 and October 12. Even if the Union could be
deemed to have waive its right to object to withdrawal in other circumstances, its lack of 15
awareness of the extent of Clark’s coercion negates any basis for finding a waiver in this
instance. Waiver applies only where a party has acted with full knowledge of the facts, Roadway
Express, 355 NLRB 197, 203 fn. 25 (2010) (dictum) citing Middlesex Mutual Insurance Co. v.
Levine, 675 F. 2d 1197, 1204 (11th Cir. 1982).
20
James Nixdorf also violated the Act by providing more than ministerial assistance to
Hardy and Johnson on November 2, 2018.
In Eastern States Optical Co., 275 NLRB 371, 372 (1985) the Board set forth the
standard to be applied with regard to what conduct constitutes sufficient ministerial assistance to 25
invalidate a decertification petition. The Board stated:
…it is unlawful for an employer to initiate a decertification petition, solicit signatures for
the petition or lend more than minimal support and approval to the securing of signatures
and the filing of the petition. In addition, while an employer does not violate the Act by30
rendering what has been termed “ministerial aid,” its actions must occur in a situational
context free of coercive conduct. In short, the essential inquiry is whether “the
preparation circulation, and signing of the petition constituted the free and uncoerced act
of the employees concerned, KONO-TV-Mission Telecasting, 163 NLRB 1005, 1006
(1967).35
First of all, Nixdorf’s message to Hardy was more than “ministerial aid.” Whether
employees are expressing a desire not to be represented, as opposed to disavowing union
membership goes to the heart of their communication to their employer. The Board has held for
over 40 years that there is no necessary correlation between membership and the number of 40
union supporters since no one could know how many employees who favor union bargaining do
JD–51–19
12
not become or remain members, Terrell Machine Co., 173 NLRB 1480, 1481 (1973). A
statement that explicitly refers only to union membership is insufficient to support the conclusion
that employees do not wish to be represented by the Union, Anderson Lumber Co., 360 NLRB
538 (2014), enfd. sub nom. Pacific Coast Supply, LLC v. NLRB, 801 F. 3d 321, 331-34 (D.C.
Cir. 2015).185
In Eastern States Optical the Board found that the employer did not render unlawful
assistance in the preparation of the certification petition. However, even assuming that Nixdorf’s
assistance on November 2 was ministerial, the instant case is distinguishable in that the initiative
for a decertification letter came from Respondent’s vice-president for central operations; not 10
from unit employees. In Eastern States Optical employees called Respondent’s attorney after
they decided to seek decertification. In this case, there is no evidence that either Hardy or
Johnson was thinking of decertification until Clark lobbied them for a decertification letter. Also,
in Eastern States Optical, it was unclear whether Respondent’s attorney did anything more than
review what the employees had written and told them, “that sounds alright to me.” In the instant 15
case the language of the employees’ letter was not merely reviewed by Clark and then by
Nixdorf. It was Clark and then Nixdorf that dictated the content of the letters.
The employees’ failure to respond to Clark’s requests and his follow-up of his initial texts
is also evidence that their decertification letters were not free and uncoerced acts. Moreover, on 20
October 9 and 10, Clark specifically asked the employees for a statement that they do not wish to
be represented by the Union. In spite of this, on November 2, Hardy and Johnson submitted a
letter stating only that they did not want to be union members. This leaves open the possibility
and maybe the likelihood that this is what they wanted until prompted or pressured by Nixdorf.
25
Finally, Respondent did not sufficiently disavow Clark’s conduct in its letter to
employees. Thus, Nixdorf’s prompting as to what they must write did not occur in an
atmosphere free of coercion. In conclusion, Nixdorf’s assistance in advising Hardy and Johnson
that their statements had to say that they didn’t want to be represented by the Union, rather than
not merely be members, violated the Act.30
COUNCLUSION OF LAW
1. Respondent by Ben Clark violated Section 8(a)(1) by:
35
a. Soliciting employees to disavow representation by the Union on October 9, 2018.
b. Following up with unit employees on October 10 and 12 as to whether they had
submitted the disavowals he had requested on October 9.
40
c. Coercively interrogating employees as to their union sympathies.

18 Also see, Highland Regional Medical Center, 347 NLRB 1404, 1406 (2006); DeNite Sign Co., 356
NLRB 975 (2011). In this vein, when David Hardy told union business representative Richard Gooden
that he was not into the union thing, that could mean merely that he was not interested in being a member,
as opposed to not wanting the Union to represent him.
JD–51–19
13
d. Illegally polling employees.
2. Respondent did not adequately disavow Clark’s conduct in its October 18 message to
unit employees. Thus, it was not entitled to rely on the employees’ letters of
November 2 in withdrawing recognition from the Union.5
3. Respondent, by James Nixdorf, violated Section 8(a)(1) of the Act in telling unit
employees that they must submit a statement that they no longer wished union
representation as opposed to not wanting to be members of the Union.19
10
4. Respondent violated Sections 8(a)(5) and (1) by :
a. Withdrawing recognition of the Union on November 2, 2018.
b. Refusing to sign the collective bargaining agreement agreed to by Respondent 15
and the Union on October 18, 2018.
c. Failing to abide by the terms of the agreement signed on October 18, 2018 by:
1. Ceasing to deduct and remit dues as required by the Agreement.20
2. Granting a wage increase to John Brady.
REMEDY
25
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. The Respondent must make unit employees whole for any loss of
earnings and other benefits suffered by its failure to execute and abide by the collective
bargaining agreement, calculated in the manner set forth in Ogle Protection Services, 183 NLRB 30
682 (1970). It must also make the Union whole for any dues that it failed to deduct and transmit
under the contract agreed to on October 18, 2018. Interest shall be computed in accordance with
New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River
Medical Center, 356 NLRB No. 8 (2010). Respondent shall also reimburse unit employees for
any expenses ensuing from failure to make required contributions, as set forth in Kraft Plumbing 35
& Heating, 252 NLRB 891, fn. 2 (1980), with interest as computed above.

19 The complaint does not allege this violation by Nixdorf. However, it is well settled that the Board
may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue
is closely connected to the subject matter and has been fully litigated. The evidence supporting a
violation by Nixdorf was tried by consent in that it was introduced by Respondent, R. Exh. 7; Tr. 257-59,
Pergament United Sales, 290 NLRB 333, 334 (1989) enfd. 920 F. 2d 130 (2d Cir. 1990); Kankakee
County Training Center for the Disabled, 366 NLRB No. 181 (slip opinion at 3) (2018).
JD–51–19
14
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended20
ORDER
5
The Respondent, ADT LLC, d/b/a ADT Security Services, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
10
a. Soliciting employees to decertify the International Brotherhood of Electrical
Workers (IBEW) Local Union 43.
b. Interrogating employees about their attitude towards IBEW Local 43 or any other
union.15
c. Polling employees about their union sympathies.
d. Withdrawing recognition from International Brotherhood of Electrical Workers
Local Union 43 and failing to recognize and bargain with the Union as the 20
exclusive collective bargaining representative of the employees in the bargaining
unit.
e. Changing wages, benefits or other terms and conditions of employment without
first notifying the Union and giving it an opportunity to bargain.25
f. Refusing to sign and abide by the collective bargaining agreement to which it
agreed on October 18, 2018.
g. In any like or related manner restraining or coercing employees in the exercise of 30
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
a. Execute the collective bargaining agreement reached between the parties on 35
October 18, 20118.
b. On request of the Union , adhere to any or all of the terms and conditions set
forth in the collective-bargaining agreement agreed to on October 18, 2018.
40
c. Make unit employees whole, as set forth the remedy section herein, with
interest, for any loss of earnings or other benefits they may have suffered

20 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–51–19
15
because of Respondent’s refusal to sign and adhere to the collective
bargaining agreement agreed to on October 18, 2018.
d. On request by the Union, rescind any changes in its unit employees' terms and
conditions of employment that were unilaterally implemented since November 5
2, 2018.
e. Make the Union whole for any dues that it failed to deduct and transmit under
the terms of the 2018-2021 collective bargaining agreement.
10
f. 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 15
form, necessary to analyze the amount of backpay due under the terms of this
Order.
g. Within 14 days after service by the Region, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice the attached notice marked 20
“Appendix.”21to all current employees and former employees employed by the
Respondent at any time since October 9, 2018.
h. 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 25
attesting to the steps that the Respondent has taken to comply.
Dated: Washington, D.C. June 17, 2019
30

Arthur J. Amchan
Administrative Law Judge
35

21 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.”
a,/,.,,. 8 ar„,e,,,,_
JD–51–19
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 solicit or ask you to provide us with a statement that you do not wish to be
represented by the International Brotherhood of Electrical Workers, Local Union 43 or any other
union.
WE WILL NOT in any way ask you to divulge your attitude towards the International
Brotherhood of Electrical Workers, Local Union 43 or any other union, either by interrogation or
by polling.
WE WILL NOT withdraw recognition from the International Brotherhood of Electrical
Workers, Local Union 43.
WE WILL NOT refuse to sign or refuse to abide by the collective bargaining agreement with
the International Brotherhood of Electrical Workers, Local Union 43 that we agreed to on
October 18, 2018 which is effective from June 11, 2018 to June 1, 2021.
WE WILL NOT unilaterally make any changes to your wages, benefits and other terms and
conditions of employment.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights
guaranteed to you by Section 7 of the National Labor Relations Act.
WE WILL execute and abide by the collective bargaining agreement we reached with the
International Brotherhood of Electrical Workers, Local Union 43 on October 18, 2018.
WE WILL on request of the International Brotherhood of Electrical Workers, Local Union 43
rescind any changes in the terms and conditions of bargaining unit employees that conflict with
the collective bargaining agreement reached on October 18, 2018.
JD–51–19
WE WILL make bargaining unit employees whole, with interest compounded daily, for the loss
of any earnings and benefits they may have suffered by our failure to sign and abide by the
collective bargaining agreement reached with the International Brotherhood of Electrical
Workers, Local Union 43 on October 18, 2018.
WE WILL compensate in full International Brotherhood of Electrical Workers Local Union 43
for any dues that we failed to deduct and transmit as required by our 2018-2021 collective
bargaining agreement with it.
ADT, LLC, d/b/a ADT SECURITY SERVICES
(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.
Niagara Center Building., 130 S. Elmwood Avenue, Suite 630, Buffalo, NY 14202-2465
(716) 551-4931, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/03-CA-230714 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, (716) 551-4946.