The National Labor Relations Board (NLRB) affirmed the decision of Administrative Law Judge (ALJ) Andrew S. Gollin, finding that ADT, LLC (the Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (NLRA). The ALJ had found that the Respondent engaged in multiple unfair labor practices. The NLRB reviewed the ALJ's findings and the record, and with minor modifications to the recommended order, adopted the ALJ's conclusions.

The ALJ found that the Respondent unlawfully: * Withdrew recognition from the International Brotherhood of Electrical Workers, Local Union No. 369, AFL–CIO (the Union) and refused to bargain. * Unilaterally changed employees' wages, overtime, job titles, pay periods, leave accrual, attendance policies, and implemented a new compensation program without bargaining. * Failed to deduct and remit union dues as required by the collective-bargaining agreement (CBA), both during and after the CBA's term. * Failed to provide, or unreasonably delayed in providing, requested information to the Union necessary for bargaining. * Promised employees increased benefits and improved terms and conditions of employment if they decertified the Union. * Solicited the decertification of the Union by preparing and distributing decertification petitions and encouraging employees to sign them. * Assisted in anti-union activities by notifying employees about others who wished to sign decertification petitions. * Bypassed the Union and dealt directly with employees regarding terms and conditions of employment.

The NLRB adopted the ALJ's findings regarding the unlawful withdrawal of recognition, the failure to deduct and remit dues after the CBA expired, and the preparation and distribution of decertification petitions. The NLRB also adopted the ALJ's direct dealing findings, applying the three-part test from Permanente Medical Group, finding that the Respondent communicated directly with union-represented employees about changes to terms and conditions of employment, with the purpose of establishing or changing wages, hours, and terms and conditions of employment or undercutting the union's bargaining role, and did so to the exclusion of the Union. The NLRB found that the Respondent provided information about the Tech Force Excellence (TFE) Program to employees before providing it to the Union, and that these communications suggested the Union was impeding employees' access to the program's benefits, thereby undermining the Union's role.

The NLRB also adopted the ALJ's other findings, either due to the limitations of the Respondent's exceptions or in the absence of exceptions. Notably, the NLRB adopted the ALJ's findings that the Respondent violated Section 8(a)(5) and (1) by failing to deduct and remit dues post-expiration of the agreement and by failing to furnish or unreasonably delaying the provision of requested information. The NLRB also adopted the ALJ's findings regarding the direct solicitation of employees and assistance in anti-union activities.

The ALJ dismissed allegations that the Respondent unlawfully discharged an employee (Mark Frazier) and constructively discharged another (Marcus Rodriguez), and the NLRB affirmed these dismissals. The ALJ found that while the timing of Frazier's discharge was suspicious, the Respondent met its burden to show it would have discharged him for excessive absenteeism regardless of his protected activity. For Rodriguez, the ALJ found that he had decided to resign before the Respondent's unlawful conduct regarding withdrawal of recognition and unilateral changes occurred.

The NLRB ordered various remedies, including a broad cease-and-desist order, a bargaining order for a reasonable period, and notice reading. The NLRB also ordered the Respondent to make the Union whole for any dues it would have received due to the Respondent's failure to deduct and remit dues, and to process pending grievances. The NLRB modified the ALJ's recommended order to include a broad cease-and-desist order, a bargaining order for a reasonable period, and directed notice readings with specific requirements for attendance and distribution. The NLRB also specified the make-whole remedy for dues, including interest, and ordered the Respondent to process grievances.

Significant Cases Cited:

• Standard Dry Wall Products, 91 NLRB 544 (1950): This case establishes the Board's policy of deferring to an administrative law judge's credibility resolutions unless a clear preponderance of the evidence indicates they are incorrect.
• Permanente Medical Group, 332 NLRB 1143 (2000): This case outlines the three elements required to establish an unlawful direct dealing violation: employer communication with union-represented employees, the purpose of changing terms and conditions of employment or undercutting the union, and communication to the exclusion of the union.
• Detroit Edison Co., 310 NLRB 564 (1992): This case affirmed a violation of Section 8(a)(5) and (1) where an employer bypassed the union and dealt directly with employees, failing to provide the union a meaningful opportunity to consider a proposal before it was communicated to employees.
• NLRB v. Katz, 369 U.S. 736 (1962): This Supreme Court case established that unilateral changes to mandatory subjects of bargaining by an employer, without notice and an opportunity to bargain with the union, constitute a violation of Section 8(a)(5).
• Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980): This case established the analytical framework for determining whether an employer's adverse action against an employee was motivated by the employee's protected concerted activity, requiring the General Counsel to prove protected activity, employer knowledge, and animus, and then shifting the burden to the employer to prove it would have taken the same action in the absence of the protected activity.

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