Labor & Employment Law Daily Wrap Up, LABOR—UNFAIR LABOR PRACTICES—NLRB: Employer unlawfully withdrew recognition from union, failed to remit dues deductions, (May 6, 2026)

By Ronald Miller, J.D.

An employer violates Section 8(a)(1) and (5) by actively soliciting, encouraging, promoting, or aiding in the initiation, circulation, signing, or filing of a decertification petition.

A three-member panel of the NLRB adopted an administrative law judge’s findings that an employer violated Section 8(a)(5) and (1) when it unlawfully withdrew recognition, failed to deduct and remit dues during the term of a labor contract, and prepared a decertification petition and provided it to employees to solicit other employees to sign. The employer unlawfully instigated and propelled the decertification effort and then relied upon the resulting petition to justify its withdrawal of recognition. The employer also unlawfully bypassed the union and dealt directly with employees regarding an incentive program. The employer, the Board found, provided unit employees with more information about the incentive program than it provided to the union (ADT, LLC, 374 N.L.R.B. No. 104 (May 5, 2026)).

In 1971, the employer, ADT, LLC, recognized the union as the exclusive bargaining representative for the installers and service technicians at issue in this case. This recognition has been embodied in successive labor contracts.

The employer was required to deduct and remit monthly membership dues for any unit employee who submits a signed dues-checkoff authorization form. It was also required to provide the union with a list each month of those employees in job classifications covered by the contract.

Dues-checkoff authorization. In 2021, the employer had approximately 20 unit employees working out of its Louisville facility and 10 unit employees working out of its Lexington facility.

The union had signed dues-checkoff authorization forms from 28 unit employees. It provided those forms to the employer for the purpose of deducting and remitting monthly dues. In 2021, the employer sporadically submitted the dues deducted from the employees’ pay.

Prior to expiration of the labor contract, the union filed a grievance over the employer’s failure to deduct and remit dues for those months. Following the expiration of the contract, the employer ceased deducting dues for all employees, including those with valid (unrevoked) dues-checkoff authorizations.

Negotiations. On August 24, 2021, the union sent a request to the employer for dates to begin negotiations over a successor agreement. On August 25, the union also sent a letter to the employer requesting information “in order to prepare for the upcoming contract negotiations.” The union also requested “the most up to date seniority roster for the Louisville and Lexington offices.”

At the time of the first negotiation session on September 29, the employer still had not provided any of the requested information, and the union again requested it. The first topic discussed during negotiations was the employer’s January 2020 acquisition of a company called Defender and the hiring of its 8—9 technical engineers (TEs). The union asserted that if they performed installation work, they should have been placed in the unit and subjected to the terms of the labor contract.

Among its initial proposals, the employer sought to modify the contract’s wage provisions such that nothing in the contract limited management’s ability to increase individual employees’ hourly rate(s) or offer alternate systems of compensation. The employer also proposed modifying the contract to give unit employees up to 24 hours of paid sick time, and up to 16 hours of paid personal time, per calendar year. Finally, the employer proposed replacing agreement’s absenteeism policy with its own. In a September bargaining session, it was revealed that only one of the TEs had been hired at the time of the Defender acquisition. The rest were hired between May and July 2021.

Decertification petitions. On November 8, the employer received decertification petitions with a total of 19 signatures. Thereafter, the employer advised the union that it had objective evidence the union no longer had majority support, and it was withdrawing recognition immediately. On November 9, the employer emailed employees notifying them it had withdrawn recognition. Within a few days of withdrawing recognition, the employer unilaterally changed the unit employees’ wages rates, implemented an incentive program, modified vacation, altered job titles, moved from weekly to biweekly pay periods, eliminated daily overtime, and changed the attendance policy to allow for paid time off days rather than sick, bereavement, and jury duty leave.

Failure to deduct and remit dues. The employer violated Section 8(a)(5) and (1) by failing to continue in effect the terms of the contract when it ceased deducting and remitting dues to the union for unit employees who authorized dues checkoff. From May 11 to October 14, the employer failed to consistently deduct and remit dues for unit employees who had authorized dues checkoff, and following expiration of the contract, it discontinued all dues deductions.

An administrative law judge (ALJ) agreed with the General Counsel that the seemingly random nature of when the employer chose to withhold dues, and on behalf of whom, prior to expiration defies any lawful or logical explanation and strongly mitigates against finding the failure was a simple mistake.

Failure to provide requested information. The employer also violated Section 8(a)(5) and (1) when it failed to provide, or unreasonably delayed in providing, the union with information requested in its August 25 letter. Generally, information relating to unit employees’ terms and conditions of employment is presumptively relevant and must be provided. Here, the employer failed to offer or establish a valid defense for its failure to provide the information at issue.

Delay in providing information. The duty to provide information requires it be provided in a timely fashion. The General Counsel alleged the employer unreasonably delayed in providing the union with information regarding benefit plans. It also delayed in partially responding to requests for a list of all unit employees that shows hire dates, job classification and rates of pay for each employee, regular hours worked, and overtime hours worked by unit employees.

The employer contended that its delay of “just over a month” was not unreasonable. However, the ALJ observed that the Board has held that delays of comparable length (nearly six weeks) and under similar circumstances to be unreasonable. Thus, the ALJ concluded that the employer violated Section 8(a)(5) and (1) when it failed to provide, and/or unreasonably delayed in providing, the information at issue.

Decertification effort. Two managers for the employer violated Section 8(a)(1) and (5) by promising unit employees they would receive better wages, more vacation time, and performance bonuses if they got rid of the Union; telling unit employees the company would implement an incentive program and other benefits if they got rid of the union; providing copies of a decertification petition for unit employees to sign and to solicit others to sign; and notifying unit employees of others who wanted to sign the decertification petition.

An employer violates Section 8(a)(1) and (5) by actively soliciting, encouraging, promoting, or aiding in the initiation, circulation, signing, or filing of a decertification petition. The critical inquiry is whether the conduct at issue constituted more than (permissible) ministerial aid.

Here, the employer rendered far more than ministerial aid: it instigated, directed and supported the entire decertification effort. There was no evidence of employee disaffection or interest in removing the union before the two managers began meeting individually with unit employees. To facilitate decertification, the managers provided copies of blank petitions for employees to sign and to circulate for others to sign. Thus, the ALJ concluded that the managers made their promises, solicited employee support, and assisted in the decertification effort. Such conduct was a breach of the employer’s obligation to bargain in good faith in violation of Section 8(a)(5) and (1).

Direct dealing. The employer violated Section 8(a)(5) and (1) when managers bypassed the union and dealt directly with unit employees by distributing incentive program, and other benefit information and soliciting them to agree to them without the union’s involvement. The managers initiated individual conversations with unit employees to present or discuss the incentive program, and to promote how it would result in higher wages, more vacation time, and performance bonuses for unit employees.

In its defense, the employer contended that it was permitted to discuss the incentive program with unit employees because it had “a proposal on the table.” However, the employer provided unit employees with more information about the incentive program and how it worked, than it provided to the union. Further, the employer’s communications with employees were never informing them of proposals it had on the table. Thus, the ALJ concluded that the employer violated Section 8(a)(5) and (1) when it bypassed the union and dealt directly with employees about their terms and conditions of employment to gain their support and agreement to implement the incentive program.

Employee discharge. However, the employer did not violate Section 8(a)(3) and (1) when it discharged an employee who missed several days of work for various reasons. Applying the Wright Line framework, the ALJ concluded the General Counsel established a prima facie case of discrimination. The employee was discharged four days after the employer learned he had been appointed union steward for the Lexington facility.

However, the employer successfully argued that it would have discharged him because of his attendance issues regardless of his role as steward. The employer was never “tolerant” of the employee’s absences. He was repeatedly admonished regarding missing too much work, and he was issued a written warning for absences up to that point in the year. Thus, the ALJ concluded that the employer met its burden of establishing it would have discharged the employee regardless of his protected activity.

Withdrawal of recognition. Finally, the ALJ determined that the employer violated Section 8(a)(5) and (1) when it withdrew recognition of the union on November 9, and, thereafter, when it ceased bargaining and unilaterally changed the unit employees’ wages, hours, and other terms and conditions of employment. Here, the employer unlawfully instigated and propelled the decertification effort and then relied upon the resulting petition to justify its withdrawal of recognition. Based on the totality of the evidence, the ALJ concluded the employer violated Section 8(a)(5) and (1) when it withdrew recognition based on the tainted decertification petition.

The slip opinion is 374 NLRB No. 104.

Attorneys: Jonathan Duffey for General Counsel. Jeremy C. Moritz (Ogletree, Deakins, Nash, Smoak & Stewart) for ADT, LLC. Benjamin Basil for International Brotherhood of Electrical Workers, Local Union No. 369, AFL—CIO.

Companies: ADT, LLC; International Brotherhood of Electrical Workers, Local Union No. 369, AFL—CIO

Cases: Labor UnfairLaborPractices Bargaining Covid19 AgencyNews