Pub. Serv. Co. of N.M. v. Nat'l Labor Relations Bd.

• Decision Date: 28 August 2012
• Docket Number: 11–9540.,Nos. 11–9536,s. 11–9536
• Parties: PUBLIC SERVICE COMPANY OF NEW MEXICO, Petitioner/Cross–Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.
• Court: U.S. Court of Appeals — Tenth Circuit

692 F.3d 1068

PUBLIC SERVICE COMPANY OF NEW MEXICO, Petitioner/Cross–Respondent,

v.NATIONAL LABOR RELATIONS BOARD, Respondent/Cross–Petitioner.

Nos. 11–9536, 11–9540.

United States Court of Appeals, Tenth Circuit.

Aug. 28, 2012.

Paula G. Maynes (Stephen B. Waller with her on the briefs), Miller Stratvert P.A., Albuquerque, NM, for Petitioner/Cross–Respondent Public Service Company of New Mexico.

Nicole Lancia, Attorney (Usha Dheenan, Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Acting Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, with her on the briefs), Washington, D.C., for Respondent/Cross–Petitioner National Labor Relations Board.

Before MURPHY, GORSUCH, and MATHESON, Circuit Judges.

GORSUCH, Circuit Judge.

This case began with an angry bill collector, metamorphosed into a discovery dispute, and now serves mostly as another reminder about the importance of preserving your best arguments in the proper administrative forum rather than trying them for the first time in an appellate court.

I

It began with Robert Madrid. He worked for Public Service Company of New Mexico (PNM), collecting overdue bills for the electric utility. A tough job, to be sure, and one that apparently called for more patience than Mr. Madrid could muster on a bad day. Angered by a particularly obstinate customer and without his supervisor's permission, Mr. Madrid drove to the customer's home and disconnected the gas line. Bad enough, but what's worse is this: PNM didn't even provide the gas service, another utility did. Naturally, the delinquent customer wasn't happy and neither was Mr. Madrid's boss. Soon enough neither was Mr. Madrid, because though he owned up to his actions PNM fired him all the same, citing his violation of the company's ethics policy and state law.

But Mr. Madrid's dismissal marked only the beginning of things, spawning a tangled and now aging discovery dispute. Mr. Madrid's union decided to file a grievance on his behalf contesting his dismissal. The union argued that Mr. Madrid's firing violated its collective bargaining agreement with the company. For its part, PNM replied by pointing out that the agreement allows the company to fire unionized employees for “reasonable cause.” And how, PNM asked, could that possibly be missing here, when Mr. Madrid admitted his improper behavior?

The union replied with this theory. While Mr. Madrid's conduct was indisputably in violation of company policy and state law, the union hypothesized that he may have been treated more harshly than other employees guilty of similar things. And such disparate treatment would be enough, the union argued, to undermine any claim of “reasonable cause” for Mr. Madrid's termination.

The difficulty was, the union didn't have evidence for its theory, only a wish to conduct discovery to see if it might pan out. So the union sent PNM a request demanding documents showing whether and to what extent PNM had disciplined other employees who, like Mr. Madrid, violated the company's ethics policy or state law. It also asked for disciplinary information about two specific non-union supervisors, Dave Delorenzo and Kelly Bouska. The union apparently believed the pair were responsible for a gas leak in 2008 but might have been treated more leniently than Mr. Madrid.

These requests led to our discovery fight. PNM readily agreed to provide documents disclosing disciplinary actions taken against union employees, but it refused to provide information about discipline meted out on non-union workers. The company argued that information about non-union employees was “irrelevant.” The company also claimed that the union's bargaining representative already possessed information about the treatment of Mr. Delorenzo and Mr. Bouska pursuant to a confidential court order, and that the union's request for the information had no other purpose except to harass PNM.

Mr. Madrid's union representative disagreed and sought to persuade the company to his view. He sent a letter to PNM explaining that both union and non-union employees are subject to the same corporate ethics policy and the same New Mexico laws that served as the basis for Mr. Madrid's termination. And this, the union argued, made disciplinary information about non-union employees relevant to the question whether the company had treated Mr. Madrid unusually harshly. With respect to Mr. Delorenzo and Mr. Bouska, the union denied it ever received information about what discipline (if any) was imposed on the two as a result of the gas leak.

Still, none of this persuaded PNM to comply and so the litigation began. The union filed a charge with the National Labor Relations Board alleging unfair labor practices, and the case marched along for many months until a hearing could be held before an administrative law judge (ALJ). Then, on the eve of the hearing, PNM suddenly relented and handed over to the union all the information it wanted.

But even that wasn't the end of things. Because of its many months of delay, first the ALJ and then the Board found that PNM had engaged in an unfair labor practice in violation of 29 U.S.C. § 158(a)(1) and (5). Specifically and in the end, the Board concluded that: (1) PNM had a statutory duty to bargain collectively in good faith; (2) this duty included the duty to provide information relevant to grievances pursued under the terms of a collective bargaining agreement; (3) the information sought here was relevant to a grievance; (4) the union did not already possess disciplinary information about Mr. Delorenzo and Mr. Bouska; (5) the information request was made in good faith and not to harass PNM; and (6) PNM's delay in providing the information was unreasonable. Public Serv. Co. of N.M., 356 N.L.R.B. No. 160, slip op. at 5–7 (May 24, 2011). As remedy, the Board ordered PNM to post a notice informing employees of their rights under the law, PNM's violation, and the company's promise to do better going forward. Id. at 8–10.

Naturally enough, PNM now petitions us for review of the Board's decision and the Board cross-petitions asking us to enforce its order.

II

And that takes us to the reminder about preservation, because in this case much more isn't before us than is. PNM does not dispute it had a duty to provide the union with relevant information in connection with grievances filed under the terms of the collective bargaining agreement. It does not dispute the Board's finding that PNM's delay in responding to the union's request was unreasonably long. And PNM does not claim that the union's discovery request was overbroad, unduly burdensome, or an invasion of the privacy interests of its employees—all of which may, at least under some circumstances, excuse a company's obligation to provide the information under the National Labor Relations Act. Safeway Stores, Inc. v. NLRB, 691 F.2d 953, 956–57 (10th Cir.1982). Instead, the only question the company raises before us and the only one we have to decide is whether the disciplinary information about non-union employees was “relevant” to the union's processing of Mr. Madrid's grievance.

And even on that question, far less confronts us than first meets the eye. That's because the most significant “relevance” objections PNM seeks to press in this court never made their way into the proceedings before the Board. And under 29 U.S.C. § 160(e), that's a problem: “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” See also NLRB v. L & B Cooling, Inc., 757 F.2d 236, 240 (10th Cir.1985).

To determine whether § 160(e)'s “objection” requirement is satisfied, we ask this question: was the matter the petitioner seeks to raise here pressed before the Board with “sufficient specificity and clarity” so the tribunal was aware it needed to be addressed and could become the subject of litigation in this court? NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1034 n. 8 (10th Cir.2003) (quotation omitted); see also Teamsters Local Union No. 435 v. NLRB, 92 F.3d 1063, 1072 (10th Cir.1996). We ask this question because, whatever else § 160(e) may be designed to do, it's plain from its face that it seeks to allow the agency at least the chance to apply its expertise to a problem before it comes to us. See Marshall Field & Co. v. NLRB, 318 U.S. 253, 256, 63 S.Ct. 585, 87 L.Ed. 744 (1943) (the statute promotes “the salutary policy ... of affording the Board opportunity to consider on the merits questions to be urged upon review” in court); NLRB v. Cheney Cal. Lumber Co., 327 U.S. 385, 389, 66 S.Ct. 553, 90 L.Ed. 739 (1946) (same).

Applying this rule, we can divide PNM's appeal into two parts: the set of objections it managed to preserve and the rather larger set it did not.

A

Taking the first group first, it's clear enough that PNM lodged at least one clear and specific objection. It clearly argued that the union already possessed disciplinary information about Mr. Delorenzo and Mr. Bouska and sought information about their treatment only to harass the company. Admin. Record Vol. III Ex. 3 pp. 2–3. That part of PNM's appeal, without doubt, we may hear.

But with respect to the remainder of the objections PNM wishes to pursue in this court, here is all it said to the Board:

PNM makes exception to the ALJ's analysis and conclusion that PNM was under a duty to provide information for non-bargaining unit employee discipline ‘in the case of possible relevance.’ [ALJ Op.] p. 7, ll. 2–38, Conclusions of Law Nos. 4 and 5. Non-bargaining unit employee discipline does not ‘concern subjects directly pertaining to the bargaining unit’ and the ALJ failed to assign the burden of proof of relevance to the Union as required by law.

Admin. Record Vol. III Ex. 3 p. 1.

Given the terseness of this...