Oncor Elec. Delivery Co. v. Nat'l Labor Relations Bd.
| Citation | 887 F.3d 488 |
| Decision Date | 13 April 2018 |
| Docket Number | No. 16-1278,C/w 16-1341,16-1278 |
| Parties | ONCOR ELECTRIC DELIVERY COMPANY LLC, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Brotherhood of Electrical Workers, Local Union No. 69, Intervenor |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
David C. Lonergan argued the cause for petitioner. With him on the briefs were Robert T. Dumbacher and Amber M. Rogers, Atlanta, GA.
David Casserly, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Richard F. Griffin, Jr., General Counsel at the time the brief was filed, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Kira Dellinger Vol, Supervisory Attorney.
Hal K. Gillespie, Dallas, TX, argued the cause and filed the brief for intervenor.
Before: Millett and Pillard, Circuit Judges, and Williams, Senior Circuit Judge.
The National Labor Relations Act (the "Act") protects the right of employees to "engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157. Under some circumstances those protected activities include employee appeals to third parties standing "outside the immediate employee-employer relationship." Eastex, Inc. v NLRB , 437 U.S. 556, 565, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978).
But the protection of the Act is no bar to dismissal for "cause," 29 U.S.C. § 160(c) (), and, as the Supreme Court said in the case now known generally as Jefferson Standard , "There is no more elemental cause for discharge of an employee than disloyalty to [a person's] employer." NLRB v. Local Union No. 1229, Int'l Board of Elec. Workers , 346 U.S. 464, 472, 74 S.Ct. 172, 98 L.Ed. 195 (1953). Since then, we have interpreted the practices of the National Labor Relations Board, read in the light of Jefferson Standard , to have "formulated a two-prong test for assessing whether employees' third-party appeals constitute protected concerted activity or instead amount to ‘such detrimental disloyalty’ as to permit the employees' termination for cause." DirecTV, Inc. v. NLRB , 837 F.3d 25, 34 (D.C. Cir. 2016). Under the test, even disparaging statements can enjoy the Act's protection "where [i] the communication indicate[s] it is related to an ongoing dispute between the employees and the employers and [ii] the communication is not so disloyal, reckless or maliciously untrue as to lose the Act's protection," id . (citing American Golf Corp. , 330 NLRB 1238, 1240 (2000) (Mountain Shadows Golf ) ); see also Endicott Interconnect Tech., Inc. v. NLRB , 453 F.3d 532, 537 (D.C. Cir. 2006) (). The purpose of the first condition, disclosure to the audience of the disparaging assertions, is of course to enable the recipients to evaluate the statements in a fuller context, applying what the listener or reader regards as a suitable discount or enhancement. Jefferson Standard , 346 U.S. at 477, 74 S.Ct. 172 ; see also DirecTV , 837 F.3d at 35 .
Oncor Electric Delivery Company petitions for review of the Board's decision that it engaged in unfair labor practices by discharging its employee, Bobby Reed, for making false or disparaging statements during two minutes of testimony before a Texas senate committee. Oncor argues that the Board misapplied the Jefferson Standard test. As the Board's decision essentially skipped discussion of the first requirement for its application, we remand the decision for further consideration.
We "must uphold the judgment of the Board unless, upon reviewing the record as a whole, we conclude that the Board's findings are not supported by substantial evidence, or that the Board acted arbitrarily or otherwise erred in applying established law to the facts of the case." Tenneco Auto., Inc. v. NLRB , 716 F.3d 640, 646–47 (D.C. Cir. 2013) (internal citation and quotation marks omitted). Of course the Board enjoys no special deference in the interpretations of decisions of the Supreme Court (or, indeed, of other courts). See New York New York, LLC v. NLRB , 313 F.3d 585, 590 (D.C. Cir. 2002).
Even under that deferential standard, we find the Board's reasoning in this case too opaque to resolve whether it is supported by substantial evidence. We therefore grant the petition in part and remand to the Board to make clear its principles for affording protection to employees' disparaging appeals to third parties; "[T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained." SEC v. Chenery Corp. , 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943). Oncor raises other challenges, including its dispute with the Board over Oncor's production of documents and its contention that the Board's General Counsel was without authority to issue the complaint; we reject these arguments. We thus grant the petition in part and deny in part, and we remand to the Board for further clarification.
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The main dispute in this case arises from an October 2012 hearing before a Texas senate committee tasked with "[s]tudy[ing] whether advanced meters, or smart meters, that have been, and will be, installed in Texas have harmful effects on [public] health." Joint Appendix ("J.A.") 443, 444–45. In 2008 Oncor had begun installing smart meters—essentially digital metering devices that can report customers' electricity usage remotely, thereby eliminating the need for personal inspection and the associated labor costs. By the time of the legislative committee hearing, Oncor had installed over 3 million smart meters.
Bobby Reed volunteered to testify at a hearing held on October 9. He was an Oncor "trouble man" who completed ad hoc repair jobs and responded to power outages. Since April 2011, he had also been the business manager and financial secretary for the International Brotherhood of Electrical Workers, Local 69. Reed signed the committee's witness list as representing "(Self; IBEW Local 69), Dallas, TX," and indicated he would testify "on" smart meters, rather than "for" or "against." J.A. 451. He was allotted two minutes.
During his brief testimony, Reed said he represented the local union in Dallas and had consulted its equivalent in Houston. He testified that "the work orders that I went out on were beginning to be increasingly of the meters burning up and burning up the meter bases." J.A. 14. Reed reiterated that this occurrence was becoming more frequent, and had begun "when they started installing the AMS [Advanced Metering System, or smart] meters."Id . When asked by a senator whether the burning could be attributed to the power line, Reed was emphatic, "No, it's the meter." Id . Reed made two arguable references to working conditions. First, he testified to receiving repair orders or damaged boxes after the meters had burned. There was no mention of employees' encountering fires, electrical arcs, or other live hazards while servicing the meters. Second, his testimony focused on his experience with disgruntled customers. He spoke of an "elderly woman," a widow, who had been told by Oncor that she would have to pay for the damage herself before her power could be turned back on. Id . Reed concluded that he did not "know much about [radio] frequency [a topic raised earlier in the hearing], but I do know a little bit about fire and heat, and these things are causing damage to people's homes." Id .
The day after Reed's testimony, Oncor initiated an investigation to verify whether the company had received complaints of smart meters causing fires and damaging consumers' homes. Concluding that Reed's testimony was false, Oncor terminated his employment on January 14, 2013, for Reed's having given "false testimony." J.A. 1555. After a seven-day trial, an administrative law judge held that the discharge violated § 8(a)(3) and (1) of the Act for interfering with Reed's protected union activities. The Board affirmed.
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We first clear out of the way an Oncor argument that Reed's testimony was not "for the purpose of collective bargaining or other mutual aid or protection," a fundamental prerequisite of protection under § 7 of the Act. Reed informed Oncor that he would testify to the senate committee if the union did not reach a favorable result in the collective bargaining then going on between the union and Oncor. Reed then testified the next day and signified both on the witness list and in his remarks that his testimony was on behalf of the union. We will return to the collective bargaining shortly, as it plays a role in the Board's contention that Reed's message to the committee qualified for protection under Jefferson Standard . But basic qualification for protection under § 7 and satisfying the conditions for protection under Jefferson Standard are two separate issues. See Tradesmen Int'l, Inc. v. NLRB , 275 F.3d 1137 (D.C. Cir. 2002). The Board properly found the former met here; we now turn to the latter.
Oncor argues that the Board never addressed the first requirement of Jefferson Standard —that an employee's appeal to a third-party "indicate it is related to an ongoing dispute between the employees and the employers." Mountain Shadows Golf , 330 NLRB at 1240. The Board tacitly (and, given the record, necessarily) admits that it didn't address this point but argues that Oncor never raised the objection to the Board, thus barring our review under § 10(e) of the Act, 29 U.S.C. § 160(e). It points out that Oncor nowhere cited Jefferson Standard or Mountain...
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