Denton Cnty. Elec. Coop., Inc. v. Nat'l Labor Relations Bd.

Decision Date18 March 2020
Docket NumberNo. 18-60474,18-60474
Parties DENTON COUNTY ELECTRIC COOPERATIVE, INCORPORATED, doing business as CoServ Electric, Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.
CourtU.S. Court of Appeals — Fifth Circuit

Carrie Beth Hoffman, Stacy R. Obenhaus, Foley Gardere, Foley & Lardner, L.L.P., Dallas, TX, Sandra L. Jonas, Snell & Wilmer, L.L.P., Tucson, AZ, for Petitioner Cross-Respondent.

David S. Habenstreit, David Casserly, Usha Dheenan, National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, Timothy L. Watson, National Labor Relations Board, Fort Worth, TX, for Respondent Cross-Petitioner.

Before DAVIS, STEWART, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Denton County Electric Cooperative (CoServ) challenges the National Labor Relations Board (Board) ruling that it engaged in unfair labor practice and the Board’s issuance of an affirmative bargaining agreement and public-notice-reading order. The Board cross-applies for enforcement.

We DENY CoServ’s petition for review in part and GRANT in part. We DENY in part and GRANT in part the Board’s cross-application for enforcement.

I.

CoServ is an electrical cooperative corporation in Corinth, Texas. CoServ hires various types of employees to conduct its business: linemen, groundmen, journeymen, servicemen, power quality technicians, system operators, and senior system operators.

At least from 2009 to 2014, CoServ gave raises to its employees based on either the Employee Development Program (EDP) structure or the non-EDP structure. Of CoServ’s employees, "linemen are part of the lockstep EDP. The EDP anticipates that linemen advance to the next level every six months and receive an automatic raise with each advancement." Other employees who are not part of the EDP—such as system operators, power quality technicians, etc.—are compensated on an hourly rate within the established wage ranges for each position and given "merit-based, discretionary raises" based on their annual performance evaluation.

CoServ contracts with an outside firm to provide an annual compensation survey called the Mercer Study that recommends wage-range adjustments. Between 2009 and 2014, CoServ increased the wage range according to the Mercer Study every year.

On July 27, 2012, after a Board-certified election, the Union became the exclusive bargaining representative for 32 CoServ employees. In December 2012, CoServ proposed, and the Union accepted, an interim rate increase for EDP employees while the collective bargaining process continued. In January 2013, CoServ proposed, and the Union accepted, an interim pay increase for non-EDP employees as well.

While CoServ and the Union continued negotiating in 2013, a Union employee filed a decertification petition with the Board. On October 28, 2013, the decertification vote was held, and the Union survived by a single vote.

In early 2014, CoServ continued to conduct annual evaluations but did not give a raise. In response to the lack of raises, the Union filed an unfair labor practice complaint with the Board against CoServ alleging: (1) that the suspension of raises violated Section 8(a)(5) of the National Labor Relations Act (NLRA), which requires an employer to bargain with the union chosen by a majority of its employees, and (2) that blaming the lack of raises on the Union violated Section 8(a)(1), which prohibits the employer from interfering with the employees’ exercise of labor rights.

Three employees—Robert Shelby, Derek Wolzen, and Chad Beck—testified before the ALJ that their supervisor Kevin Vincent blamed the Union for the lack of raises that year during their performance reviews. Shelby testified that Vincent told him that "there will not be a raise ... because ... CoServ ... was waiting for the [U]nion." Wolzen testified that Vincent told him that he would not receive a raise or promotion "because it’s tied up in [U]nion and CoServ negotiations," and because the Union had "rejected a contract offer that would have enabled us to get more money." Beck also testified that Vincent told him that "the reason you’re not going to get a raise is because of the [U]nion."

On November 4, 2014, the Board and CoServ reached a settlement agreement. Under the settlement agreement, CoServ agreed to implement the wage increase, pay back pay to the employees, and post a remedial notice for 60 days after the final approval of the agreement. The settlement agreement contained a "non-admission clause" stating that CoServ "does not admit that it has violated the National Labor Relations Act."1 The settlement agreement also provided that CoServ "shall commence [the performance of the agreement] immediately after the Agreement is approved by the Regional Director." The Board’s Regional Director approved the settlement agreement on November 21, 2014.

Between November 3 and 18, 2014, CoServ’s employees circulated a second decertification petition which garnered 28 out of 32 votes to oust the Union. The employees filed the petition with the Board on November 19, 2014, and then provided a copy to CoServ on November 25, 2014.

Throughout November 2014—despite the complaint and the second decertification petition—the Union and CoServ continued negotiating for a collective bargaining agreement. On November 25, 2014, CoServ and the Union met for a final bargaining session. The parties agreed to finalize the previously discussed tentative agreement by signing and dating it later. The finalized agreement would have prevented CoServ from unilaterally withdrawing the recognition of the Union.2 On November 26, 2014, after receiving the second decertification petition, CoServ informed the Union that it no longer recognized the Union and would not bargain with the Union.

After withdrawing its recognition of the Union, CoServ did not provide certain information that the Union had requested. Furthermore, in 2015, CoServ returned to its practice of compensating its employees according to the Mercer Study.

The Union filed unfair labor practice charges regarding CoServ’s alleged unfair labor practices. An administrative law judge ruled against CoServ. Both sides filed exceptions. A three-member panel of the Board found that CoServ committed unfair labor practices by failing to increase the employees’ wage ranges and blaming the Union for the lack of raises. The Board, however, did not impose independent sanctions for these unfair labor practices as the Board had settled these allegations previously through the settlement agreement. Instead, the Board found that these unfair labor practices tainted the second decertification petition that ousted the Union. Accordingly, the Board found that CoServ unlawfully withdrew the recognition of the Union and failed to provide requested information to the Union.

To remedy the unlawful withdrawal of recognition and unlawful withholding of information, the Board issued a cease-and-desist order to prevent CoServ from refusing to bargain with the Union; an affirmative bargaining order requiring CoServ to bargain with the Union and prohibiting it from withdrawing recognition for a reasonable period of time; and a public-notice-reading order. CoServ filed a petition for review and the Board filed a cross-application for enforcement.

II

There are four primary issues in this case: (1) whether CoServ abandoned its challenge against the Board’s findings of unfair labor practices; (2) whether substantial evidence supports the Board’s finding that CoServ’s unfair labor practices tainted CoServ employees’ second decertification petition ousting the Union; (3) whether the Board properly issued an affirmative bargaining order; and (4) whether the Board properly issued a public-notice-reading order.

We hold that CoServ abandoned its challenge against the Board’s findings of unfair labor practices. We also hold that under the governing four-factor test, substantial evidence supports the Board’s finding that CoServ’s unfair labor practices tainted the second decertification petition. As to the affirmative bargaining order, however, we determine that the Board failed to justify the bargaining order under Fifth Circuit case law. Under our case law, a bargaining order was not justified and therefore, we vacate. Finally, we vacate the Board’s issuance of the public-notice-reading order because it cannot be justified under the facts of this case. We discuss each issue in turn.

A

CoServ contends that the Board erred in determining that CoServ committed unfair labor practices by failing to give raises to its employees and blaming the Union for the lack of raises.3 The Board subsequently found that these unfair labor practices tainted the second decertification petition that ousted the Union. CoServ challenges these underlying findings that it committed unfair labor practices. The Board contends that CoServ waived any challenge to these findings by failing to adequately brief the issue. We agree with the board and therefore do not reach the merits of this issue.

Federal Rule of Appellate Procedure 28(a)(8)(A) requires an appellant’s opening brief to contain the "appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies." We have construed this rule to mean that an appellant’s opening brief waives an issue if it "provides no explanatory analysis or supporting authority" for a particular contention. Maria S. ex. rel. E.H.F. v. Garza , 912 F.3d 778, 782 n.3 (5th Cir. 2019). Indeed, an appellant "that asserts an argument on appeal, but fails to adequately brief it, is deemed to have waived it." United States v. Scroggins , 599 F.3d 433, 446 (5th Cir. 2010) (quoting Knatt v. Hospital Serv. Dist. No. 1 , 327 F. App'x 472, 483 (5th Cir. 2009) ); see also Yohey v. Collins , 985 F.2d 222, 224–25 (5th Cir. 1993) ; Weaver v. Puckett , 896 F.2d 126, 128 (5th Cir. 1990) (considering "abandoned" an...

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