Oncor Elec. Delivery, L.L.C. v. Nat'l Labor Relations Bd.
| Decision Date | 01 April 2021 |
| Docket Number | No. 20-60229,20-60229 |
| Parties | ONCOR ELECTRIC DELIVERY, L.L.C., Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Petition for Review of an Order and Decision of the National Labor Relations Board
Before OWEN, Chief Judge, and KING and ENGELHARDT, Circuit Judges.
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Presently before us is the petition for review filed by Oncor Electric Delivery, LLC, and the cross-application for enforcement filed by the National Labor Relations Board. Oncor petitions us to review and set aside the March 6, 2020 decision and order rendered by the National Labor Relations Board ("Board") insofar as the Board concluded that Oncor hadviolated Sections 8(a)(5) and (1) of the National Labor Relations Act. The Board cross-applies for enforcement in full of the March 6, 2020 order. For each, we GRANT IN PART and DENY IN PART as stated herein.
Oncor is an electric utility company with a facility in Dallas, Texas, where the International Brotherhood of Electrical Workers, Local Union No. 69 ("Union") represents a "bargaining unit" of approximately 600 employees. Oncor and the Union are parties to a collective-bargaining agreement that expressly forbids Oncor from using non-unit employees to perform bargaining-unit work if doing so would cause a reduction in work for unit employees. The bargaining unit includes "Troublemen," who the Board describes as the "first responders" charged with assessing damage to power lines in the aftermath of a storm. Their job is to secure the scene and perform a "storm evaluation" to determine the cause of the outage, repair what they can, and create work orders for additional repairs if necessary.
On May 4, 2017, the Union filed a grievance alleging that Oncor had violated the parties' contract by using non-unit employees to troubleshoot the electrical grid after a storm that occurred on March 29, 2017. On May 23, 2017, Oncor denied the grievance to the extent that it related to a March 29, 2017 incident involving Troubleman James Chapman. Oncor also denied the May 4, 2017 grievance to the extent that the Union sought to challenge the practice of assigning storm evaluation work to non-unit employees, referred to as "Damage Evaluators." According to Oncor, this "well-known practice," in which "[Oncor] and the industry in general have engaged [] for many years[,] . . . is in no way correlated to the number of linemen employed by the Company." On October 6, 2017, the Union filed a supplemental grievance, contending that Oncor had violated the collective bargaining agreement "by utilizing non-bargaining unit personnel for damage evaluationand/or storm evaluation work," which is "bargaining unit work" for which "Oncor should be using bargaining unit employees."
Shortly after filing its first grievance, the Union submitted requests for information to Oncor regarding work by non-unit employees. For the next year, the Union (through Business Manager Bobby W. Reed) and Oncor exchanged numerous letters debating whether the Union was entitled to the non-unit employee and work information that it sought. Over time, Oncor gradually agreed to and did provide more information. In particular, information provided to the Union, on May 11, 2018, included a list of the non-unit employees—identified by a unique number (but not name), job title, annual salary, and hire date—who had received "Storm Exception Pay," along with the amount and date of that payment.1 Oncor also provided a list of persons (also identified by unique number, not name) who had received "damage evaluation" training and the date of that training.
Oncor steadfastly refused, however, to provide the actual names of the non-unit employees who were assigned to do "storm evaluation" work. Nor could an agreement be reached as to the Union's request for information identifying what work the non-unit employees performed, as well as whenand where that work occurred. Oncor offered to allow the Union to access thousands of "work orders" (in an effort to identify some of this information) but a dispute remained about redaction of customer information and responsibility for thousands of dollars of copying costs. A confidentiality agreement was discussed—in order to avoid the time and cost of redaction—but the Union never provided the proposed agreement that Oncor requested. Nor did it demand that Oncor prepare a draft. Instead, the Union decided to await a decision from the Administrative Law Judge ("ALJ") and, if necessary, the Board, regarding the information dispute.
In a decision dated April 4, 2019, the ALJ determined the discovery dispute in the Union's favor. Thereafter, in a decision and order dated March 6, 2020, the Board affirmed the ALJ's decision except with respect to Request 6 (reason for work assignments) and Request 7 (work orders and other documents reflecting non-unit damage evaluation work assignments) for which it found that no violation of the National Labor Relations Act had occurred. For Request 6, the Board concluded that the Union had not established the relevance of Oncor's reasons for assigning work to non-unit employees. For Request 7, the Board agreed that the documents sought, including work orders for each incident of storm evaluation, were relevant. Nevertheless, the Board also determined that Oncor had established its confidentiality claim and had met its duty to bargain towards an accommodation with the Union. The instant petition for review and cross-application for enforcement followed.
Section 8(a)(5) of the National Labor Relations Act (NLRA) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. § 158(a)(5). The duty to bargain collectively includes providing "information that is needed by the bargaining representative for the proper performance of its duties." NLRB v. Acme Indus. Co., 385 U.S. 432, 435-36 (1967). Thus, "[a]n employer is obligated to furnish, upon request, information that is relevant and necessary to the Union's performance of its duties as the employees' bargaining representative, including information concerning contract administration, negotiations, and grievance processing." Sara Lee Bakery Grp., Inc. v. NLRB, 514 F.3d 422, 430 (5th Cir. 2008) (). The employer's duty is triggered only when the information is necessary and relevant to a legitimate union purpose and the union communicates that purpose at the time of the request. Sara Lee Bakery, 514 F.3d at 431.
A union's request for bargaining unit data, such as wage and benefit information of unit employees, is considered presumptively relevant. NLRB v. Leonard B. Hebert, Jr. & Co., 696 F.2d 1120, 1124 (5th Cir. 1983). On the other hand, the same presumption of relevance does not apply to requests for non-bargaining unit data. Sara Lee Bakery, 514 F.3d at 430. Thus, when a union requests non-bargaining unit data, the union must establish that the requested information is necessary and relevant to the union's performance of its duties as the employees' bargaining representative. Id. In determining whether a union has met its burden to establish the relevance of the requested information, a "discovery-type" standard applies, and whether the union hasmet this burden hinges on the circumstances of each particular case. See Acme Indus. Co., 385 U.S. at 437 n.6; Detroit Edison Co. v. NLRB, 440 U.S. 301, 314-15 (1979) (citing NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 (1956)). Although "not a demanding standard, [] it is not a non-existent one either." NLRB v. Temple-Eastex, Inc., 579 F.2d 932, 938 (5th Cir. 1978).
Notably, "[a] union's bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the information in the manner requested." Detroit Edison Co., 440 U.S. at 314; see also F.A. Bartlett Tree Expert Co., Inc., 316 N.L.R.B. 1312, 1313, 1995 WL 238413, at *3 (1995) (("The basis for the request, i.e., that the information contained in the contracts is necessary to make a reasonable wage proposal is nothing more than another way of saying that it is needed 'to bargain intelligently' and this general claim is simply insufficient to establish relevance.") (quoting E. I. Dupont de Nemours & Co. v. NLRB, 744 F.2d 536 (6th Cir. 1984)). But the burden of showing a legitimate union purpose can be satisfied by demonstrating "a reasonable belief supported by objective evidence for requesting the information." NLRB v. PDK Invs., LLC., 433 F. App'x 297, 301 (5th Cir. 2011) (quoting Advanced Constr. Servs., Inc. v. NLRB, 247 F.3d 807, 812 (8th Cir. 2001)).
We review the Board's factual findings under a substantial evidence standard. Selkirk Metalbestos, N. Am., Eljer Mfg., Inc. v. NLRB, 116 F.3d 782, 786 (5th Cir. 1997). ...
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