Pub. Serv. Co. of New Mex. v. Nat'l Labor Relations Bd., 14-1074
| Citation | 843 F.3d 999 |
| Decision Date | 20 December 2016 |
| Docket Number | C/w 14-1122,No. 14-1074,14-1074 |
| Parties | Public Service Company of New Mexico, Petitioner v. National Labor Relations Board, Respondent |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robin A. Goble argued the cause and filed the briefs for petitioner.
Micah Jost, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Robert J. Englehart, Supervisory Attorney, and Douglas Callahan, Attorney.
Before: Henderson and Rogers, Circuit Judges, and Edwards, Senior Circuit Judge.
The Public Service Company of New Mexico petitions for review of the decision and order of the National Labor Relations Board that it violated Sections 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5). The company challenges three Board rulings, involving the company's failure to provide the Union with requested information, its unilateral changes to the grievance procedure under the parties' collective bargaining agreement ("CBA"), and its failure to process a discrimination complaint as a grievance. For the following reasons, we deny the petition and grant the Board's cross-application for enforcement of its order.
Sections 8(a)(1) and (5) of the National Labor Relations Act ("the Act") prohibit unfair labor practices by an employer. 29 U.S.C. § 158(a)(1), (5). Section 8(a)(1) provides that it is unlawful for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights" guaranteed in Section 7 of the Act. 29 U.S.C. § 158(a)(1). Section 8(a)(5) prohibits an employer from "refus[ing] to bargain collectively" with its employees' chosen representative. 29 U.S.C. § 158(a)(5). "An employer who violates section 8(a)(5) also, derivatively, violates section 8(a)(1)." Exxon Chem. Co. v. NLRB , 386 F.3d 1160, 1164 (D.C. Cir. 2004).
The company is a New Mexico corporation that purchases, produces, transmits, and sells electricity. Of its 1,800 employees, approximately 635 belong to the International Brotherhood of Electrical Workers, Local Union No. 611, AFL–CIO ("the Union"), which, since the 1970s, has represented a multi-facility bargaining unit of employees in the Electric, Water, Transmission, Distribution, Production, Meter Reader, and Collector departments. Between 2010 and 2011, the Union filed unfair labor practice charges due to the company's frustrating and impeding the Union's ability to represent employees. In 2011, the Board found that the company violated Sections 8(a)(1) and (5) of the Act by refusing to furnish the Union with requested information "relevant to its representative function." Pub. Serv. Co. of N.M. ("2011 PNM "), 356 NLRB 1275, 1279 (2011), enforced , 692 F.3d 1068 (10th Cir. 2012). In 2014, the Board found the company committed similar and other violations of the Act, Pub. Serv. Co. of N.M. ("2014 PNM "), 360 NLRB No. 45 (2014), and the company petitions for review.
The company challenges three instances in which the Board found that it unlawfully refused to provide the Union with requested information. Each request was for information about non-unit employees in connection with pending grievances filed by the Union alleging disparate treatment of unit and non-unit employees under company-wide polices. In one instance, unit employee Marie Plant had been informed by her supervisor that to be absent for a medical appointment she would need to provide a doctor's note because she had a low paid time off ("PTO") balance. The Union requested the company provide information on the number of medical appointments for unit and non-unit employees that were scheduled and approved by supervisors, and the names of the employees who were required to provide a doctor's note to verify a medical appointment. In a second instance, unit employee Robert Madrid was fired after the company claimed he violated state law and the company's Do the Right Thing policy by disconnecting a gas line, resulting in a leak. The Union, alleging the supervisors were "aware of [the] misconduct and had ample time to investigate and administer discipline if required," 356 NLRB at 1277 ; E-mail from Ed Tafoya to Cindy Castro (Jan. 7, 2011), requested the company provide information about the discipline (if any) issued to supervisors Dave Delorenzo, Kelly Bouska, and Rex Foss for their involvement in the gas leak incident. The request as to Delorenzo and Bouska was resolved against the company in the 2011 PNM decision; only the request as to Foss is at issue. Finally, a third instance also involved the termination of a unit employee, this time for failing to comply with the company's Employee Safety Manual. The Union requested the company provide a list of unit and non-unit employees who had been disciplined or discharged for violating the Employee Safety Manual or other established safety procedures.
The Board adopted the recommendation of the Administrative Law Judge ("ALJ") that the refusals to provide the requested information, in connection with the pending grievances alleging disparate treatment, violated the Act because employers must furnish requested information concerning the discipline of non-unit employees under company rules that apply to all employees. 2014 PNM 1 (referencing ALJ Dec. 43, 44, 46).
In 2011, the company unilaterally implemented three changes to the initial "Informal Step" of the grievance process under the CBA: (1) more than one supervisor was required to be present during the initial meetings; (2) supervisors would proceed with the oral discussion only after union stewards described the grievance with particularity; and (3) supervisors would not sign for receipt of the written grievances after meeting with the stewards.
The Board found that the CBA confirmed that having more than one supervisor present was a change because it refers to only "the immediate supervisor of the grievant" being present at the grievance process's initial meetings. Id. at 2–3. That change was unlawful, the Board concluded, because, "in conjunction with the other two unlawful changes, it created a new tier in the informal step, further complicating grievance processing." Id. at 3. "[W]hat was once an informal discussion between the steward and the supervisor is now a more formal and protracted affair." Id. (quoting ALJ Dec. 15). A majority of the Board concluded that "all three of these changes to longstanding practices created unprecedented procedural hurdles and clearly impeded the processing of grievances." Id.
Eric Cox, a company employee and union steward for six years, filed a complaint with the Human Resources Department alleging discrimination based on race and union activity. He requested that union agent Ed Tafoya be his union representative during the internal investigation and proceeding. The company bifurcated the complaint into separate racial discrimination and union animus investigations, and informed Cox that Tafoya could neither be his representative nor testify in connection with the racial discrimination complaint.
The Board concluded that regardless of whether the parties characterized the complaint as a "grievance" under Article 10 of the CBA, the company violated Section 8(a)(1) of the Act by denying Cox his statutory right to a union representative of his choice and by refusing to meet with the Union and Cox regarding the racial discrimination complaint, which was covered by Article 8 of the CBA. 2014 PNM 1 & n.6.
In responding to the company's petition for review, the court proceeds on the basis that the Board's factual findings are conclusive if supported by "substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e) ; see Universal Camera Corp. v. NLRB , 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Under this standard, "the Board is to be reversed only when the record is so compelling that no reasonable factfinder could fail to find to the contrary." Fort Dearborn Co. v. NLRB , 827 F.3d 1067, 1072 (D.C. Cir. 2016) (citing Inova Health Sys. v. NLRB , 795 F.3d 68, 80 (D.C. Cir. 2015) ). The court "owe[s] substantial deference to inferences drawn from the facts ... and, overall, to the reasoned exercise of the Board's expert judgment." Avecor, Inc. v. NLRB , 931 F.2d 924, 928 (D.C. Cir. 1991) (citations and quotations omitted). This deference extends to the Board's interpretation of its precedent. Ceridian Corp. v. NLRB , 435 F.3d 352, 355 (D.C. Cir. 2006).
Because Congress has determined that the Board has "the primary responsibility of marking out the scope ... of the statutory duty to bargain," Ford Motor Co. v. NLRB , 441 U.S. 488, 496, 99 S.Ct. 1842, 60 L.Ed.2d 420 (1979), "great deference" is due to the Board's determinations of the scope of an employer's obligation to provide requested information to a union and of the unilateral change doctrine, as both derive from the statutory duty to bargain. Crowley Marine Servs., Inc. v. NLRB , 234 F.3d 1295, 1297 (D.C. Cir. 2000) (quotation omitted); see also Ford Motor Co. , 441 U.S. at 496, 99 S.Ct. 1842. On the other hand, the court reviews the Board's interpretation of collective bargaining agreements de novo .
Util. Workers Union of Am., Local 246 v. NLRB , 39 F.3d 1210, 1216 (D.C. Cir. 1994).
"There can be no question of the general obligation of an employer to provide 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, 87 S.Ct. 565, 17 L.Ed.2d 495 (1967). So long as the information is "relevant to the union's representational functions," the employer is obligated to provide it upon request. Oil, Chem. & Atomic Workers Local Union No. 6 – 418 v. NLRB , 711 F.2d 348, 357 (D.C. Cir. 1983) ; see N.Y. & Presbyterian Hosp. v. NLRB , 649...
To continue reading
Request your trial
-
Miklin Enters., Inc. v. Nat'l Labor Relations Bd., 14-3099
...imposed by the Board if they are rational and consistent with the Act." (internal quotation omitted)); Pub. Serv. Co. of N.M. v. NLRB , 843 F.3d 999, 1004 (D.C. Cir. 2016) (the Board's interpretation of its own precedent is entitled to deference).The Board's reliance on motive is not an unr......
-
Teachers Coll. v. Nat'l Labor Relations Bd.
...only when the record is so compelling that no reasonable factfinder could fail to find to the contrary.’ " Pub. Serv. Co. v. NLRB , 843 F.3d 999, 1004 (D.C. Cir. 2016) (quoting Fort Dearborn Co. v. NLRB , 827 F.3d 1067, 1072 (D.C. Cir. 2016) ). And, "[b]ecause Congress has determined that t......