ONCOR ELECTRIC DELIVERY COMPANY LLC, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 69, INTERVENOR
No. 16-1278 Consolidated with 16-1341
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2017 Decided April 13, 2018
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
David C. Lonergan argued the cause for petitioner. With him on the briefs were Robert T. Dumbacher and Amber M. Rogers.
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 argued the cause and filed the brief for intervenor.
Before: MILLETT and PILLARD, Circuit Judges, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
But the protection of the Act is no bar to dismissal for “cause,”
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 (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
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,
We are satisfied that Oncor did in fact raise this objection. In the context of its exceptions to the ALJ‘s finding of protected activity, Oncor objected that “[t]he General Counsel did not present any evidence that Reed testified to publicize a labor dispute.” J.A. 78–79. The point was clear enough to the General Counsel, who responded to the exception by citing Jefferson Standard and arguing that the test
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Evidently recognizing that the § 10(e) defense was not impregnable, the Board‘s brief offered a theory as to why Reed‘s testimony gave an adequate indication of its connection to a labor dispute. Further, in addressing the issue of whether Reed‘s testimony enjoyed the protection of § 7 regardless of its expressing disparagement to third parties, the Board offered two reasons that it may on remand view as relevant to what we may call the “indication” question. Because at least one of those reasons—reliance on an undisclosed attempt to gain leverage in bargaining—rests on a legal error, we comment on the Board‘s reasoning as guidance for the remand.
There is a serious obscurity underlying the question of adequate notice of the link between statement and labor dispute. Neither the Board‘s practice—nor court precedents—make clear who has the burden of proof on the two conditions for employee protection under Jefferson Standard. At argument, counsel for the Board invited us to think of Jefferson Standard as a sort of defense for employers to raise against a finding that they were unlawfully sanctioning protected activities.
It is true that some cases, not in this circuit, speak of employees’ appeals to third parties as being “stripped of § 7 protection” under the doctrine, perhaps implying that failing the Jefferson Standard test causes a labor activity to lose its protected status and thus that the doctrine operates as an employer‘s defense. Misericordia Hosp. Med. Ctr. v. NLRB, 623 F.2d 808, 815 (2d Cir. 1980). Our circuit‘s cases have not explicitly addressed whether the Board‘s General Counsel bears the burden to show that a third-party appeal has “indicated” its connection to an ongoing labor controversy, or whether the absence of any such indication serves as a defense for the employer where an appeal to third parties would otherwise be protected under § 7. In some cases, though, the phrasing of the issue arguably suggests that parties seeking protection for disparagements need to show the connection to an ongoing labor controversy in order to gain the Act‘s protection. Cf., e.g., DirecTV, 837 F.3d at 35 (“And because a third-party appeal must indicate a connection to an ongoing labor dispute in order to satisfy the first step (mere contemporaneousness with a dispute is not enough), the handbill in Jefferson Standard would have been deemed unprotected even if the Board had found otherwise.“) (internal citation omitted); George A. Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir. 1992) (“[S]upporting a boycott [of an employer‘s products] is protected § 7 activity if it (1) is related to an ongoing labor dispute . . . .“); Endicott, 453 F.3d at 538 (Henderson, J., concurring). Jefferson Standard itself used both formulations. First, the Court found that a disparaging handbill that did not identify its union authorship or connection to an ongoing strike “bring[s] the [authors and distributors‘] discharge under § 10(c) [for cause]“; that is, their activities did not count as protected in the first place. 346 U.S. at 477. Alternatively, the Court found that even if the handbill distribution came under § 7‘s protected activities, “the means used by the technicians in conducting the attack have deprived the
One possibility of course would be for the Board‘s General Counsel to bear the burden of step one—showing substantial evidence that a third-party appeal adequately indicated its connection to an ongoing labor dispute—while the employer would then bear the burden of step two—affirmatively defending that the third-party appeal was so disloyal as to lose the protection initially gained at step one. But the issue is in the first instance for the Board. Since neither the ALJ nor the Board addressed the first step of Jefferson Standard at all, and since we have found that Oncor adequately raised the objection under § 10(e), we must remand to the Board; “the courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review.” Chenery, 318 U.S. at 94. The Board‘s explanation of its view on whether the Jefferson Standard test is satisfied will almost certainly require it to take a position on the allocation of burdens.
On the substantive merits, the Board‘s brief rests on a years-long dispute between Oncor and the union over the deployment of smart meters and the union‘s previous lobbying of the Texas legislature for a bill that would allow customers to opt out of smart meters. The Board suggests that in this context, plus Reed‘s identifying himself with the union and his testifying about smart meters, “the legislators would recognize that the Union and Oncor were engaged in a labor dispute regarding smart-meter deployment, and that Reed was at the hearing to represent the Union‘s side of that dispute.” Respondent‘s Br. 43.
The record gives very little indication of significant union lobbying on smart meters in the years before Reed‘s testimony. See J.A. 374–83 (documenting union lobbying from 2002 to 2005); 2116–17 (Reed‘s testimony to the Board that the union hoped to gain an opt-out bill on smart meters from the 2012 Texas senate committee). Reed had e-mailed legislative staff about smart meters in April 2011, but that e-mail was sent to a different committee from the one he testified before, in regard to a bill that was no longer pending when he testified (and the e-mail itself contained no overt nexus to employee interests). J.A. 384. While we recognize that Reed could be expected to offer only so many caveats in his two-minute testimony, and while a legislative audience may be especially sophisticated at spotting embedded special interest claims, Reed did not sign up to speak “for” or “against” smart meters, but “on” the topic. J.A. 451. It seems clear enough that the union opposed smart meters largely because automation threatened a decline in the workforce, but that was not a topic of Reed‘s testimony. If on remand it appears that the union‘s longstanding concern over smart meters’ effect on employment is the only relevant “labor dispute,” we seriously question Board counsel‘s implicit assumption that employee disparagement of any feature of an innovation is an adequate signal to listeners that the speaker‘s position is driven by workers’ anxiety about the innovation‘s possible job-killing effects (and thus possibly subject to some discount). See, e.g., MikLin Enter., Inc. v. NLRB, 861 F.3d 812, 822–23 (8th Cir. 2017) (finding that Jefferson Standard requires disparagement to be “part of or directly related to an ongoing labor dispute” to be protected). Of course it is for the Board to determine, on remand, what other indication—if any—the audience had of a connection between Reed‘s testimony and an ongoing labor dispute.
The strikers in Jefferson Standard had a similar intent to “gain leverage” in negotiations. Their handbill, however, “made no reference to the union, to a labor controversy or to collective bargaining,” and the Supreme Court found that “[t]he only connection between the handbill and the labor controversy was an ultimate and undisclosed purpose or motive on the part of some of the sponsors that, by the hoped-for financial pressure, the attack might extract from the company some future concession.” Id. at 476–77. “A disclosure of that motive might have lost more public support for the employees than it would have gained, for it would have given the handbill more the character of coercion than of collective bargaining.” Id. at 477. The Supreme Court thus held in Jefferson Standard that a “sharp, public, disparaging attack upon the quality of the company‘s product,” 346 U.S. at 471, does not qualify as a protected § 7 collective bargaining activity when the subject matter “ha[s] no discernible relation to [the labor] controversy” and the motive to gain raw leverage in bargaining with the employer was “undisclosed” to third parties, id. at 476–77; see DirecTV, 837 F.3d at 35.
By the same token, there is no finding by the Board in this case either that Reed disclosed his subjective motive to pressure Oncor into concessions during labor negotiations or that the subject matter of Reed‘s statements was “connect[ed] to [the] ongoing labor dispute.” DirecTV, 837 F.3d at 35. In the absence of any such findings, the mere “fortuity of the coexistence of a labor dispute” and third-party product disparagements does not satisfy the Jefferson Standard requirement that Reed‘s testimony indicate a nexus to an ongoing labor dispute. See DirecTV, 837 F.3d at 35; see also Jefferson Standard, 346 U.S. at 477 (no protection where product disparagement was “a concerted separable attack purporting to be made in the interest of the public rather than in that of the employees“). Whereas disparagements linked to a specific issue in a labor dispute, e.g., a complaint about how a product flaw aggravates customers, whom the workers must constantly face, are likely to engage listeners because a win for the workers will imply a win for customers, disparagements not so linked seem unlikely to enlist listener support—at least if they reveal the speakers’ true purpose. It would be strange to tempt unions to sail so close to the wind by protecting statements that only marginally reveal a speaker‘s motivation.
Finally, the Board found Reed‘s testimony protected (aside from the Jefferson Standard difficulty) because it “related to (and was spurred by)” a union concern about the “safety” of employees represented
There is a lot to tease out here, and the Board has given us no help on how to do it. First, as we said, the testimony made no detectible reference to worker risks. Second, the Board has done nothing to spell out the conditions under which a reference to an employer practice that may generate “disgruntled” consumers could “indicate” a link to a labor dispute. In Jefferson Standard, the handbills in question attacked the employer, a local television station, for undue reliance on old programs and a complete absence of local programming. In context, this was no suggestion of a link to a labor dispute, because the labor dispute didn‘t revolve around those deficiencies. See 346 U.S. at 468. Similarly, here; so far as the collective bargaining was concerned, smart meters were not an issue (except as a partial explanation for the parties’ differing preferences as to contract duration). If the Board is to rely on the deep background dispute over smart meters, it will have to draw some intelligible lines as to when statements that look like simple disparagement can be found, without more, to signal to the audience that the remarks are a move in a genuine labor dispute.
The Second Circuit has held that a workers’ report about a hospital‘s quality of care (including understaffing), submitted to a special commission on hospital accreditation, qualified for protection notwithstanding Jefferson Standard. Misericordia, 623 F.2d at 813–15. Because of the commission‘s role in enforcing state and federal health care standards, the court found that the Board “was correct in concluding that the Report was similar to protected complaints made to an appropriate administrative agency.” Id. at 813. Perhaps because of that analogy, the court made no effort to consider expressly the extent to which the report gave its readers any indication of relating to a labor dispute. We note that Misericordia was decided long before the Board enunciated its two-pronged approach to Jefferson Standard in Mountain Shadows Golf.
We vacate and remand to the Board to make clear: the burden of proof on Jefferson Standard‘s first condition for protection of a disparaging statement, its conclusion on the merits of that issue, and of course its grounds for both conclusions.
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Remand would be unnecessary if there were no substantial evidence to sustain the Board‘s view under Jefferson Standard‘s second requirement for protection of an employee‘s disparagement to third parties, namely a finding that his testimony was not “maliciously untrue,” J.A. 5 (quoting Valley Hospital Medical Center, 351 NLRB 1250, 1252 (2007)). Oncor argues that it was. We disagree and affirm the Board‘s findings on this issue.
While the ALJ noted that Reed‘s two-minute testimony was arguably “imprecise, even careless,” the Board found that Reed‘s statements did not rise to the level of malicious falsehood. J.A. 24. We agree that his testimony certainly lacked restraint. By concluding that “I do know a little bit about fire and heat, and these
But Reed was technically right that the heat was damaging customer‘s “homes” because meter bases, unlike the meters themselves, are the property of customers and thus their responsibility to repair and replace. Reed‘s opening testimony made clear he was addressing smart meters’ tendency to “burn[] up the meter bases.” J.A. 14. Before his testimony he consulted the local union in Houston and a Dallas County assistant fire marshal and received some confirmation of his perception that smart meters were overheating more frequently. Oncor protests that the smart meters in Houston were of an entirely different type than those used in Dallas and that a careful review of Reed‘s work orders does not bear out his intuition that smart meters were any more problematic than analog meters. But because Reed‘s possible malice is an arguable question of fact, we defer to the Board‘s weighing of the evidence. On this record, there is substantial evidence to sustain the Board‘s decision. See DirecTV, 837 F.3d at 42 (according “considerable deference” to the Board‘s reasonable conclusions on malicious intent).
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In addition to finding Oncor liable under § 8(a)(3) for interfering with Reed‘s protected Union activities, the Board held Oncor had also violated § 8(a)(5) for failing to produce needed information to bargaining representatives. See
Oncor does not dispute the relevance of the first two requests for information. On December 18, 2012, the Union requested “[a]ll documents reviewed and/or created or considered in connection with [Oncor‘s] investigation” of the veracity of Reed‘s testimony. J.A. 1548–51 (emphasis added). Oncor contends that after searching its records it found no help line records, service orders, lawsuits or claims reporting burning smart meters. The ALJ found Oncor in violation because it did not produce the records and orders it had “reviewed or considered” so that the Union could make its own determination of whether they related to burned smart meters. As the ALJ noted, Oncor never raised an objection as to why it should not produce those records in their entirety.
On March 25, 2013, the Union requested information “pertaining directly to [Reed‘s] discharge, possible disparate treatment, and/or records that might substantiate the testimony he gave.” J.A. 1560. Oncor objects that because the grievance was going to arbitration, the request for information amounted to pre-arbitration discovery to which the Union was not entitled. The ALJ reasoned that although “there is no right to pretrial discovery when a grievance has been referred to arbitration,” J.A. 21 (citing California Nurses Ass‘n, 326 NLRB 1362 (1998)), and parties are not permitted to seek information on their opponents’ arbitral strategy, see id., employers remain under the obligation to produce relevant information as timely requested by bargaining
Finally, in a case virtually unrelated to this one (but involving some of the same cast of characters), the Union sought information from Oncor regarding the termination of an employee, Samuel Goodson, and the promotion of a comparator employee, Eddie Lopez. Oncor refused to provide Lopez‘s personnel file for the period after Lopez‘s promotion, arguing it was irrelevant once Lopez was no longer a member of the same unit as Goodson. The Board overruled the ALJ to sanction Oncor for its refusal. The incident for which Goodson was fired occurred on May 13, 2013. Lopez was promoted on May 26, while Goodson was disciplined on July 16. The Union requested both employees’ files on July 25. The Board concluded that the relevance of Lopez‘s file as a comparator to Goodson‘s should have been obvious to Oncor even after Lopez‘s promotion.
While producible information “must be relevant, the threshold for relevance is low.” DaimlerChrysler Corp. v. NLRB, 288 F.3d 434, 443 (D.C. Cir. 2002) (internal citation and quotation marks omitted). “The Supreme Court has described the relevance standard as a liberal, ‘discovery-type’ standard.” Id. (quoting NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967)). And the issue of relevance “is, in the first instance, a matter for the NLRB, and the Board‘s conclusions are given great weight by the courts.” Oil, Chem. & Atonic Workers v. NLRB, 711 F.2d 348, 360 (D.C. Cir. 1983). Under this deferential standard, we do not find that the Board was unreasonable in its decision to sanction Oncor‘s failure to produce Union-requested information.
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As a final ambitious alternative, Oncor asks that we dismiss the General Counsel‘s complaint because he did not have authority to issue it. The Supreme Court recently ruled that the official who initiated the complaint against Oncor, Acting General Counsel Lafe Solomon, served in violation of the Federal Vacancies Reform Act,
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Oncor‘s petition is granted in part and denied in part. The Board‘s decision is vacated and remanded for further proceedings, specifically to clarify the burdens of proof in cases under Jefferson Standard and articulate whether and how those burdens were met here. The Board‘s cross-petition for enforcement is accordingly denied in part. Its petition to enforce its order on the requests for information is granted.
So ordered.