Oncor Electric Delivery Compan v. NLRB , 887 F.3d 488 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2017 Decided April 13, 2018
No. 16-1278
ONCOR ELECTRIC DELIVERY COMPANY LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL UNION NO. 69,
INTERVENOR
Consolidated with 16-1341
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
2
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.
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 (1978).
But the protection of the Act is no bar to dismissal for
“cause,” 29 U.S.C. § 160(c) (i.e., a cause independent of
protected activity), 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 (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
3
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) (finding that Mountain Shadows
Golf “accurately reflects the holding in Jefferson Standard”).
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; see also DirecTV, 837
F.3d at 35 (“[T]hird parties who receive appeals for support in
a labor dispute will filter the information critically so long as
they are aware it is generated out of that context.” (quoting
Sierra Publ’g Co. v. NLRB, 889 F.2d 210, 217 (9th Cir. 1989)).
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
4
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.
* * *
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.
5
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
6
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.
* * *
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
7
Jefferson Standard or Mountain Shadows Golf in its exceptions
to the Board.
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 could be met
“when it is clear from the context that [third-party appeals] are
related to a labor dispute and/or employees’ terms and
conditions of employment.” J.A. 132. To apply the § 10(e) bar
on the ground of Oncor’s failure to cite Jefferson Standard
itself would represent a clear, and offensive, “triumph of
technical pleading over fundamental fairness.” NLRB v. Blake
Constr. Co., 663 F.2d 272, 284 (D.C. Cir. 1981).
* * *
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
8
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’]
9
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 attackers of the protection of that section.” Id. at 477–78.
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.
10
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.
In its opinion the Board’s first reason for finding Reed’s
testimony protected under § 7 was Reed’s previously
announced (to his employer) intention to use the testimony to
11
gain leverage in ongoing collective bargaining negotiations
with Oncor over wage issues and a contract extension. Only
the day before his testimony, Reed had met with Oncor officials
in his capacity as a union representative to renegotiate the
collective-bargaining agreement, which was set to expire later
in the month. At a preliminary meeting, Reed announced, “I’m
trying to play nice in the sandbox, we’re here to make a deal
today, if we can’t, I’m going to be in Austin testifying before
the Senate commerce committee tomorrow about smart
meters.” J.A. 13. The parties agree that negotiations stalled
over the term of the CBA’s extension. Oncor offered only a
one-year extension, in part, the ALJ found, because of
uncertainty over how the legislature would respond to smart
meters.
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.
12
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 by the union. J.A. 3. The Board
asserted “Reed’s perception of a fire or electrical-arcing hazard
to himself and his coworkers,” id. at 4, but in fact the testimony
makes no mention of worker hazards. In its opinion, the Board
pivoted from the worker-hazard assertion to a claim that “Reed
illustrated the effect on employees’ working conditions of the
increase both in the number of service calls and the frequency
with which they had to deal with disgruntled customers when
explaining to them that they must pay to repair or replace their
burned up meter bases.” J.A. 3–4.
13
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.
14
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.
* * *
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 [smart meters] are causing damage to
people’s homes,” J.A. 14, Reed gave the impression that smart
meters (and only smart meters, not their analog counterparts)
were causing actual fires capable of significant structural
damage. In reality, it appears that the problem, to the extent
there was one, consisted of newer meters not quite fitting
correctly into older meter bases, with the result that meters
sometimes sparked, arced, and caused lug nuts or portions of
the meter base to melt or burn. Oncor contends this problem
could arise in any new meter, whether analog or digital.
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
15
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).
* * *
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 29
U.S.C. § 158(a)(5). Oncor objects to the three separate findings
of fault on its part, but we find no error in the Board’s rulings.
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
16
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 representatives.
The ALJ sanctioned Oncor for failing to meet the latter burden.
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.
17
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.
* * *
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, 5 U.S.C. §§ 3345 et seq.
(“FVRA”). NLRB v. SW General, Inc., 137 S. Ct. 929 (2017).
Shortly after our court had reached the same conclusion in the
case affirmed by the Supreme Court, SW General, Inc. v.
NLRB, 796 F.3d 67, 83 (D.C. Cir. 2015), the duly appointed
General Counsel Richard F. Griffin Jr. sent Oncor a notice of
ratification, which indicated that he had reviewed the record
and independently decided to pursue the complaint. J.A. 169.
We need not decide on the effectiveness of the ratification,
however, because we find our review blocked by the
untimeliness of Oncor’s objection, raised in the form of a
motion filed with the Board about 18 months after it had
already filed its exceptions to the ALJ’s decision and after
General Counsel Griffen’s notice of ratification apparently
gave Oncor the idea. In SW General, after reviewing the trade-
18
offs inherent in applications of the de facto officer doctrine
(between the needs for providing adequate remedies for actions
taken invalidly and for enabling the executive branch to
undertake prompt cures, see also Andrade v. Lauer, 729 F.2d
1475, 1499 (D.C. Cir. 1984)), we found the exception there
timely, observing, “We address the FVRA objection in this case
because the petitioner raised the issue in its exceptions to the
ALJ decision,” but we “doubt[ed] that an employer that failed
to timely raise an FVRA objection—regardless whether
enforcement proceedings are ongoing or concluded—will
enjoy the same success.” SW General, 796 F.3d at 83. In view
of the delay here, we find the claim barred.
* * *
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.