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Public Service Co. of New Mexico v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

December 20, 2016

Public Service Company of New Mexico, Petitioner
v.
National Labor Relations Board, Respondent

          Argued October 13, 2016

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          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.

          OPINION

          Rogers, 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.

         I.

         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.

         A.

         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 ...


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