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

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2016 Decided December 20, 2016

No. 14-1074

PUBLIC SERVICE COMPANY OF NEW MEXICO,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1122

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.

2

Before: HENDERSON and ROGERS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROGERS.

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

3

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

4

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).

B.

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.

5

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.

C.

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.

6

II.

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 (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 (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. 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).

7

A.

“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

(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 F.3d 723, 729 (D.C. Cir.

2011). This standard is in keeping with the observation in Acme

Industrial Co. that a “liberal standard as to relevancy” decreases

the burdens and expense of resolving labor conflicts by

providing the union with an opportunity to evaluate the merits

of a claim without forcing it to “take a grievance all the way

through to arbitration.” 385 U.S. at 437 n.6, 438.

The company contends that the Board departed from

well-settled precedent in finding that it violated Section 8(a)(5)

and (1) in three instances when it denied Union requests for

information about non-unit employees. Maintaining that “[a]

union’s bare assertion” it needs such information does not oblige

the employer to provide it, Pet’r’s Br. 28 (citing N.Y. &

Presbyterian Hosp., 649 F.3d at 730), the company points to the

Board’s discovery-type standard under which the company is

required to provide requested information only if the

information is of probable or potential relevance, id. at 28 (citing

N.Y. & Presbyterian Hosp., 649 F.3d at 730). Because

information regarding non-unit employees is not presumptively

relevant, see Oil, Chem. & Atomic Workers, 711 F.2d at 359, a

union must demonstrate “a reasonable belief, supported by

objective evidence, that the requested information is relevant,”

Pet’r’s Br. 28–29 (quoting Disneyland Park & Disney’s Cal.

Adventure, 350 NLRB 1257, 1257–58 (2007)), which the

company maintains requires evidence “external to its own

8

subjective impressions,” id. at 29 (quoting NLRB v. B.A.

Mullican Lumber & Mfg. Co., 535 F.3d 271, 280 (4th Cir.

2008)). The company asserts that the Union neither presented

“sensory observations” nor conducted an investigation that had

given rise to a reasonable suspicion of disparate treatment, and

therefore was not entitled to receive the requested non-unit

employee information. Id. at 31–32.

The company appears to view the Board to have ruled

that the requested information was relevant solely because the

information related to employee-wide policies. E.g., Pet’r’s Br.

30, 31. This ignores that the Board’s determination was made

in the context of pending grievances alleging disparate treatment

of unit and non-unit employees under company-wide policies,

as its cited precedent underscored. It cited 2011 PNM, where

the company’s refusal to provide information about supervisors

Delorenzo and Bouska violated the Act because the information

concerned policies “equally applicable to each of [the

company’s] bargaining unit and non-bargaining unit employees”

and was “necessary . . . for the Union’s processing of a

[disparate treatment] grievance.” 356 NLRB at 1279, 1280. It

also cited Postal Service, 310 NLRB 391 (1993), where the

Service’s refusal to provide information about two non-unit

employees whom witnesses claimed had routinely been late for

work violated the Act because the request was connected to a

grievance filed on behalf of a unit employee disciplined for

tardiness. The Board ruled the requested information was

relevant “[b]ecause supervisors and employees were subject to

the same time and attendance rules, [and] information that

supervisors were tardy arguably could show disparate treatment

which would be of use to the Union in processing the

employees’ grievances.” Id. at 392. And the Board cited Postal

Service, 301 NLRB 709 (1991), where the requested information

about supervisory discipline was deemed relevant because the

information concerned the Service’s policies that “appl[ied]

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equally to supervisors and unit employees,” and was “necessary

to the Union’s [pending grievance] to show that [a unit member]

was treated in a disparate manner.” 301 NLRB 709, 711 (1991).

To the extent the company maintains the Union was

engaged in a “classic fishing expedition” because it presented no

evidence to demonstrate “reasonable suspicion that disparate

treatment had occurred,” Pet’r’s Br. 31, the company’s reliance

on B.A. Mullican Lumber & Mfg. Co., 535 F.3d 271, is

misplaced. That case addressed the standard for an employer to

withdraw recognition of a union, id. at 277, and did not assess

the relevance of requested non-unit employee information. The

Board has long rejected the company’s approach. In Holiday

Inn on the Bay, 317 NLRB 479 (1995), the Board explained that

a union is not required to have evidence of disparate treatment

in order to be entitled to receive information relating to that

disparate treatment. There, after filing a grievance alleging

disparate treatment of non-unit employees who were terminated

for leaving a cash register unattended, the union requested “all

[disciplinary] documents issued to front desk personnel Union

and nonunion for similar infractions from January 1993

forward.” Id. at 480. The Board ruled the employer’s refusal to

provide the information violated Sections 8(a)(1) and (5).

“[C]omparative discipline is one area where information

pertaining to nonunit employees, . . . [is] necessary to

performance of the [union’s] function” and would “provide the

Union with a basis . . . that [unit employees] had been harshly,

unjustly or disparately treated.” Id. at 481 (internal citation

omitted). Similarly, in Postal Service, 289 NLRB 942 (1988),

the Board ruled the union was entitled to receive requested

information about the discipline of supervisors accused of

gambling “because the gambling prohibition . . . applie[d] to

both” unit and non-unit employees and the union had filed a

grievance alleging that unit employees were “disparately

treated” under that policy. Id. at 943. Earlier still, the Board

10

explained “[i]t is not necessary, as [the employer] appears to

suggest, that the Union demonstrate actual instances of

contractual violations before [the employer] must supply

information.” Doubarn Sheet Metal, Inc., 243 NLRB 821, 824

(1979).

The company relies primarily on the 1993 Postal Service

case where the Board stated that “the burden of demonstrating

relevance is not carried by a showing of a common disciplinary

standard and a mere suspicion that there may exist some

evidence of supervisory misconduct similar to that involved in

the grievance.” 310 NLRB at 702 (citation and quotation

omitted). The context of the Board’s statement limits its

applicability, however. There, a “class action grievance” had

been filed after a unit member received a notice of removal “for

failure to report to work as scheduled,” id. at 701, 702, and the

union requested the leave records of nineteen supervisors and

records of any disciplinary actions taken against them for leave

abuse. Id. at 702. Unlike the unit employee who was

disciplined for “five instances of unexcused day-long absences,”

id. at 702, there was no basis to believe these supervisors had

violated the company’s leave policy, and it was therefore not

readily apparent that the supervisors were similarly situated to

the grievant. The Board stated the union must show something

more than a “mere suspicion” the supervisors engaged in

tardiness or absenteeism. Id. at 702. Because the union adduced

only statements of unnamed union members that they had

observed “prolonged absences” by these supervisors, the Board

dismissed the allegation. Id. at 703.

By contrast, here, the Union did more than present a

“bare assertion that it needs information to process a grievance.”

Detroit Edison Co. v. NLRB, 440 U.S. 301, 314 (1979). It tied

its requests to company-wide polices and requested information

about non-unit employees who were similarly situated to the

11

unit employee in an attempt to determine whether, as the

grievances alleged, there had been disparate treatment by the

company based on union membership. The Union neither

sought information about non-unit employees for whom the

company had not applied its policy nor sought information that

would disclose extraneous information, such as the application

of different policies not grieved. The Board had no occasion to

determine whether each of these circumstances was necessary

to establish relevance for non-unit information. But the Board’s

ruling that the company’s failure to provide the requested

information violated the Act was supported by well-established

Board precedent.

B.

An employee grievance procedure is a “mandatory

subject[] of bargaining” under Section 8(a)(5) of the Act. St.

Agnes Med. Ctr. v. NLRB, 871 F.2d 137, 145 (D.C. Cir. 1989)

(citing Ind. & Mich. Elec. Co., 284 NLRB 53 (1987)); 29 U.S.C.

§ 158(a)(5). Section 8(d) of the Act describes the duty to

bargain as the mutual obligation to meet at reasonable times and

confer in good faith with respect to wages, hours, and other

terms and conditions of employment. An employer violates

Section 8(a)(5) where, in the absence of a final agreement or

impasse, the employer “unilaterally imposes changes in the

terms and conditions of employment,” Wayneview Care Ctr. v.

NLRB, 664 F.3d 341, 347 (D.C. Cir. 2011) (quoting TruServ

Corp. v. NLRB, 254 F.3d 1105, 1113 (D.C. Cir. 2001)), when

those changes are “material, substantial, and significant,” S.

Nuclear Operating Co. v. NLRB, 524 F.3d 1350, 1357 (D.C. Cir.

2008) (quoting Alamo Cement Co., 281 NLRB 737, 738 (1986)).

Such unilateral changes derivatively violate Section 8(a)(1). 29

U.S.C. § 158(a)(1); see Wayneview Care Ctr., 664 F.3d at 347

n.1 (quotation omitted).

12

The company contends that it was entitled, without

bargaining with the Union, to implement the three changes to

the Informal Step of the grievance process — requiring a second

supervisor to attend the initial meetings, requiring grievances to

be described with particularity prior to any oral discussions, and

instructing supervisors not to sign for receipt of written

grievances after meeting with union stewards. Challenging the

Board’s interpretation of the CBA and the Board’s findings on

the parties’ past and present practices, the company maintains

that rather than “hid[ing] the ball until after oral discussions

break down,” a plain reading of Article 10 of the CBA envisions

a meaningful interactive process during the Informal Step and

requires the grievance to be explained with particularity at the

outset. Pet’r’s Br. 35. To the extent a second supervisor’s

presence was a change, the company maintains it was not

material, substantial, and significant because no evidence

showed the change delayed or prevented a grievance from being

addressed. Id. at 38–39. The company takes the same position

with regard to its two other changes, id. at 39, and it maintains

the Board improperly lumped together unrelated events in

concluding the changes were material, substantial, and

significant, id. at 40.

Article 10 of the CBA sets forth a three-step grievance

process. The initial “Informal Step” involves a meeting between

the employee, the employee’s immediate supervisor, and a union

steward if the employee requests one. The parties are to

“attempt to adjust the grievance informally.” If the grievance is

not adjusted to the satisfaction of the grievant after an oral

discussion, the grievance “shall be reduced to writing, on

appropriate forms,” where it must include a statement of the

grievance and identify the CBA provision at issue, all involved

employees, and the remedy sought. Article 10 does not

expressly state whether the formalities associated with written

grievances also apply to the initial oral discussions. The

13

company’s interpretation that the formalities apply to both may

be plausible, but the Informal Step is “reasonably susceptible of

different constructions or interpretations.” Ameren Servs. Co. v.

FERC, 330 F.3d 494, 499 (D.C. Cir. 2003) (quoting Consol. Gas

Transmission Corp. v. FERC, 771 F.2d 1536, 1544 (D.C. Cir.

1985)). The sequencing contemplated by Article 10 — the

grievance “shall first [be] take[n] up . . . orally” and is “reduced

to writing” if it “is not adjusted to the satisfaction of the

grievant,” — is reasonably understood to impose different, more

demanding formalities for a written grievance than for the initial

oral meetings. Under the circumstances, “[a]n employer’s ‘past

practice’ can become ‘clearly established as a term and

condition of employment’ subject to the duty to bargain.” Int’l

Bhd. of Elec. Workers Local 1466 v. NLRB, 795 F.2d 150, 153

(D.C. Cir. 1986) (quoting Office & Prof’l Emps. Int’l Union,

Local 425 v. NLRB, 419 F.2d 314, 321 (D.C. Cir. 1969)).1

The Board’s finding that the parties had a longstanding

practice of conducting the Informal Step with a high degree of

informality is supported by substantial evidence. 2014 PNM 2.

The parties’ history indicates that at the outset of the grievance

process, a single supervisor met with the employee and a union

steward to discuss the grievance and determine whether it could

be satisfactorily resolved. Various witnesses, including a

company director, described the Informal Step as beginning by

simply “talk[ing] through” the issue. Tr. 595 (Nov. 17, 2011);

see Tr. 162 (Nov. 15, 2011); Tr. 221 (Nov. 16, 2011); Tr.

926–29 (Jan. 18, 2012); Tr. 1035, 1058 (Jan. 19, 2012).

1

The company never suggested to the Board that it should

have deferred ruling on the contract questions until they had first been

pursued by the Union pursuant to the CBA’s grievance and arbitration

procedures. See, e.g., Hammontree v. NLRB, 925 F.2d 1486 (D.C. Cir.

1991); Collyer Insulated Wire, 192 NLRB 837 (1971). We express no

opinion on whether deferral would have been appropriate here.

14

Collectively, these witnesses confirmed that union stewards did

not present the written grievance to the supervisor until after an

oral discussion of the grievance took place and the supervisor

was unable to provide a satisfactory resolution.

By contrast, beginning in the summer of 2011, a second

supervisor began attending the Informal Step at the outset and

supervisors would no longer engage in oral discussions unless

stewards had described the grievance with particularity, “line by

line and article by article.” Tr. 220–24, 266, 403 (Nov. 16,

2011); see Tr. 107 (Nov. 15, 2011); Tr. 439, 447 (Nov. 17,

2011). Company supervisors also began refusing to sign for and

certify Informal Step grievances for Step Two of the grievance

process. Tr. 39–44 (Nov. 15, 2011); Tr. 355–56, 403–05, 410,

412 (Nov. 16, 2011); Tr. 910–11 (Jan. 18, 2012). In some

instances, stewards were then required to file the same grievance

for a second time, see Tr. 356 (Nov. 16, 2011), and in other

instances, the company supervisor’s refusal to sign and certify

a written grievance for Step Two rendered the grievance

untimely. Tr. 45–46 (Nov. 15, 2011); Tr. 274, 319, 403–05, 413

(Nov. 16, 2011).

Substantial evidence also supports the Board’s finding

that the company’s changes to the CBA grievance process were

“material, substantial, and significant” and thus violated Section

8(a)(5). 2014 PNM 2–3. “[W]hat was once an informal

discussion between the steward and the supervisor is now a

more formal and protracted affair.” Id. at 3 (quoting ALJ Dec.

15). Under Board precedent, a unilateral change to who attends

a grievance meeting can itself be a significant enough change to

violate Sections 8(a)(1) and (5). See Barnard Coll., 340 NLRB

934, 944–45 (2003). So too an employer’s refusal to process a

grievance. See, e.g., Majestic Towers, Inc., 353 NLRB 304, 313

(2008). And the Board majority reasonably explained that it

was appropriate to consider the cumulative effect of these three

15

changes even though the complaint listed each change as a

separate violation. 2014 PNM 3 n.10; id. (Member Johnson,

dissenting in part). Not only did each change relate to the

Informal Step, but they were all implemented at the same time

and by the same document, prepared by a consulting firm

(“Informal Grievance Guidelines for Supervisors”). The Board

therefore properly considered them “in the context of the

complaint as a whole.” In re Morrone, 340 NLRB 1196, 1199

(2003).

C.

The company’s third challenge to the 2014 PNM

decision is a non-starter. Article 8 of the CBA incorporates all

federal and state prohibitions against racial discrimination, and

the parties’ past practice makes clear that union business agents

have represented unit members in disputes arising under the

CBA. The company does not contest that it forced Cox to forgo

union representation in his racial discrimination complaint after

requiring, over the objection of Cox and the Union, bifurcation

of his race and union animus complaints.

Although Article 10 of the CBA provides that “any

employee may request the presence of a Union steward to

represent the employee in the grievance,” it also requires a

grievant to present his grievance to his supervisor no later than

15 days after the alleged wrongdoing occurred. The company

maintains that Cox did not follow these requirements, a failure

which it views to strip Cox of his representation right. The

Board maintains the court lacks jurisdiction to address this

contention because the company never presented it to the Board,

see 29 U.S.C. § 160(e), but we are satisfied that the Board had

“adequate notice of the basis for the objection,” Alwin Mfg. Co.

v. NLRB, 192 F.3d 133, 143 (D.C. Cir. 1999). For instance, in

its Reply Brief in Support of Exceptions at 5, the company

invoked the grievance procedure in stating: “If Cox had initiated

16

the CBA’s grievance process in connection with his complaints,

then Cox would have been unquestionably entitled to Union

participation in the process.” Nonetheless, the company’s

challenge fails.

The Board finessed the question of whether the ALJ

properly characterized Cox’s racial discrimination complaint as

a “grievance” under Article 10, ruling that such characterization

did not “affect [the] disposition of this allegation.” 2014 PNM

1 n.6. Evidence showed that the company’s past practices

allowed Tafoya and other union business agents to represent unit

members in any dispute “encompassed under” the CBA, id.,

regardless of whether the underlying complaint could

technically be characterized as an Article 10 “grievance.” Cf.

Int’l Bhd. of Elec. Workers Local 1466, 795 F.2d at 153. Ample

undisputed evidence showed that it was customary to have union

business agents, such as Tafoya, represent unit members in HR

investigations that concern a provision of the CBA, such as

Cox’s racial discrimination complaint, even though such

investigations are not governed by Article 10’s procedures. Tr.

71–72 (Nov. 15, 2011). Similarly, union business agents would

regularly represent unit members in “grievances” that were

governed by Article 10. Tr. 31–32 (Nov. 15, 2011); Tr. 506

(Nov. 17, 2011). The Board therefore correctly concluded that

the label attached to Cox’s racial discrimination complaint did

not deprive him of his right to representation by a Union agent.

Finally, the company’s attempt to argue that its

violations for unilaterally restricting union agents’ access to its

Edith Service Center and San Juan Generating Station are moot

in light of its agreement to restore the agents’ access to those

facilities, Pet’r’s Reply Br. 4–5, is doubly flawed: the argument

is first raised in the company’s reply brief without explanation,

see, e.g., Al-Adahi v. Obama, 613 F.3d 1102, 1111 n.6 (D.C. Cir.

2010), and an “employer’s compliance with an order of the

17

Board does not render the cause moot,” NLRB v. Mexia Textile

Mills, 339 U.S. 563, 567 (1950).

Accordingly, because the Board is entitled to

enforcement of the unchallenged violations, see Parsippany

Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 418 (D.C. Cir. 1996),

and of its Order remedying them, Allied Mech. Servs., Inc. v.

NLRB, 668 F.3d 758, 765 (D.C. Cir. 2012), we deny the petition

for review and grant the Board’s cross-application for

enforcement of its Decision and Order.