Oncor Elec. Delivery Co. v. Nat'l Labor Relations Bd.

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

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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.

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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

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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

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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

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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.

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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

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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.

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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.

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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.