Directsat U.S. LLC v. Nat'l Labor Relations Bd.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 2, 2019 Decided June 7, 2019

No. 18-1092

DIRECTSAT USA LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 18-1156, 18-1228

On Petitions for Review and Cross-Application

for Enforcement of Orders of

the National Labor Relations Board

Eric P. Simon argued the cause for petitioner DirectSat

USA LLC. With him on the briefs were Daniel Schudroff and

Douglas J. Klein.

Arthur T. Carter argued the cause for petitioner

DIRECTV, LLC. With him on the briefs were A. John Harper

III and Arrissa K. Meyer.

Gregoire Sauter, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the brief

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were Peter B. Robb, General Counsel, John W. Kyle, Deputy

General Counsel, David S. Habenstreit, Assistant General

Counsel, and Usha Dheenan, Supervisory Attorney.

Before: GRIFFITH and SRINIVASAN, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: DirectSat installs and

services satellite television equipment for DirecTV. During

negotiations with a union representing its employees, DirectSat

proposed that any new work that arose during the term of the

agreement would not count as bargaining unit work unless it

was “pursuant to its Home Service Provider agreement with

DirecTV.” The union repeatedly asked to see the full Home

Service Provider agreement to understand the proposed scope

of bargaining unit work, but the company provided it only a

redacted, partial version.

The National Labor Relations Board found that DirectSat

had refused to disclose information relevant to the union’s

statutory duties and thus violated its duty to bargain in good

faith under the National Labor Relations Act. After the Board

issued its decision, DirecTV filed a motion to intervene in the

proceedings, which the Board denied. Each of the companies

now seeks review of the Board’s orders against them.

The Board reasonably concluded that DirectSat’s

bargaining proposal rendered the entire agreement relevant.

And we see no basis to set aside the Board’s denial of

DirecTV’s motion to intervene on the ground that it was filed

too late. We therefore deny the companies’ petitions for review

and grant the Board’s cross application for enforcement.

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I.

DirectSat USA, LLC, installs and services satellite

television equipment for DirecTV, LLC, a satellite television

provider. From September 2014 until May 2016, DirectSat and

International Brotherhood of Electrical Workers, Local Union

21, AFL-CIO (the Union) engaged in negotiations over a

collective bargaining agreement. One issue that arose

concerned whether future products or services other than

installation and service of satellite television services would

constitute bargaining unit work. The parties exchanged a series

of “New Product Lines” proposals over that issue.

On November 4, 2015, DirectSat submitted a New Product

Lines proposal containing the following term: “In the event

[DirectSat] is engaged with respect to products or services

other than those provided pursuant to its Home Service

Provider agreement with DirecTV . . . , such work shall not be

deemed bargaining unit work.” Bargaining Proposal No. 78

(Nov. 4, 2015), J.A. 83. On November 23, 2015, the Union

responded via email: “[O]ne of the company proposals

references the HSP agreement with [DirecTV]. We’d like a

copy of the agreement referenced in the proposal.” Email from

Dave Webster to Lauren Dudley (Nov. 23, 2015), J.A. 84. Two

weeks later, DirectSat responded with a heavily redacted copy

of the Home Service Provider agreement, which it described as

“relevant to scope of work.” Email from Lauren Dudley to

Dave Webster (Dec. 4, 2015), J.A. 87.

In the ensuing months, the Union repeatedly demanded the

full Home Service Provider agreement and DirectSat

repeatedly refused. On February 16, 2016, the Union requested

the information “to understand the relationship between AT&T

[DirecTV’s parent company] & DirectSat and the shared

work.” Email from Dave Webster to Eric Simon (Feb. 16,

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2016), J.A. 92. On March 18, the Union again asked for “a

FULL copy of the HSP agreement between DirectSat &

DirecTV particularly because of the reference [i]n the New

Product Lines proposal.” Email from Dave Webster to Eric

Simon (Mar. 18, 2016), J.A. 94.

On March 22, the parties held a bargaining session at

which DirectSat acknowledged the Union’s request for the full

agreement and responded that the relevant portions had already

been disclosed. During the session, the Union presented a

counterproposal to the company’s New Product Lines proposal

in which the Union also referenced the agreement. On April 5,

the Union reiterated via email its prior request for “a FULL

copy” of the agreement “because of the reference” in the

company’s proposal. Email from Dave Webster to Eric Simon

(Apr. 5, 2016), J.A. 96. And on May 19, the Union again

requested a full copy via email, this time citing its need “to

evaluate the extent of control of DirectSat by

DirecTV/AT&T.” Email from Dave Webster to Eric Simon

(May 19, 2016), J.A. 104. The company responded that it had

already supplied all relevant information.

On May 20, 2016, the Union filed an unfair labor practices

charge with the National Labor Relations Board. On

September 23, 2016, the Board issued a complaint and notice

of hearing. The parties agreed to forgo a hearing and instead

submit the matter on a stipulated record to an administrative

law judge.

The administrative law judge found that DirectSat had

violated the National Labor Relations Act by refusing to

provide the full, unredacted agreement. See 29 U.S.C.

§ 158(a)(5). The judge initially determined that the Union

lacked an objective basis for its belief that the document was

relevant to a joint employer relationship. But the judge

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concluded that the Union nonetheless had an entitlement to the

unredacted document on a theory not argued by the Board’s

General Counsel—i.e., that the Union had a right to verify

DirectSat’s assertion that it had provided the relevant portions

of the agreement.

DirectSat appealed that decision to the Board, which

affirmed and ordered DirectSat to disclose the full, unredacted

agreement. The Board relied on slightly different reasoning

than the administrative law judge. It found that the Union was

entitled to the unredacted agreement because DirectSat’s

bargaining proposal had defined the scope of bargaining unit

by reference to the entire agreement. See DirectSat USA, LLC,

366 NLRB No. 40, 2018 WL 1409574, at *2 (Mar. 20, 2018).

The Board also rejected DirectSat’s argument that the

administrative law judge violated the company’s due-process

rights by relying on a rationale not argued by the General

Counsel. Id. at *1.

After the Board issued its decision, DirecTV filed a motion

to intervene, asserting a confidentiality interest in the terms of

the unredacted agreement between it and DirectSAT. DirecTV

also moved for the Board to reopen the record and reconsider

its decision. On July 25, 2018, the Board denied DirecTV’s

motion, holding that it was untimely and that, in any event,

DirecTV’s interests were adequately represented by DirectSat.

DirectSat USA, LLC, 366 NLRB No. 141, 2018 WL 3608309

(July 25, 2018).

We now have before us DirecTV’s petition for review of

the Board’s order denying its motion to intervene, DirectSat’s

petition for review of the Board’s order mandating the

disclosure of the full agreement, and the Board’s cross-

application for enforcement of its DirectSat order.

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II.

We review the Board’s determination of a constitutional

issue de novo. See J.J. Cassone Bakery, Inc. v. NLRB, 554 F.3d

1041, 1044 (D.C. Cir. 2009). Otherwise, 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.” Oberthur Techs. of Am. Corp. v. NLRB, 865 F.3d 719,

723–24 (D.C. Cir. 2017) (internal quotation marks omitted).

A.

We first address the Board’s denial of DirecTV’s motion

to intervene. The National Labor Relations Act allows any

person to intervene in a Board proceeding “[i]n the discretion

of the . . . Board.” 29 U.S.C. § 160(b). We therefore review

the Board’s decision for abuse of discretion. Board regulations

provide that “[a]ny person desiring to intervene in any

proceeding must file a motion in writing or, if made at the

hearing, may move orally on the record, stating the grounds

upon which such person claims an interest.” 29 C.F.R.

§ 102.29. Because neither the Act nor the Board’s regulations

impose any substantive limits on the Board’s discretion, we ask

whether the Board exercised its discretion in an arbitrary way

and not whether its analysis is consistent with the standards set

forth in FED. R. CIV. P. 24, as DirectSat urges us to do.

The Board reasonably rejected DirecTV’s motion. The

parties agree that, as of November or December 2016,

DirectSat informed DirecTV that it was disclosing a redacted

copy of the agreement between the companies to help resolve

a pending Board charge. DirecTV then was on inquiry notice

that disclosure of the agreement was an issue in an ongoing

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Board matter. That notice occurred some seven months before

the hearing in front of the administrative law judge, fifteen

months before the Board’s decision, and sixteen months before

DirecTV moved to intervene. In that context, the Board

reasonably concluded that “DirecTV filed its motion to

intervene long after it knew or reasonably should have known”

that an order requiring disclosure of the agreement was a

possibility. DirectSat, 2018 WL 3608309, at *2.

DirecTV argues that the Board’s denial of intervention

was inconsistent with certain of the Board’s previous decisions,

as recounted in Boeing Co., 366 NLRB No. 128, 2018 WL

3456226 (July 17, 2018). We disagree.

The Board generally denies post-hearing motions to

intervene absent “changed circumstances warranting . . . late

intervention.” Oak Harbor Freight Lines, Inc., 361 NLRB 884,

884 n.1 (2014). In Boeing, the Board observed that, “in rare

instances, [it] has permitted posthearing intervention” (but

declined to do so in Boeing itself). Boeing, 2018 WL 3456226,

at *2 n.3. Unlike this case, each decision cited in Boeing in

which the Board had granted a post-hearing motion for

intervention involved changed circumstances or a legal issue

that arose at some late hour. See Drukker Commc’ns, 299

NLRB 856 (1990) (permitting post-hearing intervention for

sole purpose of litigating successor status by entity that had

acquired respondent’s assets in course of proceedings);

Premier Cablevision, 293 NLRB 931 (1989) (same); U.S.

Postal Serv.,, 275 NLRB 360 (1985) (permitting post-hearing

intervention by national union when respondent argued for first

time in post-hearing exceptions that national union was proper

bargaining representative); William Penn Broad. Co., 94

NLRB 1175 (1951) (permitting post-hearing intervention by

union with which respondent had entered into renewal

collective-bargaining agreement while representation petition

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filed by different union was pending). The fact that the Board

has allowed post-hearing intervention in such circumstances

does not mean it must do so in every circumstance.

DirecTV’s reliance on Detroit Edison Co. v. NLRB, 440

U.S. 301 (1979) is likewise unpersuasive. Detroit Edison

establishes that the Board abuses its discretion if it fails to

consider a party’s established confidentiality interest when

crafting an administrative remedy. See id. at 316–17. Had

DirecTV been a party to the proceedings before the agency, the

Board would have been required to consider DirecTV’s

confidentiality interest in the agreement. But Detroit Edison

says nothing about whether DirecTV should have been

permitted to intervene in those proceedings in the first place.

For those reasons, the Board acted within its authority in

denying DirecTV’s post-hearing motion for intervention on the

ground that DirecTV’s motion was untimely. We therefore

have no occasion to address the Board’s alternative rationale

that DirectSat adequately represented DirecTV’s interests.

B.

We next consider DirectSat’s petition for review of the

Board’s order requiring disclosure of the full unredacted

agreement. The Act imposes a duty on employers to bargain

in good faith with employees and their representatives. 29

U.S.C. §§ 158(a)(5), (d). That duty encompasses a

responsibility “to provide relevant information needed by a

labor union for the proper performance of its duties as the

employees’ bargaining representative.” KLB Indus. v. NLRB,

700 F.3d 551, 556 (D.C. Cir. 2012) (citation omitted).

The parties agree that agreement is not presumptively

relevant because it does not pertain directly to bargaining unit

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employees. See Disneyland Park, 350 NLRB 1256, 1257

(2007). The Union thus must demonstrate “a reasonable belief,

supported by objective evidence,” that the information in the

redacted portions of the agreement is relevant to the

performance of its duties as the bargaining representative. Id.

at 1258. That is a “liberal discovery-type standard,” in which

relevance is “broadly construed.” KLB Indus., 700 F.3d at 556

(citation omitted).

The Board understandably determined that the agreement

was relevant to the Union’s duties because DirectSat itself

incorporated the full agreement by reference. The company’s

bargaining proposal stated: “In the event [DirectSat] is

engaged with respect to product or services other than those

pursuant to its Home Service Provider agreement with

DirecTV . . . , such work shall not be deemed bargaining unit

work.” Bargaining Proposal No. 78 (Nov. 4, 2015), J.A. 83.

The company’s contention that only portions of the agreement

were relevant is belied by the proposal’s own reference to the

agreement as a whole.

In that context, the Union could not respond to the

proposal in a manner consistent with its duty of fair

representation without knowing what the agreement said as a

whole. As the Board explained, the Union “cannot be

reasonably expected to integrate another agreement between

the employer and a third party into its own collective-

bargaining agreement without having a complete

understanding of the contents of the incorporated document

and the context of the relevant portions within the document as

a whole.” DirectSat, 2018 WL 1409574, at *2. The company

“was obligated to provide the full, unredacted HSP to the

Union in order for the Union to evaluate the extent of work

covered by the [company’s] proposal.” Id.

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DirectSat finally contends that the administrative law

judge infringed the company’s due-process rights by requiring

disclosure of the agreement based on a rationale that was not

advanced by the Board’s General Counsel. In this setting, “due

process is satisfied when a complaint gives a respondent fair

notice of the acts alleged to constitute the unfair labor practice

and when the conduct implicated in the alleged violation has

been fully and fairly litigated.” Pergament United Sales, Inc.

v. NLRB, 920 F.2d 130, 134 (2d Cir. 1990); see also Tasty

Baking Co. v. NLRB, 254 F.3d 114, 122 (D.C. Cir. 2001)

(favorably citing Pergament on this point).

While the administrative law judge relied on the notion

that the Union had a right to verify DirectSat’s account that it

had supplied the relevant portions of the agreement, the Board

rested on the slightly different rationale that DirectSat’s

bargaining proposal had rendered the full agreement relevant.

DirectSat’s relevant conduct under that rationale was

encompassed by the Board’s complaint and the dispositive

issue was actually litigated before the administrative law judge.

See Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169

(D.C. Cir. 1993). The Complaint alleged that DirectSat had

“failed and refused to furnish” the unredacted agreement,

which was “necessary for, and relevant to, [the Union’s]

performance of its duties as the exclusive collective-bargaining

representative.” Complaint & Notice of Hearing, J.A. 44. And

DirectSat’s actions, the Complaint stated, constituted “failing

and refusing to bargain collectively and in good faith . . . in

violation of Section 8(a)(1) and (5) of the Act.” Id.

Additionally, substantial portions of DirectSat’s briefing

before the administrative law judge addressed whether the

proposal rendered the full agreement relevant. The issue thus

was fully and fairly litigated, and due process requires no more.

* * * * *

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For the foregoing reasons, we deny DirectSat’s and

DirecTV’s petitions for review and grant the Board’s cross-

application for enforcement.

So ordered.