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]
 9

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.