Employer’s Failure to Supply Supervisory Discipline Records Is an Unfair Labor Practice

On August 28, the Tenth Circuit Court of Appeals upheld a decision of the National Labor Relations Board (NLRB), which found that an employer committed an unfair labor practice by failing to provide supervisory discipline records in response to the union’s records request in a grievance proceeding. Public Service Co. of New Mexico v. NLRB (10th Cir. 2012).

The union brought the grievance on behalf of former bill collector, Robert Madrid, after he was terminated under PNM’s ethics policy for disconnecting a customer’s service. The union alleged that PNM treated Madrid differently from other employees, including supervisors, who had committed similar violations. The union requested that PNM provide all records of other disciplinary actions based on the ethics policy. PNM provided the disciplinary records of other union employees, but refused to provide disciplinary records of supervisors. PNM said that these records were not relevant because supervisors, not being part of the union, were not “similarly situated” to Madrid. The union filed an unfair labor practice charge based on PNM’s failure to provide the records. 

Although PNM did provide the records on the eve of the NLRB hearing, the judge said this was too late for PNM to avoid having committed an unfair labor practice. The NLRB, and later the Tenth Circuit, rejected PNM’s argument that supervisors were not similarly situated, saying that there was no evidence that the ethics policy was applied differently to union and nonunion employees. PNM tried to raise other arguments, but the Tenth Circuit could not hear those arguments because PNM had not raised them in the NLRB hearing.    
Employers should be certain to raise all defenses to unfair labor practice charges at the initial NLRB hearing to preserve them for appeal. And, employers should make an individualized analysis for each information request submitted by the union to determine whether other individuals in the information request are similarly situated to the grievant. In performing the analysis, employers should consider whether the rule at issue applies to all employees, to only union employees, or to only certain employee classifications. MSEC Labor Relations attorneys are available to help you deal with these and other union issues.