Directs at USA LLC v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 2, 2019 Decided June 7, 2019
No. 18-1092
D IRECTS AT USA LLC,
P ETITIONER
v.
NATIONAL LABOR R ELATIONS BOARD ,
R ESPONDENT
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 S RINIVASAN , Circuit Judges, and
G INSBURG , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge S RINIVASAN.
S RINIVASAN , 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. C IV. 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.

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