Court Denies CenturyTel Review of NLRB Decision on Information Request

United States Court of A ppeals FOR THE DISTRICT OF COLUM BIA CIRCUIT Argued September 15, 2025 Decided Janu ary 13, 2026 No. 24-1346 C ENTURY T E L OF M ONTANA, I NC., A S UBSIDIARY OF L UMEN T ECHNOLOGIES, I NC., P ETITIONER v. N ATIONAL L ABOR R ELA TIONS B OARD, R ESPONDENT I NTERNATION AL B ROTHE RHOOD OF E LECTRIC AL W ORKERS L OCAL U NION 768, I NTERVENOR Consolidated with 24-1352 On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board Patrick R. Scully argued the cause for petitioner. With him on the briefs was Monica J. Frascona.

2 Jared D. Cantor, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With hi m on the b rief were William B. Cowen, Ac ting General Counsel, Ruth E. Burdick, Deputy A ssociate General Counsel, Meredith Jason, Assistant General Counsel, and Ush a Dheenan, Supervisory Attorney. Jacob J. Demree argued the cause for interv enor in support of respondent. With him on the brief was Jonathan D. Newman. Before: P AN and G ARCIA, Circuit Judges, and R OGE RS, Senior Circuit Judge. Opinion for the Court by Senior Circuit Judge R OGERS. R OGER S, Senior Circuit Judge: The Natio nal Labor Relations Board ruled that CenturyTel of Montana, Inc., violated Se ction s 8(a)(5) and (1) of the National Labor Relati ons Act (“th e Act”), 29 U.S.C. § 158 (a) (5), (1), by failing to furnish information requested by the International Brotherhood of Electrical Workers, Local Union 768 (“the Union”) on non-union technicians working with in the Union’s jurisdiction. CenturyTel petitions for review on sev eral grounds, in an attempt to show that t he Bo ard’s d ecis ion was not supported by substantial evidence. For the following reasons, t he cou rt deni es the petition and grant s the Board’s cross -application for enforcement of its order. I. CenturyTel provides telephone and d ata serv ices as a subsidiary of Lumen Technologies, Inc., a n ational telecommunications company. It ha s h ad a c ollective

3 bargaining agreement (“CB A”) with the Union for decade s. The Union represent s em ployees in northwest Montana who perform installation, maintenance, and repair work for busin esses and resid ences. A mong the a ttachments to the operati ve CBA is a le tter of understanding o n crossing jurisdictional boundaries, which states that CenturyTel “ may have employees from other bargaining units work with in this bargaining unit’s jurisdiction only when no employee s from this bargaining unit are a vailable or to help during emergen cies.” L tr. of Understanding, CenturyTel of Washington, Inc., CenturyTel of Oregon, Inc., CenturyTel of Montana, Inc. and Locals 89 and 768, I BEW, AFL - CIO, at 103 (July 1, 2020). On July 27, 2021, the Union ’s business manager, Georg e Bland, received an emai l from the T elecommunicatio ns Council, a group of local m ember unions of the International Brotherhood of Electrical Worke rs (“IBEW”) that represen t employ ees of CenturyTel and other Lumen entities throughout the United States. The email, s ent to union representatives across the country, refe rred to a report from a uni on local that Lumen was using non -union N ational T echnicia ns to per form work in the l ocal union’s a rea. Union locals in Missouri and Texas responded that N ationa l T echnicians were working in their areas. On August 9, the Council sen t B land and other locals a model information request regarding CenturyTel’s use of N ational Technicians. Bland sent the information request to Lumen ’s regional manager, John Bemis, on August 10. I n a coveri ng emai l, Bland stat ed “the attache d info rmation reques t [w as] r egardi ng National Techs working in Local 768’s jurisdiction,” and Bemis should “call with any questions. ” The request itself stated the infor mation was “ for purpose s of monitoring the collect ive barg ainin g agreement between the pa rties an d the

4 investigation, preparation and processing of grievances i n the event the Union feels there has been a vi olation of any provision (s) there in.” The re were eightee n questions about the number of N atio nal T e chnicians working in the Union’s “ jurisdictio n, ” how long they had worked there, the nature of their work, and the job descriptions of certain Union positions. Bemis called Bland upon receiving the email. The two men had worked together for a number of ye ars, and h e was curious whether there were outstanding grieva nces. During the call, Bemis menti oned ther e were two N ational T echni cians work ing in Montana. Lacking detail s, Bemis forward ed the information req uest to Arne ll Anderson, the nationa l team ’s manager for processing. A stream of emails fo llowed. On August 25, 2021, having heard nothing, Bland notified Bemis and Anderson that the Uni on was filing an unfair labor pr actice charge with the Board for “ failure to provide or communicate [CenturyTel’s] intent regarding this i nfo rmation req uest. ” Anderson promptly r esponded th e team was working on t he request and would respond as soon as “approp riate info rmation ” was avai labl e. On September 1, 2021, Lumen Senior Human Resources Advisor Keller Noble respon ded. Noble stat ed she w as working on the requested job descriptions and w ould provide them on ce they were avail able. In an att ached l etter, Nob l e confirmed t wo N ation al T echnicians were working in Montana, provided an overview of their r esponsibili ties, and stated N ationa l T echn ician s were no t perf ormi ng u nit bargaining work. Ltr. from Keller Noble to George Bland (Sep t. 1, 2021). With res pect t o th e questions abou t the number and length of time N ational T echnicians were or had worked in the northwest Montana area, Nob le asked “ [w] hy is this information relevant to administering your Collective Bargaining Agreement when these Lume n emplo yees are not

5 represented by [the Union] a nd are not performing bargaining unit work?” Id. Bland replied on Sept ember 13. He ap preciat ed “the Company’s assertion” that the N ational T echnicians were “not performing bargaining unit work,” but pointed ou t “ the Union has the ri ght t o mak e an independent det erminati on” o f whet her the technicians were per forming such work or had done so in the past and for how long. He inquired whether Noble had the requested job descriptions. Nob le provid ed one job description that day and t hree more n ine days lat er. When Blan d th en inquired the following day abou t answers to the rema ining unanswered questions, Nob le responded t hat t he r equest ed information about the N ational T echni cians was “out side th e scope of [the Union’s] jurisdiction as outlined in t he collective bargaining agreement ” b ecause th ey were not part of the bargaining unit. B land replied the Union’s request would be within the scope of its jurisdiction if “non - ba rgaining unit members are performing the work of employee s who are covered by th e CBA.” Bl and ren ewed again the r equest for informatio n, with a respons e by Sept ember 29. On October 1, 2021, t he Union filed an unfair labor practice (“ULP”) ch arge with t he Board. The reaft er the Bo ard General Couns el filed a co mplain t on April 27, 2022, alleging that CenturyTel violated Sectio n 8(a)(5) and (1) of the Act by failing and refusing to bargain collectively and in good faith with the Union as the exclusive bargaining representative of the unit, due to its failure to respond to the Union’s request for information, which was “necessary for, and relevant to, the Union’s performance of its duties.” C om pl. ¶ 6(b). Following an evidentiary hearing, the administrative law judge (“ALJ”) found that the General Co unsel had met the burden to prove the allegations by a preponderance of the evidence. Centu ryTel o f

6 Mont., Inc., Case No. 1 9 - CA -283839, sli p op. at 1 (Dec. 6, 2022) (“ALJ Dec. ”). Bland, Bemis, and Noble testified a t the ULP hearin g. As relevant, Bland testified that Bemis had admitted during his August 2021 call th ere were “a couple ” of N ati onal T echnicians that were either working or ha d worked in the Union’s “jurisdiction” or in its “area.” Hearing Tr. 51-52, 130 (J une 14, 2022). Bemis te stified that he called Bland upon receivin g the August 10 email to f ind out whether there were any forthcoming g rievan ces of which he w as una ware, and that he did not “believe” he re ferred to the Union’s “jur isdiction” in responding there were t wo N ational T echni cians working in Montana. Hearing T r. a t 141-42. “On bal anc e,” th e ALJ credited Bland’s version of the call “ as far more likely, given the state d subject matte r of the e mail that inspire d [Bemis] to initiate t he call. . . . ” ALJ Dec. at 5. (T he ALJ noted the terms “area” and “j uri sdicti on” were used “inter chang eably ” by the parties. Id. at 5 n.8.) I t was “undisputed that the parties had a history of disagreement over what constituted work within [the Union’s] jurisdiction or ‘area, ’” id. at 12; the Union had filed and settled two grievances in 2018 alleging tha t CenturyLink (a predecesso r company) v iolated the CBA by using non -union personnel in 2017 and 2018 to perform bargaining uni t work in the Union’s Market A re a. And Bemis, the ALJ obser ved, “did not deny that unit work was being performed by the National [Technici ans ] but instead obfuscated, admitting they had ‘been’ in the U nion’s jurisdiction ‘a few times.’” Id. T he ALJ therefor e c oncluded the r elevance of the requested information should have been apparent to CenturyTel. Id. (citing Murray Am. Energy, 366 NLRB No. 80, slip op. at 29). T he ALJ rejected as meritless CenturyTel’s objections t hat (1) it was not obligated to respond to the information request because th e Unio n failed to es tablis h “an obj ective factual bas is

7 for its belief t hat the [Natio nal Techni cians ] were, i n fact, performing unit work,” and (2) alternatively, CenturyTel had provided “every piece of information outlined” in the General Counsel’s complaint. Id. (citatio n, emphasis, and internal quotation marks omitted). The ALJ also overrule d CenturyTel’s objection s to admiss ion of the Telecommunications Council’s August 9 email (attaching a model information request that B land used as a template) and the 2018 grievances, on the ground the Union had produc ed neither in response to a pre - hearing subpoena. Sta ting th at p reser vation or diversion of unit work is a subject of mandatory bargaining under the Act, the ALJ found that the U nion ’s inform ation req uests “ were pl ainly aimed at ascert ainin g whether [CenturyTel] had been violating the parties’ contra ct by u tilizing the N ational [Techn icians ] to perform [Union] work.” Id. (citing New Y ork & Presbyterian Hosp. v. NLRB, 649 F.3d 723, 730 (D.C. Cir. 2011)). Furt her, “ [e]v en assuming that the releva nce of the Union’s request was not apparent to [CenturyTel] upon its receipt” of th e information request on August 10, “ the Union was hardly a cting on a ‘mere suspicion’ when it continued to pursue the reque sted information,” “ e specially considering Bemis’ admission that the National Techs had been present in [the Union’s] ‘area’” during his subsequent phone call with Bland. Id. at 13 - 14. The ALJ t herefore ruled that CenturyTel violated Section 8(a)(5) and (1) by failing to supply relevant re quested information to the Union and ordered CenturyTel to cease and desist, provide the rema ining information as alle ged in th e complaint, and post a notice describing the violation. CenturyTel filed exceptions, and the General Counsel filed an answering bri ef to which CenturyTel responded. The Board affirmed the ALJ’s rulings, factual fi ndings, and conclusions of law, a s clarified, and adopted the Order, as modified. CenturyTel of M ontana, Inc., 373 NLRB No. 128,

8 at 1 & n.2 (Oct. 10, 2024). The B oard agreed the Union had establ ished that the requested information about N a tional T echnician s was rel evant to its d uties at t he time of the requ est. First, t he Union established and demonstrated to CenturyTel the relev ance of t he reques ted information about the National Technici ans o n August 10, upon making its information request. Id. at 3. The Bo ard adopt ed th e ALJ’s “ well - reasoned credib ility determina tions,” finding Manag er Bemis had made a “ contemporaneous admission” on August 10 tha t “N ational T echnicians had worked in the Union’s jurisdiction.” Id. at 3. Second, the relevan ce of the information request should have been “readi ly apparent” to CenturyTel “ under the circumstances on August 10” based on the Bland - Be mis call. Id. at 4. Third, the Union dem onstrat ed the relev ance of t he requested information at the ULP hearing with evidenc e of the August 10 Bland - Bemis call, the 2018 grievances and settlemen ts, and Telecommunic ations Council reports that N ational T echnici ans had been p erform ing bargaining unit work in two o ther states. Acknowledging Cent uryTel had learned of some of th is evidence for the f irst time a t the ULP hearing, the Board pointe d to its “ longstanding” precedent that “ a union is not obligated to di sclose the factual basis for its in formatio n request a t the time of the re quest.” Id. at 3 (citing Cannelton Indus., Inc., 339 NLRB 996, 997 (2003); Brazos Elec. Power Coop., In c., 241 NLRB 1016, 1018 - 1 019 (1979), enf ’ d. in relevant part 615 F.2d 1100 (5th Cir. 1980)). “Rather, it is suff icient that the Gene ral Counsel demo nstrate at th e hearing that the union had, at the relevant time, a rea sonable belief. ” Id. (quoting Can nelton Indus., Inc., 339 NLRB at 997). T he Board noted CenturyTel did not request the Board to overrule its longstanding precedent allowing the Gene ral Counsel to demonstrate relevance at the ULP hear ing, and that even if it had, the result would be the same. Id. at 4 -5.

9 One Member dissented. He conclu ded the Union failed to establish relevance because it had not provided CenturyTel, prior to the ULP hearing, with “objective evidence under lying its belief th at the information wa s relevant. ” Id. a t 6 (Member Kaplan, dissenting). He urged the Boar d to adopt the standard in Hertz Corp. v. NLRB, 105 F.3d 868, 874 (3d C ir. 1997), to require a union to provide factual evidence of re le vance when making a request for information. Id. at 6, 8. II. CenturyTel petitions for review, a nd the Board cross - applies for enforcement of its Order. A. Section 8(a)(5) of the National Labor Relations Act (“the Act”) prov ides that it is an “u nfair l abor p racti ce for an employer . .. to refuse to bargain collectively with the representatives of his employees.” 29 U.S.C. § 158(a)(5). Violation of subsection (a)(5) “results in a der ivative violation of section 8(a)(1),” whi ch provides that employers who “interfe re with, restr ain, or coerce empl oyees in t he exercise of the [ir] rights guaranteed by the [A ct] h ave com mitt ed an un fair labor pr actice. ” Crozer - C hester Med. C tr. v. N LR B, 976 F.3d 276, 284 (3d Cir. 2020) (citations and internal quo tation marks omitted). Although the text of the Act does not expressly require employers to provide releva nt information upon request, the Board construed the Act to include this r equirement shortly after the A ct was en acted. In Pione er Pearl Button Co., 1 NLRB 837, 842 (1936), employees sought a revi sed wage and hourly scale and the employer responded with a reduced wage scale and i ncre ased hours. When collective bargaining

10 commenced after s ome em ployees had formed a union, the employer claimed tha t it could not offer higher wages or reduced hours because of its poor financ ial condition, but it offered no evidence or alternative proposal and declined the union’s request to produce its books or have them audited. Id. at 842 -43. The Board found that the employer w as on notice of the requested pa y and hourly scale and therefore was obligated under the Act to meet with the union, and did not do so until considerable time had pa ssed. Id. Further, the employer’s “attitude was peremptory a nd non - conci liat o ry even though the employees had been on strike for several months.” Id. at 843. Given the employer’s “ assertion that the [company’s] f inancial condit ion was poor,” and a ref usal “either t o prove [t he] s tatem ent, or to permit independent verificat ion,” the Board concluded the employer ’s refus al to bargain with the emplo yees’ rep resent ative interf ered with, restrain ed, and coerc ed the employees in the exercise of the rights guaranteed by Section 7 of the Act, id., which include the right to organize, form or join a union, and bargain through their re presentative s with the employer, 29 U.S.C. § 157. In N LRB v. Truitt Manufacturing Co., 351 U.S. 149, 153 (1956), the Supreme Court addressed simila r circumstan ces. As in Pi oneer Pearl Button Co., th e employer refused to provide information about the fi nancial ab ilit y to pay increas ed wages, arguing that the requested info rmatio n was i rrelevant to the bargaining process and related to matters exc lusively withi n the province of management. Id. at 151. The Cou rt affirmed the Board’s reasoning that good - f aith barg aini ng n ecessitat es both sides having acc ess to information b ear ing on the bargaining process. Id. at 152 -53 (citing Pioneer Pearl Button Co., 1 NLRB at 842-43). The Board and the Supreme Court h ave adhered to this interpre tation of the A ct. See, e.g., NLRB. v. Acme Indus. Co.,

11 385 U.S. 432, 435 -36 (1967) (citing Truitt Mfg. Co., 351 U.S. 149) (en forcing Acme Indus. Co., 150 NLRB 1463 (1965)). T he requ irement t o provide requested information, there fore, “derive[s] from the statutory duty to bargain.” Pub lic Serv. Co. of New Mexico v. N LRB, 843 F.3d 999, 1004 (D.C. C ir. 2016) (enforcing Publ ic Ser v. C o. of N ew Mexi co, 360 NLRB 573 (2014)). B. CenturyTel chall enges e ach of t he grounds on which the Board found that the G eneral C ounsel had establish ed the relevan ce of the requ est ed inform ation. It contends broadly that “ the Board disregarded substantial evidence and depa rted from est ablished p recedent ” by removing “ any require ment that rel evance m ust be based on a reas on able bel ief or supported by objective evid ence. ” Pet’ r ’ s Br. at 20. It contends specifi cally th at the B oard lacked substantial ev iden ce to find (1) the August 10 Bland - Bemis phone call demonstrated the relevance of the Union’s information reque st, (2) the circumstances on August 10 made the r elevance of t he information apparent, and (3) in any event, the ev iden ce at t he ULP heari ng estab lished relevan ce. Id. 20, 26, 31- 41. The court will overturn the Board’s decision “only if the Board’s factual findings are not supported by substantial evidence, or the Board acted arbitrarily or otherwise erred in applying establ ished l aw to t he fact s of th e case. ” Windsor Redding Care Ctr., LLC v. NLRB, 944 F.3d 294, 299 (D.C. Cir. 2019) (citation and internal quotation ma rks omitted). “A Board finding is supported by substantial evidence so long as ‘a reasonable mind might accept a particular evidentiary record as adequate to support a conclusion.’” CP Anchorage Hotel 2, LLC v. NLRB, 98 F.4th 314, 322 (D.C. Cir. 2024) (quoting Dickinson v. Zurko, 527 U.S. 150, 162 (1999)).

12 The Union bears the burden of establishing that it sought releva nt informatio n because it was seeking information about non-union employees. New Y ork & Pres byteri an Hosp ital v. NLRB, 649 F.3d 723, 730 (D.C. Cir. 2011). Pres byteria n Hosp ital is a hallmark decision in this circ uit. “A union’s bar e assertio n that it needs information” w ould be insufficient; inst ead “ the union must explain to the employer why the informatio n is relevant.” Id. (quoting Detroit Edison Co. v. NLRB, 440 U.S. 301, 314 (1979)). “[T ] he th reshold for relevan ce is lo w,” however, and “ the union need not demonstrate the existence of some particular controversy or the need to dispose of some rec ognized problem.” T ea chers Coll ege, Columbia U niv., 902 F.3d at 302 (quoting Presby terian Hosp., 649 F.3d a t 730). Instead, relevance is assessed unde r “a dis covery - type standard,” where the “f act that the information is of probable or potential r elevance” to the Union’ s responsibilitie s “is suffic ient to give ris e to an obligation” to provide it. Pre sbyterian Hosp., 649 F.3d at 730 (quoting Acme Indus. Co., 385 U.S. at 437; then quoting Oil, Chem. & Atomic Workers Loc. Union No. 6 - 418, AFL - C IO v. NLRB, 711 F.2d 348, 3 59 (D.C. Cir. 1983)). Relevance is “examined as of the t ime o f the d emand and re fus al.” Id. at 731 (quoting Gen. Elec. Co. v. NLRB, 916 F.2d 1163, 1169 (7th Cir. 1990)). Substantial evidence supports the Board’s conc lusion that the Union had “a reasonable belief, supported by objective evidence, ” that the information sought from CenturyTel was “relevant to the performance of its duties as the bargaining repres entativ e.” Direct Sat USA LLC v. NLRB, 925 F.3d 1272, 1278 (D.C. Cir. 2019) (quoting Disneyland Park, 350 NLRB 1256, 1258 (2007)). Although the Board relied on new evidence of the Union’s reasonable belief at the ULP hearing, Board pr ecedent p ermits that pr actice, and Cent uryTel forfeited any challenge to that precedent.

13 T he Board agreed with the ALJ that the Union had demonstrated to CenturyTel the relevance of the information request about National Technicians when it made the request on August 10. CenturyT el, 373 NLRB at 3. Reviewing the testimony before the ALJ — wh en M anager B emis had responded on August 10 to Bland’s question whether any National Technicians had been working in the Union’s jurisdiction, “a few times but not very many” — t he Board concluded Bemis’ s “cont emporaneous admission” established the relevance of the requested inf ormation and wa s unpersuaded by CenturyTel’s and the dissenting Member’s attempts to minimiz e the signif icance o f the August 10 call. Id. In th e Boa rd’s words: “O f cou rse, M anage r Bem is was aw are of his own admission and that the Union sought the information t o protect unit work from diversion, ” and ther e was “no reas on to disturb the judge’s w ell - reaso ned credibi lity determin ations.” Id. Further, “the Union c an hardly be faulted for its assiduousness in pur s u ing the request fo r information regarding exactly what work the National Technici ans performed when Bemis admitted that they had bee n working in the Uni on’s ar ea.” Id. at 3 -4. CenturyTel acknowledges that “[a ] hint of relevance possibly may hav e attach ed if t he part ies h ad in fact b een usin g the terms ‘ jurisdiction’ and ‘area’ interchangeably.” Pet’r’s Br. 39. Th at is what the ALJ found, ALJ Dec. at 5 n.8, and wh at the Board confirmed, Centu ryTel, 373 NLRB at 3. Regardles s, “ [w] hen confronted with competing versions of e vidence, [the court will ] def er t o the Board’s credibility determinations absent the starkest error.” Const ellium Rolled Prods. Ravenswood, LLC v. NLRB, 45 F.4th 234, 243 (D.C. Cir. 2022) (citation omitted). CenturyTel points to no such error. The Board’s findings and re asoning refu te Cent uryTel ’s other ch allenge s to the D ecision as well. On the ground that

14 the relevance of the Union’s information request was not apparent to Manager Bemis on August 10, Petitioner’ s Br. 31, the Board explained why “th e relevan ce o f the r equest ed information should have been readily apparent to [CenturyTel]” on August 1 0: Ma nager Bemis ca lled Bland upon receiving the Augus t 10 email, and having been put “on notice that the Union wa s seeking information regarding a poss ible diversion of unit work,” Bemis told Bland t hat National Technicians had worked in the U nion’s “jurisdiction.” Centu ryTel, 373 NLRB at 4. On the ground tha t substantial evidence to support the Board’s findings was not presen ted at the ULP hearing, the evidence before the Board included Bland’s August 10 email to Bemis attaching the informa tion request; Bemis ’ phone c all to Bland on August 10 regarding the Union’s information request; the prior Telec ommunications Council ema ils advising Bland that N ational T echnicians w ere perform ing l ocal bargaining unit work in Texas and Miss ouri, and that he should inquire about whether this was occurring in his Union’s “ jurisdiction ”; and the 2018 griev ances fi led and settled with a pred ecesso r company alleg ing unlawful diversion of Union bargaining unit work to non-union personnel in northwest Montana. CenturyTel nonetheless c ontends that the General Counsel “cannot es tablis h rel evance fo r the fi rst ti me at th e unfai r labor practice h earing.” Pet ’r’s B r. at 22. In petitioning for review, CenturyTel does not contest its statutory obligation to provide information necessary for the Union to ca rry out its repre sentational responsib ilities. Nor does it adopt the dissenting Member’s position that the Board should abandon its p recedent allowing the General Counsel to show r elevan ce of requested informa tion at the ULP hearing and requi re the Union, as i n the Third Circuit in Hertz Corp., 105 F.3d at 874, “to apprise [CenturyTel] of facts tending to support its request for non - unit information.” Centur yTel, 373 NLRB at 6

15 (Member Kaplan, dissenting) (citation and internal quotation marks omitte d); s ee Pet’r’s Reply B r. at 2 n.1. Instead, CenturyTel contends evident iary and procedural failu res require r evers al of the B oard’s d ecision. It would have the court overlook the sources of evidence underlying the Board’s conclusion that t he Union’s infor mation request was based on “ a reason able b elief ” that CenturyTel may have be en diverting work. C enturyT el, 373 NLRB at 4 (quoting Bentley - Jos t El ec. Corp., 283 NLRB 564, 568 (1987)). In CenturyTel ’s view, the Board could not re ly on the 2018 grievanc es, the Teleco mmunications Council’s information request t emplat e, and correspond ence b etwe en Bl and and Noble because this evidence was not produced in response to the pre -hearing subpoena. This contention d oubly fails. CenturyTel di d not include this objection in the exceptions to the Decis ion, much less show an abuse of discretion by the ALJ in admitting this e vidence, Cadillac of Naperville, Inc. v. NLRB, 14 F.4th 703, 712 (D.C. Cir. 202 1), or that t he ALJ was required to disregard as irre levant any material not produced as called fo r in the subpoena, se e, e.g., Hearing Tr. at 44 - 51, 53 - 55, 90. Moreover, the court has no occasion to address CenturyTel’s claim that its due process rights were violated when the Board relied on evidence introduced for the first time at the ULP hearing. Pet ’ r’s Br. 24 -25. CenturyTel did not raise this in exceptions to the D ecision, nor in a petition for Board rehearing, and offers no explanation for the failure to do so. See 29 U.S.C. § 160(e); HealthBridge Mgmt, L LC v. NL RB, 798 F.3d 1059, 1069 (D.C. Cir. 2015). So too CenturyTel ma y have forfeited its a rgument tha t the Union acted in bad faith when, in responding to the pre - heari ng subpoena, it failed to disclose that it had not drafted the information request. Pet’r’s Br. at 32 -34. Bland acknowledge d on cross examination that he had mistakenly failed to produce

16 the Telecommunications Council’s August 9 email in response to the subpoena. Hearing Tr. 55. N either the ALJ nor the Board found bad faith. CenturyTel did not expressly reference noncompliance with the subpoena in its exc eptions. Even now, CenturyTe l fails to explain how the Union acted in bad faith absent a req uirem ent to disclose such evidence prior to the hearing. Centu ryTel als o challen ges t he Board’s relianc e on the 2018 gr ievances, wh ich it charact erizes as “distan t, spars e, and irrelevant,” having occurred several years ago involving its predecessor. Pet’r’s Br. 34 - 35. Yet the Board reasonably focused on them because they involved the same type of “allegations of unilateral subcontracting of work and the use of non- unit employees to perform bar gaining unit work in Northwest Montana.” Centur yTel, 373 NLRB at 4. CenturyTel ’s chal lenges therefo re fail in view of the subst antial evidence of r elevan ce, considered in light of the surrounding ci rcums tances, which permitted t he Bo ard to find that Bland’s August 10 email to M anager B emis as well as Bemis’s response put CenturyTel on notice of sufficient relevant facts t hat explained the objective basis for “ the information request regard [ing] whether ‘Nat ion al Techs [were] working in [the Union’s] jurisdiction.’” CenturyT el, 373 NLRB at 2 (alter ations in original); see Brazos, 241 NLRB at 1018. Unlike Disneyland Park, 350 NLRB at 1258, on which CenturyTel relies, Pet’r’s Br. 28, both the August 10 email and phone c all informed CenturyTel man agem ent “th at the Union sought the inf ormation to protect unit work from diversion.” Centur yTel, 373 NLRB at 3. Likewi se mis placed is CenturyTel’s reliance on the concurring opinion in Teacher s College, 9 02 F.3d at 308 (Si lberman, J., concurring), given the evidence in support of the Board’s finding that th e purpose of the Union’s information request was apparent on August 10 to

17 Bemis, who was Lumen’s region al manager. C ent uryTel, 373 NLRB at 4. B ecause t he B oard properly concluded that the evidence and context supported a rea sonable belief regarding diversion of Union work, id., Centu ryTel’s rel iance on San Diego Newspaper Guild, Local No. 95 v. NLRB, 548 F.2d 863, 869 (9th Cir. 1977), an d G4S S ecure Sols. (USA), Inc., 369 NLRB No. 7, at *2 (Jan. 9, 2020), is misplaced. In Newspaper Guild, Local No. 95, t he request was “ apparently grounded only upon the Union ’ s suspic ion that some c ontract vio lation is or has been taking place,” 548 F.2d at 869, and G4S Secure was similarly based on “suspicion al on e,” 369 NLRB, at *2. Accordingly, the court denies CenturyTel’s petition and grants the Board’s cross-application for enforcement.