Entergy Miss., Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 07 December 2015
• Docket Number: No. 14–60796.,14–60796.
• Citation: 810 F.3d 287
• Parties: ENTERGY MISSISSIPPI, INCORPORATED, Petitioner Cross–Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross–Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

810 F.3d 287

ENTERGY MISSISSIPPI, INCORPORATED, Petitioner Cross–Respondent

v.NATIONAL LABOR RELATIONS BOARD, Respondent Cross–Petitioner.

No. 14–60796.

United States Court of Appeals, Fifth Circuit.

Dec. 7, 2015.

George Phillip Shuler, III, Esq. (argued), Sarah Voorhies Myers, Esq., Chaffe McCall, L.L.P., Benjamin Hayden Banta, Entergy Services, Inc., New Orleans, LA, for Petitioner Cross–Respondent.

Linda Dreeben, Esq., Deputy Associate General Counsel, Jill A. Griffin, Esq., Supervisory Attorney, Elizabeth Ann Heaney, Esq. (argued), National Labor Relations Board, Washington, DC, M. Kathleen McKinney, National Labor Relations Board, New Orleans, LA, for Respondent Cross–Petitioner.

Nora Leyland, Esq. (argued), Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, D.C., for Intervenor.

Petition for Review and Cross Petition for Enforcement of an Order of the National Labor Relations Board.

Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Petitioner Entergy Mississippi, Incorporated ("Entergy") is a power utility company. This case concerns the status of a certain group of Entergy's employees—dispatchers—under the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. §§ 151 –169.

Dispatchers use various information systems to monitor the flow of electricity through Entergy's grid. The Supervisory Control and Data Acquisition ("SCADA") system "provides dispatchers with data concerning the load, voltage, and amps on breakers and circuits in the substations." Entergy Miss., Inc., Case No. 15–UC–149, slip op. at 4 (N.L.R.B. Feb.7, 2007), http://apps.nlrb.gov/link/document.aspx/09031d458001c0bf (Entergy I ). SCADA alerts dispatchers when a circuit experiences a sudden change in voltage or when a breaker trips. Upon hearing an alarm, dispatchers turn to the Automated Mapping and Facilities Management ("AM/FM"), which provides a visual map of the transmission and distribution lines in the system. Id. AM/FM monitors customers' calls regarding outages and predicts the device that has malfunctioned in the area of the outage. Id.

One of the dispatchers' most important duties is "switching." Id. at 5. "Switching is the sequential opening and closing of switches in the transmission and distribution system to isolate a section of power lines and to interrupt the flow of electricity so that field employees can perform routine maintenance or repair a section of line that has been damaged." Id. Dispatchers "draft switching orders, which are step-by-step procedures to open and close switches." Id. When an unexpected outage occurs, dispatchers contact field employees in the affected area and "dictate each step in the switching sequence." Id. "[T]he field employees write down each step as dictated by the dispatcher. The field employees then read each step of the switching sequence to the dispatchers to ensure its accuracy." Id. Dispatchers are also responsible for issuing clearance orders. Id. at 9. A clearance order signifies to field employees that electrical flow has been interrupted in a line or piece of equipment and it is safe to work on. Id.

Dispatchers also "call-out" field employees to work on trouble cases. Id. at 11. When SCADA alerts a dispatcher that an outage has occurred, the dispatcher can assign a field employee to go diagnose and correct the problem. During weather events or on weekends and holidays—when dispatchers often manage operations without much supervision—dispatchers can call field workers from the on-call list to dispatch to trouble areas. If multiple trouble events occur at once, dispatchers have to identify the highest priority events, decide how many field workers to call-up from the on-call list, and allocate the available field workers to correct the problems.

In 2003, Entergy filed a petition with respondent National Labor Relations Board (the "Board"), arguing that dispatchers are supervisors under Section 2(11), 29 U.S.C. § 152(11). Id. at 2. The NLRA guarantees "employees" the right to unionize and appoint a bargaining representative. 29 U.S.C. § 157. It also requires employers to bargain with the workers' representatives. Id. § 158(a)(5). To ensure that unions stay loyal to workers' interests, Section 2(3), § 152(3), excludes "supervisors" from the class of "employees" guaranteed the right to unionize and bargain. In other words, by urging that dispatchers were "supervisors," Entergy sought to remove dispatchers from the local union.

The Board held a hearing in 2003, and an ALJ issued an opinion in 2004 denying Entergy's petition. Entergy I, at 2. Entergy filed a request for review with the Board, which was granted. Id. In 2006, with Entergy still waiting for the Board to hear its appeal, the Board decided In re Oakwood Healthcare, Inc., 348 N.L.R.B. 686 (2006), in which it applied the supervisor definition to nurses based on their authority to assign employees using independent judgment. The Board remanded Entergy's petition for the ALJ to reconsider the case in light of Oakwood. The ALJ published Entergy I in 2007, holding once again that dispatchers are not supervisors under Section 2(11). See id. at 34. Entergy again filed a petition for review. The Board affirmed the ALJ's decision. Entergy Miss., Inc., 357 N.L.R.B. No. 178 (Dec. 30, 2011) (Entergy II ).

About the same time that Entergy first filed its petition to reclassify dispatchers as supervisors, it demanded that intervenor International Brotherhood of Electrical Workers, AFL–CIO, Local Unions 605 and 985 (the "Unions") remove all references to dispatchers from the collective-bargaining agreement. Entergy Miss., Inc., 361 N.L.R.B. No. 89, at *4 (Oct. 31, 2014) (Entergy III ). In 2006, Entergy refused the Unions' request to bargain over the dispatchers' terms and conditions of employment. Id. at *5. Pursuant to the Unions' complaints, the Board's Acting General Counsel filed a charge against Entergy, contending that it had violated Section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5). Entergy III, at *1. The Board's General Counsel moved for summary judgment based on the Board's decision in Entergy II . Id. In 2014, the Board granted summary judgment and held that Entergy had violated Section 8(a)(1) and (5). Id. at *2–3, 5. This appeal followed.

I.

We accord Chevron deference to the Board's reasonable interpretations of ambiguous provisions in the NLRA. See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 713, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). We will affirm the Board's legal conclusions "if they have a reasonable basis in the law and are not inconsistent with the Act." Valmont Indus. v. NLRB, 244 F.3d 454, 464 (5th Cir.2001).

We will affirm the Board's factual conclusions if they are "reasonable and supported by substantial evidence on the record considered as a whole." J. Vallery Elec., Inc. v. NLRB, 337 F.3d 446, 450 (5th Cir.2003) (quoting Valmont, 244 F.3d at 463 ). "Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. It is more than a mere scintilla, and less than a preponderance." El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 (5th Cir.2012) (emphasis omitted) (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993) ). "In determining whether the Board's factual findings are supported by the record, we do not make credibility determinations or reweigh the evidence." NLRB v. Allied Aviation Fueling of Dall. LP, 490 F.3d 374, 378 (5th Cir.2007). And "[r]ecognizing the Board's expertise in labor law, [we] will defer to plausible inferences it draws from the evidence, even if we might reach a contrary result were we deciding the case de novo. " Valmont, 244 F.3d at 463 (quoting NLRB v. Thermon Heat Tracing Servs., Inc., 143 F.3d 181, 185 (5th Cir.1998) ).

"Whether an employee is a supervisor is a question of fact." Entergy Gulf States, Inc. v. NLRB, 253 F.3d 203, 208 (5th Cir.2001). "Because of the ‘infinite and subtle gradations of authority’ within a company, courts normally extend particular deference to NLRB determinations that a position is supervisory." Id. (quoting Monotech of Miss. v. NLRB, 876 F.2d 514, 516 (5th Cir.1989) ).

II.

A.

Entergy argues that the Board's ruling lacks a reasonable basis in law because it is inconsistent with the Board's earlier decisions and with opinions from other circuits. The Board contends that its decision is reasonable because it relies on Oakwood. We agree with the Board and hold that its decision has a reasonable legal basis.

1.

Section 2(11), 29 U.S.C. § 152(11), which governs this appeal, defines "supervisor" as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

The Supreme Court has interpreted Section 2(11) as setting forth a three-part test:

Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment," and (3) their authority is held "in the interest of the employer."

Kentucky River, 532 U.S. at 713, 121 S.Ct. 1861 (quoting NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 573–74, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994) ). The party asserting supervisory status has the burden of proof. Id. at 711–12, 121 S.Ct. 1861. This case turns on the meaning of "assign," "responsibly to direct," and "independent judgment" in Section 2(11).

2.

"Assign," ...