Atl. City Elec. Co. v. Nat'l Labor Relations Bd.
| Decision Date | 07 July 2021 |
| Docket Number | 20-1606,Nos. 20-1504,s. 20-1504 |
| Citation | 5 F.4th 298 |
| Parties | ATLANTIC CITY ELECTRIC COMPANY, Petitioner in No. 20-1504 v. NATIONAL LABOR RELATIONS BOARD, Petitioner in No. 20-1606 |
| Court | U.S. Court of Appeals — Third Circuit |
Michael E. Kenneally [ARGUED], Jonathan C. Fritts, Morgan, Lewis & Bockius LLP, 1111 Pennsylvania Avenue, N.W., Washington, D.C. 20004, Julia S. Sturniolo, Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, PA 19103, Counsel for Atlantic City Electric Company
David Casserly [ARGUED], David Habenstreit, Elizabeth A. Heaney, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, Counsel for National Labor Relations Board
Mark E. Belland, Kevin D. Jarvis [ARGUED], David F. Watkins Jr., O'Brien, Belland & Bushinsky, LLC, 509 S. Lenola Road, Building 6, Moorestown, NJ 08057, Counsel for International Brotherhood of Electrical Workers Local 210
Lucas R.J. Aubrey, Bart Sheard, Sherman Dunn, 900 7th Street, N.W., Suite 1000, Washington, D.C. 20001, Counsel for International Brotherhood of Electrical Workers, AFL-CIO
Before: GREENAWAY, JR., SHWARTZ, and FUENTES, Circuit Judges.
Atlantic City Electric Company (the "Company"), a public utility that provides electricity in southern New Jersey, seeks our review of a decision by the National Labor Relations Board (the "Board") finding that the Company violated Sections 8(a)(5) and (1) of the National Labor Relations Act (the "Act") by refusing to bargain with a unit representing the Company's system operators. Because the Board's determination is supported by substantial evidence, we will deny the Company's petition for review and grant the Board's cross-application for enforcement.
The Company operates an electrical system from a central dispatch in Mays Landing, New Jersey, known as the control room.1 From the control room, sixteen system operators and fifteen dispatchers manage the Company's electrical transmission and facilitate planned and unplanned field work.2 Outside the control room, the Company deploys about 300 field employees who maintain and repair the Company's equipment.
System operators work with a computer program to oversee and remotely control the Company's transmission system. They prioritize work needs and resources, in consultation with Company guidelines, both for planned maintenance as well as for power restoration during outages. While system operators determine the need for work, field supervisors select crews to undertake it—though the parties dispute the extent to which system operators can require that a crew dispatch to a particular site or remain on site. System operators also prepare and communicate switching instructions for field employees to follow when de-energizing equipment so that maintenance and repair work can be done safely.
The International Brotherhood of Electrical Workers Local 210 (the "Union") represents a unit of Company employees.3 The Union petitioned the Board for an election to determine whether system operators would join the existing bargaining unit. The Company opposed the inclusion of system operators on the basis that they were supervisors within the meaning of Section 2(11) of the Act.4 If system operators are supervisors, they are not "employee[s]" under the Act and are therefore not "entitled to the Act's protections [or] includable in a bargaining unit."5
The parties presented evidence before a Board hearing officer in February of 2017. Following the hearing, the Board's Regional Director issued a decision finding that system operators were not supervisors and directing the Company to conduct a self-determination election. In that election, the system operators voted against joining the bargaining unit. The following year, the Union filed a second election petition for system operators, and the parties agreed that the Board could rely on the record from the February 2017 hearing. Incorporating the reasoning and findings from the prior decision, an Acting Regional Director directed the Company to conduct a second election. This time, the system operators voted to join the bargaining unit, and the Regional Director certified the Union as their representative.
The Company petitioned for review of the Regional Director's decision. The Board agreed to review the Regional Director's decision with respect to whether system operators have the authority, using independent judgment, (1) to assign employees to places or (2) responsibly to direct employees. A three-member panel of the Board, with one member dissenting, affirmed the Regional Director's decision and adopted his factual findings.
The Company refused to bargain, and the Union filed an unfair-labor-practice charge with the Board. The Board issued a complaint alleging that the Company's refusal to bargain violated Sections 8(a)(5) and (1) of the Act.6 The Company admitted its refusal to bargain but challenged the Union's certification as bargaining agent on the ground that system operators are supervisors under the Act. The Board found that the Company's refusal to bargain violated the Act and ordered the Company to cease and desist from refusing to recognize the Union.
The Company timely petitioned this Court for review of the Board's decision, and the Board cross-applied for enforcement of its order. The Union intervened in support of enforcement.
The Board had jurisdiction over the unfair-labor-practice proceeding under 29 U.S.C. § 160(a). We have jurisdiction to review the Board's decision and order pursuant to 29 U.S.C. § 160(e) and (f).
"Our ‘review of orders of the Board is highly deferential.’ "7 We "accept the Board's factual findings and the reasonable inferences derived from those findings if they are ‘supported by substantial evidence on the record considered as a whole.’ "8 "Where the Board has adopted the Regional Director's findings, we perform our substantial evidence review of the Regional Director's findings."9 Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."10 "The Board's legal determinations are subject to plenary review, but ‘with due deference to the Board's expertise in labor matters.’ "11 We have recognized that "determinations respecting supervisor status are particularly suited to the Board's expertise."12
The Company first contends that both the Board and the Regional Director held it to an improperly heightened standard of proof. The Company agrees that, as the party asserting supervisor status, it bears the burden of proving supervisory authority by a preponderance of the evidence.13 The Regional Director's decision correctly recited that standard and found that the Company had not satisfied it, and the Board affirmed.
The Company nevertheless objects to: (1) the Board's and Regional Director's invocation of the Board's longstanding principle that the proponent of supervisor status fails to meet its burden when the evidence "is in conflict or otherwise inconclusive," which the Company says imposes a species of the summary-judgment standard;14 and (2) the Board majority's use of the words "clear" and "unclear" to describe aspects of the record, which the Company reads as imposing a clear-and-convincing standard.15 The Board responds that we lack jurisdiction under Section 10(e) of the Act to consider these arguments because the Company failed to raise them before the Board.16 We agree.
Beginning with the Company's first argument, the closest the Company came to raising this issue before the Board was a broad objection to the "evidentiary principles" and "unduly restrictive approach" that the Regional Director applied.17 In the final pages of the Company's briefing before the Board, it argued that the Regional Director's decision "reveals the Board's increasing reliance on doctrines and evidentiary principles regarding Section 2(11) authority that are irreconcilable with the Act, which preclude a finding of supervisor status even when the record contains dispositive evidence of Section 2(11) authority."18 The briefing then block-quotes nearly two full paragraphs of the Regional Director's decision reciting eight different legal standards applicable in supervisor cases. In the middle of this list is the principle that "[w]here the evidence is in conflict or otherwise inconclusive on particular indicia of supervisory authority, the Board will find that supervisory status has not been established."19 The briefing then argues that "Congress did not include any of the above qualifications in the definition of supervisor status," and urges the Board to hold that the quoted rules "are inconsistent with Section 2(11), on its face, and ... [to] abandon those principles and overrule those decisions that have articulated and applied them."20
This all-purpose challenge to what the Company described to the Board as "an array of doctrines" does not sufficiently raise the instant standard-of-proof argument to preserve it for our review.21 "In order to meet the requirements of Section 10(e), an objection must be specific enough to place the agency on notice of the party's objections."22 The Company's only reference to the now objected-to "in conflict" principle, buried in a block quotation among seven other rules and advancing the nebulous assertion that all eight doctrines are collectively "inconsistent with Section 2(11)," is barely more than a generalized exception to the Regional Director's entire statement of the law.23 Even if we read these two pages as a specific challenge to the "in conflict" principle, the Company now objects to it on different grounds.24 The Company's earlier objection, based on different reasons rooted in a different provision of the Act, could not have afforded the Board "adequate notice of the basis for the objection" now asserted.25
We likewise find forfeited the Company's second standard-of-proof objection to...
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