Entergy Gulf States v. NLRB

• Decision Date: 31 May 2001
• Docket Number: No. 00-60334,00-60334
• Parties: (5th Cir. 2001) ENTERGY GULF STATES, INC.,Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 2286, Respondent
• Court: U.S. Court of Appeals — Fifth Circuit

Page 203

253 F.3d 203 (5th Cir. 2001)

ENTERGY GULF STATES, INC.,Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 2286, Respondent.

No. 00-60334

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

May 31, 2001

REVISED - June 18, 2001

[Copyrighted Material Omitted]

Petition for Review of an Order of the National Labor Relations Board

Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

At issue is whether ten operations coordinators¹ ("OC") at an electrical utility are statutory supervisors within the meaning of the National Labor Relations Act, 29 U.S.C. § 151 et seq ("NLRA" or "Act"). Petitioner Entergy Gulf States, Inc. ("Entergy" or the "Employer") asks this court to reverse a National Labor Relations Board ("NLRB" or "the Board") decision holding that OCs are not supervisors. Because neither the facts nor applicable law has changed since the NLRB declared OCs to be supervisors in 1983, we will not defer to the Board's attempt to recharacterize them in 1999. We grant Entergy's petition for review, set aside NLRB's bargaining order, and deny enforcement.

FACTUAL AND PROCEDURAL HISTORY

Entergy is a Texas corporation that provides electricity to customers in Louisiana and Texas. Respondent International Brotherhood of Electrical Workers, Local Union No. 2286 ("Union") represents a bargaining unit of the employer's workers.

This dispute centers on the responsibilities of Entergy's OCs. Working from a central operations center, OCs monitor the status of power lines that distribute electricity to customers. They receive reports of power outages from their computers or from a phone reception center and coordinate repairs with field workers.

During normal working hours, four to five OCs will be in the operations center monitoring separate service areas. They report to a supervisor in the operations center. Because of their grave responsibility to ensure continuous electrical service and their need to work without distraction, OCs have the authority to order even senior executives out of the operations center.

Crews of field workers are on duty during normal working hours conducting routine maintenance and service calls in their respective duty areas. Field workers normally speak with OCs during the day to execute "switching orders." A switching order is a set of instructions that disengages specific power lines without interrupting customer service and allows construction or maintenance crews to work safely on power equipment. Using information from computer systems, an OC writes a switching order to fit an individual situation. The OC typically faxes the order to a field worker. Once the worker arrives at the site, he calls the OC and reads back the switching order as he executes it. If the worker perceives a problem with the switching order, he can question it and suggest an alternative. OCs have ultimate responsibility over the process, however.

Aside from issuing switching orders, OCs also instruct field workers during the day as necessary to restore power or perform emergency switching. OCs may pull field workers off their daily work to address these situations when they arise.

OCs have more responsibility and interactions with field workers at night and on weekends. The OCs operate without a supervisor, although supervisors can still monitor activity in the operations center remotely via computer. Only two or three OCs remain in the operations center. The local field crews go home, leaving call rosters so the OCs know whom to contact in the event of an outage.

When customers or computer systems report power interruptions after-hours, an OC makes an initial determination whether to call up workers and how many to call. If there are many outages in one area, the OC can instruct an area supervisor to open the area office and handle the problems locally. Normally, however, the OC rouses on-call field workers individually to address the problems. These call-ups obligate Entergy to pay overtime.

The on-call field worker then goes to a trouble site and reports the nature of the problem to the OC. Where a switching order is necessary, the OC writes the order and the field worker implements it. When the field worker has completed all assigned repairs, he must report back to the OC before going off-duty.

When an area has multiple power interruptions, as in a weather emergency, the OC must prioritize repairs. Guidelines assist the OCs to set priorities during major power restorations, but OCs generally use their own discretion. The OCs may order a field worker to discontinue work on one problem and move to another.

OCs are ultimately responsible for managing after-hours power restorations. There is no "cookbook" response to these trouble calls. OCs are accountable for the time it takes to restore power, and receive counseling if they manage situations poorly. They are not responsible, however, if field workers fail to follow instructions. In those situations, OCs would notify the field worker's supervisor.

To some extent, OCs can reward or discipline employees.² OCs have the authority to issue low-level monetary awards to field employees through Entergy's "Shining Through" program, although there was no evidence that an OC had actually done so. One witness did recall an OC recommendation to a supervisor that led to a higher-level award for a field worker. With regard to disciplinary actions, OCs reportedly have "input" because they can speak to OC or field supervisors about the performance of a field worker. One field worker testified, however, that he was unaware that OCs had any authority to reward or discipline him.

Technology and consolidation within Entergy have changed the OC position somewhat over the years. OCs now do more of their work on advanced computers, which provide more information and allow OCs to monitor a larger service area. As a result, the OC position has become more complex.

Entergy did not consider OCs to be supervisors before 1993. In December 1993, however, Entergy merged with another entity and consolidated operations centers. The reorganization removed a level of supervision above the OCs. Shortly before the existing labor agreement expired in June 1995, Entergy petitioned to remove OCs from the Union's bargaining unit.³ It argued that the NLRA did not cover OCs because they were statutory supervisors under the Act.

After a July 1995 hearing, an NLRB regional director found that the OCs were similar to workers that the NLRB considered supervisors in Big Rivers Elec. Corp., 266 N.L.R.B. 380 (1983). The director concluded that OCs are supervisors and excluded them from the bargaining unit. The Union appealed, and the NLRB ordered further proceedings.

The regional board held a second hearing in August 1999 and heard new testimony and evidence reflecting another reorganization at the Employer. This evidence included a job description that the company released in 1998 stating that OCs "manage" and "supervise" personnel during outages. It also included messages to personnel dated just a few days before the hearing purportedly "reaffirming" the supervisory power of OCs.

The new testimony also indicated that OC responsibilities have become more focused as the Employer drastically cut and centralized OC staff. OCs stopped fielding customer calls at night and deciding whether to reconnect power for customers who claimed to have paid their bills. Different employees now handle higher voltage transmission switching that used to be an OC responsibility. Field employees now write their own switching orders when working on lesser power lines, significantly reducing the number of switching orders that OCs write.

Following the second hearing, an acting regional director reversed the original decision and found that OCs were not supervisors. She followed Mississippi Power & Light Co., 328 N.L.R.B. 146 (1999), a decision that overruled Big Rivers.

The Employer appealed to the NLRB. The NLRB affirmed the finding that OCs are not supervisors and belong in the bargaining unit, and directed the Employer to negotiate with the Union accordingly. Entergy Gulf States, Inc., 330 NLRB 196 (2000). The Employer appeals.

STANDARD OF REVIEW

Whether an employee is a supervisor is a question of fact. Monotech of Miss. v. NLRB, 876 F.2d 514, 516 (5th Cir.1989). We must determine whether substantial evidence in the record supports the conclusion that OCs are not supervisors, and whether the Board's decision has a reasonable basis in the law. Id. Substantial evidence is evidence a reasonable mind might accept as adequate to support a conclusion. Id. 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.

When an agency's legal interpretation of a statute conflicts with its prior positions, however, the interpretation is "'entitled to considerably less deference' by the courts than a consistently held agency view." INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987) (refusing to defer where the INS's interpretations of a statute were inconsistent over the years); see also NLRB v. United Food and Commercial Workers Union, 484 U.S. 112, 124 n.20 (1987) (applying this principle in a labor case). Although the NLRB can change its policies and must respond to new circumstances, "a departure from past agency precedents requires at least a reasoned explanation of why this is done." Fiber Glass Systems, Inc. v. NLRB, 807 F.2d 461 (5th Cir.1987) (remanding because the NLRB failed to apply an inference that it used in similar cases).

DISCUSSION

The crux of this case is that the NLRB departed without a "reasonable explanation" from the position it had espoused for nearly twenty years, and the position circuit courts enforced for many years before...