Entergy Mississippi, Inc., 15-UC-149

• Court: National Labor Relations Board
• Writing for the Court: Mark Gaston Pearce, Chairman
• Citation: 357 NLRB No. 178
• Parties: ENTERGY MISSISSIPPI, INC., EMPLOYER-PETITIONER AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 608 AND 985, AFL-CIO
• Docket Number: 15-UC-149
• Decision Date: 30 December 2011

357 NLRB No. 178

ENTERGY MISSISSIPPI, INC., EMPLOYER-PETITIONER AND INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 608 AND 985, AFL-CIO

No. 15-UC-149

United States of America, National Labor Relations Board

December 30, 2011

DECISION ON REVIEW

Mark Gaston Pearce, Chairman

The issue in this case is whether electric utility dispatchers are statutory supervisors. On February 7, 2007, the Acting Regional Director for Region 15 issued a Supplemental Decision and Order finding that the dispatchers were not statutory supervisors.^[1]

Thereafter, in accordance with Section 102.67 of the National Labor Relations Board's Rules and Regulations, the Employer-Petitioner (the Employer) filed a timely request for review. The Employer contends that the dispatchers are statutory supervisors, and therefore must be excluded from the existing bargaining unit of production and maintenance employees. On April 7, 2007, the Board granted the Employer's request for review.

Having carefully reviewed the entire record, including the parties' briefs on review, we have decided to affirm the Acting Regional Director's decision. As discussed below, we find that under the Board's decision in Oakwood Healthcare, Inc., supra, 348 N.L.R.B. 686, in which the Board clarified its standard for determining supervisory status, the Employer has failed to meet its burden to show that the dispatchers are statutory supervisors.

Facts

The Employer is an electric utility company that transmits and distributes electrical power throughout Mississippi. The Employer and the Unions have a history of collective bargaining dating back to 1939. The Unions were certified to represent all permanent electrical employees engaged in operation, meter reading, maintenance, construction, storeroom, and production. Transmission and distribution dispatchers are included in this unit.

The Employer is aligned into two operational groups- the transmission group, which manages power that is obtained from generation facilities and delivers it to distribution substations, and the distribution group, which is responsible for the construction and maintenance of distribution facilities and substations throughout the State.

The dispatchers whom the Employer wishes to exclude belong to both the transmission operations center (TOC) and the distribution operations center (DOC).^[2] There are 17 dispatchers at the DOC and 8 dispatchers at the TOC.

The DOC dispatchers have dispatch responsibility for the entire State of Mississippi on a 24/7 basis, overseeing more than 171 distribution substations and managing over 408, 000 customers. The DOC dispatchers work at either the outage management desk or the switching desk. The TOC dispatchers are the controlling authority for all switching, tagging, and clearance performed on the transmission equipment under their oversight.

Dispatchers perform switching operations to alter the flow of electricity through the transmission and distribution systems. 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. Switching is also performed to restore the flow of electricity to a section of power lines that has been served or repaired.

There are three types of switching that dispatchers regularly perform: planned, contingency, and emergency. Planned switching is scheduled ahead of time and is often performed in the context of maintenance or construction work, which is performed by field employees. In planned switching, the field employees assigned to perform the switching operation generally receive copies of the switching orders in advance. In a contingency switching scenario, which is not planned in advance, the dispatcher dictates each step in the switching sequence to the field employees, and the field employees write down each step as dictated by the dispatcher. The field employees then read each step of the switching sequence back to the dispatcher to ensure its accuracy. Emergency switching is often performed in situations that require immediate action to prevent the loss of life or property. The switching may be performed without a written switching order. After life and property have been secured, dispatchers revert to contingency switching and prepare a written switching order.

The general process by which the dispatchers perform their duties in contingency and emergency switching scenarios is as follows: dispatchers will be notified via an alarm system, known as SCADA (Supervisory Control and Data Acquisition), or through customer calls, when electricity is down in a certain area.^[3] The dispatcher will contact a field employee to get to the outage site. The dispatcher can pull a field employee off that employee's regular assignment to attend to the outage. Once the field employee is at the site, he will assess the scene and contact the dispatcher to relay certain relevant information regarding what he sees. The dispatcher will then develop a plan to restore power to the outage site. The dispatcher drafts a switching order and relays it to the field employee for execution. The field employee will then repeat each switching instruction back to the dispatcher (known as Echo Protocol). If a field employee notices an error in the switching order, he may bring it to the dispatcher's attention. All switching must be performed in accordance with the Employer's distribution and transmission switching, tagging, and clearance procedure.

If the switching operation is not completed by the time the field employees' shift ends, the dispatcher may request that the field employees hold over in order to resolve the outage. In an emergency or after-hours call-out situation, the dispatchers on the DOC side must call out field employees by seniority or rotation. The field employee whom the dispatcher contacts can refuse to take the assignment. The dispatchers on the TOC side will call the on-call supervisors to locate field employees after hours.

Any mistakes in switching can endanger the field employees and the public at large. It is for this reason that the dispatchers are held accountable, through disciplinary actions, for their switching errors.

The field employees may be linemen, servicemen, or troublemen. The field employees are in a separate management structure from the dispatchers. They are employed in 1 of the 14 networks within Entergy's distribution operations. A network is a specific geographic territory. Each network has a network manager and an operations coordinator. The network manager supervises the network itself, and the operations coordinator has primary oversight of the field personnel, including assigning them their regular work assignments during the day.^[4] These regular assignments include engaging in turn on/turn offs, running services, and working on assigned crews.

The Acting Regional Director's Supplemental Decision and Order

The Acting Regional Director, applying Oakwood Healthcare, supra, found that the dispatchers do not assign or responsibly direct field employees within the meaning of Section 2(11). Accordingly, she found that the Employer's dispatchers are not statutory supervisors, and, thus, dismissed the Employer's petition to clarify the bargaining unit to exclude the disputed dispatcher positions.

Specifically, the Acting Regional Director found that during normal business hours, the dispatchers route field employees to trouble locations during unplanned outages. However, such assignments are not permanent in nature and are either completely structured based on the Employer's territorial designation of the field employee, or through established callout lists. Further, the Acting Regional Director found that although the dispatchers inform field employees where they are to go, the evidence fails to establish that these “ assignments” are made with any supervisory discretion as required by Oakwood Healthcare, supra. Thus, the Acting Regional Director concluded that the Employer failed to show that its dispatchers made judgments that were free of the control of others and not controlled by detailed instructions when routing field employees to outage locations. Moreover, the Acting Regional Director found that the Employer's dispatchers neither appoint field employees to a time, nor assign daily overall duties to field employees.

As to responsible direction, the Acting Regional Director concluded that while the dispatchers direct field employees by guiding them through each step of the switching order, there is no evidence that they are accountable for their direction of field employees. The dispatchers, according to the Acting Regional Director, are not disciplined for the mistakes made by field employees, or vice versa. Instead, the Acting Regional Director determined that the dispatchers are accountable for the performance of their own duties, not the performance of field employees.

Moreover, even assuming that the dispatchers have even a limited degree of accountability for the performance of field employees, the Acting Regional Director found that the dispatchers do not use independent judgment in directing such employees. In this respect, she concluded that the evidence reflects that switching operations must be performed within guidelines set by the Employer. The dispatchers use a variety of computer programs and a manual for switching scenarios which, in the Acting Regional Director's view, greatly reduces any discretionary choices available to the dispatchers.

Parties' Contentions

A. Employer

The Employer contends that the dispatchers are statutory supervisors. It argues that the Board should return to the standard enunciated in Big Rivers Electric Corp., 266 N.L.R.B. 380 (1983), because it is the only...