Int'l Bhd. of Elec. Workers v. Nat'l Labor Relations Bd.
| Citation | 973 F.3d 451 |
| Decision Date | 02 September 2020 |
| Docket Number | No. 19-60616,19-60616 |
| Parties | INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, CLC, LOCAL UNIONS 605 AND 985, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Lucas Robert Jason Aubrey, Jonathan D. Newman, Bart Sheard, Attorney, Sherman, Dunn, Cohen, Leifer & Yellig, P.C., Washington, DC, for Petitioner.
David S. Habenstreit, Joel Abraham Heller, M. Kathleen McKinney, Roxanne Rothschild, Kira Dellinger Vol, National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, for Respondent.
Sarah Voorhies Myers, Esq., Amy Lee McIntire, George Phillip Shuler, III, Esq., Chaffe McCall, L.L.P., New Orleans, LA, Benjamin Hayden Banta, Attorney, Entergy Services, L.L.C., New Orleans, LA, for Intervenor.
Before JONES, ELROD, and HIGGINSON, Circuit Judges.
Under the National Labor Relations Act ("NLRA" or "Act"), it is an "unfair labor practice" for an employer "to refuse to bargain collectively with the representatives of [its] employees." 29 U.S.C. § 158(a)(5). This case requires the court to determine whether transmission and distribution dispatchers, a group of workers employed by Entergy Mississippi, Incorporated ("Entergy"), are "employees" or "supervisors" under the Act. The unions representing Entergy's dispatchers (collectively, "IBEW") argue that the National Labor Relations Board ("the Board") erred when it deemed dispatchers "supervisors," thereby excluding them from the Act's collective bargaining protections.
This is the third time that we have been asked to consider the employment status of Entergy's dispatchers. Because we hold that the Board's most recent decision was well-reasoned and supported by substantial evidence, we AFFIRM.
Entergy is a power utility company "engaged in the production and distribution of electrical power." The company distributes electrical power to residential and commercial customers across fourteen geographic networks in the state of Mississippi. In the event of an unexpected interruption in service, Entergy's transmission and distribution dispatchers work with field employees to restore power to the affected areas. The term "field employees" encompasses a broad array of workers employed by Entergy, including "mechanics, troublemen, linemen, relaymen, switchmen, and substation employees." Each year, dispatchers are responsible for addressing between 20,000 and 25,000 unexpected outages, or cases of "trouble."
When a dispatcher learns of a trouble area, he may interrupt a field employee's daily schedule and ask the employee to report to the area to diagnose and correct the problem. Once summoned by a dispatcher, a field employee remains under the direction of the dispatcher until he is released.1 Even after an outage has been resolved, a dispatcher may "continue[ ] to route [field employees] around [to other trouble areas]." Dispatchers retain the ability to direct field employees to new trouble areas as the circumstances of an outage evolve. Although a dispatcher cannot force a field employee to stay on the job after hours,2 he can ask an employee to leave his designated geographic area in order to address an outage in a different location. In fact, it is "standard operating procedure" for a dispatcher to ask a field employee to travel to a new trouble area and remain there in the event that additional service issues develop.
In some cases, multiple field employees are required to address a given outage. Typically, the first field employee to arrive on the scene of an outage informs the dispatcher how many additional field employees are needed to effectively resolve the issue. The parties’ collective bargaining agreement requires dispatchers to provide field employees with all of the resources—including people—necessary to complete a job. However, it is ultimately up to the "system dispatcher to make [the] call" regarding how many field employees to designate to a particular trouble area. Entergy does not maintain clear guidelines dictating how many employees a dispatcher should summon for each emergency situation. Instead, "[t]he dispatcher [is] ... held accountable ... for calling more help if he needs it," juggling the requests of field employees and the evolving conditions on the ground.
Dispatchers are sometimes forced to decline field employees’ requests for additional support in order to protect the safety of other employees or to prioritize more pressing matters. For example, if the dispatcher determines that there is a higher-priority outage that must be addressed first, he might delay sending additional resources requested by field employees. In making this determination, dispatchers consider numerous factors, including the severity and urgency of the outage, the weather, and the nature of the clients affected by the outage. These factors are not exclusive or firm, and dispatchers are often required to make quick decisions based on unique circumstances. It is the dispatcher's responsibility to "prioritize[ ] the work for [field employees] and send[ ] them and direct[ ] them to where [the dispatcher] needs them." If the dispatcher decides to wait to send additional help, he can redirect field employees to other trouble areas until he is able or willing to direct the necessary resources to resolve the larger outage.
Sometimes, a dispatcher must handle multiple trouble areas simultaneously. In those cases, dispatchers are responsible for determining the order in which to address each outage. Dispatchers rely upon a loose set of criteria in making prioritization decisions, but Entergy does not maintain strict rules that mandate dispatchers address certain outages before others.3 Therefore, while it might be "good practice" for a dispatcher to resolve an outage at a hospital before directing field employees to other areas of trouble, it is "not a rule." It is ultimately up to the dispatcher to "weigh all th[e] variable factors" to make a prioritization decision. Dispatchers may seek to prioritize outages that affect larger clients, referred to as "major accounts," but they retain the discretion to adjust their priority list based on "the situation at hand." If an outage occurs after hours or at a time when a "major account" is not operating, dispatchers may prioritize a different outage in order to best serve the needs of all customers. Dispatchers are also expected to balance logistical considerations, and may ask a field employee to address a smaller outage on the way to a larger or more critical outage. In making these decisions, dispatchers consider a host of factors, such as whether an outage is expected to damage a customer's facilities or whether unrepaired outages could increase the risk that a new outage develops.
In the event that multiple outages simultaneously affect several major accounts, dispatchers use their discretion to determine which account to address first. They must make quick decisions regarding whether to send field employees to the trouble area "with the most customers" or the one where a hospital is located—a discretionary choice not susceptible to clear guidelines or rules. In short, there is "no handbook, guidelines or documents" for determining how to prioritize multiple trouble cases that each affect a major account.
In 2003, Entergy filed a petition with the Board to have dispatchers recognized as supervisors under Section 2(11) of the NLRA, as amended, 29 U.S.C. § 152(11). See 29 C.F.R. § 102.60(b) (). After a hearing, the Board's Acting Regional Director concluded that dispatchers are not supervisors because they act in accordance with "established rules and within limited parameters."
Entergy sought review of the Acting Regional Director's decision, and the Board granted the request. The Board remanded the case for further consideration in light of the Board's then-recent decision in Oakwood Healthcare, Inc. , 348 NLRB 686 (2006). On remand, the Acting Regional Director issued another order reaffirming the conclusion that dispatchers are employees, not supervisors. Entergy again sought review from the full Board, and the Board affirmed the Acting Regional Director's decision.
Despite the Board's conclusion, Entergy refused to bargain with dispatchers, and the Board's Acting General Counsel filed a charge against the company, asserting that its actions violated Sections 8(a)(1) and (5) of the NLRA. See 29 U.S.C. §§ 158(a)(1), (5) (). The Board concluded that Entergy had unlawfully failed to recognize dispatchers as part of the bargaining unit, and granted the Acting General Counsel's motion for summary judgment.
Entergy petitioned the Fifth Circuit for review of the Board's decision. On August 1, 2014, the court applied the Supreme Court's recently-issued decision in NLRB v. Noel Canning , 573 U.S. 513, 134 S. Ct. 2550, 189 L.Ed.2d 538 (2014), and held that the Board lacked a quorum when it issued its summary judgment order. See Entergy, Miss., Inc. v. NLRB , 576 F. App'x 415 (5th Cir. 2014) (per curiam) [ Entergy I ]. As a result, it vacated the order and remanded the case back to the Board. Id. On October 31, 2014, the Board again concluded that Entergy had engaged in unfair labor practices by refusing to bargain with dispatchers, and Entergy sought review from this court. See Entergy Miss., Inc. v. NLRB. , 810 F.3d 287, 292 (5th Cir. 2015) [ Entergy II ].
On December 7, 2015, we issued our decision in Entergy II. The unanimous panel concluded that there was substantial evidence in the record to support the Board's decision that dispatchers do not "responsibly direct" field employees or "...
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