Nat'l Labor Relations Bd. v. NSTAR Elec. Co.

• Decision Date: 17 August 2015
• Docket Number: Nos. 14–1622,14–1724.,s. 14–1622
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, Cross–Respondent, v. NSTAR ELECTRIC COMPANY, Respondent, Cross–Petitioner.
• Court: U.S. Court of Appeals — First Circuit

798 F.3d 1

NATIONAL LABOR RELATIONS BOARD, Petitioner, Cross–Respondent

v.NSTAR ELECTRIC COMPANY, Respondent, Cross–Petitioner.

Nos. 14–1622

14–1724.

United States Court of Appeals, First Circuit.

Aug. 17, 2015.

Jeffrey W. Burritt, with whom Usha Dheenan, Supervisory Attorney, Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, were on brief, for petitioner.

Keith H. McCown, with whom Jeffrey S. Siegel and Morgan, Brown & Joy, LLP, were on brief, for respondent.

Before HOWARD, Chief Judge, THOMPSON and BARRON, Circuit Judges.

Opinion

BARRON, Circuit Judge.

The National Labor Relations Act, 29 U.S.C. §§ 151 –169, requires a company to bargain with a union that represents “employees” of that company. In this case, the National Labor Relations Board asks us to enforce an order that requires an electric and gas company to bargain with a union that seventeen of the company's dispatch-center workers voted to join. The company's cross-petition for review contends, however, that the company has no obligation to bargain with the union on behalf of those workers. The company argues that these workers' responsibilities make them either “supervisors” or “manager[s]” rather than “employees,” and thus that the Act does not protect their right to have the union represent them. We hold that substantial evidence supports the Board's finding that the company failed to make that showing, even though these workers are highly skilled and charged with critical tasks. We thus grant the Board's petition to enforce the Board's order and deny the company's cross-petition for review.

I. Background

This case ultimately turns on what the administrative record shows about what these workers have the authority to do. To see which of their job functions matter and why, it helps to understand the legal background. And so, before describing who these workers are and what authority they have, and the procedural path that brings this case to us, we describe the relevant parts of the National Labor Relations Act and some key Board decisions and court precedents.

A. Legal Background

The Act provides that “[e]mployees shall have the right to ... join ... labor organizations,” 29 U.S.C. § 157, and a company must bargain with the union the company's employees choose to represent them, id. § 158(a)(5). The Act makes clear, however, that not all persons a company employs enjoy that right. Specifically, the Act states that “any individual employed as a supervisor” is not an “employee.” Id. § 152(3). As a result, “supervisor[s]” do not have the right to join a union under the Act. See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 709, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001). And thus an employer has no duty to bargain with a union that purports to represent workers who in fact qualify as supervisors. See id.

The reason that the Act does not protect supervisors is easy to grasp. The Supreme Court explained in 1974 that the Act “was intended to protect ‘laborers' and ‘workers' whose right to organize and bargain collectively had not been recognized by industry, resulting in strikes, strife, and unrest.” NLRB v. Bell Aerospace Co., 416 U.S. 267, 279, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). The Court went on to explain that “there was no similar history with respect to foremen, managers, superintendents, or vice presidents.” Id. Moreover, Congress was concerned that “unionization of supervisors had ... upset the balance of power in collective bargaining, ... tended to blur the line between management and labor,” and “deprived employers of the loyal representations [sic] to which they were entitled.” Id. at 281, 94 S.Ct. 1757.

A related logic underlies a second exclusion under the Act. This one covers so-called “managerial” employees. The Supreme Court read this exclusion into the Act—as an implied limit on the meaning of the word “employee”—for reasons not unlike those that led Congress expressly to exclude supervisors. See id. at 274–75, 94 S.Ct. 1757.

A great deal of Board and judicial precedent addresses the scope of these two exclusions. A surprising number of those precedents concern the status of electrical workers who, loosely speaking, do work similar to that done by the electrical workers at issue here.

For a long time, the Board regularly held that such workers—often called electrical dispatchers—were not supervisors or managerial employees and thus could unionize. See, e.g., Ariz. Pub. Serv. Co., 182 NLRB 505 (1970). But in the 1980s, in Big Rivers Elec. Corp., 266 NLRB 380, 383 n. 2 (1983), the Board overruled those decisions and found such workers to be supervisors. In 1999, however, the Board reversed course again. In Mississippi Power & Light Co., 328 NLRB 965 (1999), the Board overruled Big Rivers and found that electrical workers in that case—and others like them—were “employees” and thus could unionize.

Soon after the Board decided Mississippi Power & Light in 1999, however, a new complication arose. In 2001, the Supreme Court held in Kentucky River that the Board's construction in that case of one part of the Act's supervisor definition was inconsistent with the statutory text. 532 U.S. at 721, 121 S.Ct. 1861. And while that case involved nurses, not electrical workers, see id. at 710, 121 S.Ct. 1861 the Board's decision in Mississippi Power & Light had relied on a very similar construction of the same piece of the supervisor definition that the Court rejected in Kentucky River. See Miss. Power & Light, 328 NLRB at 970.

So, in 2011, the Board once again revisited the status of electrical dispatchers in a case called Entergy Mississippi, Inc., 357 NLRB No. 178 (2011). And there, the Board applied the new interpretation of the supervisor definition that the Board had developed after Kentucky River in Oakwood Healthcare, Inc., a case that also (like Kentucky River ) involved the status of nurses. See 348 NLRB 686, 692 (2006). On the basis of that new interpretation, the Board then again found the electrical dispatchers to be employees rather than supervisors. See Entergy Mississippi, 357 NLRB No. 178, at 5.

B. Factual Background

It is against this winding legal background that this dispute over the status of these electrical workers now comes to us. In September of 2013, these workers, who were employed at an electric and gas company located in New England, sought to vote on whether to join a union. The union was Local 369 of the Utility Workers Union of America, AFL–CIO. The company was NSTAR Electric Company, a public utility engaged in the transmission and distribution of electricity and gas.

NSTAR manages and maintains high-voltage electrical transmission equipment.¹ That transmission equipment connects electrical generators—power plants—with facilities known as “substations.” Those facilities then convert the electricity to a lower voltage for distribution to homes and businesses throughout New England.

NSTAR must carefully monitor and maintain its transmission equipment. Otherwise, equipment failures or unanticipated changes in demand for electricity could cause widespread blackouts not only in NSTAR's coverage areas but also in the region's broader electrical grid.

To perform its maintenance operations, NSTAR must be able to take its transmission equipment out of service—or, as the industry puts it, to de-energize the equipment. NSTAR must be able to do so, moreover, without endangering its employees or imperiling the reliability of the grid.

To safely and reliably de-energize the equipment, NSTAR relies on “switching orders.” They set forth step-by-step procedures for the sequential opening and closing of switches in the electrical system. NSTAR uses these switching orders to interrupt the flow of electricity to particular transmission equipment.

To write switching orders, execute switching procedures, and carry out maintenance on de-energized equipment, NSTAR relies on a range of workers. Over seven hundred “field employees” are responsible for carrying out the physical work necessary to implement switching orders and maintain NSTAR's electrical transmission and distribution systems. About thirty first-line “field supervisors” directly oversee the field employees and assign them to shifts, worksites, and geographic regions. Multiple layers of NSTAR management then oversee the field supervisors.²

The seventeen NSTAR workers involved in this dispute work in a large control room in NSTAR's dispatch center. They oversee the reliability and maintenance of NSTAR's transmission system. They work with a software program called “SCADA” that provides data on the status of NSTAR's transmission system.

The first group of these workers are Transmission System Supervisors, or TSSs. They monitor NSTAR's transmission system in real time, energize and de-energize equipment to allow maintenance work, and react to unforeseen events that disrupt the transmission system. They also write switching orders.

The second group of workers are Senior Transmission Outage Coordinators, or STOCs. STOCs perform analyses of the effect of future operations on NSTAR's transmission system. STOCs run simulations to determine when maintenance work can be done consistent with NSTAR's work plan without disrupting the performance of the transmission system. STOCs work with field supervisors to ensure that an adequate number and type of field employees will be available to perform scheduled work when needed. STOCs also fill in for TSSs with “some regularity.”³

C. Procedural Background

In September of 2013, the Union petitioned the Board to conduct a representation election for the TSSs and STOCs that NSTAR employs. NSTAR objected that the TSSs and STOCs were “supervisors” or “managerial employees” and thus were not “employees” under the Act. A hearing officer held a seven-day hearing on the matter in September and October of 2013. Drawing on that record, the Acting...