STP Nuclear Operating Co. v. Nat'l Labor Relations Bd.
| Decision Date | 16 September 2020 |
| Docket Number | C/w No. 19-60152,No. 19-60071,19-60071 |
| Citation | 975 F.3d 507 |
| Parties | STP NUCLEAR OPERATING COMPANY, Petitioner Cross-Respondent v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner |
| Court | U.S. Court of Appeals — Fifth Circuit |
Amber Michelle Rogers, Alan J. Marcuis, Adam J. Peters, Hunton Andrews Kurth, L.L.P., Dallas, TX, for Petitioner Cross-Respondent.
David S. Habenstreit, National Labor Relations Board, Julie Brock Broido, Supervisory Attorney, Milakshmi Varuni Rajapakse, Esq., National Labor Relations Board, Appellate & Supreme Court Litigation Branch, Washington, DC, Timothy L. Watson, National Labor Relations Board, Fort Worth, TX, for Respondent Cross-Petitioner.
Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
In two separate proceedings, which we consolidated for review, the National Labor Relations Board ("NLRB" or "the Board") certified two groups of employees of STP Nuclear Operating Co. ("STP") to join a collective bargaining unit represented by the International Brotherhood of Electrical Workers, Local Union 66 ("the Union"). STP refused to recognize and bargain with the Union on the basis that its "unit supervisors" and "maintenance supervisors" are excluded from the bargaining unit pursuant to the National Labor Relations Act. See 29 U.S.C. § 152(11). STP petitions to reverse the NLRB's bargaining order, and the Board cross-petitions for enforcement. Because the Board's conclusions that these employees are not statutory supervisors are premised on errors of law and lack substantial evidence, we REVERSE the bargaining order and DENY enforcement.
STP operates two pressurized water nuclear reactors in Wadsworth, Texas that generate electricity sent to the Texas power grid. The power generated provides electricity to approximately two million residential customers. Nearly five hundred employees, who occupy numerous technical positions in operation, maintenance and production, are represented by the Union.
Petitions were filed to include in the bargaining unit two additional classes of employees. The first group consists of unit supervisors, who oversee the operations crews for each reactor.1 Working in 12-hour shifts, the operations crews ensure that the reactors are continuously running except during planned outages. The second group comprises three dozen plant maintenance supervisors, each of whom manages a crew of eight or more employees in six different maintenance specialties.
Operations crews are organized according to a strict hierarchy. Ten Shift Managers, who are stipulated statutory supervisors, oversee ten respective crews. The ten crews are divided between the two reactors (Alpha, Bravo, Charlie, Delta, and Echo) and work different scheduled shifts. Each crew consists of two or three unit supervisors overseeing two or three reactor operators, and six or seven plant operators. Whether unit supervisors may be included within the plant's union was the subject of one NLRB proceeding.
At the start of each shift, unit supervisors review the Authorized Work Schedule (AWS)2 for work to be performed and assess whether plant conditions are satisfactory for the scheduled work. They also verify that their crew members have the necessary certifications to perform the tasks.
One unit supervisor works from an elevated platform in each reactor control room, a fifty-by-sixty foot room featuring thousands of switches and monitors. From there he oversees the activities of the reactor operators who adjust reactivity within the reactor and test safety-related equipment. Reactor operators work at two stations on the control room floor—the primary station (responsible for the nuclear reactor) and the secondary station (controlling the turbine generator and other auxiliary equipment). The reactor operators’ duties entail monitoring instruments, adjusting the components, and responding to alarms as necessary.
The other unit supervisor(s) directs the plant operators spread throughout the plant as the reactor operators’ "eyes and ears." These unit supervisors are in constant communication with the control room as operators for whom they are responsible monitor and manipulate the plant equipment.
Legally, unit supervisors are required to hold a Senior Reactor Operator license issued by the federal Nuclear Regulatory Commission (NRC). Reactor operators, in contrast, hold only Reactor Operator licenses, while plant operators are unlicensed. The distinction between the two licenses, as explained by federal regulation, is that senior reactor operators are licensed both "to manipulate the controls of a facility and to direct the licensed activities of licensed operators." 10 C.F.R. § 55.4 (emphasis added). Training for the senior license takes 18 months, and STP requires a minimum of three years’ experience as a reactor operator for its senior reactor operators. The Decision and Direction of Election factually errs when it states that "Unit supervisors must have the same kind of license as a reactor operator and must complete one extra week of training than a reactor operator." This confuses the statutorily prescribed licensure schemes and conflates the significantly greater training and experience of a senior reactor operator with a one-week leadership program STP provides.
As might be expected for a nuclear reactor plant, the work of the operations crews is highly regulated and overseen by the government. Accordingly, STP has developed manuals and written guidance that govern the vast majority of scenarios that unit supervisors may face when handling their responsibilities. STP also invests heavily in training, employs a human performance coach, and has implemented a rigorous process of documentation and review when crews commit errors.
The status of maintenance supervisors as potential union members was the subject of a second NLRB proceeding. Like the operations department, the maintenance division is also hierarchically structured. There are six specialized maintenance groups under Division Manager Rudy Stastny's control: mechanical maintenance, electrical maintenance, facilities maintenance, integrated maintenance, instrument and control, and the metrology and radiology laboratory. Each maintenance group's manager reports to Stastny. The parties stipulate that the group managers are statutory supervisors. Under the managers are maintenance supervisors.
Thirty-six maintenance supervisors are divided among the maintenance groups.3 Each maintenance supervisor is in charge of a crew of typically eight or more employees. The crews are responsible for repairing, testing, and fabricating equipment and components necessary to operate the reactors. Unlike the maintenance supervisors, members of the crew perform hands-on work in the field or shops. The maintenance supervisors have their own offices, certify employees’ work hours, and routinely receive and approve leave requests in the first instance.
In February 2018, the Union filed a petition for an Armour-Globe election to determine whether unit supervisors should be added to the existing bargaining unit of nearly 500 company employees including the reactor operators and plant operators. In May, the Union separately petitioned for an Armour-Globe election as it sought to add the maintenance supervisors to the bargaining unit. STP opposed both petitions on the basis that unit supervisors and maintenance supervisors are statutory supervisors excluded from the Union by the NLRA.
After holding hearings on each petition, the Regional Director for Region 16 issued Decisions and Directions of Election finding that the Company failed to establish that either group of employees should be classified as supervisors. STP timely requested Board review of each decision,4 but the Board declined. The Board's denial of a request for review constitutes an affirmance of the Regional Director's decision. Magnesium Casting Co. v. NLRB , 401 U.S. 137, 138 n.2, 91 S.Ct. 599, 27 L.Ed.2d 735 (1971). Both groups of employees voted to join the union.
After the elections were certified, STP refused the Union's requests for recognition and bargaining. Region 16 initiated unfair labor practice complaints based on STP's refusal to bargain with the Union. The General Counsel for Region 16 moved for summary judgment in both proceedings. The Board granted the motions without a hearing and upheld that STP violated 29 U.S.C. § 158(a)(5) and (1). The Board's Orders direct STP to recognize and bargain with the Union as the representative of unit supervisors and maintenance supervisors in the bargaining unit.
STP now petitions this court for review of the NLRB decisions, and the Board cross-petitions for enforcement. Facing an identical legal issue in each case, we consolidated the appeals.
"Whether an employee is a supervisor is a question of fact." Entergy Gulf States, Inc. v. NLRB , 253 F.3d 203, 208 (5th Cir. 2001). As the party asserting supervisory status, STP has the burden of proof. Entergy Mississippi, Inc. v. N.L.R.B., (Entergy II) , 810 F.3d 287, 295 (5th Cir. 2015) ; see also NLRB v. Ky. River Cmty. Care, Inc. , 532 U.S. 706, 711–12, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001).
Under 29 U.S.C. § 160(e), the NLRB's findings of fact are "conclusive" if they are "supported by substantial evidence on the record considered as a whole." El Paso Elec. Co. v. NLRB , 681 F.3d 651, 656 (5th Cir. 2012) (quoting Spellman v. Shalala , 1 F.3d 357, 360 (5th Cir. 1993) ). "We may not reweigh the evidence, try the case de novo, or substitute our judgment for that of the Board, even if the evidence preponderates against the [Board's] decision." Creative Vision Res., L.L.C. v. NLRB , 882 F.3d 510, 515 (...
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