Case: 14-60796 Document: 00513404668 Page: 1 Date Filed: 03/03/2016
REVISED MARCH 3, 2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60796
Fifth Circuit
FILED
December 7, 2015
ENTERGY MISSISSIPPI, INCORPORATED, Lyle W. Cayce
Clerk
Petitioner Cross-Respondent
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent Cross-Petitioner
Petition for Review and Cross Petition for Enforcement
of an Order of the National Labor Relations Board
Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Petitioner Entergy Mississippi, Incorporated (“Entergy”) is a power
utility company. This case concerns the status of a certain group of Entergy’s
employees—dispatchers—under the National Labor Relations Act (“NLRA” or
“Act”), 29 U.S.C. §§ 151-169.
Dispatchers use various information systems to monitor the flow of
electricity through Entergy’s grid. The Supervisory Control and Data
Acquisition (“SCADA”) system “provides dispatchers with data concerning the
load, voltage, and amps on breakers and circuits in the substations.” Entergy
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Miss., Inc., Case No. 15-UC-149, slip op. at 4 (N.L.R.B. Feb. 7, 2007),
http://apps.nlrb.gov/link/document.aspx/09031d458001c0bf (Entergy I).
SCADA alerts dispatchers when a circuit experiences a sudden change in
voltage or when a breaker trips. Upon hearing an alarm, dispatchers turn to
the Automated Mapping and Facilities Management (“AM/FM”), which
provides a visual map of the transmission and distribution lines in the system.
Id. AM/FM monitors customers’ calls regarding outages and predicts the device
that has malfunctioned in the area of the outage. Id.
One of the dispatchers’ most important duties is “switching.” Id. at 5.
“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.” Id.
Dispatchers “draft switching orders, which are step-by-step procedures to open
and close switches.” Id. When an unexpected outage occurs, dispatchers
contact field employees in the affected area and “dictate each step in the
switching sequence.” Id. “[T]he field employees write down each step as
dictated by the dispatcher. The field employees then read each step of the
switching sequence to the dispatchers to ensure its accuracy.” Id. Dispatchers
are also responsible for issuing clearance orders. Id. at 9. A clearance order
signifies to field employees that electrical flow has been interrupted in a line
or piece of equipment and it is safe to work on. Id.
Dispatchers also “call-out” field employees to work on trouble cases. Id.
at 11. When SCADA alerts a dispatcher that an outage has occurred, the
dispatcher can assign a field employee to go diagnose and correct the problem.
During weather events or on weekends and holidays—when dispatchers often
manage operations without much supervision—dispatchers can call field
workers from the on-call list to dispatch to trouble areas. If multiple trouble
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events occur at once, dispatchers have to identify the highest priority events,
decide how many field workers to call-up from the on-call list, and allocate the
available field workers to correct the problems.
In 2003, Entergy filed a petition with respondent National Labor
Relations Board (the “Board”), arguing that dispatchers are supervisors under
Section 2(11), 29 U.S.C. § 152(11). Id. at 2. The NLRA guarantees “employees”
the right to unionize and appoint a bargaining representative. 29 U.S.C. § 157.
It also requires employers to bargain with the workers’ representatives. Id.
§ 158(a)(5). To ensure that unions stay loyal to workers’ interests, Section 2(3),
§ 152(3), excludes “supervisors” from the class of “employees” guaranteed the
right to unionize and bargain. In other words, by urging that dispatchers were
“supervisors,” Entergy sought to remove dispatchers from the local union.
The Board held a hearing in 2003, and an ALJ issued an opinion in 2004
denying Entergy’s petition. Entergy I, at 2. Entergy filed a request for review
with the Board, which was granted. Id. In 2006, with Entergy still waiting for
the Board to hear its appeal, the Board decided In re Oakwood Healthcare, Inc.,
348 N.L.R.B. 686 (2006), in which it applied the supervisor definition to nurses
based on their authority to assign employees using independent judgment. The
Board remanded Entergy’s petition for the ALJ to reconsider the case in light
of Oakwood. The ALJ published Entergy I in 2007, holding once again that
dispatchers are not supervisors under Section 2(11). See id. at 34. Entergy
again filed a petition for review. The Board affirmed the ALJ’s decision.
Entergy Miss., Inc., 357 N.L.R.B. No. 178 (Dec. 30, 2011) (Entergy II).
About the same time that Entergy first filed its petition to reclassify
dispatchers as supervisors, it demanded that intervenor International
Brotherhood of Electrical Workers, AFL-CIO, Local Unions 605 and 985 (the
“Unions”) remove all references to dispatchers from the collective-bargaining
agreement. Entergy Miss., Inc., 361 N.L.R.B. No. 89, at *4 (Oct. 31, 2014)
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(Entergy III). In 2006, Entergy refused the Unions’ request to bargain over the
dispatchers’ terms and conditions of employment. Id. at *5. Pursuant to the
Unions’ complaints, the Board’s Acting General Counsel filed a charge against
Entergy, contending that it had violated Section 8(a)(1) and (5) of the Act, 29
U.S.C. § 158(a)(1) and (5). Entergy III, at *1. The Board’s General Counsel
moved for summary judgment based on the Board’s decision in Entergy II. Id.
In 2014, the Board granted summary judgment and held that Entergy had
violated Section 8(a)(1) and (5). Id. at *2-3, 5. This appeal followed.
I.
We accord Chevron deference to the Board’s reasonable interpretations
of ambiguous provisions in the NLRA. See NLRB v. Ky. River Cmty. Care, Inc.,
532 U.S. 706, 713 (2001) (citing Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842-44 (1984)). We will affirm the Board’s legal
conclusions “if they have a reasonable basis in the law and are not inconsistent
with the Act.” Valmont Indus. v. NLRB, 244 F.3d 454, 464 (5th Cir. 2001).
We will affirm the Board’s factual conclusions if they are “reasonable and
supported by substantial evidence on the record considered as a whole.” J.
Vallery Elec., Inc. v. NLRB, 337 F.3d 446, 450 (5th Cir. 2003) (quoting Valmont,
244 F.3d at 463). “Substantial evidence is that which is relevant and sufficient
for a reasonable mind to accept as adequate to support a conclusion. It is more
than a mere scintilla, and less than a preponderance.” El Paso Elec. Co. v.
NLRB, 681 F.3d 651, 656 (5th Cir. 2012) (emphasis omitted) (quoting Spellman
v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993)). “In determining whether the
Board’s factual findings are supported by the record, we do not make credibility
determinations or reweigh the evidence.” NLRB v. Allied Aviation Fueling of
Dall. LP, 490 F.3d 374, 378 (5th Cir. 2007). And “[r]ecognizing the Board’s
expertise in labor law, [we] will defer to plausible inferences it draws from the
evidence, even if we might reach a contrary result were we deciding the case
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de novo.” Valmont, 244 F.3d at 463 (quoting NLRB v. Thermon Heat Tracing
Servs., Inc., 143 F.3d 181, 185 (5th Cir. 1998)).
“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). “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. (quoting Monotech of Miss. v. NLRB, 876 F.2d 514, 516 (5th Cir. 1989)).
II.
A.
Entergy argues that the Board’s ruling lacks a reasonable basis in law
because it is inconsistent with the Board’s earlier decisions and with opinions
from other circuits. The Board contends that its decision is reasonable because
it relies on Oakwood. We agree with the Board and hold that its decision has a
reasonable legal basis.
1.
Section 2(11), 29 U.S.C. § 152(11), which governs this appeal, defines
“supervisor” as:
any individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.
The Supreme Court has interpreted Section 2(11) as setting forth a three-part
test:
Employees are statutory supervisors if (1) they hold the authority
to engage in any 1 of the 12 listed supervisory functions, (2) their
“exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment,” and (3)
their authority is held “in the interest of the employer.”
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Kentucky River, 532 U.S. at 713 (quoting NLRB v. Health Care & Ret. Corp. of
Am., 511 U.S. 571, 573-74 (1994)). The party asserting supervisory status has
the burden of proof. Id. at 711-12. This case turns on the meaning of “assign,”
“responsibly to direct,” and “independent judgment” in Section 2(11).
2.
“Assign,” “responsibly to direct,” and “independent judgment” as used in
Section 2(11) are all ambiguous. Mars Home for Youth v. NLRB, 666 F.3d 850,
854 n.2, 855 n.3 (3d Cir. 2011) (holding that all three phrases are ambiguous);
see Health Care, 511 U.S. at 579 (stating in dicta that the latter two phrases
are ambiguous). Because Oakwood supplies reasonable interpretations of
those terms, we owe deference to it.
Entergy contends that the Board has “waffled on the issue of whether
utility-industry Dispatchers are supervisors,” and thus, that this court owes
little deference to the Board’s recent interpretations of Section 2(11). But the
Supreme Court recently clarified that federal courts must defer even to new,
course-reversing agency positions when “the new policy is permissible under
the statute, . . . there are good reasons for it, and . . . the agency believes it to
be better, which the conscious change of course adequately indicates.” FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); accord Handley v.
Chapman, 587 F.3d 273, 282 (5th Cir. 2009).
Considering whether Oakwood satisfies the Fox test, we note first that
Entergy essentially concedes that Oakwood’s interpretation of Section 2(11) is
permissible under the statute. One need look no further than the thorough and
well-reasoned opinion itself to discern that the Board’s interpretation is
reasonable. See Oakwood, 348 N.L.R.B. at 689-94. The Board explained that it
adopted its new interpretations of Section 2(11) to further its mandate to
protect workers, to faithfully follow the dictates of Congress and the courts,
and to “provid[e] meaningful and predictable standards for the adjudication of
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future cases and the benefit of the Board’s constituents.” Id. at 688. These are
sufficient reasons to justify the Board’s new approach. And there is no doubt
that the Board intended Oakwood to mark a change in its application of Section
2(11). See id. (“[W]e herein adopt definitions for the terms ‘assign,’ ‘responsibly
to direct,’ and ‘independent judgment’ as those terms are used in Section 2(11)
of the Act.”).
Because Oakwood satisfies both the Chevron and Fox standards, we
defer to it when considering the Board’s action.
3.
Entergy argues that the Board’s ruling lacks a reasonable basis in law
because—though the facts and law are the same as in Gulf States—the Board
reached a contrary conclusion in this case. The Board contends that Oakwood
changed the law by adding an adverse consequence requirement, and that this
development explains the different outcome. The Board has the better
argument.
In Gulf States, we considered whether electrical utility operations
coordinators “responsibly direct[ed] others with independent judgment” and
thus qualified as statutory supervisors. 253 F.3d 203, 209 (5th Cir. 2001). In
defining “responsibly direct,” we relied on NLRB v. KDFW-TV, Inc., a Div. of
Times Mirror Corp., 790 F.2d 1273, 1278-79 (5th Cir. 1986) and found that “[t]o
direct other workers responsibly, a supervisor must be answerable for the
discharge of a duty or obligation or accountable for the work product of the
employees he directs.” Gulf States, 253 F.3d at 209 (internal quotation marks
and citation omitted).
This definition was later expanded by the Board in Oakwood, which held
that to be “responsible” under Section 2(11), a putative supervisor “must be
accountable for the performance of the task by the other, such that some
adverse consequence may befall the one providing the oversight if the tasks
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performed by the employee are not performed properly.” 348 N.L.R.B. at 692.
Under this rule, the Board crafted a three-part test for determining whether a
putative supervisor “responsibly directs” an employee:
[T]o establish accountability for purposes of responsible direction,
it must be shown that the employer delegated to the putative
supervisor the authority to direct the work and the authority to
take corrective action, if necessary. It also must be shown that
there is a prospect of adverse consequences for the putative
supervisor if he/she does not take these steps.
Id.
Entergy argues that Oakwood simply adopted the Gulf States rule.
Although Oakwood adopted the general “accountability” standard set out in
KDFW-TV, it did not simply co-opt this court’s existing law. See Oakwood, 348
N.L.R.B. at 691-92. Rather, it added to the “accountability” standard in at least
two ways. See 348 N.L.R.B. at 691-92. First, Oakwood made clear that the
putative supervisor must be potentially liable not only for his own failures, but
also for the failures of his subordinates. See 348 N.L.R.B. at 692; see also, e.g.,
In re Croft Metals, Inc., 348 N.L.R.B. 717, 722 (2006) (interpreting Oakwood
and holding that movant showed accountability where the “record reveals that
the Employer has disciplined lead persons by issuing written warnings to them
because of the failure of their crews to meet production goals or because of
other shortcomings of their crews”). By adopting this requirement, the Board
hewed to the First Circuit’s position in Northeast Utilities Service Corp. v.
NLRB, 35 F.3d 621, 625 (1st Cir. 1994), an opinion that Gulf States called into
doubt, see 253 F.3d at 210.
Second, Oakwood required those attempting to prove supervisor status
to “show[] that there is a prospect of adverse consequences for the putative
supervisor” because of the actions of subordinates. 348 N.L.R.B. at 692; see
also, e.g., In re I.H.S. Acquisitions No. 114, Inc. d/b/a Lynwood Manor, 350
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N.L.R.B. 489, 490-91 (2007) (interpreting Oakwood to require specific evidence
of actual or possible adverse consequences).
This change in controlling law explains the different outcomes in the two
cases. In Gulf States, this court did not require the movant to prove that the
putative supervisors were potentially liable for the subordinates’ mistakes. But
following Oakwood, the Board required Entergy to prove that dispatchers
could be liable for the actions of field employees. 1 And there is substantial
evidence to support the Board’s decision. See Entergy II, at *7. Because the
Board’s ruling has a reasonable legal basis, we affirm.
B.
The party alleging supervisory status bears the burden of proving that
it exists by a preponderance of the evidence. Oakwood, 348 N.L.R.B. at 694.
Entergy argues that there is not substantial evidence to support the Board’s
ruling that dispatchers are not supervisors. Specifically, Entergy contends that
it proved that dispatchers “responsibly direct” field employees, “assign” them,
and use “independent judgment” in performing both functions. There is
substantial evidence to support the Board’s determination that dispatchers do
not “responsibly direct” field employees or “assign” them to a “time” or
“significant overall duty.” But the Board ignored evidence that arguably shows
that dispatchers “assign” field employees to “locations” using “independent
judgment.” We affirm in part and vacate in part the Board’s decision that
dispatchers are not supervisors.
1 Every circuit court that has interpreted Oakwood has read it to require responsibility
for others’ actions. See NLRB v. NSTAR Elec. Co., 798 F.3d 1, 10 (1st Cir. 2015); Avista Corp.
v. NLRB, 496 F. App’x 92, 93 (D.C. Cir. 2013) (per curiam); Lakeland Health Care Assoc’s,
LLC v. NLRB, 696 F.3d 1332, 1353 (11th Cir. 2012); Rochelle Waste Disposal, LLC v. NLRB,
673 F.3d 587, 596 (7th Cir. 2012); Mars Home for Youth, 666 F.3d at 854.
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1.
We first address the Board’s holding that dispatchers do not “responsibly
direct” field employees. See Entergy II, at *7-9. Again, Oakwood provides that
a putative supervisor does not “responsibly direct” a subordinate unless the
supervisor has the authority to direct the subordinate’s work and take
corrective action when necessary, and the supervisor could be held liable for
the subordinate’s performance of his job. 348 N.L.R.B. at 692.
Applying Oakwood, the Board held that Entergy failed to show that
dispatchers “responsibly direct” field employees because the evidence showed
“that the dispatchers are accountable for their own work, i.e., their own failures
and errors, and not those of the field employees.” Entergy II, at *8. Entergy
asserts that “the record contains numerous situations in which Dispatchers
were disciplined solely because of errors made by field employees under their
supervision.” But the two examples it offers provide no support for the claim.
Entergy points to testimony about a dispatcher named White. White correctly
instructed a field employee to flip a specified switch, but the employee flipped
the wrong one. White’s supervisor testified that he did not plan to discipline
White until he admitted that “[w]hen [he] was talking to [the field employee],
[he] could feel that [the employee] was uncomfortable.” The supervisor testified
that he “coached and counseled” White—a form of discipline—because he knew
the field employee was unprepared but proceeded anyway. The supervisor
stated that “even though the switchman was the one who admitted that he
made the error, [he] nonetheless held the dispatcher accountable.”
The Board’s acting regional director, who sat as the ALJ, refused to
credit this testimony. As the ALJ noted, the manager “claims that he gave
[White] a coaching and counseling session, but he acknowledges that he did
not place a memo in the dispatcher’s personnel file concerning the dispatcher
being counseled for the performance of the field employee.” Noting that
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Entergy’s disciplinary policy requires managers to document coaching and
counseling sessions, the ALJ stated that he was “not convinced that the
evidence establishes that the dispatcher actually received any degree of
discipline.” The ALJ’s determination is entitled to deference. See Carey Salt
Co. v. NLRB, 736 F.3d 405, 410 (5th Cir. 2013) (explaining that an ALJ’s
credibility determination, “adopted by the Board, merits special deference”
(internal quotation mark and citation omitted)).
Entergy also points to testimony about an incident where a dispatcher’s
and field employee’s joint error caused a major outage. But the testimony
makes clear that the dispatcher was punished because he had a document
containing necessary information, yet he failed to consult it. The testimony
does not show that dispatchers are held liable for field employees’ mistakes.
In sum, substantial evidence supports the Board’s determination that
dispatchers are accountable only for their own mistakes. And under Oakwood,
this is sufficient to show that dispatchers do not “responsibly direct” field
employees.
2.
We next address the Board’s holding that dispatchers do not “assign”
field employees, or do not exercise “independent judgment” when doing so. See
Entergy II, at *9-12.
In Oakwood, the Board “construe[d] the term ‘assign’ to refer to the act
of designating an employee to a place (such as a location, department, or wing),
appointing an employee to a time (such as a shift or overtime period), or giving
significant overall duties, i.e., tasks, to an employee.” 348 N.L.R.B. at 689. The
Board interpreted “independent judgment” to refer to an individual “act[ing],
or effectively recommend[ing] action, free of the control of others and form[ing]
an opinion or evaluation by discerning and comparing data.” Id. at 692-93. The
Board further explained that “a judgment is not independent if it is dictated or
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controlled by detailed instructions, whether set forth in company policies or
rules, the verbal instructions of a higher authority, or in the provisions of a
collective bargaining agreement.” Id. at 693. “On the other hand, the mere
existence of company policies does not eliminate independent judgment from
decision-making if the policies allow for discretionary choices.” Id. The Board
also reasoned that “[t]he authority to effect an assignment, for example, must
be independent, it must involve a judgment, and the judgment must involve a
degree of discretion that rises above the ‘routine or clerical.’” Id.
The Board applied Oakwood when deciding Entergy II. See id. at *7. The
Board assumed that dispatchers “assign” field employees to a place. Id. at *9-
10. But it held that dispatchers do not exercise “independent judgment”
because they “utilize a computer program that notifies them of trouble spot
locations, and usually assign to trouble spots employees already assigned to
that specific area.” Id. at *10. In other words, the Board found that the
dispatchers’ job requires nothing more than reading a trouble report on a
computer screen, looking at a list to determine the on-call worker for the
relevant area, and telling the responsible worker to head to the location.
Although we give significant deference to the Board’s factfindings, “[o]ur
deference . . . has limits.” Carey Salt, 736 F.3d at 410. “[A] decision by the
Board that ‘ignores a portion of the record’ cannot survive review under the
‘substantial evidence’ standard.” Id. (quoting Lord & Taylor v. NLRB, 703 F.2d
163, 169 (5th Cir. 1983)); see Amoco Prod. Co. v. NLRB, 613 F.2d 107, 111-12
(5th Cir. 1980) (holding that remand is appropriate when the Board fails to
adequately explain the factual basis for its opinion).
The Board ignored significant portions of the record that show how
dispatchers arguably exercise independent judgment when deciding how to
allocate Entergy’s field workers. Albert May, a union manager, testified that
when there are simultaneous outages, dispatchers “decide which trouble to
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handle first.” After a dispatcher has sent a field employee to one location, he
“ha[s] authority to redirect that person to another case of trouble.” And “if there
is more trouble than that one [field employee] can handle,” the dispatcher
“would decide to call out additional [field employees].” These decisions, in part,
are guided by “standard operating procedure” and “if conflicts arise, then the
dispatchers would consult an [operations coordinator] or a network manager
to determine if [certain responses are] possible to do or not.” Although the
operating guidelines and union-generated on-call lists dictate which field
employees will be on-call at any given time, those agreements “don’t tell the
dispatcher when or how many people to dispatch or when to hold [field
employees] over [their regular shift].” The dispatcher seems to “decide how
many troublemen or servicemen [are] necessary to handle . . . multiple cases
of trouble.”
Evidence in the record shows that dispatchers’ judgment about how to
allocate Entergy’s field workers is guided by a range of discretionary factors.
Dispatchers appear to prioritize outages affecting industrial customers that
have special contracts with Entergy. Yet if an outage occurred at night or on a
holiday when an industrial customer’s factory was not operating, dispatchers
might be expected to prioritize another customer instead. Dispatchers also
apparently prioritize outages affecting customers with “special medical needs,”
along with prioritizing outages that affect large numbers of residential
customers. If simultaneous outages of each type occur, there is no simple rule
to guide the dispatcher’s decision in who to help first. In sum, at times, a
dispatcher may have to decide whether to send “[his] one crew” to a trouble
location “with the most customers on it,” to “the one that’s got the hospital out,”
or to “the plastics plant that needs to be picked up.”
Dispatchers apparently weigh other factors as well. There is evidence
that they juggle logistical considerations, such as deciding whether a field
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employee can complete a quick repair at a trouble spot that is along the way to
an outage affecting a high-priority client. Dispatchers arguably must also
consider whether a particular outage is likely to cause property damage to
Entergy’s facilities. And where, for example, an unrepaired outage from the
previous day elevates the risk posed by a new outage, the dispatcher likely re-
prioritizes given the facts on the ground.
Despite this complexity, “there are no standard operating procedures
within Entergy for what is to be turned on — which kind of account’s [sic] to
be turned on first.” “There is no handbook, guidelines or documents.” Id.
Dispatchers apparently learn how to prioritize clients “through the mentoring
process.”
Considering the interpretations announced in Oakwood, the evidence
discussed above arguably shows that dispatchers “assign” field employees to
places by exercising “independent judgment.” Yet the Board ignored this
evidence when explaining its reasoning. Decisions by the Board that ignore a
relevant portion of the record cannot survive substantial evidence review. See
NSTAR Elec. Co., 798 F.3d at 13 n.10. Accordingly, we vacate the Board’s
decision that dispatchers do not exercise “independent judgment” when
assigning employees to locations and remand for further proceedings on this
narrow question.
3.
The Board held that dispatchers do not “assign” field workers to a time,
that is, “to remain on the job at the end of their 8-hour shift to perform an
overtime assignment.” Entergy II, at *12.
The Board reasonably discredited the testimony of three Entergy
employees, who haltingly testified that dispatchers have the authority to
require field workers to stay on-duty. See Entergy II, at *10-11. The Board
focused instead on the testimony of a dispatcher who stated that he “[did]n’t
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have the authority to force [a field employee] to stay.” Id. at *11. Inferring from
this statement that managers never told dispatchers that they had the power
to order field workers to work overtime, the Board held that no such power was
likely ever delegated. Id. at *11-12. The Board’s legal reasoning is permissible
and its factual determinations are supported by substantial evidence.
The Board held that dispatchers do not “assign” field workers to
“significant overall duties.” Id. at *12. In Oakwood, the Board held that
assigning an employee “to certain significant overall tasks (e.g., restocking
shelves) would generally qualify as ‘assign’ within [its] construction.” 348
N.L.R.B. at 689. On the other hand, “choosing the order in which the employee
will perform discrete tasks within those assignments (e.g., restocking toasters
before coffeemakers) would not be indicative of exercising the authority to
‘assign.’” Id. Citing Oakwood, the Board reasoned that dispatchers do not
assign field employees to a new, overall duty, but merely direct them to
perform an ad hoc task before returning to their normal duties. Entergy II, at
*12. Here too, the Board’s legal reasoning is permissible and its factual
determinations are supported by substantial evidence. We affirm.
***
The Board’s legal reasoning is permissible and its rulings, in large part,
are supported by substantial evidence. But the Board ignored significant
evidence suggesting that dispatchers “assign” field employees to “places” using
“independent judgment.” Accordingly, we affirm in part, vacate in part, and
remand for further proceedings on the narrow question of whether the
dispatchers exercise independent judgment in assigning field employees to
places.
C.
Entergy argues that the doctrine of laches bars the Board from recouping
money damages in this action. We disagree.
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In Nabors v. NLRB, 323 F.2d 686 (5th Cir. 1963), this court held that the
United States and its agencies are not subject to the defense of laches when
enforcing a public right. Id. at 688. The court further held that when the Board
brings an enforcement action under the Act, it acts in the public interest, even
when it obtains money damages on behalf of private persons. Id. at 688-89.
Nabors remains good law. See, e.g., Matter of Fein, 22 F.3d 631, 634 (5th Cir.
1994) (holding that laches may not be asserted against the government when
it acts in its sovereign capacity); United States v. Arrow Transp. Co., 658 F.2d
392, 395 (5th Cir. 1981) (“The law remains unchanged: laches is unavailable
as a defense against the United States in enforcing a public right.”). We deny
Entergy’s laches defense.
III.
For the reasons explained, we AFFIRM the Board’s decision in all but
one respect. We VACATE the Board’s determination that dispatchers do not
“assign” field employees to “places” through the exercise of “independent
judgment” and we REMAND for further proceedings. The Board cross-appeals,
asking this court to enforce its order. Because we hold the Board erred, we
DENY the Board’s request for enforcement.
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