Entergy Gulf States, Inc. v. National Labor Relations Board

REVISED - June 18, 2001

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-60334

ENTERGY GULF STATES, INC.

Petitioner-Cross-Respondent,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL UNION NO. 2286

Respondent.

Petition for Review of an Order
of the National Labor Relations Board

May 31, 2001

Before REYNALDO G. GARZA, DAVIS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

At issue is whether ten operations coordinators1 (“OC”)

at an electrical utility are statutory supervisors within the

meaning of the National Labor Relations Act, 29 U.S.C. § 151 et seq

1
OCs are actually subdivided into lead OCs and regular OCs. The
parties have stipulated that lead and regular OCs are not materially different
for the purposes of this inquiry. Thus, we use the term “OC” to refer to both
of these groups.

1
(“NLRA” or “Act”). Petitioner Entergy Gulf States, Inc. (“Entergy”

or the “Employer”) asks this court to reverse a National Labor

Relations Board (“NLRB” or “the Board”) decision holding that OCs

are not supervisors. Because neither the facts nor applicable law

has changed since the NLRB declared OCs to be supervisors in 1983,

we will not defer to the Board’s attempt to recharacterize them in

1999. We grant Entergy’s petition for review, set aside NLRB’s

bargaining order, and deny enforcement.

FACTUAL AND PROCEDURAL HISTORY

Entergy is a Texas corporation that provides electricity

to customers in Louisiana and Texas. Respondent International

Brotherhood of Electrical Workers, Local Union No. 2286 (“Union”)

represents a bargaining unit of the employer’s workers.

This dispute centers on the responsibilities of Entergy’s

OCs. Working from a central operations center, OCs monitor the

status of power lines that distribute electricity to customers.

They receive reports of power outages from their computers or from

a phone reception center and coordinate repairs with field workers.

During normal working hours, four to five OCs will be in

the operations center monitoring separate service areas. They

report to a supervisor in the operations center. Because of their

grave responsibility to ensure continuous electrical service and

their need to work without distraction, OCs have the authority to

order even senior executives out of the operations center.

2
 Crews of field workers are on duty during normal working

hours conducting routine maintenance and service calls in their

respective duty areas. Field workers normally speak with OCs

during the day to execute “switching orders.” A switching order is

a set of instructions that disengages specific power lines without

interrupting customer service and allows construction or

maintenance crews to work safely on power equipment. Using

information from computer systems, an OC writes a switching order

to fit an individual situation. The OC typically faxes the order

to a field worker. Once the worker arrives at the site, he calls

the OC and reads back the switching order as he executes it. If

the worker perceives a problem with the switching order, he can

question it and suggest an alternative. OCs have ultimate

responsibility over the process, however.

Aside from issuing switching orders, OCs also instruct

field workers during the day as necessary to restore power or

perform emergency switching. OCs may pull field workers off their

daily work to address these situations when they arise.

OCs have more responsibility and interactions with field

workers at night and on weekends. The OCs operate without a

supervisor, although supervisors can still monitor activity in the

operations center remotely via computer. Only two or three OCs

remain in the operations center. The local field crews go home,

leaving call rosters so the OCs know whom to contact in the event

of an outage.

3
 When customers or computer systems report power

interruptions after-hours, an OC makes an initial determination

whether to call up workers and how many to call. If there are many

outages in one area, the OC can instruct an area supervisor to open

the area office and handle the problems locally. Normally,

however, the OC rouses on-call field workers individually to

address the problems. These call-ups obligate Entergy to pay

overtime.

The on-call field worker then goes to a trouble site and

reports the nature of the problem to the OC. Where a switching

order is necessary, the OC writes the order and the field worker

implements it. When the field worker has completed all assigned

repairs, he must report back to the OC before going off-duty.

When an area has multiple power interruptions, as in a

weather emergency, the OC must prioritize repairs. Guidelines

assist the OCs to set priorities during major power restorations,

but OCs generally use their own discretion. The OCs may order a

field worker to discontinue work on one problem and move to

another.

OCs are ultimately responsible for managing after-hours

power restorations. There is no “cookbook” response to these

trouble calls. OCs are accountable for the time it takes to

restore power, and receive counseling if they manage situations

poorly. They are not responsible, however, if field workers fail

4
to follow instructions. In those situations, OCs would notify the

field worker’s supervisor.

To some extent, OCs can reward or discipline employees.2

OCs have the authority to issue low-level monetary awards to field

employees through Entergy’s “Shining Through” program, although

there was no evidence that an OC had actually done so. One witness

did recall an OC recommendation to a supervisor that led to a

higher-level award for a field worker. With regard to disciplinary

actions, OCs reportedly have “input” because they can speak to OC

or field supervisors about the performance of a field worker. One

field worker testified, however, that he was unaware that OCs had

any authority to reward or discipline him.

Technology and consolidation within Entergy have changed

the OC position somewhat over the years. OCs now do more of their

work on advanced computers, which provide more information and

allow OCs to monitor a larger service area. As a result, the OC

position has become more complex.

Entergy did not consider OCs to be supervisors before

1993. In December 1993, however, Entergy merged with another

entity and consolidated operations centers. The reorganization

removed a level of supervision above the OCs. Shortly before the

existing labor agreement expired in June 1995, Entergy petitioned

2
The Employer stipulated that OCs could not reward or discipline field
workers at all in a July 1995 NLRB hearing. It then withdrew this stipulation
during a hearing in August 1999, asserting that the facts had changed. Id. at
237.

5
to remove OCs from the Union’s bargaining unit.3 It argued that

the NLRA did not cover OCs because they were statutory supervisors

under the Act.

After a July 1995 hearing, an NLRB regional director

found that the OCs were similar to workers that the NLRB considered

supervisors in Big Rivers Elec. Corp., 266 N.L.R.B. 380 (1983).

The director concluded that OCs are supervisors and excluded them

from the bargaining unit. The Union appealed, and the NLRB ordered

further proceedings.

The regional board held a second hearing in August 1999

and heard new testimony and evidence reflecting another

reorganization at the Employer. This evidence included a job

description that the company released in 1998 stating that OCs

“manage” and “supervise” personnel during outages. It also

included messages to personnel dated just a few days before the

hearing purportedly “reaffirming” the supervisory power of OCs.

The new testimony also indicated that OC responsibilities

have become more focused as the Employer drastically cut and

centralized OC staff. OCs stopped fielding customer calls at night

and deciding whether to reconnect power for customers who claimed

to have paid their bills. Different employees now handle higher

voltage transmission switching that used to be an OC

responsibility. Field employees now write their own switching

3
At the time, the Employer was named Gulf States Utility Company and
OCs were called Division Substation Operators.

6
orders when working on lesser power lines, significantly reducing

the number of switching orders that OCs write.

Following the second hearing, an acting regional director

reversed the original decision and found that OCs were not

supervisors. She followed Mississippi Power & Light Co., 328

N.L.R.B. 146 (1999), a decision that overruled Big Rivers.

The Employer appealed to the NLRB. The NLRB affirmed the

finding that OCs are not supervisors and belong in the bargaining

unit, and directed the Employer to negotiate with the Union

accordingly. Entergy Gulf States, Inc., 330 NLRB 196 (2000). The

Employer appeals.

STANDARD OF REVIEW

Whether an employee is a supervisor is a question of

fact. Monotech of Miss. v. NLRB, 876 F.2d 514, 516 (5th Cir.1989).

We must determine whether substantial evidence in the record

supports the conclusion that OCs are not supervisors, and whether

the Board’s decision has a reasonable basis in the law. Id.

Substantial evidence is evidence a reasonable mind might accept as

adequate to support a conclusion. Id. 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.

When an agency’s legal interpretation of a statute

conflicts with its prior positions, however, the interpretation is

7
“‘entitled to considerably less deference’ by the courts than a

consistently held agency view.” INS v. Cardoza-Fonseca, 480 U.S.

421, 446 n.30 (1987) (refusing to defer where the INS’s

interpretations of a statute were inconsistent over the years); see

also NLRB v. United Food and Commercial Workers Union, 484 U.S.

112, 124 n.20 (1987) (applying this principle in a labor case).

Although the NLRB can change its policies and must respond to new

circumstances, “a departure from past agency precedents requires at

least a reasoned explanation of why this is done.” Fiber Glass

Systems, Inc. v. NLRB, 807 F.2d 461 (5th Cir.1987) (remanding

because the NLRB failed to apply an inference that it used in

similar cases).

DISCUSSION

The crux of this case is that the NLRB departed without

a “reasonable explanation” from the position it had espoused for

nearly twenty years, and the position circuit courts enforced for

many years before that, that electrical industry employees just

like OCs are indeed supervisors. Mississippi Power & Light is

unreasonably inconsistent with previous precedents under the NLRA.

Section 152(11) of the NLRA 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.

8
Under the statute, therefore, an employee is a supervisor if 1) he

has the authority to engage in one of the twelve listed activities;

2) the exercise of that authority requires independent judgment;

and 3) he holds the authority in the interest of the employer.

NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571,

574 (1994).

Several general considerations guide the inquiry.

Supervisory status is not construed broadly because those deemed

supervisors lose rights which the Act seeks to protect. GAF Corp.

v. NLRB, 524 F.2d 492, 495 (5th Cir.1975) (holding that a temporary

foreman was not a supervisor). This court looks beyond job titles

and specified hierarchical stations to an employee’s actual

authority and responsibility. NLRB v. Dickerson-Chapman, Inc., 964

F.2d 493, 497 (5th Cir.1992) (holding that certain telephone

company crew foremen were not supervisors). Finally, secondary

indicia of supervisory authority may be pertinent, including the

perceptions of other workers, attendance at management meetings,

time spent ordering others around rather than engaging in

production work, salary, distinctive clothing, and the ratio of

employees to supervisors. Monotech of Miss. v. NLRB, 876 F.2d 514,

517 (5th Cir.1989) (applying secondary indicia to find that lead

hands at a production and maintenance facility were supervisors).

Here, the only issues in dispute are whether OCs use

independent judgment to responsibly direct, reward, or discipline

9
others. Because we focus on whether OCs responsibly direct others

with independent judgment, it will be unnecessary to consider the

extent to which OCs reward or discipline others.

To 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. NLRB

v. KDFW-TV, Inc., 790 F.2d 1273, 1278 (5th Cir.1986) (finding

substantial evidence that producers, directors, and assignment

editors of a television newscast program did not responsibly direct

other employees). Routine technical commands executed by technical

personnel do not indicate supervisory authority. Id.

Before 1983, the NLRB consistently held that electrical

utility workers closely resembling OCs did not responsibly direct

others and were not statutory supervisors. Courts of appeals

refused to enforce these decisions, concluding that the workers

were statutory supervisors. See Southern Ind. Gas and Elec. Co. v.

NLRB, 657 F.2d 878, 886 (7th Cir.1981) (involving systems

supervisors that monitored power generation and distribution and

wrote switching orders); NLRB v. Detroit Edison Co., 537 F.2d 239,

243 (6th Cir.1976) (involving systems supervisors who monitored

power distribution); Arizona Public Serv. Co. v. NLRB, 453 F.2d

228, 232 (9th Cir.1971) (involving system load supervisors who

prioritized and directed field workers during after-hours power

restorations); West Penn Power Co. v. NLRB, 337 F.2d 993, 1000 (3rd

10
Cir.1964) (involving power transmission and distribution

supervisors that prioritized repairs and de-energized lines for

repair). The courts rejected the NLRB’s arguments that the workers

only “requested” cooperation from field workers who were employed

under separate chains of command. Courts were not dissuaded by

evidence that the OC-like workers referred to written protocols,

consulted with superiors in emergencies, and did not outwardly

appear to be supervisors.

Eventually, the NLRB bowed to the body of caselaw and

held that these workers were statutory supervisors. In Big Rivers

Electric Corp., overruling its previous decisions, the Board held

that systems supervisors who wrote switching orders and coordinated

power restoration after-hours responsibly directed other employees.

266 NLRB 380, 382, 383 n.2 (1983).

All was well until 1994, when the First Circuit held that

pool coordinators who bought and sold electricity and implemented

maintenance schedules at plants were not supervisors. Northeast

Util. Serv. Corp. v. NLRB, 35 F.3d 621, 625 (1st Cir.1994). The

court concluded that “quasi-professional, quasi-overseer” pool

coordinators were not accountable for the actions of others and

were not statutory supervisors. It suggested that the Board

reexamine its views in the public utilities setting. Id. at 626.

Citing this “invitation,” the NLRB reverted to its

original position. Mississippi Power & Light Co., 1999 WL 551405

11
(1999). The Board overruled Big Rivers on the ground that its

decision in that case overemphasized the complexity of the work and

the grave safety responsibility vested in the workers. Id. at *8.

It distinguished traditional supervisors from skilled employees who

merely use professional judgment to direct others. Id. at *9

(citing medical “charge nurses” as an example of non-supervisors).

The Board asserted that changes in the modern workplace require a

recognition that quasi-professional, quasi-overseer employees are

not supervisors under the Act. Id.

Mississippi Power & Light then applied these principles

to system and distribution dispatchers whose responsibilities

closely resemble those of the Entergy OCs. The Board noted that

preexisting rules governed the dispatchers’ actions, and that they

collaborated with field workers to determine when additional field

workers were necessary. Id. at *11-12. It also found that any

judgment the dispatchers used was based on common sense or

technical expertise rather than supervisory control over personnel.

Id. at *12-13. As a result, it concluded that dispatchers were not

statutory supervisors.

We conclude that the Board’s latest reversal in

Mississippi Power & Light is unwarranted. The pre-1983 court

decisions involved workers virtually indistinguishable from OCs.

The Board finally harmonized its approach with this series of

decisions in Big Rivers, only to reassert its original conclusion

12
following a single outcome in Northeast Utilities. Given such

vacillation, the Board’s classification of this group of workers in

Mississippi Power & Light is entitled to little judicial deference.

Northeast Utilities does not justify the Board’s latest

change. The material responsibilities of the pool coordinators in

that case were distinct from those of the OCs. The pool

coordinators were engaged in buying and selling power with other

utilities. They also set and implemented maintenance schedules for

transmission elements, Northeast Utilities, 35 F.3d at 623, but

otherwise apparently had no role in identifying and repairing power

distribution problems. There is no indication that they directed

field crews at all. Given these differences, Northeast Utilities

neither contradicts the earlier circuit decisions nor supports a

reevaluation of the status of OCs.4

Further, the Board’s observation that modern “work force

and workplace changes” make quasi-professionals and quasi-overseers

more common cannot justify its policy change. In Mississippi

Power & Light, 1999 WL 551405 at *10, the Board conceded that the

facts of Big Rivers were indistinguishable. Id. at 8. The Board

thus relied on general labor trends to justify a status change

while admitting that the particular job at issue had not materially

4
The Northeast Utilities decision also distinguishes the degree of
responsible direction of other employees exercised by electric power coordinators
from the more significant authority of OC-like employees in a previous case.
Northeast Utilities 35 F.3d at 625, citing Maine Yankee Atomic Power Co. v. NLRB,
624 F.2d 347 (1st Cir. 1980).

13
changed. It is the specific facts, not the Board’s perception of

labor trends, that must determine how the relevant law applies.

Nor is there substantial evidence that OC supervisory

responsibilities have significantly diminished in recent years.

Technology and organizational developments have both added to and

reduced OC responsibilities, but the material OC tasks have not

changed. OCs still operate without supervision and direct field

workers after-hours. They independently decide whether to open up

an area office or how many workers initially to call to duty. They

have discretion to prioritize repairs in a particular area and move

field workers between jobs. Call shifts for field workers do not

end until OCs release them. OCs have considerable responsibility

for safe switching orders and timely power restorations. The OC’s

“effectively direct field operations during emergencies and after

hours.” Arizona Pub. Serv. Co., 453 F.2d at 232. It is simply

incorrect to describe the OCs’ directions to field personnel as an

“almost routine or clerical dispatching function.” 1999 WL 551405

at *14.5 Like the other courts of appeals, we conclude that

5
In Exxon Pipeline Co. v. NLRB, 596 F.2d 704, 706 (5th Cir.1979), this
court affirmed the Board’s decision that oil pipeline movements supervisors did
not responsibly direct others and were not statutory supervisors. The
supervisors monitored the flow of oil using computers in a central office and
were in close contact with field personnel to start and shut down pipelines and
pumps. Oil movements supervisors did little more, however, than notify field
workers of problems, and field workers then participated equally to decide
whether and when to effect a repair. Exxon Pipeline properly distinguishes the
oil supervisors’ duties from those at issue in OC-type cases, and we find no
controlling analogy between that case and this one.

14
because OCs responsibly direct field workers using independent

judgment, they are statutory supervisors.

The Board also attempted in Mississippi Power & Light to

analogize OCs’ duties to those of charge nurses, who, the Board has

held, use their technical expertise and judgment to make complex

decisions but do not necessarily exercise supervisory judgment in

assigning and directing others. This argument is no longer viable.

NLRB v. Kentucky River Community Care, Inc., 523 U.S. ___, 2001

U.S. App. LEXIS 4119, * 25-29 (2001) (rejecting the Board’s

argument that registered nurses at a mental care facility were not

supervisors because they only exercised technical judgment).

In summary, we hold that the Board had no reasoned basis

to reverse its Big Rivers position on these workers in Mississippi

Power & Light, and the latter decision is inconsistent with still-

governing circuit court law interpreting the NLRA. Substantial

evidence does not support the Board’s decision to turn its back on

factually indistinguishable caselaw. We conclude that OCs

responsibly direct field workers with independent judgment and are

therefore statutory supervisors who should not be in the bargaining

unit. We REVERSE the Board’s bargaining order directing the

Employer to negotiate with a bargaining unit that includes the OCs,

and deny its enforcement.

ORDER REVERSED, ENFORCEMENT DENIED.

15