F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 23 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
PUBLIC SERVICE COMPANY OF
COLORADO,
Petitioner and Cross -
Respondent,
v. Nos. 00-9523, 00-9532
NATIONAL LABOR RELATIONS
BOARD,
Respondent and Cross -
Petitioner,
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS,
LOCAL NO. 111,
Intervenor.
On Petition for Review and Cross-Application
for Enforcement of an order of the
National Labor Relation Board
(NLRB No. 27-CA-16820-1, 27-RC-7997)
Charles Donnely, Supervisory Attorney, Rachel Gartner, Attorney, Leonard R.
Page, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, National Labor Relations Board
Washington D.C., on the brief for Respondent and Cross-Petitioner.
Kevin W. Hecht (Todd Q. Clarke with him on the brief), of White and Steele,
P.C., Denver, Colorado for Petitioner and Cross-Respondent.
Joseph M. Goldhammer (Susan J. Eckert with him on the brief), of Brauer,
Buescher, Valentine, Goldhammer, Kelman & Eckert, P.C., Denver, Colorado for
Intervenor.
Before BRISCOE, McKAY, and HALL, Circuit Judges. *
HALL, Circuit Judge.
This case involves a petition for review and cross-petition for enforcement
of an order of the National Labor Relations Board ("NLRB" or the "Board"). The
Board determined that the Public Service Company of Colorado (“Public Service”
or the "Company") violated § 8(a)(1) and (5) of the National Labor Relations Act
(the "NLRA" or the "Act"), 29 U.S.C. § 158(a)(1) and (5), by refusing to bargain
with the International Brotherhood of Electrical Workers, Local No. 111 (the
"Union") as the representative of certain employees. Public Service maintains
that its refusal was justified because the employees at issue qualify as
"supervisors" within the meaning of § 2(11) of the Act, 29 U.S.C. § 152(11).
This court has jurisdiction to enforce and review the Board's order under §
10(e) and (f) of the NLRA. While we do not have general jurisdiction over the
representation proceeding, § 9(d) of the Act authorizes review of the Board's
*
The Honorable Cynthia Holcomb Hall, Senior United States Circuit Judge for the Ninth
Circuit, sitting by designation.
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action in that proceeding for the purpose of deciding whether to "enforc[e],
modify[], or set[] aside in whole or in part the [unfair labor practice] order of the
Board." 29 U.S.C. § 159(d). Because the NLRB used an impermissible standard
in determining that the employees were not “supervisors,” we set aside its
bargaining order and deny enforcement.
I.
Factual and Procedural Background
Public Service is a public utility that provides electric power and gas to
customers in Colorado and parts of Wyoming. Since 1946, the Union has
represented a bargaining unit of the Company's operating, production and
maintenance employees. Public Service and the Union have entered into a series
of collective bargaining agreements, the most recent of which will expire in 2003.
This dispute centers on the status and responsibilities of three sets of the
Company’s employees: transmission operators, senior transmission operators, and
senior system operators (collectively, "transmission employees"). In general
terms, transmission employees are responsible for monitoring and directing the
flow of electricity over the Company’s high voltage transmission network. This
network consists of transmission lines that carry power from generating plants to
distant substations where it is converted to usable current and subsequently sent
out to customers over distribution lines. In addition to managing the flow of
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electricity over these transmission lines, transmission employees also partially
oversee power generation and work at the substations.
More specifically, the first two categories of transmission employees--
transmission operators and senior transmission operators (herein collectively
"transmission operators")--are primarily responsible for the manipulation of the
transmission network in order to facilitate routine and emergency maintenance
and construction activities. Working out of the Company’s main electrical
operations control center in Golden, Colorado, their major duty is to design and
oversee the implementation of so-called “switching procedures.” Typically, the
need for switching procedures arises when linemen working in the field place
telephone requests indicating that they need to perform maintenance or repairs on
specific pieces of equipment. The transmission operators review the requests and
determine whether it is feasible for the work to be performed at the proposed time
given the demand load on the system. If a transmission operator agrees to a
request, he will schedule the work and prepare a detailed "switching order" that
indicates the precise steps that must be taken to disengage power lines and reroute
transmission so that the work can be accomplished safely and without interruption
of service to customers.
After a switching order is prepared, arrangements are made for electricians
to report to the appropriate sites in the field. A field supervisor is usually
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responsible for deciding which employees to deploy to perform the switching.
Once the switching personnel are in place, the transmission operator reads the
step-by-step procedure to them over the telephone as they perform the switches.
If the transmission operator decides that an unsafe condition has arisen or that
the field personnel are not performing the switching properly, he may order that
work stop until the problem is resolved.
Transmission operators are also responsible for several monitoring and
emergency functions. They monitor the transmission lines on a computer system
known as SCADA **2
to ensure that the system is running within normal
parameters. They also monitor alarms installed in the substations to alert them to
potential problems. When SCADA indicates that there has been either a surge or
drop in voltage, the transmission operators are responsible for restoring the
system to normal parameters either by making computer-controlled adjustments to
the system themselves, or by instructing control operators at the generating plants
to change their electrical output. In the event of multiple alarms, transmission
operators are responsible for prioritizing problems and deploying the available
field employees in order to effect timely repairs and maintain system stability. In
the event of an actual system emergency such as a downed transmission line or
2
SCADA stands for supervisory control and data acquisition.
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other break in service, transmission operators are responsible for stabilizing the
system and restoring services. In such situations, they may directly assign field
employees to make repairs as needed.
Senior system operators are generally promoted from the ranks of
transmission operators and perform the same functions. In addition, they are
responsible for safely operating the electrical generation system and making
certain that generation matches demand. This requires that they make daily
demand predictions used to set generation levels. They then monitor the system
throughout the day to make any necessary adjustments to load requirements.
Senior system operators effect these adjustments by telephoning the control
operators at generating plants and issuing orders to either change the rate of
generation or the number of units that are on-line. In an emergency situation,
such as where there is a loss of generation, senior system operators can also
purchase power from neighboring utilities. 3
As a group, transmission employees are expected to exercise substantial
discretion in carrying out their duties. There are no manuals laying out detailed
3
Pursuant to regulations adopted by the Federal Energy Regulatory Commission
(“FERC”), utilities must separate the reliability function from the market function in
energy trading. Thus, senior system operators are allowed to purchase electricity only in
emergency situations when it is necessary to ensure the reliability of the system.
Decisions to trade electricity with other utilities for economic reasons are made by
another department.
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orders as to how they are to design switching orders or carry out their other tasks.
Rather, transmission employees are expected to use their judgment, experience
and training to devise solutions to the complex and often novel problems that they
face. In doing so, they have a high degree of responsibility and give orders which
must be carried out with precision and competence in order to ensure the safety of
field employees and the integrity of the Company's network as well as those of
interconnected utilities. However, though they may stop the work of field
employees when necessary, they do not have the authority to reward or discipline
such employees based on their performance in carrying out their orders.
The issue of the transmission employees' status first arose in 1989 when the
Union successfully petitioned the NLRB to represent the Company’s dispatch
employees in its bargaining unit (the "1989 proceeding"). During the 1989
proceeding, the parties stipulated that the Company's senior systems operators
were managerial employees under the Act, and therefore not subject to
representation. The status of the Company’s transmission operators and senior
transmission operators was submitted to the NLRB Regional Director, who,
relying on the Board's decision in Big Rivers Electric Corp ., 266 NLRB no. 380,
1983 WL 24962 (1983) (holding that an electric utility's system supervisors were
statutory supervisors under § 2(11) of the Act), determined that they were
statutory supervisors not subject to representation under the Act.
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For ten years, the transmission employees’ supervisory status appeared
clear. However, in July 1999, the Board issued a ruling in Mississippi Power &
Light Co. , 328 NLRB No. 146, 1999 WL 551405 (1999), in which it overruled
Big Rivers and held that employees who monitor and oversee electrical
distribution systems are not statutory supervisors under the Act. Thereafter the
Union petitioned the Board anew, seeking specifically to represent the Company's
transmission employees. After a hearing, the Regional Director reversed his
earlier determination, and concluded on the basis of Mississippi Power that the
transmission employees were not statutory supervisors exempted from the
NLRA’s collective bargaining provisions. Despite the 1989 stipulations to the
contrary, the Regional Director also found that the senior systems operators were
subject to representation. The Company's timely request for NLRB review of the
Regional Director's decision was denied and transmission employees subsequently
elected to join the Union.
Because direct judicial review of Board's representation determinations is
unavailable, AFL v. NLRB , 308 U.S. 401, 409-411 (1940), the Company sought
indirect review by refusing to bargain with the Union. The Board's general
counsel responded by bringing an unfair labor practice complaint against the
Company, alleging violations of § 8(a)(1) and (5) of the Act, 29 U.S.C. §
158(a)(1) and (5). On June 14, 2000, the Board granted summary judgment
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against the Company and ordered it to bargain with the Union. In response, the
Company petitioned this court for review of the orders in both the representation
proceeding and the unfair labor practice proceeding. The Board cross-petitioned
for enforcement of its order in the unfair labor practice proceeding. The Union
intervened on behalf of the Board.
II.
Discussion
Public Service first argues that the transmission employees qualify as §
2(11) supervisors because they exercise independent judgment in connection with
the assignment and direction of other employees. The Company also contends
that the Board’s finding that such employees are not supervisors was based on an
erroneous interpretation of §2(11) that is contrary to its plain language. We agree
with the latter contention and need not consider the former.
An individual employed as a "supervisor" is not subject to protection under
the NLRA. 29 U.S.C. §§ 152(3), 157. Section 2(11) defines a 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.
29 U.S.C. § 152(11). Because "this section is framed in the disjunctive, the
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existence of any one of the listed powers, as long as it involves the use of
independent judgment, is sufficient to support a determination of supervisory
status." Meridith Corp. v. NLRB , 679 F.2d 1332, 1335 (10th Cir. 1982).
Section 2(11) thus sets forth a three-part test for determining supervisory
status:
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."
NRLB v. Kentucky River Community Care, Inc ., 121 S.Ct. 1861, 1867 (2001).
In the instant case, relying on Mississippi Power , the Regional Director concluded
that the transmission employees do not exercise independent judgment in regard
to assigning or directing the work of field employees sufficient to warrant a
finding of supervisory status.
Whether or not a particular group of employees sufficiently exercise
independent judgment in connection with one of twelve listed responsibilities is a
question of fact. The Board's factual findings must be upheld if they are
"supported by substantial evidence on the record considered as a whole." 29
U.S.C. § 160(e); see also Four B Corp. v. NLRB , 163 F.3d 1177, 1182 (10th Cir.
1998); Medite of New Mexico, Inc. v. NLRB , 72 F.3d 780, 785 (10th Cir. 1995).
However, because the Board's factual findings were based on the new legal
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interpretation of "independent judgment" articulated in Mississippi Power , we
must first answer the threshold question whether the Board's legal judgment is
permissible under the Chevron standard . Chevron USA, Inc. v. Natural Resource
Defense Council, Inc ., 467 U.S. 837 (1984) , see also Four B. Corp ., 163 F.3d at
1182 (quotations omitted). The Supreme Court has previously noted that
"independent judgment" is an ambiguous term. See Kentucky River 121 S.Ct at
1867, NLRB v. Town & Country Elec., Inc ., 516 U.S. 85, 89-90 (1995). Under
Chevron , the Board's construction of such a provision of the NLRA is therefore
entitled to deference unless the court cannot say that it is a "permissible
construction" of the statute. 467 U.S. at 842-43. Thus, this court must determine
whether the interpretation of independent judgment articulated in Mississippi
Power is reasonable. 4
In Mississippi Power , the Board adopted a categorical distinction between
kinds of independent judgment to determine that the employees in that case were
not supervisors as defined by the Act. The Board acknowledged that the
distribution dispatchers at issue in that case would have been considered
supervisors under Big Rivers . Mississippi Power, 1999 WL 551405 at 9.
4
The Petitioner argues that the Board's legal determination in this case is entitled to
a lesser degree of deference because it has taken inconsistent positions on interpreting §
2(11) and applying it to electrical utility dispatchers. For the reasons set forth below we
need not reach this issue.
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However, citing changes in the workplace “due to increasing technological
innovation,” an “invitation” from the First Circuit, and an incorrect weighing of
factors, the Board concluded that Big Rivers failed to appreciate the nature of
“the type of quasi-professional, quasi-overseer” employee at issue. Id. at 8.
Relying on a line of argument developed in a series of cases dealing with the
status of charge nurses, the Board held that the evidence failed to show “that the
dispatchers’ assignment and direction require the use of supervisory ‘independent
judgment.’” Id. at 11. In its view, “the exercise of judgment pursuant to an
employee’s professional, technical, or experienced special knowledge or expertise
does not translate into supervisory status.” Id. at 8. The Board concluded that the
judgment exercised by the distribution dispatchers related only to the employees’
“own responsibilities, [was] based on their experience and technical expertise,
[and did] not evidence any control over personnel.” Id. at 13.
Since the decision in Mississippi Power, the Board’s reading of
independent judgment has been rejected by the Supreme Court. In NLRB v.
Kentucky River Community Care, 121 S.Ct. 1861 (2001), the Supreme Court
affirmed the 6th Circuit’s refusal to enforce the Board’s bargaining order in a
case having to do with the status of charge nurses. The Board had interpreted
§2(11) to mean that “employees do not use ‘independent judgment’ when they
exercise ‘ordinary professional or technical judgment in directing less-skilled
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employees to deliver services in accordance with employer-specified standards.’”
Id at 1867 (quoting Brief for Petitioner). The court acknowledged that the “term
‘independent judgment’ is ambiguous with respect to the degree of discretion
required for supervisory status...[and it] falls clearly within the Board’s discretion
to determine, within reason, what scope of discretion qualifies.” Id. The Court
also recognized that “the degree of judgment that might ordinarily be required to
conduct a particular task may be reduced below the statutory threshold by detailed
orders and regulations issued by the employer.” Id.
The Court, however, rejected the Board’s argument that “the judgment even
of employees who are permitted by their employer to exercise a sufficient degree
of discretion is not ‘independent judgment’ if it is a particular kind of judgment,
namely, ‘ordinary professional or technical judgment in directing less-skilled
employees to deliver services.’” Id. (quoting Brief for Petitioner) The Court held
that exclusion of “ordinary professional or technical judgment...insert[ed] a
startling categorical exclusion into statutory text that does not suggest its
existence.” Id. “The text, by focusing on the ‘clerical’ or ‘routine’ (as opposed
to ‘independent’) nature of the judgment, introduces the question of degree of
judgment....But the Board’s categorical exclusion turns on factors that have
nothing to do with the degree of discretion an employee exercises.” Id. at 1867-
68. The Court further noted that the Board’s extension of the exclusion to
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“judgment based on greater experience...would virtually eliminate ‘supervisors’
from the Act.” Id. at 1868. Thus, the Board is not permitted to employ the kind
of categorical distinction that was used to determine the non-supervisory status of
transmission employees in this case.
The Union argues that the standard in Mississippi Power is distinguishable
from that used in Kentucky Railroad because it focuses on the application of
“independent judgment” rather than its basis. That is, the Union seeks to draw a
line between the act of directing employees as they go about their tasks and that
of directing the tasks themselves. It argues that supervisory status is established
under Mississippi Power only where the independent judgment is with reference
to the problem of directing employees or carrying out one of the other 11 tasks
enumerated in § 2(11) rather than solving concrete technical problems on which
co-workers might be working. Under such a test, if one employee merely passes
on instructions on how to solve a technical or practical problem, that employee
has not exercised “independent judgment” in connection with “responsible
direction” of “other employees” regardless of the amount of independent
judgment that went into the solution of the actual problem. By contrast, if that
employee exercised independent judgment in individually tailoring those
instructions or otherwise acting to assure a particular co-worker’s effectiveness,
the employee presumably would be acting as a “supervisor.”
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The problem with this argument is that it is not supported by the language
of Mississippi Power itself. In addition to the language cited above, that decision
specifically traces the standard that it applies to the line of charge nurse cases
overturned by Kentucky River. Mississippi Power at 9, citing Providence
Hospital and Alaska Nurses’ Association, 320 NLRB No. 49 (1996). Moreover,
as the Board itself appears to have recognized, the distinction that the Union
urges is one properly applied to the interpretation of what it means “responsibly
to direct” “employees” rather than to the interpretation of “independent
judgment.” See id. at 18-19. Yet, in Mississippi Power the Board specifically
recognized that the employees at issue did assign and direct field employees,
focusing instead on the question of “independent judgment.” Id. at 11 (“The
evidence shows that the distribution dispatchers and the system dispatchers direct
field employees....The evidence, however, fails to show that the dispatchers’
assignment and direction require the use of supervisory ‘independent judgment.’”)
The finding that they did not do so was not a factual finding that such direction
was merely routine or clerical. See id. at 7 ( “although there are factual
differences between this case and Big Rivers,...we find that the differences are
legally insignificant.”) Rather the finding was by necessity based on the very
categorical distinction struck down by the Supreme Court. Indeed, even in its
brief to this court, the Board reiterated this distinction by arguing, “if the normal
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standards of a profession or craft govern a workplace, an experienced or skilled
employee who articulates what action professional norms require does not make
management policy or exercise independent judgment in the statutory sense.”
Brief for Respondent 12.
Admittedly, the language of Mississippi Power is at times less clear than
we might hope. When the Board announces that “even critical judgment by
employees based on their experience, expertise, know-how or formal training and
education does not, without more, constitute the exercise of supervisory
judgment,” Mississippi Power at 8, its use of “without more” merely begs the
question and its frequent use of the conclusory phrase “supervisory judgment”
does not help matters. This ambiguity may reflect the running battle that the
Board has conducted over the years to indirectly limit the impact of Congress’
inclusion of the phrase “responsibly to direct” in Section 2(11) through overly
narrow interpretations of other parts of the statutory text. 5 In any event, our
5
Before 1983, the NLRB consistently held that electrical utility workers similar to
those at issue in this case were not statutory supervisors either because they did not
responsibly direct coworkers, did not employ independent judgment or both. Courts of
appeals refused to enforce these decisions on either ground, concluding that the workers
were statutory supervisors. See Arizona Public Serv. Co. v. NLRB, 433 F.2d 228, 232
(9th Cir. 1971), NLRB v. Detroit Edison Co., 537 F.2d 239, 243 (6th Cir. 1976), Southern
Ind. Gas and Elec. Co. v. NLRB, 657 F.2d 878, 886 (7th Cir. 1981), Monongahela Power
Co., 657 F.2d 608 (4th Cir. 1981). Eventually, the Board bowed to the body of caselaw in
Big Rivers. 266 NLRB 389. Subsequently however, the Board attempted another
collateral attack applying a narrow interpretation of the statutory requirement that a
supervisor have authority “in the interest of the employer.” Northcrest Nursing Home,
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reading of Mississippi Power given the context and its references to the charge
nurse cases places it within the umbrella of Kentucky Rivers. If the Board wishes
to introduce a new standard for interpreting when a person responsibly directs
employees, it should do so forthrightly and explicitly so that it may be “required
to apply in fact the clearly understood legal standards that it enunciates in
principle.” Allentown Mack Sales and Service Inc., v NLRB 522 U.S. 359, 376
(1998).
Because we reject the Board’s interpretation of “independent judgment” as
announced in Mississippi Power and applied in this case, we need not review the
Regional Director’s factual findings. We may not enforce the Board’s order by
applying a standard that the Board did not adopt. Kentucky River Community
Care, 121 S.Ct. at 1871. Hence the Board’s erroneous interpretation of
“independent judgment” precludes us from enforcing its order in this case.
Accordingly we reverse the Board’s entry of summary judgment, vacate its
bargaining order directing the Company to negotiate with a Union bargaining unit
that includes the transmission employees, and deny enforcement. The Board’s
313 NLRB 491 (1993). The Board held that authority was not exercised “in the interest
of the employer,” when “independent judgment [was] exercised incidental to professional
or technical judgment” instead of for “disciplinary or other matters, i.e., in addition to
treatment of patients.” Id at 505. This approach too was ultimately rejected, this time by
the Supreme Court in NLRB v. Health Care & Retirement Corp. of America, 511 US 571
(1994).
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request for remand is also denied.
ORDER REVERSED, ENFORCEMENT DENIED.
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Public Service Co. v. National Labor Relations Board
Court: Court of Appeals for the Tenth Circuit
Date filed: 2001-11-23
Citations: 271 F.3d 1213
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