Entergy Persuades 5th Cir. on Power Grid Dispatchers

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By Lawrence E. Dubé

Dec. 8 — Dispatchers who monitor the flow of electricity through a utility company's power grid apparently exercise supervisory authority when they decide how to allocate staff resources to work locations and trouble spots in the system, the U.S. Court of Appeals for the Fifth Circuit held.

The court ruling is the latest chapter in a dispute over the status of the dispatchers that began more than 10 years ago.

Rejecting a National Labor Relations Board decision that the dispatchers are nonsupervisory employees, the court found the board has not shown that Entergy Mississippi Inc. violated federal labor law by excluding the dispatchers from a bargaining unit represented by the International Brotherhood of Electrical Workers.

Judge Edith Brown Clement wrote that NLRB decisions on supervisory status are generally entitled to judicial deference. However, she said the board ignored evidence that Entergy dispatchers make significant decisions about handling power outages and emergencies, and they use independent judgment in prioritizing staff responses to such situations.

The Fifth Circuit repeatedly said it will defer to NLRB findings that are factually supported, but the court warned that “[d]ecisions by the Board that ignore a relevant portion of the record cannot survive substantial evidence review.”

Long-Running Dispute Over Dispatchers

The NLRB held in 2011 the dispatchers were nonsupervisors who should be included in a certified unit of Entergy's Mississippi electrical workers (357 N.L.R.B. No. 178, 192 LRRM 1345 (2011)).

The NLRB's acting general counsel later issued an unfair labor practice complaint against Entergy, which had removed the positions from the IBEW unit. A board panel consisting of Chairman Mark Gaston Pearce and then-Members Brian E. Hayes and Richard F. Griffin found that the company violated the National Labor Relations Act by insisting on the exclusion of the dispatchers, and unilaterally acting to remove them from the bargaining unit (358 N.L.R.B. No. 99, 193 LRRM 1190 (2012)).

Entergy petitioned for review of the unfair labor practice ruling in the U.S. Court of Appeals for the Fifth Circuit, and the appeals court remanded the case to the NLRB after the U.S. Supreme Court held in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (123 DLR AA-1, 6/26/14), that Griffin and two other members were given invalid recess appointments

Court Reviewing Most Recent NLRB Order

Considering the case on remand in October 2014, a board panel consisting of Senate-confirmed members found the board's 2011 ruling was made with a quorum of properly appointed board members (361 N.L.R.B. No. 89, 201 LRRM 1551 (2014) (213 DLR A-11, 11/4/14).

The NLRB granted summary judgment to the NLRB's general counsel on allegations that Entergy had unlawfully removed the dispatcher classifications from its contract with the IBEW locals in violation of Section 8(a)(5) and Section 8(a)(1) of the NLRA.

The board ordered Entergy to return the dispatchers to the bargaining unit and to make them whole for any loss caused by the employer's unilateral action. Entergy again petitioned for review in the Fifth Circuit.

Dispatchers Monitor System, Issue Orders to Field Staff

Entergy's dispatchers monitor the flow of electricity through the company's grid system.

They respond to alarms and are responsible for opening and closing switches in the distribution system to isolate power line segments and to interrupt power flow so field employees can perform maintenance and repairs.

The dispatchers prepare orders detailing the procedure for opening and closing switches, and they are responsible for the issuance of clearance orders advising employees of areas where power has been cut and work may safely be performed.

NLRB Entitled to Deference on Some Findings

Clement said the issue under Section 2(11) of the NLRA, which defines the term “supervisor,” was whether the dispatchers have authority to assign or “responsibly” direct employees, and whether they use independent judgment in doing so.

The court said the statutory terms are ambiguous, but Oakwood Healthcare, Inc., 348 N.L.R.B. 686, 180 LRRM 1257 (2006) (192 DLR AA-1, 10/4/06) provided some support for the NLRB's position that the Entergy dispatchers were nonsupervisory employees.

Under Oakwood, the court said, the party alleging supervisory status bears the burden of proof by a preponderance of the evidence. Clement said the board had substantial evidence to support its findings that the dispatchers did not responsibly direct field employees by assigning them to a time or significant overall duty.

Board ‘Ignored' Dispatchers' Setting of Priorities

However, the court said, “[t]he Board ignored significant portions of the record that show how dispatchers arguably exercise independent judgment when deciding how to allocate Entergy's field workers.”

Citing testimony that dispatchers decide “which trouble to handle first,” the court said Entergy provides some standard operating procedures and listings of available on-call workers, but dispatchers use their discretion in prioritizing responses to industrial customers and individuals with special medical needs during power outages.

“If simultaneous outages of each type occur,” Clement wrote, “there is no simple rule to guide the dispatcher's decision in who to help first.”

Finding the Board ignored “significant evidence” on the supervisory issue, the court remanded the case “for further proceedings on the narrow question of whether the dispatchers exercise independent judgment in assigning field employees to places.”

Judges Fortunato P. Benavides and Stephen A. Higginson joined in the opinion.

G. Phillip Shuler of Chaffe McCall, L.L.P. in New Orleans argued for Entergy Mississippi Inc. Nora Leyland of Sherman, Dunn, Cohen, Leifer & Yellig, P.C., in Washington, argued for IBEW Locals 605 and 985. NLRB attorney Elizabeth A. Heaney in Washington argued for the board.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com