Northeast Utilities Service Corp. v. National Labor Relations Board , 35 F.3d 621 ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1006
NORTHEAST UTILITIES SERVICE CORPORATION,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 455, AFL-CIO-CLC,
Intervenor
ON PETITION FOR REVIEW AND CROSS-APPLICATION
FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
Before
Selya and Cyr, Circuit Judges,
and Zobel,* District Judge.
Gregory B. Nokes, with whom Kevin D. O'Leary, William H.
Narwold, and Cummings & Lockwood were on brief for petitioner.
Margaret Gaines Neigus, Supervisory Attorney, National Labor
Relations Board, with whom Frederick L. Feinstein, General
Counsel, Linda Sher, Acting Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, Peter D. Winkler,
Rosemary Pye, National Labor Relations Board, Marshall T.
Moriarty, and Maskele and Moriarty were on brief for respondent.
September 20, 1994
* Of the District of Massachusetts, sitting by designation.
ZOBEL, District Judge. Northeast Utilities Service
ZOBEL, District Judge.
Corporation (the "Company") petitions for review of a final order
of the National Labor Relations Board (the "Board"). The Board
cross-applies for enforcement of that order,1 pursuant to
sections 10(e) and (f) of the National Labor Relations Act (the
"Act"), 29 U.S.C.A. 160(e),(f)(West 1973). The only issue
before this Court is whether the Board had substantial record
evidence to conclude that certain of the Company's employees,
known as Pool Coordinators ("PCs") and Senior Pool Coordinators
("SPCs"), are neither "supervisors" within section 2(11) of the
Act nor managerial employees and therefore may constitute a
collective bargaining unit.
I.
International Brotherhood of Electrical Workers, Local
455 (the "IBEW"), filed a petition with the Board seeking to be
certified as exclusive collective bargaining representative of
the PCs and SPCs. The Company opposed the petition on the ground
that these employees were exempt from the Act because of their
supervisory and managerial status. Based on evidence presented
at preelection hearings, the regional director found that neither
PCs nor SPCs were supervisors or managers. Accordingly, she
directed an election. The Company filed a timely "Request for
Review" which the Board rejected as raising no substantial issues
warranting reconsideration.
1 The Board's November 24, 1993, Decision and Order is reported
at 313 N.L.R.B. No. 65 (Nov. 24, 1993). It rests on findings
issued April 8, 1993.
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The IBEW prevailed in the election held May 11, 1993,
whereupon the regional director certified it as the collective
bargaining representative of the PCs and SPCs. The Company
declined the IBEW's subsequent request to bargain collectively;
it still insisted that the PCs and SPCs were supervisors and
managers exempt from the proposed bargaining unit. On June 17,
1993, the IBEW filed an unfair labor practice charge. The
Board's general counsel then issued a complaint and amended
complaint on the charge that the Company refused to bargain in
violation of section 8(a)(1) and (5) of the Act, 29 U.S.C.A.
158(a)(1),(5)(West 1973). He subsequently moved to transfer the
proceedings to the Board and for summary judgment. On November
24, 1993, the Board granted the motion, as it found no new
evidence or special circumstances that would cause it to
reexamine its representation decision. It therefore concluded
that the Company's refusal to bargain violated the Act.
II.
In the late 1960s New England's electric utilities
created the New England Power Pool ("NEPOOL") to centralize
control of the region's power supply. NEPOOL is an association
of roughly one hundred utility companies in the six-state region,
which in turn operate approximately three hundred power
generating plants. NEPOOL is divided into three divisions,
NEPOOL billing, which manages transactions within the system;
NEPLAN, which forecasts future power needs; and NEPEX, which
controls daily power generation and transmission.
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The Company is responsible for staffing each division
pursuant to a service contract with NEPOOL. All support
functions are provided by the Company as well, including
personnel management, accounting and purchasing. Vacation
schedules, exempt payment plans, hiring, evaluation and firing
practices are uniformly prescribed by the Company throughout
NEPOOL's divisions. Thus, every employee of a NEPOOL operating
division is an employee of the Company.
NEPEX in Holyoke, Massachusetts, is the master dispatch
and control center for bulk power throughout New England. It
regulates the day-to-day production, sale and purchase of power
by each of the approximately three hundred NEPOOL member
utilities. Because of the complexity of this task, NEPEX does
not communicate directly with each of the component power plants,
but instead relays instructions through four "satellite"
operations. The satellites are regionally organized: Rhode
Island, Eastern Massachusetts and Vermont are within the "REMVEC"
satellite; Connecticut and Western Massachusetts within the
"CONVEX" satellite; New Hampshire and Maine each has its own
satellite organization. CONVEX employees are also employees of
the Company but the other satellites are independently staffed.
III.
The employees at issue work in the NEPEX control room,
the nerve center of all NEPEX operations. The PCs and SPCs
(collectively "Coordinators") are responsible for buying and
selling power among the member utilities as economically as
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possible while avoiding power outages. They decide which plants
will operate at what times and at what power levels. They set
and implement maintenance schedules for both generating plants
and transmission elements. If control room equipment should need
repair or maintenance, they may order those services from the
plant's engineers, in accordance with priorities set in one of
fourteen "Operating Procedures" promulgated by NEPOOL to guide
the Coordinators in their several responsibilities.
The control room is in constant operation; the
Coordinators work in teams of three -- one SPC and two PCs -- in
twelve-hour shifts. During "business hours," from 8:30 a.m. to
4:00 p.m. on weekdays, a supervisor and assistant supervisor of
control room operations also work at the plant; at all other
times they are on call. They audit and formally evaluate the
Coordinators' overall performance, sometimes with input from the
SPCs. During nonbusiness hours, the PCs and SPC are the only
employees on duty.
The PCs alternate each shift between two positions, the
"generation/load" PC and the "transmission/security" PC. The
generation/load PC buys and sells "contract" and "economy" power
from all member and nonmember plants, and reserves enough unused
capacity to ensure continued operation in the event that the
largest single generator shuts down.
The transmission/security PC monitors the New England
bulk power system, prepares for power coverage in the event of a
plant shutdown, and has final authority to approve or disapprove
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transmission outage applications. This employee also has the
authority to dispatch power uneconomically if such dispatch
contributes to overall system reliability. Further, the
transmission/security PC monitors the system to prevent
cascading, that is, to ensure that no single transmission element
in the system overloads any other transmission element.
Ultimately, the security PC may direct limited power outages by
reducing voltage or "shedding load" to prevent a more widespread
blackout.
The SPC's duties are similar to those of the PCs', but
rather than looking at the system's minute-to-minute
requirements, the SPC forecasts the system's needs from several
hours to one day in advance. Witnesses for the Company testified
the SPC is "in charge" of the shift. As the more experienced
employee in the control room, the SPC may attempt to moderate
disputes between the generation/load and transmission/security
PCs but there was no evidence that the SPC gave orders or
instructions. On the contrary, the record suggests that the SPC
is too busy with his/her own duties to oversee the PCs' work.
Except for informal discussions with the control room supervisor,
the SPC does not evaluate PCs' performance and is not responsible
for discipline, termination of employment, or for approving time
sheets or leave. During nonbusiness hours, if a PC cannot report
to work, the SPC contacts a shift replacement from a preexisting
"spares" list.
Although NEPEX PCs and SPCs are paid at a higher salary
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grade than satellite operators, they have no authority to hire,
fire, evaluate or promote satellite employees. Should a
satellite operator refuse to comply with NEPEX instructions, the
PC or SPC would not have the power to discipline or recommend
discipline. Instead, the NEPEX coordinator would relate the
incident to NEPEX upper management who would contact upper
management at the satellite and attempt to resolve the matter.
Both PCs and SPCs have substantial authority with
respect to NEPEX's day-to-day functions, but even in this respect
their discretion is limited by the directives in fourteen NEPEX
Operating Procedures. The Procedures define the broad parameters
to be followed as the PCs and SPCs conduct the dispatch.
However, not every facet of every procedure is dictated by the
Operating Procedures and Coordinators are often expected to rely
upon their own knowledge, skills and experience to make the
system work.
IV.
Supervisors are excluded from the Act's definition of
"employees" and hence may not be included in a bargaining unit
designated by the Board. 29 U.S.C.A. 152(3), 159(b) (West
1973). Section 2(11) of the Act, 29 U.S.C. 152(11), defines a
"supervisor" as
[A]ny 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
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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 statute is read in the disjunctive, "with the existence of
any one of the statutory powers sufficient to confer supervisory
status regardless of the frequency of its exercise." Maine
Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 360; NLRB v.
Magnesium Casting Co., 427 F.2d 114, 117 (1st Cir. 1970), aff'd
on other grounds, 401 U.S. 137 (1971).
We are especially deferential to the Board's
determination of supervisory status because we recognize the
Board's competence and experience in applying the Act to the
complexities of industrial life. NLRB v. Erie Resistor Corp.,
373 U.S. 221, 236 (1963); Maine Yankee, 624 F.2d at 360.
Further, the "infinite and subtle gradations of authority"
existing in the workplace entitle the Board to wide latitude in
determining which employees fall within the definition of
"supervisor." Marine Eng'rs Beneficial Ass'n v. Interlake S.S.
Co., 370 U.S. 173, 179 n.6 (1962); Goldies, Inc. v. NLRB, 628
F.2d 706, 710 (1st Cir. 1980). Our deference is not unlimited,
however; we will only affirm the Board's decision if it is
supported by "substantial evidence," drawn from the totality of
the record. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951); Maine Yankee, 624 F.2d at 360.
The Company concedes that the PCs and SPCs have no
authority to "hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees."
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Instead, it contends that the Coordinators are supervisors
because they "responsibly . . . direct" CONVEX satellite
employees and NEPEX engineers, and the exercise of that authority
requires the use of independent judgment.
PCs and SPCs are unquestionably highly trained
employees who use independent judgment to make and implement
complex technical decisions that affect the entire region's power
supply. They do not, however, "responsibly . . . direct" other
employees within the meaning of the statute. "To be responsible
is to be answerable for the discharge of a duty or obligation."
Maine Yankee, 624 F.2d at 361 (quoting Ohio Power Co. v. NLRB,
176 F.2d 385, 387 (6th Cir.), cert. denied, 338 U.S. 899 (1949)).
The uncontroverted evidence established that the PCs and SPCs are
not answerable for the conduct of satellite operators. The NEPEX
coordinators are permitted merely to report CONVEX employee
failures to NEPEX upper management, and it is upper management at
the satellite that is ultimately responsible for the actions of
CONVEX operators. By the same token, although PCs and SPCs use
independent judgment within the guidelines of the Operating
Procedures to determine whether and when to direct engineers to
service control room equipment, there is no evidence that they
answer for engineering or equipment failures.
The Company maintains that the SPCs, as the senior
employees in the control room during nonbusiness hours, also
supervise PCs. However, its assertion that SPCs were in "charge
of the shift" in the control room supervisor's absence, is also
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not supported by the evidence. Nothing in the record suggests
that they had ultimate responsibility for the plant's performance
during nonbusiness hours, in fact the record notes that a
supervisor is always on call. Moreover, SPCs do not evaluate
PCs' performance, although the control room supervisor may
request SPCs' input. SPCs do not have authority to hire or to
assign work; only as a matter of routine may they fill an open
shift from a preexisting list. If the SPCs moderate disputes,
the outcome is not ultimately their responsibility. Finally, and
most importantly, SPCs are simply not held accountable if a PC
disobeys a direct order, misquotes a price or causes a blackout.
Petitioner relies heavily on Maine Yankee, 624 F.2d at
347, in which we reversed the Board's determination that a power
plant's Shift Operating Supervisors ("SOSs"), who had duties
similar to those of the Coordinators here, were not supervisors
under the Act. Its reliance is misplaced. In that case we found
that the SOSs did responsibly direct other employees because
"should anything go wrong with respect to the plant's electric
power output, '[the SOS] is the one that would have to answer
why.'" Id. at 361. The Coordinators in this case may direct
CONVEX operators, but they are not responsible for what the
satellite employees actually do. Further, in Maine Yankee, the
Board ignored or depreciated evidence that the SOSs used
independent judgment in their direction of other employees. Here
the Board implicitly recognized that the Coordinators are highly
trained employees with substantial discretion, within the
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Operating Procedures, to instruct other employees. The Board,
however, refused to take the further step of concluding that PCs
and SPCs were responsible for other employees' actions, and in
that, we conclude, it was correct.
V.
The Company also argues that PCs and SPCs are
managerial employees and therefore exempt. The Act itself does
not explicitly exclude managers, but they have been excluded by
judicial interpretation because managers' interests are so
aligned with the interests of the employer that managers cannot
be deemed employees for the purposes of the Act. NLRB v. Bell
Aerospace Co., 416 U.S. 267, 283-89 (1974). Managers are defined
as those who "'formulate and effectuate management policies by
expressing and making operative the decisions of their
employer.'" NLRB v. Health Care & Retirement Corp., 114 S. Ct.
1778, 1782 (1994) (quoting Bell Aerospace, 416 U.S. at 288);
Boston Univ. Chapter, Am. Ass'n of Univ. Professors v. NLRB, 835
F.2d 399, 400 n.3 (1st Cir. 1987). Generally, employees may be
excluded from a bargaining unit on the basis of managerial status
only if they "represent[] management interests by taking or
recommending discretionary actions that effectively control or
implement employer policy." NLRB v. Yeshiva University, 444 U.S.
672, 683 (1980).
The Company's argument is unpersuasive given the
paucity of evidence tending to show managerial powers in the PCs
or SPCs. Management policy at NEPEX is embodied in the Operating
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Procedures formulated by the Operations Committee. There is no
evidence that PCs or SPCs have a role in the creation or
implementation of the Operating Procedures. Certainly the
Coordinators may sometimes depart from the Procedures, but they
do not have the authority to issue new ones. Finally, at the
core of the managerial question is the alignment of workers' and
employer's interests. Other than the common goal of keeping the
lights on, the record shows no such congruence of interests
between the Company and the Coordinators sufficient to warrant
the latter's exemption from the Act.
VI.
It is the function of this Court to review the Board's
decision in accordance with the "substantial evidence" test. It
is the Board's "primary function to determine those who as a
practical matter fall within the statutory definition of a
'supervisor.'" Interlake S.S. Co., 370 U.S. at 179 n.6. The
Board undoubtedly had substantial evidence on the record as a
whole to conclude that the PCs and SPCs did not meet the current
definition of "supervisors." However, when the Board and the
courts set upon the task of defining a supervisor for the
purposes of the statute, neither contemplated the type of quasi-
professional, quasi-overseer employee encountered in this case
and others in the public utilities setting. It may profit the
Board to reexamine its views in this field.
The Company's petition for review is denied and the
Board's application for enforcement of its order is granted.
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Affirmed.
Affirmed
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