Atlantic City Electric Co v. NLRB ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 20-1504 & 20-1606
______________
ATLANTIC CITY ELECTRIC COMPANY,
Petitioner in No. 20-1504
v.
NATIONAL LABOR RELATIONS BOARD,
Petitioner in No. 20-1606
______________
On Petition for Review and Cross-Application for
Enforcement from the National Labor Relations Board
(No. 04-CA-224253)
______________
Argued: December 15, 2020
______________
Before: GREENAWAY, JR., SHWARTZ, and FUENTES,
Circuit Judges.
(Filed: July 7, 2021)
Michael E. Kenneally [ARGUED]
Jonathan C. Fritts
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Julia S. Sturniolo
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
Counsel for Atlantic City Electric Company
David Casserly [ARGUED]
David Habenstreit
Elizabeth A. Heaney
National Labor Relations Board
1015 Half Street, S.E.
Washington, D.C. 20570
Counsel for National Labor Relations Board
Mark E. Belland
Kevin D. Jarvis [ARGUED]
David F. Watkins Jr.
O’Brien, Belland & Bushinsky, LLC
509 S. Lenola Road, Building 6
Moorestown, NJ 08057
Counsel for International Brotherhood of Electrical
Workers Local 210
2
Lucas R.J. Aubrey
Bart Sheard
Sherman Dunn
900 7th Street, N.W., Suite 1000
Washington, D.C. 20001
Counsel for International Brotherhood of Electrical
Workers, AFL-CIO
______________
OPINION OF THE COURT
______________
FUENTES, Circuit Judge.
Atlantic City Electric Company (the “Company”), a
public utility that provides electricity in southern New Jersey,
seeks our review of a decision by the National Labor Relations
Board (the “Board”) finding that the Company violated
Sections 8(a)(5) and (1) of the National Labor Relations Act
(the “Act”) by refusing to bargain with a unit representing the
Company’s system operators. Because the Board’s
determination is supported by substantial evidence, we will
deny the Company’s petition for review and grant the Board’s
cross-application for enforcement.
I.
The Company operates an electrical system from a
central dispatch in Mays Landing, New Jersey, known as the
3
control room.1 From the control room, sixteen system
operators and fifteen dispatchers manage the Company’s
electrical transmission and facilitate planned and unplanned
field work.2 Outside the control room, the Company deploys
about 300 field employees who maintain and repair the
Company’s equipment.
System operators work with a computer program to
oversee and remotely control the Company’s transmission
system. They prioritize work needs and resources, in
consultation with Company guidelines, both for planned
maintenance as well as for power restoration during outages.
While system operators determine the need for work, field
supervisors select crews to undertake it—though the parties
dispute the extent to which system operators can require that a
crew dispatch to a particular site or remain on site. System
operators also prepare and communicate switching instructions
for field employees to follow when de-energizing equipment
so that maintenance and repair work can be done safely.
The International Brotherhood of Electrical Workers
Local 210 (the “Union”) represents a unit of Company
1
We base this background on the undisputed portions of the
decision that the Board’s Regional Director issued in this case.
2
The Company designates system operators who manage
lower-voltage systems as “system operators” and those who
manage higher-voltage systems as “senior system operators.”
App. 27. Other than the difference in voltage, the two groups
have identical duties. We refer to both groups together as
“system operators.”
4
employees.3 The Union petitioned the Board for an election to
determine whether system operators would join the existing
bargaining unit. The Company opposed the inclusion of
system operators on the basis that they were supervisors within
the meaning of Section 2(11) of the Act.4 If system operators
are supervisors, they are not “employee[s]” under the Act and
are therefore not “entitled to the Act’s protections [or]
includable in a bargaining unit.”5
The parties presented evidence before a Board hearing
officer in February of 2017. Following the hearing, the
Board’s Regional Director issued a decision finding that
system operators were not supervisors and directing the
Company to conduct a self-determination election. In that
election, the system operators voted against joining the
bargaining unit. The following year, the Union filed a second
election petition for system operators, and the parties agreed
that the Board could rely on the record from the February 2017
hearing. Incorporating the reasoning and findings from the
prior decision, an Acting Regional Director directed the
Company to conduct a second election. This time, the system
operators voted to join the bargaining unit, and the Regional
Director certified the Union as their representative.
3
The Company’s dispatchers, who work alongside the system
operators to monitor and prioritize acute service needs for
individual customers, are among those employees represented
by the Union.
4
See 29 U.S.C. § 152(11).
5
Mars Home for Youth v. NLRB, 666 F.3d 850, 853 (3d Cir.
2011) (citing 29 U.S.C. §§ 2(3), 152(3)).
5
The Company petitioned for review of the Regional
Director’s decision. The Board agreed to review the Regional
Director’s decision with respect to whether system operators
have the authority, using independent judgment, (1) to assign
employees to places or (2) responsibly to direct employees. A
three-member panel of the Board, with one member dissenting,
affirmed the Regional Director’s decision and adopted his
factual findings.
The Company refused to bargain, and the Union filed
an unfair-labor-practice charge with the Board. The Board
issued a complaint alleging that the Company’s refusal to
bargain violated Sections 8(a)(5) and (1) of the Act.6 The
Company admitted its refusal to bargain but challenged the
Union’s certification as bargaining agent on the ground that
system operators are supervisors under the Act. The Board
found that the Company’s refusal to bargain violated the Act
and ordered the Company to cease and desist from refusing to
recognize the Union.
The Company timely petitioned this Court for review of
the Board’s decision, and the Board cross-applied for
enforcement of its order. The Union intervened in support of
enforcement.
II.
The Board had jurisdiction over the unfair-labor-
practice proceeding under 29 U.S.C. § 160(a). We have
6
See 29 U.S.C. § 158(a)(5), (a)(1).
6
jurisdiction to review the Board’s decision and order pursuant
to 29 U.S.C. § 160(e) and (f).
“Our ‘review of orders of the Board is highly
deferential.’”7 We “accept the Board’s factual findings and the
reasonable inferences derived from those findings if they are
‘supported by substantial evidence on the record considered as
a whole.’”8 “Where the Board has adopted the Regional
Director’s findings, we perform our substantial evidence
review of the Regional Director’s findings.”9 Substantial
evidence “means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”10 “The
Board’s legal determinations are subject to plenary review, but
‘with due deference to the Board’s expertise in labor
matters.’”11 We have recognized that “determinations
7
Coral Harbor Rehab. and Nursing Ctr. v. NLRB, 945 F.3d
763, 767 (3d Cir. 2019) (quoting Trimm Assocs., Inc. v. NLRB,
351 F.3d 99, 102 (3d Cir. 2003)).
8
MCPC, Inc. v. NLRB, 813 F.3d 475, 482 (3d Cir. 2016)
(quoting 29 U.S.C. § 160(f)).
9
NLRB v. New Vista Nursing & Rehab., 870 F.3d 113, 122 (3d
Cir. 2017).
10
Mars Home, 666 F.3d at 853 (quotation marks omitted)
(quoting Citizens Publ’g & Printing Co. v. NLRB, 263 F.3d
224, 232 (3d Cir. 2001)).
11
Id. (quoting NLRB v. St. George Warehouse, Inc., 645 F.3d
666, 671 (3d Cir. 2011)).
7
respecting supervisor status are particularly suited to the
Board’s expertise.”12
III.
A. Standard of Proof
The Company first contends that both the Board and the
Regional Director held it to an improperly heightened standard
of proof. The Company agrees that, as the party asserting
supervisor status, it bears the burden of proving supervisory
authority by a preponderance of the evidence.13 The Regional
Director’s decision correctly recited that standard and found
that the Company had not satisfied it, and the Board affirmed.
The Company nevertheless objects to: (1) the Board’s
and Regional Director’s invocation of the Board’s
longstanding principle that the proponent of supervisor status
fails to meet its burden when the evidence “is in conflict or
otherwise inconclusive,” which the Company says imposes a
species of the summary-judgment standard;14 and (2) the Board
majority’s use of the words “clear” and “unclear” to describe
aspects of the record, which the Company reads as imposing a
12
Id. (quotation marks and citation omitted).
13
See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711-
12 (2001); In re Oakwood Healthcare, Inc., 348 N.L.R.B. 686,
694 (2006).
14
App. 5 n.3 (citing Phelps Cmty. Med. Ctr., 295 N.L.R.B. 486,
490 (1989)), 21.
8
clear-and-convincing standard.15 The Board responds that we
lack jurisdiction under Section 10(e) of the Act to consider
these arguments because the Company failed to raise them
before the Board.16 We agree.
Beginning with the Company’s first argument, the
closest the Company came to raising this issue before the
Board was a broad objection to the “evidentiary principles” and
“unduly restrictive approach” that the Regional Director
applied.17 In the final pages of the Company’s briefing before
the Board, it argued that the Regional Director’s decision
“reveals the Board’s increasing reliance on doctrines and
evidentiary principles regarding Section 2(11) authority that
are irreconcilable with the Act, which preclude a finding of
supervisor status even when the record contains dispositive
evidence of Section 2(11) authority.”18 The briefing then
block-quotes nearly two full paragraphs of the Regional
Director’s decision reciting eight different legal standards
applicable in supervisor cases. In the middle of this list is the
15
App. 5 n.3.
16
See 29 U.S.C. § 160(e) (“No objection that has not been
urged before the Board . . . shall be considered by the court,
unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances.”); Woelke &
Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982)
(“[T]he Court of Appeals lacks jurisdiction to review
objections that were not urged before the Board . . . .”).
17
A.R. 623-24, 703-04.
18
A.R. 623, 703.
9
principle that “[w]here the evidence is in conflict or otherwise
inconclusive on particular indicia of supervisory authority, the
Board will find that supervisory status has not been
established.”19 The briefing then argues that “Congress did not
include any of the above qualifications in the definition of
supervisor status,” and urges the Board to hold that the quoted
rules “are inconsistent with Section 2(11), on its face, and . . .
[to] abandon those principles and overrule those decisions that
have articulated and applied them.”20
This all-purpose challenge to what the Company
described to the Board as “an array of doctrines” does not
sufficiently raise the instant standard-of-proof argument to
preserve it for our review.21 “In order to meet the requirements
of Section 10(e), an objection must be specific enough to place
the agency on notice of the party’s objections.”22 The
Company’s only reference to the now objected-to “in conflict”
principle, buried in a block quotation among seven other rules
and advancing the nebulous assertion that all eight doctrines
are collectively “inconsistent with Section 2(11),” is barely
more than a generalized exception to the Regional Director’s
entire statement of the law.23 Even if we read these two pages
19
A.R. 623 (quoting App. 21), 703 (quoting App. 21).
20
A.R. 623-24, 704.
21
A.R. 593, 669.
22
Int’l Brotherhood Elec. Workers v. NLRB, 973 F.3d 451, 460
(5th Cir. 2020) (“Entergy IV”).
23
See Marshall Field & Co. v. NLRB, 318 U.S. 253, 255-56
(1943) (holding that “general objection[s]” do not “afford[] the
10
as a specific challenge to the “in conflict” principle, the
Company now objects to it on different grounds.24 The
Company’s earlier objection, based on different reasons rooted
in a different provision of the Act, could not have afforded the
Board “adequate notice of the basis for the objection” now
asserted.25
Board opportunity to consider on the merits questions to be
urged upon review of its order”).
24
Compare Company Br. 23, 25-27, 30 (arguing that the “in
conflict” principle imposes a heightened summary-judgment-
like standard inconsistent with the preponderance standard
mandated by Section 10(c) of the Act, see 29 U.S.C. § 160(c))
with A.R. 622-24, 702-04 (arguing that the eight quoted
principles are inconsistent with the definition of supervisor
status located in Section 2(11) of the Act, see 29 U.S.C.
§ 152(11)).
25
NLRB v. FedEx Freight, Inc., 832 F.3d 432, 437 (3d Cir.
2016) (quotation marks and citation omitted). The Company’s
reliance on this Court’s decision in FedEx Freight is
unavailing. In that case, we found an objection preserved
where the petition before the Board included a footnote raising
the objection “largely for the reasons cited in” a Board
member’s earlier dissenting opinion. Id. at 437-38. A
concurrence in the Board’s decision on review
“acknowledge[d]” the objection, which, we explained,
“indicate[d] this footnote provided sufficient notice” to the
Board. Id. at 438. Here, the Company’s briefing before the
Board similarly invoked “the views expressed by former
Chairman Miscimarra in Buchanan Marine and other cases”—
but in support of an entirely separate objection that the
Company has since abandoned. A.R. 622, 702-03. Indeed, the
11
We likewise find forfeited the Company’s second
standard-of-proof objection to the Board’s observations that
the record lacked “clear evidence” on a particular indicium of
supervisor status and was elsewhere “unclear.”26 The
Company did not make this objection before the Board nor did
it seek the Board’s reconsideration on this or any basis and
offers no explanation for its failure to do so.27
arguably incorporated reasoning does not take issue with the
“in conflict” principle at all, but instead proposes an alternative
three-factor test for supervisor status. See Buchanan Marine,
L.P., 363 N.L.R.B. No. 58, at *4 (Dec. 2, 2015) (Miscimarra,
dissenting); Chi LakeWood Health, 365 N.L.R.B. No. 10, at *1
(Dec. 28, 2016) (Miscimarra, dissenting). And, unlike in
FedEx Freight, the Board’s decision here lacks any
“acknowledg[ment]” indicating that the Board had notice of
this objection. See FedEx Freight, 832 F.3d at 438.
26
App. 5 n.3.
27
See Woelke, 456 U.S. at 666 (holding that a party’s failure to
“petition for reconsideration or rehearing” of the Board’s
reasoning “prevents consideration of the question by the
courts”); NLRB v. Konig, 79 F.3d 354, 360 (3d Cir. 1996)
(“[Petitioner’s] failure to raise the argument, and certainly its
failure to file a petition for reconsideration, deprives this court
of jurisdiction to address this question under section 10(e) of
the NLRA.”).
12
Section 10(e)’s “exhaustion requirement is
jurisdictional.”28 Because the Company did not raise its
standard-of-proof objections before the Board, and because the
Company does not assert any “extraordinary circumstances”
that would excuse that failure, we lack jurisdiction to consider
those objections.29 Of course, in reviewing the merits of the
Board’s determination that the Company’s system operators
are not supervisors, we take the preponderance standard “to
mean what [it] say[s], and [we] conduct substantial-evidence
review on that basis.”30 But we will not take up the Company’s
invitation to treat the Board’s weighing of the evidence as a
preliminary legal issue requiring plenary rather than deferential
28
1621 Route 22 W. Operating Co. v. NLRB, 825 F.3d 128,
139 (3d Cir. 2016).
29
29 U.S.C. § 160(e). We also lack jurisdiction to consider the
Company’s objection to the Regional Director’s statement that
“[t]he Board has an obligation not to construe the statutory
language too broadly because the individual found to be a
supervisor is denied the employee rights that are protected
under the Act,” App. 21, based on the Supreme Court’s
decision in Encino Motorcars, LLC v. Navarro, 138 S. Ct.
1134, 1142 (2018). The Company failed to raise this argument
or cite Encino before the Board (in briefing submitted after the
Encino decision) and does not defend its failure to do so.
30
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
376-77 (1998).
13
review where the Board was not first afforded the opportunity
to consider the objection.31
B. Substantial Evidence
To determine whether an individual is a supervisor
under Section 2(11) of the Act, we apply a “three-part test.”32
Employees are statutory supervisors if (1) they
hold the authority to engage in any 1 of the 12
listed supervisory functions [in Section 2(11)];
(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.33
Only the first two prongs are disputed here. The Company
asserts that system operators are supervisors because they use
independent judgment to exercise two statutory indicia of
supervisory authority: (1) they assign other employees, and (2)
they responsibly direct other employees.34
31
See FedEx Freight, 832 F.3d at 449-50 (Jordan, J.,
concurring); Edward St. Daycare Ctr., Inc. v. NLRB, 189 F.3d
40, 44, 52 (1st Cir. 1999).
32
New Vista, 870 F.3d at 117.
33
Ky. River, 532 U.S. at 713 (internal quotation marks and
citation omitted).
34
See 29 U.S.C. § 152(11).
14
The Board majority concluded that system operators
possessed neither authority. “Whether someone is a supervisor
is a question of fact, and thus [the Board’s determination] will
be upheld if it [is] supported by substantial evidence.”35 We
apply the Board’s interpretations of the terms “assign,”
“responsibly direct,” and “independent judgment,” which are
reasonable and consistent with the Act.36
1. Assignment
Assignment includes “the act of designating an
employee to a place (such as a location, department, or wing),
[or] appointing an employee to a time (such as a shift or
overtime period).”37 “[T]he decision or effective
recommendation to affect one of these [assignments] . . . can
be a supervisory function.”38 The Company argues that system
operators (a) assign field employees to places based on their
prioritization of work, which results in crews being dispatched
to job sites, and (b) assign field employees to times based on
their role in determining when work is cancelled and
rescheduled and when work requiring overtime pay may be
necessary. Neither argument is persuasive.
35
Mars Home, 666 F.3d at 853.
36
See id. at 854 n.2, 855 n.3.
37
Oakwood Healthcare, 348 N.L.R.B. at 689.
38
Id.
15
a. Assignment to Places
The record supports the Board’s and Regional
Director’s findings that system operators prioritize Company
resources but do not assign individual field employees to
places. System operators determine the need for work at a
given location, then they or the Company’s dispatchers request
that a field supervisor send a crew to that location. The
Company argues that the fact that system operators’
prioritization decisions have downstream effects on where
field employees end up requires a finding that they assign field
employees to places and that the opposite conclusion is
inconsistent with the Board’s decision in Entergy Mississippi,
Inc. (“Entergy III”).39 We disagree.
In Entergy III, the Board held that transmission and
distribution dispatchers at a Mississippi electric utility
company were supervisors because they assigned field
employees to places using independent judgment, relying in
part on the dispatchers’ exercise of discretion in prioritizing
resources during outages.40 Here, the Board majority
distinguished Entergy III on the ground that, in contrast to the
Mississippi employer, the Company “failed to meet its burden
of proving that the System Operators possess the authority to
assign . . . employees within the meaning of Section 2(11),”
then explained the Company’s evidentiary shortcomings.41
39
367 N.L.R.B. No. 109 (Mar. 21, 2019).
40
Id. at *4-5.
41
App. 5 & n.3.
16
We agree with the Board that Entergy III does not control the
outcome in this case.
First, Entergy III does not provide a square holding on
the issue of assignment-to-place authority. In the Entergy
cases, the Board assumed the dispatchers could assign
employees to places—which the union did not challenge—and
its decisions instead turned on the issue of independent
judgment.42 The Board clarified that Entergy III should not be
read to hold that “prioritization of outages by itself establishes
the dispatchers’ supervisory authority,” since the “allocation of
resources and prioritization of outages are not supervisory
indicia set forth in Sec[tion] 2(11).”43 Rather, the Board’s
42
See Entergy Miss., Inc., 357 N.L.R.B. 2150, 2156 (2011)
(“Entergy I”) (“Even assuming [dispatchers’] temporary
assignment [of employees] to a place of work constitutes
assignment . . . the record does not establish that the dispatchers
assign . . . using independent judgment.”); Entergy Miss., Inc.
v. NLRB, 810 F.3d 287, 298 (5th Cir. 2015) (“Entergy II”)
(vacating and remanding Entergy I solely on independent
judgment issue); Entergy III, 367 N.L.R.B. No. 109, at *5 (on
remand, finding supervisory status because “[1] the dispatchers
undisputedly assign employees to places, and [2] these places
are selected based on the exercise of independent judgment”
(emphasis added)); Entergy IV, 973 F.3d at 460-62 (affirming
Entergy III but expressing concern that the Board failed
meaningfully to engage with the scope of the dispatchers’
purported assignment authority, noting the union’s forfeiture
of that argument).
43
Entergy III, 367 N.L.R.B. No. 109, at *5 n.7 (internal
quotation marks omitted).
17
consideration of the dispatchers’ resource-prioritization
discretion supported only its independent-judgment finding.44
Accordingly, we do not read Entergy III to require the Board
to find assignment authority wherever a purported supervisor
prioritizes resources during outages, as the Board explicitly
stated that it was not so holding.45
Second, the record supports the Board’s conclusion here
that the system operators cannot assign field employees to
44
See id.
45
We disagree with the Company’s assertion at oral argument
that our distinguishing Entergy III on this basis would violate
the principle that “a reviewing court, in dealing with a
determination or judgment which an administrative agency
alone is authorized to make, must judge the propriety of such
action solely by the grounds invoked by the agency.” SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947). We uphold the
Board’s order on the ground that the Company failed to
produce sufficient evidence that system operators possess
supervisory authority—the precise ground on which the Board
based its decision and distinguished Entergy III. Our rejection
of the Company’s characterization of Entergy III as finding
assignment authority based on analogous facts merely
reinforces our agreement with the Board majority that a
different record here warrants a different outcome. The
Chenery doctrine is therefore inapplicable. Cf. Slaughter v.
NLRB, 794 F.2d 120, 128 (3d Cir. 1986).
18
places.46 The parties’ primary factual dispute concerns the
extent to which system operators can require—rather than
simply request—that crews dispatch to a particular location.
The Board majority determined that the Company failed to
meet its burden on this point, reasoning as follows:
While some Employer witnesses testified that
System Operators have the authority to prioritize
jobs, Senior System Operator Jim Luciani’s
testimony disputed the assertion that System
Operators have the authority to command
Dispatchers, Field Supervisors, and Work
Coordinators to dispatch employees to a specific
location or call them back, apart from providing
input as to which locations may be of higher
priority. Rather, it would appear from his
testimony that the Dispatchers, Field
Supervisors, and Work Coordinators are tasked
with handling both the regular dispatch of crews
and work assignments as well as dispatch in the
event of regular or multiple outages.47
The Board also adopted the Regional Director’s factual
determinations, which included a square finding that “it is the
46
See Entergy IV, 973 F.3d at 458 n.5 (“[T]here is no
categorical rule that all dispatchers must have the same
supervisory status.”).
47
App. 5 n.3.
19
Field Supervisor who assigns employees to [their] tasks, and
the System Operators do not have the authority to do so.”48
Substantial evidence supports these determinations.
Luciani testified that he lacked the authority to direct a field
supervisor to send a crew to a location, stating that such
authority is “above [his] level” and that at most he could “ask
really nicely.”49 Two management witnesses—Michael
Sullivan, a vice president for the Company’s parent
corporation, and Jay Davis, the system operators’ supervisor—
likewise acknowledged field supervisors’ intervening
responsibility for selecting crews for dispatch. Both the Board
and the Regional Director considered evidence that system
operators have the authority to cancel previously scheduled
work and reasonably concluded that such evidence did not
establish that system operators had the power to assign or
48
App. 31. The Regional Director’s discussion elsewhere of
system operators’ “authority to direct Field Supervisors to
assign crews” only on occasions where “there is a
disagreement as to whether a field crew should be assigned,”
does not undermine this square finding, particularly in light of
his observation that the record did not contain clear evidence
of “how often or in what circumstances this has occurred.”
App. 27. On the contrary, the Regional Director repeatedly
found that the authority to assign field employees to jobs
resides with field supervisors, and that field supervisors can
refuse system operators’ requests. The Board majority echoed
this finding that the record lacked evidence of an occasion on
which a system operator’s recommendation to make an
assignment was followed.
49
A.R. 233-34.
20
reassign those employees to places, particularly when weighed
against Luciani’s testimony that he lacked that authority.
The Company argues that the Board ignored Luciani’s
responses to hypothetical questions about whether he can
direct a field employee to report to Company priorities during
an emergency; to one question he responded, “[s]ure, I can tell
him can you go to the hospital next,” and to the other he
explained that he “may tell them to go.”50 The Company also
marshals conclusory testimony from Sullivan and Davis that
system operators have the authority to assign a crew or to direct
a field supervisor to assign a crew. Applying deferential
substantial-evidence review, we cannot conclude that these
hypotheticals and conclusory statements undermine the
Board’s decision in light of other record evidence, including
Luciani’s testimony that he lacks the authority to assign or
select workers for jobs, that he can only “provide input” into
such decisions, and that other Company employees—namely,
field supervisors and work coordinators—assign work for the
field.51
The Company also objects to the Board’s reasoning that
the record lacked “clear evidence of a specific occasion when
a System Operator held over crews, assigned them to a job, or
made a recommendation to do so that was then followed.”52
50
A.R. 225, 240-41.
51
A.R. 230, 239-40; see Golden Crest Healthcare Ctr., 348
N.L.R.B. 727, 731 (2006) (“[P]urely conclusory evidence is
not sufficient to establish supervisory status.”).
52
App. 5 n.3.
21
The Company correctly observes that the statutory supervisor
designation turns on the existence of supervisory authority—
not the frequency of its exercise.53 However, in NLRB v. New
Vista Nursing & Rehabilitation, we drew a clear distinction
between cases in which there are few examples of the exercise
of supervisory authority—which does not undercut the
existence of that authority—and cases in which there are zero
examples—which does.54 We explained that, in the former
category of cases, “whether the employees exercise their
supervisory authority only a few times (or even just one time)”
is insufficient to disprove supervisor status.55 By contrast, in
cases where “‘the record [does] not reveal any instances’” of
the exercise of supervisory authority, that authority could be
“merely ‘a speculative possibility, which absent
demonstration, is simply ‘paper power.’’”56
53
See 29 U.S.C. § 152(11) (defining supervisor as “any
individual having authority . . .”); NLRB v. Prime Energy Ltd.
P’ship, 224 F.3d 206, 210 (3d Cir. 2000) (“[O]nce the
existence of supervisory authority is established, the degree or
frequency of its exercise is of little consequence.” (alteration
in original; quotation marks and citation omitted)).
54
870 F.3d 113, 131-33 (3d Cir. 2017).
55
Id. at 132-33.
56
Id. at 131-32 (emphasis in original) (first quoting NLRB v.
Attleboro Assocs., Ltd., 176 F.3d 154, 165 (3d Cir. 1999); then
quoting Beverly Enters.-Mass., Inc. v. NLRB, 165 F.3d 960,
964 (D.C. Cir. 1999)).
22
The Board majority’s reasoning that the record lacked
evidence of any occasion on which a system operator exercised
his purported authority to assign employees to a place and
construal of the absence of such evidence against the party
asserting supervisor status was therefore permissible.57 The
cases on which the Company relies are all of the former
category or are otherwise inapposite.58
Because substantial evidence supports the Board’s
conclusion that system operators lack the authority to assign
employees to a place under Section 2(11), we need not reach
the question of whether they exercise independent judgment.59
57
See Beverly Enters.-Mass., 165 F.3d at 961 (“While the
exercise of supervisory authority is not always necessary to
establish that authority is possessed, the repeated failure to
exercise putative authority in circumstances where such
exercise would be appropriate can be evidence that the
authority is more imagined than real.”).
58
See, e.g., New Vista, 870 F.3d at 134 (holding that the Board
applied the wrong legal standard where it “rel[ied] heavily on
the fact that the [workers] did not frequently exercise their
alleged supervisory power”); Prime Energy, 224 F.3d at 210(“The mere fact that the regional director found only one
instance where [the purported supervisor exercised the
authority to discipline] is hardly a reasonable basis to conclude
that the authority was lacking.”).
59
See NLRB v. NSTAR Elec. Co., 798 F.3d 1, 21 (1st Cir. 2015)
(“[I]t is only when a worker performs a listed supervisor
function that we then must determine whether its exercise
requires the use of ‘independent judgment.’”).
23
b. Assignment to Times
The Company also asserts that system operators can
assign employees to a time, again relying on the relationship
between system operators’ prioritization of projects and the
assignment of field employees to those projects via the
intervening decisions of field supervisors. The Regional
Director found that system operators’ determinations about
resource allocation can affect “how long field employees are at
a particular jobsite,” including in ways that would constitute
overtime.60 However, system operators do not schedule shifts
or assign overtime, which is the purview of field supervisors,
and they “cannot require field employees to stay to finish
work.”61 In affirming the Regional Director’s determination
that system operators do not possess supervisory assignment
authority, the Board majority observed that there was no
evidence of an occasion on which a system operator “held over
crews.”62
Substantial evidence supports the Board’s and Regional
Director’s findings, including Luciani’s testimony that he
cannot instruct crews to work overtime nor direct a field
supervisor to send a replacement crew. The Company relies
on management testimony that is both conclusory and
contradicted by Luciani, which is insufficient to justify remand
under substantial-evidence review. The Company’s other
60
App. 26.
61
App. 28.
62
App. 5 n.3.
24
evidence supports the undisputed assertion that system
operators can cancel work. But, as we have already explained,
the conclusion that the downstream effects of system
operators’ prioritization decisions on field employees’
schedules do not alone establish Section 2(11) assignment
authority is both supported by the record and consistent with
the Board’s decisions in other cases.63
Because the Regional Director’s determination that
system operators cannot assign field employees to times is
supported by substantial evidence, we do not address the issue
of independent judgment.64
2. Responsible Direction
For oversight of other employees to constitute
responsible direction, “the person directing and performing the
oversight of the employee must be accountable for the
performance of the task by the other, such that some adverse
63
See NSTAR, 798 F.3d at 15-16 (affirming finding that
purported supervisors lacked the authority to assign to a time
where they held only the authority to sequence work and could
“request, but [not] require, that field employees stay past the
end of their shifts to finish a job”); Entergy I, 357 N.L.R.B. at
2156-57 (finding no assignment-to-time authority where
witness “summarily testified that dispatchers can require field
employees to remain on the job and work overtime until
released, but he failed to particularize his testimony, such as by
describing actual incidents”), aff’d in relevant part, Entergy II,
810 F.3d at 298.
64
See supra n.59.
25
consequence may befall the one providing the oversight if the
tasks performed by the employee are not performed
properly.”65 “The putative supervisor must be at risk of
suffering adverse consequences for the actual performance of
others, not his own performance in overseeing others.”66
System operators guide field employees in their
performance of de-energizing equipment by preparing
switching instructions, based on guidance from a manual, and
confirming the steps to field employees over the phone. Once
the field employee performs the steps, he “tags” the equipment
to indicate that it has been de-energized.67 System operators
do not monitor the switching process firsthand; instead, on-site
crew leaders oversee field employees’ performance of the
steps.
The Regional Director determined that system operators
do not responsibly direct field employees’ switching
performance because, while system operators “are held
accountable for their own conduct in failing to communicate
properly with the field employees,” there is “no evidence that
the System Operators are held accountable for the field
employees’ performance or that they suffer adverse
consequences if the field employees perform poorly.”68
65
Mars Home, 666 F.3d at 854 (quotation marks omitted)
(quoting Oakwood Healthcare, 348 N.L.R.B. at 691-92).
66
Id.
67
A.R. 127, 184.
68
App. 28, 32.
26
Substantial evidence supports this conclusion, and the
Company’s three primary evidentiary arguments are
insufficient to show the accountability necessary for
responsible direction.
The Company first points to an incident in which a field
crew timed out of a location and a system operator failed to
request that a replacement crew be dispatched, for which the
system operator received a “verbal censure.”69 But this
incident did not involve any mistake by a field employee and,
indeed, Davis testified that the system operator received a
censure because he “did not follow up with getting another
crew to complete that work.”70 The evidence therefore
supports the Regional Director’s determination that system
operators are evaluated “on their own performance,” which
does not support a finding of responsible direction.71
69
App. 28; A.R. 190.
70
A.R. 189.
71
App. 32; see Mars Home, 666 F.3d at 854 (affirming finding
of no responsible direction where purported supervisors were
“disciplined for their own failings”); NSTAR, 798 F.3d at 18
(affirming finding that purported supervisor did not
responsibly direct field employees where he was held
accountable “for how he did his own work and not for how the
field employee did his”); Entergy II, 810 F.3d at 296
(“[S]ubstantial evidence supports the Board’s determination
that dispatchers are accountable only for their own mistakes[,
a]nd under Oakwood, this is sufficient to show that dispatchers
do not ‘responsibly direct’ field employees.”).
27
A second incident involved a field employee who
discovered an equipment failure and, after troubleshooting,
proceeded with the switching process without contacting the
system operator. The incident resulted in a change to the
switching instructions to include a step requiring additional
equipment readings. This example lacks the prospect of
“actual accountability” required for responsible direction, as
there is no evidence, including in the incident report and in
Davis’s testimony, of any consequences for system operators
other than coaching on the revised instructions.72
Third, the Company relies on evidence that system
operators’ performance evaluations account for a
companywide goal of fewer than twenty-five permit-and-tag
(“P&T”) errors in the switching process—an overall
performance standard that affects the unit collectively. The
evaluation forms show that system operators have a team
safety goal of “[l]ess than 25 regional P&T incidents” as well
as an individual goal of “no incidents due to System Operator
Error.”73 One evaluation form shows that the team P&T goal
was not met, but there is no indication that the system operator
was disciplined in any way for the performance of a field
employee under his direction. Davis testified only summarily
that “if the field . . . is not performing well, the system
operators take a hit on their evaluations.”74 The inclusion of a
72
Golden Crest, 348 N.L.R.B. at 731 (requiring, for
responsible direction, “evidence of actual or prospective
consequences to . . . terms and conditions of employment”).
73
A.R. 521.
74
A.R. 186.
28
team goal accounting for other employees’ performances does
not establish that system operators in fact face the prospect of
adverse consequences, as is required for responsible
direction.75 Substantial evidence therefore supports the
Regional Director’s conclusion that system operators do not
responsibly direct field employees.76
75
See NSTAR, 798 F.3d at 19 (affirming finding that employer
failed to show that purported supervisors’ bonuses, which
reflected “the manner in which they have managed projects in
the field[,] . . . suffice[d] to make [their] direction of field
employees into ‘responsible’ direction” (internal quotation
marks omitted)). For this reason, the Regional Director’s
arguably erroneous statement that field employees’
“performance standard of fewer than 25 errors . . . does not
apply to System Operators” does not undermine his ultimate
finding that “there is no evidence that System Operators are
held accountable for those errors.” App. 32 (emphasis added).
Remand on this factual finding alone “would be an idle and
useless formality.” NLRB v. Wyman-Gordon Co., 394 U.S.
759, 766 n.6 (1969).
76
The Company also repurposes its assignment claim to argue
that system operators’ prioritization of field needs, such as
when there are multiple outages, constitutes responsible
direction. The Company relies on W. Penn Power Co. v.
NLRB, 337 F.2d 993 (3d Cir. 1964), which predated the
Board’s Oakwood Healthcare decision providing the operative
interpretation of “responsibly to direct” and which relied
heavily on the purported supervisors’ job description, a factor
that is no longer of controlling importance under Oakwood.
See Oakwood Healthcare, 348 N.L.R.B. at 690 n.24 (“[J]ob
titles and descriptions prepared by employers are not
29
Even assuming system operators responsibly directed
field employees’ performance of switching steps, substantial
evidence supports the Board’s conclusion that the Company
failed to show that “writing switching instructions constitutes
independent judgment,” since “these instructions are guided by
a manual and are ordered by safety concerns.”77 An individual
exercises independent judgment “when he acts or recommends
action ‘free of the control of others and form[s] an opinion or
evaluation by discerning and comparing data.’”78 “[A]
judgment is not independent if it is dictated or controlled by
detailed instructions” that do not “allow for discretionary
choices.”79 Luciani testified that Company manuals
circumscribe switching steps for de-energizing equipment, and
system operators effectively translate those steps into an
instruction format. The Company produces no evidence
undermining this testimony. Because these manuals dictate the
controlling; rather the Board looks to the authority actually
possessed and the work actually performed by the alleged
supervisor.”); see also NSTAR, 798 F.3d at 11 n.8 (rejecting
employer’s reliance on pre-Oakwood cases). The Company’s
argument that dispatchers’ job descriptions state that they are
under the direction of system operators suffers from the same
failing, particularly in light of evidence that system operators
lack actual authority to direct dispatchers regarding field
employees’ assignments.
77
App. 5 n.3.
78
Mars Home, 666 F.3d at 854 (alteration in original) (quoting
Oakwood Healthcare, 348 N.L.R.B. at 692-93).
79
Oakwood Healthcare, 348 N.L.R.B. at 693.
30
ordering of switching steps, the Board permissibly concluded
that system operators’ purported direction of field employees
in this task does not require independent judgment.
IV.
We have considered the Company’s remaining
arguments and find them without merit. Because the Board’s
determination that the system operators are not supervisors
within the meaning of the Act is supported by substantial
evidence, we will deny the Company’s petition for review and
grant the Board’s cross-application for enforcement.
31