After a 16-year legal battle, the NLRB ruled that dispatchers can be supervisors because they use “independent judgement” when assigning employees.
WASHINGTON, DC—A long-running dispute between the International Brotherhood of Electrical Workers (IBEW) and Entergy Corp. in Mississippi over whether a group dispatchers are supervisors under the National Labor Relations Act may have reached its conclusion last week.
“A unanimous three-member board panel on Thursday said that because the dispatchers organized by an International Brotherhood of Electrical Workers local used independent judgment in assigning field workers to address power outages, they were supervisors under the National Labor Relations Act,” reported Reuters. “The law allows only rank-and-file employees to unionize.”
A Summary. The case dates back to August 2003 when, according to the NLRB, Entergy Mississippi, Inc. (“the Respondent”) “filed a unit clarification petition seeking to exclude the dispatcher job classification from the bargaining unit on the basis that the dispatchers are supervisors under the Act.”
The Acting Regional Director held a hearing and issued a Decision and Order on January 29, 2004, finding the dispatchers not to be supervisors as defined in Section 2(11) of the Act. The Board granted the Respondent’s request for review on April 20, 2004, and on September 30, 2006, remanded the case to the Regional Director for consideration in light of the Board’s issuance of Oakwood Healthcare, Inc., 348 NLRB 686 (2006), and its related cases.
Following a second hearing, the Acting Regional Director issued a Supplemental Decision and Order on February 7, 2007, again finding that the dispatchers were not supervisors. On April 7, 2007, the Board granted the Respondent’s request for review. On December 30, 2011, the Board affirmed the Acting Regional Director’s supplemental decision and found that the Respondent had failed to meet its burden to show that the dispatchers possess the authority to assign or responsibly direct field employees using independent judgment. 357 NLRB 2150 (2011).
Following the NLRB’s decision, Entergy removed the dispatchers from the IBEW bargaining unit, prompting the NLRB’s General Counsel to issue an unfair labor practice.
Entergy then petitioned the U.S. Court of Appeals for the Fifth Circuit to review of the unfair labor practice ruling.
However, since the NLRB had issued the 2011 decision when it did not have a proper quorum, 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 the NLRB’s General Counsel and two other members were given invalid recess appointments, reported BNA.
With the NLRB’s General Counsel and members lawfully in place, the NLRB ruled against Entergy again in 2014.
Entergy then appealed to the Court of Appeals once again and the NLRB also filed a crosspetition for enforcement.
This time, however, the Court took further interest in the merits of Entergy’s original legal arguments.
On December 7, 2015, the court denied the Board’s request for enforcement, holding that the Board ignored significant evidence that arguably supports a finding that dispatchers exercise independent judgment in deciding how to allocate the Respondent’s field employees to repair power outages. 810 F.3d at 297. The court remanded the case to the Board to consider whether that evidence is sufficient to establish that dispatchers “assign” field employees to “places” using “independent judgment” and are therefore supervisors.
The NLRB, in 2017, then took the case up again.
This time, in its analysis, the NLRB stated:
Although the court agreed with the Board that Oakwood Healthcare was the applicable test, it found that the Board had ignored significant relevant evidence arguably showing that dispatchers use independent judgment in assigning field employees to places. 810 F.3d at 296–297. Therefore, the sole question before the Board on remand is whether the evidence underscored by the court establishes that dispatchers use independent judgment in assigning employees to places
Further, the NLRB stated:
Critically, the dispatchers’ decisions regarding outage prioritization and reassigning field employees necessarily result in the dispatchers sending particular field employees to particular places in multiple outage situations. Indeed, it is the dispatchers’ exercise of independent judgment that determines the places to which field employees will be sent. That being the case, the Oakwood Healthcare standard has been met: the dispatchers undisputedly assign employees to places, and these places are selected based on the exercise of independent judgment because dispatchers prioritize outages free from the control of others, prioritization decisions entail discerning and comparing data, and these decisions are not dictated or controlled by detailed instructions. See Oakwood Healthcare, supra, 348 NLRB at 693…
….We conclude, contrary to the Acting Regional Director, that the evidence establishes that the dispatchers are statutory supervisors within the meaning of Section 2(11) because they assign field employees to places using independent judgment.
Read the whole NLRB decision:
NLRB: Dispatchers Are Supervisors on Scribd