Northeast utilities v. NLRB

• Court: Court of Appeals for the First Circuit
• Decided: September 20, 1994
• Docket: 94-1006
• Status: Published

Opinion

USCA1 Opinion

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.  

                                         -2-

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.

-3-

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

-6-

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

                                         -7-

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."

                                         -8-

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

-9-

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

-11-

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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