Public Service Co. of Colorado v. National Labor Relations Board

405 F.3d 1071
CourtCourt of Appeals for the Tenth Circuit
DecidedApril 26, 2005
DocketNos. 03-9609, 03-9615
StatusPublished
Cited by1 cases

This text of 405 F.3d 1071 (Public Service Co. of Colorado v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Public Service Co. of Colorado v. National Labor Relations Board, 405 F.3d 1071 (10th Cir. 2005).

Opinion

HARTZ, Circuit Judge.

This appeal concerns whether three revenue-protection workers of the Public Service Company of Colorado (“PSC”) are “supervisors” under § 2(11) of the National Labor Relations Act (“NLRA” or “Act”), 29 U.S.C. § 152(11). After the International Brotherhood of Electrical Workers, Local 111 (“Union”) filed a petition seeking an election to determine whether the three workers desired representation by the Union, a hearing officer of the National Labor Relations Board (“NLRB” or “Board”) conducted a hearing, found that the workers were not supervisors or managers, and ordered an election. All three voted for representation and the NLRB certified the Union as their exclusive bargaining representative. PSC, however, refused to bargain with the Union concerning the three workers. The Union filed an unfair-labor-practice charge with the Board, which determined that PSC’s refusal was an unfair labor practice under § 8(a)(1) and (5) of the NLRA, 29 U.S.C. § 158(a)(1) and (5).

PSC seeks review in this court, contending that it is justified in its refusal to bargain because the three workers are “supervisors” and thus not “employees” entitled to engage in collective bargaining under the NLRA. The NLRB cross-petitions for enforcement of its order to bargain. We have jurisdiction to review and enforce NLRB orders under § 10(e) and (f) of the NLRA, 29 U.S.C. § 160(e) and (f). Because the record adequately supports the NLRB’s determination that the three revenue-protection workers do not “hav[e] authority, in the interest of the employer, to ... reward ... other employees, or ... to adjust their grievances[,]” 29 U.S.C. § 152(11), we deny the PSC’s petition and grant the Board’s cross-petition for enforcement of its order.

I. BACKGROUND

PSC, a wholly owned subsidiary of Xcel Energy, is a public utility providing gas and electric services to residential and commercial customers in Colorado. Since 1946 the Union has represented PSC’s Operations, Production and Maintenance (OP & M) collective-bargaining unit. The Union also represents PSC’s meter readers in a separate bargaining unit. Each unit is covered by its own collective-bargaining agreement.

This dispute centers on the status of three workers: one revenue-protection analyst and two revenue-protection investigators. Each receives an annual salary but earns less than some of the bargaining-unit employees who earn hourly wages. They are supervised by Xcel Energy personnel in Minnesota. The revenue-protection workers respond to revenue losses caused by the use of energy for which PSC has not been paid. They determine the reason for the loss (such as equipment problems or customer theft), estimate the lost energy, and process a bonus for the bargaining-unit employee who first reported the problem.

Two collective-bargaining agreements provide bonuses for bargaining-unit employees who first find unauthorized energy diversions. The bonus is equal to 10% of the “final negotiated settlement amount,” R. Vol. II, Joint Ex. 2 at 57, or $10.00, whichever is greater. The collective-bar-[1074]*1074gaming agreements cap tbe bonus at $15,000.00 per revenue loss. If more than one employee is involved in the first finding, the bonus is divided equally.

An employee who discovers an apparent energy diversion enters a report into the company’s computer system. The employee’s identification number (from which one can determine whether the employee belongs to a collective bargaining unit) and the date are included in the report so that the first finder can be correctly identified.

The revenue-protection analyst reviews these reports daily. The computer system indicates whether the apparent diversion of electricity was authorized (which may occur when a customer is engaged in new construction or rewiring) and, if not, whether it has been corrected by resetting, repairing, or replacing the meter. If the diversion has been corrected, the analyst reviews the billing records. Sometimes the computer will have already calculated estimates and billed the account accurately. When there has not been a significant revenue loss, the analyst records a $10 bonus for the first finder if that employee is a bargaining-unit member. When the records show a drop in billing indicating a significant revenue loss, the analyst refers the case to the billing department. The billing department determines whether to add charges to the customer, a process called “prorating the account,” and then communicates its decision to the analyst, who records a bonus equal to the greater of $10 or 10% of what the billing department additionally charged the customer. The analyst’s only discretion in this process is deciding whether the revenue loss is significant enough to refer the account to billing. The employee who reported the loss benefits from the referral only if the billing department ultimately charges the customer more than $100 for the unme-tered service.

If the meter problem has not been corrected, the analyst assigns the case to one of the two revenue-protection investigators. Upon completion of the investigation the analyst receives a report from the investigator. When the investigator requests that the case be referred for prorating, the analyst forwards the report to the billing department. As in the other referred cases, if the billing department charges the customer for the unmetered power, the analyst is informed of the amount of the bill and enters the appropriate bonus for the first finder. In short, when an apparent problem has not been corrected, the analyst serves only a clerical function.

The investigators work both in the field and in the office, analyzing reported cases of revenue loss. To determine whether unmetered usage has actually occurred, an investigator visits the site with a meter-man1 who verifies any theft or equipment malfunction and corrects the problem. The investigator collects and preserves any physical evidence of theft. If the me-terman’s findings correspond with the report of the first finder and that employee is a bargaining-unit member, the investigator notes the employee’s eligibility for a bonus.

The investigator then reviews the account’s billing history in the same manner as the analyst, and estimates the amount of unmetered power using one of several methods taught by PSC supervisors and at training conferences. The preferred, and most common, method is to measure usage for two to four weeks after a meter is operational and then apply the daily average to the unmetered period. When this [1075]*1075future-use method is impracticable, as when a new meter is never installed, the investigators use other methods, including (1) basing the estimate on historical usage; (2) using readings from a similar-sized home or business with the same load; and (3) obtaining amperage readings from the home or business and converting those measurements into daily kilowatt hours. These methods are prioritized by the company.

The investigator may also interview witnesses, such as the customer, the customer’s electrician, or neighbors.

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Bluebook (online)
405 F.3d 1071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-service-co-of-colorado-v-national-labor-relations-board-ca10-2005.