Entergy Mississippi, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 2014

361 N.L.R.B. 892 (N.L.R.B. 2014)

892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Entergy Mississippi, Inc. and International Brother-
hood of Electrical Workers, Local 605, AFL–
CIO-CLC and International Brotherhood of
Electrical Workers, Local 985, AFL–CIO-CLC
Cases 15–CA–017213, 15–CA–018131, and 15–
CA–018136
October 31, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On August 14, 2012, the National Labor Relations
Board issued a Decision and Order in this proceeding,
which is reported at 358 NLRB 907. Thereafter, the Re-
spondent filed a petition for review in the United States
Court of Appeals for the Fifth Circuit, and the General
Counsel filed a cross-application for enforcement.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals remanded this case for further proceedings
consistent with the Supreme Court’s decision.
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Board’s unit determination in
the underlying representation proceeding. The Board in
that proceeding denied the Respondent’s unit clarifica-
tion petition, finding that the Respondent’s transmission
and distribution electric utility dispatchers (dispatchers)
were not statutory supervisors. The Board clarified the
unit specifically to provide that these positions be includ-
ed.1
Pursuant to a charge and an amended charge filed on
November 21, 2003, and February 27, 2004, respective-
ly, a charge filed on October 20, 2006, and a charge filed
on November 3, 2006, by International Brotherhood of
Electrical Workers, Local 605, AFL–CIO–CLC and In-
ternational Brotherhood of Electrical Workers, Local
985, AFL–CIO–CLC (the Unions), the then-Acting Gen-
eral Counsel2 issued the Order consolidating cases and
consolidated complaint in this proceeding on March 30,
2012. The consolidated complaint alleges that the Re-
spondent has violated Section 8(a)(5) and (1) of the Act
by (a) insisting, as a condition of reaching any collective-
1 357 NLRB 2150 (2011).
2 Although some actions in this proceeding were taken by the then-
Acting General Counsel, this case is being currently being litigated by
the General Counsel. Therefore, all further references are to the Gen-
eral Counsel.
bargaining agreement, that the Unions agree to remove
all references to the dispatchers from such an agreement
and to describe the dispatchers’ terms and conditions of
employment in an agreement other than a collective-
bargaining agreement, thereby bargaining to impasse
over a permissive subject of bargaining; and (b) failing
and refusing to recognize and bargain with the Union as
the exclusive collective-bargaining representative of the
dispatchers. The alleged violations occurred following
the Respondent’s filing of a unit clarification petition on
August 11, 2003, in Case 15–UC–149.3 The Respondent
filed an answer admitting in part and denying in part the
allegations in the consolidated complaint, and asserting
affirmative defenses.
On May 2, 2012, the General Counsel filed a Motion
for Summary Judgment and a Memorandum in Support
of Motion for Summary Judgment. On May 3, 2012, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response
and the General Counsel filed a brief in reply to the Re-
spondent’s response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent argues that summary judgment is not
appropriate because the Board lacked a quorum when it
issued the decision in the underlying representation pro-
ceeding on December 30, 2011. Specifically, the Re-
spondent claims that Member Becker’s March 2010 re-
cess appointment expired on December 17, 2011, when
the Senate commenced pro forma sessions, leaving the
Board with only two members. We reject this defense.
The Constitution provides that a recess appointment ex-
pires at the end of the Senate’s “next session.” U.S.
Const. Art II, Section 2, clause 3. Therefore, Member
Becker’s term, which began during the second session of
the 111th Congress, expired at the end of the first session
of the 112th Congress. By virtue of the Twentieth
Amendment, a session of Congress begins at noon on
January 3 unless Congress passes a law specifying a dif-
ferent date. U.S. Constitution, 20th Amendment, Section
2. The prior session ends at the same time unless Con-
gress passes a concurrent resolution of adjournment
specifying a different adjournment date. Because Con-
gress passed no such resolution Member Becker’s term
ended by operation of law at noon on January 3, 2012.
The fact that the Senate was engaged in pro forma ses-
3 Official notice is taken of the “record” in the representation pro-
ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68
and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).
361 NLRB No. 89

ENTERGY MISSISSIPPI, INC. 893
sions in the last few weeks of the first session is irrele-
vant to the question of when the first session of the 112th
Congress ended and the second session began. Accord-
ingly, Member Becker lawfully participated in the reso-
lution of the underlying proceeding which was decided
by a valid Board quorum.4
The Respondent admits its refusal to bargain, but ar-
gues that this refusal is not unlawful on the ground that
the Board erred in clarifying the unit to include the dis-
patchers, whom the Respondent contends are supervisors
within the meaning of Section 2(11) of the Act. The Re-
spondent further contends that its refusal to bargain
pending the Board’s decision on review was in response
to the court’s decision in Entergy Gulf States v. NLRB,
253 F.3d 203 (5th Cir. 2001), and cannot be deemed un-
lawful.5 Thus, the Respondent claims it was “duty-
bound to follow” the court’s finding that the dispatchers
were supervisors as the law of the circuit in which this
case arises.
We disagree. Contrary to the Respondent, it was not
entitled to make unilateral changes based on the Fifth
Circuit’s opinion in a different case. “[D]eciding who is
a supervisor is a highly fact-intensive inquiry. So ‘rules
designating certain classes of jobs as always or never
supervisory are generally inappropriate.’” Frenchtown
Acquisition Co. v. NLRB, 683 F.3d 298, 305 fn. 2 (6th
Cir. 2012), quoting Jochims v. NLRB, 480 F.3d 1161,
1168 (D.C. Cir. 2007). In the underlying proceeding
here the Board noted the court’s holding in Entergy Gulf
States, but explained that subsequent to that decision the
Board issued Oakwood Healthcare, 348 NLRB 686
(2006), in which it clarified the meaning of the terms
“assign,” “responsibly to direct,” and “independent
judgment” under Section 2(11) of the Act. The Board
4 NLRB v. Noel Canning, supra.
5 The Respondent further argues that pursuant to the doctrine of
laches and other equitable principles, the Respondent should not be
penalized with additional damages because of the Board’s delay in
ruling on the Respondent’s unit clarification petition. This defense has
no merit. The Supreme Court and the Board have long held that the
defense of laches does not lie against the Board as an agency of the
United States Government. NLRB v. J.H. Rutter-Rex Mfg. Co., 396
U.S. 258 (1969) (considerable delay by Board in issuing backpay speci-
fication does not warrant a reduction in the backpay award even if the
delay contravenes the APA); NLRB v. Quinn Restaurant Corp., 14 F.3d
811, 817 (2d Cir. 1994) (“Requiring the employer to make employees
whole for lost wages and to rescind unlawful work rules requires dis-
crete acts that are not an inappropriate imposition on the employer,
even given the passage of so much time.”). Further, the delay in this
case, while regrettable, was largely due to the evolving state of the law
respecting the standard for evaluating supervisory status under Sec.
2(11) of the Act. See Kendall College of Art & Design, 288 NLRB
1205, 1212 (1988) (Board adopted judge’s finding that “unexpected
delay” in resolving managerial issue through unit clarification petition
did not excuse employer’s obligation to bargain).
then applied the Oakwood standard to the facts before it
and concluded that the dispatchers in the instant case are
not statutory supervisors. 357 NLRB 2150, 2153–2154.
See, e.g., Frenchtown Acquisition, supra (rejecting ar-
gument that prior cases required finding nurses to be
supervisors, and deferring to Board’s definition adopted
in Oakwood Healthcare).
Moreover, the Board has long held that while a unit
clarification petition is pending a respondent acts at its
peril in removing positions from the unit and refusing to
bargain with the employees’ representative. See, e.g.,
Bay State Gas Co., 253 NLRB 538, 539 (1980) (while
unit clarification issue was pending, respondent acted at
its peril in not consulting with union concerning job
change and elimination of position); Pilot Freight Carri-
ers, 221 NLRB 1026, 1028 (1975), revd. on other
grounds 558 F.2d 205 (4th Cir 1977), cert. denied 434
U.S. 1011 (1978) (respondent acted at its peril in termi-
nating pension contributions for the LPNs during the
pendency of the unit clarification petition). Therefore,
the Respondent’s erroneous reliance on Entergy Gulf
States does not insulate it from the allegations here.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).6 Accord-
ingly, we grant the Motion for Summary Judgment. On
the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration with an office and place of business in Jackson,
Mississippi (the Respondent’s facility), and has been
engaged in the purchase, production, transmission, and
retail sale of electricity.
In conducting its operations, annually, the Respondent
derives gross revenues in excess of $250,000, and pur-
chases and receives at its Jackson, Mississippi facility
goods valued in excess of $5000 directly from points
outside the State of Mississippi.
6 Member Johnson did not participate in the underlying unit clarifi-
cation proceeding and expresses no opinion whether it was correctly
decided. He agrees that the Respondent has not presented any new
matters that are properly litigable in this unfair labor practice case.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 894
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
In addition, we find that International Brotherhood of
Electrical Workers, Local 605, AFL–CIO–CLC and In-
ternational Brotherhood of Electrical Workers, Local
985, AFL–CIO–CLC (the Unions), are labor organiza-
tions within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The unit
The following employees of the Respondent constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:

Included: Permanent electrical employees engaged in
operation, meter reading, maintenance, construction,
and storeroom activities employed on a monthly and
hourly basis, in the following classifications: Lineman
First class, Senior Lineman, Lineman Trainee, Crane
Operator, Senior Cable Splicer, Cable Splicer, Cable
Splicer Trainee, Head Tree Trimmer, Tree Trimmer, T
& E Mechanic, T & E Trainee, Senior SC&M Mechan-
ic, SC&M Mechanic, SM&M Trainee, Relayman, Re-
lay Trainee, System Relayman, System Dispatcher,
Substation Operator A, Assistant System Dispatcher,
System Communication Man, Communication Man,
Communication Trainee, System Meterman, Electric
Meterman, Apprentice Electric Meterman, Polyphase
Meter Installer—Jackson, Apprentice Polyphase Meter
Installer—Jackson, Utilityman, Serviceman, Trouble-
man, Apprentice Serviceman—Outside Jackson, Cus-
tomer Service Dispatcher, Service Dispatcher—
Greenville, Distribution Dispatcher—Jackson, Assis-
tant Distribution Dispatcher, Distribution Operator,
Carpenter—Painter, Helper, Laborer, Bus Operator—
Jackson, Special Meter Reader—Jackson, Meter Read-
er, Storekeeper; Excluded: superintendents, managers,
clerical workers, all other classifications not listed
above, guards and supervisors as defined by the Act.

In 1939, the Board certified the Unions as the exclu-
sive collective-bargaining representative of the unit.
This recognition has been embodied in successive collec-
tive-bargaining agreements.
B. The Unit Clarification Proceeding
On August 11, 2003, the Respondent filed the petition
in Case 15–UC–149, seeking to exclude the dispatcher
job classification from the existing unit on the basis that
the dispatchers are supervisors under the Act. On Janu-
ary 29, 2004, the Acting Regional Director denied the
Respondent’s unit clarification petition. On April 20,
2004, the Board granted the Respondent’s request for
review of the Regional Director’s decision. On Septem-
ber 30, 2006, the Board remanded the case to the Re-
gional Director for consideration in light of its issuance
of Oakwood Healthcare, Inc., 348 NLRB 686 (2006),
and its related issues. Thereafter, on February 7, 2007,
the Acting Regional Director issued a Supplemental De-
cision and Order finding that the dispatchers were not
statutory supervisors. On December 30, 2011, the Board
issued its Decision on Review, applying Oakwood
Healthcare and clarifying the unit specifically to provide
that the dispatcher positions be included.7
C. Refusal to Bargain
About November 6, 2003, the Respondent insisted
that, as a condition of reaching any collective-bargaining
agreement, the Unions agree to remove all references to
the dispatchers from the collective-bargaining agreement
and to describe the dispatchers’ terms and conditions of
employment in an agreement other than the collective-
bargaining agreement. About November 6, 2003, in
support of these conditions, the Respondent bargained to
impasse. The complaint alleges, and the Respondent
admits, that these conditions are not mandatory subjects
for the purposes of collective bargaining.
About September 18, 2006, the Unions requested and
the Respondent refused to bargain collectively about the
dispatchers’ terms and conditions of employment. On
November 1, 2006, the Respondent removed the follow-
ing dispatcher positions from the unit:

System Dispatcher
Substation Operator A
Assistant System Dispatcher \
Customer Service Dispatcher
Service Dispatcher—Greenville
Distribution Dispatcher—Jackson
Assistant Distribution Dispatcher
Distribution Operator

The Respondent removed these positions from the unit
without the consent of the Unions and without the dis-
patchers having indicated that they no longer wish to be
represented by the Unions. At all material times the Un-
ions have represented to the Respondent that they con-
tinue to represent the dispatchers as part of the unit.
Since about November 1, 2006, the Respondent has
failed and refused to recognize the Unions as the exclu-
7 357 NLRB 2150, 2158.

ENTERGY MISSISSIPPI, INC. 895
sive collective-bargaining representative of the dispatch-
ers.
CONCLUSION OF LAW
By insisting about November 6, 2003, that, as a condi-
tion of reaching any collective-bargaining agreement, the
Unions agree to remove all references to the dispatchers
from the collective-bargaining agreement and to describe
the dispatchers’ terms and conditions of employment in
an agreement other than the collective-bargaining agree-
ment; and by failing and refusing since November 1,
2006, to recognize and bargain with the Unions as the
exclusive collective-bargaining representatives of the
dispatchers, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to recognize and bargain on request with the Un-
ions and, if an understanding is reached, to embody the
understanding in a signed agreement. Specifically, hav-
ing found that the Respondent violated Section 8(a)(5)
and (1) by unilaterally removing the dispatchers from the
collective-bargaining unit, we shall order the Respondent
to (1) return the dispatchers to the unit and, upon request,
to recognize and bargain with the Unions as the exclu-
sive representative of the unit with respect to rates of
pay, wages, hours, and other terms and conditions of
employment; and (2) rescind any changes to the terms
and conditions of employment of the dispatchers imple-
mented since November 1, 2006, until such time as the
parties have bargained in good faith to an agreement or
impasse on the terms and conditions of employment of
the dispatchers. We shall also order the Respondent to
make whole the dispatchers for any loss of earnings and
other benefits they may have suffered as a result of the
Respondent’s unlawful actions, in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons, 283 NLRB 1173 (1987), plus daily
compound interest as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010).
In addition, we shall order the Respondent to make all
contractually-required contributions to the benefit funds
that it failed to make, if any, including any additional
amounts due the funds on behalf of the unit employees in
accordance with Merryweather Optical Co., 240 NLRB
1213, 1216 fn. 7 (1970). Further, the Respondent shall
reimburse unit employees for any expenses ensuing from
its failure to make any required contributions, as set forth
in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in Ogle
Protection Service, supra, with interest as prescribed in
New Horizons for the Retarded, supra, and Kentucky
River Medical Center, supra.8
Finally we shall order the Respondent to compensate
the dispatchers for the adverse tax consequences, if any,
of receiving lump-sum amounts and to file a report with
the Social Security Administration allocating the
amounts to the appropriate calendar quarters for each
employee. Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014).
ORDER
The National Labor Relations Board orders that the
Respondent, Entergy Mississippi, Inc., Jackson, Missis-
sippi, its officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Insisting to impasse upon a matter that does not
constitute a mandatory subject of bargaining under Sec-
tion 8(d) of the National Labor Relations Act.
(b) Excluding dispatchers from the bargaining unit
represented by International Brotherhood of Electrical
Workers, Local 605, AFL–CIO–CLC and International
Brotherhood of Electrical Workers, Local 985, AFL–
CIO–CLC without the consent of the Unions.
(c) Failing and refusing to recognize and bargain with
the Unions as the exclusive collective-bargaining repre-
sentative of the dispatchers.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Return the dispatchers to the unit and, on request,
bargain with the Unions as their exclusive collective-
bargaining representatives on terms and conditions of
employment, and, if an understanding is reached, em-
body the understanding in a signed agreement.
(b) Upon request from the Unions, rescind the unilat-
eral changes to the terms and conditions of employment
of the dispatchers implemented since November 1, 2006,
until such time as the parties have bargained in good
faith to an agreement or impasse on the terms and condi-
tions of employment of the dispatchers.
8 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the Respondent’s delin-
quent contributions during the period of the delinquency, the Respond-
ent will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
(c) Make the dispatchers whole for any loss of earn-
ings and other benefits they may have suffered as a result
of the Respondent’s unlawful actions, with interest, as set
forth in the remedy section of this decision.
(d) Make all contractually-required benefit fund con-
tributions, if any, that have not been made to the fringe
benefit funds on behalf of the dispatchers and reimburse
the dispatchers for any expenses ensuing from its failure
to make the required payments, with interest, as set forth
in the remedy section of this decision.
(e) Compensate the dispatchers for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file a report with the Social Security Admin-
istration allocating the backpay awards to the appropriate
calendar quarters for each employee.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(g) Within 14 days after service by the Region, post at
its Jackson, Mississippi facility copies of the attached
notice marked “Appendix.”9 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since November 6, 2003.
9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 15 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT insist to impasse upon a matter that does
not constitute a mandatory subject of bargaining as de-
fined by the National Labor Relations Act.
WE WILL NOT exclude dispatchers from the bargaining
unit represented by International Brotherhood of Electri-
cal Workers, Local 605, AFL–CIO and International
Brotherhood of Electrical Workers, Local 985, AFL–
CIO–CLC.
WE WILL NOT fail and refuse to recognize and bargain
with the Unions as the exclusive collective-bargaining
representative of the dispatchers with respect to rates of
pay, wages, hours, and other terms and conditions of
employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL return the dispatchers to the unit and WE
WILL, on request, bargain with the Unions as their exclu-
sive collective-bargaining representative.
WE WILL, on request from the Unions, rescind any
changes to the terms and conditions of employment of
the dispatchers implemented since November 1, 2006.
WE WILL make the dispatchers whole for any losses
suffered as a result of our unlawful actions.
WE WILL make all contractually-required benefit fund
contributions, if any, that have not been made to the
fringe benefit funds on behalf of the dispatchers and WE
WILL reimburse the dispatchers for any expenses ensuing

ENTERGY MISSISSIPPI, INC. 897
from our failure to make the required payments, with
interest.
WE WILL compensate the dispatchers for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards and WE WILL file a report with the Social Security
Administration allocating the backpay awards to the ap-
propriate calendar quarters for each employee.
ENTERGY MISSISSIPPI, INC.

The Board’s decision can be found at
www.nlrb.gov/case/15–CA–017213 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.