Entergy Mississippi, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 2019

367 NLRB No. 109 (N.L.R.B. 2019)

367 NLRB No. 109
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Entergy Mississippi, Inc. and International Brother-
hood of Electrical Workers, Local 605 and 985,
AFL–CIO. Cases 15–CA–017213, 15–CA–
018131, and 15–CA–018136
March 21, 2019
DECISION ON REMAND AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
The issue presented in this case, on remand from the
United States Court of Appeals for the Fifth Circuit, is
whether the Respondent’s dispatchers possess the author-
ity to assign field employees to places using independent
judgment within the meaning of Oakwood Healthcare,
Inc., 348 NLRB 686 (2006), and accordingly are super-
visors within the meaning of Section 2(11) of the Act.
The court, in remanding the case, held that the Board had
ignored significant evidence that arguably shows that
dispatchers possess this supervisory authority.1 In light
of the court’s decision, which we accept as the law of the
case, we find that the evidence highlighted by the court
establishes that the dispatchers assign field employees to
places using independent judgment, and, accordingly, are
statutory supervisors properly excluded from the bargain-
ing unit of the Respondent’s employees represented by
the International Brotherhood of Electrical Workers, Lo-
cals 605 and 985 (the Unions).
Background
On August 11, 2003, the Respondent filed a unit clari-
fication petition seeking to exclude the dispatcher job
classification from the bargaining unit on the basis that
the dispatchers are supervisors under the Act. The Act-
ing Regional Director held a hearing and issued a Deci-
sion and Order on January 29, 2004, finding the dis-
patchers 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 Di-
rector issued a Supplemental Decision and Order on Feb-
ruary 7, 2007, again finding that the dispatchers were not
supervisors. On April 7, 2007, the Board granted the

1 Entergy Mississippi, Inc. v. NLRB, 810 F.3d 287, 297 (5th Cir.
2015).
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).
The Respondent subsequently refused to bargain with
the Unions with respect to the dispatchers, and the Un-
ions filed the charges in this case. On October 31, 2014,
the Board granted the Acting General Counsel’s Motion
for Summary Judgment, finding that the Respondent
failed to recognize and bargain with the Unions as the
exclusive collective-bargaining representative of the dis-
patchers. 361 NLRB 892 (2014). The Respondent filed
a petition for review in the United States Court of Ap-
peals for the Fifth Circuit, and the Board filed a cross-
petition for enforcement.
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 re-
pair power outages. 810 F.3d at 297. The court remand-
ed the case to the Board to consider whether that evi-
dence is sufficient to establish that dispatchers “assign”
field employees to “places” using “independent judg-
ment” and are therefore supervisors. Id. at 298.
On February 7, 2017, the Board notified the parties
that it had decided to accept the court’s remand and in-
vited them to file statements of position with respect to
the issues raised by the remand. The Unions and the
Respondent filed position statements.2
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Applying the law of the case, the Board has carefully
considered the record3 and the parties’ position state-
ments in light of the court’s remand. Taking the evi-
dence identified by the court into account, we reverse our
prior decision and conclude that the dispatchers are su-
pervisors within the meaning of Section 2(11) because
they assign field employees to places using independent
judgment. We accordingly grant the Respondent’s peti-
tion to clarify the existing bargaining unit to exclude the
dispatchers.

2 The General Counsel did not file a statement of position.
3 Official notice is taken of the “record” in Case 15–UC–149 as de-
fined in the Board’s Rules and Regulations, Secs. 102.68 and
102.69(g). See, e.g., Frontier Hotel, 265 NLRB 343 (1982).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Facts4
The Respondent is an electric utility company that
transmits and distributes electrical power throughout
Mississippi. The Unions have long represented the Re-
spondent’s electrical employees, including the transmis-
sion and distribution dispatchers (“dispatchers”) at issue
in this proceeding. Dispatchers perform switching opera-
tions to alter the flow of electricity through the Respond-
ent’s transmission and distribution systems. Dispatchers
regularly perform planned, contingency, and emergency
switching to allow for repairing a section of line and to
restore electricity. In contingency and emergency
switching scenarios, which are not planned in advance
but rather must be quickly addressed by dispatchers
when unexpected outages occur, dispatchers dictate each
step of switching to a field employee5 who performs the
repair operation in the field. Emergency switching is
often performed in situations that require immediate ac-
tion to prevent the loss of life or property.
When there are multiple unplanned outages, dispatch-
ers must decide which outage to handle first, and they
consider a range of discretionary factors in making these
decisions on how to allocate the Respondent’s field em-
ployees to perform repairs. See 810 F.3d at 299. Dis-
patchers may initially be required to choose which cus-
tomers to prioritize for repairs. For example, a dispatch-
er may use her judgment to prioritize industrial custom-
ers. However, a dispatcher may also choose to prioritize
other customers, such as residential customers, if the
outage occurred at a time the industrial customer’s facto-
ry was not operating. Dispatchers may also prioritize
outages that affect customers with special medical or
other needs or that affect large numbers of residential
customers. As the court observed, if simultaneous out-
ages occur affecting high-priority clients, “there is no
simple rule to guide the dispatcher’s decision in who to
help first.” Id. at 298. Rather, dispatchers must use their
judgment to decide whether to send the repair crew to a
trouble location affecting the most customers, or to a
hospital, or a factory, without the use of written guide-
lines.
Dispatchers weigh additional factors in allocating field
employees to a place to perform repairs. They consider
logistical considerations such as whether a field employ-
ee can quickly repair a trouble spot en route to a high-
priority outage, whether an outage is likely to cause
damage to the Respondent’s facilities, or whether an un-

4 The facts are fully discussed in the Board’s decision reported at
357 NLRB 2150 and are summarized here to reflect the evidence high-
lighted by the court for the Board to consider on remand.
5 A field employee may be a lineman, serviceman, or troubleman
employee.
repaired outage from the previous day elevates the risk
posed by a new outage. Further, dispatchers consider the
number of customers affected, the location of the trouble,
the prospect of additional trouble, and the weather.
Trouble calls can be reprioritized based on real-time
changing situations, and dispatchers can send field em-
ployees to one location and then reassign them to another
trouble spot if necessary. Although dispatchers have a
list of priority customers to consider when deciding the
order of repairs, dispatchers are authorized to make a
judgment call that restoring power to a lower-priority
client will be faster or safer at that moment in time. In
sum, dispatchers are required to rely on their knowledge,
experience, and judgment in prioritizing multiple outag-
es. As the court explained, “there are no standard operat-
ing procedures within Entergy for . . . which kind of ac-
count[] [is] to be turned on first. . . . Dispatchers appar-
ently learn how to prioritize the clients through the men-
toring process.” 810 F.3d at 297–298 (internal quotation
marks omitted).
Further, dispatchers may use their judgment to decide
that there is more trouble than one field employee can
handle and to reassign additional field employees the
dispatcher deems necessary to handle the repair. There
are no guidelines dictating when the dispatcher should
reassign employees or how many to reassign. Once dis-
patchers make the judgment that additional field employ-
ees are needed to perform repairs, they utilize on-call
lists governed by the parties’ collective-bargaining
agreement that set forth which field employees are avail-
able to be summoned for on-call assignments. The on-
call lists do not, however, dictate when dispatchers
should dispatch additional employees, how many em-
ployees to dispatch, or when to hold over employees
from their regular shift. See id. at 297.
Analysis
Section 2(11) of the Act defines a “supervisor” as an
individual holding the authority to engage in or effective-
ly recommend any 1 of the 12 listed supervisory func-
tions (e.g., “assign” and “responsibly to direct”), so long
as the individual uses independent judgment in doing so.
It is well established that the “‘burden of proving super-
visory status rests on the party asserting that such status
exists.’” Oakwood Healthcare, Inc., supra, 348 NLRB at
694 (quoting Dean & Deluca New York, Inc., 338 NLRB
1046, 1047 (2003)). The party seeking to prove supervi-
sory status must establish it by a preponderance of the
evidence. Id. Purely conclusory evidence does not satis-
fy that burden. See Golden Crest Healthcare Center,
348 NLRB 727, 731 (2006). Supervisory status is not
proven where the record evidence “is in conflict or oth-
ENTERGY MISSISSIPPI, INC. 3
erwise inconclusive.” Phelps Community Medical Cen-
ter, 295 NLRB 486, 490 (1989).
Assignment is “the act of designating an employee to a
place,” “appointing an employee to a time,” or “giving
significant overall duties” to an employee. Oakwood
Healthcare, 348 NLRB at 689. A supervisor must also
exercise his or her Section 2(11) authority using inde-
pendent judgment. “[T]o exercise ‘independent judg-
ment’ an individual must at minimum act, or effectively
recommend action, free of the control of others and form
an opinion or evaluation by discerning and comparing
data.” Id. at 692–693. A “judgment is not independent if
it is dictated or controlled by detailed instructions,
whether set forth in company policies or rules, the verbal
instructions of a higher authority, or in the provisions of
a collective-bargaining agreement.” Id. at 693.
The Board, in its initial decision in this proceeding,
applied the analytic framework set forth in Oakwood
Healthcare. The Board assumed that the dispatchers’
allocation of the Respondent’s field employees during
unplanned switching repairs constitutes assignment un-
der Section 2(11) but found that the evidence did not
establish that these assignments involved the exercise of
independent judgment. 357 NLRB at 2156. 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.6
Applying the law of the case and reviewing the evi-
dence identified by the court, we find that the dispatchers
use independent judgment in assigning employees to
places by prioritizing outages, determining how many
employees should be sent to address a given outage, and
deciding to reassign field employees or hold them over
from their regular shift or to summon additional on-call
employees to work. As the court emphasized, in cases of
multiple trouble spots, dispatchers decide whether issues
can be dealt with sequentially or must be dealt with sim-
ultaneously. In making such decisions, dispatchers may
decide to divert a crew from one trouble spot to another
or to postpone any response.

6 We accordingly decline to consider the Respondent’s argument
that the Board has been inconsistent in supervisory cases involving
utility industry dispatchers, which is beyond the scope of the court’s
remand. We further reject the Respondent’s contention that a fully-
constituted Board is needed to evaluate the record in this case.
Dispatchers consider a range of factors when prioritiz-
ing outages, including whether a priority customer is
affected, the location of the trouble spots, whether addi-
tional trouble is likely to occur, current and future weath-
er conditions, and whether a particular outage is likely to
cause damage to the Respondent’s property. There are
no standard operating procedures or rules for dispatchers
to follow when prioritizing outages; rather, dispatchers
rely on their training and knowledge to best respond to
outages as they occur. Additionally, dispatchers may
decide that a field employee can complete a quick repair
on the way to a larger outage affecting a high-priority
client. The broad discretionary authority possessed by
the dispatchers in making prioritization decisions is co-
extensive with their discretionary reassignment of em-
ployees to perform unplanned repairs. In sum, the dis-
patchers make complex decisions regarding prioritization
of outages and the number of employees to dispatch to
effect repairs based on their own judgment, guided by a
wide range of discretionary factors.
Critically, the dispatchers’ decisions regarding outage
prioritization and reassigning field employees necessarily
result in the dispatchers sending particular field employ-
ees to particular places in multiple outage situations.
Indeed, it is the dispatchers’ exercise of independent
judgment that determines the places to which field em-
ployees will be sent. That being the case, the Oakwood
Healthcare standard has been met: the dispatchers undis-
putedly assign employees to places, and these places are
selected based on the exercise of independent judgment
because dispatchers prioritize outages free from the con-
trol 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 693.7
The Unions’ principal argument is that a finding of su-
pervisory status for the dispatchers based on assignment
duties is precluded because the dispatchers do not assess
the skills of individual field employees and match them
to specific repair jobs.8 We find this contention meritless
under the terms of the court’s remand.
The court’s remand clearly contemplates supervisory
status for the dispatchers, even absent individual skill
assessment, based on their utilization of a high level of

7 The Unions correctly note that “allocation of resources and priori-
tization of outages” are not supervisory indicia set forth in Sec. 2(11).
We are not, however, finding that prioritization of outages by itself
establishes the dispatchers’ supervisory authority. Instead, we find that,
based on the facts of this case, the prioritization of multiple outages
establishes that the dispatchers exercise independent judgment in as-
signing employees to places.
8 Rather, as noted, individual employees are selected pursuant to the
parties’ on-call lists.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
independent judgment in assigning field employees to a
place to perform repairs. As the court advised, the on-
call lists used to determine which employees will be
available to perform unplanned repairs “don’t tell the
dispatcher when or how many people to dispatch or
when to hold [field employees] over [from their regular
shift].” 810 F.3d at 297. The court hardly deemed dis-
positive of the supervisory issue the use of on-call lists in
lieu of individual skill assessment.
In sum, taking the evidence identified by the court into
account, we find that it establishes that the dispatchers
exercise “independent judgment” within the meaning of
Section 2(11) of the Act when assigning field employees
to places.
Conclusion
We conclude, contrary to the Acting Regional Direc-
tor, 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 in-
dependent judgment. Accordingly, we shall dismiss the
complaint in Cases 15–CA–017213, 15–CA–018131,
and 15–CA–108136, reopen Case 15–UC–000149, and
grant the petition to clarify the unit to exclude the dis-
patchers.
ORDER
IT IS ORDERED that the complaint in 15–CA–017213,
15–CA–018131, and 15–CA–108136 is dismissed.
IT IS FURTHER ORDERED that Case 15–UC–000149 is
reopened, the Acting Regional Director’s Supplemental
Decision and Order granting the petition for unit clarifi-
cation is reversed, and the unit is clarified to exclude the
dispatchers.
Dated, Washington, D.C. March 21, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD