Atlantic City Electric Company

National Labor Relations Board - Unpublished Board Decisions

Nov 18, 2019

04-RC-221319 (N.L.R.B. Nov. 18, 2019)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTIC CITY ELECTRIC CO.
Employer
and Case 04-RC-221319
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 210
Petitioner
DECISION ON REVIEW
The issue presented in this case is whether the Acting Regional Director correctly
found that the Employer’s System Operators do not possess the authority to assign
employees to places or responsibly direct employees using independent judgment
within the meaning of Section 2(11) of the Act, and therefore do not constitute statutory
supervisors.
On June 15, 2018, the Acting Regional Director issued a Decision and Direction
of Election, in which he found that the System Operators do not constitute supervisors.
Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations,
the Employer filed a timely request for review. The Petitioner filed an opposition, and
the Board granted the Employer’s motion to file a reply brief.
On December 13, 2018, the Board granted the Employer’s request for review
with respect to whether the System Operators possess the authority to assign
employees to places and responsibly direct employees using independent judgment,
and denied review in all other respects.1 Thereafter, the Employer and the Petitioner
filed briefs on review. The Board also accepted an amicus brief from the International
Brotherhood of Electrical Workers. The Employer filed a brief in response to the amicus
brief.
The National Labor Relations Board has delegated its authority in this proceeding
to a three-member panel.2 Having carefully considered the entire record in this
proceeding, including the briefs on review and the amicus brief, we affirm the Acting

1 Member McFerran would have granted review only with respect to assignment of
employees to places using independent judgment and would have denied review in all
other respects.
2 Chairman Ring is recused and took no part in the consideration of this case.
2
Regional Director’s Decision and Direction of Election. We find that this case differs
from Entergy Mississippi, Inc., 367 NLRB No. 109 (2019), because the Employer here
failed to meet its burden of proving that the System Operators possess the authority to
assign or responsibly direct employees within the meaning of Section 2(11).3

3 The Board has long recognized that the burden to establish supervisory status
is not met where the record evidence “is in conflict or otherwise inconclusive.” Phelps
Community Medical Center, 295 NLRB 486, 490 (1989) (“[W]henever the evidence is
inconclusive on particular indicia or supervisory authority, [the Board] will find that
supervisory status has not been established, at least on the basis of those indicia.”).
Here, the evidence presented regarding the use of independent authority to assign or
responsibly direct employees was at best conflicting. While some Employer witnesses
testified that System Operators have the authority to prioritize jobs, Senior System
Operator Jim Luciani's testimony disputed the assertion that System Operators have the
authority to command Dispatchers, Field Supervisors, and Work Coordinators to
dispatch employees to a specific location or call them back, apart from providing input
as to which locations may be of higher priority. Rather, it would appear from his
testimony that the Dispatchers, Field Supervisors, and Work Coordinators are tasked
with handling both the regular dispatch of crews and work assignments as well as
dispatch in the event of regular or multiple outages. Nor is there clear evidence of a
specific occasion when a System Operator held over crews, assigned them to a job, or
made a recommendation to do so that was then followed. To the extent that System
Operators may cancel work, it is unclear what role they have in assigning or reassigning
that work. It is also unclear that writing switching instructions constitutes independent
judgment because these instructions are guided by a manual and are ordered by safety
concerns. Unlike our colleague, then, we find that the Employer did not meet its burden
and, therefore, we affirm the Regional Director’s Decision and Direction of Election.
Contrary to his colleagues, Member Emanuel finds that Senior System Operators
and System Operators (collectively “SOs”) are supervisors within the meaning of Sec.
2(11) of the Act because they assign or designate field supervisors – who are
themselves statutory supervisors – and their crews to places, using independent
judgment, and because they give significant overall duties to field personnel. SOs
monitor the Employer’s “transmission system” (the high voltage lines and large
substations connected to power plants) and its “distribution system” (smaller substations
and equipment that are responsible for the delivery of electric service to industrial,
commercial, and residential customers). In the normal course of their work SOs receive
scheduled outage jobs pertaining to the maintenance, repair, and replacement of
voltage lines and substation equipment, and then coordinate with service district
managers in the field and dispatchers in the control room regarding the assignment of
that work to field crews. Using system monitors and manuals, the SOs write multi-step
switching instructions which are then faxed to the field for crews to use in powering
down and shutting off equipment so that maintenance can be undertaken safely. When
crews begin work at a substation, they telephone the SOs to report, step by step, as
they perform switching operations. When storms are forecast that threaten to interrupt
the delivery of electricity to customers, SOs have canceled scheduled work, and when
storms cause outages, particularly for hospitals or other priority customers, SOs help to
3
LAUREN McFERRAN, MEMBER
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., November 18, 2019.

prioritize where to send field crews and “trouble men” to restore power, and they can
override field supervisors in making these decisions.
Based on these facts, Member Emanuel finds that SOs, using independent
judgment, assign work daily to field supervisors and crews and that they cancel those
assignments as the need arises. See Oakwood Healthcare, 348 NLRB 686, 688-689
(2006). And when unplanned outages occur as a result of severe weather or otherwise,
SOs have authority to override field supervisors and prioritize crew assignments crews
from one outage to another because they have a greater understanding of the needs of
the entire electrical grid. The existence of supervisory authority does not hinge on the
frequency of its exercise – and here it is exercised daily and, perhaps most importantly,
when it counts most in emergencies. See Arlington Masonry Supply, Inc., 339 NLRB
817, 818 (2003). Accordingly, Member Emanuel would reverse the Acting Regional
Director’s Decision and Direction of Election.