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2019 NLRB LEXIS 198; 2019 L.R.R.M. 99630; 2018-19 NLRB Dec. (CCH) P16,525; 367 NLRB No. 109

National Labor Relations Board

March 21, 2019

Cases 15-CA-017213, 15-CA-018131, and 15-CA-018136

Opinion

DECISION ON REMAND AND ORDER

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 authority to assign field employees to places using independent judgment within the meaning of Oakwood Healthcare, Inc., 348 NLRB 686 (2006), and accordingly are supervisors 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 [*2]  using independent judgment, and, accordingly, are statutory supervisors properly excluded from the bargaining unit of the Respondent's employees represented by the International Brotherhood of Electrical Workers, Locals 605 and 985 (the Unions).

Background

On August 11, 2003, the Respondent filed a unit clarification petition seeking to exclude the dispatcher job classification from the bargaining unit on the basis that the dispatchers are supervisors under the Act. The Acting Regional Director held a hearing and issued a Decision and Order on January 29, 2004, finding the dispatchers 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.  [*3]  

Following a second hearing, the Acting Regional Director issued a Supplemental Decision and Order on February 7, 2007, again finding that the dispatchers were not supervisors. On April 7, 2007, the Board granted the 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).

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2019 NLRB LEXIS 198 *; 2019 L.R.R.M. 99630; 2018-19 NLRB Dec. (CCH) P16,525; 367 NLRB No. 109

Entergy Mississippi, Inc. and International Brotherhood of Electrical Workers, Local 605 and 985, AFL-CIO.

Prior History:

Entergy Miss., Inc. v. NLRB, 810 F.3d 287, 2015 U.S. App. LEXIS 21190 (5th Cir., Dec. 7, 2015)

Notice: [*1] 

 

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

CORE TERMS

dispatchers, employees, outage, independent judgment, repairs, prioritize, assign, places, customers, trouble, supervisory, decisions, reassign, electrical, switching, on-call, bargaining, dictate, spot