Entergy Mississippi, Inc. v. National Labor Relations Board

Case: 14-60796 Document: 00513297166 Page: 1 Date Filed: 12/07/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 14-60796 FILED

December 7, 2015

Lyle W. Cayce

ENTERGY MISSISSIPPI, INCORPORATED, Clerk

Petitioner Cross-Respondent

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent Cross-Petitioner

Petition for Review and Cross Petition for Enforcement

of an Order of the National Labor Relations Board

Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Petitioner Entergy Mississippi, Incorporated (“Entergy”) is a power

utility company. This case concerns the status of a certain group of Entergy’s

employees—dispatchers—under the National Labor Relations Act (“NLRA” or

“Act”), 29 U.S.C. §§ 151-169.

Dispatchers use various information systems to monitor the flow of

electricity through Entergy’s grid. The Supervisory Control and Data

Acquisition (“SCADA”) system “provides dispatchers with data concerning the

load, voltage, and amps on breakers and circuits in the substations.” Entergy

Miss., Inc., Case No. 15-UC-149, slip op. at 4 (N.L.R.B. Feb. 7, 2007),

http://apps.nlrb.gov/link/document.aspx/09031d458001c0bf (Entergy I).

Case: 14-60796 Document: 00513297166 Page: 2 Date Filed: 12/07/2015

No. 14-60796

SCADA alerts dispatchers when a circuit experiences a sudden change in

voltage or when a breaker trips. Upon hearing an alarm, dispatchers turn to

the Automated Mapping and Facilities Management (“AM/FM”), which

provides a visual map of the transmission and distribution lines in the system.

Id. AM/FM monitors customers’ calls regarding outages and predicts the device

that has malfunctioned in the area of the outage. Id.

One of the dispatchers’ most important duties is “switching.” Id. at 5.

“Switching is the sequential opening and closing of switches in the

transmission and distribution system to isolate a section of power lines and to

interrupt the flow of electricity so that field employees can perform routine

maintenance or repair a section of line that has been damaged.” Id.

Dispatchers “draft switching orders, which are step-by-step procedures to open

and close switches.” Id. When an unexpected outage occurs, dispatchers

contact field employees in the affected area and “dictate each step in the

switching sequence.” Id. “[T]he field employees write down each step as

dictated by the dispatcher. The field employees then read each step of the

switching sequence to the dispatchers to ensure its accuracy.” Id. Dispatchers

are also responsible for issuing clearance orders. Id. at 9. A clearance order

signifies to field employees that electrical flow has been interrupted in a line

or piece of equipment and it is safe to work on. Id.

Dispatchers also “call-out” field employees to work on trouble cases. Id.

at 11. When SCADA alerts a dispatcher that an outage has occurred, the

dispatcher can assign a field employee to go diagnose and correct the problem.

During weather events or on weekends and holidays—when dispatchers often

manage operations without much supervision—dispatchers can call field

workers from the on-call list to dispatch to trouble areas. If multiple trouble

events occur at once, dispatchers have to identify the highest priority events,

2

Case: 14-60796 Document: 00513297166 Page: 3 Date Filed: 12/07/2015

No. 14-60796

decide how many field workers to call-up from the on-call list, and allocate the

available field workers to correct the problems.

In 2003, Entergy filed a petition with respondent National Labor

Relations Board (the “Board”), arguing that dispatchers are supervisors under

Section 2(11), 29 U.S.C. § 152(11). Id. at 2. The NLRA guarantees “employees”

the right to unionize and appoint a bargaining representative. 29 U.S.C. § 157.

It also requires employers to bargain with the workers’ representatives. Id.

§ 158(a)(5). To ensure that unions stay loyal to workers’ interests, Section 2(3),

§ 152(3), excludes “supervisors” from the class of “employees” guaranteed the

right to unionize and bargain. In other words, by urging that dispatchers were

“supervisors,” Entergy sought to remove dispatchers from the local union.

The Board held a hearing in 2003, and an ALJ issued an opinion in 2004

denying Entergy’s petition. Entergy I, at 2. Entergy filed a request for review

with the Board, which was granted. Id. In 2006, with Entergy still waiting for

the Board to hear its appeal, the Board decided In re Oakwood Healthcare, Inc.,

348 N.L.R.B. 686 (2006), in which it applied the supervisor definition to nurses

based on their authority to assign employees using independent judgment. The

Board remanded Entergy’s petition for the ALJ to reconsider the case in light

of Oakwood. The ALJ published Entergy I in 2007, holding once again that

dispatchers are not supervisors under Section 2(11). See id. at 34. Entergy

again filed a petition for review. The Board affirmed the ALJ’s decision.

Entergy Miss., Inc., 357 N.L.R.B. No. 178 (Dec. 30, 2011) (Entergy II).

About the same time that Entergy first filed its petition to reclassify

dispatchers as supervisors, it demanded that intervenor International

Brotherhood of Electrical Workers, AFL-CIO, Local Unions 605 and 985 (the

“Unions”) remove all references to dispatchers from the collective-bargaining

agreement. Entergy Miss., Inc., 361 N.L.R.B. No. 89, at *4 (Oct. 31, 2014)

(Entergy III). In 2006, Entergy refused the Unions’ request to bargain over the

3

Case: 14-60796 Document: 00513297166 Page: 4 Date Filed: 12/07/2015

No. 14-60796

dispatchers’ terms and conditions of employment. Id. at *5. Pursuant to the

Unions’ complaints, the Board’s Acting General Counsel filed a charge against

Entergy, contending that it had violated Section 8(a)(1) and (5) of the Act, 29

U.S.C. § 158(a)(1) and (5). Entergy III, at *1. The Board’s General Counsel

moved for summary judgment based on the Board’s decision in Entergy II. Id.

In 2014, the Board granted summary judgment and held that Entergy had

violated Section 8(a)(1) and (5). Id. at *2-3, 5. This appeal followed.

I.

We accord Chevron deference to the Board’s reasonable interpretations

of ambiguous provisions in the NLRA. See NLRB v. Ky. River Cmty. Care, Inc.,

532 U.S. 706, 713 (2001) (citing Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-44 (1984)). We will affirm the Board’s legal

conclusions “if they have a reasonable basis in the law and are not inconsistent

with the Act.” Valmont Indus. v. NLRB, 244 F.3d 454, 464 (5th Cir. 2001).

We will affirm the Board’s factual conclusions if they are “reasonable and

supported by substantial evidence on the record considered as a whole.” J.

Vallery Elec., Inc. v. NLRB, 337 F.3d 446, 450 (5th Cir. 2003) (quoting Valmont,

244 F.3d at 463). “Substantial evidence is that which is relevant and sufficient

for a reasonable mind to accept as adequate to support a conclusion. It is more

than a mere scintilla, and less than a preponderance.” El Paso Elec. Co. v.

NLRB, 681 F.3d 651, 656 (5th Cir. 2012) (emphasis omitted) (quoting Spellman

v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993)). “In determining whether the

Board’s factual findings are supported by the record, we do not make credibility

determinations or reweigh the evidence.” NLRB v. Allied Aviation Fueling of

Dall. LP, 490 F.3d 374, 378 (5th Cir. 2007). And “[r]ecognizing the Board’s

expertise in labor law, [we] will defer to plausible inferences it draws from the

evidence, even if we might reach a contrary result were we deciding the case

4

Case: 14-60796 Document: 00513297166 Page: 5 Date Filed: 12/07/2015

No. 14-60796

de novo.” Valmont, 244 F.3d at 463 (quoting NLRB v. Thermon Heat Tracing

Servs., Inc., 143 F.3d 181, 185 (5th Cir. 1998)).

“Whether an employee is a supervisor is a question of fact.” Entergy Gulf

States, Inc. v. NLRB, 253 F.3d 203, 208 (5th Cir. 2001). “Because of the ‘infinite

and subtle gradations of authority’ within a company, courts normally extend

particular deference to NLRB determinations that a position is supervisory.”

Id. (quoting Monotech of Miss. v. NLRB, 876 F.2d 514, 516 (5th Cir. 1989)).

II.

A.

Entergy argues that the Board’s ruling lacks a reasonable basis in law

because it is inconsistent with the Board’s earlier decisions and with opinions

from other circuits. The Board contends that its decision is reasonable because

it relies on Oakwood. We agree with the Board and hold that its decision has a

reasonable legal basis.

1.

Section 2(11), 29 U.S.C. § 152(11), which governs this appeal, defines

“supervisor” as:

any individual having authority, in the interest of the employer, to

hire, transfer, suspend, lay off, recall, promote, discharge, assign,

reward, or discipline other employees, or responsibly to direct

them, or to adjust their grievances, or effectively to recommend

such action, if in connection with the foregoing the exercise of such

authority is not of a merely routine or clerical nature, but requires

the use of independent judgment.

The Supreme Court has interpreted Section 2(11) as setting forth a three-part

test:

Employees are statutory supervisors if (1) they hold the authority

to engage in any 1 of the 12 listed supervisory functions, (2) their

“exercise of such authority is not of a merely routine or clerical

nature, but requires the use of independent judgment,” and (3)

their authority is held “in the interest of the employer.”

5

Case: 14-60796 Document: 00513297166 Page: 6 Date Filed: 12/07/2015

No. 14-60796

Kentucky River, 532 U.S. at 713 (quoting NLRB v. Health Care & Ret. Corp. of

Am., 511 U.S. 571, 573-74 (1994)). The party asserting supervisory status has

the burden of proof. Id. at 711-12. This case turns on the meaning of “assign,”

“responsibly to direct,” and “independent judgment” in Section 2(11).

2.

“Assign,” “responsibly to direct,” and “independent judgment” as used in

Section 2(11) are all ambiguous. Mars Home for Youth v. NLRB, 666 F.3d 850,

854 n.2, 855 n.3 (3d Cir. 2011) (holding that all three phrases are ambiguous);

see Health Care, 511 U.S. at 579 (stating in dicta that the latter two phrases

are ambiguous). Because Oakwood supplies reasonable interpretations of

those terms, we owe deference to it.

Entergy contends that the Board has “waffled on the issue of whether

utility-industry Dispatchers are supervisors,” and thus, that this court owes

little deference to the Board’s recent interpretations of Section 2(11). But the

Supreme Court recently clarified that federal courts must defer even to new,

course-reversing agency positions when “the new policy is permissible under

the statute, . . . there are good reasons for it, and . . . the agency believes it to

be better, which the conscious change of course adequately indicates.” FCC v.

Fox Television Stations, Inc., 556 U.S. 502, 515 (2009); accord Handley v.

Chapman, 587 F.3d 273, 282 (5th Cir. 2009).

Considering whether Oakwood satisfies the Fox test, we note first that

Entergy essentially concedes that Oakwood’s interpretation of Section 2(11) is

permissible under the statute. One need look no further than the thorough and

well-reasoned opinion itself to discern that the Board’s interpretation is

reasonable. See Oakwood, 348 N.L.R.B. at 689-94. The Board explained that it

adopted its new interpretations of Section 2(11) to further its mandate to

protect workers, to faithfully follow the dictates of Congress and the courts,

and to “provid[e] meaningful and predictable standards for the adjudication of

6

Case: 14-60796 Document: 00513297166 Page: 7 Date Filed: 12/07/2015

No. 14-60796

future cases and the benefit of the Board’s constituents.” Id. at 688. These are

sufficient reasons to justify the Board’s new approach. And there is no doubt

that the Board intended Oakwood to mark a change in its application of Section

2(11). See id. (“[W]e herein adopt definitions for the terms ‘assign,’ ‘responsibly

to direct,’ and ‘independent judgment’ as those terms are used in Section 2(11)

of the Act.”).

Because Oakwood satisfies both the Chevron and Fox standards, we

defer to it when considering the Board’s action.

3.

Entergy argues that the Board’s ruling lacks a reasonable basis in law

because—though the facts and law are the same as in Gulf States—the Board

reached a contrary conclusion in this case. The Board contends that Oakwood

changed the law by adding an adverse consequence requirement, and that this

development explains the different outcome. The Board has the better

argument.

In Gulf States, we considered whether electrical utility operations

coordinators “responsibly direct[ed] others with independent judgment” and

thus qualified as statutory supervisors. 253 F.3d 203, 209 (5th Cir. 2001). In

defining “responsibly direct,” we relied on NLRB v. KDFW-TV, Inc., a Div. of

Times Mirror Corp., 790 F.2d 1273, 1278-79 (5th Cir. 1986) and found that “[t]o

direct other workers responsibly, a supervisor must be answerable for the

discharge of a duty or obligation or accountable for the work product of the

employees he directs.” Gulf States, 253 F.3d at 209 (internal quotation marks

and citation omitted).

This definition was later expanded by the Board in Oakwood, which held

that to be “responsible” under Section 2(11), a putative supervisor “must be

accountable for the performance of the task by the other, such that some

adverse consequence may befall the one providing the oversight if the tasks

7

Case: 14-60796 Document: 00513297166 Page: 8 Date Filed: 12/07/2015

No. 14-60796

performed by the employee are not performed properly.” 348 N.L.R.B. at 692.

Under this rule, the Board crafted a three-part test for determining whether a

putative supervisor “responsibly directs” an employee:

[T]o establish accountability for purposes of responsible direction,

it must be shown that the employer delegated to the putative

supervisor the authority to direct the work and the authority to

take corrective action, if necessary. It also must be shown that

there is a prospect of adverse consequences for the putative

supervisor if he/she does not take these steps.

Id.

Entergy argues that Oakwood simply adopted the Gulf States rule.

Although Oakwood adopted the general “accountability” standard set out in

KDFW-TV, it did not simply co-opt this court’s existing law. See Oakwood, 348

N.L.R.B. at 691-92. Rather, it added to the “accountability” standard in at least

two ways. See 348 N.L.R.B. at 691-92. First, Oakwood made clear that the

putative supervisor must be potentially liable not only for his own failures, but

also for the failures of his subordinates. See 348 N.L.R.B. at 692; see also, e.g.,

In re Croft Metals, Inc., 348 N.L.R.B. 717, 722 (2006) (interpreting Oakwood

and holding that movant showed accountability where the “record reveals that

the Employer has disciplined lead persons by issuing written warnings to them

because of the failure of their crews to meet production goals or because of

other shortcomings of their crews”). By adopting this requirement, the Board

hewed to the First Circuit’s position in Northeast Utilities Service Corp. v.

NLRB, 35 F.3d 621, 625 (1st Cir. 1994), an opinion that Gulf States called into

doubt, see 253 F.3d at 210.

Second, Oakwood required those attempting to prove supervisor status

to “show[] that there is a prospect of adverse consequences for the putative

supervisor” because of the actions of subordinates. 348 N.L.R.B. at 692; see

also, e.g., In re I.H.S. Acquisitions No. 114, Inc. d/b/a Lynwood Manor, 350

8

Case: 14-60796 Document: 00513297166 Page: 9 Date Filed: 12/07/2015

No. 14-60796

N.L.R.B. 489, 490-91 (2007) (interpreting Oakwood to require specific evidence

of actual or possible adverse consequences).

This change in controlling law explains the different outcomes in the two

cases. In Gulf States, this court did not require the movant to prove that the

putative supervisors were potentially liable for the subordinates’ mistakes. But

following Oakwood, the Board required Entergy to prove that dispatchers

could be liable for the actions of field employees. 1 And there is substantial

evidence to support the Board’s decision. See Entergy II, at *7. Because the

Board’s ruling has a reasonable legal basis, we affirm.

B.

The party alleging supervisory status bears the burden of proving that

it exists by a preponderance of the evidence. Oakwood, 348 N.L.R.B. at 694.

Entergy argues that there is not substantial evidence to support the Board’s

ruling that dispatchers are not supervisors. Specifically, Entergy contends that

it proved that dispatchers “responsibly direct” field employees, “assign” them,

and use “independent judgment” in performing both functions. There is

substantial evidence to support the Board’s determination that dispatchers do

not “responsibly direct” field employees or “assign” them to a “time” or

“significant overall duty.” But the Board ignored evidence that arguably shows

that dispatchers “assign” field employees to “locations” using “independent

judgment.” We affirm in part and reverse in part the Board’s decision that

dispatchers are not supervisors.

1 Every circuit court that has interpreted Oakwood has read it to require responsibility

for others’ actions. See NLRB v. NSTAR Elec. Co., 798 F.3d 1, 10 (1st Cir. 2015); Avista Corp.

v. NLRB, 496 F. App’x 92, 93 (D.C. Cir. 2013) (per curiam); Lakeland Health Care Assoc’s,

LLC v. NLRB, 696 F.3d 1332, 1353 (11th Cir. 2012); Rochelle Waste Disposal, LLC v. NLRB,

673 F.3d 587, 596 (7th Cir. 2012); Mars Home for Youth, 666 F.3d at 854.

9

Case: 14-60796 Document: 00513297166 Page: 10 Date Filed: 12/07/2015

No. 14-60796

1.

We first address the Board’s holding that dispatchers do not “responsibly

direct” field employees. See Entergy II, at *7-9. Again, Oakwood provides that

a putative supervisor does not “responsibly direct” a subordinate unless the

supervisor has the authority to direct the subordinate’s work and take

corrective action when necessary, and the supervisor could be held liable for

the subordinate’s performance of his job. 348 N.L.R.B. at 692.

Applying Oakwood, the Board held that Entergy failed to show that

dispatchers “responsibly direct” field employees because the evidence showed

“that the dispatchers are accountable for their own work, i.e., their own failures

and errors, and not those of the field employees.” Entergy II, at *8. Entergy

asserts that “the record contains numerous situations in which Dispatchers

were disciplined solely because of errors made by field employees under their

supervision.” But the two examples it offers provide no support for the claim.

Entergy points to testimony about a dispatcher named White. White correctly

instructed a field employee to flip a specified switch, but the employee flipped

the wrong one. White’s supervisor testified that he did not plan to discipline

White until he admitted that “[w]hen [he] was talking to [the field employee],

[he] could feel that [the employee] was uncomfortable.” The supervisor testified

that he “coached and counseled” White—a form of discipline—because he knew

the field employee was unprepared but proceeded anyway. The supervisor

stated that “even though the switchman was the one who admitted that he

made the error, [he] nonetheless held the dispatcher accountable.”

The Board’s acting regional director, who sat as the ALJ, refused to

credit this testimony. As the ALJ noted, the manager “claims that he gave

[White] a coaching and counseling session, but he acknowledges that he did

not place a memo in the dispatcher’s personnel file concerning the dispatcher

being counseled for the performance of the field employee.” Noting that

10

Case: 14-60796 Document: 00513297166 Page: 11 Date Filed: 12/07/2015

No. 14-60796

Entergy’s disciplinary policy requires managers to document coaching and

counseling sessions, the ALJ stated that he was “not convinced that the

evidence establishes that the dispatcher actually received any degree of

discipline.” The ALJ’s determination is entitled to deference. See Carey Salt

Co. v. NLRB, 736 F.3d 405, 410 (5th Cir. 2013) (explaining that an ALJ’s

credibility determination, “adopted by the Board, merits special deference”

(internal quotation mark and citation omitted)).

Entergy also points to testimony about an incident where a dispatcher’s

and field employee’s joint error caused a major outage. But the testimony

makes clear that the dispatcher was punished because he had a document

containing necessary information, yet he failed to consult it. The testimony

does not show that dispatchers are held liable for field employees’ mistakes.

In sum, substantial evidence supports the Board’s determination that

dispatchers are accountable only for their own mistakes. And under Oakwood,

this is sufficient to show that dispatchers do not “responsibly direct” field

employees.

2.

We next address the Board’s holding that dispatchers do not “assign”

field employees, or do not exercise “independent judgment” when doing so. See

Entergy II, at *9-12.

In Oakwood, the Board “construe[d] the term ‘assign’ to refer to the act

of designating an employee to a place (such as a location, department, or wing),

appointing an employee to a time (such as a shift or overtime period), or giving

significant overall duties, i.e., tasks, to an employee.” 348 N.L.R.B. at 689. The

Board interpreted “independent judgment” to refer to an individual “act[ing],

or effectively recommend[ing] action, free of the control of others and form[ing]

an opinion or evaluation by discerning and comparing data.” Id. at 692-93. The

Board further explained that “a judgment is not independent if it is dictated or

11

Case: 14-60796 Document: 00513297166 Page: 12 Date Filed: 12/07/2015

No. 14-60796

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. “On the other hand, the mere

existence of company policies does not eliminate independent judgment from

decision-making if the policies allow for discretionary choices.” Id. The Board

also reasoned that “[t]he authority to effect an assignment, for example, must

be independent, it must involve a judgment, and the judgment must involve a

degree of discretion that rises above the ‘routine or clerical.’” Id.

The Board applied Oakwood when deciding Entergy II. See id. at *7. The

Board assumed that dispatchers “assign” field employees to a place. Id. at *9-

10. But it held that dispatchers do not exercise “independent judgment”

because they “utilize a computer program that notifies them of trouble spot

locations, and usually assign to trouble spots employees already assigned to

that specific area.” Id. at *10. In other words, the Board found that the

dispatchers’ job requires nothing more than reading a trouble report on a

computer screen, looking at a list to determine the on-call worker for the

relevant area, and telling the responsible worker to head to the location.

Although we give significant deference to the Board’s factfindings, “[o]ur

deference . . . has limits.” Carey Salt, 736 F.3d at 410. “[A] decision by the

Board that ‘ignores a portion of the record’ cannot survive review under the

‘substantial evidence’ standard.” Id. (quoting Lord & Taylor v. NLRB, 703 F.2d

163, 169 (5th Cir. 1983)); see Amoco Prod. Co. v. NLRB, 613 F.2d 107, 111-12

(5th Cir. 1980) (holding that remand is appropriate when the Board fails to

adequately explain the factual basis for its opinion).

The Board ignored significant portions of the record that show how

dispatchers arguably exercise independent judgment when deciding how to

allocate Entergy’s field workers. Albert May, a union manager, testified that

when there are simultaneous outages, dispatchers “decide which trouble to

12

Case: 14-60796 Document: 00513297166 Page: 13 Date Filed: 12/07/2015

No. 14-60796

handle first.” After a dispatcher has sent a field employee to one location, he

“ha[s] authority to redirect that person to another case of trouble.” And “if there

is more trouble than that one [field employee] can handle,” the dispatcher

“would decide to call out additional [field employees].” These decisions, in part,

are guided by “standard operating procedure” and “if conflicts arise, then the

dispatchers would consult an [operations coordinator] or a network manager

to determine if [certain responses are] possible to do or not.” Although the

operating guidelines and union-generated on-call lists dictate which field

employees will be on-call at any given time, those agreements “don’t tell the

dispatcher when or how many people to dispatch or when to hold [field

employees] over [their regular shift].” The dispatcher seems to “decide how

many troublemen or servicemen [are] necessary to handle . . . multiple cases

of trouble.”

Evidence in the record shows that dispatchers’ judgment about how to

allocate Entergy’s field workers is guided by a range of discretionary factors.

Dispatchers appear to prioritize outages affecting industrial customers that

have special contracts with Entergy. Yet if an outage occurred at night or on a

holiday when an industrial customer’s factory was not operating, dispatchers

might be expected to prioritize another customer instead. Dispatchers also

apparently prioritize outages affecting customers with “special medical needs,”

along with prioritizing outages that affect large numbers of residential

customers. If simultaneous outages of each type occur, there is no simple rule

to guide the dispatcher’s decision in who to help first. In sum, at times, a

dispatcher may have to decide whether to send “[his] one crew” to a trouble

location “with the most customers on it,” to “the one that’s got the hospital out,”

or to “the plastics plant that needs to be picked up.”

Dispatchers apparently weigh other factors as well. There is evidence

that they juggle logistical considerations, such as deciding whether a field

13

Case: 14-60796 Document: 00513297166 Page: 14 Date Filed: 12/07/2015

No. 14-60796

employee can complete a quick repair at a trouble spot that is along the way to

an outage affecting a high-priority client. Dispatchers arguably must also

consider whether a particular outage is likely to cause property damage to

Entergy’s facilities. And where, for example, an unrepaired outage from the

previous day elevates the risk posed by a new outage, the dispatcher likely re-

prioritizes given the facts on the ground.

Despite this complexity, “there are no standard operating procedures

within Entergy for what is to be turned on — which kind of account’s [sic] to

be turned on first.” “There is no handbook, guidelines or documents.” Id.

Dispatchers apparently learn how to prioritize clients “through the mentoring

process.”

Considering the interpretations announced in Oakwood, the evidence

discussed above arguably shows that dispatchers “assign” field employees to

places by exercising “independent judgment.” Yet the Board ignored this

evidence when explaining its reasoning. Decisions by the Board that ignore a

relevant portion of the record cannot survive substantial evidence review. See

NSTAR Elec. Co., 798 F.3d at 13 n.10. Accordingly, we reverse the Board’s

decision that dispatchers do not exercise “independent judgment” when

assigning employees to locations and remand for further proceedings on this

narrow question.

3.

The Board held that dispatchers do not “assign” field workers to a time,

that is, “to remain on the job at the end of their 8-hour shift to perform an

overtime assignment.” Entergy II, at *12.

The Board reasonably discredited the testimony of three Entergy

employees, who haltingly testified that dispatchers have the authority to

require field workers to stay on-duty. See Entergy II, at *10-11. The Board

focused instead on the testimony of a dispatcher who stated that he “[did]n’t

14

Case: 14-60796 Document: 00513297166 Page: 15 Date Filed: 12/07/2015

No. 14-60796

have the authority to force [a field employee] to stay.” Id. at *11. Inferring from

this statement that managers never told dispatchers that they had the power

to order field workers to work overtime, the Board held that no such power was

likely ever delegated. Id. at *11-12. The Board’s legal reasoning is permissible

and its factual determinations are supported by substantial evidence.

The Board held that dispatchers do not “assign” field workers to

“significant overall duties.” Id. at *12. In Oakwood, the Board held that

assigning an employee “to certain significant overall tasks (e.g., restocking

shelves) would generally qualify as ‘assign’ within [its] construction.” 348

N.L.R.B. at 689. On the other hand, “choosing the order in which the employee

will perform discrete tasks within those assignments (e.g., restocking toasters

before coffeemakers) would not be indicative of exercising the authority to

‘assign.’” Id. Citing Oakwood, the Board reasoned that dispatchers do not

assign field employees to a new, overall duty, but merely direct them to

perform an ad hoc task before returning to their normal duties. Entergy II, at

*12. Here too, the Board’s legal reasoning is permissible and its factual

determinations are supported by substantial evidence. We affirm.

***

The Board’s legal reasoning is permissible and its rulings, in large part,

are supported by substantial evidence. But the Board ignored significant

evidence suggesting that dispatchers “assign” field employees to “places” using

“independent judgment.” Accordingly, we affirm in part, reverse in part, and

remand for further proceedings on the narrow question of whether the

dispatchers exercise independent judgment in assigning field employees to

places.

C.

Entergy argues that the doctrine of laches bars the Board from recouping

money damages in this action. We disagree.

15

Case: 14-60796 Document: 00513297166 Page: 16 Date Filed: 12/07/2015

No. 14-60796

In Nabors v. NLRB, 323 F.2d 686 (5th Cir. 1963), this court held that the

United States and its agencies are not subject to the defense of laches when

enforcing a public right. Id. at 688. The court further held that when the Board

brings an enforcement action under the Act, it acts in the public interest, even

when it obtains money damages on behalf of private persons. Id. at 688-89.

Nabors remains good law. See, e.g., Matter of Fein, 22 F.3d 631, 634 (5th Cir.

1994) (holding that laches may not be asserted against the government when

it acts in its sovereign capacity); United States v. Arrow Transp. Co., 658 F.2d

392, 395 (5th Cir. 1981) (“The law remains unchanged: laches is unavailable

as a defense against the United States in enforcing a public right.”). We deny

Entergy’s laches defense.

III.

For the reasons explained, we AFFIRM the Board’s decision in all but

one respect. We REVERSE the Board’s determination that dispatchers do not

“assign” field employees to “places” through the exercise of “independent

judgment” and we REMAND for further proceedings. The Board cross-appeals,

asking this court to enforce its order. Because we hold the Board erred, we

DENY the Board’s request for enforcement.

16