Entergy Mississippi, Inc.

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.