     Case: 15-60063    Document: 00513395468     Page: 1   Date Filed: 02/25/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals

                                  No. 15-60063
                                                                              Fifth Circuit

                                                                            FILED
                                                                     February 25, 2016

DIXIE ELECTRIC MEMBERSHIP CORPORATION,                                 Lyle W. Cayce
                                                                            Clerk
             Petitioner/Cross - Respondent

v.

NATIONAL LABOR RELATIONS BOARD,

             Respondent/Cross - Petitioner


                          Petitions for Review of an Order
                      of the National Labor Relations Board


Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Dixie Electric Membership Corporation reclassified two categories of
employees as supervisors, which caused those employees to be excluded from
the bargaining unit covered by a collective bargaining agreement.                  The
National Labor Relations Board concluded the corporation committed an
unfair labor practice. Dixie Electric petitioned this court for review of the
decision. We DENY the petition and ENFORCE the Board’s order.


                FACTS AND PROCEDURAL BACKGROUND
      Dixie Electric provides electricity for residential and commercial
customers in southern Louisiana. For more than forty years, the International
Brotherhood of Electrical Workers, Local Union 767 has represented
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employees at Dixie Electric’s Baton Rouge, Louisiana facility. The relevant
collective bargaining agreement (the “contract”) between Dixie Electric and the
union was in effect from February 2007 to February 2011.             The contract
included chief systems operators and systems operators (collectively, “systems
operators”) among employees in the bargaining unit. Systems operators are
primarily control-room dispatchers responsible for assigning field personnel to
address power outages and other problems. They also monitor and control
certain electrical systems, analyze outages, prioritize work assignments, and
maintain records.
      In August 2010, Dixie Electric began making plans to adjust the duties
of systems operators and reclassify them as supervisors. Dixie Electric’s chief
executive officer, John Vranic, met with Floyd Pourciau, the union’s business
manager, on November 17 to discuss the decision. Vranic gave Pourciau a
letter memorializing the details, which provided:
      [E]ffective December 1, . . . the . . . Systems Operator and Chief
      Systems Operator . . . will be eliminated and new management
      positions having the same titles will be utilized . . . . Existing
      employees will be promoted to the new management positions.

Pourciau objected and said the union would file an unfair labor practice charge.
Another Dixie Electric official, Ronald May, testified that he met with affected
employees to notify them of the reclassification about one week earlier. Dixie
Electric provided those individuals with a similar letter.         Dixie Electric
effectuated its plan, as promised, on December 1.
      In February 2011, Dixie Electric and the union agreed on a new contract
effective through February 2015 (the “new contract”). The union reserved its
objection to the reclassifications during negotiations, and both parties agreed
to abide by a “final legal determination . . . on any charge or suit” as to whether
the systems operators should be included in the bargaining unit. One month
later, the union filed a charge alleging that Dixie Electric committed an unfair
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labor practice by unilaterally removing employees from the bargaining unit.
Dixie Electric filed a unit clarification petition in July concurrently with its
answer to the charge seeking a final resolution as to whether the positions
could be lawfully excluded under the new contract. Weeks later, Dixie Electric
filed a separate unit clarification petition.
      After briefing and a hearing, an administrative law judge (“ALJ”) held
in January 2012 that Dixie Electric violated the National Labor Relations Act
(“NLRA”) by modifying the scope of the bargaining unit, and in the alternative,
transferring work out of the unit without bargaining over the subject. The ALJ
did not consider Dixie Electric’s unit clarification petitions, deeming them
untimely. The National Labor Relations Board affirmed the decision in August
2012. Dixie Elec. Membership Corp., 358 N.L.R.B. 120 (2012). Dixie Electric
timely petitioned this court for review. The Board General Counsel filed a
cross-petition for enforcement. At the time, two Board members’ appointments
were under challenge as constitutionally infirm. This court stayed proceedings
until the appointments issue was resolved. The Supreme Court later held that
the appointments were invalid which, in turn, invalidated the Board’s Dixie
Electric decision.   See N.L.R.B. v. Noel Canning, 134 S.Ct. 2550 (2014).
Thereafter, we vacated the Board’s 2012 order and remanded the case for de
novo reconsideration. In November 2014, a newly constituted Board again
adopted the ALJ’s findings and conclusions of law. Dixie Elec. Membership
Corp., 361 N.L.R.B. 107 (2014). Dixie Electric timely petitioned for review.


                                  DISCUSSION
      Board decisions that are “reasonable and supported by substantial
evidence on the record considered as a whole” are upheld. Strand Theatre of
Shreveport Corp. v. N.L.R.B., 493 F.3d 515, 518 (5th Cir. 2007); see also 29
U.S.C. § 160(e).     “Substantial evidence is such relevant evidence as a
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reasonable mind would accept to support a conclusion.” J. Vallery Elec., Inc.
v. N.L.R.B., 337 F.3d 446, 450 (5th Cir. 2003) (quotation marks omitted). This
court reviews the Board’s legal conclusions de novo, but “will enforce the
Board’s order if its construction of the statute is reasonably defensible.” Strand
Theatre, 493 F.3d at 518 (quotation marks omitted).


I.      Unilateral Modification of the Scope of the Unit
        The Board concluded Dixie Electric violated Section 8(a)(5) and (d) when
it eliminated the systems operator positions mid-contract and gave those
employees new positions outside the bargaining unit. See 29 U.S.C. § 158(a)(5),
(d).    Dixie Electric did not squarely address the alleged impropriety of
unilaterally making that change on appeal.          Instead, it focused almost
exclusively on whether the affected employees are supervisors. The Board did
not make a factual finding on that issue, reasoning that whether the affected
employees are supervisors is irrelevant because Dixie Electric voluntarily
chose to include them in the unit.
        The scope of a unit covered in a contract is a permissive subject of
bargaining. National Fresh Fruit & Vegetable Co. v. N.L.R.B., 565 F.2d 1331,
1334 (5th Cir. 1978). Thus, an employer cannot insist on bargaining to impasse
over the “construction of an appropriate unit so as to exclude certain members.”
Hess Oil & Chem. Corp. v. N.L.R.B., 415 F.2d 440, 445 (5th Cir. 1969). The
rationale underlying this principle is that the parties cannot bargain
meaningfully about mandatory subjects, like terms and conditions of
employment, “unless they know the unit of bargaining.” Id. at 444. For the
same reasons, the Board has also long held that the scope of a unit, once
established, cannot be unilaterally modified while a contract is in effect. See
Arizona Elec. Power, 250 N.L.R.B. 1132 (1980). Other circuits recognize that
“if an employer could vary unit descriptions at will, it would have the power to
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sever the link between a recognizable group of employees and its union as the
collective bargaining representative of these employees,” which would render
a contract meaningless. See Hill-Rom Co. v. N.L.R.B., 957 F.2d 454, 457 (7th
Cir. 1992). We agree and hold that an employer who unilaterally removes a
job title from a bargaining unit mid-contract violates the NLRA.
      Here, it is undisputed that Dixie Electric unilaterally modified the scope
of the unit. The contract expressly included systems operators. Dixie Electric
admittedly made the decision to remove those job titles from the unit during
the life of the contract without approval from the Board and with express
disapproval from the union. We agree with the NLRB that such action is an
unfair labor practice. See Arizona Elec. Power, 250 N.L.R.B. at 1132.
      In its brief, Dixie Electric implies that because supervisors are not
afforded rights under the NLRA, it was permitted to remove systems operators
from the bargaining unit regardless of the contract. See 29 U.S.C. § 152(3)
(defining “employee”), (11) (defining “supervisor”); id. § 164(a) (providing that
employers may not be compelled to include supervisors in a unit).             As
previously discussed, the Board reasoned that an employer may voluntarily
recognize a unit containing supervisors. We need not address Dixie Electric’s
argument, though, as it was unaccompanied by any legal support on appeal.
See United States v. Tomblin, 46 F.3d 1369, 1376 n.13 (5th Cir. 1995) (holding
that a petitioner does not preserve an issue by making an assertion in its brief
without providing any legal argument indicating its basis).
      It is clear, based on the facts, law, and arguments properly before us,
that the bargaining unit covered in the contract included systems operators.
By unilaterally removing those classifications of employees from the
bargaining unit during the term of the contract, Dixie Electric violated the




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NLRA. See 29 U.S.C. § 158(a)(5), (d). The Board’s order is valid. 1


II.    Unit Clarification Petition
       Turning to Dixie Electric’s attempt to clarify the bargaining unit, both
parties and the Board appear to agree that a unit clarification petition is the
appropriate vehicle to determine whether the affected employees were
supervisors for purposes of the new contract. Unit clarification procedures
provide the Board with the authority to clarify units established by a contract
if certain classifications of employees should not be included under the NLRA.
See Washington Post Co., 254 N.L.R.B. 168, 169 (1981). The only question
before us is whether Dixie Electric’s petition was timely.
       The Board has held that unit clarification petitions may not be filed mid-
contract to upset an established collective bargaining agreement between a
union and employer. “Rather, unit clarification is appropriate, inter alia, for
resolving disputes concerning the unit placement of employees . . . whose duties
and responsibilities have undergone recent substantial changes which create
real doubt as to whether their positions continue to fall in the category –
excluded or included – that they occupied in the past.” N.L.R.B. v. Magna
Corp., 734 F.2d 1057, 1061 (5th Cir. 1984) (citing Massachusetts Teachers
Ass’n, 236 N.L.R.B. 1427, 1429 (1978)). While petitions may be entertained if
filed “shortly after” a contract is executed, the outer limit of “shortly after”
recognized so far is 79 days. See Baltimore Sun Co., 296 N.L.R.B. 1023, 1024
(1989).
       Here, the new contract between Dixie Electric and the union was
effective February 28, 2011. The union filed its charge on March 7, and Dixie


       1 Because we agree with the Board that Dixie Electric violated the NLRA by modifying
the scope of the bargaining unit without consent of the union or Board, we need not reach the
issue related to Dixie Electric’s alleged unilateral transfer of work outside the unit.
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Electric tacked a unit clarification petition on to its answer filed July 6. Dixie
Electric filed a full unit clarification petition on July 21. Thus, Dixie Electric
filed its petition more than four months after execution of the new contract.
Dixie Electric attributed its tardiness to the union’s failure to expressly request
bargaining on the issue and the union’s delay in filing its charge.
      We grant the Board “broad discretion in resolving unit clarification
questions” and only reverse when its conclusion is arbitrary and capricious.
Magna Corp., 734 F.2d at 1061 (citing N.L.R.B. v. Baton Rouge Waterworks
Co., 417 F.2d 1065, 1067 (5th Cir. 1969)). Under this deferential standard, we
find that the Board’s factual finding that Dixie Electric’s petition is untimely
is supported by substantial evidence. While there is no “precise . . . time limit
for the filing of such petitions,” Dixie Electric’s delay is far beyond the examples
in Board decisions and case law. Baltimore Sun Co., 296 N.L.R.B. at 1024.
Dixie Electric, moreover, offers no convincing explanation for its late filing.
Dixie Electric was not required to wait for the union to file its threatened
charge to request clarification of the unit from the Board. Considering the
petition   now   would    inappropriately    disrupt   the   parties’   bargaining
relationship, and therefore, the Board’s conclusion that the petition was
untimely is reasonable.       See Magna Corp., 734 F.2d at 1061 (citing
Massachusetts Teachers Ass’n, 236 N.L.R.B. at 1429).
                                       ***
      Dixie Electric’s petition is DENIED and the Board’s order is
ENFORCED.




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