
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1006                       NORTHEAST UTILITIES SERVICE CORPORATION,                                     Petitioner,                                          v.                           NATIONAL LABOR RELATIONS BOARD,                                     Respondent.                                 ____________________                   INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,                               LOCAL 455, AFL-CIO-CLC,                                      Intervenor                                 ____________________                     ON PETITION FOR REVIEW AND CROSS-APPLICATION                            FOR ENFORCEMENT OF AN ORDER OF                          THE NATIONAL LABOR RELATIONS BOARD                                 ____________________                                        Before                            Selya and Cyr, Circuit Judges,                                           ______________                             and Zobel,* District Judge.                                         ______________                                _____________________               Gregory  B. Nokes,  with whom  Kevin D. O'Leary,  William H.               _________________              ________________   __________          Narwold, and Cummings & Lockwood were on brief for petitioner.          _______      ___________________               Margaret Gaines Neigus, Supervisory Attorney, National Labor               ______________________          Relations  Board,  with  whom  Frederick  L.  Feinstein,  General                                         ________________________          Counsel, Linda Sher, Acting  Associate General Counsel, Aileen A.                   __________                                     _________          Armstrong, Deputy  Associate General  Counsel, Peter  D. Winkler,          _________                                      _________________          Rosemary  Pye,  National  Labor  Relations  Board,  Marshall   T.          _____________                                       _____________          Moriarty, and Maskele and Moriarty were on brief for respondent.          ________      ____________________                                 ____________________                                  September 20, 1994                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    ZOBEL,  District  Judge.   Northeast  Utilities Service                    ZOBEL,  District  Judge.                            _______________          Corporation (the "Company") petitions for review of a final order          of the National Labor  Relations Board (the "Board").   The Board          cross-applies  for  enforcement  of  that  order,1   pursuant  to          sections 10(e) and (f)  of the National Labor Relations  Act (the          "Act"),  29 U.S.C.A.    160(e),(f)(West  1973).   The only  issue          before this Court  is whether  the Board  had substantial  record          evidence  to conclude  that certain  of the  Company's employees,          known as  Pool Coordinators ("PCs") and  Senior Pool Coordinators          ("SPCs"), are  neither "supervisors" within section  2(11) of the          Act  nor  managerial employees  and  therefore  may constitute  a          collective bargaining unit.                                          I.                     International Brotherhood of Electrical Workers, Local          455 (the "IBEW"), filed  a petition with the Board  seeking to be          certified  as exclusive  collective bargaining  representative of          the PCs and SPCs.  The Company opposed the petition on the ground          that  these employees were exempt  from the Act  because of their          supervisory and managerial status.   Based on evidence  presented          at preelection hearings, the regional director found that neither          PCs  nor SPCs  were  supervisors or  managers.   Accordingly, she          directed  an election.  The  Company filed a  timely "Request for          Review" which the Board rejected as raising no substantial issues          warranting reconsideration.                                        ____________________          1  The Board's November 24, 1993, Decision and Order  is reported          at  313 N.L.R.B. No.  65 (Nov. 24,  1993).  It  rests on findings          issued April 8, 1993.                                           -2-                    The IBEW  prevailed in the election held  May 11, 1993,          whereupon the  regional director  certified it as  the collective          bargaining  representative of  the  PCs and  SPCs.   The  Company          declined  the IBEW's subsequent  request to bargain collectively;          it  still insisted  that the  PCs and  SPCs were  supervisors and          managers exempt from the  proposed bargaining unit.  On  June 17,          1993,  the IBEW  filed  an unfair  labor  practice charge.    The          Board's  general  counsel then  issued  a  complaint and  amended          complaint  on the charge that  the Company refused  to bargain in          violation of section  8(a)(1) and (5) of  the Act, 29  U.S.C.A.            158(a)(1),(5)(West 1973).   He subsequently moved to transfer the          proceedings to the Board  and for summary judgment.   On November          24,  1993,  the Board  granted the  motion,  as it  found  no new          evidence  or  special  circumstances   that  would  cause  it  to          reexamine its  representation decision.   It  therefore concluded          that the Company's refusal to bargain violated the Act.                                         II.                    In the  late  1960s New  England's  electric  utilities          created  the  New England  Power  Pool  ("NEPOOL") to  centralize          control of the region's  power supply.  NEPOOL is  an association          of roughly one hundred utility companies in the six-state region,          which  in   turn  operate   approximately  three   hundred  power          generating  plants.   NEPOOL  is  divided  into three  divisions,          NEPOOL  billing,  which manages  transactions within  the system;          NEPLAN,  which forecasts  future  power needs;  and NEPEX,  which          controls daily power generation and transmission.                                         -3-                    The Company  is responsible for staffing  each division          pursuant  to  a  service  contract  with  NEPOOL.    All  support          functions  are  provided  by   the  Company  as  well,  including          personnel   management,  accounting  and  purchasing.    Vacation          schedules, exempt  payment plans, hiring,  evaluation and  firing          practices  are  uniformly prescribed  by  the Company  throughout          NEPOOL's divisions.  Thus,  every employee of a  NEPOOL operating          division is an employee of the Company.                    NEPEX in Holyoke, Massachusetts, is the master dispatch          and control center  for bulk  power throughout New  England.   It          regulates the  day-to-day production, sale and  purchase of power          by  each  of  the   approximately  three  hundred  NEPOOL  member          utilities.   Because of the  complexity of this  task, NEPEX does          not communicate directly with each of the component power plants,          but   instead  relays   instructions  through   four  "satellite"          operations.   The  satellites  are regionally  organized:   Rhode          Island, Eastern Massachusetts and Vermont are within the "REMVEC"          satellite;  Connecticut  and  Western  Massachusetts  within  the          "CONVEX" satellite;  New Hampshire  and  Maine each  has its  own          satellite organization.   CONVEX employees are  also employees of          the Company but the other satellites are independently staffed.                                          III.                    The employees at issue work in the  NEPEX control room,          the  nerve center  of all  NEPEX operations.   The  PCs  and SPCs          (collectively  "Coordinators") are  responsible  for  buying  and          selling  power  among the  member  utilities  as economically  as                                         -4-          possible while avoiding power outages.  They decide which  plants          will operate  at what times and  at what power levels.   They set          and implement maintenance  schedules for  both generating  plants          and transmission elements.  If control room equipment should need          repair  or maintenance, they  may order  those services  from the          plant's engineers,  in accordance with  priorities set in  one of          fourteen "Operating  Procedures" promulgated  by NEPOOL to  guide          the Coordinators in their several responsibilities.                    The  control   room  is  in  constant   operation;  the          Coordinators work in  teams of three -- one SPC and two PCs -- in          twelve-hour  shifts.   During "business hours," from 8:30 a.m. to          4:00  p.m. on weekdays, a supervisor  and assistant supervisor of          control  room operations  also work  at the  plant; at  all other          times  they are on  call.  They  audit and  formally evaluate the          Coordinators' overall performance, sometimes  with input from the          SPCs.   During nonbusiness hours,  the PCs  and SPC are  the only          employees on duty.                     The PCs alternate each shift between two positions, the          "generation/load"  PC and  the  "transmission/security" PC.   The          generation/load PC buys and  sells "contract" and "economy" power          from all member and nonmember plants, and reserves  enough unused          capacity  to ensure  continued operation  in the  event  that the          largest single generator shuts down.                      The transmission/security  PC monitors the  New England          bulk power system, prepares for power coverage in  the event of a          plant  shutdown, and has final authority to approve or disapprove                                         -5-          transmission outage applications.    This  employee also has  the          authority  to  dispatch  power uneconomically  if  such  dispatch          contributes  to  overall   system  reliability.    Further,   the          transmission/security   PC   monitors  the   system   to  prevent          cascading, that is, to ensure that no single transmission element          in   the  system   overloads  any  other   transmission  element.          Ultimately, the security PC  may direct limited power  outages by          reducing  voltage or "shedding load" to prevent a more widespread          blackout.                     The  SPC's duties are similar to those of the PCs', but          rather   than   looking   at   the    system's   minute-to-minute          requirements, the  SPC forecasts the system's  needs from several          hours to one day in advance.  Witnesses for the Company testified          the  SPC is "in  charge" of the  shift.  As  the more experienced          employee in the  control room,  the SPC may  attempt to  moderate          disputes  between  the generation/load  and transmission/security          PCs  but there  was  no evidence  that  the  SPC gave  orders  or          instructions.   On the contrary, the record suggests that the SPC          is too  busy with his/her  own duties  to oversee the  PCs' work.          Except for informal discussions with the control room supervisor,          the SPC does not evaluate PCs' performance and is not responsible          for discipline, termination of  employment, or for approving time          sheets or leave.  During nonbusiness hours, if a PC cannot report          to  work, the SPC contacts a shift replacement from a preexisting          "spares" list.                    Although NEPEX PCs and SPCs are paid at a higher salary                                         -6-          grade than  satellite operators, they have no  authority to hire,          fire,  evaluate  or  promote   satellite  employees.    Should  a          satellite operator refuse to  comply with NEPEX instructions, the          PC or  SPC would not  have the power  to discipline or  recommend          discipline.   Instead,  the  NEPEX coordinator  would relate  the          incident  to  NEPEX  upper  management who  would  contact  upper          management at the satellite and attempt to resolve the matter.                    Both  PCs  and  SPCs have  substantial  authority  with          respect to NEPEX's day-to-day functions, but even in this respect          their discretion  is limited by the directives  in fourteen NEPEX          Operating Procedures.  The Procedures define the broad parameters          to  be followed  as  the  PCs  and  SPCs  conduct  the  dispatch.          However,  not every facet of  every procedure is  dictated by the          Operating Procedures and Coordinators  are often expected to rely          upon  their own  knowledge,  skills and  experience  to make  the          system work.                                         IV.                     Supervisors are excluded from the Act's  definition of          "employees"  and hence may not  be included in  a bargaining unit          designated by the  Board.   29 U.S.C.A.     152(3), 159(b)  (West          1973).  Section 2(11) of the  Act, 29 U.S.C.   152(11), defines a          "supervisor" as                      [A]ny 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                                         -7-                      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  statute is read in  the disjunctive, "with  the existence of          any one of the statutory  powers sufficient to confer supervisory          status  regardless  of the  frequency  of its  exercise."   Maine                                                                      _____          Yankee  Atomic Power  Co. v.  NLRB,  624 F.2d  347, 360;  NLRB v.          __________________________________                        _______          Magnesium Casting Co., 427  F.2d 114, 117 (1st Cir.  1970), aff'd          _____________________                                       _____          on other grounds, 401 U.S. 137 (1971).          ________________                    We   are   especially   deferential   to   the  Board's          determination  of  supervisory  status because  we  recognize the          Board's  competence  and experience  in applying  the Act  to the          complexities  of industrial life.   NLRB v.  Erie Resistor Corp.,                                              ____________________________          373  U.S. 221,  236  (1963);   Maine  Yankee,  624  F.2d at  360.                                         _____________          Further,  the  "infinite  and  subtle  gradations  of  authority"          existing in the workplace  entitle the Board to wide  latitude in          determining   which  employees  fall  within  the  definition  of          "supervisor."   Marine Eng'rs Beneficial Ass'n  v. Interlake S.S.                          _________________________________________________          Co., 370 U.S.  173, 179  n.6 (1962); Goldies,  Inc. v. NLRB,  628          ___                                  ______________________          F.2d 706, 710 (1st Cir. 1980).    Our deference is not unlimited,          however;  we will  only  affirm the  Board's  decision if  it  is          supported by  "substantial evidence," drawn from  the totality of          the record.   Universal Camera  Corp. v. NLRB, 340  U.S. 474, 488                        _______________________________          (1951); Maine Yankee, 624 F.2d at 360.                  ____________                    The  Company concedes  that the  PCs and  SPCs have  no          authority to "hire, transfer,  suspend, lay off, recall, promote,          discharge,   assign,  reward,  or  discipline  other  employees."                                         -8-          Instead,  it  contends  that  the  Coordinators  are  supervisors          because  they  "responsibly  .   .  .  direct"  CONVEX  satellite          employees and NEPEX engineers, and the exercise of that authority          requires the use of independent judgment.                    PCs   and  SPCs   are  unquestionably   highly  trained          employees  who use  independent  judgment to  make and  implement          complex technical decisions that affect the entire region's power          supply.  They  do not, however, "responsibly . .  . direct" other          employees  within the meaning of the statute.  "To be responsible          is to be answerable for the  discharge of a duty or  obligation."          Maine Yankee, 624  F.2d at 361 (quoting  Ohio Power Co. v.  NLRB,          ____________                             _______________________          176 F.2d 385, 387 (6th Cir.), cert. denied, 338 U.S. 899 (1949)).                                        ____________          The uncontroverted evidence established that the PCs and SPCs are          not answerable for the conduct of satellite operators.  The NEPEX          coordinators  are  permitted  merely to  report  CONVEX  employee          failures to NEPEX upper management, and it is upper management at          the satellite that  is ultimately responsible for the  actions of          CONVEX operators.  By the  same token, although PCs and  SPCs use          independent  judgment  within  the  guidelines  of  the Operating          Procedures to determine  whether and when to  direct engineers to          service control  room equipment, there  is no evidence  that they          answer for engineering or equipment failures.                    The  Company maintains  that  the SPCs,  as the  senior          employees  in the  control  room during  nonbusiness hours,  also          supervise  PCs.  However, its assertion that SPCs were in "charge          of the shift" in  the control room supervisor's absence,  is also                                         -9-          not  supported by the evidence.   Nothing in  the record suggests          that they had ultimate responsibility for the plant's performance          during  nonbusiness  hours,  in  fact  the  record  notes that  a          supervisor is always  on call.   Moreover, SPCs  do not  evaluate          PCs'  performance,  although  the  control  room  supervisor  may          request SPCs'  input.  SPCs do  not have authority to  hire or to          assign work;  only as a matter  of routine may they  fill an open          shift  from a preexisting list.   If the  SPCs moderate disputes,          the outcome is not ultimately their responsibility.  Finally, and          most  importantly, SPCs are simply  not held accountable  if a PC          disobeys a direct order, misquotes a price or causes a blackout.                    Petitioner relies heavily on  Maine Yankee, 624 F.2d at                                                  ____________          347,  in which we reversed the Board's determination that a power          plant's  Shift  Operating  Supervisors ("SOSs"),  who  had duties          similar to those of  the Coordinators here, were not  supervisors          under the Act.  Its reliance is misplaced.  In that case we found          that  the SOSs  did  responsibly direct  other employees  because          "should anything  go wrong with  respect to the  plant's electric          power output,  '[the SOS] is  the one  that would have  to answer          why.'"   Id. at  361.  The  Coordinators in this  case may direct                   __          CONVEX  operators, but  they  are not  responsible  for what  the          satellite  employees actually do.   Further, in Maine Yankee, the                                                          ____________          Board  ignored  or  depreciated   evidence  that  the  SOSs  used          independent judgment in their direction of other employees.  Here          the Board implicitly recognized  that the Coordinators are highly          trained   employees  with  substantial   discretion,  within  the                                         -10-          Operating Procedures,  to instruct  other employees.   The Board,          however,  refused to take the further step of concluding that PCs          and SPCs  were responsible for  other employees' actions,  and in          that, we conclude, it was correct.                                          V.                    The  Company   also  argues  that  PCs   and  SPCs  are          managerial employees and therefore  exempt.  The Act  itself does          not explicitly exclude  managers, but they have been  excluded by          judicial  interpretation  because   managers'  interests  are  so          aligned with  the interests of the employer  that managers cannot          be deemed  employees for the purposes  of the Act.   NLRB v. Bell                                                               ____________          Aerospace Co., 416 U.S. 267, 283-89 (1974).  Managers are defined          _____________          as those  who "'formulate  and effectuate management  policies by          expressing   and  making   operative  the   decisions   of  their          employer.'"  NLRB v. Health Care  & Retirement Corp.,  114 S. Ct.                       _______________________________________          1778,  1782  (1994) (quoting  Bell Aerospace,  416 U.S.  at 288);                                        ______________          Boston  Univ. Chapter, Am. Ass'n of Univ. Professors v. NLRB, 835          ____________________________________________________________          F.2d 399, 400 n.3 (1st  Cir. 1987).  Generally, employees  may be          excluded from a bargaining unit on the basis of managerial status          only  if  they "represent[]  management  interests  by taking  or          recommending  discretionary actions  that effectively  control or          implement employer policy."  NLRB v. Yeshiva University, 444 U.S.                                       __________________________          672, 683 (1980).                    The  Company's  argument   is  unpersuasive  given  the          paucity  of evidence tending to show managerial powers in the PCs          or SPCs.  Management policy at NEPEX is embodied in the Operating                                         -11-          Procedures formulated  by the Operations Committee.   There is no          evidence that  PCs  or  SPCs  have  a role  in  the  creation  or          implementation  of  the  Operating  Procedures.    Certainly  the          Coordinators may  sometimes depart from the  Procedures, but they          do  not have the  authority to issue  new ones.   Finally, at the          core  of the managerial question is the alignment of workers' and          employer's  interests.  Other than the common goal of keeping the          lights on,  the  record shows  no  such congruence  of  interests          between the  Company and  the Coordinators sufficient  to warrant          the latter's exemption from the Act.                                         VI.                    It  is the function of this Court to review the Board's          decision in accordance  with the "substantial evidence" test.  It          is  the Board's  "primary function  to determine  those who  as a          practical  matter  fall  within  the statutory  definition  of  a          'supervisor.'"   Interlake S.S. Co.,  370 U.S.  at 179 n.6.   The                           __________________          Board undoubtedly  had substantial  evidence on the  record as  a          whole to conclude that the PCs  and SPCs did not meet the current          definition  of "supervisors."   However, when  the Board  and the          courts  set  upon  the task  of  defining  a  supervisor for  the          purposes of the statute, neither contemplated the type  of quasi-          professional,  quasi-overseer employee  encountered in  this case          and others in the  public utilities setting.   It may profit  the          Board to reexamine its views in this field.                     The  Company's petition  for review  is denied  and the          Board's application for enforcement of its order is granted.                                         -12-                    Affirmed.                    Affirmed                    ________                                         -13-
