NLRB v. NSTAR Electric & Gas Company

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Rogeriee Thompson, Appellate Judge and David J. Barron, Appellate Judge. Published. [14-1622, 14-1724]

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Date Filed: 08/17/2015

Entry ID: 5930543

United States Court of Appeals
For the First Circuit
Nos. 14-1622, 14-1724
NATIONAL LABOR RELATIONS BOARD,
Petitioner, Cross-Respondent,
v.
NSTAR ELECTRIC COMPANY,
Respondent, Cross-Petitioner.

APPLICATION FOR ENFORCEMENT AND CROSS-PETITION FOR REVIEW
OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD

Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.

Jeffrey W. Burritt, with whom Usha Dheenan, Supervisory
Attorney, Richard F. Griffin, Jr., General Counsel, Jennifer
Abruzzo, Deputy General Counsel, John H. Ferguson, Associate
General Counsel, and Linda Dreeben, Deputy Associate General
Counsel, were on brief, for petitioner.
Keith H. McCown, with whom Jeffrey S. Siegel and Morgan, Brown
& Joy, LLP, were on brief, for respondent.

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BARRON, Circuit Judge.

Date Filed: 08/17/2015

Entry ID: 5930543

The National Labor Relations

Act, 29 U.S.C. §§ 151-169, requires a company to bargain with a
union that represents "employees" of that company.

In this case,

the National Labor Relations Board asks us to enforce an order
that requires an electric and gas company to bargain with a union
that seventeen of the company's dispatch-center workers voted to
join.

The company's cross-petition for review contends, however,

that the company has no obligation to bargain with the union on
behalf of those workers.

The company argues that these workers'

responsibilities make them either "supervisors" or "manager[s]"
rather than "employees," and thus that the Act does not protect
their right to have the union represent them.

We hold that

substantial evidence supports the Board's finding that the company
failed to make that showing, even though these workers are highly
skilled and charged with critical tasks. We thus grant the Board's
petition to enforce the Board's order and deny the company's crosspetition for review.
I.

Background

This case ultimately turns on what the administrative
record shows about what these workers have the authority to do.
To see which of their job functions matter and why, it helps to
understand the legal background.

And so, before describing who

these workers are and what authority they have, and the procedural
path that brings this case to us, we describe the relevant parts
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of the National Labor Relations Act and some key Board decisions
and court precedents.
A.

Legal Background

The Act provides that "[e]mployees shall have the right
to . . . join . . . labor organizations,"

29 U.S.C. § 157, and a

company must bargain with the union the company's employees choose
to represent them, id. § 158(a)(5).
that

not

all

persons

a

company

The Act makes clear, however,
employs

enjoy

that

right.

Specifically, the Act states that "any individual employed as a
supervisor" is not an "employee."

Id. § 152(3).

As a result,

"supervisor[s]" do not have the right to join a union under the
Act.

See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 709

(2001).
that

And thus an employer has no duty to bargain with a union

purports

supervisors.

to

represent

workers

who

in

fact

qualify

as

See id.

The reason that the Act does not protect supervisors is
easy to grasp.

The Supreme Court explained in 1974 that the Act

"was intended to protect 'laborers' and 'workers' whose right to
organize and bargain collectively had not been recognized by
industry, resulting in strikes, strife, and unrest."
Aerospace Co., 416 U.S. 267, 279 (1974).

NLRB v. Bell

The Court went on to

explain that "there was no similar history with respect to foremen,
managers, superintendents, or vice presidents."

Id.

Moreover,

Congress was concerned that "unionization of supervisors had . . .
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upset the balance of power in collective bargaining, . . . tended
to blur the line between management and labor," and "deprived
employers of the loyal representations [sic] to which they were
entitled."

Id. at 281.
A related logic underlies a second exclusion under the

Act.

This one covers so-called "managerial" employees.

The

Supreme Court read this exclusion into the Act -- as an implied
limit on the meaning of the word "employee" -- for reasons not
unlike those that led Congress expressly to exclude supervisors.
See id. at 274-75.
A great deal of Board and judicial precedent addresses
the scope of these two exclusions.

A surprising number of those

precedents concern the status of electrical workers who, loosely
speaking, do work similar to that done by the electrical workers
at issue here.
For a long time, the Board regularly held that such
workers

--

often

called

electrical

dispatchers

--

were

supervisors or managerial employees and thus could unionize.
e.g., Ariz. Pub. Serv. Co., 182 N.L.R.B. 505 (1970).

not
See,

But in the

1980s, in Big Rivers Elec. Corp., 266 N.L.R.B. 380, 383 n.2 (1983),
the Board overruled those decisions and found such workers to be
supervisors.

In 1999, however, the Board reversed course again.

In Mississippi Power & Light Co., 328 N.L.R.B. 965 (1999), the
Board overruled Big Rivers and found that electrical workers in
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that case -- and others like them -- were "employees" and thus
could unionize.
Soon after the Board decided Mississippi Power & Light
in 1999, however, a new complication arose.

In 2001, the Supreme

Court held in Kentucky River that the Board's construction in that
case

of

one

part

of

the

Act's

supervisor

inconsistent with the statutory text.

definition

532 U.S. at 721.

was

And while

that case involved nurses, not electrical workers, see id. at 710,
the Board's decision in Mississippi Power & Light had relied on a
very similar construction of the same piece of the supervisor
definition that the Court rejected in Kentucky River.

See Miss.

Power & Light, 328 N.L.R.B. at 970.
So, in 2011, the Board once again revisited the status
of electrical dispatchers in a case called Entergy Mississippi,
Inc., 357 N.L.R.B. No. 178 (2011).

And there, the Board applied

the new interpretation of the supervisor definition that the Board
had developed after Kentucky River in Oakwood Healthcare, Inc., a
case that also (like Kentucky River) involved the status of nurses.
See 348 N.L.R.B. 686, 692 (2006).
interpretation,

the

Board

then

On the basis of that new
again

found

the

dispatchers to be employees rather than supervisors.
Mississippi, 357 N.L.R.B. No. 178, at 5.

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electrical
See Entergy

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B.

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Factual Background

It is against this winding legal background that this
dispute over the status of these electrical workers now comes to
us.

In September of 2013, these workers, who were employed at an

electric and gas company located in New England, sought to vote on
whether to join a union.

The union was Local 369 of the Utility

Workers Union of America, AFL-CIO.
Company,

a

public

utility

The company was NSTAR Electric

engaged

in

the

transmission

and

distribution of electricity and gas.
NSTAR

manages

and

transmission equipment.1

maintains

high-voltage

electrical

That transmission equipment connects

electrical generators -- power plants -- with facilities known as
"substations."

Those facilities then convert the electricity to

a lower voltage for distribution to homes and businesses throughout
New England.
NSTAR
transmission
unanticipated

must

carefully

equipment.
changes

in

monitor

Otherwise,
demand

for

and

equipment
electricity

maintain

its

failures
could

or

cause

widespread blackouts not only in NSTAR's coverage areas but also
in the region's broader electrical grid.

1

We base our description on the undisputed portions of the
decision that the Board's Acting Regional Director for Region 1
issued in this matter.
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To perform its maintenance operations, NSTAR must be
able to take its transmission equipment out of service -- or, as
the industry puts it, to de-energize the equipment.

NSTAR must be

able to do so, moreover, without endangering its employees or
imperiling the reliability of the grid.
To safely and reliably de-energize the equipment, NSTAR
relies

on

"switching

orders."

They

set

forth

step-by-step

procedures for the sequential opening and closing of switches in
the electrical system.
interrupt

the

flow

of

NSTAR uses these switching orders to
electricity

to

particular

transmission

equipment.
To write switching orders, execute switching procedures,
and carry out maintenance on de-energized equipment, NSTAR relies
on a range of workers.
responsible
implement

for

Over seven hundred "field employees" are

carrying

switching

out

orders

the
and

physical
maintain

transmission and distribution systems.
"field

supervisors"

directly

oversee

work

necessary

NSTAR's

to

electrical

About thirty first-line
the

field

employees

and

assign them to shifts, worksites, and geographic regions. Multiple
layers of NSTAR management then oversee the field supervisors.2

2

The field employees are already members of the Union, and
the parties agree that the field supervisors are ineligible to
unionize because of their supervisor status.
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The seventeen NSTAR workers involved in this dispute
work in a large control room in NSTAR's dispatch center.

They

oversee the reliability and maintenance of NSTAR's transmission
system.

They work with a software program called "SCADA" that

provides data on the status of NSTAR's transmission system.
The first group of these workers are Transmission System
Supervisors, or TSSs.

They monitor NSTAR's transmission system in

real time, energize and de-energize equipment to allow maintenance
work, and react to unforeseen events that disrupt the transmission
system.

They also write switching orders.
The second group of workers are Senior Transmission

Outage Coordinators, or STOCs.

STOCs perform analyses of the

effect of future operations on NSTAR's transmission system.

STOCs

run simulations to determine when maintenance work can be done
consistent

with

NSTAR's

work

plan

performance of the transmission system.

without

disrupting

the

STOCs work with field

supervisors to ensure that an adequate number and type of field
employees will be available to perform scheduled work when needed.
STOCs also fill in for TSSs with "some regularity."3

3

There are sixteen workers among those two groups. There is
also a single worker involved in this case -- the seventeenth
worker at issue -- known as a "Transmission Operations Support
Specialist," or TOSS, who sought to join the Union along with the
TSSs and STOCs. The parties stipulated before the Board that the
TOSS is entitled to join the union if, and only if, either the
TSSs or the STOCs are.
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Procedural Background

In September of 2013, the Union petitioned the Board to
conduct a representation election for the TSSs and STOCs that NSTAR
employs. NSTAR objected that the TSSs and STOCs were "supervisors"
or "managerial employees" and thus were not "employees" under the
Act.

A hearing officer held a seven-day hearing on the matter in

September and October of 2013.

Drawing on that record, the Acting

Regional Director for Region 1 of the Board ruled that NSTAR had
failed to show that TSSs and STOCs are either "supervisors" or
"managerial"

employees.

The

Acting

Regional

Director

thus

concluded that they were "employees" under the Act and that an
election must be held so that the TSSs and STOCs could vote on
whether to join the Union.
On

January

29,

2014,

the

Board,

dissenting, denied NSTAR's request for review.

with

one

member

The Board ruled

that the Acting Regional Director's determination "rais[ed] no
substantial issues warranting review."
conducted the election.
join the Union.

That same day, the Board

The TSSs and STOCs unanimously voted to

On February 10, 2014, the Board certified the

Union as representing the TSSs and STOCs.
After NSTAR refused to bargain with the Union as the
representative of the TSSs and STOCs, the Union filed an unfair
labor practice charge with the Board against NSTAR on February 13,
2014.

The Board found that NSTAR had refused to bargain with the
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Union as a certified representative of the TSSs and STOCs.

The

Board thus ordered NSTAR to bargain with the Union on their behalf.
The general counsel of the Board filed an application in this Court
to enforce that order, and NSTAR filed a cross-petition for review.
See 29 U.S.C. § 160(e), (f).

NSTAR's cross-petition challenges

the Acting Regional Director's determination that the company
failed to show that the electrical workers are "supervisors" or
"managerial" employees.

We consider each of these contentions in

turn, starting with the supervisor issue.4
II.

Supervisor Exclusion

The Act sets forth a "three-part test" for determining
supervisor status.

Ky. River, 532 U.S. at 712-13.

Workers are

supervisors if (1) "they hold the authority to engage in any 1 of
the 12 listed supervisory functions [in the Act]," (2) their
exercise

of

such

authority

"requires

the

use

of

independent

judgment," as opposed to "routine or clerical" judgments, and,
finally, (3) "their authority is held 'in the interest of the
employer.'"

Id. at 713 (quoting NLRB v. Health Care & Ret. Corp.

of Am., 511 U.S. 571, 573-74 (1994)); see also 29 U.S.C. § 152(11).

4

Because the Board declined to exercise its discretionary
authority to review the Acting Regional Director's determination
in this case, see 29 U.S.C. § 153(b); 29 C.F.R. § 102.67(a);
Magnesium Casting Co. v. NLRB, 401 U.S. 137, 142 (1971), we focus
our review on the determination the Board's Acting Regional
Director for Region 1 made.
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The parties' dispute concerns only the first two parts
of the test.

And with respect to the first part, we need address

only the three statutorily listed supervisory functions that NSTAR
contends that the TSSs and STOCS have the authority to perform.
Those three functions are: the power to "assign," the power
"responsibly

to

direct,"

"effectively

recommend"

and

hiring)

the

power

other

to

"hire"

employees.

29

(or

to

U.S.C.

§ 152(11).
The second part of the test then focuses on whether a
supervisory
judgment."
that

a

function

requires

the

exercise

See Ky. River, 532 U.S. at 713.

worker

supervisory

has

the

function

authority

that

to

requires

"independent

If an employer shows

carry
the

of

out

use

at

of

least

one

"independent

judgment," that worker is a supervisor under the Act.

See id.

The Acting Regional Director ruled that NSTAR failed to
show that the STOCs possessed the authority to perform any of the
three supervisory functions at issue. The Acting Regional Director
likewise ruled that NSTAR had not shown that the TSSs had the
authority to perform two of the three functions -- the power
"responsibly to direct" and the power to "hire."

Finally, the

Acting Regional Director found that NSTAR had not shown that the
TSSs would be required to use "independent judgment" to carry out
those activities that he assumed (but did not decide) amounted to
a power to "assign."

As a result, the Acting Regional Director
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found that neither STOCs nor TSSs were supervisors, as NSTAR had
the burden of showing they were.
In

challenging

See Ky. River, 532 U.S. at 711.

the

Acting

Regional

Director's

determinations, NSTAR first takes aim at the Acting Regional
Director's legal interpretation of the supervisor definition.
NSTAR then challenges his findings of fact.

We consider each

challenge in that order.
A.

Chevron Deference

When Congress does not speak to the precise question at
issue in a statute that an agency administers, we ordinarily defer
to the agency's reasonable resolution of the ambiguity.

See

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984).

That deferential framework clearly applies

to the Board's interpretation of the Act's supervisor definition.
See Ky. River, 532 U.S. at 713 ("[I]t is certainly true that the
statutory term 'independent judgment' is ambiguous with respect to
the

degree

of

discretion

required

for

supervisory

status."

(emphasis omitted)); Health Care & Ret. Corp. of Am., 511 U.S. at
579 (explaining that it "is no doubt true" that "phrases in [the
supervisor

definition]

such

as

'independent

judgment'

and

'responsibly to direct' are ambiguous").
But NSTAR argues that two of the Board decisions on which
the Acting Regional Director based his interpretation of the
supervisor

definition

nevertheless
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not

deserve

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The decisions are Oakwood Healthcare, 348 N.L.R.B. at

692, which applied the supervisor definition to nurses following
the

Supreme

Court's

decision

in

Kentucky

River,

and

Entergy

Mississippi, 357 N.L.R.B. No. 178, at 7, which then applied Oakwood
Healthcare's

construction

of

the

supervisor

definition

to

electrical dispatchers.
NSTAR makes clear its displeasure with the outcomes the
Board has reached in decisions that apply the supervisor definition
set forth in Oakwood Healthcare and Entergy Mississippi.

NSTAR

even cites statistics to show that those decisions rarely lead the
Board

to

find

that

workers

are

supervisors.

But

a

narrow

construction of the supervisor definition is not unworthy of
deference just because it favors employees seeking to unionize.
The question is whether the construction -- like the one the
Supreme Court rejected in Kentucky River -- is "overly narrow"
given the statutory text and purposes.

Oakwood Healthcare, 348

N.L.R.B. at 688 (emphasis added).
So far as we are aware, every circuit that has considered
the

question

has

deferred

to

the

portions

of

the

Board's

construction of the supervisor definition in Oakwood Healthcare on
which Entergy Mississippi relied, and on which the Acting Regional

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And, save for one exception,6 NSTAR

makes no developed argument for why the interpretation of the
definition set forth in those two Board decisions is overly narrow.
NSTAR does contend that the Supreme Court's decision in
Kentucky River shows the Acting Regional Director should have
relied on the analysis set forth in Big Rivers, 266 N.L.R.B. at
383, in which the Board had found that electrical dispatchers were
supervisors, rather than on the distinct interpretation of the
supervisor definition set forth later in Oakwood Healthcare and
Entergy Mississippi.
As

the

But NSTAR is mistaken on that point.

Board

explained

in

Entergy

Mississippi,

Big

Rivers was "decided under a different standard for determining
supervisory status than the one set forth in Oakwood Healthcare

5

See Lakeland Health Care Assocs., LLC v. NLRB, 696 F.3d
1332, 1339 (11th Cir. 2012); Frenchtown Acquisition Co. v. NLRB,
683 F.3d 298, 304 & n.1 (6th Cir. 2012); Rochelle Waste Disposal,
LLC v. NLRB, 673 F.3d 587, 594-95 (7th Cir. 2012); Mars Home for
Youth v. NLRB, 666 F.3d 850, 854 n.2, 855 n.3 (3d Cir. 2011).
6

In NSTAR's view, the Board in Entergy Mississippi adopted
an unduly narrow view of the power "responsibly to direct." NSTAR
contends that the Board wrongly required an employer to provide
evidence that an employee had been "disciplined or adversely
affected specifically because" another employee erred.
NSTAR
contends that it should be enough to show that an employee's
evaluations or compensation are in some way affected by the
performance of another employee in order to show that the employee
has the power "responsibly to direct." But the Acting Regional
Director did not reject the possibility that evidence of some other
form of TSS or STOC accountability for field employee performance
could count. Rather, the Acting Regional Director simply found no
such other evidence in the record.
Thus, we have no need to
consider this issue.
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pursuant to the Supreme Court's guidance in Kentucky River."
Entergy Miss., 357 N.L.R.B. No. 178, at 7. Thus, the Board decided
in

Entergy

Mississippi

that

it

would

apply

the

new

Oakwood

Healthcare standard, developed in Kentucky River's wake, rather
than the one Big Rivers set forth.

Id.

NSTAR never explains why Entergy Mississippi was wrong
to do so.

NSTAR does note that the Fifth Circuit, in Entergy Gulf

States v. NLRB, 253 F.3d 203, 211 (5th Cir. 2001), ruled that Big
Rivers's approach to determining supervisor status should control
after

Kentucky

River.

But

the

Fifth

Circuit

came

to

that

conclusion five years before the Board, in Oakwood Healthcare,
revised its interpretation of the Act with respect to nurses to
reflect Kentucky River, and ten years before the Board then applied
Oakwood

Healthcare

Mississippi.

to

electrical

dispatchers

in

Entergy

As a result, the Fifth Circuit's decision offers no

reason to conclude that Kentucky River requires the Board to follow
a Board decision that pre-dated that Supreme Court ruling (Big
Rivers)

rather

than

to

follow

the

two

Board

decisions

that

expressly applied that Supreme Court ruling's reasoning (Oakwood
Healthcare and Entergy Mississippi).7

7

We note that in an unpublished opinion, the D.C. Circuit
reached the same conclusion we reach, distinguishing Entergy Gulf
States and instead deferring to the Board's application of Oakwood
Healthcare to electrical dispatchers. See Avista Corp. v. NLRB,
496 F. App'x 92, 92 (D.C. Cir. 2013) (unpublished).
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In sum, NSTAR makes no developed argument that the two
Board decisions on which the Acting Regional Director relied -Oakwood

Healthcare

or

Entergy

Mississippi

interpreted the Act's supervisor definition.8

--

unreasonably

Nor does NSTAR make

any such developed argument with respect to any other aspect of
the Act's interpretation on which the Acting Regional Director's
decision

depends.

We

thus

apply

the

interpretation

of

the

supervisor definition that the Acting Regional Director applied.
See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

And

so we proceed to consider whether, under that definition, the
Acting Regional Director supportably found that the TSSs and STOCs'
duties do not suffice to make them supervisors.
B.

Substantial Evidence Review

The Acting Regional Director made separate findings
about the supervisor status of TSSs and of STOCs.

In each case,

NSTAR bore the burden before the Board to show by a preponderance
of the evidence in the record that the workers are supervisors.
See Ky. River, 532 U.S. at 711.

Because the issue is one of fact,

our task is to determine whether substantial evidence in the

8

For that reason, NSTAR's heavy reliance on this Circuit's
decision in Maine Yankee Atomic Power Co. v. NLRB is also
misplaced. 624 F.2d 347 (1st Cir. 1980). That is because Maine
Yankee, like Big Rivers, was decided before the Board's decisions
in Oakwood Healthcare and Entergy Mississippi and thus did not
address those decisions' constructions of the Act, which differed
from those Maine Yankee applied. See Me. Yankee, 624 F.2d at 36163.
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record,

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considered

as

a

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whole,

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supports

the

Acting

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Regional

Director's determination that NSTAR failed to meet that burden.
See Ne. Utils. Serv. Corp. v. NLRB, 35 F.3d 621, 625 (1st Cir.
1994).
Under this deferential standard, we may not "displace
the Board's choice between two fairly conflicting views, even
though [we] would justifiably have made a different choice had the
matter been before [us] de novo."
U.S. 474, 465 (1951).

Univ. Camera Corp. v. NLRB, 340

And in this context, "[w]e 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."

Ne.

Utils., 35 F.3d at 624; accord Edward St. Daycare Ctr. v. NLRB,
189 F.3d 40, 46 (1st Cir. 1999) ("The determination of supervisory
status vel non, tinged as it is with policy implications, is within
the particular expertise of the Board.").
1.

TSSs

NSTAR contends at the outset that the TSSs' title,
"Transmission System Supervisor," in and of itself provides clear
evidence that the Acting Regional Director erred in finding that
TSSs are not supervisors under the Act.

But the Act, by its terms,

focuses on what workers are authorized to do, not what they are
called.

See 29 U.S.C. § 152(11).

Titles are merely "secondary

indicia of supervisory status" and thus are not alone dispositive.
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E.g., Beverly Enters.-Minn., Inc., 348 N.L.R.B. 727, 730 n.10
(2006); see also Jochims v. NLRB, 480 F.3d 1161, 1173-74 (D.C.
Cir. 2007) ("[I]t is well settled that 'the status of a supervisor
under the Act is determined by an individual's duties, not by [her]
title or job classification.'" (quoting Dole Fresh Vegetables,
Inc.,

339

N.L.R.B.

original)).

785,

785

(2003))

(second

alteration

in

Were that not so, an employer could give an employee

with no supervisory duties a supervisory title and thereby deny
that worker the protection that Congress intended the Act to
provide.
Moreover, in this case, the TSSs' title provides quite
weak "secondary indicia" of supervisor status.
whether the TSSs supervise "other employees."
(emphasis added).

The issue is

29 U.S.C. § 152(11)

The Acting Regional Director took the position

that they do not and that, in effect, the TSSs supervise the
operations of the transmission system.

The TSSs' title, by

identifying the TSSs as supervisors of the transmission system,
comports

with

that

conclusion.

Likewise,

the

TSSs'

prior

title -- "Bulk Power System Supply Coordinators" -- did not include
the word "supervisor" at all.

And there is no indication that

NSTAR gave these workers their new TSS title because they had been
given new responsibilities to supervise employees.
We thus put to one side the TSSs' title -- and the other
secondary indicia on which NSTAR relies -- and focus on the TSSs'
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authority.9

Specifically, we consider what the record shows about

the

power

TSSs'

to

exercise

the

three

statutorily-listed

supervisory functions at issue -- assign, responsibly to direct,
and hire.
a.

Assign

The Acting Regional Director first considered whether
TSSs

have

§ 152(11).

the

power

to

"assign"

other

employees,

29

U.S.C.

Relying on Oakwood Healthcare, the Acting Regional

Director explained (and NSTAR does not argue otherwise) that the
power to "assign" is more substantial than the power merely to
"direct."

Specifically, Oakwood Healthcare explained that the

9

This Circuit has never addressed the proper role of
"secondary indicia" -- evidence not directly related to the Act's
listed supervisory functions -- in the analysis of supervisory
status.
The Board has at times relied on such evidence as a
"further indicat[ion]" of supervisory status where the evidence
also showed that the worker performed a listed supervisory
function.
See, e.g., McClatchy Newspapers, Inc., 307 N.L.R.B.
773, 773 (1992); see also E & L Transp. Co. v. NLRB, 85 F.3d 1258,
1270 (7th Cir. 1996) ("Although not determinative on their own,
where one of the enumerated indicia in § 152(11) is present,
secondary indicia support a finding of statutory supervisor.").
Even if secondary indicia are potentially relevant where there is
not sufficient evidence to show that the worker in question carries
out one of the statutory supervisory functions with independent
judgment, we conclude that the Acting Regional Director's
determination that the TSS title and the other secondary indicia
cited by NSTAR are inconclusive was a reasonable one that is
supported by substantial evidence.
We separately discuss the
secondary indicia below in considering whether the TSSs are,
although not supervisors, "managerial" employees, and our
discussion there supplies our reasons for concluding that such
indicia also do not suffice, in this case, to make the workers
supervisors.
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power to assign implicates three distinct types of activities:
"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)," and "giving significant overall
duties . . . to an employee."

Oakwood Healthcare, 348 N.L.R.B. at

689 (emphases added).
i.

Designating an Employee to a Place

With respect to designating an employee to a place, the
Acting Regional Director found that that TSSs did "occasionally
dispatch field employees to re-assigned locations . . . and to
trouble locations."

The Acting Regional Director, like the Board

in Entergy Mississippi, then assumed without deciding that these
sorts of directions to go to particular locations to do discrete
tasks constitute assignments within the meaning of the statute.10
See Entergy Miss., 357 N.L.R.B. No. 178, at 7.

For that reason,

the Acting Regional Director proceeded to the second part of the
supervisor test.

He addressed whether NSTAR had shown that the

10

The Board had explained in Entergy Mississippi that
electrical dispatchers did in a sense assign field employees to
places, by telling field employees where to go "[d]uring trouble
outages." 357 N.L.R.B., No. 178, at 9. Entergy Mississippi did
not resolve, however, whether that was assignment or ad hoc
direction. The Board held instead that there was no independent
judgment involved in any event -- as would be necessary for any
assignment power to make the employees into supervisors -- because
"the dispatchers 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 7.
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performance of such tasks -- assuming they amounted to a power to
assign -- required the exercise of "independent judgment."
The Acting Regional Director took his definition of
"independent judgment" from Oakwood Healthcare.

There, the Board

held that "independent judgment" meant that "an individual must at
minimum act, or effectively recommend action, free of the control
of others and form an opinion or evaluation by discerning and
comparing data."
a

result,

independent

Oakwood Healthcare, 348 N.L.R.B. at 692-93.

Oakwood
if

it

Healthcare
is

explained,

dictated

or

"judgment

controlled

by

is

As
not

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.

Likewise,

[i]f there is only one obvious and selfevident choice . . . or if the assignment is
made solely on the basis of equalizing
workloads, then the assignment is routine or
clerical in nature and does not implicate
independent judgment, even if it is made free
of the control of others and involves forming
an opinion or evaluation by discerning and
comparing data.
Id.11

11

For the reasons we have already given, NSTAR supplies us
with no reason not to defer to the Acting Regional Director's
interpretation of the supervisor definition in general or of his
reliance on Oakwood Healthcare's interpretation of it in
particular, including with respect to the meaning of "independent
judgment."
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We

thus

proceed

to

Page: 22

assess

Date Filed: 08/17/2015

whether

substantial

Entry ID: 5930543

evidence

supports the Acting Regional Director's finding that NSTAR had not
shown that this particular power to assign -- assuming it qualified
as such -- involved the use of "independent judgment" as Oakwood
Healthcare construed those words.

The Acting Regional Director

explained that NSTAR had not shown that "any . . . judgments" the
TSSs made in "routing field employees to outage locations" were
"free of the control of others."

Rather, the Acting Regional

Director found that such judgments were "controlled by detailed
instructions."

The TSSs, the Acting Regional Director concluded,

"must follow established call-out procedures" in telling which
field employees where to report.
employee

is

sent

pursuant

to

And after the first field

those

procedures,

"the

first

responder, a field employee, informs the supervisor or TSS if
additional employees are needed," and if so, what type of employee
is needed.

The Acting Regional Director therefore concluded that

the record showed that "the TSSs' routing of field employees to an
outage location is nothing more than a routine task," and did not
involve "independent judgment."
NSTAR responds by pointing to certain pieces of evidence
in the record that might suggest the opposite conclusion.

But in

doing so, NSTAR does not address the competing record evidence on
which the Acting Regional Director relied.

One worker familiar

with TSS job duties, for example, explained that in deciding which
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field

Document: 00116876655

employee

to

send

Page: 23

to

Date Filed: 08/17/2015

complete

a

task,

Entry ID: 5930543

"[t]here's

no

discretion, you have one [field employee in a geographical area],
he's going, that's it."

Likewise, a TSS witness explained, a TSS

is "not really choosing [between workers].
pretty automatic.

I mean . . . it's

If the work is scheduled for the North you talk

to [the field employee scheduled for the North]. If it's scheduled
for the South you talk to [the field employee scheduled for the
South]."

This TSS witness further explained that this same,

"automatic" process applies to unplanned work, which he called
"[t]rouble."

And while the record shows that TSSs sometimes ask

field employees to do tasks outside their assigned areas, the
record also shows that this would happen only if the field employee
assigned to the area where the task takes place was unavailable,
in which case the TSSs would call the next closest field employee.12
We thus conclude that the record provides substantial
evidence to support the Acting Regional Director's conclusion that
NSTAR had failed to show that any assignments the TSSs made by
designating an employee to a place required the exercise of

12

The Acting Regional Director explained that the record
failed to show "that the TSSs[] perform an analysis of the field
employees' skill set and level of proficiency . . . when routing
field employees to an outage location." In contrast, he explained,
the Board in Oakwood Healthcare, in finding independent judgment,
emphasized that charge nurses found to be supervisors "analyzed
the personality of the staff and patients and specific skills or
abilities of the nursing staff in making assignments." See Oakwood
Healthcare, 348 N.L.R.B. at 697.
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independent judgment.

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Date Filed: 08/17/2015

Entry ID: 5930543

See NLRB v. Hilliard Dev. Corp., 187 F.3d

133, 140 (1st Cir. 1999) ("[T]he possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative
substantial

agency's

evidence."

finding
(quoting

from
Am.

Donovan, 452 U.S. 490, 523 (1981))).

being

Textile

supported
Mfrs.

Inst.

by
v.

And so we affirm this

finding.13

13

The Acting Regional Director did find that
in multiple outage situations the TSSs
prioritize trouble cases, and based upon the
status of a case, can route field employees
from one trouble case to another trouble case.
In prioritizing such cases, the TSSs consider
such things as the number of customers
affected, the size of the customer, and the
weather.

But the Acting Regional Director then explained that NSTAR had not
shown that such determinations were "free from the control of
others" rather than "controlled by detailed instructions." The
Acting Regional Director thus found that any assignments that
resulted from these prioritization decisions (and the designation
to places that they entailed) did not require the use of
independent judgment.
It is not immediately clear to us how
judgment of the type described by the Acting Regional Director's
finding regarding prioritization of trouble spots could be
circumscribed by detailed instructions, as the Acting Regional
Director found it was. But NSTAR's brief to us makes no argument
based on the Acting Regional Director's finding concerning
prioritization discretion during multiple trouble cases. In fact,
NSTAR's argument as to why the Acting Regional Director should
have concluded that TSSs assign field employees based on their
designating them to places does not mention trouble cases or
prioritization discretion at all. And our own review of the record
has turned up little evidence of any sort on whether TSSs made
prioritization decisions in the context of multiple trouble cases,
let alone how they went about making them when such issues arose.
In the absence of a developed argument from NSTAR contending that
this finding by the Acting Regional Director demonstrates that the
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ii.

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Entry ID: 5930543

Appointing an Employee to a Time

The Acting Regional Director next considered whether
TSSs have the authority to assign employees by virtue of their
power to appoint them to a "time." See Oakwood Healthcare, 348
N.L.R.B. at 689.

The dispute centers primarily on the TSSs'

authority to make decisions that lead to field employees working
overtime.

See id. (holding that "designating an employee to a[n]

. . . overtime period" would constitute an assignment).
The Acting Regional Director found that TSSs' decisions
to dispatch field employees to outage locations "can result in
overtime

expenses

for"

NSTAR,

because

the

field

employees

"generally work until the trouble is cleared[,] and even longer if
additional outages are anticipated."

The Acting Regional Director

explained, however, that a TSS "might authorize overtime" only
"after discussion with the field supervisor and/or" the TSS's own
supervisor, and that it was "[u]ltimately[] the field supervisors,
not the TSSs" who "possess full authority to assign and approve
overtime for field employees."

The Acting Regional Director thus

concluded that NSTAR had not shown that the TSSs had the authority
to assign overtime to field employees.

TSSs do have the authority to exercise independent judgment in
such circumstances, we treat any such argument as waived.
See
Zannino, 895 F.2d at 17.
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The

Acting

Page: 26

Regional

Date Filed: 08/17/2015

Director

reasoning in Entergy Mississippi.

relied

on

Entry ID: 5930543

the

Board's

See 357 N.L.R.B. No. 178, at 7.

The Board found there that while the electrical dispatchers in
that case could request overtime, they could not require employees
to work it.

Id. at 10.

And the Board held that the mere request

to do so did not amount to an assignment as to time.

Id.

NSTAR does not challenge in any developed way the Board's
distinction between requesting and requiring overtime for purposes
of determining what constitutes "assigning" as to time.

We thus

look to see if the record contains substantial evidence to support
the

Acting

Regional

Director's

finding

that,

as

in

Entergy

Mississippi, the workers in question -- the TSSs -- can request
but not require overtime.
One witness, who was a TSS, testified that a field
supervisor,

not

the

TSS,

made

the

decision

about

whether

particular field employee would work later than scheduled.

a

That

witness further testified that, as a TSS, he did not "authorize
overtime

of

people

in

the

field,"

and

supervisor gave such an authorization.

that

only

the

field

And that witness added

that he could not overrule a supervisor as a TSS regarding overtime
and that "all we can do is ask for it."
The

TSSs'

supervisor,

Conlon,

did

testify

that

"especially at the initial stage of it," TSSs could require field
employees to work overtime.

But Conlon later clarified that he
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was "sure" that a TSS who needed overtime from a field employee
would discuss it with either a field supervisor or with Conlon
first.

He also stated that "there's probably always some type of

discussion" before overtime is authorized.
NSTAR fails to identify competing evidence that -- in
the face of the evidence just reviewed -- compels a conclusion
contrary to the one that the Acting Regional Director reached.
See NLRB v. Reg'l Home Care Servs., Inc., 237 F.3d 62, 68 (1st
Cir. 2001); Hilliard Dev. Corp., 187 F.3d at 140.

We thus affirm

the Acting Regional Director's determination.
NSTAR does make one additional contention that TSSs
assign employees by appointing them to a time.

NSTAR contends

that TSSs do so "by deciding when work in the field will commence,
end, be delayed and recommenced, by sequencing work" and similar
actions.
The Acting Regional Director did not explicitly address
this argument in finding that TSSs made no assignments as to time.
But the Acting Regional Director's reasons for rejecting the
argument may be inferred from what the Acting Regional Director
did find.

In particular, the Acting Regional Director expressly

found that TSSs do not assign field employees to regular shifts or
reporting times.

And the Acting Regional Director further found

that TSSs can request, but cannot require, that field employees
stay past the end of their shifts to finish a job.
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Given

those

Page: 28

findings,

Date Filed: 08/17/2015

the

only

Entry ID: 5930543

remaining

possible

"times" that TSSs could assign are the start and end times of the
particular discrete tasks that whichever field employee is on duty
during the relevant period would be required to perform. The Board
ruled

in

Oakwood

Healthcare,

however,

that

the

authority

to

sequence work in that way does not constitute a power to assign.
See 348 N.L.R.B. at 689 (distinguishing between an assignment "to
a certain shift (e.g. night)" and "choosing the order in which the
employee will perform discrete tasks" during that shift).

And

NSTAR made no argument to the Acting Regional Director -- and makes
no argument to us -- that Oakwood Healthcare erred in concluding
that such sequencing decisions are not assignments.
We thus may infer from the Acting Regional Director's
decision that he hewed to the Board's construction of assignments
of time in Oakwood Healthcare in finding that the TSSs' sequencing
authority did not itself constitute authority to assign.

And

because the record contains substantial evidence to support a
finding that the TSSs held only this sequencing power, we affirm
the Acting Regional Director's determination that NSTAR did not
show that TSSs can assign other employees to a "time."
iii.

Giving Significant Overall Duties to an Employee
The Acting Regional Director also considered whether

TSSs possess the power to assign by virtue of their authority to
give "significant overall duties" to field employees.
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that NSTAR had not shown that TSSs possess such authority, the
Acting Regional Director relied on both Oakwood Healthcare and
Entergy Mississippi.
In Oakwood Healthcare, the Board distinguished between
giving a worker a broad category of responsibilities, which the
Board treated as an assignment, and directing a worker to do a
specific task, which the Board did not treat as an assignment (and
instead as only a direction).

For example, the Board explained

that ad hoc instructions like -- in a retail setting -- "restock[]
toasters before coffeemakers" did not constitute the assignment of
significant overall duties. 348 N.L.R.B. at 689. Or, as the Board
also explained, designating a nurse "to be the person who will
regularly administer medications to a patient or a group of
patients" is an assignment, but telling that nurse "to immediately
give a sedative to a particular patient" is not.

Id.

Entergy Mississippi then drew on that same distinction.
In doing so, it held that the electrical dispatchers in that case
did not assign significant overall duties because they gave field
employees only what amounted to "ad hoc instruction, i.e., trouble
work needing to get done before routine work."

357 N.L.R.B. No.

178, at 12.
NSTAR contends that TSSs do give employees significant
overall duties by writing and issuing switching orders.

In that

regard, NSTAR asserts that "[s]witching orders are perhaps the
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farthest thing from ad hoc . . . they are carefully researched and
planned work instructions, prepared with deep consideration of the
entire system as well as the specific issue to be addressed,
conceived with vitally important business and safety concerns."
NSTAR further points out that the most complex switching orders
can take days, or even weeks, to execute.
But, as the Acting Regional Director explained, "field
employees

receive

their

daily

supervisors," not from TSSs.14

assignments

from

their

direct

And it is those daily assignments

that tell field employees where they need to be, and when, to
conduct whatever switching operations are planned for that day.
The switching orders, by contrast, relay a set of specific,
individual actions that field employees must take to successfully
complete the overall duties their field supervisors have assigned
them.
Given

the

deference

we

owe

the

Acting

Regional

Director's expertise in defining the bounds of the supervisor
definition, see Ne. Utils., 35 F.3d at 624, we find his application

14

NSTAR criticizes the Acting Regional Director for stating
that TSSs get the information on which employee is assigned to
what overall tasks from a computer program called "TOA."
That
particular program, NSTAR tells us, is one that STOCs use, not
TSSs, and that program, NSTAR adds, contains outage schedules, not
field employee schedules.
But the record supports the Acting
Regional Director's statement, and in any event, it is undisputed
that TSSs were informed by field supervisors, if not via TOA then
by some other means, as to which field employees the field
supervisors had scheduled to execute the planned work.
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of

the

Document: 00116876655

distinction

on

Page: 31

which

Date Filed: 08/17/2015

Oakwood

Healthcare

and

Entry ID: 5930543

Entergy

Mississippi relied to the switching orders in this case to be a
supportable

one.

And

thus,

we

affirm

the

Acting

Regional

Director's finding that NSTAR did not show that the TSSs have the
power to assign significant overall duties.
b.
The

next

Responsibly to Direct

supervisor

function

the

Acting

Regional

Director addressed is the power "responsibly . . . to direct" other
employees.

29 U.S.C. § 152(11).

Here, the Acting Regional

Director relied on the "accountability definition" of responsible
direction the Board adopted in Oakwood Healthcare, 348 N.L.R.B. at
691-92, and then applied to electrical dispatchers in Entergy
Mississippi, 357 N.L.R.B. No. 178, at 6.15
The

Board

held

in

Oakwood

Healthcare

that

"[f]or

direction to be responsible, the person directing . . . 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 performed by the employee are not performed
properly."

348 N.L.R.B. at 691-92.

15

In particular, the employee

The Acting Regional Director also found that NSTAR had not
shown that the TSSs engage in any "direction" of any kind. But we
need not address that finding, because even if the Acting Regional
Director was wrong, and NSTAR did show that the TSSs "direct" other
employees, that error would be of no consequence if -- as we
conclude -- the Acting Regional Director supportably determined
that any direction the TSSs undertake was not "responsible."
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engaged in responsible direction must have not only the "authority
to direct the work and the authority to take corrective action,"
but also the "prospect of adverse consequences . . . if he/she
does not take these steps."

Id. at 692.

That definition, the

Board explained, protects the organizing rights of those employees
"whose interests, in directing other employees, is simply the
completion of a certain task."

Id.

Entergy Mississippi then applied this accountability
definition.

In doing so, the Board in that case held that

electrical dispatchers who had "the authority to direct field
employees in the step-by-step instructions of a switching order,"
but who were not "accountable for the actions of field employees
they direct," did not engage in responsible direction.
Miss., 357 N.L.R.B. No. 178, at 7.

Entergy

Rather, the Board concluded

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

own

failures

employees."

Id.

at

and
8.

errors,
NSTAR

and

not

makes

no

those

of

argument

the

field

that

this

accountability-based distinction between responsibility for the
work

of

others

and

responsibility

for

one's

own

incompatible with the Act's supervisor definition.16

16

work

is

Thus, the

Moreover, our own Northeast Utilities decision accords with
this distinction. 35 F.3d 621 (1st Cir. 1994).
In Northeast
Utilities, we affirmed the Board's conclusion that a group of
electrical workers called "Coordinators" -- employees similar to
TSSs -- did not responsibly direct field employees. Id. at 625.
In doing so, we applied a "responsible direction" standard that
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only issue for us is whether substantial evidence supports the
Acting Regional Director's finding that NSTAR had not met its
burden of showing that "TSSs are accountable for their actions in
directing field employees."

We conclude that record does support

that finding.
The Acting Regional Director acknowledged that Conlon,
the TSSs' manager, testified that "TSSs can be and have been held
accountable for field employee deficiencies."

But the Acting

Regional Director reasonably concluded that assertion was "simply
a conclusion without evidentiary value," and that "[t]he record
lack[ed] evidence that any TSS or STOC ha[d] been disciplined for
failure to oversee or correct a field employee, or as a result of
a field employee's failure to adequately perform her/his duties."
The Acting Regional Director also gave little weight to
an incident on which NSTAR relied heavily and that involved a TSS
being

written

up

negatively,

apparently

by

a

supervisor.

Specifically, Conlon recounted a situation in which a TSS "did not
properly perform all nine steps of the required pre-switching brief
prior to issuing the switching order," but in which the field
employee executing that order then did something that caused a
breaker to trip that should not have tripped.

also emphasized accountability.
See id.
We explained that
although "[t]he Coordinators in this case may direct [other
employees,] . . .
they are not responsible for what [those]
employees actually do." Id.
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But the Acting Regional Director supportably found that
the TSS was held responsible in this instance for how he did his
own work and not for how the field employee did his.

Conlon

testified that any decrease in the TSS's compensation based on
this incident would be "as a result of the switching error that
[the TSS] was involved in directly," rather than as a result of
the field employee's error.

And later, Conlon testified that he

had not held any of the TSSs or STOCs "accountable on paper, as a
negative on paper in their appraisals, for the field personnel
having committed some error."
NSTAR does argue that the Acting Regional Director erred
in emphasizing the lack of evidence "that any TSS or STOC has been
disciplined" for a supervisory failure.
Director

did

not

decide

that

an

But the Acting Regional

employee

must

actually

be

disciplined -- rather merely face the prospect of discipline -- in
order to be found to responsibly to direct other employees.

The

Acting Regional Director focused instead on what the record showed
about why the TSS was disciplined in this one instance on which
NSTAR relied.

And the Acting Regional Director did so only in the

course of applying the distinction the Board made in Oakwood
Healthcare and Entergy Mississippi between accountability for
one's own error and accountability for the error of another.
Finally, NSTAR argues that the TSSs have the authority
"responsibly to direct" other workers based on evidence that the
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TSSs' bonuses reflect, among other things, "the manner in which
they have managed projects in the field."

Substantial evidence,

however, supports the Acting Regional Director's finding that
NSTAR did not show that TSSs' bonuses suffice to make TSSs'
direction of field employees into "responsible" direction.
Conlon did testify that the TSSs are evaluated based on
achievement of "outage scheduling goals," and that without field
personnel work, those goals could not be achieved.17

But even

NSTAR acknowledges that a TSS's ability to meet his or her goals
is in significant part "determined by how the TSS decides to
structure a job," and thus by the TSS's own performance. Moreover,
Conlon provided no details to back up his statement, and he
conceded that he "didn't think there were any" examples of TSSs or
STOCs

ever

in

fact

personnel problems."

having

been

held

accountable

for

"field

In fact, with respect not only to switching

orders but also to "all other work episodes in which the TSSs or
[STOCs] had some role in directing work of some field personnel,"
Conlon conceded that he had found no examples "suggesting that
TSSs or [STOCs] were held accountable for the misdeeds of field
personnel." Thus, we affirm the Acting Regional Director's finding

17

Specifically, Conlon testified that "the reality of the
situation" was that if the field employees "didn't get all their
work done, . . . then it would reflect on my goals, my performance
plan." We assume that although Conlon used the first person, he
meant to refer to TSSs' goals and performance plans.
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that NSTAR failed to show that TSSs have the authority "responsibly
to direct" other workers.
c.

Hire

The last supervisory function that the Acting Regional
Director considered was the authority to "hire" (or to "effectively
. . . recommend" the hiring of) other employees.
§ 152(11).

29 U.S.C.

The Acting Regional Director supportably found that

NSTAR had not shown that TSSs have such authority.
The sole point of dispute concerns whether the TSSs have
the authority to "effectively recommend" the hiring of other TSSs.
29 U.S.C. § 152(11); see Empress Casino Joliet Corp. v. NLRB, 204
F.3d 719, 721 (7th Cir. 2000) (finding such authority where the
uncontradicted testimony showed that "the captains and first mates
interviewed job applicants and that [the official with final hiring
power] relied heavily on their recommendations").

But wherever

the line between non-supervisory involvement in hiring and an
"effective[]

recommend[ation]"

to

hire

may

fall,

the

Acting

Regional Director reasonably concluded that it was not crossed
here.
NSTAR relies on Conlon's testimony once again.

Conlon

testified that he introduced applicants for TSS positions to the
current TSSs at the end of the applicant's job interviews.

But

significantly, Conlon did not describe the TSSs' role in the hiring
process as a job interview, even though he described himself as
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conducting

"interviews"

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with

the

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candidates.

Entry ID: 5930543

Rather,

Conlon

testified that his purpose in having TSSs sit with job applicants
was to give the applicant "a feel for the job . . . and just give
[the current TSSs] a feel for the person that's coming in for an
interview." And Conlon said he did not seek to have any particular
TSSs meet with the applicant; "it's just whoever's on that day."
Conlon also testified that, afterwards, he would ask the
TSSs what they thought of the applicant.

And Conlon testified

that he did not recall ever hiring someone whom the current TSSs
did not favorably describe.

Nor did Conlon recall ever not hiring

someone whom the current TSSs did favorably describe.
But Conlon testified that the questions he asked of the
TSSs who had happened to meet with candidates were general ones:
"Say what do you think of this guy?

Do you think he'll fit in?

Do you think -- you know, does he know it?
going on?"

Does he get what's

And Conlon could not remember any "specific person[]"

whom he had declined to hire based on TSS feedback.

Moreover,

while Conlon testified that the last three TSSs he hired had been
well-liked by the current TSSs with whom they spoke, Conlon could
not recall the names of those TSSs nor any details on the nature
of the feedback those TSSs had offered.
It is thus not clear on this record how significant, if
at all, the TSSs' impressions were to Conlon's hiring decisions.
And, as a result, we conclude that the Acting Regional Director
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supportably

found

that

Page: 38

NSTAR

Date Filed: 08/17/2015

failed

to

meet

its

Entry ID: 5930543

burden

of

establishing that the TSSs' role in hiring rises to the level of
an effective recommendation sufficient to render it supervisory.
d.
Finally,

we

Shedding Load

reject

NSTAR's

contention

that

TSSs'

authority to take an action known as "shedding load" is a "salient
fact" that makes TSSs into supervisors.

"Shedding load" involves

intentionally cutting power to an area in order to preserve the
transmission system's stability.

TSSs do possess the authority to

"shed load," although no TSS has ever done so.

And TSSs do appear

to have the power to use independent judgment in making such a
decision and thus in directing others to assist in implementing
it.
The

Acting

Regional

Director's

discussion

of

load

shedding was brief, and he did not explicitly lay out his reasoning
for rejecting NSTAR's contention that load shedding authority
makes TSSs into supervisors.

But his reasoning can be inferred

from his decision as a whole.
In

particular,

after

the

Acting

Regional

Director

described the existence and extent of load shedding authority, he
then went on to conclude that NSTAR had not shown that TSSs use
independent judgment in designating employees to places, nor that
TSSs appoint employees to times, give them significant overall
duties, or responsibly direct them.
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thus necessarily found that NSTAR failed to show that load shedding
involved any of those powers.

And the record supports that

finding.
NSTAR

does

not

offer

any

explanation

for

how

load

shedding involves TSSs designating employees to places in a way
distinct from the way TSSs make such designations in "trouble"
cases, which, as explained above, the Acting Regional Director
supportably found does not require the use of independent judgment.
Likewise, NSTAR does not explain how load shedding would involve
giving employees significant overall duties.
NSTAR does contend that TSSs have the authority to
"direct others to implement" actions necessary to shed load.
direction

must

be

"responsible"

to

be

supervisory,

But

Oakwood

Healthcare, 348 N.L.R.B. at 692, and NSTAR offers no argument
(beyond the general one already addressed above) as to what in the
record shows that TSSs' power to direct others in the load shedding
context

meets

the

Board's

accountability

definition

of

"responsible direction" as articulated in Oakwood Healthcare.
Thus, the fact that some aspects of load shedding may
require the exercise of what the Act terms "independent judgment"
is beside the point.

For under the Act's supervisor definition,

it is only when a worker performs a listed supervisor function
that we then must determine whether its exercise requires the use
of "independent judgment."

And for that reason, we reject NSTAR's
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contention that the TSSs' authority to shed load compelled the
Acting Regional Director to conclude that the TSSs are supervisors.
2.

STOCs

We now turn to the findings regarding the supervisor
status of the STOCs.

The STOCs are more senior than the TSSs, but

the Acting Regional Director concluded that NSTAR also failed to
show that they were supervisors.

And we affirm that finding as

well.18
NSTAR points to no evidence in the record showing that
STOCs interact with field employees (other than when they stand in
for TSSs), much less showing that STOCs assign or responsibly
direct such employees. NSTAR's argument that STOCs are supervisors
is instead based on the assertion that STOCs "determin[e] which
work projects are to be completed and the sequencing of those
projects."

NSTAR contends that STOCs' sequencing and project-

management decisions have downstream effects on field personnel,
insofar

as

employees.

some

projects

require

different

types

of

field

For example, NSTAR argues that a STOC's decision to

schedule a particular project for a particular date may lead field
supervisors to schedule field employees to work on that date.

18

In fact, NSTAR's primary argument for why STOCs are
supervisors is that STOCs often perform the duties of the TSSs.
Needless to say, that argument is of no help to NSTAR given that
substantial evidence supports the Acting Regional Director's
conclusion that NSTAR failed to show that the TSSs are supervisors.
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But there is no evidence in the record that STOCs
themselves assign the employees who will complete the projects
that the STOCs schedule.

Rather, as the Acting Regional Director

found, it is the field supervisors, not the STOCs, who assign
employees to complete scheduled work.

Likewise, there is no

evidence in the record that STOCs direct field employees to take
any

discrete

tasks

"responsibly").

(much

less

evidence

that

STOCs

do

so

We thus defer to the Acting Regional Director's

determination that NSTAR failed to show that STOCs have the
supervisory

powers

to

assign

and

responsibly

direct

field

employees.
NSTAR also contends that STOCs have the authority to
"hire" other employees.

But the only evidence about STOC hiring

came in the testimony of Conlon, the TSSs' and STOCs' manager, and
it was equivocal at best.

Conlon testified that STOCs "could be"

involved in hiring, but that he could not "actually remember if
they were . . . or not."

In light of that testimony, we defer to

the Acting Regional Director's determination that STOCs, like
TSSs, have no power to "hire."
3.

Additional Arguments

NSTAR does argue at length that both TSSs and STOCs use
significant judgment in the course of their employment.

NSTAR

also argues that TSSs in particular have the power to tell other

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workers

to

take

Page: 42

particular

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actions.

And

NSTAR

Entry ID: 5930543

points

to

significant record evidence in support of each of those arguments.
But while TSSs and STOCs are clearly highly skilled workers who
sometimes

tell

supervisory

other

function

workers
only

what

if

it

to

is

do,

"direction"

"responsible

is

a

direction,"

Oakwood Healthcare, 348 N.L.R.B. at 692, or if it becomes so
substantial that it amounts to a power to "assign."
the

exercise

of

independent

judgment

makes

a

And, further,
worker

into

a

supervisor only if the worker exercises such judgment in connection
with a supervisory function.

Thus, using complex judgment to

direct does not itself suffice to make one a supervisor.
Likewise, we do not find persuasive NSTAR's contention
that

the

Acting

Regional

Director

erroneously

relied

on

"dismissive quantifications" to describe TSS and STOC duties,
thereby supposedly "ignor[ing] the legal import" of TSS and STOC
roles "by arguing that the instances simply do not occur often
enough."

NSTAR is right that even a rarely exercised power can

make a worker into a supervisor.

See Me. Yankee Atomic Power Co.

v. NLRB, 624 F.2d 347, 360 (1980). But, when considered with care,
the record shows that the Acting Regional Director did not conclude
that, because such powers were used with limited frequency, they
cannot count as supervisory functions under the Act.

Instead, we

read the Acting Regional Director to have supportably found that
NSTAR failed to show that the TSSs and STOCs have the authority to
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exercise any such functions or –- in the case of one sort of power
to assign -- that NSTAR failed to show that the TSSs and STOCs are
required to exercise independent judgment in exercising any such
function.

We thus affirm the Acting Regional Director's findings

that the TSSs and STOCs are not supervisors.
III.

Managerial Exclusion

Even if TSSs and STOCS do not qualify as supervisors,
they may nonetheless fall within the Act's exclusion of "managerial
employees."

The Supreme Court offered its most thorough guidance

as to the scope of this exclusion in NLRB v. Yeshiva University,
444 U.S. 672 (1980).
The Supreme Court held there that "an employee may be
excluded as managerial only if he represents management interests
by taking or recommending discretionary actions that effectively
control or implement employer policy."

Id. at 683.

The Court

further explained that "employees whose decisionmaking is limited
to the routine discharge of professional duties in projects to
which they have been assigned cannot be excluded from coverage,"
and that "[o]nly if an employee's activities fall outside the scope
of

the

duties

routinely

performed

by

similarly

professionals will he be found aligned with management."
690.

situated
Id. at

The Court also noted that, under this rule, "architects and

engineers functioning as project captains for work performed by
teams of professionals are deemed employees despite substantial
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planning responsibility and authority to direct and evaluate team
members."19

Id. at 690 n.3.

The Acting Regional Director found that the TSSs and
STOCs were not managerial employees.

NSTAR does not identify any

legal error the Acting Regional Director made in interpreting this
exclusion.

The

substantial

sole

evidence

issue

supports

for

us,

therefore,

the

Acting

is

Regional

whether

Director's

determination that NSTAR failed to meet its burden of showing that
TSSs and STOCs are managerial, as the Acting Regional Director
applied that term.

We conclude that substantial evidence does

support that finding.
A.
NSTAR

contends

that

TSS
TSSs

are

managerial

employees

because the record shows they may purchase additional electrical
generation

on

behalf

of

NSTAR,

19

revise

standard

operating

Kentucky River did hold, with respect to the separate
statutory exclusion of "supervisors," that the fact that judgment
was "professional or technical" was irrelevant to whether it was
"independent" as that word is used in the supervisor definition.
532 U.S. at 713. The managerial exception, however, is simply a
gloss on the meaning of the word "employee" and does not involve
the word "independent" at all. There is thus no reason to believe
that Kentucky River undermined this portion of Yeshiva University.
Cf. Evergreen Am. Corp. v. NLRB, 362 F.3d 827, 838 (D.C. Cir.
2004). And in any event, NSTAR makes no argument that Kentucky
River did have that effect.
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procedures, and their "loyalty lies with management, not the rankand-file."20

We consider each contention in turn.

With respect to TSSs' power to purchase electricity, the
Acting Regional Director concluded that their "occasional actions
in . . . requesting excess generation from utilities d[id] not
rise to the level of formulating and effectuating management
policies."

The Acting Regional Director thus distinguished TSSs

from workers that the Board had found to be managers based on their
purchasing power.

See Simplex Indus., Inc., 243 N.L.R.B. 111,

112-13 (1979); Cent. Me. Power Co., 151 N.L.R.B. 42, 44 (1965).
In

those

cases,

the

Acting

Regional

Director

explained,

the

workers' purchasing power had been more significant than the TSSs'
power, and less guided by employer policies.
NSTAR challenges the Acting Regional Director's finding
only by contending that the Acting Regional Director erred in
distinguishing Simplex Industries and Central Maine Power.

NSTAR

contends that in this case, as in those, there was no evidence of

20

As for TSSs' authority to "shed load," which is
unquestionably of great significance to NSTAR, we note that the
record shows, and NSTAR concedes, that regulations required NSTAR
to give such authority to the TSSs. That suggests that under the
Supreme Court's Yeshiva University decision, the TSSs' possession
of such authority is not beyond "the scope of the duties routinely
performed by similarly situated professionals" and as such not
managerial. 444 U.S. at 690. In any event, NSTAR does not mention
load shedding in contending that the TSSs are managers in its brief
to us, and so NSTAR has waived any contrary argument. Zannino,
895 F.2d at 17.
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an employer policy governing the purchases at issue.

But we

conclude that substantial evidence supports the Acting Regional
Director's conclusion that the workers in Simplex Industries and
Central Maine Power are distinguishable from the TSSs.
The record indicates that TSSs' authority to purchase
power is very different from the authority of the workers in
Simplex Industries and Central Maine Power.

The workers in those

cases had the authority to make discretionary purchases that, in
the workers' views, would best serve their employer's economic
needs.

See Simplex Indus., 243 N.L.R.B. at 112-13; Cent. Me.

Power, 151 N.L.R.B. at 44.

TSSs' purchasing authority involves no

similar discretionary exercise of unguided economic judgment about
how

to

serve

their

employer's

financial

interests.

To

the

contrary, the record suggests that TSSs have the authority to
purchase power only when doing so is necessary to alleviate
instability in the transmission system.

In fact, there was

testimony that TSSs were instructed to affirmatively ignore the
financial impact of all their choices.21

A TSS testified that

"economic consideration" played "[v]ery little . . . I would almost
say

no[]"

role

in

his

decision-making,

21

because,

under

their

The extent of that impact is, in any event, unclear. The
TSSs' manager, Conlon, testified that the TSSs decide whether to
purchase additional electrical power to ensure a stable
transmission system, which has the effect of "bringing on a more
expensive unit." But the record does not reflect how often such
purchases occur, or how financially significant they are to NSTAR.
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regulatory license "we're supposed to operate the system reliably
and safely and not factor in economics to any decisions we make."
And in the sole example in the record of a TSS having purchased
power, the TSS did so because a piece of NSTAR's transmission
equipment had malfunctioned and caused overloading of NSTAR's
other transmission equipment, which the purchase of electricity
alleviated.
We

thus

conclude

that

the

Acting

Regional

Director

reasonably determined TSSs' limited purchasing authority -- unlike
the more discretionary authority involved in Central Maine Power
and

Simplex

formulating

Industries
and

--

"d[id]

effectuating

not

management

rise

to

the

level

policies."

And

of
our

conclusion is reinforced by this Court's decision in Northeast
Utilities, which likewise involved electrical workers who had some
authority to purchase electricity.

35 F.3d at 626.

In Northeast Utilities, this Court affirmed the Board's
determination that "pool coordinators" responsible for "buying and
selling

power

among

the

member

utilities

as

economically

possible while avoiding power outages" were not managers.

as

35 F.3d

at 623. We explained that operating policies that the coordinators
did not set governed their purchasing decisions.

Id. at 626.

Beyond a "common goal of keeping the lights on," we found no
"congruence of interests between the Company and the Coordinators
sufficient to warrant the latter's exemption from the Act" as
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managers.

Id.

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We conclude that the Acting Regional Director

reasonably made the same determination with respect to TSSs.
NSTAR next argues that TSSs' role in revising standard
operating

procedures

makes

them

managers.

But

substantial

evidence supports the Acting Regional Director's finding that such
revisions

were

established

made

policy,"

"according
and

that

to,

the

and

TSSs

"do

consistent
not

with,

possess

the

authority to set policies according to their own independent
discretion."
The

TSSs'

manager,

Conlon,

testified

that

TSSs

had

updated some guides containing certain of the standard operating
procedures that TSSs follow.

But no evidence reveals the form

that the TSSs' work on updating such procedures took.

And without

such evidence, it is impossible to know whether the TSS were making
new policy in updating an old procedure, or merely clarifying an
existing

policy.

We

therefore

affirm

the

Acting

Regional

Director's conclusion that NSTAR failed to show, as was its burden,
that TSSs' role in revising standard operating procedures involved
the setting of management policy.
Finally,

NSTAR

contends

that

the

Acting

Regional

Director overlooked evidence about "TSSs' own perspective about
being managerial."

NSTAR relies on a self-evaluation form that a

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single TSS completed as part of his annual review.22

In that form,

the

within

TSS

emphasized

departmental

his

operating

efforts
and

to

"[o]perate

transmission

budget"

and

[the]
his

"aware[ness] of overtime and budgets."
But such statements do not necessarily indicate that
TSSs have a managerial status.

Nor does NSTAR cite any case or

Board decision finding comparable statements sufficient to make
workers into managers.

And thus, NSTAR's contention is inadequate

to undermine the Acting Regional Director's decision that TSSs are
not managerial employees.
B.

STOCs

NSTAR contends that the STOCs are managerial employees
primarily due to their role in coordinating planned transmission
system work. NSTAR also points to STOCs' role in revising standard
operating

procedures,

and

to

STOCs'

meetings.

We begin with the "coordinating" issue.

22

attendance

at

certain

While NSTAR relies solely on that single form, other indicia
in the record -- TSSs' pay scales, severance packages, and
attendance at certain meetings -- might reasonably be seen as
suggesting a similar point, namely, that NSTAR treats TSSs
differently from existing unionized employees, and expects
different things from them. But such differential treatment does
not establish that TSSs "represent[] management interests by
taking or recommending discretionary actions that effectively
control or implement employer policy," as is necessary for them to
be excluded from the Act's definition of "employee."
Yeshiva
Univ., 444 U.S. at 683.
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The record contains substantial evidence to support the
Acting Regional Director's conclusion that STOCs' role "does not
rise to the level. . . of expressing and making operative decisions
on behalf of the[ir] [e]mployer."

In particular, the record shows

that NSTAR's management policy concerning what transmission system
work NSTAR will perform each year is contained in an annual "work
plan."

And the record is clear that STOCs have no role in drafting

this work plan.23
The record also contains substantial evidence supporting
the Acting Regional Director's finding that any revisions to
standard operating procedures that STOCs made did not involve
setting management policy.

Rather, the record shows that such

revisions involved changing the written operating procedures to
more clearly and accurately reflect NSTAR's pre-existing policies,
not to change NSTAR's policies.
In particular, a STOC described his update to a guideline
as involving "a better way to . . . get the point across and make
it a little easier for people to understand."

Moreover, the STOC

said that he had merely "recommended" the change to the guideline

23

For example, a STOC testified that he had no role in putting
together the plan. And another STOC testified that "the system
planning group" -- on which no STOC or TSS sat -- would decide
what work would be done, and would assign a "project manager" -still not a STOC or a TSS -- to "oversee the project." Only then
-- and subject to such oversight -- would the project get
"scheduled with" a STOC.
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to some unspecified other person, who then made the decision to
adopt his changes.

Consistent with that view, Conlon, the STOC's

manager, described a STOC as having "influence without authority"
in revising an operating guide.

And Conlon listed a number of

other groups involved in the revision process.
That brings us to NSTAR's final argument. NSTAR contends
that

STOCs

participate

meetings,"

and

that

managerial

authority.

in

this
But

"many

different

participation
as

the

shows

Acting

management-only
that

Regional

they

have

Director

explained, the record does not show that the STOCs' role in those
meetings included the authority to "pledge or commit [NSTAR] to
any recommendations made by the groups" or otherwise themselves
set NSTAR's policy.
Director

went

on

to

To the contrary, as the Acting Regional
explain,

the

record

shows

that

"[a]ny

recommendations reached in the task forces that the . . . STOCs
attend . . . are subject to managerial review and approval" by
higher-level workers at NSTAR.
For example, a STOC testified that when the task force
he participates in "reaches a recommendation," the task force then
presents that recommendation to another, higher level task force,
which will either accept or reject it.

And, the STOC testified,

no STOC participates in that higher level task force, though
Conlon, the TSSs and STOCs' own manager, is a member of it.

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we conclude that the Acting Regional Director reasonably found
that NSTAR had not shown that the STOCs are managers.
Our conclusion on this point finds further support in
our decision in Northeast Utilities.

35 F.3d at 626.

In that

case, we referred to a "paucity of evidence tending to show
managerial powers," given that management policy seemed to be set
by a committee that the employees at issue were not part of.
The same could equally be said in this case.

Id.

The record supports

the conclusion that a committee that does not include STOCs
develops the work plan that the STOCs implement.

The record also

supports the conclusion that STOCs participate in groups that
simply make recommendations to higher-level employees who have
authority.

The

record

thus

does

not

show

that

STOCs

wield

managerial powers.
IV.
For

the

foregoing

Conclusion
reasons,

we

grant

the

Board's

application for enforcement of an unfair labor practice charge
against NSTAR, and deny NSTAR's cross-petition for review.

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