Atlantic City Electric Co v. NLRB
5 F.4th 298
| 3rd Cir. | 2021Background
- Atlantic City Electric’s central control-room system operators monitor and remotely control transmission, prioritize work, and prepare/communicate switching instructions; field supervisors select and dispatch crews for field work.
- IBEW Local 210 petitioned to include system operators in the existing bargaining unit; after two Board-directed elections, the operators voted to join and the Union was certified.
- The Company refused to bargain, arguing system operators are statutory "supervisors" under NLRA § 2(11) and thus excluded from coverage; the Board found unlawful refusal to bargain and ordered bargaining.
- On review the Board and court focused on whether system operators (1) assign employees to places or times and (2) "responsibly direct" employees — and in each case whether their authority involves independent judgment.
- The Third Circuit applied substantial-evidence review to the Board’s factual findings, rejected the Company’s procedural challenges, and enforced the Board’s order holding system operators are not supervisors.
Issues
| Issue | Company’s Argument | Board/Union’s Argument | Held |
|---|---|---|---|
| Standard-of-proof / evidentiary principles | Board applied an improper heightened or "clear/unclear" standard and imported a summary-judgment-like rule inconsistent with the preponderance standard | Company forfeited these objections by not raising them adequately before the Board | Forfeited; court lacks jurisdiction to consider the new standard-of-proof objections |
| Assignment to places | System operators’ prioritization of work effectively assigns crews to locations; Entergy precedent supports finding assignment authority | Operators only recommend/prioritize; field supervisors actually select crews and can refuse requests | Substantial evidence supports Board: operators do not have assignment-to-place authority |
| Assignment to times (shifts/overtime) | Prioritization affects how long crews remain and can create overtime — demonstrating assignment-to-time authority | Scheduling, shift assignment and overtime decisions rest with field supervisors; operators cannot require crews to stay | Substantial evidence supports Board: operators do not assign employees to times |
| Responsible direction / independent judgment | Preparing and confirming switching instructions and prioritizing outages show accountable oversight and independent judgment | Operators prepare instructions under detailed manuals, do not monitor hands-on, and are not held accountable for field employees’ performance | Substantial evidence supports Board: no responsible-direction or independent-judgment sufficient for supervisor status |
Key Cases Cited
- Mars Home for Youth v. NLRB, 666 F.3d 850 (3d Cir. 2011) (explains "responsibly to direct" and accountability requirement)
- Kentucky River Cmty. Care v. NLRB, 532 U.S. 706 (2001) (burden and framework for statutory supervisor analysis)
- Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998) (clarifies review standard and application of preponderance standard)
- NLRB v. New Vista Nursing & Rehab., 870 F.3d 113 (3d Cir. 2017) (distinguishes cases where absence of any example of exercised authority undermines claimed supervisor power)
- NLRB v. NSTAR Elec. Co., 798 F.3d 1 (1st Cir. 2015) (permissible to find lack of assignment-to-time authority where operators can only request overtime)
- Entergy Miss., Inc. v. NLRB, 810 F.3d 287 (5th Cir. 2015) (addresses independent-judgment issue for dispatchers and was distinguished on facts)
- NLRB v. FedEx Freight, Inc., 832 F.3d 432 (3d Cir. 2016) (preservation-of-issue precedent cited re: notice to the Board)
- Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982) (exhaustion requirement under §10(e) is jurisdictional)