national labor relations board - Politico

Case: 15-50497

Document: 00513391862

Page: 1

Date Filed: 02/23/2016

UNITED STATES GOVERNMENT

NATIONAL LABOR RELATIONS BOARD OFFICE OF THE GENERAL COUNSEL Division of Legal Counsel Contempt, Compliance & Special Litigation Branch 1015 Half Street, S.E., 4th Floor Washington, D.C. 20003

Direct: 202.273.2937 Facsimile: 202.273.4244 [email protected]

February 23, 2016 VIA ECF Mr. Lyle W. Cayce, Clerk U.S. Court of Appeals for the Fifth Circuit 600 South Maestri Place New Orleans, Louisiana 70130-3408 Re:

Associated Builders and Contractors of Texas, Inc., et al. v. NLRB

Case No. 15-50497 Citation of supplemental authorities pursuant to Fed. R. App. P. 28(j)

Dear Mr. Cayce: Per Federal Rule of Appellate Procedure 28(j), Defendant-Appellee NLRB brings to the Court’s attention its recent precedential decision in Entergy Mississippi v. NLRB, 810 F.3d 287 (5th Cir. 2015) (attached).

Entergy involved review of the Board’s interpretation of several terms contained in Section 2(11) of the NLRA (the Act’s definition of “supervisor”). 29 U.S.C. § 152(11). The history of the case involved no fewer than two ALJ decisions, four Board decisions, and a prior Circuit Court decision. Entergy, 810 F.3d at 29192. Two aspects of Entergy are noteworthy. First, this Court rejected Entergy’s argument that the Board had improperly changed its legal position, holding that “federal courts must defer even to new, course-reversing agency positions when ‘the new policy is permissible under the statute, ... there are good reasons for it, and ... the agency believes it to be better, which the conscious change of course adequately indicates.’” Id. at 293 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)).

Case: 15-50497

Document: 00513391862

Page: 2


Page 2

Entergy thus demonstrates that the Board’s conscious decision to overrule Barre-National, Inc., 316 NLRB 877 (1995), is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837, 843 (1984).

NLRB Br. 7, 26.

Second, while affirming most of the Board’s decision, this Court vacated and remanded for the Board to reconsider whether dispatchers “assign” employees using “independent judgment.” Entergy, 810 F.3d at 298. It rejected Entergy’s assertion that damages could not fairly be assessed against it due to “laches.” Id. at 298-99. Thus, nearly thirteen years and eight decisions after the case arose, the supervisory status of Entergy’s dispatchers remains unsettled.

Entergy illustrates that a requirement that all supervisory issues be litigated before the election would not operate to provide certainty to the parties. Compare NLRB Br. 35-36 with RLC Br. 11. Disputes over the supervisory status of a single job classification can take years to finally resolve. Accordingly, whether supervisory issues should be litigated before the election or afterwards is a matter the Rule properly leaves to regional directors’ sound discretion, subject to Board review. Respectfully submitted, /s/ Nancy E. Kessler Platt NANCY E. KESSLER PLATT Deputy Assistant General Counsel National Labor Relations Board 1015 Half Street, S.E., 4th Floor Washington, DC 20570 (202) 273-2937 [email protected]

Enclosure: cc:

December 7, 2015 Decision of the Court of Appeals for the Fifth Circuit

Counsel of record (via the Court’s electronic filing system)

Case: 15-50497

Document: 00513391862

Page: 3


CERTIFICATE OF SERVICE I hereby certify that on February 23, 2016, I electronically filed the foregoing letter with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the appellate CM/ECF system. I certify that the foregoing document was served on all parties or their counsel of record through the CM/ECF system. s/Nancy E. Kessler Platt NANCY E. KESSLER PLATT

Deputy Assistant General Counsel National Labor Relations Board 1015 Half Street SE Washington, DC 20570 (202) 273-2937 Dated at Washington, DC this 23rd day of February, 2016