IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60063

DIXIE ELECTRIC MEMBERSHIP CORPORATION, 

 Petitioner/Cross - Respondent

v.

NATIONAL LABOR RELATIONS BOARD, 

 Respondent/Cross - Petitioner

Petitions for Review of an Order

of the National Labor Relations Board

Before HIGGINBOTHAM, SOUTHWICK, and HIGGINSON, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

Dixie Electric Membership Corporation reclassified two categories of 

employees as supervisors, which caused those employees to be excluded from 

the bargaining unit covered by a collective bargaining agreement. The 

National Labor Relations Board concluded the corporation committed an 

unfair labor practice. Dixie Electric petitioned this court for review of the 

decision. We DENY the petition and ENFORCE the Board’s order.

FACTS AND PROCEDURAL BACKGROUND

Dixie Electric provides electricity for residential and commercial 

customers in southern Louisiana. For more than forty years, the International 

Brotherhood of Electrical Workers, Local Union 767 has represented 

United States Court of Appeals

Fifth Circuit

FILED

February 25, 2016

Lyle W. Cayce

Clerk

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No. 15-60063

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employees at Dixie Electric’s Baton Rouge, Louisiana facility. The relevant 

collective bargaining agreement (the “contract”) between Dixie Electric and the 

union was in effect from February 2007 to February 2011. The contract 

included chief systems operators and systems operators (collectively, “systems 

operators”) among employees in the bargaining unit. Systems operators are 

primarily control-room dispatchers responsible for assigning field personnel to 

address power outages and other problems. They also monitor and control 

certain electrical systems, analyze outages, prioritize work assignments, and 

maintain records. 

In August 2010, Dixie Electric began making plans to adjust the duties 

of systems operators and reclassify them as supervisors. Dixie Electric’s chief 

executive officer, John Vranic, met with Floyd Pourciau, the union’s business 

manager, on November 17 to discuss the decision. Vranic gave Pourciau a 

letter memorializing the details, which provided:

[E]ffective December 1, . . . the . . . Systems Operator and Chief 

Systems Operator . . . will be eliminated and new management 

positions having the same titles will be utilized . . . . Existing 

employees will be promoted to the new management positions.

Pourciau objected and said the union would file an unfair labor practice charge. 

Another Dixie Electric official, Ronald May, testified that he met with affected 

employees to notify them of the reclassification about one week earlier. Dixie 

Electric provided those individuals with a similar letter. Dixie Electric 

effectuated its plan, as promised, on December 1. 

In February 2011, Dixie Electric and the union agreed on a new contract

effective through February 2015 (the “new contract”). The union reserved its 

objection to the reclassifications during negotiations, and both parties agreed 

to abide by a “final legal determination . . . on any charge or suit” as to whether 

the systems operators should be included in the bargaining unit. One month 

later, the union filed a charge alleging that Dixie Electric committed an unfair 

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labor practice by unilaterally removing employees from the bargaining unit. 

Dixie Electric filed a unit clarification petition in July concurrently with its 

answer to the charge seeking a final resolution as to whether the positions 

could be lawfully excluded under the new contract. Weeks later, Dixie Electric

filed a separate unit clarification petition. 

After briefing and a hearing, an administrative law judge (“ALJ”) held 

in January 2012 that Dixie Electric violated the National Labor Relations Act 

(“NLRA”) by modifying the scope of the bargaining unit, and in the alternative, 

transferring work out of the unit without bargaining over the subject. The ALJ 

did not consider Dixie Electric’s unit clarification petitions, deeming them

untimely. The National Labor Relations Board affirmed the decision in August 

2012. Dixie Elec. Membership Corp., 358 N.L.R.B. 120 (2012). Dixie Electric 

timely petitioned this court for review. The Board General Counsel filed a 

cross-petition for enforcement. At the time, two Board members’ appointments 

were under challenge as constitutionally infirm. This court stayed proceedings 

until the appointments issue was resolved. The Supreme Court later held that 

the appointments were invalid which, in turn, invalidated the Board’s Dixie 

Electric decision. See N.L.R.B. v. Noel Canning, 134 S.Ct. 2550 (2014). 

Thereafter, we vacated the Board’s 2012 order and remanded the case for de 

novo reconsideration. In November 2014, a newly constituted Board again 

adopted the ALJ’s findings and conclusions of law. Dixie Elec. Membership 

Corp., 361 N.L.R.B. 107 (2014). Dixie Electric timely petitioned for review. 

DISCUSSION

Board decisions that are “reasonable and supported by substantial 

evidence on the record considered as a whole” are upheld. Strand Theatre of 

Shreveport Corp. v. N.L.R.B., 493 F.3d 515, 518 (5th Cir. 2007); see also 29 

U.S.C. § 160(e). “Substantial evidence is such relevant evidence as a 

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reasonable mind would accept to support a conclusion.” J. Vallery Elec., Inc. 

v. N.L.R.B., 337 F.3d 446, 450 (5th Cir. 2003) (quotation marks omitted). This 

court reviews the Board’s legal conclusions de novo, but “will enforce the 

Board’s order if its construction of the statute is reasonably defensible.” Strand 

Theatre, 493 F.3d at 518 (quotation marks omitted).

I. Unilateral Modification of the Scope of the Unit

The Board concluded Dixie Electric violated Section 8(a)(5) and (d) when 

it eliminated the systems operator positions mid-contract and gave those 

employees new positions outside the bargaining unit. See 29 U.S.C. § 158(a)(5), 

(d). Dixie Electric did not squarely address the alleged impropriety of 

unilaterally making that change on appeal. Instead, it focused almost 

exclusively on whether the affected employees are supervisors. The Board did 

not make a factual finding on that issue, reasoning that whether the affected 

employees are supervisors is irrelevant because Dixie Electric voluntarily 

chose to include them in the unit.

The scope of a unit covered in a contract is a permissive subject of 

bargaining. National Fresh Fruit & Vegetable Co. v. N.L.R.B., 565 F.2d 1331, 

1334 (5th Cir. 1978). Thus, an employer cannot insist on bargaining to impasse 

over the “construction of an appropriate unit so as to exclude certain members.” 

Hess Oil & Chem. Corp. v. N.L.R.B., 415 F.2d 440, 445 (5th Cir. 1969). The 

rationale underlying this principle is that the parties cannot bargain 

meaningfully about mandatory subjects, like terms and conditions of 

employment, “unless they know the unit of bargaining.” Id. at 444. For the 

same reasons, the Board has also long held that the scope of a unit, once 

established, cannot be unilaterally modified while a contract is in effect. See 

Arizona Elec. Power, 250 N.L.R.B. 1132 (1980). Other circuits recognize that 

“if an employer could vary unit descriptions at will, it would have the power to 

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sever the link between a recognizable group of employees and its union as the 

collective bargaining representative of these employees,” which would render 

a contract meaningless. See Hill-Rom Co. v. N.L.R.B., 957 F.2d 454, 457 (7th 

Cir. 1992). We agree and hold that an employer who unilaterally removes a 

job title from a bargaining unit mid-contract violates the NLRA.

Here, it is undisputed that Dixie Electric unilaterally modified the scope 

of the unit. The contract expressly included systems operators. Dixie Electric 

admittedly made the decision to remove those job titles from the unit during 

the life of the contract without approval from the Board and with express 

disapproval from the union. We agree with the NLRB that such action is an 

unfair labor practice. See Arizona Elec. Power, 250 N.L.R.B. at 1132. 

In its brief, Dixie Electric implies that because supervisors are not 

afforded rights under the NLRA, it was permitted to remove systems operators 

from the bargaining unit regardless of the contract. See 29 U.S.C. § 152(3)

(defining “employee”), (11) (defining “supervisor”); id. § 164(a) (providing that 

employers may not be compelled to include supervisors in a unit). As 

previously discussed, the Board reasoned that an employer may voluntarily 

recognize a unit containing supervisors. We need not address Dixie Electric’s 

argument, though, as it was unaccompanied by any legal support on appeal. 

See United States v. Tomblin, 46 F.3d 1369, 1376 n.13 (5th Cir. 1995) (holding 

that a petitioner does not preserve an issue by making an assertion in its brief 

without providing any legal argument indicating its basis). 

It is clear, based on the facts, law, and arguments properly before us, 

that the bargaining unit covered in the contract included systems operators. 

By unilaterally removing those classifications of employees from the 

bargaining unit during the term of the contract, Dixie Electric violated the 

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

 

II. Unit Clarification Petition

Turning to Dixie Electric’s attempt to clarify the bargaining unit, both 

parties and the Board appear to agree that a unit clarification petition is the 

appropriate vehicle to determine whether the affected employees were 

supervisors for purposes of the new contract. Unit clarification procedures 

provide the Board with the authority to clarify units established by a contract 

if certain classifications of employees should not be included under the NLRA. 

See Washington Post Co., 254 N.L.R.B. 168, 169 (1981). The only question 

before us is whether Dixie Electric’s petition was timely. 

The Board has held that unit clarification petitions may not be filed midcontract to upset an established collective bargaining agreement between a 

union and employer. “Rather, unit clarification is appropriate, inter alia, for 

resolving disputes concerning the unit placement of employees . . . whose duties 

and responsibilities have undergone recent substantial changes which create

real doubt as to whether their positions continue to fall in the category –

excluded or included – that they occupied in the past.” N.L.R.B. v. Magna 

Corp., 734 F.2d 1057, 1061 (5th Cir. 1984) (citing Massachusetts Teachers 

Ass’n, 236 N.L.R.B. 1427, 1429 (1978)). While petitions may be entertained if 

filed “shortly after” a contract is executed, the outer limit of “shortly after” 

recognized so far is 79 days. See Baltimore Sun Co., 296 N.L.R.B. 1023, 1024 

(1989).

Here, the new contract between Dixie Electric and the union was 

effective February 28, 2011. The union filed its charge on March 7, and Dixie 

 

1 Because we agree with the Board that Dixie Electric violated the NLRA by modifying 

the scope of the bargaining unit without consent of the union or Board, we need not reach the 

issue related to Dixie Electric’s alleged unilateral transfer of work outside the unit.

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Electric tacked a unit clarification petition on to its answer filed July 6. Dixie 

Electric filed a full unit clarification petition on July 21. Thus, Dixie Electric 

filed its petition more than four months after execution of the new contract. 

Dixie Electric attributed its tardiness to the union’s failure to expressly request 

bargaining on the issue and the union’s delay in filing its charge.

We grant the Board “broad discretion in resolving unit clarification 

questions” and only reverse when its conclusion is arbitrary and capricious. 

Magna Corp., 734 F.2d at 1061 (citing N.L.R.B. v. Baton Rouge Waterworks 

Co., 417 F.2d 1065, 1067 (5th Cir. 1969)). Under this deferential standard, we 

find that the Board’s factual finding that Dixie Electric’s petition is untimely 

is supported by substantial evidence. While there is no “precise . . . time limit 

for the filing of such petitions,” Dixie Electric’s delay is far beyond the examples 

in Board decisions and case law. Baltimore Sun Co., 296 N.L.R.B. at 1024. 

Dixie Electric, moreover, offers no convincing explanation for its late filing. 

Dixie Electric was not required to wait for the union to file its threatened 

charge to request clarification of the unit from the Board. Considering the 

petition now would inappropriately disrupt the parties’ bargaining 

relationship, and therefore, the Board’s conclusion that the petition was 

untimely is reasonable. See Magna Corp., 734 F.2d at 1061 (citing 

Massachusetts Teachers Ass’n, 236 N.L.R.B. at 1429).

* * *

Dixie Electric’s petition is DENIED and the Board’s order is 

ENFORCED. 

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