Petition — Arizona Public Service Co. v. National Labor Relations Board

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835 -

CASE #

Office -Supreme Court, U.S,

7438 FILED

OCT 13 1983

ALEXANDER L STEVAS,

CLERK

UNITED STATES SUPREME COURT

October, 1983 Term

ARIZONA PUBCLIC

SERVICE COMPANY,

Petitioner,

Vv.

NATIONAL LABOR

RELATIONS BOARD,

Respondent,

and

INTERNATIONAL

BROTHERHOOD OF

ELECTRICAL

WORKERS, AFL-CIO,

LOCAL 387.

PETITION FOR WRIT

OF CERTIORARI TO

THE UNITED STATES

COURT OF APPEALS

FOR THE NINTH

CIRCUIT

ii i i i i i a a a a a ee a ee

SNELL & WILMER

3100 Valley Bank Center

Phoenix, Arizona 85073

(602) 257-7313

By: Frederick K. Steiner, Jr.

Counsel of Record

Gerard Morales

Philip M. Prince

Attorneys for Petitioner

QUESTION PRESENTED FOR REVIEW

Is the National Labor Relations Board's (the “NLRB”

or “Board™) refusal to conduct a self-determination

election among Arizona Public Service Company's

(“APS*”)' Palo Verde Nuclear Generating Station employees

(the “Palo Verde employees”) to determine whether or not a

majority of those employees wish to become part of an

existing bargaining unit or remain unrepresented an

unwarranted departure from well established judicial and

NLRB precedent and in derogation of the NLRB’s duties

pursuant to §§7 and 9 of the National Labor Relations Act

(the “Act”)?

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ......................0000: ii

REFERENCE TO OFFICIAL AND UNOFFICIAL

EN ctl ediddh doeueseiicds saben vocksebecedvandhbsnent |

JURISDICTIONAL STATEMENT .................... 2

STATUTES, RULES, REGULATIONS ............... 3

STATEMENT OF THE CASE ............c.ccccccceeee 4

(a) Special and Important Reasons for Granting

IE Dishes ciiead inkl icuiscteéabbierconton 4

nts Ssedchvovsrnanveccuysbeccveddeus 5

(c) The Palo Verde Nuclear Generating Station. 6

ee ee PDs csecresencdvescobvorpessswscse 7

ieee lad vidhes oe nd ssnuceseossesstanetshouan g

(a) Applicable Legal Standard ...................... 9

(b) NLRB Precedent Establishes the

Appropriateness of the

Self-Detormimation .............cccccccsesseves 11

(c) APS’ Position is Consistent with the Parties

Bargaining History .......................s0s00- 12

(d) The Palo Verde Employees do not Lack

Separate Group Identity ....................... 13

for Unk Determiantions as the Basis for

Denying the Employees’ Rights to a

- ination Election .................., 17

Ee Lins depiesics thnasesaceasrcentepecien 19

EE alitidecwshigcovecucwancocessekdogumbabyiiole 20

i

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TABLE OF AUTHORITIES

CASES: PAGE

Arizona Public Service Company v. NLRB, '

453 F.2d 228, 231-233 (9th Cir. 1971) ....... 15

Baltimore Gas & Electric Co..,

PU BO CEPTS Ore tccveccocsecnvecticssonee 17

Comax Telcom Corporation

EY UD os no su navies abvuncngewecetelnen 11

Connecticut Light & Power Co..,

ET SD 2 ED cave. sanbwdencedsessntsdoreeoe 11

Duke University,

EET CUDUTD ccngeusied eusppecie cores 9, 11

International Union, etc. v. NLRB,

231 F.2d 237, 243 (7th Cir. 1956),

cert. denied, 352 U.S. 908, 77 S. Ct. 146,

PRE. BBE | apeisccccccctvocevancsovorsovesevess 10

International Woodworkers of America v.

Ketchikan Pulp Co.,

611 F.2d 1295, 103 LRRM 2494,

ED iedethiadaccccuse - intvabecawans tibeieles 10

Kroger Co.

IE PEED LOOTED. occccedsccsescnsbiunartenseves 11

Melber Jewelry Co., Inc.,

TSO LED 167, 110 (1969) ......cccccccccsscesese 10

Metropolitan Hospital,

ME ERED OD bocscccccccscues senvccediavent 11

Mount Sinai Hospital,

SE RE EE OPE ER scknvecadcvce tabgovhanshioneta 11

NLRB v. Food Employers Council, Inc.,

399 F.2d 501, 502-03 (9th Cir. 1968) ........ 9, 10

CASES PAGE

NLRB v. HMO International,

618 F.2d 806, 110 LRRM 2745 (9th Cir. 1982). 10

NLRB v. Security-Columbian Banknote Co.,

~ $F Bove fe a. reer 9, 10

Pacific Northwest Bell,

EE EE FEE A PUD swovccccasccesgectsauscenedens 11

Phillips Electronics and Pharmaceutical Industries

Corp., Pix Manufacturing Co. Div.,

pf 2. & 3, eee ere 10

Phototype, Inc.,

BSS POE. 2208 (IDS). ...0ccccccsccccvesesccccscei 12

School Board v. Public Employees Relations Com.,

399 So. 2d 520 (Fla. App. D2),

ER NE OUR COMO ED bicckcnrcasecccsncactuvenses 12

Sheraton-Kauai Corporation v. NLRB,

Re Bee ee Re 1 ne er 10

. Sperry Rand Corp., Remington Rand Div.,

Pe ET COMED bids cnc sicchbanegsesnabeseds 12

Spring City Knitting Company v. NLRB,

FEE La DEAD GEE Siping cde cdcceginoncaneecdss 16

Utah Power and Light Company,

Bere TORR BGSP (ISSN) vnccscccscccsccestensiissbass 11

Westinghouse Electric Corp. v. NLRB,

60. F.28-F Cha Che. 1971) \. ccc cccccncvncstonnseee 10

iii

Appendix

Page

Ninth Circuit Court of Appeals

Memorandum Decision (unpublished) ....... 21-27

National Labor Relations Board Decision and Order

28-RM-394, 28-UC-111

SE REE PNG MEIN abinncsosncdcacsébnncsocneious 28-46

National Labor Relations Board Decision and Order

28-CA-6600

I. Sak cides thsi ne ony pumweneuensnest 47-71

Ninth Circuit Court of Appeals Order

SEN ociciives concunphcenat yrecanaishueudeen 72-73

l

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Ninth

Circuit filed and entered its Judgment in this matter on

January 10, 1983, enforcing a bargaining order of the

NLRB. APS’ Petition for Rehearing/Suggestion for

Rehearing En Banc was denied on July 15, 1983.

Pursuant to §10(e) of the Act, this Court has

jurisdiction to review the Judgment and Order upon writ

of certiorari.

STATUTES, RULES, REGULATIONS

Page

National Labor Relations Act.

NE SU oon ke, ee, dw cibaan ndash 1.4.9, 11,19

National Labor Relations Act,

PN OE SES. coweeecscuses 1.4.7,9,11,13,19

National Labor Relations Act.

RS CRU ci scs ewnccch ces Mbeeubanendaleen 2

SIE h iccksGicchacs cvocvoccvsuvabchasdpyecuuasesed 74-80

. ‘ ‘

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STATEMENT OF THE CASE

(a) Special and Important Reasons for Granting the

Petition.

The NLRB disenfranchised the Palo Verde employees

by refusing to afford them an NLRB conducted, secret

ballot, self-determination election.’ Instead, the NLRB

summarily accreted the employees into an existing collective

bargaining unit. The NLRB thereby imposed International

Brotherhood of Electrical Workers, Local 387 (“Union or

Local 387”) as the employees’ exclusive collective bargaining

representative, without regard to their actual wishes. In so

ruling, the NLRB erroneously failed to apply its own

standards and precedents and ignored conclusive record

evidence that these employees possess sufficient separate

group identity to give rise to the right to self-determination.

By affirming the NLRB’s order, the Nintk Circuit Court

of Appeals sanctioned this misapplication of the law and

thereby denied the Palo Verde employees the protections and

rights guaranteed by $§7 and 9 of the Act.

This Court has not addressed the question of the appropriate

applicable criteria to require elections in this and like

circumstances. APS submits that this Court should take the

opportunity to do so presented by this case, for the NLRB’s

Order constitutes a precedent that will affect not only this

group of presently almost five hundred employees (and

ultimately as many as twelve hundred), but also thousands

of employees employed by public utilities and by other

is not only contrary to its own well established precedent in

this area, but also to a recent, well-reasoned state court

decision. See School Board, infra, at page 12.

"In a “self-determination™ election, a group of employees is given a choice to join an

existing bargaining unst or to remain unrepresented. The group must have a separate group

identity, although for other reasons (here . the established principle of system ‘de bargaining

ccs Wed Geltta ualiay tndudtagh 0 apenas \onpaindon Gait fr Got Geoep eanad be

inappropriate. (sce argument. infra pp. 12-16).

4

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(b) Background

APS is a public utility engaged in supplying electrical

power to commercial enterprises and homes throughout

the State of Arizona. (R.2, L. 12-24.) Since before 1947,

APS has recognized the Union as the collective bargaining

representative of many of its employees employed at its

hydrogenerating and fossil fuel power generating plants in

Arizona. (R. 442.)

Over the years, APS has added a number of generating

plants into its system, either by acquisition of an existing

plant or by construction of a new facility. \’’ith respect to the

newly acquired plants, the labor organizations which

represented the employees at those plants (mostly sister locals

of the Union) prior to the acquisition by APS, were merged

into Local 387. Therefore, those employees were incorporated

into Local 387’s unit. Similarly, with respect to new plants

built by APS, the vast majority of the employees at such

plants were Local 387’s unit members transferred from unit

positions in existing bargaining unit facilities to the new

plants. (R.422, L.5-R. 467, L.18.) In all cases, APS was

advised by the Union that it represented a majority of said

employees.

Aside from newly acquired or built plants, the record herein

conclusively establishes that new groups of employees have

been added into the existing Local 387 bargaining unit only

through Board certifications issued after Board conducted

secret ballot elections. (R.493, L.8-R.495, L.21;R.9, L.17-

R.12, L.15;R.21, L.2-7;R.22, L.9-16; R.19, L. 1-4; E. Exh.

1; See for example, Cases 28-CB-1 157; 21-RC-4242 [Meter

readers]; 28-RC-2127 [Warehouseman]; 28-RC-3221 [Fuel

Specialists]; 28-RC-3213 (Cathodic Protection Testers];

"References to the record of the undertying NLRB representanon hearing will be designated

by “R™ followed by the appropriate page number or numbers and “L™ followed by the

appropriate line number or numbers; Exhibits will be designated as Employer (“E~). Union

(°U"). or Jom (“Jt”), exhibits (“Exh.”). followed by the appropriate number or numbers:

references to the Appendix will be designated “APP.~ followed by the appropriate page

(p.”) aumber or numbers.

28-RC-3587 [Auto Parts Clerks].) (NLRB certifications

attached at APP. p. 56-61) It is important to emphasize

that consistent with this long established practice, Local

387 recently filed an RC Petition with NLRB Region

28, seeking a Board conducted secret ballot election

among some of APS’ Credit Department employees,

claiming that this “fringe” group was entitled to self-

determination. Case No. 28-RC-4201. (APP. p. 88).

The current collective bargaining agreement between

APS and the Union is effective from April 1, 1982, to

April |, 1984, and covers a unit of employees employed

at- APS’ six fossil fuel and hydrogenerating plants, as

well as several roving maintenance crews. The terms

of the collective bargaining agreement do not cover any

of the Palo Verde employees. The bargaining unit

consists of less than one half of the approximately eight

thousand APS employees. (R. 471-472, Exh. 1.)

(c) The Palo Verde Nuclear Generating Station

In 1972, APS began construction of its first and only

nuclear generating station in a sparsely populated, desert

area approximately 5S'miles from the APS hea

in Phoenix, Arizona. When completed, it will consist

of three (3) nuclear reactors. Water for cooling the

reactors will be provided by a water reclamation facility

(WRF), that will be the only such facility in the APS

system.

The Palo Verde Nuclear Generating Station (“Palo

Verde”) is owned by a consortium of public utility

companies which operate in the southwest, consisting

of APS, which owns a 29.1% interest, Salt River

Project, Southern California Edison Company, Public

Service Company of New Mexico, and El Paso Elcctric

Company. Once operational, the Salt River Project will

operate the switchyard and APS will operate the Plant.

APS began employing employees at the Palo Verde

in 1979 to take over and test the systems completed by

the plant builders. The APS employee complement at

the Palo Verde pliant at the time of the 1981 NLRB

hearing was approximately sixty-two employees. Only

twelve to thirteen of those employees were previously

employed in Local 387 bargaining unit positions at other

APS facilities. This number of transferred employees

is in notable contrast to the situation presented by past

plant acquisitions or construction, where, as emphasized

above, it was clear that the Union possessed majority

representational status at the time of recognition

demands. The dramatic technological differences which

exist between fossil power plants and nuclear plants

account for APS’ inability to man Palo Verde with

employees transferred from its non-nuclear facilities.

(R. 38; R. 62.)

Currently there are approximately five hundred (500)

nonsupervisory employees employed by APS at Palo

Verde. Only twenty-seven (27) of these employees were

previously employed by APS in bargaining unit

positions at other facilities. Ultimately, there will be up

to twelve hundred nonsupervisory employees employed

at Palo Verde.

(d) Procedural Posture

On December 15, 1980, in response to repeated

recognitional demands asserted by representatives: of

Local 387, APS filed an “RM” election Petition with

the Board, pursuant to §9(c)(1)(B) of the Act (“RM”

7

Union had not only refused to provide any evidence

that it represented a majority of APS* Palo Verde

employees, but in fact openly admitted that it did not

represent a majority of those employees. The Union

repeatedly conceded this fact throughout the NLRB and

court proceedings. (E. Exh.2(b); R.353, L.21-R.354

L.14;R.354, L.17-R.355, L.9; R.368, L.7-10; R.496,

L.12-14.) Accordingly, APS declined to recognize the

Union as the exciusive bargaining representative of its

Palo Verde employees, until it was certified as such by

the NLRB, after a secret ballot employee election was

conducted under the NLRB supervision. (R.6, L.11-

16.)

The Palo Verde employees themselves supported the

position taken by APS with respect to the Union's

demands, by filing their own Petition with the NLRB

on June 25, 1981, requesting an election. The NLRB

refused to entertain the employees’ petition. Copies of

the employees’ Petition and of the NLRB response are

set forth at APP. p. 90-93.

The Union opposed an election among the Palo Verde

employees. Instead, it filed a Unit Clarification (UC)

On February 11, 1981, after a lengthy hearing on

both the RM and UC Petitions in Phoenix, Arizona, the

Regional Director for NLRB Region 28 transferred the

case directly to the NLRB, without rendering a decision.

The NLRB issued its Decision and Order on June 5, 1981

(APP. p. 28-46), dismissing APS’ Petition and accreting

the Palo Verde employees into Local 387’s unit without

an election. On December 3, 1981, the NLRB sum-

marily ordered APS to bargain with Local 387 as the

Palo Verde employees’ exclusive, i.e. majority

collective bargaining representative. (APP. p. 47-71.)

8

On January 10, 1983, the U.S. Court of Appeals for

the Ninth Circuit enforced the Board's bargaining order

on the ground that the Board’s order accreting the Palo

Verue employees into Local 387’s unit without an

election was not “clearly arbitrary and capricious.”

(APP. p. 21-27.) Yet, as below argued, the Board's

Order was both arbitrary and capricious, ignoring

uncontroverted, determinative facts, sehovaiaiied sib

silentio established Board and Court case law. The

N! 8B thereby disenfranchised the Palo Verde

employees of their §§7 and 9 rights by administrative

criteria. APS’ Petition for Rehearing was denied without

further comment and its suggestion for rehearing en

banc was rejected by the Ninth Circuit panel on or about

July 15, 1983. (APP. p. 72-73).

ARGUMENT

(a) Applicable Legal Standard

Until this case, it was established NLRB law

(affirmed by the courts) that accretion of one group of

employees into an already existing bargaining unit

without a self-determination election was appropriate

only when the new employees have no separate group

identity. NLRB v. Food Employers Council, Inc., 399

F.2d 501, 502-03 (9th Cir. 1968); NLRB v. Security-

Columbian Banknote Co., 541 F.2d 135 (3rd Cir. 1976);

Duke Univeristy, 227 NLRB 1627 (1977). Thus, if a

group of employees possessed any separate group

identity, accretion was considered inappropriate

Importantly, it was also well established that close

questions of separate identity were to be resolved

through the election process, and not by application of

the accretion doctrine, which denies employees their

9

freedom of choice. Westinghouse Electric Corp. v.

NLRB, 440 F.2d 7 (2nd Cir. 1971); Jnternational Union,

etc. v. NLRB, 231 F.2d 237, 243 (7th Cir. 1956), cert.

denied, 352 U.S. 908, 77 S.Ct. 146, L.Ed.2d 117.

Thus, in Food Emplovers Council, Inc., supra, the

Ninth Circuit held:

In situations in which complex and difficult

factual determinations are necessary, however,

it would seem advisable—and not unduly

burdensome—for unions such as the

respondent here to resolve close questions

concerning the extension of bargaining

agreements in favor of proselytizing the |

employees in question rather than seeking to |

represent thern through the fait accompli of

accretion. We frown upon the “successful

coup” technique . . . Food Employers Council,

Inc., footnote 1.

The courts have consistently reaffirmed that principle.

See, for example, the cases cited in /nternational

Woodworkers of America v. Ketchikan Pulp Co., 611

F.2d 1295, 103 LRRM 2494, (9th Cir. 1980); and

Sheraton-Kauai ro ag v. NLRB, 429 F.2d 1352

(9th Cir. 1970). These often articulated standards are

intended to protect employees from the type of

disenfrancisement that occurred here.

In this area, the courts have also emphasized that

reliance upon “administrative discretion,” raised in

response to an appeal from an accretion ruling, is subject

to strict scrutiny. NLRB v. Security-Columbian Bank

Note Co., supra. at 140; Sheraton-Kauai Corp. v.

NLRB; supra; Phillips Electronics and Pharmaceuticals

Industries Corp., Pix Manufacturing Co. Div., \81

NLRB 88, 90 (1970); Melbet Jewelry Co., Inc., 180

NLRB 107, 110(1969). NLRB v. HMO International,

678 F.2d 806, LRRM 2745 (9th Cir. 1982).

10

(b) NLRB Precedent Establishes the Appropriateness

of the Self-Determination Election.

The NLRB has held repeatedly that employees who

possess separate group identity are entitled under $§7

and 9 of the Act to decide, through a secret ballot self-

determination election, whether they wish to join an

existing bargaining unit or to remain unrepresented,

even though the distinct group might not itself constitute

an appropriate separate unit.

The NLRB decision in Duke Universit. supra,

illustrates the Agency's precedent in this a.za. There,

the union filed a petition to represent all maintenance

employees at the employer's medical center. The NLRB

concluded that while the employees covered by the

petition did not constitute a separate appropriate unit,

they were entitled to a self-determination election:

Therefore, we find that the maintenance

personnel at the employer’s medical center

should be given the opportunity by a self-

determination election to express their desires

with respect to being included in the existing

maintenance unit represented by the petitioner

and we shall direct an election... .

The NLRB has directed self-determination elections

under similar circumstances in many other cases. See,

for example, Mount Sinai Hospital, 233 NLRB 507

(1977). Comax Telcom Corporation, 219 NLRB 688

(1975); Kroger Co., 201 NLRB 920 (1973);

Metropolitan Hospital, 223 NLRB 282 (1976).

Importantly, the Board has so directed in cases involving

employees employed by public utility companies such

as APS. Pacific Northwest Bell, 253 NLRB 795 (1980);

Utah Power and Light Company, 258 NLRB 1059

(1981); Connecticut Light and Power Co., 121 NLRB

768 (1958).

11

That the Palo Verde employees are entitled to an

election is further supported by NLRB case law

establishing that even where a new group of employees

has employment interests connected with an existing

bargaining unit, but is engaged in a new and different

method of performing functions previously performed

by the employees in the bargaining unit, the new group

is not an accretion to the existing unit, but may be added

to such unit only if the new employees so decide in a

self-determination election. Phototype Inc., 145 NLRB

1268; Sperry Rand Corp., Remington Rand Div., 190

NLRB 488 (1971).

The factors deemed important by the NLRB in those

cases, such as new skills, separate supervision, little or

no interchange, and separate lines of progression

between represented and unrepresented groups, are all

present in the instant case. In this connection, although

the Ninth Circuit panel did not attempt to distinguish

or even discuss this clearly relevant and dispositive

precedent, the Florida District Court of Appeal, Second

District, recently did so in School Board v. Public

Employee Relations Co., 399 So.2d 520 (Fla. App.

D2), 112 LRRM 3443 (1981). There, in refusing to

accrete a fringe group of bus garage employees into an

existing unit without permitting those employees to vote

on the issue of inclusion, the court followed the NLRB

t discussed above, holding that “/n such cases,

the NLRB has never failed to permit a self-determination

election among the members of the fringe group before

adding them to the existing unit.” (Emphasis added.]

It is clear that the Ninth Circuit panel improperly

condoned the Union’s “successful coup” by affirming

the NLRB ruling accreting hundreds of APS Palo Verde

employees into Local 387's bargaining unit, without

affording these employees a self-determination election.

(c) APS’ Position is Consistent with the

Parties’ Bargaining History

12

In part, the Ninth Circuit based its ruling on the

collective bargaining history of the parties, which the

NLRB determined was on a “systemwide basis.”

However, the NLRB arrived at this conclusion through

“bootstrap” logic, expressly ignoring the circumstances

that gave rise to the so called “systemwide bargaining.”

Thus, the record establishes that APS has in the past

acquired numerous existing or newly constructed plants

and that, as emphasized above, the employees at those

newly acquired or constructed plants were incorporated

into Local 387’s bargaining unit nor by accretion, but

rather after the Union achieved and proved majority

Status among those employees, either through prior

representation, NLRB certification after an NLRB

conducted election, cr merger with predecessor labor

organizations. It was only on that basis that APS

recognized the Union as the collective bargaining

representative of the newly acquired or constructed

plant’s employees. (R.461, L.9 - R.467, L.18.)

This is in notable contrast to the Union's efforts in

the instant matter, where the Union specifically admits

that it does not represent and has never represented a

majority of the Palo Verde employees. (R.353, L.21 -

R.354, L. 14; E. Exh. 2(b); R. 368, L. 7-10; R. 354,

L. 17-R. 355, L. 9; R. 496, L. 12-14.)

(d) The Palo Verde Employees do not Lack

Separate Group Identity

The record is clear that the Palo Verde employees

possess sufficient group identity to entitle them to a

self-determination election, pursuant to Section 9 of the

Act. Simply stated, this large group of employees should

be allowed to decide, through a secret ballot election

conducted by the NLRB, whether they wish either to be

added to Local 387’s unit or to remain unrepresentated.

13

The Palo Verde employees’ separate group identity is

vividly demonstrated by the differences between the

employees in issue and the APS employees included in

the existing bargaining unit; differences in skills, duties,

and actual terms of employment.

Thus, the record in this case discloses numerous and

rather drastic differences in technological requirements

for employment at a nuclear power plant, such as Palo

Verde, in contrast to the employment requirements in

the rest of the APS plants, all of which are fossil fuel

or hydroelectric facilities. For example, while special

and extensive training and experience in the nuclear

industry and the principles of radioactivity are required

in order to be employed at a nuclear power plant such

as Palo Verde, such training and experience are not

requirements for ernployment at any other APS facility.

The Palo Verde employees must have extensive training

in nuclear power processes, such as boration and

dilution, which are peculiar to the nuclear industry and

which the employees in Local 387’s bargaining unit do

not have, since there are no nuclear power generating

plants, other than Palo Verde, in the APS system.

Similarly, the Palo Verde employees must also meet

stringent qualifications and standards required by the

Nuclear Regulatory Commission which simply do not

have the remotest application to the unit employees.

The magnitude of this regulatory scheme, which again

affects only Palo Verde, cannot be overemphasized. In

addition, the Palo Verde employees must participate in

extensive radiation protection programs and are

responsible for operation of the water reclamation

facility, both unique to Palo Verde. (R.563, L.15;

R.567, L.7; E.Exh. 10(b), 10(c), 11, 12; R.102, L.5-

R.111, L.13; R.78, L.19-22; R.90, L.19-24; R.96,

L.3-97 L.20.)

The record also establishes differences between the

14

rave a

terms and conditions of employment of the Palo Verde

employees and Local 387's unit employees. Thus, the

Palo Verde employees have virtually no contact or

interchange with unit employees and are subject to

different progression and bidding procedures. Indeed,

the record shows that the only contact between Palo

Verde employees and other APS employees is with the

power transmission dispatchers employed by APS in

Phoenix. Power transmission dispatchers are not

included in Local 387's unit. Arizona Public Service

Company v. NLRB, 453 F.2d 228, 231-233 (9th Cir.

1971).

While promotions at Palo Verde are based solely on

qualifications, the collective bargaining agreement

covering the bargaining unit employees requires that

promotions within Local 387's bargaining unit be based

substantially upon seniority. Palo Verde employees

have a savings plan; bargaining unit employees do not.

Palo Verde employees enjoy different sick leave

benefits, overtime policies, and grievance procedures

from those of the bargaining unit employees. A totally

different wage structure is in effect at Palo Verde,

because of the inapplicability of many of the job

classifications contained in the collective bargaining

agreement covering the bargaining unit. Additionally,

unlike bargaining unit employees, Palo Verde

employees are provided with free transportation to the

facility, and with free tools (E. Exh. 8; Jt. Exh. 1(a)

(Article [V, $6); R.328, L.16 - R.329, L.10; R.260,

L.9 - R.261, L.4; R.281, L.12 - 23; E. Exh. 14; Jt.

Exh. 1(a) (Article V); R.120, L.10-R.121,L.12;R.22,

L.18 - R.23, L.3; R.386, L.12 - R.388, L.7; R.390,

L.10-R.391, L.2;R.428, L.10-R.430, L.7;R.123,

L.17-R.124, L.23;R.384, L.17 - 19; R.398, L.2- 13.)

Also, it is important to note that the physical

remoteness of Palo Verde, which has the overall

appearance of a moon station, establishes the separate

15

identity of the employees that work there. While APS

has other plants within the bargaining unit that are also

in relatively remote places, as <liscussed above, the

Union did not come to represent the employees at those

plants through the fait accompli of accretion, and,

therefore, those employees’ separate identity never

became an issue.

In sum, given the different chemical and physical

properties of uranium as compared to fossil fuels, the

Palo Verde employees are involved in critical processes

totally unique to nuclear plants. Palo Verde employees

are responsible for a degree of technological and

scientific knowledge and skills which is not to be found

among the employees in fossil fuel facilities, and enjoy

different terms and conditions of employment from

those of the Local 387 unit employees. They work in

a remote, unpopulated desert location many miles from

bargaining unit employees and have no contact or

interchange whatsoever with said employees. (R.371

L.23 - R.374, L.19; R.488, L.14 - R.489, L.3.)

Moreover, NLRB and the Ninth Circuit’s own precedent

establish that the small number of unit employees

presently transferred to Palo Verde from unit positions,

relative to the number of Palo Verde employees, is a

strong factor supporting APS’s position that the Palo

Verde employees possess separate group identity. Spring

City Knitting Company v. NLRB, 107 LRRM 3125

(1981).

The record evidence unequivocally establishes that

the Palo Verde employees have separate group identity.‘

“In this regard. it ts important that while the Ninth Circuit noted that the NLRB finding of

Verde. responsibilities that are obviously critical in the context of an operating nucicar

power facility. (R. 274, L. 18 - R. 275, L. 9; R. 129, L. 14-21.) This fact is recognized

at footnote 8. page 9 of the Board Decision in the representation case. where the Board

stated, “The apparent local autonomy of Palo Verde management is a factor that favors

non-accretion.” This, combined with the extremely low level of interchange or transfer

between the bargaining unit and the Palo Verde employees, along with the different

employment terms discussed above. unequivocally establish that the Palo Verde employees

do not lack separate group identity.

16 ee

(¢) The NLRB Erroneously Relied upon Criteria

for Unit Determinations as the Basis for

Denying the Employees’ Rights to a Self-

Determination Election.

Rather than focusing on this unequivocal separate

group identity, establishing that the Palo Verde

employees have the right to choose to join or refrain

from joining an existing and appropriate systemwide

unit, the NLRB reasoned only that the Palo Verde

employees might appropriately become a part of the

existing systemwide unit. This reasoning is correct,

insofar us it goes, but it does not address the true issue,

which is whether an identifiable fringe group of

employees must be given the elective right to choose

to join or refrain from joining an existing systemwide

unit. By not overtly considering this true issue, the

NLRB, sub silentio did decide it covertly, against the

employces and their right to choose. The Ninth Circuit,

in suStaining the Board, failed to perceive or correct

the Board's incomplete and erroneous analysis, with its

disastrous consequence of disenfranchisement of the

Palo Verde employees.

By simply relying on the existence of systemwide

bargaining as a basis for accretion, the NLRB confused

criteria for systemwide unit determinations with the

right to self-determination in the selection of a

bargaining representative.

In this regard, both the NLRB and Union relied

heavily upon the proposition that systemwide collective

bargaining units in the public utility industry are

desirable in order to promote uninterrupted maintenance

of an essential service. Baltimore Gas & Electric Co.,

206 NLRB 199 (1973).

The NI.RB also relied upon the Baltimore Gas policy

of favoring systemwide units as justification for its

17

underlying decision in the representation proceeding.

(NLRB Brief, p. 9-10.) The Ninth Circuit did not

mention Baltimore Gas in its Memorandum Decision.

It is important to note, however, that consistent with

Baltimore Gas, APS has never claimed that the Palo

Verde employees constitute an appropriate separate

collective bargaining unit. APS has never sought a

departure from the Baltimore Gas doctrine. It has always

been APS’ position in accordance with the NLRB’s

own precedent cited above, that while the Palo Verde

employees do not constitute a separate appropriate

collective bargaining unit within the meaning of the

Act, they comprise an identifiable separate group. As

such, they should not be accreted into an overall

collective bargaining unit, without regard for their

desires. They should be added, if at all, only through

the self- determination election process, which APS

submits the law requires.

APS has repeatedly expressed its willingness to

recognize the Union as the Palo Verde employees’

collective bargaining representative when and if a

majority of those employees designate the Union as

their collective bargaining representative, either

through union designation cards (which the Union has

to date been unable to obtain from the Palo Verde

employees) or through an NLRB supervised secret ballot

election. Until that time, APS submits that recognition

of the Union as the exclusive representative of its Palo

Verde employees is inconsistent with the very purposes

of the Act and with this well-established past bargaining

history. Such recognition would create a most unfair

and unwarranted result—the imposition of an exclusive

collective bargaining representative upon a very large

group of employees without affording those employees

their statutorily guaranteed freedom of choice.

18

CONCLUSION

This Court should grant the instant Petition for Writ

of Certiorari, and resolve the appropriate standard to be

applied in cases where a labor organization seeks to be

designated through accretion as the exclusive bargaining

representative of a large, unrepresented, separately

identifiable group of employees, thereby denying those

employees the right to decide if they wish to be so

represented.

The NLRB and the Ninth Circuit disregarded the

extensive agency and judicial precedent establishing

that employees are to be denied a self-determination

election, only if they possess no separate group identity.

This high standard, the vitality of which is clearly at

issue in this case, is designed to protect the employees’

Sections 7 and 9 rights to select an exclusive bargaining

representative or to refrain from selecting one. This is

a question with far reaching ramifications which has

not been but should be settled by this Court.

RESPECTFULLY SUBMITTED this 13th day of

October, 1983.

SNELL & WILMER

By ZS FKS

Frederick K. Steiner, Jr.

Counsel of Record

Gerard Morales

Philip M. Prince

3100 Valley Bank Center

(602) 257-7313

Phoenix, Arizona 85073

Attorneys for Petitioner

19

' v"® 4 7)

.

ES FS, hae bess Ti tite

~~

RECEIVED FILED

JAN 12 1983 JAN 10 1983

SNELL & WILMER PHILLIP B. WINBERRY

CLERK, U.S. COURT OF

APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA PUBLIC SERVICE

COMPANY,

Petitioner- NOS. 81-7841

Cross-Respondent, 82-7039

Vv.

NATIONAL LABOR RELATIONS MEMORANDUM

BOARD,

Cross-Petitioner,

and

INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL

WORKERS, AFL-CIO,

LOCAL 387,

)

)

)

)

)

)

)

)

)

)

)

Respondent- )

)

)

)

)

)

)

)

)

)

Inventor. )

)

Petition for Review and Cross-Application

for Enforcement of an Order of

The National Labor Relations Board

Argued and submitted July 9, 1982

Circuit Judges

21

—- —e- a. =

The National Labor Relations Board

{(NLRB] issued a decision and order on

June 5S, 1981, finding, inter alia, that

certain production and maintenance wor-

kers at the Palo Verde nuclear plant con-

stituted an accretion?’ to the Inter-

Mational Brotherhood of Electrical

Workers [Union], the existing collective

bargaining unit. Arizona Public Service

Co., [APS], the public utility that em-

ploys the Palo Verde

(1)

production and maintenance workers, re-

fused to recognize and to bargain col-

lectively with the Union as the exclusive

bargaining representative of the workers.

The NLRB found that APS was engaged in

unfair labor practices by its refusal to

2/ An accretion occurs when new em-

ployees are added to an existing collec-

tive bargaining unit. NLRP v. Sunset

House & Local 399, 415 F.2d 545, 547 (9th

Cir. 1969).

22

bargain collectively with the Union. APS

has petitioned this court for review.

The dispositive issue in the matter

sub judice is whether the NLRB properly

found that the Palo Verde production and

maintenance workers were an accretion to

the Union. APS contends that the accre-

tion determination was improper because

of substantial differences in the terms

and conditions of employment of the Palo

Verde production and maintenance workers

end those of the employees representated

by the existing bargaining unit. Further-

more, APS argues that the evidence in the

record also establishes that the Palo

Verde pioduction and maintenance workers

possess a separate group identity and

thus accretion is inappropriate. we

disagree.

The question as to whether a group

of employees represents an accretion to

an existing bargaining unit is similar to

23

the issue of the appropriateness of the

determination of a bargaining unit. NLRB

v. Sunset House & Local 399, 415 F.2d

545, 547 (9th Cir. 1969). Such a deter-

mination is within the particular exper-

tise of the NLRB; and it will not be dis-

turbed absent an abuse of discretion.

NLRB v. HMO Internation/California Medi-

cal Group Health

(2)

Plan, Inc., 678 F. 2d 806, 809 (9th Cir.

1982); Rayner v. NLRB, 665 F.2d 970, 975

(9th Cir. 1982); Spring City Knitting Co.

v. NLRB, 647 F.2d 1011, 1013 (9th Cir.

1981).

Relevant factors to be weighed in

making the determination of whether a new

group of employees should be considered

an accretion include “functional integra-

tion of the business, centralized control

of management, similarity of working con-

ditions, collective bargaining history,

24

local power to hire and fire, lack of em-

ployee interchange, [and] geographical

distance.” Sunset House & Local 399, 415

F.2d at 548.

The critical determinant, however,

is whether the employees share a substan-

tially identical community of interests

with the existing bargaining unit. See

Pacific Southwest Airlines v. NLRB, 587

F.2d 1032, 1038, 1041 n. 16 (9th Cir.

1978).

In the matter before us, the NLRB

found that there was a functional inte-

gration of the business in light of the

fact that the electrical power generated

by the nuclear plant would feed into the

same control system into which the other

generating plants' power flows. The com-

bined power is to be disbursed throughout

the area that is serviced by APS.

Centralized control of management

was also a factor reviewed by the NLRB.

25

This was illustrated by the fact that

each plant manager reports to the vice

president of electrical operations in

Phoenix, Arizona.

(3)

There was also evidence, based on

the collective bargaining history of the

parties, that a systemwide unit has been

favored.

Finally, the NLRB found that the

Palo Verde production and maintenance

workers share a community of interest

with the bargaining unit employees based

on the following facts: (1) labor rela-

tions policies for unrepresented em-

ployees are centrally determined and uni-

formly applied throughout the system;

(2) the Palo Verde production and main-

tenance employees occupy many of the same

Classifications and perform the same

functions as bargaining unit employees;

(3) a mumber of former bargaining unit

26

employees now work as Palo Verde produc-

tion and maintenance employees; (4) the

record indicates that the Palo Verde em-

ployees enjoy many of the same terms and

conditions of employment as the bargain-

ing unit employees.

Based on the foregoing facts, we

find that the NLRB's legal conclusion

that accretion of the Palo Verde produc-

tion and maintenance work is appropriate,

is not clearly arbitrary and capricious.

See Pacific Southwest Airlines, £87 F.2d

at 1037. The NLRB did not abuse its dis-

cretion.

Since we find that the accretion

determination was proper, we must also

uphold the denial of APS' election peti-

tion. See, eg., International Union v.

NLRB, 231 F.2d 237, 243 (7th Cir.), cert.

denied, 352 U.S. 908 (1956).

The NLRB's order is enforced.

[4]

27

RECEIVED

JUN 8 1981

SNELL & WILMER

FIZ

256 NLRB No. 65 D--7763

Palo Verde, AZ

UNITED STATE OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

ARIZONA PUBLIC SERVICE

COMPANY ,

Case

28--RM--394

Employer-Petitioner,

and

INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL

WORKERS, AFL-CIO

LOCAL 387,

Union,

COMPANY , 28--UC--111

and

Employer

INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL

WORKERS, AFL-CIO,

LOCAL 387,

)

)

)

)

)

)

)

)

)

)

)

)

ARIZONA PUBLIC SERVICE ) Case

)

)

)

)

)

)

)

)

)

)

)

Petitioner. )

)

256 NLRB No. 65

28

D-7763

DECISION AND ORDER

Upon petitions duly filed under Sec-

tion 9(c) of the National Labor Relations

Act, as amended, a hearing was held be-

fore Hearing Officer Bruce R. Kettler.

Following the hearing and pursuant to

Section 102.67 of the National Labor Re-

lations Board Rules and Regulations and

Statements of Proceedure, Series 8, as

{1}

amended, the Regional Director for Region

28 transferred this case to the Board for

decision. Thereafter, the parties filed

briefs.2/

The Board has reviewed the Hearing

Officer's rulings made at the hearing and

finds that they are free from prejudicial

error. They are hereby affirmed.

2/ The Employer's request for oral

argument is hereby denied, since the

record and the briefs adequately present

the position of the parties.

29

D-7763

On the entire record in this case,

the Board finds:

| The Employer is engaged in com-

merce within the meaning of the Act, and

it will effectuate the purposes of the

Act to assert jurisdiction herein.

2. The labor organization involved

Claims to represent certain employees of

the Employer.

No question affecting commerce

exists concerning the representation of

certain employees of the Employer within

the meaning of Section 3(c)(1) and Sec-

tion 2(6) and (7) of the Act.

On December 15, 1980, the Employer

filed the instant RM petition requesting

an election among the production and

maintenance employees employed at its

Palo Verde nuclear unit. On-.the same

day, the Union filed the instant UC peti-

tion, seeking accretion of the Palo Verde

employees into a systemwide production

30

and maintenance bargaining unit. For the

reasons stated below, we find that the

group of employees in question are

[2]

an accretion to the bargaining unit cur-

rently in existence, and we accordingly

dismiss the Employer's petition for an

election among these employees.

The Employer is a public utility en-

gaged in the supplying of electric power

throughout the State of Arizona. It cur-

rently owns and operates several non-

nuclear generating units, and is in the

process of building (as part owner) at

Palo Verde, Arizona, the nuclear power

plant involved herein.

The Employer's corporate head-

quarters are in Phoenix, Arizona. Its

nonnuclear plants are located in Arizona

and New Mexico. Ralative [sic.] to the

other units in the system, Palo Verde (55

miles from Phoenix) is one of the closest

to the company's headquarters.

31

D-7763

Administration of the Employer's

electric power generation production is

centralized in the office of vice presi-

dent of electrical operation whose of-

fices are located in Phoenix. The plant

managers at the nonnuclear units report

to this official of the company. The

power produced by each of the nonnuclear

units is mingled with the power trans-

mitted by the other units and thereafter

dispatched throughout the State of Ari-

zona.

The Palo Verde plant manager, like

his equals at the other generating units,

reports to the vice president of electri-

cal operations. The Palo Verde plant

will not service a distinct geographical

area once it commences operation.

Rather, the electrical power generated by

the nuclear unit will feed into the same

control system as the power transmitted

by the nonnuclear

32

D-7763

(3]

units and will be dispatched in the same

manner as the nonnuclear generated power.

The Employer's labor relations

policies appear to be carefully deter-

mined and administered. All production

and maintenance employees employed at the

mnonnuclear power generating plants are

represented by the Union in a single

systemwide bargaining unit. Since at

least 1947, the Employer and the Union

have had a bargaining relationship,

during which time the Employer has by ac-

quisition or construction added several

generating units to its system. The

practice of the parties in these cases

has been to incorporate the production

and maintenance employees at the newly

acquired or constructed facilities into

33

D-7763

the contractual systemwise bargaining

unit.2/

The Employer's unrepresented em-

ployees are classified “performance re-

view" employees. The performance review

employees throughout the system are sub-

ject to salary guidelines and performance

review policies established by central

management. The rules described in the

company handbook of rules for performance

review employees are applied uniformly

throughout the system. Transfers and job

bidding for posted performance review

vacancies are available to all perfor-

mance review employees on the same basis.

Many benefits provided by the com-

pany are common to both represented and

unrepresented employees. Thus, the per-

formance review employees, as well as

2/ The current contract, dated April l,

1980, expires on Ajyril 1, 1982.

34

D-7763

bargaining unit employees, enjoy

(4]

the same vacation policy, holidays, pen-

sion, and dental and medical benefits.

The day-to-day supervision of Palo

Verde production and maintenance em-

ployees appears to be vested in plant

management. The Palo Verde plant manager

retains significant authority in the im-

plementation of the Company's uniform

‘policies and in the direction of em-

ployees.

The Employer began hiring employees

for the Palo Verde nuclear unit in i977,

for use in the production and maintenance

areas .>/ The nuclear unit presently em-

ploys approximately 62 production and

maintenance employees, 12 or 13 of whom

3/ the parties stipulated and se find

that, although the number or employees

will continue to expand, the present com-

plement is representive.

35

D-7763

transferred from other units within the

Employer's operations. These employees

are now classified as performance review

employees and are accorded benefits as

described above.

Largely due to regulations imposed

by the Nuclear Regulatory Commission,

some special training is required for the

Palo Verde employees. Nonetheless, the

record evidences that many of the produc-

tion and maintenance classifications at

Palo Verde are common to all the En-

ployer's plants, and further that the

functions of the Palo Verde employees are

comparable to those performed by their

counterparts elsewhere in the Employer's

system. And, as noted above, approxi-

mately 20 percent of the production and

maintenance employees at Palo Verde trans-

ferred there from bargaining unit posi-

tions.

D-7763

The Employer urges that Board prece-

dent requires a systemwide unit as the

only appropriate unit for its employees,

but that substantial differences in

skills, functions, and technological

knowledge between the Palo Verde em-

ployees and bargaining unit employees and

the local autonomy of the Palo Verde

management compel refusal of the Union's

contention that the Palo Verde employees

constitute an accretion to the existing

systemwide bargaining unit. Therefore,

argues the Employer, the Palo Verde em-

ployees must be allowed the opportunity

to decide for themselves whether to be

incorporated into the bargaining unit or

to remain unrepresented.

The Union opposes the Employer's

petition, urging instead that the Palo

Verde employees are merely an accretion

to the existing production and maintenance

37

D-7763

unit. Should the Board decline to apply

the accretion doctrine, the Union con-

tends that no question concerning repre-

sentation exists because the Union has

made no claim to represent a majority of

the employees in question, and that there-

fore the Employer's petition should be

dismissed. In the alternative, the Union

argues that, if the Board determines an

election is appropriate, the employees be

given a choice between representation in

a separate unit or the existing system-

wide unit.4/

CONCLUSION

We are persuaded by a number of

factors, including the integrated nature

of the Employer's operations, the commu-

nity of

[6]

4 In the event the Board directs an

election, the Union also argues that cer-

tain technical employees should be in-

cluded on the voting unit.

38

D-7763

interest that the employees in question

share in common with their counterparts

elsewhere in the Employer's system, and

the bargaining history between the parties,

that the Palo Verde employees are an ac-

cretion to the systemwide production and

maintenance bargaining unit.

We have long held that in the public

utility industry, operation of which is

characterized by a high degree of integra-

tion, the optimum unit is a systemwide

one. Baltimore Gas & Electric Co., 206

NLRB 199, 201 (1973). We deviate from

this policy where the boundaries of the

requested unit conform to a well-defined

administrative segment of the utility's

operation, where the requested unit ser-

vices a distinct geographical area, and

where a separate unit can be established

without involving disturbance of the em-

ployer's ability to perform its necessary

39

D-7763

function. united Gas, Inc., 190 NLRB

618, 618--619 (1971); Monongahela Power

Company, 176 NLRB 915, 917 (1959).

Here, the electric power that will

be generated Dy the nuclear plant will

feed into the same control system into

which the other generating units' power

flows and will be disbursed throughout

the area which the Employer services.

This integration of operations is re-

flected in tpe Employer's centralized ad-

ministration °f operations---illustrated

by the fact that each plant manager re-

ports to the vice president of electrical

operations whose offices are located in

Phoenix. Thus, the

(7]

requested unit does not represent a

unique admiristrative segment of the

Employer's operations, nor will the Palo

D-7763

Verde generating plant service a distinct

geographical area.>/

Further, we believe that the Palo

Verde employees share a community of in-

terest with bargaining unit employees.

It is clear that the labor relations

policies for unrepresented employees are

centrally determined and uniformly ap-

plied throughout the system. It is also

Clear that the Palo Verde production and

maintenance employees, although presently

Classified performance review employees,

occupy many of the same classifications

and perform the same functions as bar-

gaining unit employees. In addition, we

2/ Although the record suggests that,

because of computerization, the Em-

ployer's ability to perform its functions

would not necessarily be curtailed by a

cessation of work at Palo Verde, we find

that this factor does not outweigh the

above-recited factors indicating a high

degree of centralization in the Enm-

ployer's operations and administration.

41

D-7763

note that a not insignificant number of

former bargaining unit employees now work

in production and maintenance positions

at Palo Verde. Finally, the record in-

dicates that the Palo Verde employees en-

joy many of the same terms and conditions

of employment accorded bargaining unit

employees. Accordingly, based or the Em-

ployer's centralized labor relations

policies, the similarity of classifica-

tions, functions, and terms and condi-

tions of employment of Palo Verde em-

ployees and bargaining unit employees,

and the transfers from unit positions to

Palo Verde production and maintenance

positions, we find that the Palo Verde

employees share a community of interest

with the Employer's represented produc-

tion and maintenance employees.

(8)

42

D-7763

We also find significant that bar-

gaining between the parties has histori-

cally been on a systemwide basis. The

Employer in the past has extended recogni-

tion to the Union as representative of

employees at facilities added to the

utility system. °/ We are reluctant to

grant a less than systemwide unit where

to do so would be contrary to extensive

bargaining history on a systemwide basis.

Baltimore Gas, supra at 201.

Therefore, based on the above fac-

tors, we find that the Palo Verde pro-

duction and maintenance employees are

&/ Since we utilize this fact merely as

evidence that the parties have histori-

cally favored systemwide bargaining, we

do not believe its relevance is nullified

because the parties disagree as to the

exact circumstances surrounding the Em-

ployer's extension of recognition.

43

¥ “ eye:

a

D-7763

accretions to, / and should be included

in, the systemwide production and main-

tenance unit represented by the Union.

In view of the foregoing, we find

that no question concerning representa-

tion of the Palo Verde production and

maintenance employees exists, and we

shall dismiss the petition in Case

28--RM--394.2/

(9]

yY/ It is well established that em-

ployees accreted to an existing unit are

mot accorded a self-determination elec-

tion. The Goodyear Tire & Rubber C an

le Grove, West Virginia Plant), 147

NLRB 1233, 1234, fn. 6 (1974), and case

cited therein.

&/ The apparent local autonomy of Palo

Verde management is a factor that favors

mnonaccretion. However, in considering an

accretion issue, we examine a number of -

factors. We find in this case that local

autonomy alone is insufficient to over-

come the many factors supporting a system-

wide unit.

2/ Because of our disposition of this

case, we need not address the other

contentions urged by the parties.

ad

ba $ © = Cosette ier b 4 \

ey SG = Sa ee oe eee . "a oN. . ~iecineas

D-7763

ORDER

It is hereby ordered that the peti-

tion in Case 28--RM--394 be, and it here-

by is, dismissed in its entirety.

IT IS FURTHER ORDERED that the

existing systemwide bargaining unit for

the Employer's production and maintenance

employees, currently represented by In-

ternational Brotherhood of Electrical

Workers, Local 387, AFL-CIO, be, and it

hereby is, clarified to include those

production and maintenance employees

located at the Employer's Palo Verde,

Arizona, facility.

DATED, Washington, D.C.,

June 5S, 1981.

NATIONAL LABOR

RELATIONS BOARD

John H. Fanning,

Chairman

45

Howard Jenkins, Jr.,

Member

Don A. Zimmerman,

Member

[SEAL]

{10}

RECEIVED

DEC 7 1981

SNELL & WILMER FIZ

259 NLRB No. 72 D--8351

Palo Verde, AZ

UNITED STATE OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

ARIZONA PUBLIC SERVICE COMPANY

and

Case 28-CA-6600

INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS

AFL-CIO, LOCAL 387

DECISION AND ORDER

Upon a charge filed on August 17,

1981, by International Brotherhood of

Electrical Workers, AFL--CIO, Local 387,

herein called the Union, and duly served

on Arizona Public Service Company, herein

called Respondent, the General Counsel of

the National Labor Relations Board, by

the Regional Director for Region 28, is-

sued a complaint on September 1, 1981,

against Respondent, alleging that Respon-

259 NLRB No. 72

47

Ae

era <? 2

dent had engaged in and was engaging in

unfair labor practicos affecting commerce

within the meaning of Section 8(a)(5) and

(1) and Section 2(6) and (7) of the Na-

tional Labor Relations Act, as amended.

Copies of the charge and complaint and

notice of hearing before an administra-

tive law judge were duly served on the

parties to this proceeding.

With respect to the unfair labor

practices, the complaint alleges in sub-

stance that, since June 25, 1981, fol-

lowing a Board

(1)

Decision and order, +/ and at all times

thereafter, Respondent has refused, and

continues to date to refuse, to recognize

and to bargain collectively with the

Union as the exclusiue bargaining rep-

resentative of Respondent's Palo Verde,

Arizona, nuclear power plant production

2/257 NLRB No. 65 (1981).

48

D-8351

and maintenance employees in the ap-

propriate unit, 2/ although the Union has

requested and is requesting it to do so.

On September 14, 1981, Respondent filed

its answer to the complaint admitting in

part, and denying in part, the allega-

tions in the complaint.

On September 22, 1981, counsel for

the General Counsel filed directly with

the Board a Motion for Summary Judgment.

Subsequently, on September 30, 1981, the

Board issued an order transferring the

2/ Official notice is taken of the

record in the representation proceeding,

Cases 28--RM--394 and 28--UC--11l1, as the

term "record" is defined in Secs. 102.68

and 102.69(g) of the Board's Rules and

Regulations, Series 8, as amended. Sce

LTV Electrosystems Inc., 166 NLRB 938

(1967), enfd. 388 F.2d 683 (4th Cir.

1968); Golden Age Beverage Co., 167 NLRB

151 (1967); enfd. 415 F.2d 26 (5th Cir.

1969); Intertype Co. v. Penello, 269

F.Supp. 573 (D.C. Va. 1967); Follett

Corp., 164 NLRB 378 (1967); enfd. 397

F.2d 91 (7th Cir. 1968); Sec. 9(d) of the

NLRA, as amended.

49

D-8351

proceeding to the Board and a Notice To

Show Cause why the General Counsel's

Motion for Summary Judgment should not be

granted. Respondent thereafter filed a

response to the Notice To Show Cause.

Pursuant to the provisions of Sec-

tion 3(b) of the National Labor Relations

Act, as amended, the National Labo: Re-

lations Board has delegated its authority

in this proceeding to a three-member

panel.

(2]

Upon the entire record in this pro-

ceeding, the Soard makes the following:

Ruling on the Motion for

Summary Judgment

In its answer to the complaint,

Respondent admits that the existing

systemwide unit of certain of its pro-

duction and maintenance employees con-

stitutes a unit appropriate for purposes

of collective bargaining within the

50

D-8351

meaning of Section 9(b) of the Act, and

that the Union is the designated exclu-

sive representative or its production and

maintenance employees as set forth in

successive collective-bargaining agree-

ments. Respondent, however, stresses

that these agreements do not include the

Palo Verde production and maintenance em-

ployees, and denies that the Palo Verde

employees may be part of thc systemwide

bargaining unit without first having an

opportunity to vote in a self-

determination election as to whether they

wish to be included in that unit or to

remain unrepresented.

In the Motion for Summary Judgment,

the General Counsel argues that Respon-

dent's answer attempts to relitigate

issues that were raised and determined by

the Board in the underlying representa-

tion cases. We agree with the General

Counsel.

$1

D-8351

The record, including the record in

the underlying representation cases, Cases

28--RM--394 and 28--UC--1ll, shows that,

in December 1980, Respondent filed an RM

petition seeking an election among its

production and maintenance employees at

its Palo Verde nuclear power plant, and

that the Union filed a UC petition seek-

ing a clarification of the existing sys-~

temwide production and maintenance unit

to include the Palo Verde

(3]

employees as an accretion to the system-

wide unit. Following transfer of the

cases to the Board by the Regional Di-

rector, on June 5, 1981, the Board issued

a Decision and order?’ in which it found

that Respondent's Palo Verde production

and maintenance employees were an accre-

3/256 NLRB No. 65.

52

D-8351

tion to the existing systemwide bargain-

ing unit represented by the Union. The

Board found that no question concerning

representation of the Palo Verde em-

ployees existed, and therefore dismissed

the petition in Case 28--RM--394.

On June 15, 1981, Respondent filed

with the Board a motion for reconsidera-

tion of the Board's Decision and Order.

On June 19, 1981, the Board issued an un-

published Order denying Respondent's

motion. On July 1, 1981, Respondent

filed with the Board a renewed motion for

reconsideration of the Board's Decision

and Order. On July 9, 1981, the Board

issued an unpublished Order denying Re-

spondent's renewed motion.

On June 24 and July 13, 1981, the

Union requested Respondent to recognize

it as the exclusive representative of the

Palo Verde production and maintenance

53

fails

D-8351

employees and to bargain collectivoly

regarding those employees’ rates of pay,

wages, hours of employment, and other

terms and conditions of employment. Re-

spondent, by letters dated June 25 and

July 20, 1981, refused to recognize and

to pargain with the Union, and has con-

tinued to refuse to recognize and to bar-

gain with the Union as the exclusive bar-

gaining representative of its Palo Verde

employees. Respondent asserts as reasons

for its continued refusal to recognize

and to bargain with the Union that the

Board ignored

(4]

facts which make the application of the

accretion doctrine inappropriate in this

case, that the Palo Verde employees con-

stitute a new and distinct grouping, and

that Board law requires that such em-

ployees be granted a self-determination

54

ai E

eo

B

D-8351

election as to whether they wish to be

represented by the Union or remain

unrepresented--arguments previously pre-

sented to and considered by the Board.

Thus, it appears that Respondent is at-

tempting to raise in this proceeding is-

sues which were raised and determined in

the underlying representation cases.

It is well settled that in the ab-

sence of newly discovered or previously

unavailable evidence or special circum-

stances a respondent in a proceeding

alleging a violation of Section 8(a)(5)

is not entitled to relitigate issues

which were or could have been litigated

in a prior representation proceeding. 2/

All issues raised by Respondent in

‘this proceeding were or could have been

Y see

NLRB, 313 U.S. 146, 162 (1941); Rules and

Regulations of the Board, Sections

102.67(£) and 102.69(c).

55

D-8251

litigated in the prior representation

proceeding, and Respondent does not offer

to adduce at a hearing any newly dis-

covered or previously unavailable evi-

dence, nor does it allege that any

special circumstances exist herein which

would require the Board to reexamine

the decision made in the representation

proceeding. We therefore find that Re-

spondent has not raised any issue which

is properly litigable in this unfair

labor practice proceeding. Accor ingly,

we grant the Motion for Summary Judgment.

(S]

On the basis of the entire record,

the Board makes the following:

FINDINGS OF FACT

The Business of Respondent

Respondent, an Arizona ccrporation,

is engaged as a public utility in the

generation, transmission, distribution,

56

D-8351

and sale of electricity and natural gas.

During the past 12-month period, which

period is representative of its opera-

tions generally, Respondent, in the

course and conduct of its business opera-

tions, derived gross revenues in excess

of $250,000, and during the same period

of time purchased goods and materials

valued in excess of $50,000 which were

transported in interstate commerce and

delivered to its operations in the State

of Arizona directly from suppliers lo-

cated in States of the United States

other than the State of Arizona.

We find, on the basis of the fore-

going, that Respondent is, and has been

at all times material herein, an employer

engaged in commerce within the meaning of

Section 2(6) and (7) of the Act, and that

it will effectuate the policies of the

Act to assert jurisdiction herein.

57

IT IS FURTHER ORDERED that theDeag3Sting systemwi

II. The Labor Organization Involved

International Brotherhood of Elec-

trical Workers, AFL--CIO, Local 387, is a

labor organization within the meaning of

Section 2(5) of the Act.

[6]

III. The Unfair Labor Practices

A. The Representation Proceeding

2. The unit

The following employees of Re-

spondent constitute a unit appropriate

for collective-bargaining purposes within

the meaning of Section 9(b) of the Act:

All production and maintenance

employees employed by Respondent

throughout Respondent's system-

wide operations.

23 The recognition

At all times material herein,

the Union has been the designated exclu-

sive collective-bargaining representative

of Respondent's employees in the unit de-

scribed above, and has been recognized sil

D-8351

such by Respondent. Such recognition has

been embodied in successive collective-

hitentsine agreements, the most recent of

which is effective by its terms from

April 1, 1980, to April 1, 1982.

ae The Board's Decision and

Order

On June 5, 1981, the Board is-

sued a Decision and order, 2/ finding,

inter alia, that certain production and

maintenance employees employed by Respon-

dent at its Palo Verde, Arizona, nuclear

power plant, which is currently in the

process of being constructed, are an

accretion to, and included in, the unit

described above.

B. The Rkequest to Bargain and Re-

spondent's Refusal

Commencing on or about June 24,

1981, and at all times thereafter, the

S/ = 256 NLRB No. 65.

59

D-8351

Union has requested Respondent to bargain

{7}

collectively with it as the exclusive

collective-bargaining representative of

all the employees in the above-described

unit. Commencing on ocr about June 25,

1981, and continuing at all times there-

after to date, Respondent has refused,

and continues to refuse, to recognize and

bargain with the Union as the exclusive

representative for collective bargaining

of all employees in said unit.

Accordingly, we find that Respondent

has, since June 25, 1981, and at all

times thereafter, refused to bargain col-

lectively with the Union as the exclusive

representative of the employees in the

appropriate unit, and that, by such re-

fusal, Respondent has engaged in and is

engaging in unfair labor practices within

the meaning of Section 8(a)(5) and (1) of

the Act.

D-8351

IV. The Effect of the Unfair Labor

Practices Upon Commerce

The activities of Respondent set

forth in section III, above, occurring in

connection with its operations described

in section. I, above, have a close, inti-

mate, and substantial relationship to

trade, traffic, and commerce among the

' several states and tend to lead to labor

disputes burdening and obstructing com-

merce and the free flow cf commerce.

V. The Remedy

Having found that Respondent has en-

gaged in and is engaging in unfair labor

practices within the meaning of Section

8(a)(5) and (1) of the Act, we shall

order that it cease and desist therefrom,

and, upon request, bargain collectively

with the Union as the exclusive represen-

tative of all employees in the

[8]

appropriate unit and, if an understanding

61

;

fe

- a '

, 4, ‘

. 7 ne Bt , , . a - |

MA Ea a i Vee ne a OSE!» Dy dye i

D-8351

is reached, embody such understanding in

a signed agreement.

The Board, upon the basis of the

foregoing facts and the entire record,

makes the following:

CONCLUSIONS OF LAW

Ri Arizona Public Service Company

is an employer engaged in commerce within

the meaning of Section 2(6) and (7) of

the Act.

2. International Brotherhood of

Electrical Workers, AFL--CIO, Local 387,

is a labor organization within the meaning

of Section 2(5) of the Act.

Ss All production and maintenance

emoloyees employed by Respondent through-

out Respondent's systemwide operations

constitute a unit appropriate for the pur-

poses of collective bargaining within the

meaning of Section 9(b) of the Act.

62

D-8351

4. At all times material herein,

the above-named labor organization has

been and now is the designated exclusive

representative of all employees in the

aforesaid appropriate unit for the pur-

pose of collective bargaining within the

meaning of Section 9(a) of the Act.

5. By refusing on or about June 25,

1981, and at all times thereafter, to

bargain collectively with the above-named

labor organization as the exclusive bar-

gaining representative of all the enm-

ployees of Respondent in the appropriate

unit, Respondent has engaged in and is

engaging in unfair labor practices within

the meaning of Section 8(a)(5) of the

Act.

6. By the aforesaid refusal to

bargain, Respondent has interfered with,

restrained, and coerced, and is inter-

fering

(9]

with, restraining, and coercing, em-

ployees in the exercise of the rights

guaranteed them in Section 7 of the Act,

and thereby has engaged in and is en-

gaging in unfair labor practices within

the meaning of Section 8(a)(1) of the

Act.

7. The aforesaid unfair labor

practices are unfair labor practices

affecting commerce within the meaning of

Section 2(6) and (7) of the Act.

ORDER

Pursuant to Section 10(c) of the

National Labor Relations Act, as amended,

the National Labor Relations Board hereby

orders that the Respondent, Arizona Pub-

lic Service Company, Palo Verde, Arizona,

its officers, agents, successors, and

assigns, shall:

1. Cease and desist from:

”

anil —

D-8351

(a) Refusing to bargain col-

lectively concerning rates of pay, wages,

hours, and other terms and conditions of

employment with International Brotherhood

of Electrical Workers, AFL--CIO, Local

387, as the exclusive bargaining represen-

tative of its employees in the following

appropriate unit:

All production and maintenance

employees employed by Respon-

dent throughout Respondent's

systemwide operations.

(b) In any like or related

manner interfering with, restraining, or

coercing employees in the exercise of the

rights guaranteed them in Section 7 of

the Act.

2 Take the following affirmative

action which the Board finds will effec-

tuate the policies of the Act:

(a) Upon request, bargain with

the above-named labor organization as the

65

D-8351

exclusive representative of all employees

in

[10]

the aforesaid appropriate unit with re-

spect to rates of pay, wages, hours, and

other terms and conditions of employment

and, if an understanding is reached,

embody such understanding in a signed

agreement.

(b) Post at its Palo Verde,

Arizona, facility copies of the attached

notice marked “Appendix. "2/ Copies of

said notice, on forms provided by the

Regional Director for Region 28, after

being duly signed by Respondent's repre-

&/ In the event that this Order is en-

forced by a Judgment of a United States

Court of Appeals, the words in the notice

reading “POSTED BY ORDER OF THE NATIONAL

LABOR RELATIONS BOARD" shall read “POSTED

PURSUANT TO A JUDGMENT OF THE UNITED

STATES COURT OF APPEALS ENFORCING AN

ORDER OF THE NATIONAL LABOR RELATIONS

BOARD." )

D-8351

sentative, shall be posted by Respondent

immediately upon receipt thereof, and be

maintained by it for 60 consecutive days

thereafter, in conspicuous places, in-

cluding all places where notices to em-

ployees are customarily posted. Reason-

able steps shall be taken by Respondent

to insure that said notices are not

altered, defaced, or covered by any other

material.

(c) Notify the Regional Direc-

tor for Region 28, in writing, within 20

days from the date of this Order, what

steps have been taken to comply herewith.

DATED, Washington, D.C., Decem-

ber 3, 1981.

NATIONAL LABOR

RELATIONS BOARD

John H. Fanning,

Member

67

= (SEAL)

Howard Jenkins, Jr.,

Member

D-8351

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to bargain col-

lectively concerning rates of pay, wages,

hours, and other terms and conditions of

employment with International Brotherhood

of Electrical Workers, AFL--CIO, Local

387, as the exclusive representative of

the employees in the bargaining unit de-

scribed below.

WE WILL NOT in any like or related

manner interfere with, restrain, or co-

erce our employees in the exercise of the

rights guaranteed them by Section 7 of

the Act.

WE WILL, upon request, bargain with

the above-named Union, as the exclusive

representative of all employees in the

bargaining unit described below, with

69

D-8351

respect to rates of pay, wages, hours,

and other terms and conditions of em-

ployment and, if an understanding is

reached, embody such understanding in a

Signed agreement. The bargaining unit

is:

All production and maintenance em-

ployees employed by us throughout our

systemwide operations.

ARIZONA PUBLIC

SERVICE COMPANY

(Employer )

Dated

By

(Representative) (Title)

This is an official notice and must

not be defaced by anyone.

This notice must remain posted for

60 consecutive days from the date of

posting and must not be altered, defaced,

70

or covered by any other material. Any

questions concerning this notice or com-

pliance with its provisions may be di-

rected to the Board's Office, Second

Floor, 3030 North Central Avenue, P. O.

Box 33069, Phoenix, Arizona 85012, Tele-

phone 602--241--2362.

71

RECEIVED FILED

JUL 18 1983 JUL 15 1983

SNELL & WILMER PHILLIP B. WINBERRY

CLERK, U.S. COURT OF

APPEALS

UNITED STATE COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARIZONA PUBLIC SERVICE

INTERNATIONAL BROTHER-

HOOD OF ELECTRICAL

WORKERS, AFL-CIO,

LOCAL 387,

Intervenor.

)

COMPANY, )

)

Petitioner- )

Cross-Respondent, ) NOS. 81-7841

) 81-7039

Vv. )

)

NATIONAL LABOR RELATIONS ) ORDER

BOARD, )

)

Respondent- )

Cross-Petitioner, )

)

and )

)

)

)

)

)

)

)

)

Before: ALARCON, POOLE, and NELSON,

Circuit Judges

The panel as constituted in the

above case has voted to deny the petition

72

for rehearing and to reject the sugges-

tion for a rehearing en banc.

The full court has been advised of

the suggestion for an en banc hearing,

and no active judge of the court has re-

quested a vote on the suggestion for re-

hearing en banc. Fed. R. App. P. 35(b). |

The petition for rehearing is denied

and the suggestion for a rehearing en

banc is rejected.

PMP/22-F

73

NATIONAL LABOR RELATIONS BOARD

Sec. 7. Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to engage in other

concerted activities for the purpose of collective bargaining or other

mutual aid or protection, and shall also have the right to refrain

from any or all such activities except to the extent that such right

may be affected by an agreement requiring membership in a labor

organization as a condition of employment as authorized in section

8(a) (3).

UNFAIR LABOR PRACTICES

Sec. 8 (a) It shall be an unfair labor practice for an employer—

(1) to interfere with, restrain, or coerce employees in the exer-

cise of the rights guaranteed in section 7;

(2) to dominate or interfere with the formation or administra-

tion of any labor organization or contribute financial or other.

support to it: Provided, That subject to rules and regulations

made and published by the oard pursuant to section 6, an

employer shall not be prohibited from permitting employees tc

confer with him during working hours without loss of time o.

pay;

(3) by discrimination in regard to hire or tenure of employ-

ment or any term or condition of employment to encourage or

discourage membership in any labor organization: Provided,

That nothing in this Act, or in any other statute of the United

States, shall preclude an employer from making an agreement

with a labor organization (not established, niaintained, or as-

sisted by any action defined in section 8(a) of this Act as an

unfair labor practice) to require as a condition of employment

membership therein on or after"the thirtieth day following the

beginning of such employment or the effective date of such

, agreement, whichever is the later, (i) if such labor organization

is the representative of the employees as provided in section 9(a),

in the appropriate collective-bargaining unit covered by such

agreement when made, and (ii) unless following an election held

‘as provided in section 9(#) within one year preceding the effec-

tive date of such agreement, the Roard shall have certified that

at leust a majority of the employees eligible to vote in .such

election haye voted (o rescind the authority of such labor organi-

zation to make such an agreement: Provided further, That m

employer shall justify any discrimination against an employee

for nonmembership in a labor organization (A) if he has rea-

74

TEXT OF AMEXDED ACT

sonable grounds for believing that such membership was not

available to the employee on the same terms and conditions gen-

erally applicable to other members, or (1) if he has reasonable

grounds for believing that membership was denied or terminated

for reasons other than the failure of the employee to tender the

periodic dues and the initiation fees uniformly required as a

condition of acquiring or retaining membership ;

(4) to discharge or otherwise discriminate against an em-

ployee because he has filed charges or given testimony under this

‘ Act;

(5) to refuse to bargain collectively with the representatives

of his employees, subject to the provisions of section 9(a).

(b) It shall be an unfair labor practice for a labor organization

or its agents

(1) to restrain or coerce (A) employees in the exercise of the

rights guaranteed in section 7: Provided, That this paragraph

shall not impair the right of a labor organization to prescribe

its own rules with respect to the acquisition or retention of mem-

bership therein; or (13) an employer in the selection of his rep-

resentatives for the purposes of collective bargaining or the ad-

justment of grievances;

(2) to cause or attempt to cause an employer to discriminato

aginst an employee in violation of sulsection (a) (3) or to dis-

criminate against an employee with respect to whom member-

ship in such organization las Leen denied or terminated on some,

ground other than his failure to tender the periodic dues and the

initiation fees uniformly required as a condition of acquiring

or retaining membership;

(3) to refuse to bargain collectively with an employer, pro-

vided it is the representative of his employees subject to the pro-

visions of section 9(a) ;

(4) (i) to engage in, or to induce or encourage any individual

employed by any person eng:.ged in commerce or in an industry

affecting commerce to engage in, a strike or a refusal in the

course of his employment to use, manufacture, process, transport,

or otherwise handle or work en any goods, articles, materials, or

commodities or to perfofm any services; or (ii) to threaten,

coerce, or restrain any person engaged in commerce or in an

industry affecting commerce, where in cither case an object

thervef is: '

(A) forcing or requiring any employer or self-employed

person to join any labor or employer organization or to enter

into any agreement which is prohibited by section 8(e) ;

(B) forcing or requiring any person to cease using, sell-

ing, handling, transporting, or otherwise dealing in the

359

715)

TEXT OF AMENDED ACT

not less than ten days prior to such action, notify the institution in

writing and the Federal Mediation and Conciliation Service of that

intention, except that in the case of bargaining for an initial agree-

ment following certification or recognition the notice required by this

subsection shall not be givea until the expiration of the period speci-

fied in clause (13) of the last sentence of section 8(d) of this Act. ‘The

notice shall state the date and time that such action will commence.

The notice, once given, may be extended by the written agreement of

both parties.*

REPRESENTATIVES AND ELECTIONS

Sec. 9. (a) Representatives designated or selected for the pur

pases of collective bargaining by the majority of the employees in

at unit appropriate for such purposes, shall be the exclusive repre-

sentatives of all the employees in such unit for the purposes of col-

lective bargaining in respect to rates of pay, wages, hours of em-

ployment, or other conditions of employment; Provided, That any

individual employee or a group of employees shall have the right

al any time to present grievances to their employer and to have such

grievances adjusted, without the intervention of the bargaining rep-

resentative, as long as the adjustment is not inconsistent with the’

termes of a collective-bargaining contract or agreement then in effect :

Provided further, That the bargaining representative has been given

opportunity to be present at such adjustment.

(b) The Board shali decide in each case whether, in order to as-

sure to employees the fullest freedom in exercising the rights guar-

anteed by this Act, the unit appropriate for the purposes of collec-

tive bargaining shall be the employer unit, craft unit, plant unit,

or sulxlivision thereof: Prorided, That the Board shall not (1) de-

cide that any unit is appropriate for such purposes if such unit in-

cludes: both professional employees and employees who are not pro-

fessional employees unless a majority of such professional employees

vote for inclusion in such unit; or (2) decide that any craft unit is

inappropriate for such purposes on the ground that a different unit

has been established by a prior Board determination, unless a ma-

jority of the employees in the proposed craft unit votes against

separate representation or (:b) decide that any unit is appropriate

for such purposes if it includes, together with other employees, any

individual employed as a guard to enforce against employees and

other persons rules to protect property of the employer or to pro-

teet the safety of persons on the employer's premises; but no labor

organization shall be certified as the representative of employees in

*Pursuant to Public Law 93-360. 92d Cong. % 2203, 88 Stat. 206, Ser. & ix amended

by adding subsec. (g).

76

ee ee ee ee ee ee

NATIONAL LABOR RELATIONS BOARD

a bargaining unit of guards if such organization admits to member-

ship, or is affiliated directly or indirectly with an organization which

admits to membership, employees other than guards.

(c)(1) Wherever a petition shall have been filed, in accordance

with such regulations as may be prescribed by the Board—

(A) by an employee or group of employees or any individual

or labor organization acting in their behalf alleging that a sub-

stantial number of employees (i) wish to be represented for col-

lective bargaining and that their employer declines to recognize

their representative as the representative defined in section 9(a),

or (ii) assert that the individual or labor organization, which

has been certified or is being recognized by their employer as

the barguining representative, is ne longer u representative as

defined in section 9(a); or

(B) by an employer, alleging that one or more individuals or

labor organizations have presented to him a claim to be recog-

nized as the representative defined in section 9(a) ;

the Board shall investigate such petition and if it has reasonable

cause to believe that a question of representation affecting commerce

exists shall provide for an appropriate hearing upon due notice.

Such hearing .aay be conducted by an officer or employee of the

regional office, who shall not make any recommendations with respect

thereto. If the Board finds upon the record of such hearing that

such a question of representation exists, it shall direct an election by

secret ballot and shall certify the results thereof.

(2) In determining whether or not a question of representation

affecting commerce exists, the same regulations and rules of docision

shall apply irrespective of the identity of the person filing the peti-

tion or the kind of relief sought and in no case shall the Board deny

a labor organization a place on the Lallot by reason of an order with

respect to such labor organization or its predecessor not issued in

conformity with section 10(c). -

(3) No election shall be directed in any bargaining unit or any

subdivision within which, in the preceding twelve-month period, a

valid election shall have been held. .Eimployeos engaged in an cco-

with the purposes and provisions of this Act in any election con-

ducted within twelve months after the commencement of the strike.

In any selection where none of the choices on the ballot receives a

majority, a run-off shall be conducted, the ballot providing for a

selection between the two choices receiving the largest and second

largest number of valid votes cast in the election.

(4) Nothing in this section shall be construed to prohibit the

77

TEXT OF AMENDED ACT

tion in conformity with regulations and rules of decision of the

Board.

(5) In determining whether a unit is appropriate for the purposes

specified in subsection (b) the extent to which the employees have

organized shall not be controlling.

(d) Whenever an order of the Board made pursuant to section

10(c) is based in whole or in part upon facts certified following an

investigation pursuant to subsection (c) of this section and there

is a petition for the enforcement or review of such order, such certifi-

cation and the record of such investigation shal] be included in the

transcript of the entire record required to be filed under section

10(e) or 10(f), and thereupon the decree of the court enforcing,

modifying, or setting aside in whole or in part the order of the Board

shall be made and entered upon the pleadings, testimony, and pro-

ceedings set forth in such transcript.

(e)(1) Upon the filing with the Roard, by 30 per contum or more

of the employees in a bargaining unit covered by an agreement be-

tween their employer and a labor organization made pursuant to

section 8(a) (3), of a petition alleging they desire that such author-

ity be rescinded, the Hoard shall take a secret ballot of the employees

in such unit and certify the results thereof to such labor organization

and to the employer.

(2) No election shall be conducted pursuant to this subsection in

any bargaining unit or any subdivision within which, in the pre-

ceding twelve-month period, a valid election shall have been held.

PREVENTION OF UNFAIR LABOR PRACTICES

Sec. 19. (a) The Board is empowered, as hereinafter provided,

to prevent any person from engaging in any unfair labor practice

(listed in section 8) affecting commerce. This power shall not be

affected by any other means of adjustment or prevention that has

been or may be established by agreement, law, or otherwise: Pro-

vided, ‘That the Luard is empowered by agreement with any agency

of any State or Territory to cede to such agency jurisdiction over

any cases in any indusiry (other than mining, manufacturing, com-

munications, and transportation except where predominantly local

in character) even though such cases may involve labor disputes

affecting commerce, unless the provision of the State or Territorial

statute applicable to the determination of such cases by such agency

is inconsistent with the corresponding provision of this Act or has

received a construction inconsistent therewith.

(b) Whenever it is charged that any person has engaged in or is

engaging in any such’ unfair labor practice, the Board, or any agent

or agency designated by the Roard for such purposes, shall have

367

78

a4

Z

TEXT OF AMENDED ACT

national in scope. Such order may further require such person to

make reports from time to time showing the extent to which it has

complied with the order. If upon the preponderance of the testimony

taken the Board shall not Le of the opinion that the person named

in the complaint has engaged in or is engaging in any such unfair

labor practice, then the Board shall state its findings of fact and

shall issue an order dismissing the said complaint. No order of the

Board shall require the reinstatement of any individual as an em-

ployee who has been suspended or discharged, or the payment to

him of any back pay, if such individual was suspended or discharged

for cause. In case the evidence is presented before a member of the

Toard, or before an examiner or examiners thereof, such member,

or such examiner or examiners, as the case may be, shall issue and

cause (o be served on the parties to the proceeding a proposed report,

tog.. w with a recommended order, which shall be filed with the

Bu _, and if no exceptions are filed within twenty days after

service thereof upon such parties, or within such further period as

the Board may authorize, such recommended order shall become the

order of the Board and become effective as therein prescribed.

(d) Until the record in the case shall have been filed in a court,

as hereinafter provided, the Board may at any time, upon reasonable

notice and in such manner as it shall deem proper, modify or set aside,

ia whole or in part, any finding or order made or issued by it.

(e) The Board shall have power to petition any court of appeals

of the United States, or if all the courts of appeals to which appli-

cation may be made are in vacation, any district court of the United

States, within any circuit or district, respectively, wherein the unfair

labor practice in question occurred or wherein such person resides

or transacts business, for the enforcement of such order and for ap-

propriate temporary relief or restraining order, and shall file in

court the record in the proceedings, as provided in section 2112

title 28, United States Code. Upon the filing of such petition,

court shall cause notice thereof tu Le served upon such person,

thereupon shall have jurisdiction of the proceeding and of the

tion determined therein, and shal] have power to grant such

porary relief or restraining order ax it deems just and

to make and enter a decree enforcing, modifying, and enforcing

so modified, or setting aside in whole or in part the order of t

Board. No objection that has not been urged before the

member, agent, or agency, shall be considered by the

the failure or neglect to urge such objection shall

of extraordinary circumstances.

2 F

H

qn

be

The findings of the

" a ed

NATIONAL LABOR RELATIONS BOARD

shall show to the satisfaction of the court that such additional evi-

member, agent, or agency, the court may order such additional evi-

dence to be taken before the Board, its member, agent, or agency, and

to be made a part of the record. The Board may modify its find-

ings as to ‘he facta, or make new findings, by reason of additional

evidence so taken and filed, and it shall file or

L

(f) Any person aggrieved by a final order of the Board granting

or denying in whole or in part the relief sought may obtain a review

of such order in any circuit court of appeals of the United States in

the circuit wherein the unfair labor practice in question was alleged

F

gEteckE

:

i

1

i

"

i}

questions of fact if supported by substantia] evidence on the record

considered as a whole shall in like manner be conclusive.

(g) The commencement of proceedings under subsection (¢) or

(f) of this section shall not, unless specifically ordered by the court,

operate an a stay of the licard’s order, |

(h) pe pa compen fe a eager weg ge

- a me em ~ ee

Oem a. ne-s279 se 7

14-99! a

" pOememr ecae-14,

1090 one 1658 UNITED STATES OF AMERICA

MATIOWAL LABOR RELATIONS BOARD

Tyee of Election

tm the Matter of

Ie | ee

AALZUNA PUPLIC Sind ict COM ANY (_] sone ceocero

C) STIPULATION

_— Case to, Z1-AC—L2L2

INT‘ANATIOWAL “UTHERNOOL Ur SLICTRACAL

WORKIRT, LOCAL 397, AFL-CIO

CERTIFICATION OF REPRESENTATIVES

An election having been conducted in the above matter by the undersigned

Regional Director of the National Labor Relations Board in accordance with the ful

and Requiations of the Board; and it appearing from the Tally of Ballots that a

collective bargaining representative has been selected; and no objections having

been filed to the Tally of Ballots furnished to the parties, or to the conduct of

the election, within the time provided therefor;

Pursuant to authority vested in the undersigned by the National Labor Relati

Board,

IT 1S WEREBY CERTIFIED that

LUTRAMATIOMAL BROTU.AWU.u Ub FLICTRICAL .JRCiAS, LnwAL 387, AFL-<LO

has been designated and selected by a majority of the employees of the above-named

Employer, in the unit herein involved, as their representative for the purposes of

collective bargaining, and thet, pursuant to Section 9 (a) of the Act as amended,

the said organization is the exclusive representative of all the employees in such

unit for the purposes of collective bargaining with respect to rates of pay, wages,

hours of employment, and other conditions of employment.

Signed at ros angeles, California

On the th * “day of Jaquary » 1%,

On behalf of

nae RELATIC BOARD

+ om, ST ; a :

ona ia

National Labor Relations 124

Acting

81 : at

(C Consent Agresment | Soom sees

Loe luyes = Stigeletion Caen?)

C) seared Sirection

C) &© Pi rection

ae

LOCAL wrtoe 9347, UrTQuATLOMAL mOTMERNUGD Cece te, 28-86-2127

NeCitioner

CERTIFICATION OF REPRESENTATIVE

Aa election having been Conducted i the above matter under the supervision of the Regronai Director

of (ne ating) Labor Retations Goad in accordance with the Rules and Reguiations of the Board: ~

spvew ng om the Taity of Batlots that 2 collective bargaining representative has bees selected: and oe

GPACHIONS Moving been liked to the Tally of Ballets humished to the parties, o to tee conduct of the election,

wet (M0 ne provided theretar.

Pursuant to authority vested ia the undersigned by the Nations! Later Relations Geant, T [S HEREBY

tat LOCAL WHLON 9387, USTEEMATIONAL BeoTmamnce

@ CLacTRical, worezns,

Nas 000" ORhignated and selected by 2 majerity of the employees of the sheve-camed Employer, ie the unit

GOcribed Ueto, os thew representative tor the purposes of collective bargaining, snd thet, pursunnt te Section

5 (a) of 0 Act 25 smended, the Saad orgamzation 1s the exclusive representatrve of ail the employees i= much

nit fer" inspeses of collective bargeining with respect to cates of pay, wages, hows of euployment, snd other

Siget Lees, Bev Nenice %

Osthe = tng Gye = Jemmary mm,

Om detalt of

RATIONAL

; b

Nationa (stor Reistions Board

82

me oe

= prtyival iZaorhkevs

PHOENIX ARIZONA 05014

December 7, 1970

Mr. C. J. Amerman, Manager

Employees Relations

Arizona Public Service Company

P. O. Box 21666

Phoenix, Az 85036

Dear Chuck:

This letter is to advise you that I.3.£.W. Local Union #367 has been

authorized by a majority of the Warvhouce caployees of Arizona Public

Service Company, in the states of Arisona and New Mexico, to represent

thwm iz, collective baryaining. This dow. avt include clerical or supcr-

visory personnel.

Your return letter of confirmation and cgreement to establish a date to

commerce nevotiations will be appreciated no later than December 14, 1970.

Sinec=.iy,

hy tbe < Ses ihker

c. Wild. sé. Local Union #387

CB: ad

opeiu #56

afl-cio

83

(eee + e009 tC --28

JMITEO STATES OF AMERILA

NATIONAL LABOR RELATIONS BOARD

Tree oF ELECTION

ARIZONA PUBLIC SERVICE COMPANY een eS

USL ~O? co ¢ ber ‘ a

Employer Kx Strwtatven CEC aenr)

(CD teere Si rection

() 88 Bi rection

and

Case me. 28-RC-3221

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS LOCAL NO. 387, AFL-CIO

Petitioner

CERTIFICATION OF REPRESENTATIVE

Aa elettion having Deen Conducted in (he adove matter under the supervision of the

Regronal Director of the National Labor Relations Board in accordance wrth the Rules and

Regulations of the Board and 1| appearing trom the Taily of Ballots that a collective bargnining

representative has been selected. and no objections having been fried to the Tally of Ballots

furmshed to the parties. or to the conduct of the election, withia the time provided therefor,

Pursuant to authority vesied in the undersigned by the National Labor Retations Board,

IT 1S MEREBY CERTIFIED that 2 majority of the valid ballots have been cast for

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL MO. 187, AFL-CIO

and that, pursuant to Sectron a) of the National Labor Relations Act, 2s amended. the said

labor Orgam zation 13 the exclusive ‘epresentative of af! the employees in the unit set forth

below. found to be appropri.ic tor (he purposes of coflectrve bargaeneng ia respect to rates of

Day, wages. Now's of employment o other conditions 0! employment.

UNIT:

All fuel specialists employed by the Employer at

four Corners Power Plant, Fruitland, New Mexico,

its West Phoenix Power Plant; excluding office clerical

employees, professional employees, — and super-

visors as defined in the Act and all other employees.

IT IS HEREBY CERTIFIED that the said orgenization may

bargain for the employees in the above-named category

as part of the existing unit.

Signed at Phoenix, Arizona

On the 21st day of October 19 76

On penal! of

RATIONS, LAGOS 8 T1045 BOARD

le 4 Wi4 =

(ete tee

" oC -an-00

JUTE SLATES OF ANMEAICA

WATIONAL LABOR RELATIONS COARO

tree oF ELECTION

(Cheat ones (Aloe chant bee

ARIZONA PUSLIC SERVICE COMPANY (7) Consent sgreseent beiow were

Employer CG Strowtetien = aceyer)

(C) Beare Orrestie

and CO th Or rectre

LNTERNATIONAL GPOTHERHOOO OF ELECTRICAL cave Pe. 28-Rac-3213

WORKERS LOCAL NO. 337, AFL-CIO

Petitioner

CERTIFICATION OF REPRESENTATIVE

An election having Deen Conducted in the above matier under the supervision of (ne

Reponai Owector of the National Lator Relations Goad oa accordance wih the Rules sod

Regulations of the Board. and it appearing trom the Tally of Ballots that a collective Gar garnung

representative has been selected, and no Gtyectioms having been filed to the Tally of Batlots

tgemi ged to the parties, oF to the Conduct of the elect-on, withua the lume prowded theretor,

Pursuant to authority vested in the undersigned by the National Labor Relations Board,

iT 13 KERESY CERTIFIED that a majority of the valid ballots have bese casi for

INTERMATIONAL BRUTHERMCOO OF TLOCTRICAL WORKERS

LOCAL NO. 387, AFL-CIO

aad (Rat, pursuant 9 Section %2) of the National Lator Relahons Act, as amended, the sand

labor orgsm zation 1s the exclusive representative of ail the employees va the unit set forts

neiow, ‘ound to be aoprapniate for the pw poses of collective bargamng in vespect lo (ates of

pay, wages, hours of employment, or other conditions of employment.

unit

All cathodic protection testers employed by the

Employer at its facility at 2121 W. Cheryl Or.,

Bldg. F, Phoenix, Arizona; excluding all other

employees, office clecical employees, quards,

professional employees and supervisors as de-

fined in the Act.

> yet Pnoenix, Arizona

On the 6th vay oO dep cemrwc we

Ga benait of

NATIONAL LABIA HELA TIONS BOARO

ae «

UMITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

Tree oF CLaction

(Chee ome) (Ales choet bon

ARIZONA PUBLIC SERVICE COMPANY (Z) Comscet dgreemert | sppreprtane/

CD ttipetetion © “ex

Eaployer CO) seers Sirection

CE & Pirectio

and tose te. 26-RC-3587

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS LOCAL NO. 387, AFL-CIO

Petitioner

CERTIFICATION OF REPRESENTATIVE

An election havicy Deen Conducted i the above maiter under the supervision of the

Regponal Director of the National Lator Relations Board in accoréance with the Rutes and

Regulations of the Board. and 1! appearing trom the Tally of Ballets that 2 coflectrve bar gaumag

fepresentatrve has been selected. and no obyectroms having been filed to the Tally of Ballots

furnished to the carves, or to the conduct of the election, withen the tome provided therefor,

Pursuant tp authority vested ia the undersigned by the Matenai | ator Reistons Board

IT 1S HEREBY CERTIFIED that 2 majority of the valid ballots have beer cast for

INTERNATIONAL BROTHERHOOD OF ELECTRI

WORKERS LOCAL NO. 387, AFL-CIO

an6 that, pursuant to Sectson %2) of the National Labor Reiations Act, 25 amended. the sad

(ator or gam zation 15 the exciusive ‘epresentative of afl the employees i= the une set forth

betow, found to be approprizte for (he purposes of collective bar gaeming i respect to rates of

pay, wages, hows of employment, or other conditions of employment.

UNIT All auto parts specialists employed by the Employer in

the Scaces of Arizona and New Mexico; excluding all

other employees, office clerical exployees, guards and

supervisors as defined in che Act.

Siged a Phoenix, Arizona

Oates “'25EEC:~ > Gye January’) **-* 1979

a

+k, (760 AUZC. j;pOocuz.~* yLTROUS

Best Copy Avaitatile

Foee a near aC -aM-49

‘ern

UNITED STATES OF AMERICA

NATIONAL LABOR RELATIONS BOARD

TYPE OF ELECTION

(Cheek one) (Aloe hack bon

ARIZONA PUBLIC SERVICE COMPANY (X) Consent Agressent | Spore nasy

() Stipwlation CC e)(7)

Employer C) Beard Sirection

(C) 80 Direction

and Case te, 28-RC-3587

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS LOCAL NO. 387, AFL-CIO

Pecicioner

CERTIFICATION OF REPRESENTATIVE

An election having been conducted in the above matter under the supervision of the

Regional Director of the National Labor Relations Board in accordance with the Rules and

Regulations of the Board; and it appearing from the Tally of Ballots that a collective bargaining

representative has been selected; and no objections having been filed to the Tally of Ballots

furnished to the parties, or to the conduct of the election, within the time provided therefor;

; _ Pursuant to authority vested:in the undersigned by the National | abor Relations Board,

IT | i3 HEREBY CERTIFIED that a majority of the valid ballots have been cast for

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

eg WORKERS’ LDCAL NO. 387, AFL-CIO

ea ON the National Labor Relations Act, as amended, the said

labor organization is the exclusive representative of all the employees in the unit set forth

below; found to be appropriate lor the-purposes of collective bargaining in respect to rates of

pay, wages, hous of enployndai, or other conditions of employment

. : Co”

UNIT: Ail auto parts specialists Bry 5 ps by the Employer in

the States of Arizona and New Mexicc; excluding all

other’ employees,- office clerical employees, guards and

oeperenseey as defined in the Act.

Gs. c..

jy. Ga” cheats oo. 2 ee Cae a

ye e.2° =p

Le- \

Signed at ‘Phoenix, roleene

Cathe OBE. 5. ty ot Jarmiany/.14i tC 9979

On behalf of

ir eCur'G:’ G COLL TIeq Ausze: Lpocuza* yLTrous

oot" Ss 8 o,f. % ol LAGOR RELATIONS 2

4 vw GO tj “Se AV S@RS

Fomm e RO. 00s WeTte Stalls OF amttica rome tseme! umes

19006@ MANOMad (ASCE MELANOME 8008 ese Gn

PETITION se

apap

WET RUCTIONS — totes co erpenet cad tees 14) cage of che Premmee oe ote WEES Ropeemed

es = ee Regan 2 tert me cmpteye semeeraet = evened

The Peesteemer siteges shes the lellewing Crew maranses seem ead rrqwrws (her tte Memenel ster Reterens Beord proceed wader

a0 preper cushenwy purccens to Esonen 9 of che Newened Leher Relemeee Ac.

|. Perpece of che Poresen 1 ter OC Om > OD 2 camtad cad o thous codes eum Wbitl: @ tie Ad tun tome find acm te haga enue

Re ee ee ee re

(Comet ones

a aC -CAATINGs THOM OF ative «« et mete = ee ern ere te

a ree ———

oO An-AGPRGEENTOTION (O00RLOvER OF ee ee trees teen ae Re

Seamaenel toca

0 cpsataneninieiinsetia. a ieeeeneencaeetancoienseaantden tniiniiasiacniteiindsiitamstaaliaiateals ibeaditatiaet

ee ee tee

Oo UO WIT HORA © 44 OF LION BOP AUTHORITY — They pereres (20%) or may of cmngteyer = + bergeumeng eae covered by

ee metre mt ee et rr ee

Oo CCUMTT CLABINIC 4 THOM a tt eeremey De rt a te ee pee

oe tere Cte me Nee er ety ere

ee pre my nt nee

OC «<-asenonant oF TOM = Penenemer sens - cowed to Cone Pe.

ARIZOMA PUBLIC SERVICE COMPANY

P. O. Box 21666, Phoenix, AZ $5036

Tl Wt ©@ tttenaantd Veren, on, =

Publie utility ‘

Uae Tasty BE pees as PRINT copeany os a =

et All field representatives ed in the 2

é opr employ credit

orosen ar ae

tues All other employees, quards and supervisors. ‘es

' mom

Ot nee

“= ow

0-O0-

je ee emt Fn “asd cad comple MVOEE tae tees 0G aiimccs io aplcied "| an tt aus

% hee tee i tee a on mete we PSEA ‘ es Fr ee

ae

CREED CEGEEED 68 © BEB ccncccrnepaeee 1 (me ny owed oe comes

nm Pe et ene Boe te ee

a - ore) wee ne remmey

fey ————_

None

===

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tee et en ere See ak hey oe

val ategpeniabeteest mame) tndeimtmenncartsob uses Nim ERO:

a ta mn a MN RR Gee me OF — eo

a Nason address) =

a

t—- Stee veerto ifatth Ch amterca fem Appreed

malOmas, (4808 GialiOrrs O00 Beaters Barrow Ne ne mums ie

(OTROS THINS — betes ce cgenet cmd tear (6) cngere of che Premeee oe ote WEES Boqeeeet 26-RM- 3%

i ee eee (1 eee

me ee ewer tee me me rm art eee eee em me eee

‘ Perpeee of chen Permemn 1 ten BC. EM. we BO = rtmtnd ond + vterge ender immune Sibi"! fe aut tes tere fied mah ue Pammun couww

err te res fine mg te ew pew ew pees el ne Oe ey

(oe ome

Oo A -<A8 TIA TION OF BEPEEMENTA TIVE +8 eeReeemet Se RET at cenpieper Sat oe be wpererened ber gergene: of: ather eee

mereemeang by Premmmmer cad Prmempmey trees me Me ed perenne pte

(QB sn-cepacsewra rion stmmuree oc -On = ee —_ See pore stem ne Pomme

Cd eed os te = eee

0 0 O- ORL EB TINEA THUR — 6 weteccemet commer af cmpterer, nen as che ocd we rererenty eemgmerd Bergen pereeenees =

er ee

oO \ Oe WIT HORA WAL OF UNION SHOP AUTHORITY — Trane prenee (609 | ae mneee af emptepers es berpemeng wae venered by

tg orem Bers ore eee campte~er meds tee erg tee meme ree ee 8 tee te ee ee

(CD 0e-0ner Cesena rons a = ferwreety res Oe empterer, ee peemenee sere eteneie ames of pie emerne ad

oe omg om (Chet ames Mt ee per eet em

St rm es tes ee Ne

oO 26 - AMENDMENT OF CER TINTS TION —Prrememer sorts smredeees of commbreee monet a Co Me

Amore sowwens Grwriung te Gunga covedaret mete

| = @ innowe ere —=—

Acizona Public Service Company Joseph Gelinas lani-2es1

er er ens Te — ats Se

Palo Verde Nuclear Generating Station

in 108 @ ttlamnnmaee — sn 7S Geeeet reins eek! Ge eres

Nuclear Generating Station Electricity

‘ Can \avateed the 0 peau. Grande POLLEY icpomeg cos sad ound amcguar d pmuad mogumuns | Sat & mnomes

‘wwet @il nuclear operators 1, 2 and 3; instrument control :

technician senior; electrician water reclamation facility: oer AS

general maintenance employees; instrument and control re-

pairmen- water reclamation 5s’ hp: water reclamation

r

facility wwe. 1, 2 and 3; ekeepers, employed by UREcEEeTaE

employer at Verde Nuclear Generating Station. 6 on anne

“““t Office clerical employees, professional employees, =e

“rds, watchmen, supervisors as defined by the Act, and all mores

other employees. ————

O=O0-

1 pow have conthed tan Oe | cha. chest cad campums GI¥WEE mom "a woh. whmamu © amped “gn. Te ced ae

rs 3] Beqers tor -%& a ee ~~ hecembar $6. 1980 ee

soned mecgamen on @ ame DOS OMOT 9.1990. 00 0 oh med mt

1. C) Pennenss © cosmensty = & ae we eae

© Revegmers & Contes Gerpmaens Agnes 1 stow © aan. © eave

aad ———— ee ner ee ase a 5

ee

a ee eek

ee

eo

a ce

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LL doh LL LL

tees = one ORE NE at Pret OEE! oe et ORES me me et ee

ir SF

Be

Street

2/8/80...

292-7342... ......

bm ee

——e

pe CaaGd Ghatbuaed Gus Gud GOUMNDNS Gam Gf SUDELOUD G9 Sead aoub aubunaeenaen aps ou —_—_-+- -——

-— Came El REED OF fet ced EEStor a CORT HEE TE Lh oe,

R,

NATIONAL LABOR RELATIONS BOARD

REGION 28 Reradomt Off ican.

3030 North Central Avenve poercene gp neel NE.

P.O. Box 33069 . ee eae sTit0

Phoenix, Arizona 85067 Perhing Building, Svae 307

Telephone (602) 241-2350 een aaa

Telephone (915) 543-7737

July 2, 1981

Mr. Jim Jackson

457 East Eighth Street

Mesa, AZ 85203

Re: Arizona Public Service Company

256 NLRB Wo. 65

Dear Mr. Jackson:

This will acknowledge your letter dated June 25, 1981.

On June 5, 1981, the National Labor Relations Board in

Washington, D. C. issued a Decision and Order in the above-

captioned case. I have enclosed a copy of that document

for your review.

The Board concluded that based upon a number of factors,

including the integrated nature of your Employer's

operations, the community of interest that the employees

conatituted an addition, technically referred to as an

accretion, to the systemwide production and maintenance

bargaining unit.

Inasmuch as the Board has decided that the Palo Verde

employees constitute an accretion to the existing bargaining

unit currently represented by the Union, there is no

question affecting commerce which exists concerning the

representation of such employees within the meaning of

Section 3 of the National Labor Relations Act, as amended.

Therefore, no election can be held in this matter at this

time. Under these circumstances I have no alternative but -

to return your petition for an election.

Pal Be

sume 25, LYS]

Nationul Labor Helationse Uourd

Pheeniz, Aritorn«

Dear sir,

Thies letter is aeunt to inform you of @ situation existing ut Palo

Verde Nuclear Cenerating Station, presently being operated by Arisone

Public Service Company.

On June 5, 1961, the company was informed that the NLRB hud iseued

wn order in faver of Lecal }87'e Unit Clarification Petition. As you

know, IBEW Lecal 387 represents the production and saintenance eaployees

employed by Arisona Public Service. The saintenance seaployees at Palo

Verde wieh to wsuke it known that we desire a vote, by secret dellot,

to determine our inclusion into this, or any bergaining unit.

The enclosed petition is being eubsitted as an indication of our

sincereity. These signatures represent over 50% of the people effected.

Thanks for your consideration of this aatter that is of utsost iaportanc<

to sany of the eapleyees involved.

Copies with enclosures:

ar. G. Carl

ur. Keith L. Turley

ur. G. Woods Jr.

Mr. Otis

Mr. Rex Osment

ur. Jerry Morales; Attorney

Pile—Jia Jackson

aq

a .

~

dé TUS UNUSRUIGASD SMPIVYE: i AT PALY VEKUE NUCLEAR GeNeRALING.

JTnTION, “Ivil AKIAUNA PUBLIC S-. /iGKe UecldG THe PRINCIPLE Ursedatud

Of G.lv Geactatlle STATION, Revur et Pivt dafIOWAL LABOR USLATIONS

BOALW UPOM acUIe¢PT OF THIS PETITIUN HOLD AN ELECTION UY ScéC2cT

BALLOT. ‘Pils BEING Ii REFERENCE AS TO WHETHER UR WOT THE

FORKERSNTInidv caivLOYSKS DSSIRE KEPRESENTATION BY LOCAL £387

OF TUB INTéutaTIONAL BROTHERHOOD OF GLEUTRICAL WOMKERS OR ANY

OTliicx BUCU KePHSSKITATIVE., Mik vsTITION BEING PILSD IN KEPELIKCE

TU “TcdT OF LDU UANAGGHANT AEL.TIONS .ct, 1947", AS AleNudcD

BY PUBLIL LAWS 80-257, 1959*, AND 93-360, 1974** - (TITLE I -

AmeNDEENT OF NATIONAL LABOR RELATIONS ACT) - SkC.101, SH. 9 -

PARAGHAPLL 5 (e) 1.

fal lok

ee atom eg OA

Abed XM hee

oe PAS WML ed eee es AE Pm Viet aude. td ell 2 Ved

mM C208, IT ooand. PUNE 6 iff Side din MAT lathes Ue ac takes

OF 2:Ad Fret ‘6 U5 re. Cit, &. 9 Soe te of tna Bo ADS 6 ins Cee

Wit Wat. Lwthe ed OF CUTS PATITLIUd HOLD Ai aeeerQLOord sf list

bw. Lil, Belsau LA invekedos As LO ile Vu wot tie

SUkSneNTLe 1 Sou eesS Nes RS 48? LesiTATIVON BY Lowal 4307

OF TUM LetQoitt: “IUdAL BdOPisitiOOn OF BLZCTHICAL WOiUKeus Oli ANY

OTs < WO dsritscKHPALIVE. TMi PeTITION NRING PILED IN “K?RRENCR

UV “ed ct as WO Linliedsese af 210.5 ct, 13I47*, 25 4.419 OD

weY PUBLIS b is Cu-257, 19594, ~!0 93-360, 197444 = (CItLe I -

J VND? O¢ .AeTOMAL LiDOR A22L‘TIONS ACT) = 3cC.101, Suv. 9 =

Pitt Fi 5 (e) 1.

pene yt ei

aut VSUpy “Vom.

eae oe Wane® STATES OF amamca Sze grees weve ;

tthe MANIOMAL (4608 ttanOn 8040 .

PETITION xx. 3 es E

tf

|

i

i

west Ay THIEL — tebe a sugene! cad tent 1: sage of stm Penman wo ste SASS Sopmeet 28-UC-L)) ~

me ene ent tee ne ome em Tt nee Re! eee mere g sem nett 1S. 1980

December 15, 1960

A. -~ T— I—Td, —h yy - sad rogue that the Mesionsl Laker Retesion: Geerd procerd ender

ee pervece: ve hermes 9 of the Mereme: stay Rericemas Act

' ene Focuses 14 tn OC a ee ee)

ere te nee follies wn te few myn wf te wy te A me

(Cond cons

O sc-cianinca rion oF TVE <4 catecenees! comter af cenghepers saab ae be teper we mrd Wer termes ofl.

Resgereang Oy Peemaner cad Prumenee devwes an te comntad o epsrseame af the ongtanas.

Oo ee ee en eats CEOS eo naan

ee ae od tee

o PRS be nn tre ceece neon ir tac tt TER

on colton otememeenetl

oO CO a at re ee Se ap ane oapEetD coment

ng em ee mm ed ee pee cr em

a vesmre a CR ety ne mt meters Ser peer meres dee eee of Deere

mee engtapem 1 tnd envy Oe we et ee me

(————

©) sc-asexoscewt or et ~ ah @ One 0: cass commas

A ene ~ ee

'

ARIZONA ' -

tale Verde Muclesr Generating Station.

a ™=@ ee Cy Ne meer

Electricity

Set beret nd te |. pmo ames PRES Tbe mp nmeny meet ond mt Bre eee of pnd ee be mewees ben ertes

wemtet All employees employed by the loyer in its facilities 900

| Pa Bay , E. in A its + § C aanhek a ra =

ct set collective agreement:

between the loyer and International Brotherhood of | Zoa3 ~

Electrical Lecal Union No. Raf AFL-CIO, which | Pine

ai§teement is effective uwmtil April 1, 1982. ee

All other employees, official 1 clerical employees and yor

eo, professional employees and supervisors as —-

O-O~-;

1 as koe naed lon Bl = | stun. amd cod -ampiae 1ItHOE momo © ) sinane = aMpimea: < Fee

a CO tewseee tor te aA re pha ns eel st togmees

GataE8 GEGEED C8 69 BEND .coccccores ye ee ee ee

we D) pemmenee « cosemty Meee ee ee ee ee

—_

a oo 4 |

a —

!

i

f

_—s

am ON eed eh RT ee ee me ES me ae OWT a et om EPTTEERS =

er ere ee ee wed oe ee pee ne Se aed

come S000. Reeth Spueap. eek FUPInIe ASAI 286A ss ——

ee

wera ae Gi artment Oo tens PEW CAs OSES OY Peed Ane arwheoamiet yb COet WHE 16, Che 108!

ace wae

“a -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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