Petition — Arizona Public Service Co. v. National Labor Relations Board
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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
; ®t Se tA
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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iM Be ht) te, eS ‘ Ss ome At Berek <6 ee Pe
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
===
Cg rare
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
eee
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
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