# Petition — Arizona Public Service Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0899%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 464 U.S. 1043 ## Text 835 - CASE # Office -Supreme Court, U.S, 7438 FILED OCT 13 1983 ALEXANDER L STEVAS, CLERK UNITED STATES SUPREME COURT October, 1983 Term ARIZONA PUBCLIC SERVICE COMPANY, Petitioner, Vv. NATIONAL LABOR RELATIONS BOARD, Respondent, and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL 387. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ii i i i i i a a a a a ee a ee SNELL & WILMER 3100 Valley Bank Center Phoenix, Arizona 85073 (602) 257-7313 By: Frederick K. Steiner, Jr. Counsel of Record Gerard Morales Philip M. Prince Attorneys for Petitioner QUESTION PRESENTED FOR REVIEW Is the National Labor Relations Board's (the “NLRB” or “Board™) refusal to conduct a self-determination election among Arizona Public Service Company's (“APS*”)' Palo Verde Nuclear Generating Station employees (the “Palo Verde employees”) to determine whether or not a majority of those employees wish to become part of an existing bargaining unit or remain unrepresented an unwarranted departure from well established judicial and NLRB precedent and in derogation of the NLRB’s duties pursuant to §§7 and 9 of the National Labor Relations Act (the “Act”)? ar ° Be ciel qs ae 4 2 . ‘ ‘. ‘- 7 ms tags Od eee 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 . ‘ ‘ — - a a * 4 - ++ iM Be ht) te, eS ‘ Ss ome At Berek / 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 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. |. 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