Arizona Public Service Co.

National Labor Relations Board - Board Decisions

Jan 25, 1971

188 N.L.R.B. 1 (N.L.R.B. 1971)

ARIZONA PUBLIC SERVICE CO. 1
Arizona Public Service Company and International
Brotherhood of Electrical Workers, Local Union No.
387. Case 28-CA-2146
January 25, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Upon a charge filed on July 28, 1970, by Interna-
tional Brotherhood of Electrical Workers, Local Un-
ion No. 387, herein called the Union, and duly served
on Arizona Public Service Company, herein called the
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 28, issued a complaint on August 3, 1970,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Nation-
al Labor Relations Act, as amended. Copies of the
charge, complaint, and notice of hearing before a
Trial Examiner were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the com-
plaint alleges that on or about June 24, 1970, follow-
ing a Board election, the Regional Director for
Region 28 certified the Union as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the appropriate unit;' and that,
commencing on or about July 15, 1970, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On August 12, 1970, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint, and
pleading an affirmative defense.
On August 13, 1970, counsel for the General Coun-
sel filed a Motion for Summary Judgment which the
Regional Director referred to the Board for ruling. On
August 27, 1970, the Respondent filed a Response to
the Motion for Summary Judgment and an Amended
Answer to the complaint. On the same day, counsel
for the General Counsel filed an Amended Motion for
Summary Judgment, which the Regional Director
also referred to the Board. On September 10, 1970, the
i Official notice is taken of the record in the representation proceeding,
Case 28-RC-1944, as the term "record" is defined in Section 102.68 and
102.69(f) of the Board's Rules and Regulations , Series 8 , as amended. See
LTV Electrosystents, Inc., 166 NLRB 938, enfd . 388 F .2d 683 (C.A. 4, 1968);
Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello, 269 F.
Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397 F.2d 91
(C.A. 7, 1968), Section 9(d) of the NLRA.
Respondent filed a Response to the Amended Motion
for Summary Judgment.2 Subsequently, on Septem-
ber 17, 1970, the Board issued an Order transferring
the proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Summa-
ry Judgment should not be granted. Respondent
thereafter filed a Response to Notice To Show Cause
and Salt River Project Agricultural Improvement and
Power District filed a brief amicus curiae.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-niember panel.
Upon the entire record in this proceeding, the
Board makes the following:
RULING ON THE MOTION FOR SUMMARY JUDGMENT
The record establishes that since about 1945 the
Respondent has bargained with the Union as the ex-
clusive representative of a unit of certain employees
working in the Respondent's electrical system."On
July 18, 1969, the Union filed a petition seeking to
represent a unit of employees classified as "System
Load Supervisor" and "Assistant System Load Super-
visor," who historically had been excluded from the
operating and maintenance unit. Following a hearing
before a Hearing Officer, the Board on May 18, 1970,
issued its Decision'and Direction of Election (182
NLRB No. 72), directing an election in a voting group
comprising such classifications and holding that, if a
majority in the voting group cast their ballots for the
Union, it might bargain for them as part of its existing
unit. In the ensuing election the Union was selected
by a majority in the voting group, and on June 24,
1970, the Regional Director certified that the Union
might bargain for such employees as part of the exist-
ing unit. The Union's subsequent request to bargain
was rejected by the Respondent by letter dated July
15, 1970, and the instant proceeding was thereupon
initiated.
The sole issue in the instant proceeding, as it was
2 Salt River Project Agricultural Improvement and Power District filed a
Motion to Intervene , which was denied by the Board without prejudice to
its rights to file a brief anucus curiae.
7 The Respondent questions the General Counsel's characterization of the
contract unit historically represented by the Union as a "production and
maintenance" unit. It does not, however, question either the Union's majon-
ty status in that unit or the propriety of including the system load supervisors
and assistant system load supervisors in that unit if they are not required to
be excluded as supervisors under the Act. This unit is described in the current
contract by reference to attached wage schedules , which list numerous classi-
fications of employees ; most of them, from the job titles, appear to be of a
character normally described as operating and maintenance classifications,
with a few that might be characterized as clerical . For purposes of conven-
ience only , and without in any manner purporting to modify or delimit the
unit, we shall refer to the existing unit as an operating and maintenance unit
and describe it as "All operating maintenance employees covered by the
April 1, 1969 agreement between the Union and the Respondent excluding
all other employees, guards, and supervisors as defined in the Act."
188 NLRB No. I
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the underlying representation proceeding, is wheth-
er the employees in the voting group are or are not
supervisors as defined in the Act. It is the
Respondent's contention (1) that the Board erred in
concluding that the employees in issue are not super-
visors and (2) that in any event the Respondent has,
since the hearing in the representation proceeding,
changed and clarified the positions in issue so that the
employees involved are now clearly supervisors.
It is well established that in the absence of newly
discovered or previously unavailable evidence or spe-
cial circumstances a Respondent in a Section 8(a)(5)
proceeding is not entitled to relitigate issues which
were or could have been litigated in a prior represen-
tation proceeding.4 Except for its contentions con-
cerning the alleged changes and clarifications, the
Respondent's other assertions are merely reiterations
of contentions raised in the representation proceed-
ing; relitigation of which is precluded under existing
authority.'
With respect to the alleged changes and clarifica-
tions , these do not appear to modify, in any material
sense, the evidence pertaining to these classifications
which the Board previously considered. As before, the
system load supervisors and the assistant system load
supervisors are authorized to give routine directions
to other employees. While they may now, under the
new formalized authority, go directly into the field to
give such orders the earlier record shows that, of ne-
cessity, this would likely be an infrequent occurrence;
and the present system, under which the field employ-
ees are supervised by their own foreman, suggests that
any such excursions would be, at best, consultative in
nature. The changes in job descriptions and the ef-
forts to endow the disputed employees with ancillary
supervisory characteristics, such as inclusion on the
supervisorial mailing list, do not effect any substan-
tive change. While the purported authority to recom-
mend discipline of field employees for operational
errors is new to the case, only experience and time will
tell whether the subject employees have truly been
invested with a real supervisory disciplinary power. In
these circumstances we conclude that at this time this
new paper authority is not entitled to any significant
weight.
In view of the foregoing, we find that the Respon-
dent has not raised any issue which is properly litiga-
ble in this unfair labor practice proceeding. We shall,
therefore, grant the Motion for Summary Judgment.
4 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146,162( 1941); Rules
and Regulations of the Board , Sections 102.67(f) and 102.69(c).
5 As it is presumed that a condition once shown to exist continues until a
change is shown to have occurred , there is no merit to the Respondent's
contention that the General Counsel has a burden of establishing the absence
of change since the hearing in the representation proceeding . See Plasterers'
Local Union No. 739 (Arnold M. Hansen, Inc.), 157 NLRB 823, 827.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under, and exist-
ing by virtue of, the laws of the State of Arizona. At
all times material herein, Respondent has maintained
its principal office and place of business at 501 South
Third Avenue, Phoenix, Arizona, and at numerous
other places in the State of Arizona, and has been
continuously engaged in the business of operating a
public utility, including the production, distribution,
and sale of electricity, and distribution and sale of
natural gas. During the last calendar year, Respon-
dent, in the course and conduct of its business opera-
tions, sold and distributed products, the gross value of
which exceeded $500,000. During the same period of
time, Respondent sold and provided goods and serv-
ices valued in excess of $50,000 from its place of bus-
iness in interstate commerce directly to customers
located in States of the United States other than the
State of Arizona.
We find, on the basis of the foregoing, that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers,
Local Union No. 387, is a labor organization within
the meaning of Section 2(5).of the Act.
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All operating and maintenance employees cov-
ered by the April 1, 1969 , agreement between the
Union and the Respondent, including all systems
load supervisors and assistant system load super-
visors employed in the Respondent's System
Load Dispatching Department, excluding all
other employees, guards, and supervisors as de-
fined in the Act.
ARIZONA PUBLIC SERVICE CO.
2. The certification
On or about June 16, 1970, a majority of the system
load supervisors and assistant system load supervisors
employed in the Respondent's system load dispatch-
ing department, in a secret ballot election conducted
under the supervision of the Regional Director for
Region 28, designated the Union as their representa-
tive for the purpose of collective bargaining with the
Respondent. On or about June 24, 1970, the said Re-
gional Director certified that the Union might bargain
for said system load supervisors and assistant load
supervisors as part of the unit which it currently repre-
sents, and the Union is and continues to be the collec-
tive-bargaining representative of said entire unit.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 10, 1970, and at all
times thereafter, the Union has requested the Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above unit. Commencing on or about July
15, 1970, and continuing at all times thereafter to
date, the 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 the Union was duly certi-
fied as the collective-bargaining representative of the
employees of Respondent described in the Board's
certification, and that the Union at all times since
June 24, 1970, has been, and now is, the exclusive
bargaining representative of all the employees in the
aforesaid unit within the meaning of Section 9(a) of
the Act. We further find that Respondent has, since
July 15, 1970, refused to bargain collectively in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1)
of the Act.
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, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
3
Having found that Respondent had engaged in un-
fair 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 col-
lectively with the Union as the exclusive representa-
tive of all employees in the appropriate unit, and, if
an understanding is reached, embody such under-
standing in a signed agreement.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Arizona Public Service Company is an employ-
er engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Work-
ers, Local Union No. 387, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All operating and maintenance employees cov-
ered by the April 1, 1969, agreement between the
Union and the Respondent, including all system load
supervisors and assistant system load supervisors em-
ployed in the Respondent's system load dispatching
department, excluding all other employees, guards,
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since June 24, 1970, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about July 15, 1970, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging 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.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Arizona
Public Service Company, Phoenix, Arizona, its offi-
cers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and condi-
tions of employment with International Brotherhood
of Electrical Workers, Local Union No. 387, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All operating and maintenance employees cov-
ered by the April 1, 1969, agreement between the
Union and the Respondent, including all system
load supervisors and assistant system load super-
visors employed in the Respondent's System
Load Dispatching Department, excluding all
other employees, guards, and supervisors as de-
fined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its offices and places of business in the
State of Arizona where employees represented by the
Union are employed copies of the attached notice
marked "Appendix."6 Copies of said notice, on forms
provided by the Regional Director for Region 28,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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 collectively with
International Brotherhood of Electrical Workers,
Local Union No. 387, as the exclusive represent-
ative of the employees in the bargaining unit de-
scribed below.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce 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 respect of 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. The
bargaining unit is:
All operating and maintenance employees
covered by the April 1, 1969, agreement be-
tween the Union and the Respondent, in-
cluding all system load supervisors and
assistant system load supervisors employed
in the Respondent's System Load Dispatch-
ing Department, excluding all other employ-
ees, guards, and supervisors as defined in the
Act.
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, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7011 Federal Building and U.S.
Courthouse, 500 Gold Avenue, SW., P.O. Box 2146,
Albuquerque, New Mexico 87101, Telephone 505-
832-2508.