Arizona Public Service Co.

National Labor Relations Board - Board Decisions

Feb 17, 1993

310 N.L.R.B. 477 (N.L.R.B. 1993)

477
310 NLRB No. 64
ARIZONA PUBLIC SERVICE CO.
1 Review was requested of the Regional Director’s findings that:
(1) the petitioned-for, single plant production and maintenance unit
is an appropriate unit; (2) the reactor operators are not supervisors
as defined in Sec. 2(11) of the Act; and (3) the reactor operators
are not professionals as defined in Sec. 2(12) of the Act.
2 Member Oviatt would permit the senior reactor operators to vote
subject to challenge.
3 In denying review, the Board disavows the Regional Director’s
reliance on Maine Yankee Atomic Power Co., 239 NLRB 1216
(1979), enf. denied 624 F.2d 347 (1st Cir. 1980), which was over-
ruled by the Board in Big Rivers Electric Corp., 266 NLRB 380,
383 fn. 2 (1983), to the extent inconsistent with that case. That does
not affect the result in this case, however, because we find Big Riv-
ers Electric to be factually distinguishable.
Arizona Public Service Company and Utility Work-
ers Union of America, AFL–CIO. Case 28–RC–
5068
February 17, 1993
ORDER DENYING REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Employer’s request for
review of the Regional Director’s Decision and Direc-
tion of Election (pertinent portions are attached).1 The
request for review is denied2 as it raises no substantial
issues warranting review.3
APPENDIX
Regional Director’s Decision and Direction of Election
in Case 28–RC–5068
The Petitioner seeks to represent a collective-bargaining
unit consisting of all production and maintenance employees
who are employed at the Palo Verde Nuclear Generating Sta-
tion (Palo Verde) by the Employer, an electric utility com-
pany. The Employer operates Palo Verde, a nuclear power
plant located approximately 70 miles west of Phoenix, Ari-
zona, where it employs approximately 950 production and
maintenance employees. Contrary to the Petitioner, the Em-
ployer contends that the Palo Verde employees do not by
themselves constitute an appropriate bargaining unit. Rather,
the only appropriate unit in which Palo Verde employees
could be included, according to the Employer, is the system-
wide unit consisting of approximately 3000 production and
maintenance employees which is presently and historically
represented by the International Brotherhood of Electrical
Workers, Local Union No. 387, AFL–CIO, CLC (IBEW
Local 87). Although notified of the instant petition and hear-
ing in this matter, IBEW Local 387 did not intervene in this
proceeding. Moreover, the Employer asserts that even if the
petitioned-for unit which excludes all supervisors and profes-
sional employees were to be found appropriate, the approxi-
mately 74 employees working at Palo Verde in the reactor
operator job classification should be excluded because they
are either supervisors or professional employees. The Peti-
tioner asserts that the reactor operators are neither super-
visors nor professional employees, but simply part of the
production and maintenance work force. This proceeding is
the most recent of a number of representation cases filed in
this Region involving the status of production and mainte-
nance employees at Palo Verde. In Arizona Public Service
Co., 256 NLRB 400 (1981) (APS I), the Board granted unit
clarification petition filed by IBEW Local 387 and held that
the Palo Verde production and maintenance unit employees
should be included in the systemwide production and mainte-
nance unit of the Employer’s employees represented by
IBEW Local 387. In Arizona Public Service Co. & Electrical
Workers Local 387, Case 28–RC–4459, issued January 8,
1988 (APS II), I denied IBEW Local 387’s petition for an
election limited to a unit of 950 employees employed at Palo
Verde, concluding that the petitioned-for employees should
be included in the systemwide production and maintenance
unit if, in a self-determination election, a majority of the Palo
Verde employees voted for representation by IBEW Local
387. No request for review of that decision was filed with
the Board. In Arizona Public Service Co., Case 28–RC–4812
issued May 11, 1990 (APS III), I granted the Petitioner’s re-
quest for an election limited to the production and mainte-
nance employees at Palo Verde, finding that such a unit is
appropriate for collective bargaining. By order dated June 14,
1990, the Board denied the Employer’s request for review.
In Arizona Public Service Co., Case 28–RC–4958 (APS IV),
I again granted the Petitioner’s request for an election limited
to the production and maintenance unit employees at Palo
Verde, finding that such a unit constituted ‘‘an appropriate
residual unit for the purposes of collective bargaining.’’ (APS
IV, p. 13.) By order dated September 13, 1991, the Board
denied the Employer’s request for review. In this proceeding
now before me, the parties have placed in evidence the tran-
scripts, exhibits, and briefs from several of the above-de-
scribed cases. The only new evidence that the Employer in-
troduced at the hearing in this matter, regarding the appro-
priateness of the petitioned-for unit was evidence showing
that within the last year, one employee of an unknown job
classification transferred from another of the Employer job
locations to a production or maintenance job at Palo Verde,
and three employees working in a production or maintenance
job at Palo Verde transferred to other Employer facilities.
Since there are approximately 950 production and mainte-
nance employees employed at Palo Verde, these four trans-
fers fail to show substantial interchange between Palo Verde
and other Employer job locations and do not constitute evi-
dence of changed circumstances which warrant a reexamina-
tion of APS III and APS IV.
In its brief the Employer asserts that the decisions in APS
III, and APS IV, in which it was concluded that a residual
unit consisting of the production and maintenance employees
at Palo Verde was an appropriate unit, were erroneous. The
Employer reiterates its arguments regarding the necessity of
a systemwide unit which it presented to me in its briefs in
APS III and APS IV. Having carefully reviewed the Employ-
er’s arguments in its briefs, and the Board’s decision to deny
the Employer’s requests for review in APS III and APS IV
the Employer’s arguments that the petitioned-for unit is inap-
propriate is rejected, and I reaffirm my findings and conclu-
sions therein that a residual unit of Palo Verde production
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and maintenance employees is appropriate, as in APS III and
APS IV.
In APS III (a pertinent portion is annexed and made a part
of this decision) it was pointed out that the Board had stated
in Baltimore Gas & Electric Co., 206 NLRB 199, 201
(1973), that the optimum bargaining unit in the public utility
industry is a systemwide unit. However, due to the particular
facts in APS III, it was determined that the Baltimore Gas
principle must give way to a superior statutory principle,
enunciated in Section 9(b) of the Act, which permits the
Board to decide ‘‘in each case’’ the appropriate unit ‘‘in
order to assure the employees the fullest freedom of express-
ing the rights guaranteed by the Act.’’ It was noted that since
IBEW Local 387 represented only one-third of the Employ-
er’s systemwide work force, consisting of approximately
9000 employees in a variety of job classifications, it could
scarcely be claimed that IBEW Local 387 currently rep-
resented employees in the most optimal unit. It was also
noted that the Employer had permitted the fragmentation of
the systemwide unit by entering into a collective-bargaining
agreement with the Carpenters Union even though its agree-
ments with IBEW Local 387 have included carpenter helpers
in the IBEW Local 387’s recognized bargaining unit. Thus,
a residual unit consisting of the production and maintenance
employees at Palo Verde was found to be an appropriate unit
in APS III. In so finding, it was noted that IBEW Local 387,
the incumbent union representinng approximately 3000 pro-
duction and maintenance employees at the Employer’s six
fossil fuel stations and in the Employer’s line departments,
was not seeking to represent the approximately 950 produc-
tion and maintenance employees at Palo Verde who received
different wages and benefits than the 3000 represented em-
ployees.
It was further explained in APS III that the Board in East-
ern Container Corp., 275 NLRB 1537 (1985), had modified
its rule that all unrepresented employees must be included in
a residual unit. In that case a union petitioned for a unit of
maintenance employees, while another union, the incumbent
bargaining representative of a large number of production
employees, claimed that the only appropriate unit was an
overall unit of production and maintenance employees. Not-
ing that the incumbent union did not seek to represent the
maintenance employees and that the parties stipulated that
unrepresented employees other than maintenance employees
should be excluded from the petitioned-for unit or the com-
bined production and maintenance unit, the Board found that
the maintenance employees constituted an appropriate resid-
ual unit. See also Mosler Safe Co., 188 NLRB 650 (1971).
In APS III, it was noted in response to the Employer’s claim
that all unrepresented residual employees should be required
to vote in any residual election directed that the record re-
vealed that the Employer had time and time again voluntarily
consented to representation elections in segments of the re-
sidual or unrepresented employees employed by it system-
wide. It was further noted in that decision that the Employer
failed to establish that the unrepresented employees em-
ployed outside of Palo Verde had any meaningful community
of interest with the Palo Verde employees except for the fact
that they were all performance review employees whose
terms and conditions of employment had been unilaterally
established by the Employer. It was concluded that in these
circumstances it would be contrary to the employees’ rep-
resentation rights under Section 9(b) of the Act to require the
Palo Verde production and maintenance employees to remain
unrepresented until such time, if ever, that a labor organiza-
tion other than IBEW Local 387 sought to represent them as
well as the production and maintenance employees at the
other locations systemwide who were then currently rep-
resented by IBEW Local 387 or sought to represent all the
remaining 6000 unrepresented employees in one residual
unit. I do not view these as viable options for the Palo Verde
employees. Rather, they constititute barriers to their rights of
collective bargaining under the Act.
Based upon the foregoing, and the record as a whole, I
reach the same unit conclusion in the instant matter as in
APS III and APS IV and, accordingly, find that a unit limited
to the Employer’s production and maintenance employees at
Palo Verde to be appropriate. See also Monongahela Power
Co., 252 NLRB 715, 716 (1980), enf. denied on other
grounds, 657 F.2d 608 (4th Cir. 1981) (a bargaining unit
consisting of all employees including control room foremen
at only one of the utility company’s electrical generating sta-
tions found to constitute an appropriate unit).
The second issue raised by the Employer is whether the
approximately 74 reactor operators at Palo Verde should be
excluded from the bargaining unit because they are either
professional employees or supervisors as defined in the Act.
There are three nuclear reactors and accompanying facili-
ties (units) at the Employer’s Palo Verde site. Each reactor
unit has a 30-foot by 50-foot control room which contains
a variety of indicators, gauges, alarms, and computer equip-
ment. On a typical 12-hour shift there are two reactor opera-
tors and one assistant shift supervisor on duty in the control
room. The assistant shift supervisor has a desk located in the
back portion of the control room to allow him or her to view
the entire control room. The shift supervisor’s office is adja-
cent to and separated by a see-through glass wall from the
control room. The principal responsibility of a reactor oper-
ator is to help monitor and control a nuclear reactor from the
control room. The reactor operators keep the unit operating
within the technical specifications of the Employer’s nuclear
power plant operating license by following detailed Em-
ployer and Nuclear Regulatory Commission (NRC) proce-
dures and regulations.
Each reactor unit includes approximately 45 major sys-
tems, such as the safety injection system, reactor coolant sys-
tem, generator hydrogen system, and radioactive drains.
These systems can be individually controlled by reactor oper-
ators in the control room. Additional adjustments, however,
frequently have to be made directly to these systems to place
the systems in or out of service, or to adjust the systems.
These adjustments are made by auxiliary operators who are
in constant communication with the reactor operators. A re-
actor operator may talk with an auxiliary operator over the
radio as much as once every 20–30 minutes during normal
operating shifts. The Employer’s job description states, in
part, that the reactor operator ‘‘[d]irects subordinates.’’ Rob-
ert McKinney, the Employer’s operations supervisor, tesified
that the reactor operators planned the auxiliary operator’s
tasks, set timeframes at which particular actions must be
completed by the auxiliary operator, and established times
when they expect the auxiliary operator to report back on the
progress made.
479ARIZONA PUBLIC SERVICE CO.
Normally there are six auxiliary operators working in each
of the three units during each shift. The auxiliary operators
usually work in, and have responsibility for covering, one of
eight areas outside the control room. A reactor operator may
direct an auxiliary operator from one area to help another
auxiliary operator if the other auxiliary operator has exces-
sive work in his or her area. The reactor operator, however,
has the responsibility to inform the assistant shift supervisor
of plant conditions and the location of auxiliary operators.
For instance, when a reactor operator gets an indication from
a control room gauge that there may be a problem with a
piece of equipment, the reactor operator dispatches an auxil-
iary operator to directly check the piece of equipment to de-
termine whether the control room gauge is correct. On occa-
sion, a particular alarm may go off in the control room indi-
cating a problem in a control circuit, and the reactor operator
would then tell an auxiliary operator that a particular tem-
porary pump needed to be started in his or her area. At an-
other time, the reactor operator may observe various gauges
in the control room which indicate that there was not appro-
priate pressure in a vessel maintained with hydrogen gas.
The reactor operator would then direct the auxiliary operator
to raise the pressure 10 or 20 pounds per square inch based
upon the information in the indicators and the reactor opera-
tor’s knowledge of overall conditions in the unit. The reactor
operator is in direct and continual communication with the
assistant shift supervisor about the conditions in the unit. If
a reactor operator runs into any problems, he or she is to
consult with, and take direction from, the assistant shift su-
pervisor.
The Employer affirms that the shift supervisor and assist-
ant shift supervisor are statutory supervisors. Within each
unit the reactor operators report directly to the assistant shift
supervisors, while the assistant shift supervisors report to the
shift supervisors and the shift supervisors report to the oper-
ations supervisors. The assistant shift supervisor has overall
responsibility for the entire control room. At all times, either
an assistant shift supervisor or shift supervisor is in the con-
trol room. At the beginning of each 12-hour shift the unit’s
reactor operators and auxiliary operators attend a meeting in
the control room along with supervisors and representatives
from both the Palo Verde radiation protection department
and chemistry department. The meeting is conducted by the
assistant shift supervisor who discusses the activities planned
for the unit that day.
On a normal shift, the assistant shift supervisor will pro-
vide reactor operators with a list of components to be re-
moved from service, and the reactor operator will in turn
prioritize and assign the work to auxiliary operators. The
Employer’s reactor operator job description states that the re-
actor operator ‘‘[d]irects the implementation of tagging and
clearance procedures,’’ which means tagging equipment for
removal.
Reactor operators spend approximately 10 percent of the
time responding to unexpected off-normal situations. The re-
actor operators identify abnormalities by looking at various
instruments and gauges to determine whether a particular
system not responding in an anticipated manner based upon
their knowledge of the system’s design and operating func-
tions and upon their knowledge of how the system has re-
sponded in the past. If the reactor operator identifies an ab-
normality, he or she analyzes what is going on with the sys-
tem and what action, such as removing a portion of the unit
from automatic to manual control, is necessary to correct the
problem. The reactor operator then announces to others in
the control room what action he or she is going to take. If
a reactor operator sees a problematical trend in the controls,
he or she would seek approval from the assistant shift super-
visor before placing the system from automatic to manual
control. However, if the control room gauges indicate that
the problem has gotten past a set point where the reactor op-
erator does not have time to seek approval, the reactor oper-
ator will place the system on manual and at the same time
announce what he or she is doing. If the assistant shift super-
visor does not concur, the reactor operator will place the sys-
tem back under automatic control. It is rare, approximately
once a year when the reactor operator does not have suffi-
cient time to consult with the assistant shift supervisor or
shift supervisor before taking action. Palo Verde Operations
Supervisor Robert McKinney testified that 99 percent of the
time when there is a critical decision to be made by a reactor
operator, the assistant shift supervisor or the shift supervisor
are involved in the decision making and have the authority
to overrule the reactor operator’s decision or conclusion. A
reactor operator’s poor judgment in responding to an off-nor-
mal situation could result in one of the Palo Verde units
shutting down, which could result in a major expense by the
Employer in buying power to replace the power lost during
the unit shutdown. Off-normal situations usually occur during
reactor startups. Startups average two or three times every re-
fueling interval of 18 months. The Employer has detailed,
step-by-step procedures regarding the startup procedures to
which reactor operators strictly adhere. During a startup the
reactor operator, in conjunction with the entire control room
staff, coordinates all the systems coming together to start up
the unit. During startups there usually are more auxiliary op-
erators working on shift in the unit than normal, and the re-
actor operators coordinate and direct their activities to make
the various systems operational.
Eighty-five to ninety percent of the Employer’s reactor op-
erators served in the U.S. Navy on nuclear powered ships.
A high school diploma or its equivalent is a minimum re-
quirement for a reactor operator position at Palo Verde. The
Employer requires its reactor operators to first work as an
auxiliary operator at Palo Verde for a minimum of 18 to 24
months. During this time these auxiliary operators receive 12
weeks of full-time, in-house technical training and prepara-
tion for becoming a reactor operator, including classroom
academic instruction in fundamental courses of chemistry,
physics, electricity theory, and nuclear physics. These auxil-
iary operators receive six additional weeks of full-time,
hands-on training in a simulated control room (simulation
training). At the completion of this training program these re-
actor operator trainees are required to pass a United States
NRC administered licensing examination. A valid NRC Re-
actor Operator license is a minimum reactor operator job re-
quirement. Once an auxiliary operator is promoted to a reac-
tor operator, that reactor operator is required to have 1 week
of retraining, consisting of both classroom work and simula-
tion training, every 6 weeks. Reactor operators can obtain
further training and obtain a senior reactor license from the
NRC. Only individuals with a NRC senior reactor license
can supervise NRC licensed reactor operators. It takes a reac-
tor operator aproximately 26 weeks to complete the training
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
necessary to obtain a senior reactor license. To maintain a
senior reactor operator license, the reactor operator must su-
pervise reactor operators at least 40 hours per quarter. Ini-
tially, the Employer had instructors from Memphis State Uni-
versity (MSU) teach its reactor operator courses. Employees
could obtain MSU college credit for taking these classes, and
this college credit was accepted at other universities. Cur-
rently, these courses are taught by in-house instructors who
work for the Employer.
The Employer requires the reactor operators to wear gray
slacks and blue shirts and the assistant shift supervisors and
shift supervisors to wear tan slacks and white shirts. Auxil-
iary operators are not required to wear certain colored shirts
or pants. The only individuals at Palo Verde required to wear
certain specified colored shirts and pants are control room
personnel. The Employer’s monthly salary for shift super-
visors ranges from $4,645 to $5,809 for assistant shift super-
visors $3,984 to $4,981, for reactor operators $3,416 to
$4,271, and for auxiliary operators $2,930 to $3,604.
As noted above, the Employer asserts that reactor opera-
tors should be considered statutory supervisors because they
possess authority to the ‘‘responsibly direct’’ or assign work
to the auxiliary operators. Upon careful review of the record,
and cognizant that the burden of proving supervisory status
is on the party alleging that such status exists, I find that the
reactor operators are not supervisors as defined in the Act for
the following reasons.
Section 2(11) of the Act defines a statutory supervisor as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
Section 2(11) lists the supervisory powers ‘‘in the disjunc-
tive—so that the exercise of any of them is sufficient to
make an individual a supervisor. . . . ’’ First Western Build-
ing Services, 309 NLRB No. 93, JD slip op. at 16–17 (Nov.
27, 1992).
Here, the record reveals that the Palo Verde reactor opera-
tors do not hire, transfer, suspend, layoff, recall, promote,
discharge, or reward, auxiliary operators or other employees,
or effectively recommend such actions. While there is some
record evidence showing that shift supervisor may request
the verbal input of a reactor operator before evaluating an
auxiliary operator, there is no evidence to establish that such
input constitutes an effective recommendation for a pro-
motion or reward. See, e.g., Pepsi-Cola Bottling Co., 154
NLRB 490, 493–494 (1965) (individual who reviews service
provided by salesperson, and, if he discovers any faults, re-
ports them to plant manager who makes an independent in-
vestigation, is not a statutory supervisor).
The Palo Verde reactor operators do provide some direc-
tion to auxiliary operators. Indeed, the Employer’s reactor
operator’s job description lists ‘‘[d]irect[ing] the implementa-
tion of tagging and clearance procedures’’ and [d]irect[ing]
subordinates,’’ within the reactor operator’s responsibilities.
Directing, or assigning work to, employees alone, however,
does not satisfy the 2(11) criteria. In First Western Building
Services, supra, JD slip op. at 17, an administratve law
judge, affirmed by the Board, state that Section 2(11):
contains the conjunctive requirement that the power be
exercised with ‘‘independent judgment,’’ ‘‘rather than
in a routine’’ or ‘‘clerical’’ fashion. This requirement is
an expression of Congressional intent to withhold su-
pervisory status from ‘‘straw bosses,’’ ‘‘leadman,’’ as
well as other low-level employees having modest super-
visory authority. Highland Superstores, Inc. v. NLRB,
927 F.2d 918, 920–921 (6th Cir. 1991).
The Employer has failed to establish that the reactor opera-
tors exercise independent judgment in their direction or as-
signment of work to auxiliary operators. For instance, while
the Employer argues that the reactor operators can choose
which auxiliary operators can best remedy a situation in the
unit, the record evidence reveals that the six auxiliary opera-
tors in each unit have their own areas of responsibility and
generally stay within those areas. A reactor operator may di-
rect an auxiliary operator working in another assigned area
to help an auxiliary operator in that employee’s area due to
an excessive work load or direct an auxiliary operator to
check or make certain adjustments on piece of equipment
during normal operations or during a reactor startup. This is
accomplished, however, in the context of the Employer’s de-
tailed written instructions, the reactor operator’s duty to keep
the assistant shift supervisor informed of plant conditions and
the locations of auxiliary operators, and the reactor operator’s
immediate and continual access and comuunication with the
assistant shift supervisor. The reactor operator has only lim-
ited discretion regarding the prioritization and execution of
work requests since only the assistant shift supervisor author-
izes clearances and on a daily basis the shift supervisor
hands the reactor operator a list of components to be re-
moved.
In Maine Yankee Atomic Power Co., 239 NLRB 1216,
1218 (1979), a decision that served as the basis for the
Board’s decision at 243 NLRB 319 (1979), enf. denied, 624
F.2d 347 (1st Cir. 1980), the shift operating supervisors
(SOS) in the Maine Yankee nuclear reactor facility gave
more direction to the auxiliary operators than the reactor op-
erators give to the auxiliary operators at Palo Verde. Unlike
the reactor operators, but like the assistant shift supervisors
at Palo Verde, the Maine Yankee SOS had ultimate responsi-
bility of the control room. Nevertheless, the Board in Maine
Yankee Atomic Power Co. rejected the employer’s contention
that the SOS were statutory supervisors because they pur-
portedly used independent judgment in their direction to the
auxiliary operators. The Board noted that SOS could take a
system out only after first clearing the matter with the plant
shift superintendent. Similarly, here the reactor operator has
to obtain the clearance of an assistant shift supervisor before,
or concurrently with, taking a system out. The Board in
Maine Yankee Atomic Power Co., id. at 239 NLRB 1216,
1218, also noted that:
the vast majority of the work performed by individuals
in these classifications is routine and repetitive in na-
ture, and governed to a large extent by both Nuclear
Regulatory Commission guidelines and the Employer’s
own written procedures manual.
481ARIZONA PUBLIC SERVICE CO.
Similarly, I find that the reactor operators did not exercise
independent judgment in part because the vast majority of
their and the auxiliary operator’s work is routine and repet-
itive and governed to a large extent by the NRC and the Em-
ployer’s guidelines.
I find further support for my decision in Arizona Electric
Power Cooperative, 250 NLRB 1132, 1132 fn. 1, 1136–1137
(1980). In that case, the Board found that the employer’s dis-
patchers, who followed memorandums ‘‘in which new or an-
ticipated condition are set forth with closely circumscribed
directions,’’ and who worked in a control room under the
close supervision of a crew supervisor, a supervisor who they
‘‘normally’’ consulted before ordering a generator on or off
line, were not statuory supervisors. The Board concluded that
these dispatchers were not in a position to observe or evalu-
ate the work of plant or field employees because the dis-
patchers were stationed in the control room, imparted infor-
mation to and coordinated work of employees outside the
control room, but did not direct these employees using inde-
pendent judgment.
I find the instant case readily distinguishable from Arizona
Public Service Co. v. NLRB, 453 F.2d 228 (9th Cir. 1971),
cited by the Employer. In that case the court held that the
system load supervisors and assistant system load supervisors
in the employer’s system load dispatching department were
statutory supervisors because they could direct employees in
the field to do work which was not covered by ‘‘comprehen-
sive regulations and guidelines’’ during emergencies and
after hours when no other superior officers were present.
During emergencies, the employer’s system and assistant sys-
tem load supervisors had authority to decide, without con-
sulting anyone, whether a line could be de-energized, deter-
mine the feasibility of repairs, requisition any employee on
the spot, and call employees out for overtime. Here, unlike
that case: (1) there is no time that the reactor operator is
working without a superior immediately nearby because the
Employer requires an assistant shift supervisor or shift super-
visor present in the control room at all times; (2) the reactor
operators consult with the assistant shift supervisor before or
concurrent with taking action in emergencies rather than han-
dle emergencies on their own; (3) there are comprehensive
regulations and guidelines limiting the reactor operator’s in-
dividual judgment; and (4) there is no record evidence show-
ing that reactor operators could authorize overtime. In Ari-
zona Public Service Co. v. NLRB, the court also found the
system and assistant system load supervisors to be statutory
supervisors because the employer and other employees con-
sidered these individuals to be supervisors. The employer,
through its witnness, Unit 1 Operations Supervisor Robert
McKinney, tacitly admitted that it did not consider reactor
operators to be supervisors when McKinney stated that at
any one time there were two supervisors on shift, and these
two supervisors were the shift supervisor and the assistant
shift supervisor. Similarly, Charlie G. Allen, a witness called
by the Petitioner and the only auxiliary operator to testify at
the hearing, stated that he considered the asistant shift super-
visor, and not the reactor operator, to be his immediate su-
pervisor. These perceptions lend support to my conclusion
that reactor operators are not statutory supervisors. See, e.g.,
NLRB v. Yuba Natural Resources, 824 F.2d 706, 709 (9th
Cir. 1987) (in determining whether the supervisory indicia
have satisfied the perception of supervisory status by other
employees may be considered in ‘‘borderline’’ cases).
Secondary indicia of supervisory authority may lend sup-
port to a conclusion regarding supervisory status but do not
themselves establish supervisory status. McClatchy News-
papers, 307 NLRB 773 (1992). Here, the secondary indicia
of a disproportionately high ratio of supervisors to employ-
ees, four purported supervisors (and no employees) in the
control room supervising six auxiliary operator employees,
supports my conclusion that the reactor operators are not su-
pervisors. See, e.g., Ohio River Co., 303 NLRB 696 (1991).
While attendance at a management meeting can be among
secondary indicia of supervisory status, see Auto West Toy-
ota, 284 NLRB 659, 661 (1987), the reactor operators’ and
auxiliary operators’ attendance at a daily control room meet-
ing, where the assistant shift supervisor discusses the activi-
ties planned for the day, does not support a finding that reac-
tor operators are supervisors. Furthermore, while the pay dif-
ferential between disputed employees and rank-and-file em-
ployees can be a secondary indicia of supervisory status, see
McClatchy Newspapers, supra, there is insufficient record
evidence to make a determination regarding this indicia be-
cause, while the record contains evidence of the auxiliary op-
erators’, reactor operators’, and assistant shift supervisors’
pay, it does not contain evidence of other Palo Verde em-
ployees’ and their supervisors’ pay. Finally, I do not regard
the Employer’s requirement that its shift and assistant shift
supervisors wear tan slacks and white shirts, its reactor oper-
ators wear gray slacks and blue shirts, while requiring no
other employees to wear specific colored clothes, standing
alone, supports a supervisory finding. Based upon my finding
that the Employer failed to demonstrate the existence of any
statutory indicia of supervisory status, I conclude that reactor
operators are not statutory supervisors and I, therefore, find
that they should herein not be excluded from the unit found
appropriate in this case on that basis.
Also, as noted above, the Employer asserts that even if the
reactor operators are not supervisors, they should neverthe-
less be excluded from the Palo Verde production and mainte-
nance unit because they are professional employees. Upon
careful review of the record, I find that the reactor operators
are not professional employees.
Section 2(12) of the Act defines a professional employee
as follows:
(a) any employee engaged in work (i) predominantly
intellectual and varied in character as opposed to rou-
tine mental, manual, mechanical, or physical work; (ii)
involving the consistent exercise of discretion and judg-
ment in its performance; (iii) of such a character that
the output produced or the result accomplished cannot
be standardized in relation to a given period of time;
(iv) requiring knowledge of an advanced type in field
of science or learning customarily acquired by pro-
longed course of specialized intellectual instruction and
study in an institution of higher learning or hospital, as
distinguished from a general academic education or
from an apprenticeship or from training in the perform-
ance of routine mental, manual, or physical processes;
(b) any employee, who (i) has completed the courses
of specialized intellectual instruction and study de-
scribed in clause (iv) of paragraph (a), and (ii) is per-
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forming related work under the supervision of a profes-
sional person to qualify himself to become a profes-
sional employee as defined in paragraph (a).
Employees must satisfy each of the four requirements set
forth in Section 2(12)(a) before they qualify as professional
employees within this definition. Obviously, Section
2(12)(b)’s portion of the definition does not apply here. Sec-
tion 2(12)(a)’s first requirement, that the employees be en-
gaged in varied intellectual work, has not been satisfied. The
reactor operators spend the majority of their time engaging
in highly specialized but routine monitoring and manipu-
lating of the various complex control room devices according
to detailed written procedures. See, e.g., Western Assn. of
Engineers, 101 NLRB 64, 66 (1952) (Board rules that a car-
tographer-photogrammetrist without an engineering degree,
who made surveys and maps from aerial photographs that re-
quired a ‘‘high degree of skill in the use of very precise and
complex instruments’’ and some knowledge of higher mathe-
matics, was not a professional employee because, although
the work is highly specialized, the work became ‘‘somewhat
routine in nature’’); A. A. Mathews Associates, 200 NLRB
250, 251 (1972) (Board rules that engineer-inspectors with
engineering degrees were not professional employees because
even if the engineering type work they engaged in during a
small portion of their time could be assumed to be intellec-
tual in character, their job principally involved routine in-
spection work to confirm that construction was performed in
accordance with specifications.)
Section 2(12)(a)’s second requirement, that the employees’
work involve ‘‘consistent exercise of discretion and judg-
ment,’’ is also not satisfied. A great deal of the reactor oper-
ators’ work is routine work monitoring and manipulating the
control room instruments, instruments which sound an alarm
when problems, arise. When a problematic trend or a serious
problem arises, the two unit reactor operators are required to
inform the assistant shift supervisor who then makes a final
decision regarding what action the reactor operators should
take in accordance with the Employer’s detailed written pro-
cedures. See Twin City Hospital Corp., 304 NLRB 173
(1991) (medical technologists found not to be professional
employees where 70–85 percent of their work consists of
running tests on automated instruments which flag abnormal,
results and the technologists’ work in determining why there
is an abnormal result is routine, because they merely apply
detailed written procedures to make the determination; while
the technicians microbiology work does require discretion
and judgment it constitutes only a minor portion of the tech-
nologists’ workload); St. John’s General Hospital v. NLRB,
825 F.2d 740 (3d Cir. 1987) (Board did not abuse its discre-
tion in deciding that outpatient and rehabilitation counselors
were not professional employees on the basis that the coun-
selors ‘‘received close supervision and that their exercise of
judgment and discretion was quite limited.’’)
Section 2(12)(a)’s third requirement, that the work cannot
be standardized in terms of time also has not been satisfied.
The Employer’s requirements that the reactor operators con-
stantly log information regarding the various systems and
equipment, in conjunction with the detailed procedures which
the Employer requires the reactor operators to follow, reveal
that the reactor operators’ work can be standardized.
Further, Section 2(12)(a)’s fourth requirement, that the em-
ployees be engaged in work requiring knowledge of an ad-
vance type customarily acquired through higher education,
has not been satisfied. Section 2(12) does not require that
‘‘knowledge of an advanced type’’ be acquired by all profes-
sionals in the unit. Nevertheless, in Express-News Corp., 223
NLRB 627, 629 (1976), the Board explained that it is reluc-
tant to conclude that a job-classification is professional if few
members of the group have an appropriate advanced degree
because it then ‘‘logically follows that the education charac-
teristics of the work are not those requiring the utilization of
advanced knowledge.’’
The Employer only requires by way of academics a high
school diploma and only a few reactor operators have an ad-
vanced degree. In Chesapeake & Potomac Telephone Co., 89
NLRB 231, 233 (1950), the Board further explained that:
employees who are generally recruited from the labor
force in a plant and who are primarily trained on the
job were not intended to be included in the category of
professional employees.
The record evidence reveals that the Employer recruited
reactor operators from its labor force. Indeed, working as an
auxiliary operator at Palo Verde for a minimum of 18 to 24
months is a prerequisite for becoming a reactor operator at
Palo Verde. Moreover, the record evidence revealed that re-
actor operators are primarily trained on the job. I find that
the knowledge acquired through this required on-the-job
training, especially the hands-on training in the simulator, is
closer to the knowledge acquired through an apprenticeship
than the knowledge customarily acquired through higher edu-
cation. Based upon my finding that the Employer has failed
to demonstrate the presence of all four of the professional
employee criteria, I conclude that the reactor operators are
not professional employees and, therefore, should be in-
cluded in the bargaining unit.
There are approximately 950 production and maintenance
employees in the unit found to be appropriate herein. The ap-
proximately 75 reactor operators should vote and be included
in the unit because I find them to be neither statutory super-
visors nor professional employees within the meaning of the
Act.
[Pertinent Portions of the Regional Director’s Decision
and Direction of Election in Case 28–RC–4812]
The hearing officer rejected Petitioner’s Exhibits 2, 3, 4,
and 5 on the basis that in his view they merely constituted
campaign literature distributed by the Employer during the
most recent self-determination election at the Palo Verde Nu-
clear Generating Station (Palo Verde) and were, thus, not rel-
evant to this proceeding. The Employer similarly contended
that the described exhibits had no relevancy or materiality to
the issue of the appropriateness of the petitioned-for unit. I
disagree with the hearing officer’s conclusion and reverse his
ruling rejecting the exhibits. Accordingly, I shall receive the
exhibits in evidence for the following reason. At the outset,
I note that the Employer raised no issues concerning the au-
thenticity of the rejected exhibits. Each of the four exhibits
consists of letters addressed on printed employer letterheads
(The Arizona Nuclear Power Project) to its employees con-
cerning the IBEW effort to organize the Palo Verde employ-
483ARIZONA PUBLIC SERVICE CO.
ees. Each letter is addressed and signed by E. E Van Brunt,
Jr., executive vice president, project director of the Em-
ployer. Petitioner’s Exhibit 5 is dated Auust 5, 1987, and
contains a reference, at item 3, to some of the benefits that
Palo Verde employees obtain as a result of their ‘‘union-
free’’ status, including vanpools; $5-per-day travel allow-
ance; B41 time; company-furnished tools; freedom from
being bargained out of position by senior employees at other
plants; and competitive wages and benefits. Petitioner’s Ex-
hibit 4, dated January 28, 1988, contains the statement that,
‘‘[w]ages, benefits and working conditions at Palo Verde are
different than those at APS fossil stations and line depart-
ments.’’ Petitioner’s Exhibit 3, dated January 27, 1988, refers
to the unique wages, hours, and working conditions at Palo
Verde, including vans; $5 per day travel allowance; B41
time; company furnished tools; shift schedules; and other
benefits, which would be subject to the negotiation process
if the employees voted to be included in the systemwide unit.
Petitioner’s Exhibit 2, dated January 15, 1988, admonishing
employees to ‘‘KNOW THE DIFFERENCE’’ states, ‘‘The
wages and benefits at Palo Verde are not the same as at fos-
sil stations and the line departments of APS.’’ Petitioner, in
support of its proffer of the exhibits into evidence, argued
that they show that the Employer admitted that the Palo
Verde employees received unique treatment with respect to
their wages and working conditions, as distinguished from
the IBEW-represented employees at the other six power gen-
erating plants operated by the Employer. Petitioner further
contended that the uniqueness and special treatment of the
Palo Verde employees, openly admitted and emphasized by
the Employer, was probative evidence of Petitioner’s claims
of the appropriateness of a petitioned-for unit limited to pro-
duction and maintenance employees employed at Palo Verde.
Counsel for the Employer conceded that the Employer made
these assertions during the IBEW election campaign con-
ducted in 1987 and 1988, but he insists that there were other
documents also distributed by management, so that Peti-
tioner’s Exhibits 2 through 5 do not constitute the complete
set of materials distributed by the Employer. With respect to
the hearing officer’s rationale that the requested exhibits
were merely campaign literature, in my opinion the only
issue is whether the exhibits contain relevant and probative
evidence relating to the unit issues raised in this proceeding.
Based upon my reading of the rejected exhibits, I have con-
cluded that the statements contained therein constitute rel-
evant evidence in the form of admissions by the Employer’s
executive vice president to the effect that the wages and ben-
efits of the employees at Palo Verde are different from the
Employer’s other six power generating fossil stations and the
line departments of the Employer. I have concluded, there-
fore, that Petitioner’s Exhibits 2 through 5 are relevant to the
issues herein, and, thus, Petitioner’s Exhibits 2 through 5 are
received in evidence. With respect to the Employer’s conten-
tion that the statements are incomplete, the Employer does
not claim that the statements contained in Executive Vice
President Van Brunt’s letters were ever retracted, were inac-
curate, or did not represent management’s stated position as
to the facts contained therein.
The instant matter is the most recent of a number of rep-
resentation cases involving the status of production and
maintenance employees at Palo Verde which is located ap-
proximately 70 miles west of Phoenix, Arizona. The most re-
cent representation proceeding involving the Palo Verde em-
ployees is Arizona Public Service Co., Case 28–RC–4459.
The parties stipulated that the Regional Director’s Decision
and Direction of Election (DDE) which was issued in that
case on January 8, 1988, as well as the transcript and exhib-
its, be made part of the formal record herein. A copy of the
DDe in Case 28–RC–4459 is annexed hereto and is incor-
porated in this decision. The parties also requested, and I
take official notice of, various Board decisions, referred to
hereinafter, which provide for historical background for the
representation proceeding herein.
The Petitioner seeks to represent a unit of all production
and maintenance employees at Palo Verde on the basis that
they constitute an appropriate residual unit under the Board’s
decision in Easten Container Corp., 275 NLRB 1537 (1985).
Contrary to the Petitioner, the Employer maintains that the
employees at Palo Verde do not by themselves constitute an
appropriate bargaining unit, citing the Regional Director’s
DDE in Case 28–RC–4459, in which it was concluded that
the only appropriate unit was one in which the Palo Verde
employees would be included in the systemwide unit rep-
resented by International Brotherhood of Electrical Workers,
Local Unions No. 387, AFL–CIO, CLC (Local 387 IBEW).
Also the Employer contests the Petitioner’s assertion that the
Palo Verde employees constitute an appropriate residual unit
which would warrant an election covering only the produc-
tion and maintenance employees at Palo Verde.
The Employer is a public utility engaged in supplying
electric power throughout the State of Arizona to commercial
and residential customers. In its operations, the Employer
employs some 9000 employees, approximately 3000 of
whom are in a single systemwide bargaining unit represented
by Local 387 IBEW. The represented employees are essen-
tially production and maintenance employees whose classi-
fications are set forth in the existing collective-bargaining
agreement between Local 387 IBEW and the Employer. The
current agreement is for the period of April 1, 1990 to April
1, 1993.
The Board’s Decision and Order in Arizona Public Service
Co., 256 NLRB 400 (1981) (APS I), involved a hearing on
an RM petiton filed by the Employer and a UC petition filed
by Local 387 IBEW. Local 387 IBEW contended in that pro-
ceeding that the Palo Verde production and maintenacne em-
ployees constituted an accretion to the systemwide produc-
tion and maintenance unit of employees it then represented.
The Employer argued therein that the Palo Verde employees
were not an accretion to the systemwide unit ‘‘but that sub-
stantial differences in skills, functions, and technological
knowledge between the Palo Verde employees and bar-
gaining unit employees and the local autonomy of the Palo
Verde management compel refusal of the Union’s [Local 387
IBEW] contention that the employees constitute an accretion
to the systemwide unit, bargaining,’’ APS I at 401, and urged
instead that the Board provide the Palo Verde employees the
opportunity in a self-determination election to decide for
themselves whether to be incorporated into the systemwide
bargaining unit or remain unrepresented. The Board rejected
the Employer’s analysis, noting that the parties had histori-
cally bargained on a systemwide basis, that in the past the
Employer had voluntarily recognized Local 387 IBEW as the
bargaining representative of employees added to the utility
system, and that it was ‘‘reluctant to grant less than a sys-
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
temwide unit where to do so would be contrary to extensive
bargaining history on a systemwide basis.’’ Id. at 402. Ac-
cordingly, the Board dismissed the Employer’s RM petition
and held that the Palo Verde production and maintenance
employees constituted an accretion to and should be included
in the systemwide production and maintenance unit rep-
resented by Local 387 IBEW.
Despite the Board’s Decision and Order in APS-I, the Em-
ployer nonetheless refused to recognize Local 387 IBEW as
the representative of the Palo Verde employees. On an
8(a)(1) and (5) complaint issued by the Regional Director of
Region 28, the General Counsel filed a Motion for Summary
Judgment with the Board alleging that, notwithstanding the
Board’s Decision and Order in APS-I, the Employer had re-
fused to recognize and bargain with Local 387 IBEW, as re-
quested, as the bargaining representative of the Palo Verde
employees in the appropriate unit. In its ruling on the Motion
for Summary Judgment, the Board in Arizona Public Service
Co., 259 NLRB 484 (1981) (APS-II), noted that the Employ-
er’s motion for reconsideration and renewed motion for re-
consideration and renewed motion for reconsideration of its
decision and order in APS-I had been denied, that it had re-
jected the Employer’s repeated claim that a self-detemination
was a prerequisite for Local 387 IBEW’s representation of
the Palo Verde employees, and found that the Employer, as
alleged, violated Section 8(a)(5) and (1) of the Act by its re-
fusal to recognize and bargain with Local 387 IBEW with
respect to the Palo Verde employees. The Board, thus, af-
firmatively ordered the Employer to bargain with Local 387
IBEW as the representative of the Palo Verde employees.
It is undisputed that the Employer has never complied
with the Board’s Decisions and Orders in APS-I and APS-
II. Thereafter, Local 387 IBEW acceded to the Employers’
demand for a self-determination election for the Palo Verde
employees, and an election was conducted in Case 28–RM–
459, in which the employees voted against representation by
Local 387 IBEW. The Certification of Results of Election in
Case 28–RM–459 issued on August 23, 1984. On November
5, 1987, Local 387 IBEW filed a petition for election in Case
28–RC–4459 limited to a unit of some 950 employees em-
ployed at Palo Verde. The Employer maintained that a unit
limited to Palo Verde was inappropriate since the Palo Verde
employees were only part of a systemwide unit and, thus, the
appropriate procedure was to conduct a self-determination
election giving the Palo Verde employees either the option
to be included in the systemwide production and mainte-
nance unit represented by Local 387 IBEW or to remain un-
represented. It was concluded, for the reasons stated in my
DDE in Case 28–RC–4459, that the petitioned-for employees
should be included in the systemwide production and mainte-
nance unit if, in a self-determination election, a majority of
the Palo Verde employees voted for representation by Local
387 IBEW, or, alternatively, if a majority of the valid ballots
were not cast for Local 387 IBEW the Palo Verde employees
would remain unrepresented. The Palo Verde employees
voted against inclusion in the systemwide production and
maintenance unit represented by Local 387 IBEW, and have
remained unrpresented to date. The Certification of Results
of Election in Case 28–RC–4459 issued on February 10,
1988.
The Employer maintains that the very facts, circumstances,
and applicable representation principles described in Case
28–RC–4459 are controlling herein, and, accordingly, the pe-
tition should be dismissed because the Palo Verde employees
do not by themselves constitute an appropriate bargaining
unit. The Employer also rejects the Petitioner’s contention
that the Palo Verde employees constitute a residual unit ap-
propriate for bargaining because, it asserts, such a residual
unit is deemed appropriately only if it includes all of the Em-
ployer’s unrepresented employees, while the Petitioner herein
seeks to represent only that segment of the unrepresented
employees employed by the Employer at Palo Verde.
The Petitioner does not contest the Board’s prior conclu-
sions that, given the nature of the Employer’s operations, the
Palo Verde employees would ordinarily share a community
of interest with their counterparts elsewhere in the Employ-
er’s system, or that in the public utility industry the optimum
unit is systemwide one. Baltimore Gas & Electric Co., 206
NLRB 199 (1973). Rather, the Petitioner argues that in the
particular facts and circumstances of this proceeding the Bal-
timore Gas rationale must give way to a superior statutory
principle enunciated in Section 9(b) of the Act supporting the
rights of employees to secure representation. The Petitioner
also contends that the Palo Verde employees comprise an ap-
propriate residual unit under the authority of Eastern Con-
tainer Corp., 275 NLRB 1537 (1985), and that it is appro-
priate to conduct an election in such a residual unit where
the employees would otherwise go unrepresented in collec-
tive bargaining. In Eastern Container, the petitioner therein,
Teamsters Local 404, filed a petition for election in a unit
of eight employees in the employer’s maintenance depart-
ment. The IUE was the incumbent bargaining representative
of over 150 production employees. The employer contended
that the only appropriate unit was one overall unit including
all the production and maintenance employees. The employer
also claimed that the maintenance employees were only part
of the unrepresented employees at the plant. However, the
Board found that the maintenance employees constituted an
appropriate residual interest from the production employees.
In rendering its decision, the Board noted that the IUE did
not seek to represent the maintenance employees, and that
the parties had stipulated that all unrepresented employees,
other than the maintenance employees, should be excluded
from either the petitioned-for unit or a combined production
and maintenance unit. In the instant proceeding, by contrast,
the Employer does not stipulate to exclude other residual em-
ployees and apparently maintains that all remaining unrepre-
sented employees in the utility system, some 6000, should be
included in the appropriate residual unit.
In summary, the Employer contends that the petitioned-for
employees do not constitute an appropriate unit with a sepa-
rate and distinct community of interest; that there is an ex-
tensive history going back to 1956 for self-determination
elections among groups of employees to be included only in
the existing systemwide unit; that the appropriate bargaining
unit for all APS production and maintenance employees is
the systemwide unit (Arizona Public Service Co., 182 NLRB
505 (1970)); that less than systemwide units are not ordi-
narily appropriate in the public utilities industry (Baltimore
Gas, supra); and that the residual unit principle is not appli-
cable herein since the petitioned-for employees would not
constitute an appropriate residual unit even if the industry in-
volved was one other than a public utility, since the Peti-
485ARIZONA PUBLIC SERVICE CO.
tioner seeks to represent a small segment of the unrepre-
sented employees.
In assessing the merits of the respective arguments of the
parties herein, it is necessary to review certain critical factors
and circumstances which are undisputed and matters of his-
torical record. ‘‘Since at least 1947, the Employer and the
Union [Local 387 IBEW] have had a bargaining relationship,
during which time the Employer has by acquisition or con-
struction 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 ac-
quired or constructed facilities in the contractual systemwide
bargaining unit.’’ APS-I at 400. ‘‘[S]mall groups of employ-
ees have periodically been added to the existing single sys-
temwide unit. Generally, such additions have resulted form
elections based on stipulated election agreements between the
parties [Employer and Local 387 IBEW], and, therefore, mat-
ters regarding unit placement have been uncontested.’’ DDE,
Case 28–RC–4459, at 3. The Employer’s unrepresented em-
ployees are classified ‘‘performance review’’ employees. All
of the performance review employees throughout the system
are subject to salary guidelines and performance review poli-
cies established by central management. APS-I at 400. While
some of the represented and unrepresented employees share
some of the same employment fringe benefits, there are dif-
ferences between the two groups of employees such as leave,
vacations, holidays, reduction-in-force policy, probation and
grievance adjustment. DDE, Case 28–RC–4459 at 3–4. Un-
represented employees may have their terms and conditions
of employment unilaterally altered at any time, whereas rep-
resented employees’ terms and conditions are specified for
the duration of the existing collective-bargaining agreement
and are subject to enforceable grievance and arbitration pro-
cedures. Thus, since 1977, when the Employer commenced
hiring production and maintenance employees for the Palo
Verde nuclear unit (APS-I at 401), there has been a substan-
tially different and unique relationship between the unrepre-
sented Palo Verde production and maintenance employees
and the Employer, as contrasted with the relationship at the
Employer with the represented employees at its other gener-
ating facilities who have been covered by Local 387 IBEW
collective-bargaining agreements for over 40 years. In addi-
tion to the foregoing, Petitioner has demonstrated, by ref-
erence to admissions contained in Petitioner’s Exhibits 2–5,
that the wages and benefits at Palo Verde are different from
the wages and benefits received by production and mainte-
nance employees employed at the power generating fossil-
fuel stations (Four Corners, Cholla, West Phoenix, Yucca,
Ocotillo, and Saguaro) and the line departments at APS,
where the employees are represented by Local 387 IBEW.
In the circumstances herein, were I to adopt the Employ-
er’s arguments, it would require me to dismiss the petition
since the Petitioner does not seek to represent the Palo Verde
employees as part of a systemwide unit of production and
maintenance employees and also because a residual unit of
employees at Palo Verde is inappropriate as it only con-
stitutes a segment of the 6000 unrepresented employees re-
maining in the systemwide operation.
Thus, under the Employer’s rationale, the only occasions
that the Palo Verde employees could ever secure representa-
tion rights in the absence of Local 387 IBEW’s intervention
would be for a competing union to seek Local 387 IBEW’s
systemwide representation rights by filing a petition at an ap-
propriate time covering the 3000 represented employees, or,
alternatively, for a competing labor organization to seek rep-
resentation for all 6000 unrepresented employees in single
residual unit. While such events are theoretically possible,
neither of these alternatives appear likely, nor do they con-
stitute a basis for indefinitely forestalling the stautory rights
of representation afforded to the Palo Verde employees. The
issue, then, is whether the Board’s residual unit principles are
nevertheless applicable here even though the Petitioner is
seeking a residual unit limited to Palo Verde. In this regard,
I note that Palo Verde is the only one of the Employer’s
seven generating plants whose production and maintenance
employees are unrepresented. Ordinarily, a single-plant unit
is presumptively appropriate. National Cash Register Co.,
166 NLRB 173 (1967). However, in the public utility indus-
try, the Board has found that the optimal unit is one that is
systemwide. Baltimore Gas, supra. Since Local 387 IBEW
represents approximately 3000 employees out of 9000 em-
ployees, it could scarcely be claimed that Local 387 IBEW
currently represents the Employer’s production and mainte-
nance employees in the most optimal unit. Based upon Local
387 IBEW’s limited representation within the overall system,
it would be incongruous and somewhat anomalous to con-
clude that petitions filed by rival unions for otherwise appro-
priate units must be dismissed because they were in conflict
with the optimal public utility standard, where, as here, the
incumbent union, though representing certain employees in a
systemwide unit, only represents a small proportion of the
employees in the system. In so doing, the Board would be
conferring upon the incumbent union, here Local 387 IBEW,
a special status effectively denying any rival union from
seeking to represent the unrepresented employees of the Em-
ployer despite the incumbent union’s lack of representative
status among the unrepresented employees who constitute
two-thirds of the Employer’s statewide work force. More-
over, and equally relevant, the record demonstrates that the
Employer herein has time and time again stipulated to elec-
tions in segments of its unrepresented employees contrary to
its claim herein that all unrepresented residual employees
should be required to vote in any residual election. It is
somewhat significant to note in this regard that the Employer
in its brief states that:
In addition to the two previous self-determination elec-
tions conducted among the petitioned-for group, and
consistent with the system-wide unit doctrine, Baltimore
Gas, infra, the Employer and Local 387 have had an
extensive history of self-determination elections, con-
ducted under the supervision of the Regional Director
for Region 28, for inclusions into the existing system-
wide unit (See E. Exh. 3 at p. 3). As early as 1956,
the Company and Local 387 entered into stipulations
for elections to detemine whether certain groups of em-
ployees desired to be included in the existing system-
wide unit. Those stipulations included cases: 21–RC–
4242 (1956) (meter readers); 28–RC–1944 (warehouse-
men); 28–RC–3213 (1976) (cathodic protection testers);
28–RC–3221 (1976) (fuel specialists at Four Corners
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Plant); and 28–RC–3587 (1979) (auto parts special-
ists).4
4 Each of the groups which selected the Union through such elec-
tions became part of the system-wide unit as reflected in the current
collective bargaining agreement (‘‘Agreement’’), E. IExh. 1. (See Wage
Schedules.)
Employer’s brief, pages 5–6. Thus, the historical record be-
fore me establishes that the Employer has voluntarily con-
sented to representation elections in segments of the residual
or unrepresented employees employed by it systemwide.
And, in the DDE in Case 28–RC–4459 issuing on January
8, 1988, where there was no stipulation covering the Palo
Verde employees because Local 387 IBEW sought a separate
unit for Palo Verde, the Employer nonetheless successfully
prevailed in is argument that the Palo Verde employees
should vote in a self-determination election to be included in
the Local 387 IBEW systemwide unit. The Employer made
no claim then, as it does now, that all of its unrepresented
residual employees had to participate in the election. In addi-
tion to the foregoing, the record further establishes that the
Employer has also entered into a separate collective-bar-
gaining agreement with the Carpenters Union for a system-
wide unit of carpenters, while the most recently expired and
current collective-bargaining agreements with Local 387
IBEW cover the classification of carpenter helper.
The Palo Verde facility has reached the point, after almost
a decade of litigation before this Agency, at which it has es-
tablished its own unique status as the only power generating
station in the Employer’s system where the production and
maintenance employees are unrepresented. Two elections
have already been conducted there, notwithstanding the
Board’s finding those employees had accreted to the Local
387 IBEW bargaining unit, and on both occasions the em-
ployees rejected representation by Local 387 IBEW. That
labor organization has declined to take part in the instant
proceeding. The Employer has on numerous occasions agreed
to self-determination elections for inclusion in the system-
wide unit of segments of the unrepresented employees, and
it has also permitted the fragmentation of the systemwide
unit by entering into a collective-bargaining agreement with
the Carpenters Union for a unit of carpenters even though the
Local 387 IBEW agreements have included carpenter helpers
in the recognized bargaining unit. To maintain that only a re-
sidual systemwide unit is appropriate in the circumstances
where only one-third of the Employer’s employees are rep-
resented by Local 387 IBEW would be tantamount to ele-
vating a general rule applied to units in the public utility in-
dustry to a rigid, inflexible rule which has no application to
the special set of facts and circumstances herein, and which
would effectively deny to these Palo Verde employees the
right of ever obtaining representation rights under the Act. I
am not persuaded that the Act requires that the Palo Verde
employees remain unrepresented until such time, if ever, that
a labor organization other than Local 387 IBEW seeks to
represent the Palo Verde employees in a systemwide unit or
seeks to represent all the remaining 6000 unrepresented em-
ployees in one residual unit. Section 9(b) of the Act, with
limited restrictions, permits the Board to decide ‘‘in each
case’’ the appropriate unit ‘‘in order to assure the employees
the fullest freedom in expressing the rights guranteed by the
Act.’’ As the Supreme Court held in NLRB v. Hearst Corp.,
322 U.S. 111, 134 (1944) (a Wagner Act case):
Wide variations in the forums of employee self-organi-
zations and the complexities of modern industrial orga-
nization make difficult the use of inflexible rules as the
test of an appropriate unit. Congress was informed of
the need for flexibility in shaping the unit to the par-
ticular case and accordingly gave the Board wide dis-
cretion in the matter.
The Board has in appropriate circumstances modified its
requirement that all unrepresented employees must be in-
cluded in a residual unit election. As noted previously, in
Eastern Container the rule was modified by virtue of the
parties’ stipulation to exclude other unrepresented employees.
Another deviation from the rule appears in Mosler Safe Co.,
188 NLRB 650 (1971). In Mosler, the Safe Workers Union
was certified bargaining representative for over 1000 hourly
paid production and maintenance employees, including plant
clericals, and it had an existing contract with the employer
covering those employees. The Petitioner sought to represent
a unit of plant clericals not covered by the collective-bar-
gaining contracts in three employer plants, excluding other
represented salaried office and technical employees. The Safe
Workers Union intervened, but it made no showing of inter-
est and indicated that it did not want to participate in any
election which might be directed. The employer claimed that
because of the functional integration of its various operations
that the only appropriate unit involving its salaried employ-
ees should also include all the unrepresented salaried em-
ployees. Additionally, the employer argued that the peti-
tioned-for plant clericals should be given the opportunity of
voting to become part of the existing production and mainte-
nance unit. The Board noted at the outset that simply be-
cause the incumbent Safe Workers Union did not wish to
represent the remaining plant clericals such circumstance was
not, without more, an adequate reason to deny those employ-
ees the opportunity to vote for representation apart from the
production and maintenance unit. After excluding office
clericals from the unit based upon the Board’s longstanding
policy of not combining office and plant clericals in the same
unit, the Board in Mosler next considered whether the re-
maining unrepresented employees, salaried technical employ-
ees, should be included in the appropriate unit. The Board
concluded that they should be included in the appropriate
unit, but only, as it found thereafter, where there was evi-
dence of a demonstrated community of interest between
those technical employees with the petitioned-for plant
clericals. Upon an analysis of the duties of various classifica-
tions of the remaining unrepresented employees, the Board
excluded from the appropriate unit data processing employ-
ees, bank and commercial engineering department employ-
ees, bank engineering and design employees, timestudy em-
ployees, process routers, and tool designers and draftsmen
because of their lack of community of interest with plant
clericals. Thus, not all unrepresented residual employees
were included by the Board in the appropriate unit; rather,
the Board included only those with a demonstrated commu-
nity of interest with the petitioned-for unit of plant clericals.
Those unrepresented employees with ‘‘only a remote com-
487ARIZONA PUBLIC SERVICE CO.
munity of interest with plant clericals’’ were excluded.
Mosler at 652.
The production and maintenance employees at Palo Verde
encompass all of the unrepresented production and mainte-
nance employees of the Employer at its seven power gener-
ating plants. Based upon this factor alone, I would conclude
that the production and maintenance employees at Palo
Verde constitute an appropriate residual unit of power plant
employees failing within the parameters of the Board’s resid-
ual unit holdings. In this regard, the Employer has not pre-
sented any evidence or otherwise established that the unrep-
resented employees employed outside of the Palo Verde fa-
cility have any meaningful community of interest with the
Palo Verde employees, except for the fact that they are all
performance review employees whose terms and conditions
of employment are unilaterally established by the employer.
Cf. Mosler Safe Co., supra. By contrast, the Palo Verde pro-
duction and maintenance employees have a clear community
of interest among themselves with respect to their terms and
conditions of employment.
Accordingly, in the circumstance of this particular case,
and in view of the foregoing history of the representation
proceedings at Palo Verde, I am convinced, and so conclude,
that the unique circumstances herein warrant a finding that
the Palo Verde production and maintenance employees con-
stitute an appropriate residual unit. Since Local 387 IBEW
does not seek to represent the petitioned-for unit of employ-
ees, and, since the Petitioner is the only labor organization
seeking to represent the Palo Verde employees on a system-
wide basis, and since no other labor organization seeks any
broader representation among the unrepresented employees
of the Employer, and there is no showing of a substantial
community of interest between the Palo Verde employees
and the remaining 5000 unrepresented employees throughout
the system, I find that the petitioned-for unit is appropriate
for the purposes of conducting an election therein. To con-
clude otherwise would be to disregard the provisions of Sec-
tion 9(b) of the Act.
I shall therefore direct that an election be conducted in a
unit comprised of all production and maintenance employees
employed by Arizona Public Service Company at its Palo
Verde Nuclear Generating Station. The parties agreed that in
any election directed at Palo Verde the following classifica-
tions of employees would be eligible to vote: Chemist P.V.N.
W.R.F. II, Chemist P.V.N. W.R.F. III, Chemist P.V.N.
W.R.F., Sr., Aide Radiation Prot., Tech Chemistry BL, Tech
Chemistry, Tech Chemistry Sr., Tech Metrology, Tech Me-
trology Sr., Tech Radiation Prot. BL, Tech Radiation Prot.,
Tech Radiation Prot. Sr., Helper Radiation Prot., Tech Rad
Waste BL, Tech Rad Waste, Helper Rad Waste, Oper Nu-
clear I, Oper Nuclear II, Oper Nuclear III, Nuclear Oper
Tech, Tech I/C, Tech I/C BL, Tech I/C Sr., Electrician Plt.
P.V.N., Electrician Plt. Sr. P.V.N., Electrician W.R.F., Vibra-
tion Techs, Helper P.P.M. P.V.N. I, Helper P.P.M. P.V.M. II,
Helper P.P.M. P.V.N. III, I-C Repairman W.R.F., Mechanic
Auto P.V.N., Mechanic Plant P.V.N., Mechanic Plant W.R.F.
I Step 1, Oper W.R.F. I Step 2, Oper W.R.F., Oper W.R.F
I Step 3, Oper W.R.F. II, Oper W.R.F. III, Storekeeper,
Storekeeper A, Utility Worker Nuclear, Warehouseman
P.V.N. I, Warehouseman P.V.N. II, Warehouseman P.V.N.
Sr., Carpenters PV, Tech Fire Systems, Refrigeration Tech,
Refrigeration Sr., Technician Sr., Welding Tech, Helpers,
Apprentices, Equipment Oper A, Equipment Oper B,
Yardworker, Plumber, Tool Crib Attendant, I & C Lead
Techs, Computer Techs, H-vac Tech, H-vac Tech Sr. and
Utility Worker Sr. The parties are in agreement that the fol-
lowing job classifications should be excluded: all profes-
sional employees, clerical employees, guards, and supervisors
as defined in the Act. Additionally, the parties agreed that
the individuals in the I & C Rework Tech and P.P.M. Sr.
classifications may vote subject to challenge since there was
some question at the time of the hearing as to their status.
There are approximately 930 eligible voters in the voting
unit.