Arizona Public Service Company

National Labor Relations Board - Board Decisions

Dec 3, 1981

259 N.L.R.B. 484 (N.L.R.B. 1981)

484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arizona Public Service Company and International Pursuant to the provisions of Section 3(b) of the
Brotherhood of Electrical Workers, AFL-CIO, National Labor Relations Act, as amended, the Na-
Local 387. Case 28-CA-6600 tional Labor Relations Board has delegated its au-
~December 3, 1981 thority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
DECISION AND ORDER Board makes the following:
BY MEMBERS FANNING, JENKINS, AND Ruling on the Motion for Summary Judgment
ZIMMERMAN In its answer to the complaint, Respondent
Upon a charge filed on August 17, 1981, by In- admits that the existing systemwide unit of certain
ternational Brotherhood of Electrical Workers, of its production and maintenance employees con-
AFL-CIO, Local 387, herein called the Union, and stitutes a unit appropriate for purposes of collective
duly served on Arizona Public Service Company, bargaining within the meaning of Section 9(b) of
herein called Respondent, the General Counsel of the Act, and that the Union is the designated exclu-
the National Labor Relations Board, by the Re- sive representative of its production and mainte-
gional Director for Region 28, issued a complaint nance employees as set forth in successive collec-
on September 1, 1981, against Respondent, alleging tive-bargaining agreements. Respondent, however,
that Respondent had engaged in and was engaging stresses that these agreements do not include the
in unfair labor practices affecting commerce within Palo Verde production and maintenance employ-
the meaning of Section 8(a)(5) and (1) and Section ees, and denies that the Palo Verde employees may
2(6) and (7) of the National Labor Relations Act, be part of the systemwide bargaining unit without
as amended. Copies of the charge and complaint first having an opportunity to vote in a self-deter-
and notice of hearing before an administrative law mination election as to whether they wish to be in-
judge were duly served on the parties to this pro- cluded in that unit or to remain unrepresented.
ceeding. In the Motion for Summary Judgment, the Gen-
With respect to the unfair labor practices, the eral Counsel argues that Respondent's answer at-
complaint alleges in substance that, since June 25, tempts to relitigate issues that were raised and de-
1981, following a Board Decision and Order,' and termined by the Board in the underlying represen-
at all times thereafter, Respondent has refused, and tation cases. We agree with the General Counsel.
continues to date to refuse, to recognize and to bar- The record, including the record in the underly-
gain collectively with the Union as the exclusive ing representation cases, Cases 28-RM-394 and 28-
bargaining representative of Respondent's Palo UC-111, shows that, in December 1980, Respond-
Verde, Arizona, nuclear power plant production ent filed an RM petition seeking an election among
and maintenance employees in the appropriate its production and maintenance employees at its
unit, 2 although the Union has requested and is re- Palo Verde nuclear power plant, and that the
questing it to do so. On September 14, 1981, Re- Union filed a UC petition seeking a clarification of
spondent filed its answer to the complaint admit- the existing systemwide production and mainte-
ting in part, and denying in part, the allegations in nance unit to include the Palo Verde employees as
the complaint. an accretion to the systemwide unit. Following
On September 22, 1981, counsel for the General transfer of the cases to the Board by the Regional
Counsel filed directly with the Board a Motion for Director, on June 5, 1981, the Board issued a Deci-
Summary Judgment. Subsequently, on September sion and Order
3 in which it found that Respond-
30, 1981, the Board issued an order transferring the ent's Palo Verde production and maintenance em-
proceeding to the Board and a Notice To Show ployees were an accretion to the existing system-
Cause why the General Counsel's Motion for Sum- wide bargaining unit represented by the Union.
mary Judgment should not be granted. Respondent The Board found that no question concerning rep-
thereafter filed a response to the Notice To Show resentation of the Palo Verde employees existed,
Cause. and therefore dismissed the petition in Case 28-
RM-394.
'256 NLRB 400 (1981). On June 15, 1981, Respondent filed with the
Official notice is taken of the record in the representation proceeding Board a motion for reconsideration of the Board's
Cases 28-RM-394 and 28-UC-lll, as the term "record" is defined in
Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, Decision and Order. On June 19, 1981, the Board
as amended. See LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. issued an unpublished Order denying Respondent's
388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151
(1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 motion. On July 1, 1981, Respondent filed with the
F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd.
397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. ' 256 NLRB 400.
259 NLRB No. 72

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ARIZONA PUBLIC SERVICE COMPANY 485
Board a renewed motion for reconsideration of the FINDINGS OF FACT
Board's Decision and Order. On July 9, 1981, the
Board issued an unpublished Order denying Re- THE BUSINESS OF ESNDENT
spondent's renewed motion. Respondent, an Arizona corporation, is engaged
On June 24 and July 13, 1981, the Union request- as a public utility in the generation, transmission,
ed Respondent to recognize it as the exclusive rep- distribution, and sale of electricity and natural gas.
resentative of the Palo Verde production and main- During the past 12-month period, which period is
tenance employees and to bargain collectively re- representative of its operations generally, Respond-
garding those employees' rates of pay, wages, ent, in the course and conduct of its business oper-
hours of employment, and other terms and condi- ations, derived gross revenues in excess of
tions of employment. Respondent, by letters dated $250,000, and during the same period of time pur-
June 25 and July 20, 1981, refused to recognize and chased goods and materials valued in excess of
$50,000 which were transported in interstate com-to bargain with the Union, and has continued to $50000 whchwere transported in nterstate com-merce and delivered to its operations in the State
refuse to recognize and to bargain with the Union of Arizona directly from suppliers located in State
as the exclusive bargaining representative of its of the United States other than the State of Arizo-
Palo Verde employees. Respondent asserts as rea- na.
sons for its continued refusal to recognize and to We find, on the basis of the foregoing, that Re-
bargain with the Union that the Board ignored acts spondent is, and has been at all times material
which make the application of the accretion doc- herein, an employer engaged in commerce within
trine inappropriate in this case, that the Palo Verde the meaning of Section 2(6) and (7) of the Act, and
employees constitute a new and distinct grouping, that it will effectuate the policies of the Act to
and that Board law requires that such employees assert jurisdiction herein.
be granted a self-determination election as to
whether they wish to be represented by the Union . THE LABOR ORGANIZATION INVOLVED
or remain unrepresented-arguments previously International Brotherhood of Electrical Workers,
presented to and considered by the Board. Thus, it AFL-CIO, Local 387, is a labor organization
appears that Respondent is attempting to raise in within the meaning of Section 2(5) of the Act.
this proceeding issues which were raised and deter- III. THE UNFAIR LABOR PRACTICES
mined in the underlying representation cases.
It is well settled that in the absence of newly dis- A. The Representation Proceeding
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-e un
leging a violation of Section 8(a)(5) is not entitled The following employees of Respondent consti-
to relitigate issues which were or could have been tute a unit appropriate for collective-bargaining
litigated in a prior representation proceeding. 4 purposes within the meaning of Section 9(b) of the
All issues raised by Respondent in this proceed- Act:
ing were or could have been litigated in the prior All production and maintenance employees
representation proceeding, and Respondent does employed by Respondent throughout Re-
not offer to adduce at a hearing any newly discov- spondent's systemwide operations.
ered or previously unavailable evidence, nor does The
it allege that any special circumstances exist herein T h e rec
which would require the Board to reexamine the At all times material herein, the Union has been
decision made in the representation proceeding. We the designated exclusive collective-bargaining rep-
therefore find that Respondent has not raised any resentative of Respondent's employees in the unit
issue which is properly litigable in this unfair labor described above, and has been recognized as such
practice proceeding. Accordingly, we grant the by Respondent. Such recognition has been em-
Motion for Summary Judgment. bodied in successive collective-bargaining agree-
On the basis of the entire record, the Board ments, the most recent of which is effective by its
makes the following: terms from April 1, 1980, to April 1, 1982.
3. The Board's Decision and Order
On June 5, 1981, the Board issued a Decision
and Order,5 finding, inter alia, that certain produc-
See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(0 and 102.69(c). 256 NLRB 400.
r ' i i . l , , t
i L T H E BU SI N ESS O F R PONDEN
it r ti r ll , s -
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ss of
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refuse to recognize and to bargain with the Union erce and delivered to its operations i the t t
refuse to recognize and to bargain with the Union of Arizona directly from suppliers located in States
i i t ti f its f t t tt s other than the State of rizo-
ot he
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486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion and maintenance employees employed by Re- 2. International Brotherhood of Electrical Work-
spondent at its Palo Verde, Arizona, nuclear power ers, AFL-CIO, Local 387, is a labor organization
plant, which is currently in the process of being within the meaning of Section 2(5) of the Act.
constructed, are an accretion to, and included in, 3. All production and maintenance employees
the unit described above. employed by Respondent throughout Respondent's
systemwide operations constitute a unit appropriate
B. The Request To Bargain and Respondent's for the purposes of collective bargaining within the
Refusal meaning of Section 9(b) of the Act.
Commencing on or about June 24, 1981, and at 4. At all times material herein, the above-named
all times thereafter, the Union has requested Re- labor organization has been and now is the desig-
spondent to bargain collectively with it as the ex- nated exclusive representative of all employees in
elusive collective-bargaining representative of all the aforesaid appropriate unit for the purpose of
the employees in the above-described unit. Com- collective bargaining within the meaning of Section
mencing on or about June 25, 1981, and continuing 9(a) of the Act.
at all times thereafter to date, Respondent has re- 5. By refusing on or about June 25, 1981, and at
fused, and continues to refuse, to recognize and all times thereafter, to bargain collectively with the
bargain with the Union as the exclusive representa- above-named labor organization as the exclusive
tive for collective bargaining of all employees in bargaining representative of all the employees of
said unit. Respondent in the appropriate unit, Respondent
Accordingly, we find that Respondent has, since has engaged in and is engaging in unfair labor prac-
June 25, 1981, and at all times thereafter, refused to tices within the meaning of Section 8(a)(5) of the
bargain collectively with the Union as the exclu- Act.
sive representative of the employees in the appro- 6. By the aforesaid refusal to bargain, Respond-
priate unit, and that, by such refusal, Respondent ent has interfered with, restrained, and coerced,
has engaged in and is engaging in unfair labor prac- and is interfering with, restraining, and coercing,
tices within the meaning of Section 8(a)(5) and (1) employees in the exercise of the rights guaranteed
of the Act. them in Section 7 of the Act, and thereby has en-
IV. TH FFCT OF TH UNFAIR ABORgaged in and is engaging in unfair labor practicesIV. THE EFFECT OF THE UNFAIR LABOR
PTRACTICSF UPON OMMR within the meaning of Section 8(a)(1) of the Act.PRACTICES UPON COMMERCE
7. The aforesaid unfair labor practices are unfair
The activities of Respondent set forth in section labor practices affecting commerce within the
III, above, occurring in connection with its oper- meaning of Section 2(6) and (7) of the Act.
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf- ORDER
fic, and commerce among the several States and Pursuant to Section 10(c) of the National Labor
tend to lead to labor disputes burdening and ob- Relations Act, as amended, the National Labor Re-
structing commerce and the free flow of com- lations Board hereby orders that the Respondent,
merce. Arizona Public Service Company, Palo Verde, Ari-
v. THE REMEDY zona, its officers, agents, successors, and assigns,
shall:
Having found that Respondent has engaged in 1. Cease and desist from:
and is engaging in unfair labor practices within the (a) Refusing to bargain collectively concerning
meaning of Section 8(a)(5) and (1) of the Act, we rates of pay, wages, hours, and other terms and
shall order that it cease and desist therefrom, and, conditions of employment with International
upon request, bargain collectively with the Union Brotherhood of Electrical Workers, AFL-CIO,
as the exclusive representative of all employees in Local 387, as the exclusive bargaining representa-
the appropriate unit and, if an understanding is tive of its employees in the following appropriate
reached, embody such understanding in a signed nit
agreement.
The Board, upon the basis of the foregoing facts All production and maintenance employees
and the entire record, makes the following: employed by Respondent throughout Re-
spondent's systemwide operations.
CONCLUSIONS OF LAW (b) In any like or related manner interfering
1. Arizona Public Service Company is an em- with, restraining, or coercing employees in the ex-
ployer engaged in commerce within the meaning of ercise of the rights guaranteed them in Section 7 of
Section 2(6) and (7) of the Act. the Act.
,
B. The Request To Bargain and Respondent's t i r ti tit t it i t
eqest t t ll ti r i i it i t
e<