Arizona Public Service Company v. National Labor Relations Board

rеgular on Court active service having requested the Court

polled rehearing banc, (Rule en Procedure; Appellate

Federal Rules of 12) Petition

Local Rule First Circuit Rehearing en banc is denied.

ARIZONA PUBLIC SERVICE COM- PANY, Petitioner-Appellant,

NATIONAL LABOR RELATIONS BOARD, Respondent-Appellee.

No. 71-1183. Appeals,

United States Ninth Circuit.

Dec. Byrne, William M.

Judge, opinion. dissented and filed of Electrical

national Brotherhood (the Workers, Local Un- Union No. bargaining repre- ion) as exclusive production sentative of and mainte- nance sought an

In the Union NLRB directing among order election an Supervis- nine Load (Supervisors) Sys- ors аnd ten assistant (Assistants As- tem Load Supervisors). Company re- The Steiner, (argued) of Frederick K. Jr. arguing sisted peti- Wilmer, Phoenix, Ariz., for Snell “supervisors” were all within the mean- tioner-appellant. ing 2(11) National Labor § Washing- Hay, (the Act, Howard N. 152(11), C. L. Relations 29 U.S.C. § Ward, (argued), ton, Act), Anderson D. pro- D. C. and not entitled to the Act’s (fоr Phoenix, (argued) Lo- Relying IBEW Ariz. tection. The Connecticut Eugene Acting Goslee, 387), Gen. cal G. & Power 121 N.L.R.B. Counsel, Manoli, (1958), unanimously Associate Dominick L. the Board held Mallet-Prevost, Counsel, Gen. Marcel neither nor the Assist- Brown, Supervisors responsibly Counsel, Gen. Allison W. oth- Asst. ant directed Washington, Jr., C., for therefore, D. thаt, and 2(11) respondent. “supervisors.” 182 N. were § (1970). di- The then #72 Board L.R.B. Phoenix, Salmon, Jennings, Strouss & won. election, rected an the Union Proj- Ariz., River amicus ‍‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​‌‌​​‌​‌​​​‌​‌​‌​‌​‌​‌​​‌​​‍curiae Salt and The Assistants Agricultural Improvement & Power ect compliance included, then with District. order, production and Board’s CHOY, Before Circuit WRIGHT and bargaining unit, аnd the maintenance Sr., Judges, BYRNE, District and their exclusive certified as Union was Judge.* bargaining representative. however, Company, refused The Judge: CHOY, Circuit repre- bargain with the Union employees. The Un- of these sentatives direct- petitioned Board order ion for a Company (the Arizona Public Service Although bargain. ing Company to gas Company) electrici- and is a natural since the Company throughout contended ty serving utility customers proceedings, it had al- representation sys- Company’s electrical Arizona. duties and the status tered clarified plants, generates power tem at several Super- Supervisors and Assistant pur- of the power buys sells electrical and it clearly statu- more visors to make them other southwest- suant to contracts with tory “supervisors,” entered the Board Company headquar- ern utilities. Union, find- summary judgment for the Phoenix, office and a smaller ters engaged in Company ing had Flagstaff. Since is maintained ordered practices1 and labor recognized unfair Company the Inter- has * 8(a) labor unfair Byrne, be an shall §§ William M. The Honorable employer “(1) practice Judge, an District — United States restrain, with, em- coerce by desig- California, sitting terfere rights ployees exercise in the nation. 7; guaranteed in section Company violated held to have 1. The was collectively bargain “(5) refuse to (5) 8(a) (1) §§ 29 U.S.C. §§ representatives em- of his (a) (1) ” . bargain Union.2 stat upon power ute 188 N.L.R.B. #1 turns the existence of a again refused, petitioned frequency under not the its utilization. § 160(f), example, 10(f), 29 for review For U.S.C. § cross-pe to fire hire other order. Board’s though supervisor un a for enforcement of its order he has titioned nonetheless 3 160(e). power. 10(e), der We never exercised Ohio U.S.C. that See 29 § § employees deny N. 176 385 enforcement because the Co. v. L. R. question supervisors in While are meaning 2(11). clear, tests are determina of the ultimate § depends upon supervisory tion of status

II job actually per scrutiny a close of the by employees question.4 in formed Relations National Labor large a The Board is measure accorded self-organization protects Act weighing dif in the subtle discretion bargaining “employees,” collective jobs, and ferences between its determi any term excludes “. judicial nation is accorded considerable employed supervisor.” individual as a § deference. N. L. R. v. Swift and B. 152(3). “Supervisor” 2(3), 29 U.S.C. § 1961). However, (1st 292 F.2d 561 2(11). is in turn in defined § finding the Board’s fact em that “(11) ‘supervisor’ means term ployees subject not is are having any authority, individual scrutiny judicial review. Univer (1) employer, the interest of Corp. sal Camera L. U. v. N. R. 340 recall, hire, transfer, lay off, suspend, 474, 456, S. 71 S.Ct. L.Ed. promote, discharge, reward, assign, or (1951). Only conscientiously if we can discipline (2) employees, or re- other say that a record considered as sponsibility them, (3) to direct finding supports whole the Board’s must adjust grievances, (4) their effec- .or supra, Camera, we affirm. Universal tively action, (5) to recommend if such 456, at 71 S.Ct. L.Ed. 456. foregoing in connection the ex- аuthority ercise of such not of is III merely nature, routine or clerical but requires judg- independent the use Company does not contend (italicized added) ment.” numbers Supervisors and Assistant 2(11) “hire, Section is to authority be read in the dis- have the junctive, any presence recall, pro suspend, lay off, one transfer, powers assign, reward, mote, discharge, enumerated sufficient is or disci pline “supervisor.” render an employees,” N. other ef Publishing Co., fectively L. B. v. Fullerton such to recommend action.5 appealed guidance the Board’s are similar are of some summary judgment erronеously determining enter- what other factors courts disputed important deciding ques- ed because there exist issues of have felt supervisory fact. Since we find that was tion of We find these status. wrong in help- initial determination cases and similar Board decisions employees question super- genеrally are not ful but not authoritative. See visors, question. “Legal ‘Supervisory’ we need Daykin, Meaning not decide this Taft-Hartley,” under Labor L.J. 561 granted 3. The Union has been leave to intervene in this action. International Workers, Union United Auto etc. Local 5. The contend that does Su- Scofield, 283 v. 382 U.S. 86 S.Ct. pervisors report operational errors (1965). Thus, 15 L.Ed.2d 272 all superiors, their re- immediate these parties are now before this court. ports discipline, may result and that party 4. Neither has cited to us case these have the real exactly warnings. one, which is like this and our to issue written Many ease, resеarch has revealed not none. cases of the we need from our view say, however, day-to-day basis, does on a and other em- ployees comply to direct have the instructed promptly other such direction directives. SLD agree. not routine. We Second, other em- and ‍‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​‌‌​​‌​‌​​​‌​‌​‌​‌​‌​‌​​‌​​‍As- supervisors. consider these men very few the have manager Eaglin, Lawrence area indicia status.6 outward SLD, is in contact with constant posi- required A license obey structs men to SLD orders proficiency sole scholastic fact, were, testified that never knowledge of desired is a mathematics. disobeyed. Priority given all SLD on-the-job training. Al- receive frequent calls, and there is direct con- meetings though regular held dis- tact between SLD and field procedures problems of the cuss the may The . . linemen “. have dis- training meetings, system, these are not agreed an but don’t know [with order] Supervisors аnd nor the As- neither the anyone disobeyed ever an order that meetings Supervisors attend they from . . SLD . [b]ecause managerial Company’s They the staff. say they the the con- have final have — determining Company have in no hand everything trol fi- over so are the policy. Supervisors nal word.” One оf the tes- abstract, may experience In the it seem that in no had tified that one his employees perform any carry these func- to out in- routine ever failed ability, requiring requests. tions and do or skill but structions supervise little use of more than the so- Super- important, the Third, and most phisticated However, the machines. Supervisors respon- visors and Assistant extending beyond whole, record a employees field sibly in after the job descriptions, static demonstrates emergencies. during and business hours employees that these have L. B. “responsibly” in N. R. We defined authority. Co., Publishing v. Fullerton First, considers these quoting 1960), with (9th supervisors. Woods, men Thomas G. N. L. approval Ohio Power Co. v. vice-president management Jr., serv- 1949). (6th Cir. 176 F.2d ices, Supervisors testified had that responsible answerable is to be “To be delegated virtually “clear over obliga- duty discharge or of a for the everybody company.” And P. W. judg- Responsibility inсludes tion. Reilly, Company’s president, stated skill, ability, capacity, and ment, delegated that the by power.” implied tegrity, and is Supervisors Load Dis- judgment, require question jobs in patch The operate sys- . “. . integrity. capacity, and skill, ability, tem, operate efficiently, operate it system is often electrical economic manner best and complete control sole and under the Reilly safe manner . .” said when They employees.7 decide these pow- that the exercised this po- Supervisor Assistant employees Vacant dock. decide whether these have the by aсcepting from bids discipline. are filled effectively sitions to recommend system, but Su- any witliin is, course, “Supervisor” 6. ir- The title among solely pervisors from are chosen relevant determination Supervisors. There experienced Assistant Both and Assistant status. managers payroll officers and for is one pen- subject Supervisors are to the same Company, rest of the and another sion, hospitalization, medical, vaca- and including Assistants. and They plans as other superior Practically speaking, no there paid employees, monthly, like other twice evening, present five in overtime, after officer and a half and receive time night, during these em- if hourly computed that so None of basis. supervisors, the Com- employees punch are not a time- script approximately electricity buy hours of or sell. three and much how Friday given Supervisor operations eve on a priority is They what decide ning. clearly tape documents Su requests. choose which repair pervisor exercising supervisory func work, when where. linemen are to directing linemen obey their tions directives. Field to and threat servicemen reveals Su is no immediate When there pеrvisor’s superior authority responsibly to direct is availa- property and a life or ble, jejune a course other is “not weak discuss will these import vigor potential superior. but vitality.” active their [s] of action emergencies, Security Guard hours after by- Service, Inc., Supervisor to and does authorized ordinary directing the re pass of command. While chain the normal operations pair giving clearances argues while testing de-energized faulty lines, jobs judgment, require may skill Supervi lines, locating defects, only requiring operation routine, command, sor, ignoring the chain employеes supervise machines operations himself nec directed vast supervisors, relay field orders essary to to customers return service supervise the actual execution then during a summer storm. electrical was the case directive. This Connecticut tape in an emer- indicates (1958), upon the N.L.R.B. 768 which gency storms are such summer —and general outline, the In Board relies. frequent Supervisor in Arizona—the Light dispatchers are load Connecticut requisition any on the to man the Supervi- Company’s Load not unlike the spot and to direct movement. He operations Con- the sors. substаntially every can direct man em- governed by Light utility necticut were ployed by Company. Ohio the See Pow- procedures, of rules and detailed set supra. Co., er He has the including public utilities commis- state consulting anyone decide wheth- without regulations. The sion Board held Con- de-energized, or not the can be line Light’s employees not necticut supervisors, final feasibili- determine generally position it has ty ability to call line- repairs, and the maintained in cases cited Cf., out men West Penn overtime. margin.8 B., F.2d Power Co. R. 337 993 N. L. v. (3rd 1964) (managerial personnel). hand, On the other Cir. assign jobs more are dо and Assistants far more than ac- relay simple supervisors cording than machines. to a or- list them before They effectively operations superiors. field ders from their See Works, during emergencies and after hours. B. Whitin Machine v. revealing 1953); portion (1st most record Fabrica- 883 tors, Precision Cir. tape tran- 204 F.2d 567 before us a condensed R. Inc. v. N. L. pany’s system (1951) operates super ; Elec Texas without 92 1555 N.L.R.B. Co., See 1258 vision. N.L.R.B. Pacific Intermountain Ex tric Service 77 Co., press Light N.L.R.B., (1948) ; 1, 80 412 Power & Co. v. F.2d 4 Carolina Light (10th 1969) ; Greyhound (1948) ; Rockland Eastern Cir. N.L.R.B. 1321 (1947) ; N.L.R.B., (6th Co., 84, 1117 Lines v. F.2d N.L.R.B. 337 87 & Power 72 1964). Co., 1043 N.L.R.B. ‍‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​‌‌​​‌​‌​​​‌​‌​‌​‌​‌​‌​​‌​​‍Illinois Power 70 Co., (1946) ; & Electric Gas Pacific Virginia (1946) ; public utilities, Elec In thе field of N.L.R.B. 258 the Board 69 dispatchers Co., supervisors 271 N.L.R.B. found load not tric & Power 66 Co., supervisors (1946) ; N.L.R.B. Edison 63 be in: Toledo Baltimore Gas Co., ; (1945) ; Elec (1962) &Gas N.L.R.B. 270 and Cincinnati Electric 138 217 (1944). Light Co., Co., Dis & tric 57 N.L.R.B. 1298 Connecticut Power managerial ; patchers (1958) Puget 121 N.L.R.B. were found 768 Sound Co., Co., personnel Maine Power & 117 1825 (1957); Co., (1965). Carbon 151 N.L.R.B. 42 Chemical Carbide

233 (2d Cir. 1953);and bargain solely collected refused with the Union cases i n Supervis ground disagreed supra. on note 8 System emergencies on their ‍‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​‌‌​​‌​‌​​​‌​‌​‌​‌​‌​‌​​‌​​‍Load conclusion that ors most Board’s handle own; implement Load do instruc Assistant not Compare Texas Elec tions from are others. meaning 2(11). trical 77 N.L.R.B. 1258 Section Service сomprehensive Nor are there Supreme us has cautioned regulations guidelines which limit meaning construing Sec- judgment. of individual Com area 2(11), look the Board’s we should pare supra. Light, Finally, Connecticut general “special applying the function of Supervisor’s to subordi directions complexities provisions Act “necessary far than nates are more (N. B. Erie v. industrial life.” L. R. application incidents 221, Corp., 373 U.S. S.Ct. Resistor Westinghouse technical know-how.” (1963)) and that 1139, 10 L.Ed.2d Corp. N. L. Electric v. exper- to Board owe “deference courts 1151, par- applying tise terms utility Mining helpful Dis- than the cases on More facts”. Hanna Co. ticular 181, Engineers, the Board relies cases involv- U.S. trict Marine ing dispatchers.9 transportation 15 L.Ed.2d bus 86 S.Ct. emphasis placed In these cases emergencies supervisors’ during role case, Where, instant substan- failure, by weather, caused mechanical a whole the rеcord as tial evidence on personnel problems. he is When findings, court supports this the Board’s dispatch- terminal,

alone in the the bus opinion not substitute should er, Supervisor hours, like the after must Board. juggle routes, men, depart maneuver operators he from routine whenever necessity, it is

feels warranted. Of here routing field,

men in the sometimes through superiors. directives nominal effective exercise of though supervisory nonetheless it HAINES, Appellant, Raymond C. passed through another Greyhound employee. v. Eastern Lines Secretary America, UNITED STATES Air Force. supervisory power Nor is it less non-demanding it is because couched 18511. No.

terms.10 Appeals, States United Accordingly, the Board’s Decision and Circuit. Third supplemented Order as is reversed. 21, 1971. Sept. Argued 30, 1971. Dec. Decided BYRNE,

WILLIAM M. Judge (dissenting): respectfully ‍‌‌‌‌‌​​​​​​​​​‌​‌‌​‌​​‌‌​​‌​‌​​​‌​‌​‌​‌​‌​‌​​‌​​‍dissent. practice practical-

The unfair labor

ly conceded. admits pur cuting Express, the sale See, g., contracts

9. e. Intermountain Pacific utilities, Greyhound, supra; other supra; Eastern New chase this rea City Corp., N.L.R.B. York Omnibus Maine son also. Cf. the Assistant Load Since pledge exe- also credit

Case Details

Case Name: Arizona Public Service Company v. National Labor Relations Board

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 15, 1971

Citation: 453 F.2d 228

Docket Number: 71-1183

Court Abbreviation: 9th Cir.