Arizona Public Service Company v. National Labor Relations Board

453 F.2d 228, 79 L.R.R.M. (BNA) 2099, 1971 U.S. App. LEXIS 6614
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 15, 1971
Docket71-1183
StatusPublished
Cited by36 cases

This text of 453 F.2d 228 (Arizona Public Service Company v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arizona Public Service Company v. National Labor Relations Board, 453 F.2d 228, 79 L.R.R.M. (BNA) 2099, 1971 U.S. App. LEXIS 6614 (9th Cir. 1971).

Opinions

CHOY, Circuit Judge:

I

Arizona Public Service Company (the Company) is a natural gas and electricity utility serving customers throughout Arizona. The Company’s electrical system generates power at several plants, and it buys and sells electrical power pursuant to contracts with other southwestern utilities. The Company headquarters are in Phoenix, and a smaller office is maintained in Flagstaff. Since 1945, the Company has recognized the International Brotherhood of Electrical Workers, Local Union No. 387 (the Union) as the exclusive bargaining representative of its production and maintenance employees.

In 1969, the Union sought an NLRB order directing an election among the Company’s nine System Load Supervisors (Supervisors) and ten assistant System Load Supervisors (Assistants or Assistant Supervisors). The Company resisted arguing that these employees were all “supervisors” within the meaning of § 2(11) of the National Labor Relations Act, 29 U.S.C. § 152(11), (the Act), and not entitled to the Act’s protection. Relying on The Connecticut Light & Power Co., 121 N.L.R.B. 768 (1958), the Board unanimously held that neither the Supervisors nor the Assistant Supervisors responsibly directed other employees and that, therefore, they were not § 2(11) “supervisors.” 182 N. L.R.B. #72 (1970). The Board then directed an election, which the Union won. The Supervisors and Assistants were then included, in compliance with the Board’s order, within the production and maintenance bargaining unit, and the Union was certified as their exclusive bargaining representative.

The Company, however, refused to bargain with the Union as the representatives of these employees. The Union petitioned for a Board order directing the Company to bargain. Although the Company contended that since the representation proceedings, it had altered and clarified the status and duties of the Supervisors and Assistant Supervisors to make them more clearly statutory “supervisors,” the Board entered summary judgment for the Union, finding that the Company had engaged in unfair labor practices1 and ordered the [230]*230Company to bargain with the Union.2 188 N.L.R.B. #1 (1970). The Company again refused, and petitioned under § 10(f), 29 U.S.C. § 160(f), for review of the Board’s order. The Board cross-petitioned for enforcement of its order under § 10(e), 29 U.S.C. § 160(e).3 We deny enforcement because the employees in question are supervisors within the meaning of § 2(11).

II

The National Labor Relations Act protects the self-organization and collective bargaining of “employees,” which term excludes “. . . any individual employed as a supervisor.” § 2(3), 29 U.S.C. § 152(3). “Supervisor” is in turn defined in § 2(11).

“(11) The term ‘supervisor’ means any individual having authority, in the interest of the employer, (1) to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or (2) responsibility to direct them, or (3) to adjust their grievances, .or (4) effectively to recommend such action, (5) 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.” (italicized numbers added)

Section 2(11) is to be read in the disjunctive, and the presence of any one of the enumerated powers is sufficient to render an employee a “supervisor.” N. L. R. B. v. Fullerton Publishing Co., 283 F.2d 545, 548 (9th Cir. 1960). The statute turns upon the existence of a power and not the frequency of its utilization. For example, an employee who has the power to fire and hire other employees is nonetheless a supervisor though he has never exercised that power. See Ohio Power Co. v. N. L. R. B., 176 F.2d 385 (6th Cir. 1949). While the statutory tests are clear, the ultimate determination of supervisory status depends upon a close scrutiny of the job actually performed by the employees in question.4 The Board is accorded a large measure of discretion in weighing the subtle differences between jobs, and its determination is accorded considerable judicial deference. N. L. R. B. v. Swift and Co., 292 F.2d 561 (1st Cir. 1961). However, the Board’s finding of fact that the employees are not supervisors is subject to the scrutiny of judicial review. Universal Camera Corp. v. N. L. R. B., 340 U. S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Only if we can conscientiously say that the record considered as a whole supports the Board’s finding must we affirm. Universal Camera, supra, at 488, 71 S.Ct. 456, 95 L.Ed. 456.

III

The Company does not contend that the Supervisors and Assistant Supervisors have the authority to “hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees,” or the power effectively to recommend such action.5 It [231]*231does say, however, that these employees have the authority responsibly to direct other employees and such direction is not routine. We agree.

The Company’s Supervisors and Assistant Supervisors have very few of the outward indicia of supervisory status.6 A license is not required for their position and the sole scholastic proficiency desired is a knowledge of mathematics. They receive on-the-job training. Although regular meetings are held to discuss the problems and procedures of the system, these are not training meetings, and neither the Supervisors nor the Assistant Supervisors attend meetings of the Company’s managerial staff. They have no hand in determining Company policy.

In the abstract, it may seem that these employees perform routine functions requiring skill and ability, but do little more than supervise the use of sophisticated machines. However, the record as a whole, extending beyond static job descriptions, demonstrates that these employees have supervisory authority.

First, the Company considers these men supervisors. Thomas G. Woods, Jr., vice-president of management services, testified that the Supervisors had a “clear delegated authority over virtually everybody in the company.” And W. P. Reilly, the Company’s president, stated that the Company delegated authority to the Supervisors in System Load Dispatch “. . . to operate the system, operate it efficiently, to operate it in the best economic manner and in a safe manner . . .” Reilly said that the Supervisors exercised this power on a day-to-day basis, and other employees were instructed to comply promptly with SLD directives.

Second, the Company’s other employees consider these men supervisors.

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Bluebook (online)
453 F.2d 228, 79 L.R.R.M. (BNA) 2099, 1971 U.S. App. LEXIS 6614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arizona-public-service-company-v-national-labor-relations-board-ca9-1971.