Arizona Public Service Company v. National Labor Relations Board

453 F.2d 228 79 L.R.R.M. (BNA) 2099 , 67 Lab.Cas. P 12,303 ARIZONA PUBLIC SERVICE COMPANY, Petitioner-Appellant, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Appellee. No. 71-1183. United States Court of Appeals, Ninth Circuit. Dec. 15, 1971. Frederick K. Steiner, Jr. (argued) of Snell & Wilmer, Phoenix, Ariz., for petitioner-appellant. Howard C. Hay, N. L. R. B., Washington, D. C. (argued), Anderson D. Ward, Phoenix, Ariz. (argued) (for IBEW Local 387), Eugene G. Goslee, Acting Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., N. L. R. B., Washington, D. C., for respondent. Jennings, Strouss & Salmon, Phoenix, Ariz., amicus curiae for Salt River Project Agricultural Improvement & Power District. Before WRIGHT and CHOY, Circuit Judges, and BYRNE, Sr., District Judge. * CHOY, Circuit Judge: 1 * 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…

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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…

(dissenting):

I respectfully dissent.

The unfair labor practice is practically conceded. The Company admits it refused to bargain with the Union solely on the ground that it disagreed with the Board’s conclusion that the System Load Supervisors and Assistant System Load Supervisors are not supervisors within the meaning of Section 2(11).

The Supreme Court has cautioned us that in construing the meaning of Section 2(11), we should look to the Board’s “special function of applying the general provisions of the Act to the complexities of industrial life.” (N. L. R. B. v. Erie Resistor Corp., 373 U.S. 221 , 83 S.Ct. 1139 , 10 L.Ed.2d 308 (1963)) and that courts owe “deference to Board expertise in applying statutory terms to particular facts”. Hanna Mining Co. v. District 2, Marine Engineers, 382 U.S. 181, 190 , 86 S.Ct. 327 , 15 L.Ed.2d 254 (1965).

Where, as in the instant case, substantial evidence on the record as a whole supports the Board’s findings, this court should not substitute its opinion for that of the Board.