Notice: Fourth Circuit I.o.p. 36.6 States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit, 976 F.2d 725 (4th Cir. 1992)

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U.S. Court of Appeals for the Fourth Circuit - 976 F.2d 725 (4th Cir. 1992) AMERICAN ELECTRIC POWER COMPANY, and its subsidiaries;Columbus Southern Power Company, formerly known as Columbus& Southern Ohio Electric Company; Kentucky Power Company;Appalachian Power Company; Indiana Michigan Power Company,formerly known as Indiana Michigan Electric Company;Kingsport Power Company; Michigan Power Company; OhioPower Company, Petitioners,v.NATIONAL LABOR RELATIONS BOARD, Respondent,LOCAL UNION 1466; Local Union 978; Local Union 1392;Local Union 934; Local Union 876; Local Union981, International Brotherhood ofElectrical Workers, Intervenors.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.AMERICAN ELECTRIC POWER COMPANY, and its subsidiaries;Columbus Southern Power Company, formerly known as Columbus& Southern Ohio Electric Company; Kentucky Power Company;Appalachian Power Company; Indiana Michigan Power Company,formerly known as Indiana Michigan Electric Company;Kingsport Power Company; Michigan Power Company; Ohio PowerCompany, Respondents,LOCAL UNION 1466; Local Union 978; Local Union 1392;Local Union 934; Local Union 876; Local Union981, International Brotherhood ofElectrical Workers, Intervenors

Nos. 91-1605, 91-1664.

United States Court of Appeals,Fourth Circuit.

Argued: November 1, 1991Decided: October 1, 1992

On Petition for Review and Cross-application for Enforcement of an Order of the National Labor Relations Board.

John Albert McGuinn, SCHMELTZER, APTAKER & SHEPARD, Washington, D.C., for Petitioners.

Margaret G. Bezou, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent.

Robert David Kurnick, SHERMAN, DUNN, COHEN, LEIFER & YELLIG, Washington, D.C., for Intervenors.

Gary L. Leiber, Katherine K. Brewer, SCHMELTZER, APTAKER & SHEPARD, Washington, D.C.; Frederic Sagan, AMERICAN ELECTRIC POWER SERVICE CORPORATION, Columbus, Ohio, for Petitioners.

Jerry M. Hunter, General Counsel, D. Randall Frye, Acting Deputy General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Howard Perlstein, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent.

REVIEW DENIED, ORDER ENFORCED.

Before WIDENER and LUTTIG, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

PER CURIAM:


OPINION

American Electric Power Company and its subsidiaries (hereinafter collectively referred to as AEP) seek review of an order of the National Labor Relations Board (NLRB or Board). The Board concluded that AEP had violated section 8(a) (5) and (1) of the National Labor Relations Act (29 U.S.C. § 158(a) (5) and (1)) by issuing a Corporate Code of Ethics (the Code) and a revised Code of Ethics (the Revised Code) without giving notice and an opportunity to bargain to the Union. We now grant enforcement of the Board's order and deny the petition for review of AEP.

American Electric Power owns a number of subsidiary companies, including AEP Service Corporation and the seven operating companies named in this action, Columbus Southern Power Company, Kentucky Power Company, Appalachian Power Company, Indiana Michigan Power Company, Kingsport Power Company, Michigan Power Company, and Ohio Power Company. The operating companies generate and transmit electricity. Local Unions 1466, 978, 1392, 934, 876 and 981 of the International Brotherhood of Electrical Workers (the Union) represent production and maintenance employees at the various operating companies.

In 1980, AEP issued a 14-point Corporate Code of Ethics which applied to all of the operating companies. The first 13 items in the Code included, but were not exclusively with respect to, such matters as reaching business decisions solely on merit, accepting favors or gifts, using company funds or assets or services for unlawful purposes, making false entries in books, participating in a political action committee, moonlighting, and the obligation to report any violation of the Code of Ethics on the part of another employee. The 14th part provided:

"The foregoing guidelines apply not only to each employee as an individual but also to his/her family and to entities to which he/she has an interest."

In 1987, while this case was pending before the Board, AEP deleted part 14 and reworded parts 3, 5, 6, 9, 10, 11 and 13.

Without attempting to explain in detail all the provisions of the Code, it is undoubtedly true that the Code, taken as a whole, concerned terms and conditions of employment, the unquestioned statutory standard for requiring collective bargaining, which was not attempted by AEP.

The Board held the 1980 version of the Code to be void for overbreadth in view of paragraph 14, and we agree.

We are further of opinion there is substantial evidence to support the Board's conclusion that paragraphs 1 through 13 of the Revised Code suffer from the various infirmities of vagueness, ambiguity, overbreadth, and not being limited to affected employees, as stated by the Board on page 8 of its opinion.

The petition of AEP for review is accordingly

DENIED.

The petition of the Board for enforcement is accordingly

GRANTED.