Maine Yankee Atomic Power Co.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 832 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maine Yankee Atomic Power Company and Utility
Workers Union of America, AFL-CIO and
Utility Workers of America, AFL-CIO, Local
Union No. 497. Cases 1-CA-164381 and 1-
CA-16939
September 30, 1981
DECISION AND ORDER REMANDING
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 19, 1980, Administrative Law
Judge William F. Jacobs issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
The complaint alleges that Respondent violated
Section 8(a)(1) and (5) of the National Labor Rela-
tions Act, as amended, by unilaterally creating the
position of stores inventory coordinator and trans-
ferring some duties of unit employees to the new
position which it placed outside the unit. There is
no question that Respondent created the new posi-
tion and did so without bargaining. The General
Counsel contends that the stores inventory coordi-
nator is within the production and maintenance
unit and that Respondent was, therefore, obligated
to bargain with the Union about the creation of the
position. Respondent contends that the position is
outside the unit. In its brief to the Administrative
Law Judge, Respondent further contends that, if
the position is found to be within the unit, then the
matter of its bargaining obligation should be decid-
ed under the binding grievance-arbitration proce-
dure of the parties' collective-bargaining agree-
ment. The Union did file a grievance over the
matter contending that Respondent's actions violat-
ed the contract, particularly article 9 which pro-
vides that the Company will discuss rates of pay
for new jobs with the Union and any dispute will
be subject to the grievance procedure. The Union
did not take the grievance to arbitration, but filed
the charges herein.
The Administrative Law Judge considered Re-
spondent's further contention to be a request for
deferral to arbitration, cited a part of the contrac-
'The General Counsel's motion to withdraw the substantive allega-
tions in Case I-CA-16438 was granted on August 11, 1980.
258 NLRB No. 112
tual management-rights clause which provides that
disputes over the exercise of those rights "shall be
subject to the grievance and arbitration proce-
dure," and deferred this case to arbitration pursu-
ant to Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971). Accordingly,
the Administrative Law Judge dismissed the com-
plaint in its entirety subject to possible review of
the arbitration. We do not agree.
For the following reasons, we find that Respond-
ent has neither substantively nor adjectively raised
a proper defense for deferral under Collyer, supra.2
Respondent has not requested that the complaint
allegations herein be deferred to arbitration.
Rather, Respondent requests that, if the stores in-
ventory coordinator is found to be within the unit,
then "the parties should be directed" to follow the
grievance-arbitration procedures. Thus, Respondent
at no time has requested deferral of the basic un-
derlying issue of whether the stores inventory co-
ordinator is in or out of the unit. Accordingly, Col-
lyer deferral is inappropriate. In addition, Respond-
ent did not raise the issue of arbitration in its plead-
ings or at the hearing but first raised it in its brief
to the Administrative Law Judge. Thus, as the
issue was not litigated at the hearing, the record
evidence before us is insufficient for a finding that
deferral is warranted. MacDonald Engineering Co.,
202 NLRB 748 (1973). Accordingly, we find no
basis for deferring this case to arbitration and shall
remand it to the Administrative Law Judge for a
full decision on the merits and such recommended
Order as he deems appropriate.
ORDER
It is hereby ordered that this proceeding be, and
it hereby is, remanded to the Administrative Law
Judge for a full decision on the merits of the alle-
gations of violations of the Act set forth in the
complaint and for such recommended Order as he
finds necessary and proper.
2 Members Fanning and Jenkins would not in any event defer to arbi-
tration in this proceeding for the reasons set out in their dissenting opin-
ions in Collyer.
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: The
charge in Case -CA-16939 t was filed on December 7,
1979, by the Utility Workers Union of America, AFL-
CIO, Local Union No. 497, hereafter called the Union.
The consolidated complaint issued on February 4, 1980,
'The General Counsel's motion to withdraw the substantive allega-
tions in Case I-CA-16438 was granted on August 11, 1980.
832
MAINE YANKEE ATOMIC POWER CO.
alleging that Maine Yankee Atomic Power Company,
herein called Respondent, violated Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended, by
unilaterally creating the position of stores inventory co-
ordinator and transferring some of the duties of the
stockkeeper and assistant stockkeeper unit classifications,
to the newly created classification which it placed out-
side the unit. The consolidated cases were heard before
me on March 18 and 19, 1980, in Augusta, Maine.
The General Counsel and Respondent were represent-
ed at the hearing and were afforded full opportunity to
be heard and to present evidence and argument. Briefs
were filed both by the General Counsel and Respondent
and have been duly considered. Upon the entire record,
my observation of the demeanor of the witnesses, and
upon due consideration of the briefs, 2 I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Maine corporation with its principal
office and place of business in the town of Wiscasset,
Maine, is engaged in the operation of a nuclear power
plant. In the course and conduct of its business Respond-
ent causes and has continuously caused large quantities
of goods and materials used by it in the production of
electricity to be purchased and transported in interstate
commerce from and through various States of the United
States other than the State of Maine. Respondent, a
public utility, annually has a gross volume of business in
excess of $250,000 and purchases and receives goods and
materials in excess of $50,000 directly from points out-
side the State of Maine. The complaint alleges, the
answer admits, and I find that Respondent is, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On June 21, 1972, Utility Workers Union of America,
AFL-CIO, was certified as the exclusive representative
of all the employees of Respondent in the following pro-
duction and maintenance unit:
All probationary and permanent hourly operating
and maintenance employees of the Employer at its
Wiscasset location, but excluding office clerical em-
ployees, professional employees, guards, supervisory
control room operators and supervisors as defined
in the Act.
2 The General Counsel's motion to correct the record, being unop-
posed. is hereby granted.
Since that date the parties have engaged in good-faith
bargaining resulting in the execution of a series of collec-
tive-bargaining agreements, the most recent and relevant
contract being effective from September 30, 1977,
through October 1, 1980. This contract contains the fol-
lowing management-rights provision:
ARTICLE 3
MANAGEMENT
Section I
The management shall have the right to super-
vise, direct, schedule, assign, transfer, and promote
its employees to meet the needs of the business in
the efficient conduct and operation of its plant, the
right to suspend, demote or discharge for proper
cause, or furlough because of lack of work, the
right to hire, to determine the need for filling a va-
cancy and to discipline, all subject to the provisions
of this Agreement. If the Union claims that the
Company did not have proper cause for suspending,
discharging or demoting an employee or if the
Union claims that the Company has exercised any
of the other foregoing rights in a capricious or arbi-
trary manner, such claims shall be subject to the
grievance and arbitration procedure set forth in Ar-
ticle 18.
Section 2
All other rights and management responsibilities
not otherwise referred to herein shall remain with
the Company, including the right to change any of
its operations, or the nature of its business or its
method of doing business, including change in job
content, subject to Section 3 of Article 9.
Note that the above-cited portions of the management-
rights provision includes by reference certain portions of
article 9 which deals with wages:
ARTICLE 9
WAGES
Section I
Subject to other provisions of this Agreement,
wages shall be paid employees in each class of serv-
ice in accordance with Appendix A.
Section 2
Should a new job be established, the Company
shall first discuss the proposed rate with the Union.
If no agreement is reached, the Company shall
notify the Union that it is establishing the rate sub-
ject to the Union's right of objection as set forth
below. If the Union does not object to the rate
within thirty (30) calendar days after it receives the
notice above referred to, the rate shall be consid-
ered as approved. If the Union objects to the rate
within the thirty (30) day period, the matter will be
regarded as a grievance under the grievance and ar-
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bitration procedure of this Agreement. Should it be
determined that the rate is incorrect, the rate shall
be adjusted retroactively to the date when the rate
first became effective.
Section 3
The rates of pay for the classifications contained
in the schedule of wages shall not be changed or
amended during the life of this Agreement except
that if the Company makes a substantial change in
the job content of a classification justifying a
change in the wage rate, a dispute over the rate will
be subject to the grievance and arbitration proce-
dure under Article 18.
Finally, it should also be noted that the management-
rights clause also includes, by reference, article 18 which
is the grievance-and-arbitration provision of the contract.
According to this provision the decision of the arbitra-
tion board "shall be binding on both parties."
B. The Facts
Under the contract, among the employees represented
by the Union are those employed in the stores depart-
ment. Classifications of these employees include stock-
keeper and assistant stockkeeper.3 There is no dispute be-
tween the parties as to this fact.
According to Peter L. Anderson, Respondent's admin-
istrative department head, the store department maintains
the stores inventory system, the objective of which is to
insure that the Company has on hand an adequate quan-
tity of spare part materials to keep the plant operating.
Up until June 1979 the stores department consisted of a
stores supervisor, stockkeeper, and assistant stockkeeper,
the latter two classifications being in the bargaining unit.
Sometime prior to June 1979, Respondent decided to
computerize its stock inventory system, to modernize the
ledger type system of stock control previously used. In
order to facilitate the changeover from one system to the
other, it was decided that a new position should be cre-
ated entitled "stores inventory coordinator," that this
new position should be filled by one of the stockkeepers,
and that the rate for the job should be 30 cents per hour
over the wage rate then paid to the stockkeepers. It was
also determined that because of the "depth of the job
content" and "responsibility" this job should not be one
included within the bargaining unit.
On June 12, 1979, Plant Manager Edwin C. Wood in-
formed the Union's president, Donald Caron, that man-
agement was thinking of opening a new position in the
stockroom and that the person holding the new position
would be taking charge of the inventory in the stock-
room. He would, Wood told Caron, be more directly re-
sponsible for the inventory, seeing that the minimum and
maximum allowable items were on the shelves and
issued. He would also be doing general stockwork that
had been done before in the stockroom. Caron opined
that the position described by Wood was like the work
already being done in the stockroom by the assistant
stockkeeper, John Harvey. Caron added that he would
I Appendix A of the contract.
like to sit down and negotiate with Wood concerning the
new position.
The same afternoon that the above conversation be-
tween Wood and Caron took place, Caron saw a copy of
the following notice posted on the bulletin board:
MEMORANDUM
June 12, 1979
FILE 14,8.2
TO: Distribution
FROM: E.C. Wood
SUBJECT: Promotion
It is my pleasure to announce the promotion of
Floyd Bolstridge 4 to the position of Stores Inven-
tory Coordinator. Mr. Bolstridge's promotion will
be effective June 17, 1979.
The Stores inventory system is presently under-
going modification to eventually incorporate an on-
line computerized system. Part of Floyd's new re-
sponsibilities will be to help establish and implement
this new system.
I wish Floyd the best of luck in this new position
and I'm sure he'll receive the cooperation and sup-
port of all personnel.
E.C. Wood /s/
Plant Manager
On or about June 27 Caron received notice that Bol-
stridge had canceled his authorization for the Company
to deduct union dues from his pay. On August 3 Caron
filed the following grievance:
Description of grievance: The Company informed me
that Mr. F. Bolstridge was no longer a member of
Local 497; Because he was promoted to "Stores In-
ventory Coordinator." To the best of my knowl-
edge this position is still within the bargaining unit.
The Company has created a new job and there-
fore has violated Article 9, Section 2 and Article 1,
Section & 2, and all other relevant articles and
material.
/s/D.A. Caron, For Local 497
Date: Aug. 3, 1979
This grievance was personally presented to Wood by
Caron on August 3 at a meeting during which the new
position of stores inventory coordinator was discussed.
Whereas Caron insisted that the new position belonged
in the production and maintenance unit, Wood took the
position that it would be in the newly certified residual
unit,5 also represented by the Union.
Subsequently, sometime in November, a second meet-
ing took place between representatives of the Union and
of management at which the stores inventory coordina-
tor's job was discussed. At this meeting Wood presented
Caron with a job description of the new position. The
' Bolstridge was, at the time, a stockkeeper.
The residual unit no longer exists.
834
MAINE YANKEE ATOMIC POWER CO.
job description was thoroughly discussed at this time.
Caron stated that in his opinion the job description de-
scribed a leadman job within the production and mainte-
nance unit. Wood disagreed and further discussion took
place as to whether the problem should be placed before
the National Labor Relations Board in a unit clarification
proceeding or before an arbitration board as per the con-
tract. The Union took the position that inasmuch as it
was low in finances at the time, it would be difficult for
it to go to arbitration. Whether it was the cost of arbi-
trating or some other reason, that particular avenue was
not pursued. Rather, as noted earlier, the Union filed the
charge in the instant case on December 7, 1979, in effect,
burdening the Government with the job of interpreting
its contract with the company-a job which, in my opin-
ion, it had agreed to leave to arbitration.
Certain stipulations were entered into by the parties at
the hearing. First, that Respondent created the position
of stores inventory coordinator in or about May or June
1979; second, that Respondent created the position of in-
ventory coordinator without notice to the Union and
without affording the Union an opportunity to bargain
over the creation of that position.
At the hearing, the General Counsel took the position
that by the creation of the position of stores inventory
coordinator Respondent made impermissible unilateral
changes in the stores department in violation of Section
8(a)(5) and (I) of the Act. Counsel for the General
Counsel then adduced testimony designed to show that
the functions performed by the newly appointed stores
inventory coordinator are essentially the same as those
performed by the stockkeeper and assistant stockkeeper,
both unit positions. She then argued that the stores in-
ventory coordinator must of necessity therefore be con-
sidered a part of the production and maintenance unit
thus obligating Respondent to bargain over the creation
of this position.
Counsel for Respondent, at the hearing, took the posi-
tion that the creation of the position of stores inventory
coordinator was an attempt on the part of the Company
to expand the number of administrative aides in its
employ, a position not included within the production
and maintenance unit. To support Respondent's position,
counsel adduced evidence designed to show that the es-
tablishment of the new position had little or no impact
on the existing bargaining unit. She argued that the
action taken by the Company in creating the new posi-
tion fell within the realm of management prerogative and
that the Company could therefore justifiably take such
action unilaterally. She further argued that the operation-
al change undertaken by the Company was made for le-
gitimate and pressing business considerations and was
part of the Company's continuing practice of improving
its operating procedures. Respondent's counsel urged
that the Company be permitted to continue to exercise
the normal prerogatives of management.
From the position statement made at the hearing by
Respondent's counsel and from the testimony she ad-
duced through her witnesses, it is abundantly clear that
Respondent was relying, at least in part, on the con-
tract-the management-rights provisions, the wage pro-
vision, and the arbitration provision-to contend that the
matter at hand is better suited to resolution through the
proceedings outlined in the contract than through Board
proceedings. In effect, although cases were not cited at
the time, Respondent, in the absence of a total dismissal
of the case on the merits, was requesting that this case be
"Collyerized.6 Further, Respondent perfected and clari-
fied this request in its brief, both by argument and cita-
tion, that in the absence of an outright dismissal of the
case on the merits, the matter should, in accordance with
controlling case law, be decided by an arbitrator, as per
the contract.
After giving due consideration to the arguments of
both parties, and without making any determination as to
the merits of the case, I find that the threshold question
of procedure should be decided in favor of Respondent's
contention. Thus, the management prerogative provision
of the contract, cited above, states that Respondent has
the power to make certain decisions concerning its "right
to . . . transfer . . . its employees to meet the needs of
the business in the efficient conduct and operation of its
plant . . ." The same provision states that "if the Union
claims the Company has exercised any of the other fore-
going rights in a capricious or arbitrary manner, such
claims shall be subject to the grievance and arbitration
procedure set forth in Article 18." Article 18 provides
that the decision of the arbitrator "shall be binding upon
both parties."
The Board, in a case' remarkably similar to the instant
case both as to facts and circumstances, stated as follows:
In these circumstances, for the reasons stated in
Collyer Insulated Wire, 4 Gulf and Western Systems
Co., 192 NLRB 837 (1971), we conclude that the
policy of promoting industrial peace and stability
through collective bargaining warrants our requir-
ing the parties to honor the contractual grievance
and arbitration obligation that they themselves have
voluntarily established under binding commitment,
and we shall issue an order to that effect.
If Collyert is still a viable doctrine, following the issu-
ance of subsequent modifying decisions,9 it is, in my
opinion certainly applicable to the instant case. I shall
therefore recommend dismissal of the complaint subject
to the usual safeguards.
Upon the foregoing findings and conclusions and upon
the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER"
The complaint is dismissed in its entirety except that
jurisdiction of this case is hereby retained solely for the
6 Collyer Insulated Wire,. A Gul' and Wesstern Systems, Co.. 192 NLRH
837 (1971).
7Titus- Will lord Sales. Inr.. 197 NLRB 147 (1972)
s Collyer Insulated Wire. supra.
9 Cf. General .4merican transportation Corporation. 228 NLRB 808
(1977) Roy Robinvon. Inc. d/h/a Roy Robinson Chevrolet, 228 NLRB 828
(1977).
'o Titus- Will brd Sales. Inc.. upra.
" In the event no exceptions are iled as prosided b) Sec 102.46 if
the Rules and Regulatitons of the Nalional l.abor Relations Board. the
Conltinured
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of entertaining an appropriate and timely motion
for further consideration upon a proper showing that (a)
the dispute has not, with reasonable promptness after the
issuance of this Decision, either been resolved by amica-
ble settlement in the grievance procedure or submitted
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
promptly to arbitration, and (b) the grievance or arbitra-
tion procedures have not been fair and regular or have
reached a result which is repugnant to the Act.
836