Maine Yankee Atomic Power Co.

National Labor Relations Board - Board Decisions

Jan 5, 1979

239 N.L.R.B. 1216 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maine Yankee Atomic Power Co. and Utility Workers
Union of America, AFL-CIO, Petitioner. Case I-
RC- 15704
January 5, 1979
DECISION ON REVIEW AND DIRECTION
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On August 7, 1978, the Acting Regional Director
for Region I issued his Decision and Direction of
Elections in this case in which he ordered that a sepa-
rate election should be conducted to determine
whether professional employees wished to be joined
with the existing production and maintenance unit or
whether they wished to constitute a separate unit.
Thereafter, pursuant to the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
the Employer filed a timely request for review of the
Acting Regional Director's decision, contending, in-
ter alia, that he had departed from precedent and
made findings of fact that were clearly erroneous by
including in the requested unit several classifications
which the Employer contends are supervisory.'
By telegraphic order dated August 23, 1978, the
National Labor Relations Board granted the request
for review insofar as it related to the supervisory sta-
tus of the classifications of stores supervisor, radio-
logical controls supervisor, radio chemist, secondary
systems chemist, and the shift operating supervisors.2
Pursuant to the provisions of Section 3(b) of the
The Employer has requested oral argument. This request is hereby de-
nied as the record, the briefs, and the statements of position adequately
present the issues and positions of the parties.
2 On August 23, 1978, the Employer telegraphically filed a motion object-
ing to the manner in which the votes cast in the election would be tabulated
and requesting the Board to direct the Regional Director to follow in alter-
native procedure. The Acting Regional Director set forth in his decision that
the election herein would be conducted in two separate groups of employ-
ees: group A. consisting of all residual nonprofessional employees, and
group B, consisting of all professional employees. Group B had the follow-
ing two questions on its ballot: (I) "Do you desire to be included in a unit
of all production and maintenance employees at the Employer's Wicasset.
Maine Power Plant for the purposes of collective bargaining?"; and (2) "Do
you desire to be represented for the purposes of collective bargaining by the
Utility Workers of America, AFL-CIO?" The Acting Regional Director
initially informed the Employer that if a majority of employees in group B
answered question (I), supra, in the affirmative, then the ballots of both
groups would be commingled and counted together to determine the overall
representation issue. Subsequently, the Regional Director informed the par-
ties that the votes of the professionals and the nonprofessional residuals
would be counted separately; i.e., there would be no commingling of ballots
if the answer to question (I) in group B was affirmative. The Employer
contends that the change in the manner which the ballots are tabulated
would be "utterly confusing" to the voters. We reject the Employer's con-
tention and deny the motion to alter the means by which the votes are
tabulated. In our view, the procedures announced by the Regional Director
are fully consistent with the principles of different "group" voting enunci-
ated by the Board in Sonotone Corp., 90 NLRB 1236 (1950) Furthermore.
the procedures by which the votes are tabulated are unrelated to the process
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 entire record in this
case with respect to the issues under review and
hereby makes the following findings:
The Employer operates a nuclear power facility in
Wicasset, Maine. Petitioner, Utility Workders of
America, currently represents approximately 59 pro-
duction and maintenance employees at the Wicasset
plant. By the instant petition, Petitioner seeks to add
to the existing production and maintenance unit all
of the plant's professional employees and all techni-
cal, plant clerical, and other employees exclusive of
office clerical employees.
The Acting Regional Director found that the clas-
sifications of shift operating supervisor, stores super-
visor, radiological controls supervisor, radio chemist,
and secondary systems chemist were nonsupervisory
positions and that employees in these classifications
were eligible to vote in the election. In making this
determination, the Acting Regional Director essen-
tially found that, while employees in the above classi-
fications were vested with a high degree of technical
and/or professional skills, they did not possess or ex-
ercise any of the traditional indicia of actual supervi-
sory authority.
In disputing the Acting Regional Director's find-
ings, the Employer asserts that the disputed classifi-
cations are all supervisory positions, and all the indi-
viduals in the disputed classifications possess at least
some indicia of supervisory authority.
After a careful and independent examination of
the record herein, we agree with the Acting Regional
Director that the classifications of radiological con-
trols supervisor, radiochemist, secondary systems
chemist, and shift operating supervisor are nonsuper-
visory in nature and, as such, the votes of these em-
ployees should be opened and counted. Contrary to
the Acting Regional Director, however, we find that
the position of stores supervisor is a supervisory one
and should be exlcuded from the unit.
Initially, with respect to the position of radiologi-
cal controls supervisor, the record discloses that this
classification (along with the secondary systems
chemist and the radiochemist, to be discussed, infra)
is within the chemistry and health physics depart-
ment of the power plant's organizational structure.
The department head, David Sturniolo, directs three
separate operations within this department: fire pro-
tection, health and safety, and chemistry and health
physics. The chemistry and health physics depart-
ment is responsible for the monitoring, testing, and
of casting a ballot on the questions presented, and therefore no confusion
could have occurred as a result thereof.
!216
MAINE YANKEE ATOMIC POWER CO.
analytical functions as they relate to and have an
impact on radiation, health, and operational systems
controls.
Under the overall direction of Department Head
Sturniolo, the operations of the chemistry and health
physics department are divided functionally between
the radiological controls supervisor, the secondary
systems chemist, and the radiochemist. There are
also four technicians assigned to the department who
perform routine chemistry and health physics tests.
The Employer contends that the radiological con-
trols supervisor, Gary Cochrane, possesses superviso-
ry authority by virtue of the fact that he assigns work
to the four technicians in the department, evaluates
those employees, and is involved to some extent in
the hiring and promotional process. An examination
of the record, however, reveals that the technicians
are assigned to their various duties by Department
Head Sturniolo on an annual basis, with few varia-
tions taking place once the annual assignments have
been made.
With regard to the evaluation of the four techni-
cians, it is clear that Cochrane's role in the evalua-
tion process is minimal at best. It appears that, in this
highly technical atmosphere, Cochrane's role is more
akin to a collegial passing on various employees as to
their progress in their roles and the "compatibility."
In any event, the record discloses that it is Sturniolo
who makes the final determinations with respect to
evaluations and approves and signs any evaluation
prepared. Finally, there is nothing in the record be-
yond the Employer's conclusionary assertions to es-
tablish the effectiveness of Chochrane's input into
the evaluation process.
In terms of the alleged direction of the technicians
by Cochrane, it must be noted initially that the work
performed by them is basically routine and repetitive
in nature, requiring little in the way of actual "direc-
tion" by anyone. Thus, whatever "direction" the
technicians require is normally nothing more than a
consultation with Cochrane on a professional or
technical basis. While the Employer argues that Co-
chrane is perceived by the technicians in his depart-
ment as a supervisor, no technicians testified on this
point, and the supervisory perception was that of Da-
vid Sturniolo, the department head.
Overall, the record is clear that Cochrane does not
hire, fire, promote, layoff, adjust grievances, or make
effective recommendations with respect to these per-
sonnel actions. Accordingly, we find that he is not a
supervisor within the meaning of Section 2(11) of the
Act.
The Employer further contends that the position
of radiochemist is a supervisory one based on the
radiochemist's alleged role in the hiring and evalua-
tion process and the purported direction of techni-
cians assigned to the chemistry sections of the chem-
istry and health physics department. As with the
technicians who work with the radiological controls
supervisor, the work of the chemistry technicians is
of a routine nature and is assigned initially by the
department head. Like the radiological controls sup-
ervisor, the participation of the radiochemist in the
hiring and evaluation process rises to the level of in-
formal consultation at the most. In fact, the individ-
ual occupying the position of radiochemist testified
that he had informed an employee that his work had
improved substantially and thtat, in his (the
radiochemist's) opinion, the employee should have
no trouble with his evaluation. The employee was
fired 2 days after this conversation. Thus, it can
scarcely be said that the radiochemist makes "effec-
tive" recommendations with respect to hirings or
evaluations. Instead, the effectiveness of his recom-
mendations is completely dependent on whether they
coincide with the judgment of higher management,
wherein the ultimate authority to hire, fire, and pro-
mote resides.
The duties of the secondary systems chemist, Wal-
ter Lach, include compiling and maintaining the rou-
tine analysis that are preapred by the technicians in
the chemistry and health physics department. Like
the radiological controls supervisors and the radio-
chemist, secondary systems chemist Lach has a tech-
nician assigned to him who mainly engages in work
of a routine and repetitive nature. In fact, Lach him-
self testified that fully 90 percent of the work done by
the technician is work of a routine character. As with
the previous two disputed classifications, Lach's in-
put into the hiring and evaluation process is casual at
best, with nothing in the record to indicate that it is
"effective" in any meaningful sense of that word.
Overtime is always authorized by the department
head, and any personnel problems are immediately
referred to Sturniolo. Although Sturniolo testified
that Lach would become more involved in the evalu-
ation process at some time in the future, at present he
does not evaluate employees nor is he vested with
any other statutory indicia of supervisory authority.
Accordingly, we will include the secondary systems
chemist classification in the petitioned-for unit.
Turning to consideration of the shift operating
supervisor classification, this classification is found
within the Employer's operations department. The
operations department at the power plant is responsi-
ble for the efficient operation and control of the vari-
ous systems in the plant. To this end, the operations
department maintains and monitors the functioning
of the plant's nuclear, electrical, turbine, and water
systems. Organizationally, the department is under
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the overall supervision of a department head. Imme-
diately below him are six plant shift superintendents,
all of whom are stipulated to be supervisors. Below
the superintendents on the Employer's organiza-
tional structure are six shift operating supervisors
(the disputed classification herein) and approximate-
ly 15 employees in the existing production and main-
tenance unit.
The main focus of the operations department is the
control room, where a shift operating supervisor and
a control room operator (a position within the ex-
isting production and maintenance unit) sit at a con-
trol panel and monitor the various operating systems
within the plant. Through electronic and sensoring
devices, the control panel indicates any malfunctions
or irregularities within the operating plant systems.
Once alerted to a malfunction of one of the plant's
systems, the shift operating supervisor of the control
room operator will normally "take out" that system;
i.e., shut the system down and switch over to an auxi-
liary or "back-up" system.
The shift operating supervisors spend the vast ma-
jority of their time (along with the control room op-
erators) in the control room itself. If a problem devel-
ops in one of the systems of the plant, the shift
operating supervisor or the control room opeator will
telephonically communicate with the auxiliary opera-
tor in that area of the plant and the auxiliary opera-
tor will perform the mechanical task of actually re-
moving the malfunctioning system from operation
and switching to a "back-up" system.
Shift operating supervisors are required by the
Employer to obtain Nuclear Regulatory Commission
senior operating licenses, which are certificates of
high technical expertise. Normally there is a line of
progression within the ranks of the operations de-
partment from auxiliary operator (the lowest classifi-
cation) to control room operator (which requires a
Nuclear Regulatory Commission license) to the posi-
tion of shift operating supervisor, and finally into the
admitted supervisory level of plant shift superinten-
dent. For their part, the plant shift superintendents
have offices adjacent to the control room, but spend
the overwhelming majority of their time in the plant
inspecting the various systems and checking on the
status of the operations throughout their department.
The Employer contends that the shift operating
supervisors are supervisors within the meaning of
Section 2(11) of the Act because, inter alia, of alleged
responsible direction of the control room operators
and auxiliary opperators, the independent judgment
exercised by the shift operating supervisors, the role
they play in the evaluation and hiring process, and
because of the past bargaining history of the produc-
tion and maintenance unit, which had excluded this
classification at the time of its certification.
Initially, with respect to the shift operating
supervisor's alleged direction of the auxiliary opera-
tors and control room operators, we note that the
vast majority of work performed by individuals in
these classifications is routine and repetitive in na-
ture, and governed to a large extent by both Nuclear
Regulatory Commission guidelines and the
Employer's own written procedures manual. The du-
ties of the shift operating supervisors and the control
room operators are largely interchangeable, and both
classifications perform essentially similar tasks. The
record reveals that when unusual occurrences do
take place in the plant, any deviations from normal
operating procedures are cleared with the plant shift
superintendent first. For instance, a shift operating
supervisor called by the Employer, when asked at the
hearing to describe an occasion depicting his exercise
of independent judgment, recalled that he had "tak-
en out" a particular system only after having cleared
the matter first with a plant shift superintendent.
With respect to personnel matters, it is clear that in
the operations department, as in other departments
in the plant, it is the department head who makes
final decisions with respect to all personnel matters.
Although the Employer asserts that the shift operat-
ing supervisors play a major role in the evaluation
process, no such role is apparent from the record.
What evidence there is in the record merely high-
lights the casual nature of the shift operating
supervisor's input in the evaluation process. Indeed,
we note that with regard to the evaluations of auxili-
ary operators, the shift operating supervisors, being
confined to the control room for the vast majority of
their working time, have no opportunities to actually
observe the auxiliary operators in the performance of
their duties. On the other hand, the auxiliary opera-
tors are observed by the plant shift superintendents,
who spend a great deal of time on routine inspections
throughout the various areas of the plant where the
auxiliary operators are actually working.
The Employer further contends that, in any event,
the shift operating supervisors exercise supervisory
authority by virtue of their direction of the control
room operators in the control room itself. As noted
above, however, the duties of the shift operating sup-
ervisors and the control room operators are basically
interchangeable functions and, inasmuch as the tasks
of both classifications are mainly routine, little "di-
rection" in the employment sense is involved. What
directions the shift operating supervisor does impart
to the control room operator are simply those of a
more skilled employee advising one less skilled.
The shift operating supervisor who testified on be-
half of the Employer recounted that he had been in-
1218
MAINE YANKEE ATOMIC POWER CO.
volved in the interviewing process, contrary to two
other shift operating supervisors who testified on be-
half of the Petitioner. However, even accepting the
testimony of the Employer's witnesses as the stan-
dard for shift operating supervisors, such testimony
falls far short of establishing supervisory authority by
virtue of effective recommendation. Indeed, his in-
volvement reflects at most a random and casual in-
put into the entire process, with the input of the plant
shift superintendents and the final decisions of the
department head constituting the final action on
evaluations and promotions. Overall, the record is
clear that the shift operating supervisors have no au-
thority to hire, fire, promote, lay off, suspend, disci-
pline, or otherwise to have any impact on the em-
ployment conditions of other employees. Nor does
the record establish that they make effective recom-
mendations with respect to such actions. In addition,
the shift operating supervisors do not assign work,
transfer employees, or give anything more than rou-
tine direction without first obtaining approval from
the plant shift superintendent. In light of the fore-
going, we find that the shift operating supervisor
classification is nonsupervisory in nature, and, as
such, the votes of the employees in this classification
should be opened and counted.
Finally, with respect to the classification of store
supervisor, we find, contrary to the Acting Regional
Director, that this classification is a supervisory one,
and should be excluded from the unit. The store sup-
ervisor, Alfred Proctor, is primarily in charge of the
Employer's stockroom and supplies, and three em-
ployees are assigned to the stockroom. Unlike the
other classifications described, supra, it is evident
from the record that it is Proctor himself (as opposed
to the department head) who makes both annual and
interim work assignments and who has the ability to
transfer employees from one job to another. Further-
more, contrary to the other disputed classifications,
the record discloses that it is Proctor, not the depart-
ment head, who personally fills out and signs em-
ployee evaluation forms. Although Proctor's ability
to discipline employees and adjust employee griev-
ances is not clearly established, we nonetheless find
that his ability to assign and evaluate employees and
direct their work in the stockroom indicates a super-
visory status within the meaning of Section 2(11) of
the Act. Accordingly, we find that stores supervisor
Alfred Proctor should be excluded from any unit
herein.
In accordance with all the foregoing, we hereby
affirm the Acting Regional Director's decision and
his findings concerning the radiological controls sup-
ervisor, radiochemist, secondary systems chemist,
and shift operating supervisors and shall direct the
Regional Director to open and count the impounded
ballots in these classifications and to issue the appro-
priate certification(s). Contrary to the Acting Re-
gional Director, we shall exclude the stores supervis-
or from any unit and shall direct the Regional
Director not to open and count his impounded bal-
lot.
DIRECTION
It is hereby directed that the Regional Director
open and count the impounded ballots in the radio-
logical controls supervisor, radiochemist, secondary
systems chemist, and shift operating supervisors clas-
sifications and issue the appropriate certification(s).
It is further directed that the Regional Director not
open and count the impounded ballots of the stores
supervisor.
1219