Maine Yankee Atomic Power Co.

National Labor Relations Board - Board Decisions

Jul 9, 1979

243 N.L.R.B. 319 (N.L.R.B. 1979)

MAINE YANKEE ATOMIC POWER COMPANY
Maine Yankee Atomic Power Company and Utility
Workers Union of America, AFL-CIO, Local 497.
Case I-CA-15571
July 9, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PFNEI.I.O
AND TRUESDALE
Upon a charge filed on February 5, 1979, by Utility
Workers Union of America, AFL-CIO, Local 497,
herein called the Union, and duly served on Maine
Yankee Atomic Power Company, herein called Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
1, issued a complaint on February 22, 1979, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (I) and Section 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an adminis-
trative law judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on January 18, 1979,'
following a Board election in Case 1-RC-15704 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the residual voting group found appropriate;2 and
that, commencing on or about January 26, 1979, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represent-
ative, although the Union has requested and is re-
questing it to do so. On March 5, 1979, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On March 16, 1979, counsel for the General Coun-
I On January 18. 1979, the Regional Director for Region I issued a Certi-
fication of Results of Election which was amended on January 24, 1979, to
exclude the position of stores supervisor from the certified unit in accordance
with the Board's Decision on Review and Direction in the instant case (239
NLRB 1216 (1979)).
2Official notice is taken of the record in the representation proceeding.
Case -RC 15704, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26
(Sth Cir. 1969); Intertype Co. v. Penello, 269 F Supp. 573 (D.C. Va. 1967);
Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA, as amended.
In 1972, in Case I RC 12130 the Union was certified as the collective-
bargaining agent for a unit of Respondent's production and maintenance
employees. The Acting Regional Director in the instant case determined that
the residual group involved herein is ligible for inclusion in the existing
production and maintenance unit alread) represented by the Union.
sel filed directly with the Board a Motion for Sum-
mary Judgment.3 Subsequently, on April 5, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to Notice To Show Cause.
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.
Upon the entire record in this proceeding, the
Board makes the fobllowing:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, and response to the
Notice To Show Cause, Respondent denies the valid-
ity of the Union's certification based on its contention
that the Board erred in including Respondent's six
shift operating supervisors in an appropriate residual
group eligible for inclusion in the existing production
and maintenance unit already represented by the
Union.4 Counsel for the General Counsel asserts in
her Motion for Summary Judgment that Respondent
is attempting to relitigate issues which were fully liti-
gated in the underlying representation proceeding.
We agree.
Review of the record herein, including that of the
representation proceedings in Case I-RC 15704,
shows that on July 24, 1978, the Acting Regional Di-
rector for Region I issued his Decision and Direction
of Election in which he found, inter alia, that certain
of Respondent's job classifications, including that of
the shift operating supervisors, were not supervisory
within the meaning of the Act, and that, therefore,
the employees in question were eligible to vote in the
election. On August 7, 1978, Respondent filed a re-
quest for review contending, inter alia., that the Act-
ing Regional Director erred by including these em-
ployees in the residual group. Thereafter, on August
23, 1978, the Board telegraphically granted the re-
quest for review with respect to the supervisory status
of Respondent's shift operating supervisors as well as
to the supervisory authority of additional employees
whose status is not at issue herein. An election by
secret ballot was then conducted on August 24. 1978,
On May 23. 1979, counsel for the General Counsel filed an amendment
to the Motion for Summary Judgment. This amendment involved only cor-
recting the date on the tally of ballots from August 24, 1978. the date of the
election, to January Il. 1979, the date the ballots were actually opened and
counted.
I Respondent stated in its letter to the Union declining the Union's request
to bargain with Respondent that its refusal was fr the "sole and express
purpose of securing judicial review of the Board's decision by the United
States (Circuit Court of Appeals"
243 NLRB No. 52
319
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at which time the ballots were impounded pending
the Board's Decision on Review.
Subsequently, on January 5, 1979, the Board issued
its Decision on Review and Direction s in which it
affirmed, inter alia, the Acting Regional Director's
finding of the nonsupervisory status of the shift oper-
ating supervisors and ordered that the Regional Di-
rector open and count their ballots. 6 The Regional
Director, then, on January 11, 1979, issued the tally
of ballots which indicated a union victory, as there
were eight votes for and five against the Union, with
no challenged ballots. On January 18, 1979, based on
the tally of ballots, the Regional Director issued a
Certification of Results of Election which was
amended on January 24, 1979, with regard to the re-
sidual voting group's composition.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues which were or could have been litigated in a
prior representation proceeding.'
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Maine corporation with its principal
office and place of business in Wiscasset, Maine, is a
public utility engaged in the operation of a nuclear
power plant. Further, Respondent has an annual
gross volume of business in excess of $250,000, and
annually receives directly from outside the State of
Maine goods valued in excess of $50,000.
We find, on the basis of the foregoing, that Respon-
s See fn. I, supra.
6 The Board also directed the Regional Director to open and count all of
the impounded ballots in the classifications it had reviewed with the excep-
tion of that of the stores supervisor, who was found to be a supervisor within
the meaning of the Act.
'See Pittsburgh Plate Glass Co, v. N.L.R.B., 313 U.S. 146. 162 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
dent 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, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. HTIE LABOR ()RGANIZA'IION INVOIVEI)
Utility Workers Union of America, AFL CIO, Lo-
cal 497, is a labor organization within the meaning of
Section 2(5) of the Act.
III. TE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
an appropriate residual group, eligible for inclusion in
the existing production and maintenance unit cur-
rently represented by the Union, for collective-bar-
gaining purposes within the meaning of Section 9(b)
of the Act:
All technical employees, plant clerical employees
and other unrepresented non-professional em-
ployees of the Employer at its Wiscasset, Maine
power plant, including administrative and engi-
neering aides in the plant engineering assurance
group, administrative aides in the chemistry and
health physics and maintenance departments,
assistant to instrumentation and controls depart-
ment head, senior training coordinator, training
coordinator, and shift operating supervisors, but
excluding all office clerical employees, all pro-
duction and maintenance employees currently
represented by Utility Workers of America,
AFL-CIO and its Local Union No. 497, stores
supervisor, managerial employees, professional
employees, guards, and all supervisors as defined
in the Act.
2. The certification
On August 24, 1978, a majority of the employees of
Respondent in said residual group, in a secret-ballot
election conducted under the supervision of the Re-
gional Director for Region I designated that the
Union may bargain for the employees in said residual
group as part of the existing production and mainte-
nance unit currently represented by the Union. The
Union was certified as the collective-bargaining rep-
resentative of the employees in said residual group as
part of the unit it already represented on January 18,
1979, and the Union continues to be such exclusive
representative within the meaning of Section 9(a) of
the Act.
320
MAINE YANKEE ATOMIC POWER COMPANY
B. The Request To Bargain and Respondent's Refusal
Commencing on or about January 23, 1979, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the appropriate unit. Commencing on or about
January 26, 1979, and continuing at all times there-
after to date, Respondent has refused, and continues
to refuse, to recognize and bargain with the Union as
the exclusive representative for collective bargaining
of all employees in the appropriate unit.
Accordingly, we find that Respondent has, since
January 26, 1979, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom, and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company d/bla Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Maine Yankee Atomic Power Company is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Utility Workers Union of America, AFL-CIO,
Local 497, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All technical employees, plant clerical employ-
ees and other unrepresented non-professional em-
ployees of the Employer at its Wiscasset, Maine,
power plant, including administrative and engineer-
ing aides in the plant engineering assurance group,
administrative aides in the chemistry and health
physics and maintenance departments, assistant to in-
strumentation and controls department head, senior
training coordinator, and shift operating supervisors,
but excluding all office clerical employees, all produc-
tion and maintenance employees currently represent-
ed by Utility Workers of America, AFL-CIO and its
Local Union 497, stores supervisor, managerial em-
ployees, professional employees, guards, and all su-
pervisors as defined in the Act, constitute an appro-
priate residual group eligible for inclusion in the
existing production and maintenance unit currently
represented by the Union for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since January 18, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said residual goup for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing on or about January 26, 1979, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board hereby orders that the Respondent,
Maine Yankee Atomic Power Company, Wiscasset,
Maine, its officers, agents, successors, and assigns,
shall:
i. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Utility Workers Union of
America, AFL-CIO, Local 497, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate residual group who are eligible for
inclusion in the existing production and maintenance
unit:
All technical employees, plant clerical employees
and other unrepresented non-professional em-
ployees of the Employer at its Wiscasset, Maine
power plant, including administrative and engi-
neering aides in the plant engineering assurance
group, administrative aides in the chemistry and
health physics and maintenance departments,
assistant to instrumentation and controls depart-
ment head, senior training coordinator, training
coordinator, and shift operating supervisors, but
excluding all office clerical employees, all pro-
duction and maintenance employees currently
represented by Utility Workers of America,
AFL CIO and its Local Union No. 497, stores
supervisor, managerial employees, professional
employees, guards, and all supervisors as defined
in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the appropriate unit with respect to
rates of pay, wages, hours, and other terms and con-
ditions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Post at its Wiscasset, Maine, facility copies of
the attached notice marked "Appendix. " s Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 1, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
m In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Utility
Workers Union of America, AFL-CIO. Local
497, as the exclusive representative of the em-
ployees in the appropriate unit, including the re-
sidual group described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the appropriate unit, in-
cluding the residual group described below, with
respect to rates of pay, wages, hours, and other
terms and conditions of employment, and, if an
understanding is reached, embody such under-
standing in a signed agreement. The residual
group, eligible for inclusion in the existing pro-
duction and maintenance unit, is:
All technical employees, plant clerical employees
and other unrepresented non-professional em-
ployees of the Employer at its Wiscasset, Maine
power plant, including administrative and engi-
neering aides in the plant engineering assurance
group, administrative aides in the chemistry and
health physics and maintenance departments,
assistant to instrumentation and controls depart-
ment head, senior training coordinator, training
coordinator, and shift operating supervisors, but
excluding all office clerical employees, all pro-
duction and maintenance employees currently
represented by Utility Workers of America,
AFL-CIO and its Local Union No. 497, stores
supervisor, managerial employees, professional
employees, guards, and all supervisors as defined
in the Act.
MAINE YANKEE ATOMIC POWER COMPANY
322