UNC Nuclear Industries

National Labor Relations Board - Board Decisions

Feb 10, 1984

268 N.L.R.B. 841 (N.L.R.B. 1984)

UNC NUCLEAR INDUSTRIES
UNC Nuclear Industries, a Subsidiary of United Nu-
clear Corporation, a UNC Resources Co. and
Nucleonics Alliance Local 1-369, Oil, Chemical
& Atomic Workers International Union. Case
19-CA-13437
10 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 23 August 1982 Administrative Law Judge
James T. Barker issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a response thereto
and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,1 and
conclusions, except as noted below, and to adopt
the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
I In adopting the judge's conclusions, we do not rely on his finding
that the Respondent's unilateral institution of its oral startup readiness test
did not violate Sec. 5(aXS) because, inter alia, it was an "easy" test. The
difficulty of the test is irrelevant to the determination of whether the Re-
spondent violated Sec. 8(aX5).
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This
case was heard before me at Richland, Washington, on
May 4, 1982, pursuant to a complaint and notice of hear-
ing issued on June 30, 1981, by the Acting Regional Di-
rector for Region 19 of the National Labor Relations
Board.' The complaint is based on a charge filed on
April 9 by Nucleonics Alliance Local 1-369, Oil, Chemi-
cal & Atomic Workers International Union, hereinafter
called the Local, and an amended charge filed by the
Local on May 26. The respective charges were timely
served on the Respondent by certified mail. The Re-
spondent filed an answer denying the commission of any
unfair labor practices. The parties were provided full op-
portunity to introduce relevant evidence, to examine and
cross-examine witnesses, to make opening and closing
statements, and to file briefs with me. Counsel for the
I Unless otherwise specified, all dates herein refer to the calendar year
1981.
General Counsel and counsel for the Respondent timely
filed briefs.
On my observation of the witnesses, the entire record
in this proceeding, and briefs filed herein, I make the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
UNC Nuclear Industries, a Subsidiary of United Nu-
clear Corporation, a UNC Resources Co., herein called
the Respondent, is a Delaware corporation with an office
and place of business in Richland, Washington, where it
is engaged in the business of operating a nuclear reactor.
During the 12-month period immediately preceding
the issuance of the complaint herein, the Respondent, in
the course and conduct of its business operations, pur-
chased and caused to be transferred and delivered to its
facilities within the State of Washington goods and mate-
rials valued in excess of S50,000 directly from sources
outside the State of Washington or from suppliers within
said State which in turn obtained such goods and materi-
als directly from sources outside the State of Washing-
ton.
Similarly, during the 12-month period immediately
preceding the issuance of the complaint, the Respondent,
in the course and conduct of its business operations, had
gross revenues from all sales and performance of services
equal to or in excess of SI million.
Upon these facts, which are not in dispute, I find that
at all times material herein the Respondent has been an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and I find, that at all times
material herein the Local has been a labor organization
within the meaning of Section 2(5) of the Act and a con-
stituent member of the Hanford Atomic Metal Trades
Council, herein called HAMTC, an entity which, I find,
has been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The pleadings raise the following principal issues:
1. Whether the oral test relating to plant modifications
made during the 1980 summer outage which the Re-
spondent administered on March 8 and sought to admin-
ister on March 9 was a mandatory subject of bargaining.
2. Whether the Respondent violated Section 8(aXS)
and (1) of the Act by failing to notify HAMTC of its
desire to administer the oral test and to provide
HAMTC with an opportunity to bargain collectively
concerning the test.
3. Whether the Respondent violated Section 8(a)(1) of
the Act by: (a) suspending employees who refused to
take the oral test, and (b) suspending an employee who
had taken the test but who thereafter left work in protest
over the suspension of his fellow employees.
268 NLRB No. 128
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Pertinent Facts
1. Background facts
a. The bargaining relationship
At times pertinent herein, Thomas G. Deen has been
the Respondent's manager of labor relations, Robert J.
Pyzel was manager of in-plant operations, and David B.
Ferguson has been B-shift manager. The Respondent's
Richland, Washington, facility is operated on a 24-hour
basis and four rotating shifts (designated A, B, C, and D)
are utilized to accomplish this around-the-clock, 7-day-
per-week operation. At material times, Ferguson report-
ed directly to Pyzel.
In or about 1948 a majority of the employees of the
Respondent employed in the following unit designated
and selected HAMTC as their exclusive representative
for the purpose of collective bargaining:
All production and maintenance employees em-
ployed by the Employer at its Hanford N Reactor
at Richland, Washington, and excluding all clerical
employees, guards and supervisors as defined by the
Act.
At all times since 1948 HAMTC has been, and presently
is, the exclusive representative of the employees in the
above-described appropriate collective-bargaining unit
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment. 2 The Local is a
constituent member of HAMTC.
In 1980 the Respondent and HAMTC engaged in col-
lective-bargaining negotiations which in December 1980
had culminated in a collective-bargaining agreement.
Subsequently, on April 10, 1981, representatives of the
Respondent and HAMTC executed a document embody-
ing the terms of a collective-bargaining agreement to be
effective from April 1, 1980, through March 31, 1983.
Article I extends recognition to HAMTC as the sole and
exclusive collective-bargaining representative of employ-
ees of the Respondent in job classifications set forth in an
appendix to the agreement. The appendix identifies 29
separate seniority groups, affiliated with 14 separate local
unions, all specified as being represented by HAMTC.
Article XXIX of the agreement provides as follows:
AUTHORITY
The Council is represented in its dealings with the
Company by the General Counsel, Business Represent-
ative, or the President, Hanford Atomic Metal Trades
Council, subject to the Bylaws of that organization,
and the Company is represented by the Manager,
Labor Relations, or the President of the Company,
or such representative as the President shall specifi-
cally designate in writing. It is understood and
agreed that the incumbents of the aforesaid posi-
tions have authority on behalf of the Council and
the Company, respectively, to modify this Agree-
ment, to enter into arrangements to carry out and
A stipulation of the parties establishes the foregoing.
effectuate this Agreement, and otherwise to bargain
collectively and that no agreements, arrangements; or
understandings shall be binding upon the parties
hereto unless executed in writing by such authorized
representatives of the Company and the Council. [Em-
phasis added.]
The bylaws of HAMTC provide that HAMTC shall
be composed of delegates from the affiliated unions elect-
ed by secret ballots of the members thereof. Each affili-
ated local union is entitled under the bylaws to six dele-
gates and to one representative on the negotiating com-
mittee separately formulated to conduct negotiations
with the employer employing members of that local
union. The bylaws require that any commitment binding
the Council to action or agreement must first be cleared
by the Council or by the executive board of the Council.
The bylaws further provide that when a general policy
has been adopted by the Council, "tending toward a gen-
eral agreement with an employer," no affiliated local
union will 'be permitted to enter a separate agreement
without the consent and approval of the Council. The
bylaws further provide that all collective-bargaining
agreements are subject to a rejection referendum vote of
the affiliated membership. Pursuant to article VI, section
I, of the bylaws, the president of HAMTC serves as
chairman of the negotiating committee.
Each seniority group under the collective-bargaining
agreement has its own steward. The bylaws of HAMTC
requires each local union affiliated with the Council to
furnish the names of their stewards and chief and re-
quires that all chief stewards act under the direction of
the Council. At pertinent times Stanley Lepka served as
chief steward representing Seniority Group 552. Lepka
credibly testified that no affiliated or constituent union of
HAMTC can bargain directly with any of the employ-
ers. He further credibly testified that HAMTC is the rec-
ognized collective-bargaining representative and that liai-
son between HAMTC and the employer would be
through the particular affiliated local union of which the
employees of that employer are members.
The collective-bargaining agreement contains a three-
step grievance procedure culminating in arbitration. A
grievance must be initiated within 10 days of the "occur-
rence of the grievance, exclusive of Saturdays, Sundays,
and holidays."
b. The certified reactor operators
Pertinent to the instant proceeding are certified reactor
operators employed in Seniority Group 552 comprised of
a segment of the employees employed at the 100-N area
at the Hanford project at Richland, Washington. In Se-
niority Group 552 are employed certified reactor opera-
tors, reactor operators, operator trainees, reactor train-
ees, and process operators.
The principal task of a certified reactor operator is to
control the reactor operation from the control room, an
enclosed area approximately 80 feet by 40 feet situated
within the reactor itself. The primary control function is
carried out at three different console stations within the
control room. The nuclear console is employed to con-
842
UNC NUCLEAR INDUSTRIES
trol the reactivity and power level of the reactor. A
second console is used to monitor and control the pri-
mary cooling to the reactor, while a third console serves
as the secondary cooling facility which cools the pri-
mary system. Four to six certified reactor operators com-
prised the normal shift in the control room. At any given
time, only three certified operators are involved in con-
sole duties, which are rotated at given intervals during
the shift. The certified operators who at a given time
during the shift are not performing console duties devote
their time to the performance of communications duties,
operation of the computer, completion of paperwork, or
involvement in necessary study to remain current with
respect to procedures and duties. Certified operators
could be assigned to perform duties outside the control
room such as maintenance, laundry, and patrol, but these
are usually performed by reactor operators who are not
certified and are in a lower pay category.
Trainees for certification as reactor operators undergo
an 18-month training program. The first year of training
is administered in four different phases, followed by an 8-
hour written examination. Successful completion of the
examination permits the trainee to continue further train-
ing in preparation for a demonstration test, which is an
oral test. Subsequently, following further training, an
oral board examination is administered to the trainee.
Upon successful completion of the oral board examina-
tion, the trainee is certified as a reactor operator. The
certified reactor operator classification is compensated at
a pay scale superior to the other job classifications in Se-
niority Group 552.
Through the operation of the consoles within the con-
trol room, the certified reactor operators control the re-
activity or cooling of the reactor core. A mistake by a
certified reactor operator in controlling the reactor could
have serious consequences such as a loss of cooling caus-
ing a core meltdown. A significant major accident jeop-
ardizing health in a large geographic area could result
from a core meltdown.
Thus, to augment the initial training program which
had led to certification, a recertification training program
is administered to newly certified operators. It commenc-
es immediately after initial certification and covers a 2-
year time frame, punctuated by quarterly written exami-
nations. At the end of the 2-year training phase, a dem-
onstration test conducted in the control room is adminis-
tered. The demonstration test is an oral examination.
In order to remain in an operator classification requir-
ing certification, a certified operator must be retrained
and reexamined on all parts of the certification require-
ments at least once every 2 years.3
Supplement agreement 25 to the current collective-
bargaining agreement between the Respondent and
HAMTC provides, in pertinent part:
By directive from the Department of Energy, indi-
viduals who control the operation of the N Reactor
must qualify by following a formalized training and
certification program. These programs are outlined
s All of the foregoing is based on credited testimony of record which
is not in dispute, considered in connection with documentary evidence of
record.
in documents UNI-143 and UNI-144 and are sub-
ject to periodic review and up-dating to incorporate
changes in the Reactor Operations process. Changes
will be reviewed with Union representatives at the
time they are incorporated in the program ....
An Operator who has previously been certified but
who demonstrates that he can no longer meet the
Certified Operator requirements after having re-
ceived re-training in accordance with the foregoing
shall be removed from the Nuclear Reactor Control
Operator-Certified classification and downgraded
to the Nuclear Reactor Operator classification, pro-
vided he has sufficient seniority to take a job in that
lower classification ....
The number of N Grade 23 Operators assigned to
the Control Room at the start of any given shift
shall not be less than three (3). N Grade 23 Opera-
tors in excess of this minimum requirement will be
considered available for relief assignments.
UNI-143 and UNI-144 contain provisions governing the
reactor requalification and training programs for certified
operators and supervisors and the certification program
for certified operators and supervisors. UNI-143 pro-
vides that, "[t]o ensure that all operators maintain their
skill in manipulating reactivity control systems, it is re-
quired that each operator perform a minimum of eight
different activity manipulations every two years." The
document also contains provisions governing the evalua-
tion of certified operators and provides for quarterly ex-
aminations as follows:
Written Examinations will be used to evaluate the
reclassification program. Oral examinations may be
used to supplement this examination. Results of the
examination will be discussed with the respective
operator or supervisor.
A grade of less than 70 percent requires overall
mandatory participation in an accelerated reclassifi-
cation program. An individual enrolled in an accel-
erated reclassification program shall not perform
certified duties until he has successfully completed
the program.
The document also provides that "[o]ther written and/or
oral examinations shall be administered as deemed neces-
sary during the course of the lecture series." A grade of
less than 70 percent will require additional retraining in
that subject.
c. The oral test decision
At regular intervals the reactor is shut down for main-
tenance. A normal summer outage for maintenance
would last 90 days. During this period of time installa-
tions and modifications are made which change the oper-
ation of the plant somewhat. During the outage, certified
reactor operators receive training in the form of lectures
and classroom work from a trainer to acquaint them with
the nature of the changes which have been incorporated.
The training sometimes involves a visual "walk through"
843
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspection to observe changes that have been made. The
lecture and classroom regime involves open discussion
between the trainer and the operators and among the op-
erators inter se. In years prior to 1980, no oral quiz or
test that was also "graded" was administered.
In May 1980 the reactor was shut down. The shut-
down continued into March 1981, when the events here
pertinent transpired. During the first week of March, the
Respondent had submitted a request for startup to the
Department of Energy. The Department of Energy re-
jected the request, informing the Respondent that it did
not have "strong enough evidence" of the knowledge
and experience level of the operators. The Respondent
was informed that it was necessary to provide a more
"auditable" record of the capabilities of the operators.
The extended shutdown had been punctuated by collec-
tive-bargaining negotiations between the Respondent and
HAMTC which, in December 1980, had culminated in a
contract. Some labor unrest had accompanied the negoti-
ations. In January, February, and early March, training
materials had been made available to the certified reactor
operators which encompassed, inter alia, material relat-
ing to summer 1980 design changes and startup training.
Some classroom training had been conducted.
In the meantime by letter dated February 17, Thomas
Deen, the Respondent's manager of labor relations, had
advised HAMTC as follows:
On Monday, February 9, 1981, UNC Nuclear In-
dustries (UNC) met with representatives of the
Hanford Atomic Metal Trades Council (HAMTC).
A general discussion of all UNC training and testing
programs followed which ended with a HAMTC
request to clarify Criticality and Radiation Zone
Work Training.
"Criticality Training and Radiation Zone Work
Training" are, of course, both safety training pro-
grams specifically designed to promote and maintain
safe working conditions for all UNC employees
whose day-to-day job assignments are or may be as-
sociated with work in radiation zones or in the
movement or possible movement of fissile material.
As was explained, UNC does not wish to give
HAMTC the erroneous impression that each and
every ongoing UNC training program is safety re-
lated. Over the years, UNC has been extremely sen-
sitive to bargaining unit employee requests for on-
the-job training. Such requests and job requirements
have led to many worthwhile training programs
which have required the evaluation of attendees to
guage the effectiveness of the programs.
None of these programs, except for those specifical-
ly negotiated, have included job jeopardy or rate
retention penalties. HAMTC is again assured these
programs do not include job jeopardy or rate re-
ductions and, additionally, is not an attempt to slide
"certification" of any classification through the
backdoor. The facts of the case are that such pro-
grams are efforts to improve employee job qualifi-
cations.
UNC additionally states that if something new in
training and testing is imposed by the Department
of Energy or other appropriate agency which
makes new testing a mandatory condition for retain-
ing employment and thus represents a problem of
job jeopardy to employees, UNC must, of course,
impose such required tests. However, the Council
can be assured that if UNC initiates new testing re-
quirements which involve employee job jeopardy,
UNC will meet with the Council to discuss the
impact of those requirements on the employees af-
fected, including problems of job jeopardy or rate
retention.
2. Alleged proscribed conduct
a. The preparation for testing
In the days immediately preceding March 8, the Re-
spondent reached the determination that to provide a
more "auditable" record of the level of capability of the
certified reactor operators an oral quiz or test would be
administered to the operators. Accordingly, Robert
Pyzel, the Respondent's manager of in-plant operations,
determined that 10 questions would be selected from a
population of approximately 70 questions relating to
modifications effectuated during the then current outage,
and would be presented to the operator being tested for
his oral response. Pyzel determined that, on each of the
four shifts, the control room supervisor would administer
the test separately to each operator. On the basis of the
responses received the supervisor administering the test
would make a judgment whether the operator taking the
test had sufficient knowledge "to carry forward in the
operation of the plant." Pyzel conveyed this information
to the shift supervisors, and to David Ferguson, B-shift
manager. Pyzel also instructed the supervisors that, if the
determination was made on the basis of the test that a
given operator needed further training, training should
be provided. Any operator requiring further training
would not lose salary or job status and no change would
be made in his job classification. However, any operator
undergoing training necessary to establish his readiness
would not be permitted to operate the consoles but
would be used only in the performance of the other
duties of his job classification.
b. The tests administered
On March 8, soon after the start of the graveyard shift
at 12 midnight, David Ferguson spoke with Niels Kaas
and four other certified operators assigned to the shift.
Ferguson informed the operators he was going to admin-
ister an oral test pertaining to the design changes that
had taken place during the outage. This confirmed infor-
mation that had been imparted to the operators by
Martha Koop, a D-shift reactor operator, just prior to
the commencement of the graveyard shift. Ferguson told
the operators that they would receive training prior to
taking the test. The operators interposed an objection to
taking an oral test. Their objection was based on two
grounds: (1) they had never previously been required to
take a test prior to startup following summer outages,
844
UNC NUCLEAR INDUSTRIES
and (2) a quarterly requalification test was scheduled to
be administered in approximately 2 weeks.
Nevertheless, during the shift, lectures were conduct-
ed. The lectures related to written material that had been
distributed covering the design changes which had been
accomplished during the outage. The lectures were con-
ducted by a control room supervisor in the presence of
Ferguson and another supervisor.
As an initial step in the actual administration of the
test, in the morning hours of Sunday, March 8, Pyzel ad-
ministered an oral quiz to Ferguson. In so doing, Pyzel
used a prepared form on which he recorded his own
evaluation of the extent or degree of comprehension
shown by Ferguson. From this process of evaluation he
reached the conclusion that Ferguson did not require
further training. He so noted on the form. Thereupon,
Pyzel instructed Ferguson to administer a separate test to
the operators under his supervision in a manner consist-
ent with the routine which Pyzel had followed.
Later, following the completion of the lectures which
had been accomplished on the graveyard shift, Ferguson
requested Kaas to accompany him to his office for the
purpose of taking the test. Kaas did so. Thereupon, Fer-
guson administered the oral test to Kaas in a manner
consistent with the instructions which Pyzel had impart-
ed to Ferguson. At the same time, another certified con-
trol operator on the graveyard shift was given a test by
one of the two B-shift supervisors. Neither Kaas nor the
other operator was found to require further training.
During the course of the workday on March 8, the
following certified reactor operators refused to take the
test: Timm Bettendorf, Gary Brownell, Steve Faulk,
Scott Hamaker, Stanley Lepka, Suzanne Lindberg, Chet
Riegel, and Don Schroder.
c. The Respondent contacts the Local
During the afternoon of Sunday, March 8, Thomas
Deen attempted to reach Stanley Lepka, the chief stew-
ard of the Local, by telephone at Lepka's residence.
Deen initiated the telephone call from his office. He was
unable to reach Lepka and thus called James Watts,
president of the Local, at his residence to verify the ac-
curacy of the telephone number which he, Deen, had
been using in his effort to contact Lepka. In speaking
with Watts, Deen stated that he wished to discuss with
Lepka a test that he wished to administer to the certified
reactor operators. Deen explained that the test was to be
in the nature of a refamiliarization test necessitated by
the length of the current outage. Deen explained that the
test would be oral and would consist of 10 questions se-
lected at random from a larger population of questions,
that a record would be kept to determine whether the
operator was able to answer the questions, that no
record of the specific answers given would be recorded,
and that no job jeopardy would attach to the test. Deen
informed Watts that the test was for audit purposes in
order to demonstrate to the Department of Energy the
startup readiness of the reactor. Deen told Watts that the
certified reactor operators would receive training.
During the course of the day, Deen was successful in
contacting Lepka, and he conveyed to Lepka the same
information which he had imparted to Watts. A series of
telephone conversations transpired between Lepka and
Deen and between Lepka and Watts. During the day,
Lepka spoke with Martha Koop, the shift steward on D
shift with hours from 4 p.m. to 12 midnight. Lepka con-
cluded from Koop's comments to him that a majority of
the operators on D shift did not wish to take the test.
Moreover, from his discussions with Watts, Lepka con-
cluded that resolution of the issue could be postponed
until the following day, a normal workday. Lepka con-
veyed this conclusion to Deen, together with the sugges-
tion that the test be combined and made a part of the
quarterly recertification test which was scheduled to be
administered in 2 or 3 weeks. It was suggested by Lepka
that the combined test be administered in a day or two.
Deen responded that no job jeopardy attached to the test
and that the scope of this examination was not sufficient
to warrant making it a part of the quarterly requalifica-
tion examination. Deen offered to dispatch a letter con-
firming that no job jeopardy was involved in the oral
test that management was seeking to administer. Lepka
responded that he did not believe the operators would be
willing to take the test. Deen informed Lepka that man-
agement would proceed to administer the test.
In a separate conversation between Deen and Watts,
the concept of combining the test with the scheduled re-
qualification test was also discussed, and Deen affirma-
tively stated that the test in question was not a requalifi-
cation test to which job jeopardy attached. Watts stated
that Deen should advise HAMTC concerning manage-
ment's intention to administer the test and should bargain
concerning the test. Deen informed Watts that manage-
ment intended to administer the test and that any opera-
tor who refused to take the test would be sent home.
d. HAMTC informed
On Sunday evening, March 8, Deen called Pete
Todish, president of HAMTC, and informed him that the
certified operators had indicated that they would refuse
to take an oral examination which management intended
to administer. Deen told Todish management viewed this
refusal as insubordination and if the operators did, in
fact, refuse to take the examination, they would be sent
home.
e. The discussions with the certified operators
Subsequently, on the morning of March 9, Ferguson
informed the certified operators on the shift that those
who had refused to take the test would be given another
opportunity to take it and, if they refused, they would be
sent home. The operators requested to speak with Dunn,
the Respondent's vice president. Dunn met the operators
in the control room. Kaas asked Dunn why the operators
were being required to take an oral test which had never
been administered prior to other reactor startups. Dunn
responded that, due to the extended length of the present
outage, the Company had to assure the Department of
Energy that the operators were competent and prepared
for the requested startup. Kaas asked why other crafts
did not have to take the test and why the test was being
administered only to control room operators. Dunn re-
sponded that the certified control room operators were
845
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
more critical to the operations of the reactor. He added
that the Company had to assure the Department of
Energy that the operators were sufficiently competent to
warrant the startup. Thereupon, Kaas asked Dunn why
the oral quiz could not be incorporated into the written
quiz which was upcoming in approximately 2 weeks.
Dunn responded that the Company expected to have the
reactor operating before then. Kaas suggested that the
oral and written test be combined and administered the
following day. Dunn answered that this was not possible.
During the meeting, one of the operators asked if it
would be possible to delay until 8 a.m. any further action
so that the employees could get in touch with the union
representatives. Dunn answered in the negative. He said
that the operators could either take the test or go home.
At this juncture, Kaas told Dunn that he thought he
was being "very unreasonable" and asserted that, if the
other operators were sent home, he would go also. The
other operator who had taken the oral quiz initially
stated his intention to leave with the other operators.
However, he did not do so. Kaas testified that the opera-
tors' decision to leave was influenced by transportation
difficulties.
Kaas testified that past practice had permitted opera-
tors who had failed tests to be given further opportunity
to take the tests. He further testified that "possibly" the
certified operators were told that if they failed the test
they would be retested in order to qualify.
f. Employees suspended
On March 9 each of the employees who had refused
to take part in the oral test was suspended. Thereupon,
Niels Kaas left work because of his sympathy and sup-
port for the employees who refused to take the test. Sub-
sequent to March 9, written reprimands were issued to
each of the employees who had refused to participate in
the oral test, as well as to Kaas because of his sympathy
and support for the employees who had refused to take
the test.
g. The aftermath
At approximately 1:30 p.m. on Monday, March 9,
Deen and another representative of management met
with Lepka and Watts at the Richland Labor Temple.
Pete Todish was present as were Koop and two other
representatives of the Local. During the course of the
meeting, Todish, Watts, and Lepka took the position that
the oral test overlapped in some degree the qualification
test which was pending, and asserted that the decision to
administer the oral test was a bargainable issue. In sub-
stance, management insisted that it possessed the author-
ity and right to administer the test. After caucuses and
further discussion between the parties, a meeting of the
minds was achieved with respect to administering the
test. The discussion then turned to the question of com-
pensation for the certified operators who had been sent
home for refusing to take the test. The Local insisted on
compensation for the employees while the Company re-
fused. The Local's representatives informed Deen that
unfair labor practice proceedings would be initiated.
In due course, Deen dispatched to Todish the follow-
ing letter dated March 9:
This letter concerns the startup readiness review
test we discussed today covering the plant changes
made during the recent outage. While the Company
retains the right of supervisors to verify employee
job knowledge, in this instance the Company is
willing to change this startup readiness review veri-
fication to a written test. In so doing, the results of
this test will be applied as a basis for 50% of your
next subsequent requalification examination.
As a result of negotiations conducted on June 23 and
July 7 between the Respondent and the Local, agree-
ment was achieved as to "ways and methods whereby
the start-up readiness of the Certified Reactor Operators
could be ascertained" with respect to the 1981 summer
outage. HAMTC was so advised by letter of July 7.
C. Conclusions
1. Prefatory findings
The complaint alleges and the record establishes that
HAMTC is, and has been at all times material, the exclu-
sive collective-bargaining represenative of the Respond-
ent's employees in a unit appropriate for the purposes of
collective bargaining. The General Counsel does not
challenge the exclusivity of HAMTC's status and noth-
ing in the complaint seeks in any manner to alter the
statutory obligation of the Respondent to bargain collec-
tively only with HAMTC, and no other labor organiza-
tion, as the designated representative of unit employees. I
reject the contention raised by the Respondent in its
motion to dismiss that, by issuing a complaint and pro-
ceeding to hearing based on a charge filed not by
HAMTC but by the Local, a mere constituent member
of HAMTC, the General Counsel is attempting to
expand the Respondent's collective-bargaining duty to
include an obligation to negotiate changes in wages,
hours, terms and conditions of employment not only
with HAMTC, but with the constituent local of which
the affected employees may be a member. Nothing in the
complaint, or in this decision, carries that connotation.
Moreover, contrary to the Respondent, the Local has
standing under the Act to file a charge, a fact empha-
sized by the breadth and inclusive reach of Section 102.9
of the Board's Rules and Regulations, which provides:
"[A] charge that any person has engaged in or is engag-
ing in any unfair labor practice affecting commerce may
be made by any person." My ruling denying the Re-
spondent's motion to dismiss made at the outset of the
hearing, and renewed at the end of the General Coun-
sel's case-in-chief, is hereby affirmed.
In a threshold sense, I further find that the matter of
oral testing to determine the startup readiness of certified
reactor operators is not specifically covered by the col-
lective-bargaining agreement, or suppplemental agree-
ment 25, and exists no formal, contractual recognition of
the Respondent's right to administer an oral test for that
purpose. Contrary to the Respondent, the record shows
that the Respondent did not undertake to consult or bar-
846
UNC NUCLEAR INDUSTRIES
gain with HAMTC concerning any facet of the oral test,
including the timing and manner of its administration,
until after the test had been administered to some em-
ployees in the unit and others had been instructed to be
orally tested by supervision. Similarly, consultation with
officials and representatives of the Local came after
some testing of unit employees, and was not, in any
event, a legally acceptable means of notification, consul-
tation, or bargaining with the designated bargaining rep-
resentative, HAMTC. Therefore, assuming, arguendo,
the test is found to have had a direct effect on tenure, to
have had a material, substantial, and significant effect on
working conditions or to have carried penalties of signifi-
cance which effect conditions of employment, it must be
concluded that the test constituted a mandatory subject
of bargaining, and that the Respondent could not have
lawfully bypassed HAMTC. See Capital Times Co., 223
NLRB 651, 653-654 (1976); Alfred M. Lewis, Inc. v.
NLRB, 587 F.2d 403, 411-412 (9th Cir. 1978).
2. The merits
The ultimate issue in this proceeding is whether the
decision of the Respondent to administer startup readi-
ness tests to certified reactor operators materially, sub-
stantially, or significantly changed the working condi-
tions of the certified reactor operators and the other em-
ployees employed in the unit represented by HAMTC. I
conclude that it did not. Rather, I find that the Respond-
ent's resort to an oral test as an extension of its existing
summer outage training program was an element of the
Respondent's day-to-day managerial control which it
was free to exercise. Moreover, while I find that the Re-
spondent's decision to orally test the certified reactor op-
erators for the purpose of surveying their comprehension
of summer design modifications confronted unit employ-
ees with arguably potential and prospective changes in
job content or working conditions, the likelihood of
those changes actually coming to fruition was so remote
by reason of the nature of material covered in the test,
the skill level of the certified personnel to which it per-
tained, and the virtually open-ended familiarization and
training policy employed by the Respondent as to render
the departure from established training policy insignifi-
cant, insubstantial, and substantively minor and the threat
to existing working conditions, job content, or job tenure
virtually nonexistent.
In my view of the controlling precedent, the mere ex-
istence of a remote potential for change in working con-
ditions does not equate either to a present change of sub-
stance or to the creation of a new policy to be imple-
mented automatically in the event of a reasonably fore-
seeable work-related occurrence or circumstance.
It is well settled that an employer violates its duty to
bargain collectively when it institutes changes in employ-
ment conditions without consulting the majority repre-
sentative of its employees. E.g., NLRB v. W. R. Grace &
Co., 571 F.2d 279, 282 (5th Cir. 1978); NLRB v. Katz,
369 U.S. 736, 743 (1962). Changes which significantly
affect the working conditions of unit employees are sub-
ject to mandatory negotiations between the employer
and the collective-bargaining representative of the em-
ployees affected. Amoco Chemicals Corp., 211 NLRB 618
(1974), enfd. in part 529 F.2d 427 (5th Cir. 1976); Murphy
Diesel Co., 184 NLRB 757, 763 (1970), enfd. 454 F.2d
303 (7th Cir. 1971); Production Plated Plastics, 254 NLRB
560 (1981). However, not every unilateral change in
work or in work rules constitutes a breach of the bar-
gaining obligation. Peerless Food Products, 236 NLRB 161
(1978). The change unilaterally imposed must, initially,
amount to "a material, substantial, and a significant" one.
Id. Moreover, there arises no obligation to bargain con-
cerning changes which depart in an insignificant manner
from established practice while leaving the practice
intact. Rust Craft Broadcasting, 225 NLRB 327 (1976);
Trading Port, Inc., 224 NLRB 980, 983-984 (1976);
Wabash Transformer Corp., 215 NLRB 546 (1974); Ameri-
can Ambulance, 255 NLRB 417, 422-423 (1981).
The record establishes that in previous years, in prepa-
ration for resuming operations following annual summer
outages, the Respondent had followed a practice of pro-
viding certified reactor operators with written material
detailing changes and modifications in the reactor which
had been accomplished during the outage. As an adjunct
to this familiarization routine, lectures had been conduct-
ed, discussions had been held between operators and su-
pervision, and a walk through of relevant portions of the
reactor had been accomplished for the purpose of insur-
ing the operational readiness of the certified reactor op-
erators. In this respect, UNI-143, effectively an integrat-
ed part of the collective-bargaining agreement, provides
that an explanation of major changes will be covered as
part of a preplanned lecture series "prior to startup of
the summer maintenance outage." No provision in the in-
tegrated collective-bargaining agreement is made for oral
testing. Accordingly, the oral testing here undertaken
constituted a departure from past practice in the sense
that an "auditable" record was made supporting a judg-
mental decision of supervision that the certified operator
tested either possessed sufficient readiness or needed fur-
ther training. However, in all respect, both in purpose
and objective, the oral testing was intended to serve as a
mere extension of the established summer outage training
program and presented no direct threat or impairment to
the wages, hours, job classification, or employment
tenure of the certified operator or other employee in the
bargaining unit. The lack of material, substantial, or sig-
nificant change in the startup readiness training program
is revealed by the fact that questions to be included in
the oral quiz were to be drawn from material made pre-
viously available to certified operators, who, in the
manner of previous summer outage review, had received
or would receive lectures and training in the material en-
compassed. The test embodied no new areas of expertise
beyond the previous competence of the incumbent certi-
fied nuclear operators to whom the test would be admin-
istered, but involved material well within the ready com-
prehension of these trained operators and required no
lengthy training regime. The absence of any perceived
barrier to easy, successful completion of the test is attest-
ed to by the willingness of Lepka, who was conducting a
dialogue with the Respondent in his official capacity on
behalf of the Local, to permit testing to proceed after a
847
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"day or two" of training. 4 Moreover, under the Re-
spondent's stated policy, any operator found to lack
present comprehension of the material had the assurance
of further training and no limitation was placed on either
the extent of the further training which would be offered
to assist in the successful comprehension of the relevant
material or the number of test opportunities which any
given operator would have available. Thus, in the cir-
cumstances defined, the exclusion of an operator from
performance of console duties, which would be occa-
sioned by any failure to establish startup readiness,
would, in the nature of things, be essentially shortlived,
if not transitory; the jeopardy to employee working con-
ditions was so indirect, theoretical, and contingent upon
future events unlikely to occur as to be insignificant, if
not nonexistent. In any event, this potential limitation on
a certified operator's freedom to perform the full range
of his or her duties was inferentially present under the
previously existing summer outage familiarization proce-
dure, for the nature of the hazards in the industry, gener-
ally, and in the instant facility, specifically, are such as to
have precluded supervision from freeing operators who
had not disclosed a mastery of and full familiarity with
summer design change material to perform the important
console functions. Again, the objective and result of Re-
spondent's summer outage familiarization program re-
mained constant. The oral test represented a change of
form but not of substance.
While under the statute there exists during the terms
of a collective-bargaining agreement a duty on the part
of an employer to notify the majority bargaining repre-
sentative and provide a meaningful opportunity to bar-
gain collectively regarding changes and working condi-
4 Niels Kaas, a certified operator, was so sanguine as to suggest the
oral quiz be incorporated into a more comprehensive written test and ad-
ministered "the following day."
tions which the employer proposes to make in terms of
employment not specifically covered in the existing bar-
gaining agreement, including contemplated changes in
prevailing practices affecting unit employees, the depar-
ture here did not, in the circumstances, constitute a radi-
cal change representing a "material, substantial, and a
significant change" from prior practice. In my view, the
instant case is controlled by the rationale and general
policy parameters articulated by the Board in Rust Craft
Broadcasting, supra; Trading Port, supra; and Wabash
Transforming Corp., supra. Cf., Soule Glass & Glazing Co.
v. NLRB, 652 F.2d 1055 (lst Cir. 1981); Wil-Kil Pest
Control Co., 440 F.2d 371 (7th Cir. 1971), enfg. 181
NLRB 749 (1970).
In light of the foregoing, I find that the General Coun-
sel has failed to establish by a preponderance of the evi-
dence that the Respondent violated the Act either by re-
quiring certified reactor operators to take an oral test de-
signed to determine their comprehension of modifications
made during the summer outage of 1981 or by disciplin-
ing the certified reactor operators who refused to take
the test. Similarly, the Respondent acted within its legiti-
mate managerial discretion in discipling Niels Kaas for
his sympathetic refusal to perform assigned duties.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommended
ORDER 5
The complaint is dismissed in its entirety.
s If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
848