FirstEnergy Nuclear Operating Company; 06-RC-12580; 52407 by lsd12841

VIEWS: 32 PAGES: 21

									                                 UNITED STATES OF AMERICA
                        BEFORE THE NATIONAL LABOR RELATIONS BOARD
                                        REGION SIX


FIRSTENERGY NUCLEAR OPERATING
COMPANY

               Employer

       and                                                             Case 6-RC-12580

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION 29,
AFL-CIO1

               Petitioner


                     ACTING REGIONAL DIRECTOR’S DECISION AND ORDER

          The Employer, FirstEnergy Nuclear Operating Company (herein “FENOC”), is a public

utiltity which operates a nuclear power plant in Shippingport, Pennsylvania, where it employs

approximately 1000 employees. The Petitioner, International Brotherhood of Electrical Workers,

Local Union 29, AFL-CIO, filed a petition with the National Labor Relations Board under Section

9(c) of the National Labor Relations Act seeking to represent a unit of all full-time and part-time

Senior Nuclear Maintenance Technicians and Senior Nuclear Specialists in the BV-Work

Planning Department; excluding all office clerical employees, guards, professional employees,

supervisors as defined in the Act, and all other employees.2 A hearing officer of the Board held

a hearing and the parties filed timely briefs with me.

          As evidenced at the hearing and in the briefs, the parties disagree on the following

issues: whether the petitioned-for unit of only Senior Nuclear Maintenance Technicians and

Senior Nuclear Specialists in the BV-Work Planning Department or, in the alternative, all of the


1
    The name of the Petitioner appears as amended at the hearing.
2
    The initials “BV” stand for Beaver Valley, the area in which the facility is located.
non-represented, non-professional employees who are employed in the Employer’s Nuclear

Maintenance Department, is appropriate, or whether the appropriate unit must include all of the

non-represented employees who work at the Shippingport nuclear facility.3

        The Employer contends that the only appropriate unit herein is a plant-wide unit

comprised of all non-represented, non-supervisory employees, both professional and non-

professional, while the Petitioner contends that either its petitioned-for unit, or its alternative unit,

is appropriate.4

        I have considered the evidence and the arguments presented by the parties on these

issues. As discussed below, I have concluded that neither the petitioned-for unit nor the

proposed alternative unit of the non-represented employees in the Employer’s maintenance

department is an appropriate unit.     Accordingly, I have issued an Order dismissing the petition.

        To provide a context for my discussion of the issues, I will first provide an overview of

the Employer’s operations. Then, I will present in detail the facts and reasoning that supports

my conclusions on the issues.


                                 I. OVERVIEW OF OPERATIONS

        The Employer operates a nuclear power plant located in Shippingport, Pennsylvania,

that generates electricity.5 This facility provides about one-third of all of the electricity for an

area that is within a 100 mile radius of the site, and is also connected to the grid that provides


3
  The Petitioner already represents about 250 of the employees at this facility in two bargaining units
comprised of employees from various departments throughout the facility. One unit contains about 40
classifications of employees who operate and maintain the equipment, and the second unit is comprised
of employees who primarily perform clerical functions.
4
 The unit sought by the Petitioner would contain 21 individuals. The Petitioner’s alternative unit,
comprised of all of the unrepresented, non-supervisory, non-professional employees in the Maintenance
Department, would contain between 40 and 50 individuals. The plant-wide unit of unrepresented, non-
supervisory, professional and non-professional employees proposed by the Employer would contain over
360 individuals assigned to 38 different classifications.
5
  FirstEnergy Corporation also operates two non-nuclear generating plants in the Beaver Valley area that
are powered by fossil fuels. Neither of those facilities is involved in the instant petition.



                                                   2
electricity to the northeastern area of the United States. In these operations, the Employer

employs approximately 1000 employees. FENOC is a wholly owned subsidiary of FirstEnergy

Corporation, with headquarters located in Akron, Ohio. FENOC operates two other nuclear

power facilities in addition to the one herein. One of those facilities is located northeast of

Cleveland, Ohio and the other is located east of Toledo, Ohio.6 The three nuclear power plants

operated by FENOC are owned by FirstEnergy Nuclear Generation Corporation.

          FENOC’s facility at issue herein is located on approximately 400 acres and contains

multiple buildings. There are two round-domed containment buildings, each housing a nuclear

reactor and its components.           A control room, where the operators perform their work, is located

between the two containment buildings. There are also two large cooling towers that emit

steam that results from the process of generating electricity from the nuclear fuel. Also on the

site, among others, are: an in-plant administration building where the Directors of various

departments as well as the Site Vice-President are located; a seven story office building that

houses staff from the operations, engineering and maintenance departments, as well as various

other employees;7 a site engineering building; an administration building that houses business

services, chemistry and some engineering; a training building; an emergency response building;

and a warehouse building. Eighteen of the employees in the petitioned-for unit work in the

SOSB and three work in the “Fix It Now”, or FIN area, which is located in a building annexed to

the turbine building near one of the containment units.

          The overall operations of the Employer are the responsibility of its Site Vice-President,

Jim Lash. Reporting directly to Lash are the following department Directors: Site Operations –

Pete Sena; Site Engineering – Mark Manoleras; Site Performance Improvement – Larry




6
    Neither of these facilities is involved in the instant petition.
7
    This building is also referred to as the south office shops building, or SOSB.



                                                           3
Freeland; Work Management and Outage – Ken Grada; and Site Nuclear Maintenance – Tom

Cosgrove.8

          Each of the above-described departments has sub-sections that focus on different

aspects of their department’s concentration. Thus, Site Operations has three sections:

Operations, Radiation Protection and Chemistry. Site Engineering has three sections: Plant

Engineering, Design Engineering and Technical Services Engineering. Site Performance

Improvement has four sections: Procedure Controls, Site Training, Site Regulatory Compliance

and Emergency Response. Work Management and Outage has two sections: Outage

Management and Work Management. Site Nuclear Maintenance9 has eight sections: Work

Planning, Construction Services, Maintenance Services, Information Technology Maintenance,

Instrumentation and Control (“I & C”) Maintenance, Electrical Maintenance, Mechanical

Maintenance and FIN Maintenance. The petitioned-for employees are in the Work Planning and

FIN Maintenance sections. Each department has a hierarchy of management, with first-line

Supervisors reporting to the Superintendents, who report to the section Managers, who report to

the department Director.

          Each of the departments has a specific focus in the overall functioning of the nuclear

power plant. Thus, the Site Operations Department focuses on the actual running of the day-to-

day production of electricity. There are many employees in this department who are already

represented by the Petitioner. The Site Engineering Department is focused on the design and

technical aspects of the operation of the plant, and is comprised of both professional Engineers

and non-professionals. The Site Performance Improvement Department focuses on regulatory

compliance, training, emergency responses and procedures, and contains employees who are
8
  The parties stipulated at the hearing, and I find, that the five Department Directors, Sena, Manoleras,
Freeland, Grada and Cosgrove are supervisors within the meaning of Section 2(11) of the Act inasmuch
as they have the authority, inter alia, to hire, fire, discipline, assign and responsibly direct employees. In
addition, in Employer’s Exhibit 7, the Employer submitted a list of 107 other individuals who the parties
agree are supervisors within the meaning of Section 2(11) of the Act. These individuals hold positions
such as Section Managers, Shift Managers, Nuclear Unit Supervisors, Superintendents, and Supervisors.
9
    The Nuclear Maintenance Department is also referred to herein as the Maintenance Department.



                                                      4
classified as Specialists, among others. The Work Management and Outage Department

focuses on the scheduling and overseeing of outages, both planned and unplanned. Many

Specialists, among other classifications, are assigned to work in this department. The Site

Nuclear Maintenance Department is focused on making repairs and performing preventive

maintenance throughout the facility. In addition to the petitioned-for employees, there are many

employees who are already represented by the Petitioner in the Nuclear Maintenance

Department. In addition, the Maintenance Department includes many other employees who are

classified as Specialists, who are not in the initially petitioned-for unit.

           In addition to the above-described departments, there are twelve other sections located

on the site that are referred to as “corporate” areas because they perform functions on behalf of

the parent corporation at this location. Generally, the Managers of these sections report to

higher management in the Akron, Ohio headquarters rather than to Site Vice-President Lash.

The twelve sections are: Special Projects; AA/FFD/Medical Services;10 Oversight; Procurement

Engineering; Supplier Quality; Fleet Licensing; Business Services; Supply Chain; IT;11 Core

Design; Equipment Reliability and Component Engineering; and Lead and Organizational

Development. There are employees assigned to work in these “corporate” sections who are

classified as, among others, Engineers, Specialists, Buyers, and Analysts. These employees

report to the local Supervisors.

           The employees in the unit sought in the petition hold the titles of Senior Nuclear

Maintenance Technicians and Senior Nuclear Specialists. They are also referred to as

“planners” and “lead planners”.12 As described previously, these employees are assigned to the

Work Planning and FIN Maintenance sections of the Maintenance Department. In addition to

Senior Nuclear Maintenance Technicians, the Employer’s facility employs five Associate

10
     “AA” are the initials for “access authority”, and “FFD” are the initials for “fitness for duty”.
11
     “IT” are the initials for information technology.
12
     The petitioned-for employees are also referred to generically as “planners” herein.



                                                          5
Nuclear Technicians, one Nuclear Technician, seven Senior Nuclear Quality Technicians, and

one Nuclear Quality Technician.13 The Senior Nuclear Maintenance Technicians who are in the

petitioned-for unit are assigned to the Work Planning section of the Maintenance Department,

and are the only Technicians who work in that section. The other classifications of Nuclear

Technicians work in the other sections of the Maintenance Department.

        The second classification sought by the Petitioner is that of Senior Nuclear Specialists

who work in the Work Planning and FIN Maintenance sections of the Maintenance Department.

Altogether, there are 77 Senior Nuclear Specialists employed at this facility. In addition, there

are 61 Staff Nuclear Specialists, 47 Advanced Nuclear Specialists, and five Nuclear Specialists.

In the Maintenance Department, there are approximately 15 Nuclear Specialists in the Work

Planning section who are not planners, but whose job duties are to write procedures for both

maintenance, systems engineering and design engineering. Further, in addition to being

assigned to the Work Planning section, there are various classifications of Nuclear Specialists in

the Construction Services section, I & C Maintenance section, and FIN Maintenance section.

There are also various Specialists, including Senior Nuclear Specialists, in the Site Operations

Department, Site Engineering Department, Site Performance Improvement Department and

Work Management and Outage Department. Thus, there are employees in various

classifications of Specialists throughout the facility.

        Of the 21 employees in the petitioned-for unit, 18 of them work in the SOSB. In addition

to the planners, there are employees from many other departments and sections who are based

in the SOSB. Thus, in addition to the petitioned-for Senior Nuclear Maintenance Technicians

and Senior Nuclear Specialists, there are other Maintenance Technicians, operations staff,

engineers, procedure writers, maintenance programmers, schedulers, radiation protection

employees and technical service employees housed in this building.
13
   All of the classifications described in this section of my decision refer to employees who are not already
represented by the Petitioner. They are among the 38 classifications that the Employer asserts should be
included in the unit found appropriate. There are several classifications of technicians among the
employees who are already represented by the Petitioner, but they are not discussed herein.



                                                     6
          The three other employees in the petitioned-for unit are housed in the FIN section,

located in a separate building, which is referred to as the warehouse extension. The FIN

planners only occupy a small section of the building. Thus, in addition to the three planners in

the petitioned-for unit, there are several other classifications of employees who are based in this

building. These include FIN maintenance employees, FIN electrical technicians, FIN

mechanical technicians, FIN I & C technicians, three supervisors and one engineer.14

          The Maintenance Department routinely handles about 250 jobs each week. These tasks

involve surveillance testing and maintenance, as well as disassembling, repairing and replacing

various parts. In addition, the Employer schedules planned outages to refuel the reactors every

18 months. During these outages, one-third of the nuclear fuel is replaced. The outage time

frame is now only about 25 to 30 days.15 During that time, employees in the Maintenance

Department perform approximately 10,000 activities relating to replacement of parts and

preventive maintenance. Much of the planning for the above-described activities is done by the

planners in the petitioned-for unit.

          The Employer has a computer program that it utilizes to generate a work order in the

Nuclear Maintenance Department. This program, referred to as SAP, is utilized within the

industry.16 It includes a method of tracking the various steps of the maintenance procedure for

any given job. Thus, every step of the process, from the identification of a problem or task to be

performed through the assignment of the task to the technician who will perform the

maintenance, is entered into the program and stored. Much of the information entered into the

SAP program for a given job is put into the computer by the planners; however, individuals from



14
   The FIN maintenance employees, FIN electrical technicians, FIN mechanical technicians, and FIN I &
C technicians are all among the employees currently represented by the Petitioner.
15
     This is a considerably shorter period of time than it was in the past.
16
   The record reflects that “SAP” refers to a German computer software system utilized by many nuclear
power plants.



                                                        7
other departments may also enter data during the course of the identification, planning and

execution of the repair or preventive maintenance.

          The initial step in this procedure is the identification of a problem that has developed with

a piece of equipment, a maintenance task that is routinely scheduled, or preventive

maintenance that should be performed. This identification may be made by anyone in the

facility, usually a technician in the operations area, a supervisor, or a specialist. A work request

is then entered into the SAP program and is routinely reviewed by various individuals and a

review committee, which includes reviews by systems engineers, maintenance coordinators,

operations management, plant health committee and surveillance coordinators, as well as other

classifications, to assess the priority of the task. A small number of these work orders are

referred to as “tool pouch” jobs. 17 These are jobs that are very routine and do not require the

planners to engage in much research and planning. The specifications to perform these routine

tasks are contained in prepared procedures that can quickly be provided to the technician.

          The review committee determines whether the job should be assigned to the regular

planners or to the FIN planners. The work request is then sent electronically to one of the lead

planners, who then assigns the job to one of the planners. Once a planner is assigned to a work

request, the planner usually physically goes to the location where the equipment at issue is

located to visually assess the problem. The planner then returns to his desk where, depending

on the task, the type of equipment, and the seriousness of the problem, he might consult with a

variety of individuals and manuals in order to expedite the maintenance work. The planners

frequently consult with procedure writers at this stage of the planning.

          Next, the planner may study vendors’ catalogues to see what parts are no longer being

produced but have been replaced with newer ones. This often results in consultations with

employees in the procurement section. The planner may consult, either electronically,

telephonically or face-to-face, with engineers to discuss the engineering standards that are

17
     It is estimated that about 12 out of about 250 tasks are the tool pouch type.



                                                       8
involved. The planner may also consult, either electronically, telephonically or face-to-face, with

individuals in other classifications such as buyers, quality technicians, analysts and other

specialists in order to develop a work order. Employees in radiation protection may also be

needed as consultants. Further, the planners may need to consult with schedulers in order to

determine when the work should be performed and how that particular task interfaces with other

pieces of equipment and/or other maintenance work that should be performed in conjunction

with the task at issue.

          Once all of the needed consultation is completed and each step in the process is

recorded in the SAP program, the work order is sent electronically to the maintenance

supervisor in the area where the work will be performed. That supervisor reviews the process

and, if there are no further issues to be resolved, the planner then has a clerk print out the work

order, along with any written procedures, drawings, or other necessary documents. These are

put together into a work package, reviewed again by the planner, and delivered by the clerk to

the maintenance supervisor. The maintenance supervisor then assigns it to the technician who

will perform the work.

          The planners spend most of their day working at a desk, where they are provided with a

computer and telephone. When they arrive at the job each day, they sign in on the computer.

The planner then reviews the work assignments they have received for the day in order to

ascertain the priority of the work requests. There is usually a short section meeting of the

planners in the morning to review any pressing issues at hand.18 As previously described, the

planners frequently interact with employees in other classifications and departments. However,

most of this interaction with the other employees outside of their department is done either by

email or by telephone. Face-to-face meetings occur infrequently, usually only a few times per

month. The number, frequency and length of such interactions depends on the problem to be

solved.

18
     The planners in the SOSB have their own meetings, as do the planners in FIN.



                                                     9
         There have been some employees who have transferred into and out of the position of

planner, some to other positions within the Maintenance Department and some involving

positions in other departments. Thus, since July 2000, four employees have transferred into the

position of planner from other classifications, two from other sections of the Maintenance

Department and two from other departments altogether. During the same time period, there

were five planners who transferred out of the position of planner, some within the Maintenance

Department and some to other departments.

         All of the employees in the 38 job classifications of non-represented employees at this

location share many similar working conditions. They all are salaried, although some may

receive overtime and some may not. Among the planners at issue, the regular planners,

whether located in the SOSB or in the FIN area, may receive overtime, but the lead planners do

not. The salaries of all of the non-represented employees are determined by the Human

Resources Department in accordance with corporate policies, which determines the amounts

based on market rates and the individual’s experience and expertise. Raises for all of the

employees at issue are decided upon by the section Managers and are reviewed by both the

Department Directors and the Site Vice-President. Appraisals are done twice each year by the

Supervisors, and are also reviewed by the Section Managers, Department Directors and the

Site Vice- President. Job vacancies are posted electronically, corporate-wide.

         All of the employees in the 38 classifications of non-represented employees throughout

the facility work primarily at a desk, with a telephone and a computer. They all spend the

majority of their time at their desks. They all record their time by computer, and generally work

daylight hours, Mondays through Fridays.19 All of these employees wear their own clothing

rather than a uniform. They are all offered the same benefits from the corporation, including

vacation, personal days, 401(k) plan, health, dental and vision insurance, savings plan, pension,

tuition reimbursement, and so forth. Except for the engineers, who must have a degree in

19
     If there is some emergency, many of these employees may work extra hours and days.



                                                  10
engineering, the other classifications are not required to have any particular degree or licensure,

although many employees do possess engineering or other types of degrees.



                                     II.      COMPOSITION OF THE UNIT



          As previously stated, the Petitioner asserts that the petitioned-for unit, comprised of

Senior Nuclear Maintenance Technicians and Senior Nuclear Specialists who perform the work

of planners in the Maintenance Department, is an appropriate unit in this case. In the

alternative, should the above-described unit not be found to be appropriate, the Petitioner

contends that a unit of all non-represented, non-professional employees in the Maintenance

Department is an appropriate one. The Employer, on the other hand, contends that the two

above-described units proposed by the Petitioner are too limited, and that the only appropriate

unit in this case would consist of all of the unrepresented, non-supervisory employees at the

Employer’s facility.20

          The Petitioner argues that the Board has traditionally held that a unit sought by a

Petitioner need only be an appropriate unit for the purposes of collective bargaining, and need

not be the only appropriate unit, or the ultimate unit, or even the most appropriate unit. Overnite

Transportation Company, 322 NLRB 723 (1996), citing Morand Brothers Beverage Company,

91 NLRB 409, 418 (1950). While this is generally the position taken by the Board, special

considerations apply in situations involving public utilities.

          In cases involving the public utility industry, the Board has long held that a systemwide

bargaining unit is the optimal unit. Alyeska Pipeline Service, Inc., 348 NLRB No. 44, slip op. at 2

(2006); Deposit Telephone Co., 328 NLRB 1029 (1999); Baltimore Gas & Electric Co., 206

NLRB 199, 201 (1973).

          That judgment has plainly been impelled by the economic reality that the

20
     The Employer would include professionals as well as non-professionals in the unit it proposes.



                                                     11
       public utility industry is characterized by a high degree of interdependence
       of its various segments and that the public has an immediate and direct
       interest in the uninterrupted maintenance of the essential services that the
       public utility industry alone can adequately provide. The Board has therefore
       been reluctant to fragmentize a utility’s operations.

       Alyeska Pipeline Service, Inc., id. , citing Baltimore Gas & Electric Co., id.

       However, this preference for systemwide units in cases involving public utilities is

expressed as a rebuttable presumption, and the Board will balance employees’ Section 7 rights

against the public’s interest in uninterrupted utility service to decide whether a smaller unit is

appropriate. Alyeska Pipeline Service, Inc., supra at 2–3. In balancing these interests, the

Board has found a less than systemwide unit to be appropriate where there is compelling

evidence that the employees in the proposed unit share a substantial community of interest, that

the proposed unit conforms to a well-defined administrative segment of the Employer’s

organization and could be established without undue disturbance to the necessary functions of

the company, and that there is no opposing bargaining history on a broader basis. Supra at 3.

Thus, the burden of overcoming the presumption that favors a systemwide public utility unit

rests with the party asserting that a smaller unit is appropriate, which must provide compelling

evidence to support its position. Id. Merely providing evidence that a smaller unit would

otherwise be appropriate is not sufficient to overcome this systemwide presumption.

       While neither party herein is asserting that a systemwide unit is the only appropriate unit,

the Employer is a public utility and, thus, the policy behind the systemwide presumption informs

my analysis of the facts of this case. In this regard, I note that the Board has stated that “the

term ‘systemwide’ does not necessarily mean all employees of the Employer.” PECO Energy

Co., 322 NLRB 1074, 1080 (1997). Thus, even viewing the Employer’s operations on a plant-

wide basis rather than a systemwide one, the Petitioner would still bear the burden to provide

compelling evidence that the employees in the proposed unit share a substantial community of

interest, that the proposed unit conforms to a well-defined administrative segment of the

Employer’s organization and could be established without undue disturbance to the necessary

functions of the company, and that there is no opposing bargaining history on a broader basis.



                                                 12
In the instant case, I find that the Petitioner failed to provide compelling evidence of these

factors with regard to either its initially proposed unit or its alternative unit. Consequently, I find

that neither unit proposed by the Petitioner is appropriate.

        The substantial community of interest required to be shown in cases involving the public

utility industry to support the appropriateness of a less than systemwide unit is greater than the

community of interest required to be shown in order to establish “an appropriate” unit in other

industries. Even if I were to accept the Petitioner’s contrary argument that traditional community

of interest factors should be utilized to determine the appropriateness of the petitioned-for

unit(s) herein, I would conclude that the record fails to establish the appropriateness of either of

these requested units. Clearly then, the Petitioner has not established by compelling evidence

that the employees in these units share the substantial community of interest required in the

public utility industry.

        The petitioned-for unit sought by the Petitioner consists of 21 employees in the

Maintenance Department. These employees are referred to as “planners”, and their primary job

task is to prepare a work plan so that the maintenance employees can repair, replace or

maintain equipment. When analyzing a traditional community of interest as proposed by the

Petitioner, the Board weighs various factors including the following: methods of wages or

compensation; hours of work; employment benefits; supervision; job qualifications, training and

skills; job functions and amount of working time spent away from the site; contact with other

employees; integration of job functions and interchange with other employees; and history of

bargaining. Overnite Transportation Company, supra at 724, quoting Kalamazoo Paper Box

Corp., 136 NLRB 134, 137 (1962).

        While the planners have some of the above factors in common, it is clear that there is

not compelling evidence that this establishes a substantial community of interest among the

planners. The planners perform similar work in two different locations, and report to different

supervisors in the FIN and Work Planning sections of the Maintenance Department. The

planners’ benefits are the same as all employees of the Employer corporate-wide. While the


                                                  13
planners’ job duties and job qualifications are all similar, as are their training and skills, their job

is highly integrated with the job functions of employees in several other departments, including

the Site Operations Department, Site Engineering Department, Site Performance Improvement

Department and Work Management and Outage Department. The planners have continuous

contact, by email, telephone and occasionally face-to-face, with employees in these

departments in the course of their work. Thus, the planners’ function is merely a part of the

ongoing process of maintaining the flow of electricity to the public.

        In addition, the plant currently has two units of employees who are already represented

by the Petitioner, and these units are organized plant-wide. Further, there have been some

transfers in and out of this position in the last few years, into both other positions within the

Maintenance Department as well as positions within other departments. Also, many of the

planners hold the same job title of Senior Nuclear Specialist as do many other individuals in

other parts of the Maintenance Department, as well as in other departments at the facility.

While performing their job duties of compiling a work package to solve problems with the

equipment, the planners work at a desk and utilize a computer and telephone in the same

manner as hundreds of other employees at the facility. All of these factors support a finding that

there is an insufficient distinct community of interest among the planners to constitute them a

separate unit herein.21 Accordingly, I find that the proposed unit of all full-time and part-time

Senior Nuclear Maintenance Technicians and Senior Nuclear Specialists in the BV-Work

Planning Department is not an appropriate unit in this case.

        The Petitioner asserts that an alternative to the petitioned-for unit could be a unit of all of

the non-represented, non-supervisory, non-professional employees in the Nuclear Maintenance

Department, which is comprised of eight sections. The sections are: Work Planning, staffed by
21
   Inasmuch as the Petitioner failed to provide sufficient evidence that the planners share a traditional
community of interest, let alone compelling evidence that the planners share a substantial community of
interest, the Petitioner thus failed to establish the first factor required to find a less than systemwide unit
appropriate in the public utility industry. The other factors required for a finding that a smaller unit is
appropriate will be discussed infra, with regard to the alternative proposed unit of all non-represented,
non-professional Maintenance Department employees.



                                                       14
the planners described herein above and other Specialists whose job duty is to write and review

procedures; Construction Services, staffed with Specialists and employees who are already

represented by the Petitioner. The Specialists in this section oversee digging, tower

construction and other projects on the site. Other sections are Maintenance Services, staffed

by employees in several different crafts who are already represented by the Petitioner;

Information Technology Maintenance, staffed by network control technicians who are already

represented by the Petitioner; I & C Maintenance, which maintains small control circuitry and is

staffed by Specialists as well as crafts technicians such as electricians, who are already

represented by the Petitioner; Electrical Maintenance, staffed by employees in crafts who are

already represented by the Petitioner; Mechanical Maintenance, staffed by technicians who are

already represented by the Petitioner; and FIN Maintenance, which does both complex and

simple maintenance projects that require more immediate attention. This section is staffed both

by Specialists and by employees in several different crafts who are already represented by the

Petitioner. Altogether, there are between 40 and 50 employees in this proposed alternative unit,

which includes the 21 planners and between 20 and 30 unrepresented Specialists in the

department.

       As stated previously, in order for the Petitioner to establish the appropriateness of the

requested unit(s) herein, the Petitioner would have to provide compelling evidence that

employees in the Maintenance Department share a substantial community of interest, that the

proposed unit conforms to a well-defined administrative segment of the Employer’s organization

and could be established without undue disturbance to the necessary functions of the company,

and that there is no opposing bargaining history on a broader basis.

       With regard to a community of interest, the Petitioner failed to provide sufficient evidence

that the employees at issue in this department share a community of interest. Specifically,

aside from the planners, who have been discussed herein previously, the Petitioner did not

provide evidence regarding the community of interest shared by the rest of the employees in

this alternative unit. Thus, the record contains no information regarding where the employees in


                                                15
the proposed alternative unit work, to whom they report, what their working conditions and terms

of employment are, what interaction or interchange, or lack thereof, exists, what their job duties

are, what their qualifications and training consists of, and/or what contact they have with other

employees outside of the department.

       The only information in the record regarding the Maintenance Department employees,

aside from the planners, is the following: The record indicates that about 250 employees

employed by the Employer are already represented by the Petitioner, and some, but not all of

the represented employees are in the Maintenance Department. The rest of the represented

employees are scattered throughout the rest of the departments. Thus, the existing units

represented by the Petitioner are plant-wide, and not limited to a specific department. The

record also indicates that the unrepresented employees in this alternative unit, aside from the

planners, are all classified as various types of Specialists. The record further indicates that

there are approximately 190 employees at the facility who have some classification of

Specialist, and many of these employees are assigned to different departments plant-wide.

       Consequently, I find that there is insufficient evidence to conclude that the

unrepresented employees in the Maintenance Department share a distinct community of

interest. Accordingly, the Petitioner has not provided compelling evidence to establish a

substantial community of interest among the employees in its alternative unit.

       The second factor in this analysis is that the evidence must show that the proposed

alternative unit conforms to a well-defined administrative segment of the Employer’s

organization. The record indicates that the Maintenance Department has its own Director, but all

of the department Directors report to the Site Vice President, Jim Lash. Lash meets weekly with

the five department Directors, and has the final authority with regard to appraisals, raises and

other employment issues.

       The Maintenance Department does not appear to have any separate administrative

policies unique to this department. In this regard, the unrepresented employees throughout the

facility follow the same employee policies, work at desks with computers and telephones, spend


                                                16
much of their work day at their desks, work daylight hours Mondays through Fridays, and

receive the same benefits, such as vacations, holidays, health insurance, savings plans,

pensions and so forth. Further, all of the unrepresented employees at the facility sign in on their

computer, wear street clothing, receive training and tuition reimbursement, and receive

appraisals that are reviewed by all of the Department Directors. Many of these terms and

conditions of employment are true of all of FENOC’s employees corporate-wide, not only the

employees at this facility.

       The function of the Maintenance Department is highly integrated with other departments

in the facility. Any work performed from the Maintenance Department must be coordinated with

personnel in other departments or sections, such as Operations, Work Management and

Outage, Performance Improvement, Procurement Engineering and so forth. As discussed

previously, much of the work performed by employees in this department requires input by

employees from other departments. In particular, engineers, buyers and procurement

employees, and radiation protection employees are often consulted during both the planning

and execution of work plans. Clearly, the primary purpose of the Maintenance Department is to

make sure that the operation of the power plant runs smoothly and safely, and the department is

a part of an integrated system.

       With regard to the conformance of the requested unit(s) to a well-defined administrative

segment of the Employer’s organization, the record does not establish that the Employer is

administratively organized on a departmental basis, and therefore the Petitioner failed to

establish, based on this factor, that a unit limited to employees in the Maintenance Department

at the Employer’s Shippingport facility would be appropriate herein.

       In order for a smaller unit to be found appropriate, the Petitioner must also provide

evidence that the smaller unit could be established without undue disturbance to the necessary

functions of the company. Once again, the Petitioner failed to provide evidence that this could

be accomplished in its requested unit(s). To the contrary, the Maintenance Department is

essential for the smooth and safe operation of the nuclear power plant, and it appears that the


                                                17
operation of the power plant could be severely disrupted if there were to be a labor problem in

the Maintenance Department. The Maintenance department is assigned approximately 250

jobs daily. Clearly, the nuclear power plant would have difficulty operating if the Maintenance

Department were not functioning, and the entire area within a 100 mile radius, or perhaps even

parts of the northeastern United States might have electricity shortages if this facility were not

operating properly. Thus, I find that the Petitioner failed to present evidence to prove that its

requested unit(s) could be established herein without causing undue disturbance to the

necessary functions of the operation. See, Alyeska Pipeline Service, Inc., supra at 5.

       The final factor to examine is whether or not there is any opposing bargaining history.

The employees at issue in the Maintenance Department have not previously been organized.

However, as previously discussed, approximately 250 employees of FENOC are already

represented by the Petitioner in two units who work under one common collective-bargaining

agreement. Those two units are organized by classification plant-wide, not departmentally. In

the instant case, the Petitioner is seeking to organize the employees in one department, even

though there are many employees in other departments with the same classifications. Thus, to

the extent there is any bargaining history, that history does not favor the smaller units herein

sought by the Petitioner.

       In its Brief, the Petitioner relies on two cases in support of its position that a less than

systemwide unit is appropriate herein. The two cases relied upon are The Concord Telephone

Company, 248 NLRB 253 (1980) and Deposit Telephone Co., 328 NLRB 1029 (1999). For the

reasons stated below, neither of these cases convince me that the smaller units requested by

the Petitioner are appropriate herein.

       In The Concord Telephone Company, the Board found that a departmental unit of all

“field” employees was appropriate. In that case, the Board found the Employer’s plant

department to be a distinct administrative group, reporting to its own vice-president, with little

interchange with other employees. Significantly, the unit found appropriate in that case was a

systemwide one, including employees in the department who were employed at four different


                                                 18
exchanges operated by the Employer. In The Concord Telephone Company, the Board found

a clear distinction between the employees who worked in various positions in the offices, and

the field employees. However, the plant departmental unit found appropriate therein was

systemwide.

       In Deposit Telephone Co., the Board utilized the factors described previously to analyze

the appropriateness of a less than systemwide unit in the public utility industry. In that case, the

Petitioner was seeking to represent the employees in the Employer’s field operations. The

Board found that the Employer therein made a clear administrative distinction between its field,

or “outside” employees, and its other employees. The Board found very little interchange,

different physical locations, and a lack of evidence that the Employer’s ability to perform its

necessary functions would be hindered by the existence of the petitioned-for unit. As in The

Concord Telephone Company, the requested unit found appropriate included all of the

petitioned-for employees employed across the Employer’s system.

       I find the Petitioner’s reliance on these two cases unpersuasive inasmuch as both of

these cases are clearly distinguishable from the instant case. Unlike The Concord Telephone

Company, all of the employees at the facility report to Vice-President Lash, and the Petitioner

herein is not requesting a systemwide departmental unit as was found appropriate in that case.

Unlike both The Concord Telephone Company and Deposit Telephone Co., FENOC’s

unrepresented maintenance employees have many of the same job classifications, work in the

same locations, and have the same working conditions as many employees in several different

departments. Thus, in the instant case, unlike the above-discussed cases, the unit(s) requested

by the Petitioner do not share a substantial community of interest and do not conform to

administrative segments of the Employer’s operations which could be established without undue

disturbance to the Employer’s ability to perform its necessary functions. Significantly, both of

the “departmental” units found appropriate in these cases included employees systemwide.

Thus, these cases do not support the Petitioner’s arguments in favor of the limited unit(s)

requested herein.


                                                 19
        Accordingly, I find that there is a lack of compelling evidence herein to find that a unit of

either all full-time and part-time Senior Nuclear Maintenance Technicians and Senior Nuclear

Specialists in the BV-Work Planning Department or, in the alternative, all non-represented, non-

professional employees in the Maintenance Department at FENOC’s Shippingport,

Pennsylvania, facility is appropriate. Inasmuch as the Petitioner has not indicated that it wishes

to proceed to an election in any unit other than the two units described above, I shall dismiss the

petition in this matter.22



                                 III. FINDINGS AND CONCLUSIONS

        Based upon the entire record in this matter and in accordance with the discussion

above, I find and conclude as follows:

        1.       The hearing officer’s rulings made at the hearing are free from prejudicial error

and are affirmed.

        2.      The Employer is engaged in commerce within the meaning of the Act and it will

effectuate the purposes of the Act to assert jurisdiction in this matter.

        3.      The Petitioner claims to represent certain employees of the Employer.

        4.      No question affecting commerce exists concerning the representation of certain

employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the

Act.

                                               IV. ORDER

        IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed.




22
   As I have found that the unit(s) sought by the Petitioner are not appropriate and the Petitioner has not
indicated that it wishes to proceed to an election in any other unit, I need not reach the issue of the
appropriateness of the unit suggested by the Employer.



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                                 V. RIGHT TO REQUEST REVIEW

        Under the provisions of Section 102.67 of the Board’s Rules and Regulations, a request

for review of this Decision may be filed with the National Labor Relations Board, addressed to

the Executive Secretary, 1099 14th Street, N.W., Washington, D.C. 20570-0001.23 This request

must be received by the Board in Washington by 5 p.m., EST (EDT), on June 7, 2007. The

request may not be filed by facsimile.




        Dated: May 24, 2007




                                                        Stanley R. Zawatski, Acting Regional Director

                                                        NATIONAL LABOR RELATIONS BOARD
                                                        Region Six
                                                        Two Chatham Center, Suite 510
                                                        112 Washington Place
                                                        Pittsburgh, PA 15219
Classification Index
440-1720-0100-0000
440-1740-5000-0000
440-1760-1000-0000




23
  A request for review may be filed electronically with the Board in Washington, D.C. The requirements
and guidelines concerning such electronic filings may be found in the related attachment supplied with the
Regional Office’s initial correspondence and at the National Labor Relations Board’s website,
www.nlrb.gov, under “E-Gov.”




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