Maine Yankee Atomic Power Co. v. N.L.R.B., 79-1311
| Decision Date | 16 May 1980 |
| Docket Number | No. 79-1311,79-1311 |
| Citation | 624 F.2d 347 |
| Parties | 104 L.R.R.M. (BNA) 2902, 89 Lab.Cas. P 12,159 MAINE YANKEE ATOMIC POWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Lawrence M. Kearns, Boston, Mass., with whom Ellen C. Kearns and Morgan, Brown, Kearns & Joy, Boston, Mass., were on brief, for petitioner.
Robert I. Tendrich, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and Howard E. Perlstein, Atty., Washington, D. C., were on brief, for respondent.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
Maine Yankee Atomic Power Company (the "Company") petitions to review and set aside an order of the National Labor Relations Board, and the Board cross-applies for enforcement of its own order, 1 pursuant to sections 10(e) and (f) of the National Labor Relations Act (the "Act"). The sole issue is whether certain company employees known as Shift Operating Supervisors (SOS's), who are in charge of the control room, the nerve center of the company's nuclear power plant in Wiscasset, Maine, are, as the Company contends, "supervisors" within section 2(11) of the Act and therefore exempt from inclusion in a bargaining unit consisting of the Company's production and maintenance employees. The Board holds they are not supervisors.
The Company's nuclear facility in Wiscasset commenced operations in 1972. In the same year, the Board first certified a bargaining unit of production and maintenance workers at the plant. Representing the unit, then as now, was the Utility Workers Union of America, AFL-CIO (the "Union"). As constituted in 1972, the unit included all "probationary and permanent hourly operating and maintenance employees . . .," but it specifically excluded "office clerical employees, professional employees, guards, supervisory control room operators and supervisors as defined in the Act." (Emphasis supplied.) The position presently in issue i. e., shift operating supervisor, or in shorthand, "SOS" is essentially the same as the excluded position then called "supervisory control room operator." 2
On April 18, 1978, the Union petitioned the Board for an election to expand the production and maintenance unit so as to include SOS's as well as a number of other categories of professional and technical employees. There followed, in May 1978, several days of hearings before a Hearing Officer during which evidence was received on the nature of the various positions sought to be included in the expanded unit. The Company insisted that the SOS's were supervisors, hence exempt from any unit, and were, in any event, professional employees. 3 On August 7, 1978, the Acting Director of the First Region issued his Decision and Direction of Elections in which, inter alia, he ruled that SOS's were not supervisory employees, and, moreover, that they failed to met the Act's strict statutory requirements for professional employees. 239 NLRB 161. See note 3, supra. The Company appealed the denial of supervisory status to the Board, which granted review and ultimately affirmed the Acting Regional Director's determination that the SOS's were not supervisors, and should be included in the production and maintenance unit. 243 NLRB 52. Meanwhile, the election had taken place subject to impoundment of the SOS's ballots. After the Board affirmed Region 1, the impounded ballots were counted, and it was confirmed that a majority of the votes from the entire unit favored the Union. In order to secure judicial review of the Board's inclusion of SOS's in the unit, the Company refused to bargain with the Union; this led to an unfair labor practice charge and a Board decision and order holding the Company guilty of violation of section 8(a)(5) and (1) of the Act. See note 1, supra. The Board seeks our enforcement of that order, while the Company asks us to set it aside.
The decisions of the Acting Regional Director and the Board are based on a transcript of hearings in June of 1978 before Hearing Officer Kevin J. Murray, which involved a host of other jobs besides the six SOS positions here in dispute. On the SOS issue, the Company called as the chief witnesses its plant manager, assistant plant manager, operations department head, and one of the SOS's. The Union called two other SOS's. Regarding the main features of the position, we find little or no significant disagreement between witnesses. Our summary of the facts is thus based almost entirely on undisputed testimony. Where the facts admit of differing interpretations, we shall so indicate.
Maine Yankee's generating system is a pressurized water reactor that differs from that used at a conventional coal or oil-fired generating plant in the significant respect that heat for the boiler is produced by nuclear fission. The electricity is thereafter generated in the normal manner by means of steam-powered turbines. We take judicial notice that a nuclear reactor, because of the enormous forces involved and a possibility of radioactive contamination, entails a potential for harm to property 4 and life in event of accident, of an order altogether different from that of a conventional power plant. The "gravity of the resulting injury" that would occur in the almost unthinkable event of a serious accident requires the owner of a nuclear facility, acting through its employees, to exercise extraordinary vigilance at all times. Cf. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (L. Hand, C. J.). 5
The principal parts of the Maine Yankee plant the reactor, boiler, cooling systems, etc. are spread out over considerable ground in six main buildings, with the entire complex being surrounded by security fences and gates. Made up of hundreds of thousands of individual components, the plant machinery is organized into some 60 or 70 "systems," bearing descriptive names such as the service water system, let down system, charging system, safety injection system, reactor cooling system, and so on. 6 Each system is separately controllable, in that it can be "placed in service" or "taken out of service" by controls located in the plant's single central control room; to accomplish this, however, actions taken in the control room must often be supplemented by the manipulation of other controls sometimes called auxiliary controls associated with particular pieces of machinery and located elsewhere around the plant in one of the six buildings. Thus, besides the personnel whose duty station is the control room, there are other personnel, called Auxiliary Operators (AO's), whose function it is to manipulate the auxiliary controls out in the plant upon directions from, and in coordination with, the actions being taken in the control room. See note 6, supra.
A number of the systems and certain components, such as, for example, pumps, are redundant, i. e., back-ups, capable of being switched in to take over for a similar system or component that has been temporarily removed from service because of a malfunction, or perhaps for scheduled maintenance. Thus a defective pump or cooling system can be taken out of service, and a back-up placed in service in its stead.
Besides regular operations systems, there are also systems maintained solely for emergency use such as the safety injunction system. If needed during an emergency, this system would be deployed automatically or manually to provide additional cooling to the reactor. The operators must see that it is maintained in a ready state, checking, for example, that the right amount of nitrogen gas is at all times present.
The control room was aptly described by the Acting Regional Director as "the plant nerve or safe-guard control center." From here the status of all ongoing systems is continually monitored on a vast array of electronic monitoring and sensing devices, viewing screens, alarm and trouble indicators, gauges, etc., which cover its walls. The myriad instruments show temperatures, pressures, flow levels and so on; and control room personnel are charged under federal and Company rules with maintaining continuous records and logs based on this data, and recording all significant events including any changeovers in the systems and components in use. When one control room shift goes off duty and another takes its place, the log is passed to the incoming shift much as a ship's log is passed from watch to watch while at sea.
Should a malfunction occur in any of the plant equipment, wherever located, the control room instruments will so reflect and alarms will soon sound or flash in the control room. Serious malfunctions will cause the plant automatically to "trip," i. e., cease generating electricity. Such an event has occurred, according to the operations department head, perhaps three times a year, and is costly to the Company as well as potentially embarrassing, since it may reflect some oversight in maintenance or in proper procedures. Prior to the automatic trip point being reached, therefore, it is hoped that those on duty in the control room will have noted the problem and, in the words of the operations department head, Mr. Paine, "made some kind of decision" so as to forestall the trip. Although many of the systems and safety devices are automatic, components can be operated manually from the control room by personnel there, if required, and according to Mr. Paine, manual operation has occurred at one time or another with respect to all the systems. Should, therefore, a rise in temperature, or a decrease in flow or pressure be noted, analysis is immediately undertaken to identify the problem; should it be ascertained that, for example, a cooler is plugged or...
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