ML20214C477

Forwards Arbitrator 861016 Opinion & Award That Util Removal of Radio from Control Rooms W/O Prior Negotiations W/Local 160 of Intl Brotherhood of Electrical Workers Improper.Radio Returned to Control Room.Negotiations W/Union Underway

ML20214C477
Person / Time
Site:	Monticello, Prairie Island, 05000000
Issue date:	10/16/1986
From:	Gilberts D NORTHERN STATES POWER CO.
To:	James Keppler NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III)
Shared Package
ML20214C365	List: ML20214C362 ML20214C413 ML20214C477
References
NUDOCS 8611210118
Download: ML20214C477 (17)

Text

_

Northem States Power Company

- 2_ 414 Nicollet Mall D. E. Gilberts Minneapoks. Minnesota 55401 Senior vice President Telephone (612) 330-6071 Power Supply October 16, 1986 I fp% t P, t!'h '

Mr. James G. Keppler Administrator, Region III United States Nuclear Regulatory Commission 799 Roosevelt Road Glen Ellyn, Illinois G0137 RE: Monticello Radio Arbitration

Dear Mr. Keppler:

On October 6, 1986, Northern States Power Company (NSP) was formally notified that the Arbitrator had reached his decision in the dispute between NSP and Local #160 of the International Brotherhood of Electrical Workers (160) over the removal of the radio from the Monticello control room.

Arbitrator J. C. Fogelberg, selected through the Federal

- Mediation and Conciliation Service, determined that NSP had improperly removed the radio from the control room without prior negotiations with Local #160. A copy of that decision is attached to this letter as Attachment #1. In the week that has followed our receipt of that decision, you and I have discussed the matter at some length. The purpose of tnis letter is to orierly summarize tne tactual cacxgrounc of the decision and briefly summarize the options presently available to NSP.

While a complete discussion of the factual background of the arbitration case can be found in NSP's Arbitration Brief, pages 1 - 7, the following summary discussion is necessary to understand the options open.to.NSP,. (A copy of NSP's post hearing,_ Arbitration Brief, is attached to this letter as Attachment-#2.) Although NSP began commercial operations at its Monticello Nuclear Power Plant in July 1971, radios had been in the control rocm since the first operators were there in 1969. However, we had controlled and limited the use of the radio in the control room through an Administrative Control Directives (ACD). Following the NRC's issuance in February of 1981, of Circular No. 81-02, we issued an ACD, No. 4 ACD-4.7, entitled " Plant Operator Control Room Activities." Paragraph 6.2.4.3 of that ACD states as follows:

"Potentially distracting activities in the control room, watch stations, and other operating work areas shall be prohibited. This shall include such items as TV, 8611210118 861112 PDR G

ADOCK 05000263 PDR

October 16, 1986 Mr. James G. Keppler Monticello Radio Arbitration Page 2 alcohol use or drug abuse, games, horseplay, hobbies l and reading that is not directly job-related. Use of radios may be allowed provided the radio is tuned to a background music program (with only brief broadcast of news, sports, weather, etc.) and the volume is turned down to a non-distracting level. Radios shall not be turned to sports broadcasts, extensive news programs, talk programs, etc. where prolonged attentiveness would be distracting to operating activities."

We have never had a problem with the use of radios in the control rooms of either the Monticello or Prairie Island Nuclear Power Plants.

• On July 19, 1985, William O. Dircks wrote NSP's President and Chief Operating Officer requesting that the Company consider an updated version of the 1981 NRC Circular.

Mr. Dircks suggested that NSP's president was responsible for safe nuclear operations and that operators in the

• ' serious business of operating a nuclear plant needed close attention to duties in a strictly business-like atmosphere.

At the same time, I was advised by the regional office in Chicago that Dircks was adament and no radios or piped-in music would be acceptable to the NRC. Accordingly, we

' removad tha radio? from the Menticelle end rrciric Isisnd control rooms. However, I also wrote the NRC requesting an alternative in the form of a tape deck with tapes con-taining "no vocal selections, no talking, no raucous type music and with loudness controlled to a non-distracting level." In a letter dated September 10, 1985, Mr. Dircks wrote back stating that he had concluded that playing of radios or music could have a potentially significant nega-i tive effect on attentiveness and.shile-he appreciated NSP's efforts to arrive at a reas6nable alternative, hr. concluded that the NRC's original conclusions were still valid.

Following removal of the radio and the Dirck's letter, Local 160 chose not to file a complaint with the National Labor Relations Board, but rather filed a grievance under its current collective bargaining agreement with NSP. No grievance was filed by Local 949, the local representing

' the operators at NSP's Prairie Island Nuclear Power Plant.

Since we refused to compromise on the removal of the radio from the control room, an Arbitration was scheduled for early July, 1986. Prior to the actual Arbitration hearing, we had been in contact with Region III suggesting the NRC's parcicipation in the Arbitration process. Following our receipt of the Arbitrator's Decision on October 6, we

- - - , w _,- ,. , , , , , - , - --

October 16, 1986 Mr. James G. Keppler Monticello Radio Arbitration Page 3 returned the radio to the control room at Monticello, but not at Prairin Island. The decision of the Arbitrator was unequivocal, the radio had to be returned to the Monticello control room immediately. Unless the Arbitrator's award is legally deficient, our only recourse is to seek removal of the radio through good-faith negotiations with Local 160.

- Under Minnesota Law, an Arbitrator is vested with broad powers. He is authorized to make a final and binding decision, from which there is no appeal. In the words of the Supreme Court of Minnesota, an Arbitrator is "the final judge of both law and fact, including the interpretation of the terms of any contract . .

. [H]is Award will not be reviewed or set aside for mista'ke of either law or fact

. . . Fischer v. Guaranteed Concrete Co., 276 Minn. 510, 515, 151 N.W. 2d 266 (1967).

Under Minnesota Law, an Arbitration Award can be vacated if the Arbitrator exceeded his powers. In analyzing the attached Award, it is clear that Arbitrator Fogelberg did not decide any issue that was not within the scope of the grievance. Thus, he did not exceed his powers by deciding an issue which was not before him.

Minnesota Law also provides that an Arbitration Award can be vacated if it can be proven that the Award was procured by corruption, fraud or other undue means, or if the Arbitrator was guilty of misconduct prejudicing the rights of either party. Strong proof is required before any court would vacate an award on these grounds. In Minnesota, it is very rare that an arbitrator's award has ever been vacated. Our Law Department is not aware of any facts under which this case could ever qualify under the corruption, i fraud or misconduct provisions: . .

. '. (

In short, wer had no option' but to return the radio to the Monticello control room under strict administrative control.

If the radio is to be removed, it must be done following l negotiations between NSP and Local 160. Currently, we have requested that Local 160 participate in discussions with the

Company regarding removal of the radio as soon as possible.

(Attachment #3).

Finally, if we were now to remove the radio from the control room, or had we failed to return the radio to the control room, Local 160 would be able to proceed either to court seeking injunctive relief or to the regional office of the National Labor Relations Board. I have been advised by our Law Department that the union would almost certainly prevail in either forum.

m October 16, 1986 Mr. James G. Keppler Monticello Radio Arbitration Page 4 In conclusion, we were left with no real options following the arbitrator's decision in the Monticello radio case.

We had to return the radio to the control room and must seek its removal through the collective bargaining process.

I will certainly keep you postad on the progress of those negotiations.

If you have any questions, or need any additional infor-mation, please do not hesitate contacting me.

e Sincerel r- C. EG ,

Dennis Gilberts c: D. W. McCarthy C. E. Larson L. R. Eliason J. L. Bechthold J. F. Sj oholm D. G. McGannon e 9 e

f

r In the Matter of Arbitration OPINION & AWARD between Grievance Arbitration The International Brother- Re: Removal of Radio from hood of Electrical Workers, AFL-CIO Local 160 Control Room

-and- FMCS File No.: 86K/03487 Northern States Power Company, Northwest Division, Before: J. C. Fogelberg, St. Cloud, Minnesota . Neutral Arbitrator Appearances -

For the Union:

William Baird, Business Representative Robert Fisher, Control Room Operator Keith Yeager, Control Room Operator Thomas Harlander, Control Room Operator For the Company:

Uack 5jviivim, Ju., Alterr.cy Dennis E. Gilberts, Vice President - Power Supply Douglas D. Antony, General Superintendent, Monticello Plant Gerald Neils, General Manager - Nuclear Group Ray Berg, Consultant Statemento'fJurisdichionk-The Collective Bargaining Agreement executed by the parties provides for an appeal to arbitration of those disputes which remain unresolved after being processed through the grievance mechanism. The neutral arbitrator was selected from a panel submitted by the Federal Mediation and Conciliation Service

l Office of Arbitration and a hearing convened on Thursday, July 10th in Monticello, Minnesota. The hearing was conti-nued the following day and thereafter post-hearing written summaries were submitted by the parties and received on or before August 2 , 1986. At that time, the hearing was deemed officially closed. -

The parties have stipulated that the matter is properly before the Neutral for resolution on its merits and that the following represents a fair description of the issue.

The Issue -

Was the removal of the radio from the Control Room at the Monticello plant within the Employer's prerogative and Justirlaole under che circum =Lanuc57 Preliminary Statement of the Facts -

The company owns and operates two nuclear power facilities

~

which generate electricity throughout a designated geographic area in the Upper Midwest. Each of the plants ("Monticello" and " Prairie Island") house a control room which is staffed by Control Room Operators. There are approximately 18 operators in each facility who are divided between three separate shifts.

These people are among the most senior members of the bargaining unit represented by the IBEW Local 160, an'd are highly trained

. and qualified individuals who have been entrusted with the day-to-day control and operation of each nuclear power plant.

As such, they are required to meet the rather rigid licensing standards developed by the Nuclear Regulatory Commission (NRC) and to be tested and re-tested periodically in order to demonstrate their continued competence. The operators work on a " rotating schedule" to accommodate the company's required 24-hour coverage, 365 days a year.

Prior to the start-up of the Monticello plant in 1970, a radio receiver was placed in the Control Room which provided background music for the Operators to listen to during the course of their shift. The radio remained there without incident until July of 1985. On July 12th, the Nuclear Regulatory Commission issued "Information Notice No. 85-53" concerning the perform-ance of NRC licensed individuals while on duty. The notice stated that the playing of radios could potentially distract personnel and advised all utilities throughout the country to take action "to ensure the highest _ Control Room standards."'

On July 19, 1985 Mr. William Dircks, then the Executive Director for Operations, United States Nuclear Regulatory Commission, issued a letter to Mr. Bruce Richards,.then President and Chief Operating Officer for Northern States Power Company

n- .

l transmitting a copy of Information Notice No. 855-53.

On July 29th, the Superintendent of Operations for the Monticello plant was instructed by the Plant Manager to remove the radio from the Control Room. This instruction was the result of a decision made by management at the urging of James Keppler, Regional Administrator, Region III, NRC.

On August 19, 1985 Dennis Gilb rts, NSP Senior Vice President, Power Supply, submitted a letter to Mr. Dircks proposing the installation of a tape deck as an alternative to the radio.

Dircks responded to Mr. Gilberts' letter on September 10,

- 1985 indicating that the playing of radios or music in the Control Room is unacceptable to the Nuclear Regulatory Commission. There followed numerous meetings at various levels between management end the local union in an effort to resolve this issue, as the Operators affected by the removal of the radio believed it to be improper and udjust.

Eventually, on October 8, 1985, the matter was reduced to a formal written complaint;and thereafter appealed to binding arbitration on November 4th.

Position of the Parties -

The UNION takes the position that the Employer violated the labor agreement and established past practices when it unilaterally removed the radio from the Control Room at the

Monticello plant. In support of this position, the Local contends that the practice of radio use in the Control Room was a known and condoned practice - one that has continued without interruption since the inception of the plant.

Further, the Union adds that there was no evidence indicating that the radio has ever been a problem in the Control Room, that it has been a benefit to.the employees rather than a hindrance as it assisted the Qperators in making them more attentive to their work, especially during the afternoon and midnight shifts. Finally, the Local notes that various arbi-tration awards in the past establish the fact that past practice can be incorporated into an agreement to the extent that negotiations are necessary if a change is to be made.

In conclusion, the Local asks that this grievance be sustained and the radio be forthwith returned to the Control Room.

Conversely, the COMPANY maintains that it had a right to remove the radio without prior negotiations with Local 160 and therefore did not act in violation of the Contract in doing so. .In support'.foq their position) management maintains that the use of the radio in the Control Room in the past has been regulated by the Company and that periodically it has

+ issued directives affecting the use of the radio without first negotiating with the Local concerning the restriction.

Further, management points out that the Union has never grieved I

n these directives, thereby acquiescing to management's author-ity, and that this alone demonstrates that the Company has retained its discretion concerning the control and use of the radio. Finally, the Utility notes that while it has attempted to refrain from the removal of the radio altogether as it perceives it to be a help more than a hindrance, it is nevertheless left with no choice but to remove the appliance given the " strong suggestions from the Nuclear Regulatory Commission urging the Company to do so. For these reasons then, the Employer seeks the denial of the grievance.

A Discussion -

In their written summaries both sides indicated that the scope of this rather unusual issue can be readily narrowed to a question of whether or not the Company has the right to unilaterally remove the radio from the control room at the Monticello plant. Perhaps the dispute can be even more succinctly stated in terms of.whether or not the Employer can disconEinue a past practice without first negotiating with the Union.

This matter is indeed unique inasmuch as there is no true threshold issue concerning the validity of the practice itself. Both parties concur that when the Company took possession of the plant in 1970, the radio was already in place in the control room and being used by the Operators.

In the succeeding years, it remained a constant fixture there, being utilized consistently by the employees who were assigned to the area.1 Thus, there can be little doubt but that the use of the radio in this instance meets the common and widelir accepted standards of an " established past practice." No one denies its existence. No issue has been raised regarding its consistent use over a substantial period of time (15 years). Indeed, the adduced evidence plainly demonstrates the establishment of a readily ascertain-able practice that was accepted by both parties dating back to the first day that the Company began to operate the facility.

' ~

In point of fact, management has acknowledged its acceptance of the practice and has gone so far as to resist the removal of l

the radio, believing that the music in the control room has a l

positive affect on the operators, in the face of " strong sug-gestions" to the contrary, issued by the Nuclear Regulatory Commission 2, l

From. time to time \ mariagement issued " Administrative Control Docu-l ments" (ACD's) which modified the use of the radio. However, at no time was the appliance ever removed from the control room until late July of last year.

Throughout the course of these proceedings, it was clear that the urgings of the NRC played an integral part in management's decision to remove the radio. The Commission however, is not a party to t'.e collective bargaining agreement and did not pcrticipate in these 'ceedings. However, the juris-diction of the Arbitrator lies within the es .ract negotiated between the Company and the Union. The issue placed before thp Neutral has as its genesis, the collective bargaining relationship between these two parties as manifested in their contract. What is being sought here by management and union alike, is a ruling based upon that relationship vis-a-vis the terms and conditions of employment derived from their agreement. Thus the Arbitrator must conclude that the views of the NRC as expressed in their " informational circulars," while noted, are not binding upon these proceedings.

The evidence of a well established practice notwith-standing, the Utility contends that the use of the radios was a " practice that had been historically controlled by management and therefore one that can legitimately be dis-continued unilaterally." In this regard, the Employer cites the various " Administrative Qontrol Documents" issued by the Utility over a number of years (Employer Exhibits 8 and

9) which placed certain limitations on the use of radios by Control Room Operators. In the Employer's view, this evidence establishes two salient facts: (a) that NSP at

" - all times has retained control of the radios (even though they were actually owned by the employees) and; (b) that the Company has-never agreed to their unrestricted use.

Moreover, the Company paints Gut that pricr tc the filing of the instant grievance, the Union has never objected to any of these changes governing the use of the radio. Based upon these facts, management reasons that the " practice,"

I though acknowledged, dogs not nowlbind the Employer to its continuance. Rather, the distinction is made between a binding practice and one that has merely'been permitted to continue at management's discretion.

In support of their argument the Company cites the decision of Arbitrator Harry Shulman in Ford Motor Company, i 19 LA 237 (1952),wherein the distinction is made between a

j 4

practice brought about through mutual understanding versus one that may be based upon " choices made by management in the exercise of their discretion as to the convenient methods at that time.a3 The Company also cites other i

arbitration awards which indicate that where there is no mutual agreement between the parties regarding a practice, and even though it has continued over a significant period of time, it does not follow that the Employer thereby for-feits its right to unilaterally discontinue the practice.

The Arbitrator is not persuaded that the use of the radio over a 15 year period can be attributed solely to the discretion of management - that it has been simply permitted to continue "without design or deliberation." By the Utility's own admission it has, in its dealing with the NRC, endeavored to retain the radio in the control room raLiset than remove it. Indeed, the Employer made it quite. clear that only after repeated attempts to secure its continued use in the control room fell upon deaf ears at the Commission, did it take unilateral ~iction and order the radio's removal.

The Utility's resistance to the NRC's " suggestions" was based in no small part upon its belief that the appliance was a help, not a hindrance to the Operators - that the 3

At page 241.

background music enhanced the employees' attentiveness.

Clearly, the company has viewed its use as:a benefit. It is equally clear from the evidence that the Union has also looked upon the radio as being a benefit. Testifying on behalf of the operators, Chief Steward Robert Fisher (himself a Lead Plant Equipment and Reactor Operator) indi-cated that the employees aff cted by the Company's actions viewed the usage of the radid as an aid - one that pre-vented boredom and was valued by those people assigned to the Control Room (especially those on the afternoon and evening shifts when many of the facility's other employees were no longer present).

In their widely accepted treatise on arbitration, authors Elkouri and Elkouri,in How Arbitration Works (BNA 4th ed.) note that a distinction has evolved between those practices which are considered " binding" and those which are not, based largely upon whether the matter in issue involves " methods of,operati'on.or, direction of the working

E i

force, or whether it involves a 'banefit' of peculiar personal value to the employees..." 4 The authors then cite several examples of practices involving a

" benefit" of p.eculiar personal value to the employees as opposed to the exercise of basic management functions by 4

At p. 440.

l .. ._ _ -_. -.

the Employer. Some of the those referenced include such items as wash-up periods, coffee breaks, assistance in starting cars in cold weather, and the use of personal coffee pots and radios on company premises (the latter being a cesa cited by Local 160 in the instant dispute).

It is further noted in the treatise that where a custom has been enforced and held to be binding upon the parties, the element of mutuality has' been inferred , thus an " implied mutual agreement." In summary, the authors note that in the final analysis, " management in most cases is not really~

oppressed when it is required to continue customary bene-In the fits for the remainder of the contract term."5 Arbitrator's view, the facts surrounding the instant dispute fit within this classification. The use of the radio in the control room at the Monticello plant must cetLaluly be considered more of a benefit to the employees than any restriction of legitimate management functions regarding its methods of operation. ,,

The Utility has' fuhther contended that its unilateral modification of the rules concerning the use of the radio over the years demonstrates that it has consistently retained discretion to control and limit the practice. It follows then, according to the Employer, that the element of mutuality is Ibid, p. 445.

l absent in this instance and that the decision to remove the radio falls within its managerial prerogative. There is however, a definitive line of decisions which hold that a given practice may be binding on management, but at the same time have reserved the right of the employer to regu-6 The arbitral reasoning in these late against abuse.

casesholdsthatwhilethep)acticeisconsideredabenefit and therefore binding on the parties (at least for the duration of the existing agreement) it does not necessarily follow that it is immune from regulation or modification should conditions change from time to time. Clearly an abuse of the practice / benefit for example, would provide justification for corrective action by management. Thus, in the instant matter, the Company has limited the use of the radio where and when it has deemed it appropriate.

While this right clearly exists, based upon the foregoing analysis, one cannot infer that the unilateral elimination of the p,ractice' altogether is thereby -

. . r sanctioned.

6 Metal Specialty Co., 39 LA 1265 (1962); Bethlehem Steel Corp., 50 LA 202 (1968) and Jervis B. Webb Co.,

52 LA 1314 (1969). .

Award -

'Accordingly, for the reasons set forth above, the grievance of Local 160 is sustained. The Company is therefore directed to return the radio forthwith to the Control Room at the Monticello Nuclear Plant.

Respectfully submitted this 1st day of October, 1986.

(

J. C. Fog alberg Neutral A rbitrat ar t

I l

i

(

-