ML19351A391

Requests Clarification of Nuclear Power Plant Staff Working Hours,Per Generic Ltr 82-12.Util Views Arbitrator Award to Be in Direct Conflict W/Obligations as Nuclear Plant Licensee & Requirement of Generic Ltr 82-12

ML19351A391
Person / Time
Site:	Pilgrim
Issue date:	07/20/1989
From:	Bird R BOSTON EDISON CO.
To:	Wiggins J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION I)
References
BECO-89-105, GL-82-12, NUDOCS 8910200175
Download: ML19351A391 (18)

Text

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y nammuw Pdgrim Nuclear Power station Rocky Hill Road Plymouth, Massachusetts 02360 Ralph G. Bird senior vice President - Nuclear July 20, 1909 BECo Ltr.89-105 Mr. Jcmes T. Higgins Chief, Branch I Division of Reactor Projects U.S. Nuclear Regulatory Commission 475 Allendale Rd.

King of Prussia, PA 19406 Docket No. 50-293 License No. DPR-35

Subject:

Clarification of Nuclear Power Plant Staff Working Hours (Generic Letter No. 82-12)

Dear Sir:

Boston Edison Company requests the Nuclear. Regulatory Commission (NRC) to provide written confirmation of the obligations imposed upon it as a licensee of a nuclear operating plant by Generic Letter No. 82-12, as clarified for the company by_ NRC inspection personnel during their inspections and reviews of Pilgrim Station's overtime policies in 1987 and 1988. These reviews are documented in Inspection Report 50-293/88-07.

During the inspections and reviews of BECo's overtime controls, Generic Letter No. 82-12 was interpreted by NRC inspection personnel as requiring the staff at licensed plants who perform safety-related functions to be subject to the overtime restrictions set forth in the Generic Letter, and that these restrictions apply both when the Plant is operating and when it has been shutdown for refueling, maintenance, plant modifications or for other reasons, t-L 8910200175 890720 PDR ADOCK 05000293 V h

P PDC

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Page 2 l BECo Ltr. No.89-105 l The applicability of Generic Letter No. 82-12 regarding safety-related I personnel during periods of plant shutdown was litigated in a labor I arbitration proceeding between BECo and Local Union No. 369 of the Utility Horkers Union of America, AFL-CIO (Reference uttached arbitration transcript). The arbitrator held that Generic Letter No. 82-12 was

, inapplicable to the period of time when Pilgrim Station was inoperative during its extensive overhaul and that BECo violated the collective bargaining ,

agreement by restricting the overtime opportunity of plant personnel who  !

performed safety-related functions during that period of time.

I BECo views the arbitrator's award to be in direct conflict with its l obligations as a ruclear plant licensee and the requirements of Generic Letter  ;

No. 82-12. In the absence of additional documentation that will confirm the proper interpretation of Generic Letter No. 82-12, pending litigation may l result in further decisions imposing obligations on BECo which are  ;

inconsistent with its obligations under Generic Letter No. 82-12.  !

i Your earliest review of this request is appreciated. 1 R. G. sird ]

RLC/bal cc: Mr. H1111am T. Russell  ;

Regional Administrator, Region I  !

U.S. Nuclear Regulatory Commission 475 Allendale Rd.

King of Prussia, PA 19406 Sr. NRC Resident Inspector - Pilgrim Station l l

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, VELUNTARY LABOR ARBITRATION TRIBUNAL In the Matter of the Arbitration between 1

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Utility Workers Union of Ameries, Local No. M 9 i

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i Besten Edison Company, Inc. .

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CASE NUhtatR: 1110-2 s 4 haa 6 .g, !? es. WM .

' AWARD OF ARBITRATOR Tns Uppsassowse Amstratton(s), having been dealensted la seewdence with the arb!tration agreement entered into by the above memed Parties, and dated and beslag been duly sworn and having duly 1

heard the proofs and allegations of the Parties AwAase as follows:  !

p & N Grievance No. 3251 is disposed et per the l Findinas and Ontaion appended hereto. The grievance  ;

to resanded to tas Local and the Company to attempt to reach a mutually asseptable remedy to the ,

l in asserdanse with the Fandunas and letnien. grievance This '

Board will retain juried: ot;.en ever h1,s' grievasse ,

for a period of ninety (90) days from the date hereot '

(May 1, 1988) in the event the Local and the Cospany '

are unable to negotiate an acceptable remedy.

gpur e obert . O'Brien, Neutral Arbitrator e May 1, 1988 '

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STATS or COUNTY or i Milias A. 0'5hes , G6spany ArtiWe' tor  !

i On this day of .19 .before ene personally -

emme and appeared to roe known and known to rne to be the Indiddet!(s) described in and who easepted the forssolag lastru-sunt and he er, knowledged to me that he encouted the name. -

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AMERICAN AR3ITRATION ASSOCIATION eeoeeeeeeeeeeeeeeeeeeeeeee 4

In the matter of arbitration between:

• e Local No. 369 Utility Workers Union

• ofAmerica, AIL-CIO

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Boston Edison Company

• e i AAA Case No. 1130-7553-86 e Orievanoo P & M Grievance #3251

• Restriction on hours of work at

• Filgria Station to ao more than 72

• hours in any seven e ee o e e e e e e b e e e e(7)eeEEedav seriod eeeee a

i 12 Alp 0F ARBITRATION Robert M. O'Brien -

Neutral Arbitrator William A. O'Shea - Company Arbitrator Donald E. Weightsan -

Union Arbitrator A?JM RAKCES For Local No. 369, Utility Workers Union of America ,

Joanne F. Goldstein - Attorney For Boston Edison Company Robert O. Henneauth - Attorney  ;

BTATEMENT OF THE ISSUE As stipulated by.the parties, the guestion to be resolved in this proceeding is as follows: '

What shall be the disposition of F & M grievanse #3251 ?

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FERTININT CONTRACTUAL F1DE111211 l Article IV l

Nutsal obligations i i

1. The Ceapany recognises an obligation to promote mood employee relattens by maintaining rates of pay wages Ecurs i e

j of employment and other eoaditions of employasa,t O at are equitable, reasonable and fair.... i

• Artiste Y Management Rights

1. The Union and the Leoal roeogniss the right and power of the Company ... to assign supervise or direst all working' forces ... and genera,lly to eenkrol and supervise the Ceapany s operations and to exercise the other sustomary i functions of Management in marrying out its business without binderance er interference by the Union, the Local or by

' employees.... If the Local elaims that the Company has i exercised any of the other foregoing rights in a espricious  !

or arbitrary manner, such elains shall be submitted to the '

Grievance Article XXXIII. Procedure in Article XXIII and Arbitration under i i Article II l l Conformation of Laws, Regulations and Orders

! 1. It is understood and agreed that all agreements herein  !

are subject to all applicable laws now or hereafter in effoot I

! and to the lawful regulations, rulingc and orders of' ,

regulatory consissions having juristiotion. If any sai6 laws, ,

regulations, rulings or orders shall conflict with any provisions of this Agressent, the parties shall confer in an effert to negotiate a lawful substitution or meditioationi I

but if as a result of such conference no substitution or i

mod the disagressent shall not

[ficationisagreedupondoneofthisAgroomentandshall affoot the remaining provis '

not constitute a guestion subjoet to the Grievance Procedure i in Article XXIII or Arbitration under Article XXXIII.

Article XIII Overtine and Preatus Fay

1. Overtise compensation and pronius rates shall be paid employees subject to this Agreement in accordance with the following rules (4) So far as practical overtise work shall bo l

I distributed equitably among,those employees engaged in the grade of work for which overtise assignments are required...

hy demonstrated ineguity in the distribution of overtime shall be work.

overtise corrected . . .ybthe Company by future assignments of 2

RACKQRCDND The Boston Edison Company (hereinafter referred to as

, the Company) operates the Pilgria Nuclear Power Station (hereinafter referred to as the Pilgrin Station) which is l'oested in M ysouth, Massachusetts. The production and maintenance employoos who are assigned to the Pilgria Station are represented by Local No. 369 of the Utility Werkers Union of Ameries, AFL-CIO (hereinafter referrou to as the Local).

As a muelear power plant, Filgria Station is regulated by the Nuclear Regulatory consission (hsteinafter referred to as the the NRC).

l On June 15, 1982, the Nuclear Regulatory Consission issued Generie Letter No. 82-12, entitled Nuelaar Power Plant i

l Ataff Workinn Meurs. The Company's sospliance with that l generie letter has precipitated the dispute now before this I

Board of Arbitration (hereinafter referred to as the Board).

In Generic Letter No. 52-12, the NRC declared, in pertinent -

part, that plant statt who performed safety-related functions should not be permitted to work more than seventy-two (72) hours in any seven (7) day period. The NRC allowed for limited deviations from this 72-hour restriction in *rery unusual circumstaneos, provided that these deviations are documented and ando available for NRC review.

Sonstine in 1985, the company began restricting employees who performed safety-related fonctions at the .

Filgria Station to no more than 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> of work in a 7 day period in aceerdance with Generie Letter No. 82-12. Before 3

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' this, there was ce restriction en the hours that e ployees t

were allowed to work at the Pilgria Station. According to the t

Losal, esployees at the Pilgria Station frequently worked la 1

exeoss of 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> weekly until the ban was taposed.  ;

i Esturally, $)e 72. hour restriction limited the potential i

evertise that bargaining unit esployees were allowed to work.  !

A few' months after this stricture was imposed on esplayees -

who performed safety-related functions, the Company expanded it to all employees at the Pilgria Station whether or act '

they worked on safety-related equipment. (It should be noted i l

that the Company subsequently reduced th,s maximum hours that i l employees at the Pilgria Station were allowed to work from 72

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l to 60 hours6.944444e-4 days <br />0.0167 hours <br />9.920635e-5 weeks <br />2.283e-5 months <br /> in a 7 day period. The Local grieved that action  !

which grievance is currently pending.) l Prior to the imposition of the 72-hour limitation, -

overtise at the Pilgria Station, like overtise in other  !

departments of the Company, was distributed oguitably among those bargaining unit employees who were engaged in ths grade of work for which overtise assignments were required. Such fair and equitable distribution of overtime is mandated by Article XIII 1. (d) of the parties' collective bargaining

• Agrootent dated April 8, 1987. Under this provision, the practice has been to offer the esployee with the lowest overtise hours in the grade of work for which overtise was required first opportunity to work the overtise. If that '

employos refused, the overtine was offered to the esployee in the grade of work with the next lowest overtime hours, and so l .

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' forth until sente2e osoepted it. If every employee in the grade of work refused the overtine, the employee with the

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1 east evertise was drafted to perform it. '

Under the 72. hour restriction, if the employee in the 4

l grade of work with the fewest hours of evertise has already j j Nrked 72 lifurs in any seven day period, that employee is

' passed over in favor of the employee with the next lowest L

' overtise, and se on until an employee with less than the i maxinus allowed working hours accepts the overtise. Aeoording to the Leoal, in many asses this procedure deprives the l i

employee with the least overtime the opportunity to perfors i overtine work which, of course, is compensated at a premium  :

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rate of pay. pilgria Station, it should be noted, is the only j facility of the Company where there is a restriction en the maount of evertise that an employee is allowed to work. In r

i other areas of the Company, such as the underground, everhead and production departments, it is not unconson for employoos i to work in excess of 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> in a week, particularly during overhauls and storas.

It should be observed that safety-related equipment is -

defined as that equipment which is required to safely shut down the nuclear plants to maintain the shutdowns and to protoot the health and welfare of the publio. At the Pilgris Station, utility workers, nuclear plant attendants and shonical work' era perform no work on safety-related equipment. <

It should also be meted that sinos April, 1986, the Pilgria Station has been idle due to an overhaul which is expected to -

continue for a considerable period of time.

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l On March 6, 1986, the Leoal filed p & M Grievance f)251 '

i protesting the Company's decision to adhere to the NRC i guidelines on overtine. A satisfactory adjustment'of that '

grievanceseulenotbereachedanditwasthereforea[ppealed to

this Board in assordance with the provisions of Article

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11XIII of the parties' Agressent. A hearing was held before the Board on July 30, 1987. Both parties appeared at the i i

hearing and proffered extensive evidence in support of their l

respective positions. Both parties aIso filed post-hearing 3 riots. Based en the evidence and the arguments advanced by

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the Local and by the Company, this Board renders the I following decision en P & M Grievance D 251.  !

LOCAL'S POSITION In the Local's opinion, the Company's unilateral imposition of a 72-hour restriction on the hours employees s

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are allowed to work violated several provisions of the l

ourrent Agreement. Initially, the Local contends that the i Company violated Article II of the Agreement since it never offered to negotiate this significant change in the overtine policy with it. Indeed, the Local saintains that the Company never even notified it of the limit it unilaterally placed on evertise. The Local also asserts that the Company violated e Artiolo XIII 1. (d) of the Agreement when it placed a i restriction on the hours employees are allowed to work since overtine at the Pilgria Station in many instances is now 4

set being distributed fairly and equitably as Article XIII 1.

(d) requires.

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the Les21 further esserts that the Ceapany violatet Article V of the Agreement siaeo its decision was arbitrary [

and caprietous. In the Loeal's view, the Ceapany has singled I out its employees at the Pilgria Station for speeial

, %teatment without justifiention by placing a limit en the <

t overtine which they are allowed to work. The Local stresses that evartise at every other department of the Company is unlimited. In the Leoals opinion, the Company also acted arbitrarily when it expanded the overtine restriation to those amployees at the Pilgria Station who perfora no work

, on safety-related equipment.

The Local insists that, sentrary to the Company's elain, its adoption of the 72-hour restr'istion was not justified by any action of the NRC sinos the Company has failed to prove that it was ' ordered" by the NRC to impose this restriction on employees at the pilgria 8tation.

According to the Local, nothing in Generie Letter No. 82-12 indicates that the Company was under orders from the NRC to implement this restriction. In the Loca18s opinion, the uncontroverted evidonos clearly demonstrates that a generic 4

letter is morely a request from the NRC to a licensee, not an order. The Local amintains that it is aware of other utilities that have refused to impose this restriction on ,

their caployees.

Por all the above reasons, the Local urges this Board to sustain the grievance and to order the-Company to sense and desist from imposing a 72-hour limit on overtine and to make i

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, esployoos whole ter the time that they were denied overtise while sentract employees performed servies at the Pilgrin Station.

., COMPANTI A POSITION

. It is the

..s Company's position that the NRC ordered it to l I 1 tapose a 72-hour limit on those employees at the Pilgria Station who perfora safety-related fumations. The Ceapany J l

submits that oospliance with this order was part of its l t

lisensing requirement and that it was obligated to follow

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j this order to maintain the right to operate the Pilgris  ;

Nuclear Power Station. The Ceapany stresses that it never l; voluntarily agrood to this limitation as clained by the  :

Local. Therefore, the Company contends that the NRC order is not arbitrable due to the parties' express agreement in i Article II not to arbitrate grievanees arising out of a i

conflict between the provisions of the agressent and an order of a regulatory sessission such as the NRC. -

The Company further maintains that its extension of the 72-hour limitation to all employoos at the Pilgris Station was a proper exercise of the rights reserved to the Company .

by Article V of the Agreement which rights were not exercised  !

in an arbitrary or capricious manner. According to the  ;

company, this was a sound management decisica since all employees at Pilgris may be called on to perform overtime on safety-related equipment. The Company argues that it ande this decision so that all personnel on site sould be reassigned to work on safety-related equipment at any time 8

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, rather thsa be ineligible for this work because they reashed the 72-hour waxians allowed in a given week. And in any i i

, event, this questies is neot, the Company insists, since the j restriotten was subsequently reduced.te sixty (60) hours. The

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Company

• str' esses that oisse its decision was neither arbitrary

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aer esprieldhe, the Board suet therefore deny the grievanes

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'even if it eensiders this guestion not aset. I FINDINGS AND OPINICE The ultimate question before this Board is whether the Company violated the sollemtive bargaining Agressent dated j April 8, 1987, when it refused to allow bargaining unit  !

t employees assigned to the Pilgria Nuclear Power Station to work more than 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> in any seven day period. Iovever, I

before that ultimate question can be resolved, several

' algnificant guestions must be addressed by this Board. For example, was the Company ' ordered" by the NRC to impose this limitation on those employees who perfora safety-related '

functions at Pilgria er did the Company voluntarily agree to these guidelines ? And was the Company required to negotiate with the Local before imposing this restriction on overtine ?

It must also be dooided whether the Company violated Article '

IIII 1. (d) and, if so, what shall be ti.e remedy for this t violation ? We must also decide whether the Company's dooision was arbitrary or capricious ? Noreover, this Board must determine whether it was permissible for the Ceapany to extend the 72-hour limitation to employees who perform ao safety-related work even if it had the right to lapose this 9

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.restriotica cm employees who perfora safety-related fumetions ? i

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And finally, we must determine whether the restriction was ,

I properly sp' plied during the shutdown of the Pilgria Nuolear l Power Station *

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(1) 1,5 T12 ACMPA i 7  : EDIR5 DE T ff ORDERED BY THE NRC TO IOOSE A LIMIT OF j IL ,Y FERIOD 7 IE TIME AN EMPLDIEE MAY WO;tX IN A an D - t j

1 Naturally, the Company operates the Pilgria Nuoles,r  !

i Power Station under a licenso granted by the NRC and suet i i

eosply with orders issued by the NRC to maintain its license  !

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i to operate this facility. The Neutral Nesbor of this Board +

i aust confess that he is totally unfamiliar with the policies .

and procedures of the NRC. Nowever, it appears from the '

doousentary evidence submitted by the Company that the NRC  !

l did, in fact, " order" the Company to restrict those esployees i

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at the Pilgria Station who perform safety-related functions .

to work no more than 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> in any seven day period.

Unquestionably, the doeutent of the NRC entitled ggggg, '

Confirminn Licensee commitments on Post-TMI Related Inauen i'

constitutes an order to the Company regarding operation of the Pilgria Nuclear Power Station. Itsa 1.A.1 3.1 of that  !

i doousent, captioned Limit Overtino, requires the Company to revise its administrative procedures to limit overtise in accordance with Generio Letter No. 62-12. As observed '

t previously, Generio Letter No. 82-12 declares; in portiment '

part, that an individual should not be permitted to work more than 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> in any seven (7) day period except in unusual circumstances. While it does not appear from the evidence '

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before this Board that the Oscpany took eseeption to this requirement or sought to discuss it with the NRC, nonetheless in our sensi6ered opinion, the NRC eventually toeved an order l

requiring the Company to lapose this limitation on those eqployees at,the Pilgria Station who work on safety-related equipment. This Board is of the opinion te

'a Company did i

mot voluntarily adopted this limitation on overtino. Rather,

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it was ordered-to do so by the NRC.

Article II 1. of the Agreen,ent is gusta clear. Inasmuch i

as Generio Letter No. #2-12 constituted a lawfd order of a i regulatery commission having jurisdiction over the Pilgris

[ 5tation, that order must prevail over any prog sion of the Agre'. mt in conflict with it. In the view of this Board, the order of the WRC conflicts with the teras of Article XIII 1.

(d) since, in s.any instances, it precludes overtise work from being distributed equitably to bargaining unit esployees at the'Pilgria Station. In our judgment,'the Company violated I

i Article II 1. of the collect,ive targaining Agreement by failing to confer with the Local in an attempt to negotiate a lawful substitution or sodification of the Agreement as it was expressly required to do by Artiolo II of the Agreement. ,

The Cnapany is therefore ordered to confer with the Local as required by Article II. Of + tree, as explicitly provided by Article II, if no substitution or modification is agreed upon, the Local is proscribed from submitting the dispute to the grievance and ir*uitration procedures of the Agreement.

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• ~DID TRE COMPANT ?!0 LATE TNI AGREENENT WEEN IT EITEND

.30UR LIMITATION TO RMPLOYEES WIO FERFORN 50 SAFETI-RELATEDl FUN 0fl0N8 AT THE PILGRIN STATION? t The Ceapany acknowledges that it was not required to impose the 72-hour restriction on those employees v.to do not work on safety-related

. .e equipment. Iowever, the Company

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insists that it had the right to lapose this restriation on -

overtino consistent with the rights granted it by Artiolo V 7

to assign, direct and supervise all working forces. It is the considered opinion of this Board that the burder, restu with '

the Company to demonstrate why it transgressed the provisione * '

of Article XIII 1.(d) by restricting the amount of overtise allowed those saployees at the Pilgria Station who perfora no i safety-related functions. ,

The Company sxplained that it extended this limitation l

i on overtise to all employees at the Pilgria Station so that all personnel on site would be available to work on safety-related equipment at any time rather than be ineligible for this work account having reached their maximut allowed hours (72) in a given week. In the Company's view, this will enable it to have safety-related equipment repaired immediately rather than wait for a maintenance crew to be called in to repair this vital equipment. Yet the Company recognises that ,

this rationale does not apply to those employees who perfora l

no safety-related work at pilgrim, such as utility workers, muelear plant attendants and chemical workers.

This Board agrees with the Company that it is sound '

management practice to be able to utilise on-duty nuoloar l

maintenance mechanies to repair safety-related equipment in o

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].. 'Co caergccey rather than wait for sechantes te, be sailed in to perform this service. However, this justification does not apply to these employees who perform ao safety-related work.

These employees are mot unlike employees in other departments  !

of the Compa,ny who are not restricted in the amount of 2 overtise servios they may perform. In this Board's opinion, the Company's decision to extend the 72-hour limitation to , i thees employees was an arbitrary and capricious exereice of the rights reserved to it by Article V of the Agreement. The I fatigue experienood by these employees at the Pilgria Station is no different from the fatigue experionood by esployees in other facilities or departments of the Company. The Company therefore violated the Agreement when it unilaterally imposed a 72-hour limit on the overtime which these employees wero t

allowed to work.

WAS IT PERMISSIBLE POR THE COMPANY To LIMIT THE HOUR 8 THAT '

AN EMPLOYEE MAY WORK DURING THE SEUTDOWN OF THE PILORIM NUCLEAR POWER STATION t It is uncontroverted that the order of the NRC was inapplicable while Pilgris Station was inoperative during I

its extensive overhaul. Based on the evidonoe before us, this Board aust oonolude that the Company's decision to impose the 72-hour restriction on esployees during the overhaul was an arbitrary and caprioious exercise of the rights granted it by I

A; tiole V of the Agreement. We can discern no oospelling justification for euch a limitation while the Pilgria Station '

was not operating. In our view, there was no material '

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distinetton between these s'ployoos et the pilgria Station and esplayees in other departments of the company during the

, everhaul. Fatigue affects all these saployees yet there was ao restriotaon on the overtime that employees in other departments *were allowed to work. Therefore, the Company's Isoisiont'o'laposesucharestrictionsolelyenthe bargaining unit employees assigned to Filgria Station during ite extensive overhaul was, in our judgment, an arbitrary and "

espricious exercise of the managerial rights reserved to the -

Company by Article V of the Agreement.

This Board eartainly recognises the soaplexity of the decision we have rendered in the dispute surrently before us.

In the light of the numerous questions we were sospelled to t

address, this Board finde it quite difficult to frame an appropriate remedy to resolve this grievance. Aeoordingly, we feel constrained to resand the dispute to the parties so that they may attempt to reach an appropriate remedy. This Board shall retain jurisdiction over this grievance for a period of ninety (90) days from tha date hereof in the event that the Local and the Company are unable to negotiate a -

autually acceptable remedy. .

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F & N Grievanee No. 3251 is dispeeed of per the foregoing Findinas and 2213133 The grievanes is romanded to '

-the Leon 1 and the Company to attempt to resob a mutually asseptable ' remedy to the grievanee in accordance with the-Nmainesand'0minien.ThisBoardwillretainjurisdiction i

over this grievanes for a period of ninety (90) days from the '

date heroef in the event the Local and the Company are unable j j to mogotiate an acceptable remedy. .

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Robert ~M. O'Brien, Neutral Arbitrator

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! 1 l Donald E. Wightman, Union Arbitrator l l

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• k* m 13 os) l William A. O'Shea, Company Arbit Ntbr Dated t

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