United Gov't Sec. Officers of Am. Int'l Union v. Exelon Nuclear Sec., LLC, Civil Action No. 11–1928.

24 F.Supp.3d 460

UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA, INTERNATIONAL UNION, et al., Plaintiffs & Counterclaim Defendants

v. EXELON NUCLEAR SECURITY, LLC, Defendant & Counterclaim PlaintiffandExelon Generation Co., LLC, Third Party Counterclaim Plaintiff.

Civil Action No. 11–1928.

United States District Court, E.D. Pennsylvania.

Signed June 2, 2014.

Filed June 3, 2014.

Thomas Herman Kohn, Markowitz & Richman, Philadelphia, PA, Robert B. Kapitan, Westminster, CO, for Plaintiffs & Counterclaim Defendants.

Matthew M. Gutt, Exelon Bus Serv. Co., Philadelphia, PA, Brian J. Gold, Jonathan D. Lotsoff, Sidley Austin LLP, Chicago, IL, for Defendant & Counterclaim Plaintiff.

MEMORANDUM

PRATTER, District Judge.

The United Government Security Officers of America, International Union, and its Local 17 (collectively, “the Union”), sued Exelon Nuclear Security (“ENS”) to compel arbitration, pursuant to the parties' Collective Bargaining Agreement (“CBA”), of the Union's grievance, filed on behalf of armed nuclear security officer (“ANSO”) and Union member William Bastone, that ENS refused to arbitrate. Twice before the Court addressed the factual and procedural issues in this case. United Gov't Sec. Officers of Am., Int'l Union v. Exelon Nuclear Sec., LLC (UGSOA II), No. 11–1928, 2013 WL 5812111 (E.D.Pa. Oct. 24, 2013) ; United Gov't Sec. Officers of Am., Int'l Union v. Exelon Nuclear Sec., LLC (UGSOA I), No. 11–1928, 2011 WL 5340043 (E.D.Pa. Nov. 4, 2011). Both parties now move for summary judgment-the Union to compel arbitration and ENS for judgment in its favor because either the CBA excludes this dispute from arbitration or federal law precludes arbitration of this type of dispute (Docket Nos. 60 and 58, respectively).¹

For the reasons explained below, the Court will grant ENS's Motion for Summary Judgment on grounds that the CBA excludes this dispute from arbitration. Consequently, it will deny the Union's Motion and find the Exelon parties' Motion based on preclusion moot.

I. BACKGROUND²

Exelon Generation Company (“ExGen”), ENS's parent corporation, for which ENS provides security services, is licensed by the United States Nuclear Regulatory Commission (“Commission,” or “NRC”) to operate nuclear power plants in various facilities throughout the country. Federal law regulates nuclear power generation and the material that makes it possible, see Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., and, except in otherwise allowing the government to contract with private industry, see 42 U.S.C. § 2121, requires entities that would operate nuclear generation facilities to obtain a license from the Nuclear Regulatory Commission (“the Commission” or “NRC”), see id. § 2131, 2133, 2134.

Federal law and the NRC take nuclear security seriously. Congress has empowered the Commission to authorize the private security forces of its licensees to carry high-powered firearms, including fully automatic weapons, which federal law otherwise criminalizes, for the protection of nuclear generation facilities. 42 U.S.C. § 2201a ; 18 U.S.C. § 922. In addition to promulgating its own regulations for licensees and the security measures they must follow, as required by statute, see, e.g., 42 U.S.C. § 2167 (information security), id. § 2169 (fingerprinting and background checks); id. § 2201(b), (i), (k) (general rulemaking authority), including what types of procedures and precautions they must apply to these armed nuclear security officers (“ANSOs”), 10 C.F.R. § 73.56(b)(1)(iii), the Commission must regularly and rigorously assess security at each licensed facility, 42 U.S.C. § 2210d(a). For instance, the Commission's evaluations must include realistic “force-on-force exercises [that], to the maximum extent possible, simulate security threats in accordance with any design basis threat applicable to a facility.” Id. § 2210d(b).

Commission regulations require licensees to subject to an “access authorization program” “[a]ny individual to whom a licensee intends to grant unescorted access to nuclear power plant protected or vital areas,” 10 C.F.R. § 73.56(b)(1)(i), as well as, explicitly, “armed security officers,” id. § 73.56(b)(1)(iii). Such an “access authorization program must provide high assurance that [such] individuals ... are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety or the common defense and security, including the potential to commit radiological sabotage.” Id. § 73.56(c). Consequently, in order to maintain access authorization, without which an individual cannot enter vital areas of the plant, the individual must “compl[y] with the licensee's ... access authorization program policies and procedures to which he or she is subject.” Id. § 73.56(i)(1)(iii). Finally, licensees' access authorization procedures

shall include a procedure for the notification of individuals who are denied unescorted access, unescorted access authorization, or who are unfavorably terminated. Additionally, procedures must include provisions for the review, at the request of the affected individual, of a denial or unfavorable termination of unescorted access or unescorted access authorization that may adversely affect employment. The procedure must contain a provision to ensure the individual is informed of the grounds for the denial or unfavorable termination and allow the individual an opportunity to provide additional relevant information and an opportunity for an objective review of the information upon which the denial or unfavorable termination of unescorted access or unescorted access authorization was based. The procedure must provide for an impartial and independent internal management review. Licensees and applicants shall not grant unescorted access or certify unescorted access authorization, or permit the individual to maintain unescorted access or unescorted access authorization during the review process.

Id. § 73.56(l ).

The Union's Local 17 represents approximately 115 ANSOs who work at ExGen's Oyster Creek Nuclear Generating Station in Forked River, New Jersey. The ANSOs actually work for ENS, which is a wholly owned subsidiary of ExGen that the latter created specifically to provide security services to its plants. The CBA between Local 17 and ENS governs many aspects of the relationship between the ANSOs and ENS. See CBA, Compl. Ex. 1–B (Docket No. 1–5). In particular, Article 11, section 1 of the CBA states, in full:

For the purpose of this Agreement, a grievance is defined as a difference of opinion, controversy, or dispute between the Employer and the Union, or, between the Employer and an employee regarding only the meaning, application or interpretation of the terms of this Agreement, but not involving any change or addition to such provisions provided; however, that issues involving the decision to grant or deny unescorted access under the access authorization program required by 10 C.F.R. Part 73 shall be resolved through the access authorization program appeal procedure, not through the grievance and arbitration procedure.

CBA art. 11, sec. 1 (bolding in original).

The parties do not dispute that “the duties of Security Officers” at Oyster Creek “require them to be armed and to work in the protected and vital areas” of the facility, Joint Statement ¶ 19, and, thus, that “[a]s a requirement of their positions with ENS, Security Officers at Oyster Creek must” have unescorted access authorization privileges to all areas of the plant, including the protected and vital areas, in order to ensure plant security,” id. ¶ 12. Further, the parties agree, consistent with the foregoing explanation of law, that this requirement is imposed by 10 C.F.R. § 73.56. Joint Statement ¶ 19.

The Grievance the Union seeks to arbitrate in this case concerns the termination of ANSO William Bastone. ENS hired Mr. Bastone as an ANSO on May 12, 2008. Id. ¶ 23. Pursuant to 10 C.F.R. § 73.56, ENS requires its ANSOs to pass annual medical evaluations, in preparation for which ANSOs must complete medical history questionnaires. Id. ¶¶ 21–22. In early 2010, ENS personnel, reviewing Mr. Bastone's answers to his previous medical history questionnaire and his statements to an Exelon nurse, determined that, when asked, he had failed to identify previously existing medical conditions. Id. ¶ ¶ 24–27.

At this point, ExGen's Access Authorization department undertook a review of Mr. Bastone's unescorted access status and, ultimately, denied his unescorted access on February 25, 2010. Id. ¶ 28. On March 8, 2010, Mr. Bastone wrote to the department to appeal his denial of access authorization. And that same day, Union Local 17 filed the Grievance in question in which it alleged that Mr. Bastone was “unjustly terminated without cause” in violation of “the current CBA between Exelon and Local 17 UGSOA.” Id. ¶ 30.

ExGen's Access Authorization department denied Mr. Bastone's appeal on May 14, 2010. ENS then denied Mr. Bastone's grievance on the grounds that Mr. “Bastone does not have the access authorization necessary to maintain his position as an Armed Security Officer at a nuclear facility” and that the determination of Mr. Bastone's access status was not reviewable through arbitration. Id. ¶ 30. On June 4, 2010, ENS wrote Mr. Bastone that because he was “unable to obtain unescorted access per the security requirements,” his “employment with Exelon will be terminated effective” that same day. Id. ¶ 29.

This Union now brings this action to compel arbitration pursuant to the Labor Management Relations Act, 29 U.S.C. § 185. As the Union conceded at oral argument, its Complaint is devoid of any factual allegations regarding Mr. Bastone's Grievance and instead relies entirely, by reference, on the Grievance alone, which is conclusory. The entire description in Mr. Bastone's Grievance is

[t]hat Officer William Bastone was unjustly terminated without cause, this is a violation of his article 6, 13 and 14 rights under the current CBA

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