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United Government Security Officers of v. Exelon Nuclear Security

November 3, 2011

UNITED GOVERNMENT SECURITY OFFICERS OF
AMERICA, INTERNATIONAL UNION, ET AL., PLAINTIFFS,
v.
EXELON NUCLEAR SECURITY, LLC,
DEFENDANT.



The opinion of the court was delivered by: Gene E. K. Pratter, J.

MEMORANDUM

This case arises from Exelon Nuclear Security, LLC's ("ENS") decision to terminate the employment of Security Officer William Bastone, and its subsequent refusal to arbitrate the grievance filed on his behalf by the United Government Security Officers of America, International Union and the United Government Security Officers of America, Local 17 (collectively, "UGSOA"). UGSOA filed a complaint seeking to compel ENS to arbitrate Mr. Bastone's grievance. In response, ENS, along with its parent company, Exelon Generation Company, LLC ("Exelon Generation"), filed a lengthy counterclaim with accompanying exhibits, seeking a declaratory judgment that Mr. Bastone's grievance and similar claims are not subject to arbitration under either the collective bargaining agreement between ENS and UGSOA, or applicable Nuclear Regulatory Commission ("NRC") regulations. Now before the Court is UGSOA's Motion to Strike ENS and Exelon Generation's (collectively, "Exelon") counterclaim.

For the reasons that follow, the Court will deny UGSOA's Motion to Strike Defendants' Counterclaims (Doc. No. 21).

I. FACTUAL AND PROCEDURAL BACKGROUND

As a licensee of the NRC, Exelon Generation is authorized to own, operate, and engage in nuclear power generation at its nuclear power plants in Pennsylvania, New Jersey and Illinois under the authority, and subject to all of the conditions, of the NRC and the Atomic Energy Act of 1954. Exelon CC ¶ 1. Due to the highly sensitive, confidential, and potentially hazardous nature of the nuclear materials and data contained at these facilities, the NRC requires Exelon Generation and its other licensees to adhere to a complex set of security measures contained in a web of federal regulations. See id. ¶¶ 16-17. One such regulation requires Exelon Generation to adopt and adhere to an access authorization program, whereby Exelon Generation must regularly screen individuals who apply for and maintain unescorted access authorization to protected and vital areas within its nuclear power stations. Id. ¶¶ 17-31. The NRC regulations as well as Exelon Generation's own access authorization program are designed to ensure that those granted access authorization to its nuclear facilities are trustworthy, reliable, and loyal individuals who do not pose a security risk. Id. ¶¶ 16, 21-24.

ENS is a wholly-owned subsidiary of Exelon Generation that provides security and protective services at Exelon Generation nuclear facilities. Id. ¶ 4. ENS trains, supervises, and employs armed security officers and other personnel at Exelon's nuclear facilities including its Oyster Creek Nuclear Generating Station. UGSOA Complaint ¶¶ 2, 5. As a prerequisite to employment as a security officer with ENS, all security officers must maintain unescorted access authorization with Exelon Generation. Exelon CC ¶¶ 48, 49.

Case 2:11-cv-01928-GP Document 25 Filed 11/04/11 Page 3 of 8

The security officers employed at the Oyster Creek Nuclear Generating Station are a unionized workforce, organized under the UGSOA. UGSOA Complaint ¶ 5. As the sole bargaining representative for its member security officers, UGSOA is party to collective bargaining agreements ("CBA") with ENS governing various conditions of employment including, but not limited to, wages, hours, and termination. UGSOA Complaint ¶¶ 3, 5.

William Bastone was a security officer at the Oyster Creek Nuclear Generating Station. Exelon CC ¶ 46. On or about February 19, 2010, Exelon Generation revoked Mr. Bastone's unauthorized access authorization after it determined that he was not trustworthy and reliable as required by NRC regulations and its own access authorization program. Id. ¶ 46. After Mr. Bastone's appeal of Exelon Generation's decision through its Access Authorization Appeals procedure proved unsuccessful, ENS terminated Mr. Bastone's employment because he "fail[ed] to maintain contractually and legally required unescorted access authorization to Exelon Generation['s] nuclear facilities." Id. ¶¶ 47-48.

UGSOA Local 17 promptly filed a grievance alleging that Mr. Bastone was unjustly terminated without cause in violation of the CBA between ENS and UGSOA. Id. ¶ 49. ENS, however, refused to arbitrate Mr. Bastone's grievance because it asserted his termination related to his inability to maintain unescorted access authorization with Exelon Generation, a contractual and legal prerequisite to maintaining his position with ENS. Id. ¶ 49.

Plaintiffs UGSOA filed this action*fn1 to compel ENS to submit to arbitration pursuant to the grievance and arbitration provision of the parties' CBA.*fn2 See UGSOA Ex. 1-B. UGSOA seeks damages for breach of the CBA and a declaratory judgment that the CBA binds ENS to arbitrate Mr. Bastone's grievance. In its answer, ENS denies that it breached the CBA with UGSOA, and asserts that the subject matter of Officer Bastone's grievance is not proper for arbitration under the terms of the CBA.

In addition to its Answer, ENS, along with third-party counterclaimant Exelon Generation, (collectively "Exelon") filed a Counterclaim against UGSOA requesting a declaratory judgment that (i) issues involving unescorted access authorization to Exelon Generation's nuclear facilities are not within the scope of the CBA between ENS and UGSOA, or arbitrable under the contractual grievance arbitration procedure contained therein, and (ii) NRC regulations and guidelines prohibit outside review of licensee unescorted access decisions. Along with its Counterclaim, Exelon attached three exhibits: (i) a ten (10) page district court case from the Northern District of Illinois, (ii) a two (2) page copy of the Nuclear Energy Institute ("NEI") Guidelines recommending access denial review procedures for NRC licensees, and (iii) Exelon Generation's eighty-five (85) page access authorization program policy.

UGSOA now moves the Court to strike Exelon's Counterclaim pursuant to Federal Rules of Civil ...


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