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United Government Security Officers of America, International Union v. Exelon Nuclear Security, LLC

United States District Court, Third Circuit

October 23, 2013

UNITED GOVERNMENT SECURITY OFFICERS OF AMERICA, INTERNATIONAL UNION, et al., Plaintiffs & Counterclaim Defendants,
v.
EXELON NUCLEAR SECURITY, LLC, Defendant & Counterclaim Plaintiff, and EXELON GENERATION CO., LLC, Third Party Counterclaim Plaintiff.

MEMORANDUM

GENE E.K. PRATTER United States District Judge.

Although this case has the potential to raise complicated issues of nuclear regulatory law, the issue before the Court at this stage is relatively straightforward and familiar: Whether Defendant and Counterclaim Plaintiff Exelon Nuclear Security (“ENS”) and Third Party Counterclaimant Exelon Generation Co.’s (“ExGen”) Counterclaim for declaratory judgment survives or whether, as Plaintiffs United Government Security Officers of America, International Union, and United Government Security Officer of America, Local 17 (collectively, “UGSOA”), contend, (a) this Court lacks subject matter jurisdiction because there is no case or controversy; (b) the Counterclaim is not ripe for review; (c) the Court lacks the authority to determine questions of arbitrability; and/or (d) the Counterclaim does not state a claim, see UGSOA Mot. Dismiss (Docket No. 31). Because the Court finds that these contentions are without merit, for the reasons that follow, it denies UGSOA’s Motion to Dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND[1]

This action arises out of ENS’s refusal to submit to arbitration regarding its employment termination of Armed Nuclear Security Officer William Bastone.[2] ENS, a wholly-owned subsidiary of ExGen, employs Armed Nuclear Security Officers (“ANSOs”) to protect nuclear power plants owned and operated by ExGen, a licensee of the Nuclear Regulatory Commission (“NRC”), under the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq., and the NRC regulations promulgated pursuant to the Act. These regulations affix strict requirements upon licensees to ensure the protection of nuclear plants and materials. See 10 C.F.R. pt. 73. In particular, the regulations establish the framework licensees must put in place for determining whether individuals shall have “unescorted access” to a nuclear facility. See 10 C.F.R. § 73.56.

Officer Bastone worked for ENS as an ANSO at ExGen’s Oyster Creek Nuclear Generating Station before ExGen revoked his unescorted access authorization. Because ANSOs must be able to access all—even the most vulnerable—areas of a nuclear generating station, they must maintain unescorted access authorization as a condition of employment. Consequently, ENS’s Collective Bargaining Agreement (“CBA”) with United Government Security Officers of America, Local No. 17, that governs the relationship between UGSOA and ENS at Oyster Creek, provides that “[a]s a condition of employment and continued employment, an employee must meet the . . . security clearance requirements necessary for an employee’s labor category . . . .” Agreement Between Exelon Nuclear Sec., LLC and United Gov’t Sec. Officers of Am. Local No. 17 at Oyster Creek Nuclear Generating Station, November 20, 2009–November 19, 2013, art. 28-A, § 20 (Compl. Ex. 1-B (Docket No. 1)) (hereinafter ENS–UGSOA CBA). Although ENS requires ANSOs to maintain unescorted access authorization, ExGen as the NRC licensee actually determines whether an individual has unescorted access because only it, unlike ENS, is an NRC licensee. See 10 C.F.R. § 73.56(a)(4) (“Only a licensee shall grant an individual unescorted access.”). Exelon is not a signatory to the CBA.

At some point, ExGen discovered that Officer Bastone had failed to make required disclosures regarding certain prior medical conditions. ExGen investigated the situation and, determining that Officer Bastone’s withholding of this information indicated that he was not trustworthy or reliable, therefore temporarily revoked his unescorted access authorization on February 18, 2010. The next day, as a result of the temporary hold on his unescorted access authorization, ENS placed Officer Bastone on administrative leave.

Officer Bastone appealed the denial of access to ExGen’s Appeal Reviewer under the appeals structure provided by its access authorization program. At the same time, pursuant to its CBA with ENS, UGSOA Local 17 filed Grievance No. OYC-111 (UGSOA Mot. Dismiss, Ex. A), in which it alleged that Officer Bastone had been “unjustly terminated without cause” in violation of “the current CBA between Exelon and Local 17 UGSOA.” The CBA is between ENS and UGSOA Local 17; ExGen is not a signatory. The CBA provided, in pertinent part:

For the purpose of this Agreement, a grievance is defined as a difference of opinion, controversy, or dispute between the Employer [ENS] 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.

ENS–UGSOA CBA, art. 11, § 1 (emphasis in original). In addition to exempting from arbitration “issues involving the decision to grant or deny unescorted access, ” the CBA provided that “the employee has the right to appeal denial of site access in accordance with the requisite provisions of the Nuclear Regulatory Commission.” Id. art 12, § 8. The CBA also provided that

[a]s a condition of employment and continued employment, an employee must meet the physical, mental, training and security clearance requirements necessary for an employee’s labor category . . . . An employee who fails to qualify, re-qualify or to maintain the above requirements, licenses, certifications, etc., necessary for continued employment will be subject to termination under this Agreement.

Id. art 28-A, § 20 (emphasis added).

On these grounds, ENS denied the grievance (as well as any violation of the CBA) and explained to UGSOA Local 17 that “Officer William Bastone does not have the access authorization necessary to maintain his position as an Armed Security Officer at a nuclear facility” and that “the decision regarding Officer Bastone’s unescorted access is not subject to challenge through the grievance and arbitration procedure, as confirmed in Article 11, Section 1 of the CBA.” On June 4, 2010, ENS terminated Officer Bastone’s employment as an ANSO at Oyster Creek on the grounds that working as an ANSO was contingent upon his maintaining his unescorted access authorization, without which an individual could not serve as an ANSO at Oyster Creek.

In response to ENS’s refusal to submit to arbitration, UGSOA filed an action in this Court to compel arbitration. It alleges that ENS breached the CBA, in violation of section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, by refusing to “proceed to arbitration on Grievance No. OYC-111 (Local 17) regarding the termination of SO William Bastone.” Compl. ¶ 10. UGSOA seeks a declaration that ENS breached the CBA, as well as injunctive relief compelling arbitration.

ENS answered UGSOA’s Complaint and, along with Third Party Counterclaimant ExGen, brought counterclaims against UGSOA. Counterclaim Count I is a demand for declaratory judgment by ENS alone against UGSOA regarding the arbitration exemption provision of the CBA. Count II is a demand for declaratory judgment by both ENS and ExGen as to whether the NRC regulations prohibit arbitration of denials of access authorization. UGSOA’s subsequent Motion to Strike the Counterclaim was denied. United Gov’t Sec. ...


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