Exelon Generation Company LLC v. Local 15, International Brotherhood of Electrical Workers, AFL-CIO

Filing 70

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 10/6/2015: For the foregoing reasons, the Court grants Local 15's motion for summary judgment and to compel arbitration [dkt. no. 40] and denies Exelon's motion for summary judgment [dkt. no. 22]. In light of the Court's ruling on cross-motion for summary judgment, the Court denies as moot Local 15's motion for discovery. The Clerk is instructed to enter judgment in favor of defendant and directing that the grievances that are the subject of the lawsuit are to be submitted to arbitration pursuant to the parties' collective bargaining agreement. Mailed notice.(pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

EXELON GENERATION COMPANY, LLC,
Plaintiff,
vs.
LOCAL 15, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 15 C 309

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Local 15, International Brotherhood of Electrical Workers, AFL-CIO, filed
grievances against Exelon Generation Company, LLC on behalf of six employees for
imposing upon them a requirement of complete abstinence from alcohol. Exelon
imposed this requirement upon each of the employees pursuant to the
recommendations of its Substance Abuse Expert in her role within its Fitness For Duty
program, which is mandated by Nuclear Regulatory Commision (NRC) regulations.
Exelon has filed suit against Local 15 seeking a declaratory judgment that the
union cannot challenge fitness-for-duty determinations by filing grievances or seeking
arbitration under the dispute resolution procedure established by the parties' collective
bargaining agreement (CBA). Local 15 responds that the CBA requires arbitration of
the dispute and that any disagreement about the dispute's arbitrability must itself be
arbitrated. Both parties have moved for summary judgment. For the reasons stated

below, the Court grants Local 15's motion and denies Exelon's motion. 1
Background
Exelon is in the business of power generation and supply. It owns and operates
nuclear power plants in Illinois, Pennsylvania, and New Jersey. It is licensed to conduct
nuclear power generation by the NRC and is subject to the agency's regulations. One
such set of regulations requires all commercial nuclear power plant licensees to
maintain an approved Fitness For Duty (FFD) program. This program must "provide
reasonable assurance that individuals are trustworthy and reliable as demonstrated by
the avoidance of substance abuse." 10 C.F.R. § 26.23(a). It must also "provide
reasonable assurance that individuals are not under the influence of any substance,
legal or illegal, or mentally or physically impaired from any cause, which in any way
adversely affects their ability to safely and competently perform their duties." Id.
§ 26.23(b).
Like other nuclear power plant operators, Exelon requires employees working in
its nuclear power generating facilities to acquire unescorted access authorization as a
condition of their employment. NRC regulations require that when there are indications
that an individual with unescorted access "may be in violation of the licensee's or other
entity's FFD policy or is otherwise unable to safely and competently perform his or her
duties," that individual must undergo an evaluation called a "determination of fitness."
Id. § 26.189(a). This determination of fitness must be carried out by a qualified
Substance Abuse Expert (SAE) when an employee's violation of the FFD program

1

Local 15 also moved, pursuant to Federal Rule of Civil Procedure 56(d), for discovery
to respond to Exelon's motion for summary judgment. Because the Court grants Local
15's motion for summary judgment, it need not decide Local 15's discovery motion.
2

involves substance abuse. Id. §§ 26.187, 26.189(a)(1). NRC regulations provide that a
qualified SAE "shall evaluate individuals who have violated the substance abuse
provisions of an FFD policy and make recommendations concerning education,
treatment, return to duty, followup drug and alcohol testing, and aftercare." Id.
§ 26.187(g). An SAE has the obligation "to protect public health and safety and the
common defense and security by professionally evaluating the individual and
recommending appropriate education/treatment, follow-up tests, and aftercare." Id. In
order to "ensure consistency and continuity in the treatment of an individual who may be
undergoing treatment, aftercare, and followup testing," 70 Fed. Reg. No. 165, 50442,
50575 (Aug. 25, 2005), NRC regulations strictly limit who may review or revise an SAE's
evaluation:
Neither the individual nor licensees and other entities may seek a
second determination of fitness if a determination of fitness under this part
has already been performed by a qualified professional employed by or
under contract to the licensee or other entity. After the initial
determination of fitness has been made, the professional may modify his
or her evaluation and recommendations based on new or additional
information from other sources including, but not limited to, the subject
individual, another licensee or entity, or staff of an education or treatment
program. Unless the professional who made the initial determination of
fitness is no longer employed by or under contract to the licensee or other
entity, only that professional is authorized to modify the evaluation and
recommendations.
10 C.F.R. § 26.189(d).
Exelon is required to submit to NRC audit at least once every twenty-four
months. The NRC last audited Exelon's FFD program in October 2014 and approved it
as compliant with the agency's regulations. Among other things, NRC inspectors
verified that Exelon's SAE was qualified and that the company's FFD program met the
requirements of 10 C.F.R. § 26.
3

Pursuant to its approved program, Exelon contracts with Triangle Occupational
Medicine and its president, Dr. Barbara Pohlman, to provide medical review officer
services. Dr. Pohlman is a licensed physician with knowledge of substance abuse
disorders and training in substance abuse treatment. Although she serves as Exelon's
Medical Review Officer and SAE, Dr. Pohlman and her staff often receive treatment
recommendations from staff members of Optum Health, which administers Exelon's
employee assistance program. Exelon's written FFD policy provides that Optum staff
may be called upon to collect specimens for drug and alcohol testing, perform
behavioral observation, and provide input for determinations of fitness. Optum staff is
responsible for providing confidential assessment, short-term counseling, referral
services, and treatment monitoring for FFD related issues.
After conducting an assessment, Optum submits a report to Dr. Pohlman.
Optum's reports are modeled on sample reports that Optum provides to its staff, which
instruct evaluators to communicate the issue or problem the employee presents and the
employee's history of substance use. Optum representatives are instructed to provide a
treatment recommendation, a diagnosis and prognosis, and a return-to-work
recommendation. The sample reports also ask the Optum representative to provide a
"professional determination that the employee is/is not 'trustworthy and reliable' to
perform duties and be considered to maintain nuclear access to protected areas" and to
make a "clinical recommendation regarding whether or not the employee should
maintain a lifetime of abstinence from alcohol and/or addictive substances." The
sample form further instructs the Optum representative: "Please use the following
wording: 'Due to the client's history and clinical presentation, complete abstinence from

4

the use of alcohol and/or any other intoxicating substances at all times and under all
circumstances, including during working hours and non-working hours, weekends, and
holidays, is recommended.'" Dr. Pohlman makes fitness determinations in light of the
recommendations she receives from Optum staff.
In 2012 and 2013, numerous Exelon employees were evaluated by Optum staff,
who submitted their findings and recommendations to Dr. Pohlman. Dr. Pohlman
reviewed and adopted those findings and recommendations in the course of making
determinations of fitness for those employees. The employees then received letters
from Susan Techau, Exelon's Access Authorization Fitness for Duty Program Manager.
The letters informed the employees that they were each required to totally abstain from
alcohol as a condition of continued unescorted access to Exelon's nuclear power plants.
Local 15 is a labor union that represents approximately 1,600 hourly employees
at Exelon's nuclear generating facilities in Illinois. Exelon and Local 15 are parties to a
collective bargaining agreement, and they have engaged in collective bargaining for
more than fifty years. The CBA contains an arbitration clause. Article VIII, paragraph 5,
of the CBA provides:
Should any dispute or difference arise between the Company and the
Union or its members as to the interpretation or application of any of the
provisions of this Agreement or with respect to job working conditions, the
term working conditions being limited to those elements concerned with
the hours when an employee is at work and the acts required of the
employee during such hours, the dispute or difference shall be settled
through the grievance procedure.
It is the intent of the Company, Local Union 15, and the employees that
timely filed grievances shall be settled promptly. A grievance is timely
filed when submitted at Step 1 of this grievance process by the
appropriate Local Union 15 representative in writing on the form adopted
for such purpose to an appropriate management representative of the
Company no later than thirty (30) calendar days after the date of the
5

action complained of, or the date the employee became aware or
reasonably should have become aware of the incident which is the basis
for the grievance, whichever is later.
A dispute as to whether a particular disagreement is a proper subject
for the grievance procedure shall itself be treated as a grievance.
Exelon Ex. E, Dkt. No. 25-1, at 104–05.
Between May 2012 and August 2013, Local 15 filed grievances against Exelon
on behalf of six separate employees who received complete abstinence letters. The
grievances stated: 2
May 1, 2012 Grievance: "The Company has placed a permanent abstinence
alcohol requirement/expectation on [the grieving employee] in order to maintain his
Nuclear access. 'This requirement/expectation is not required by any standard and
affects his ability to participate in legal off site activities.'" Id., Ex. D at 95.
July 3, 2012 Grievance: "The Company has placed a permanent alcohol
requirement on [the grieving employee] in order to obtain and maintain his access to
Exelon nuclear facilities. This requirement is not required by any standard and affects
[the grieving employee's] ability to participate in legal off-site activities." Id. at 96.
September 25, 2012 Grievance: "[The grieving employee] received an unjust
'Complete Abstinence Letter' from Access Authorization Fitness for Duty Program
Manager-Susan Techau and Exelon's MRO in order to maintain unescorted access to
Exelon Nuclear Generating Stations." Id. at 97.
April 30, 2013 Grievance: "[The grieving employee] has received an abstinence
letter concerning alcohol consumption that restricts his ability to conduct legal activities

2

Information identifying the employees has been redacted from the records presented
to the Court.
6

while off of Company time." Id. at 98.
May 28, 2013 Grievance: "On April 30, 2013, [the grieving employee] was
informed through certified mail that he has to abstain from alcohol consumption and
intoxicating substances during non work hours, work hours, holidays and weekends.
This condition must be maintained to be employed with Exelon. Local 15 feels this is
excessive and needs to be removed from his file." Id. at 99.
August 6, 2013 Grievance: "[The grieving employee] has received an unjust
'Complete Abstinence Letter' from Access Authorization fitness for duty Manager Susan
Techau and Exelon MRO in order to maintain unescorted access to Exelon Nuclear
Generating Station's [sic]. The Union Demands [sic] this requirement/letter be removed
from [the grieving employee's] record." Id. at 100.
One of the grievances proceeded through to arbitration, which was set for early
February 2015. Exelon objected to the filing of the grievances and refused to
participate in the arbitration. It filed suit in this Court seeking a declaratory judgment,
and the arbitrator stayed arbitration proceedings pending resolution of this lawsuit.
In its complaint, Exelon asserts that NRC regulations forbid anyone other than
the SAE from rescinding the recommendations made in a determination of fitness and
that Local 15's grievances necessarily would require an arbitrator to do just that. Exelon
seeks a declaration that (1) only a court may determine whether NRC regulations
preclude arbitration of FFD disputes like the ones presented in the grievances; (2) only
the SAE may make determinations of fitness pursuant to NRC regulations; and (3)
determinations of fitness made by the SAE are not subject to the CBA's grievance
procedure.

7

Local 15 responds by claiming that pursuant to the parties' CBA, the issue of
whether Exelon had just cause to impose a total abstinence requirement is a question
for an arbitrator to resolve, and in any event, the CBA provides that arbitrability of such
a dispute is itself a question for arbitral resolution. Local 15 also argues that Exelon's
suit is not ripe for judicial determination because it is not clear that an arbitrator's
decision would conflict with federal regulations. Local 15 has also counterclaimed,
seeking an order compelling arbitration pursuant to the CBA. Both parties have now
moved for summary judgment.
Discussion
A party is entitled to summary judgment if it shows that there is no genuine issue
of material fact and it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
On a motion for summary judgment, the Court views the record in the light most
favorable to the non-moving party and draws all reasonable inferences in that party's
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment
is inappropriate "if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party." Id. at 248. On cross-motions for summary judgment, the Court
assesses whether each movant has satisfied the requirements of Rule 56. See Cont'l
Cas. Co. v. Nw. Nat'l Ins. Co., 427 F.3d 1038, 1041 (7th Cir. 2005). "As with any
summary judgment motion, [the Court] review[s] cross-motions for summary judgment
construing all facts, and drawing all reasonable inferences from those facts, in favor of
the nonmoving party." Laskin v. Siegel, 728 F.3d 731, 734 (7th Cir. 2013) (internal
quotation marks omitted).

8

A.

Who determines arbitrability
As a general rule, determination of whether parties to a CBA have agreed to

submit a dispute to arbitration is a task reserved to the courts. See Litton Fin. Printing
Div. v. NLRB, 501 U.S. 190, 208 (1991). This default rule can be avoided, however, if
the parties contract to assign determination of the arbitrability of a dispute to an
arbitrator. See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995); Air
Line Pilots Ass'n, Int'l v. Midwest Express Airlines, Inc., 279 F.3d 553, 555 (7th Cir.
2002). To assign questions of arbitrability to an arbitrator, "parties must evidence in
their agreement a clear and unmistakable intent to cede the arbitrability question to the
arbitrator." Air Line Pilots Ass'n, 279 F.3d at 559 (Ripple, J., concurring in part and
dissenting in part) (citing Kaplan, 514 U.S. at 944). Even then, it is a court's duty to
determine whether the question of arbitrability has been assigned to an arbitrator.
Kaplan, 514 U.S. at 944.
Local 15 contends that the parties contracted to submit all arbitrability questions
to arbitration. It cites language in the CBA stating that "[a] dispute as to whether a
particular disagreement is a proper subject for the grievance procedure shall itself be
treated as a grievance" as clear and unmistakable evidence that the parties intended for
an arbitrator to determine all disputes as to whether a disagreement is arbitrable.
Exelon advances three arguments against submitting arbitrability to an arbitrator
for resolution. First, it attempts to reframe the issue as a dispute not about work
conditions, but rather about whether federal law preempts the parties' CBA. Exelon's
argument is essentially that a "dispute" in the arbitrability clause refers to a
disagreement over whether a challenge to work conditions has been properly brought or

9

involves the kind of work conditions the CBA has in mind, not a disagreement over
whether federal law permits arbitration. Second (and relatedly), Exelon argues that the
CBA by its terms forbids an arbitrator from settling disputes about arbitrability arising out
of conflicts with federal law. Exelon bases this contention on a portion of the CBA
stating that "[a]ll decisions rendered by the impartial arbitrator shall be final and binding
upon both parties. The impartial arbitrator shall be governed wholly by the terms of this
agreement and shall have no power to add to or change its terms." Exelon Ex. E, dkt.
no. 25-1, at 108. Exelon says that under this provision, an arbitrator has no ability to
examine or consider external law and thus cannot make an arbitrability determination
that requires consideration of NRC regulations. Third, Exelon argues that even if the
CBA submits the question of arbitrability to the grievance process, past dealings
between Local 15 and Exelon make it apparent that a court, not an arbitrator, is to
decide issues of arbitrability. Specifically, Exelon says that in three earlier cases, Local
15 either did not argue that an arbitrator must decide arbitrability or stipulated that the
question was one for the courts to decide.
This last point is problematic, for two reasons. Exelon contends that through
three earlier cases in this district, the parties have established a practice of submitting
the question of arbitrability to the court. Not so. It is true that in one of the cases, the
district judge noted that "the parties have stipulated that these two issues require judicial
resolution by declaratory judgment." Exelon Gen. Co. v. Local 15, Int'l Bhd. of Elec.
Workers, AFL–CIO, No. 10 C 4846, 2011 WL 2149624, at *2 (N.D. Ill. May 25, 2011)
("Exelon 2"), rev'd on other grounds, 676 F.3d 566 (7th Cir. 2012) ("Exelon 3"). In
another, however, Local 15 argued that under the CBA, the issue of arbitrability should

10

be determined by an arbitrator. See Exelon Gen. Co. v. Local 15, Int'l Bhd. of Elec.
Workers, AFL–CIO, No. 06 C 6961, 2008 WL 4442608, at *8 n.3 (N.D. Ill. Sept. 29,
2008) ("Exelon 1"). And in the third case, the issue does not appear to have been
raised. Exelon Gen. Co. v. Local 15, Int'l Bhd. of Elec. Workers, AFL–CIO, No. 07 C
968, 2007 WL 4526595 (N.D. Ill. Dec. 3, 2007) ("Exelon 4"). In short, there is no pattern
of the sort that Exelon suggests. And in any event, even if there were the kind of
pattern Exelon alleges, it would not matter. Exelon cites no authority, and the Court is
aware of none, indicating that failure to make an argument in a past suit amounts to
forfeiture of the same argument in a later suit or a tacit agreement that the other side's
position in the earlier suit will govern later suits.
Standing alone, the arbitrability provision in the CBA seems to evince "clear and
unmistakable" intent to submit all disputes about arbitrability to an arbitrator, even where
external law motivates Exelon's actions. Local 15 correctly argues that Exelon's
reliance on Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), is
misguided. Wright stands merely for the proposition that without a clear and
unequivocal waiver, a union-negotiated CBA may not waive employees' statutory right
to a judicial forum for discrimination claims. Local 15 is also right that courts have held
determination of arbitrability to be sufficiently conferred upon the arbitrator in CBAs
containing provisions similar to the one in the Exelon-Local 15 CBA. See, e.g., Air Line
Pilots Ass'n, 279 F.3d at 559 (Ripple, J., concurring).
But the arbitrability provision does not stand alone. Instead, it must be read
together with the CBA's limitation on an arbitrator's adjudicative capacity, which states
that the arbitrator is entirely governed by the terms of the CBA. And although arbitrating

11

the dispute between Local 15 and Exelon may not require an arbitrator to consider
federal law, determining whether arbitration is proper will. This case presents the
question whether attempting to arbitrate the propriety of Exelon's implementation of its
SAE's recommendation is tantamount to seeking a second determination of fitness in
violation of federal law. There does not appear to be any way for an arbitrator to
determine whether a grievance is a "second determination of fitness" without examining
federal regulations for a definition of that term.
The standard for demonstrating that determination of arbitrability has been
assigned to an arbitrator is strict. See Miller v. Flume, 139 F.3d 1130, 1133–34 (7th Cir.
1998). In light of the limitations the CBA places on arbitrators, the Court is not prepared
to say that the CBA clearly and unmistakably grants an arbitrator the authority to
determine whether this particular dispute is arbitrable. Because the presumption in
favor of judicial determination of arbitrability has not been rebutted, the Court will
determine arbitrability.
B.

Whether the grievances are arbitrable
As an initial matter, if pursuing a grievance challenging SAE-mandated

abstinence requirements is tantamount to "seek[ing] a second determination of fitness,"
NRC regulations forbid arbitration. 10 C.F.R. § 26.189. Local 15's position on this has
drifted somewhat over the course of briefing. At times, Local 15 has appeared to
suggest that it seeks to have an arbitrator review the evidence submitted to the SAE to
determine whether her recommendation was a good one, or to determine whether her
process was compliant with NRC regulations. This would be impermissible, because
pursuing a grievance to mount such challenges amounts to seeking a second

12

determination of fitness from someone other than the authorized SAE, which 10 C.F.R.
§ 26.189 does not permit. Despite this occasional drift, however, Local 15 has
consistently repeated (in every filing) that it seeks through its grievances to arbitrate
whether Exelon had just cause to impose new conditions on an employee's unescorted
access to its nuclear power plants. And Local 15 has consistently argued that this does
not amount to a request for redetermination of the employee's fitness. Exelon urges
that this is a mere semantics game, but it is not: asking an arbitrator to determine
whether Exelon had just cause to place conditions on continued unescorted access
simply is not the same thing as asking an arbitrator to determine whether the employee
is fit for duty or should have received a different treatment recommendation from the
SAE.
The grieved dispute therefore concerns whether, when it adopts and implements
the recommendation an SAE gives in its determination of fitness, Exelon has just cause
to impose new conditions on unescorted access. To determine whether Exelon and
Local 15 have committed this dispute to arbitration, the Court must look to whether the
dispute is, "on its face," governed by the CBA's arbitration provision. United Steel,
Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union v.
TriMas Corp., 531 F.3d 531, 535 (7th Cir. 2008). The Supreme Court has made clear
that law and public policy strongly favor arbitration and that the party seeking it is
entitled to the benefit of the doubt. Int'l Bhd. of Elec. Workers Local 2150 v. NextEra
Energy Point Beach, LLC, 762 F.3d 592, 594 (7th Cir. 2014) (citing Gateway Coal Co. v.
Mine Workers, 414 U.S. 368, 378–79 (1974)). Where an arbitration clause is broad,
disputes are presumed arbitrable. AT&T Techs., Inc. v. Commc'ns Workers of Am., 475

13

U.S. 643, 649 (1986). The Court will compel arbitration "unless it may be said with
positive assurance that the arbitration clause is not susceptible of an interpretation that
covers the asserted dispute." United Steel, 531 F.3d at 535 (quoting United
Steelworkers of Am. v. Warrior & Gulf, 363 U.S. 574, 582–83 (1960)).
As other courts have previously pointed out, the arbitration clause contained in
the CBA between Local 15 and Exelon is considerably broad. In Exelon 1, an
employee's unescorted access was revoked pursuant to the company's NRC-mandated
access authorization program. The employee filed a grievance seeking review of
whether revocation of his unauthorized access was supported by just cause. Exelon
sought a declaratory judgment from a federal court stating that the issue was not
arbitrable because Exelon's revocation decision was made as a result of mandatory
requirements imposed under NRC regulation. The court observed that within 10 C.F.R.
§ 73 (the NRC regulations that require employees to satisfy certain access authorization
standards in order to retain their unescorted access) there exists a provision which
indicates that companies should provide a review process by which employees who
lose their unescorted access may challenge revocation. The court held that the
regulatory history and text did not indicate any intention to abdicate—and, indeed,
suggested that the NRC in fact supported—the longstanding industry practice of
arbitrating challenges to unescorted access revocations, even where such revocations
were mandated under federal regulation. See Exelon 1, 2008 WL 4442608, at *3–5.
In Exelon 3, the Seventh Circuit examined whether the 2009 amendments to the
NRC regulations implicitly terminated this longstanding tradition. The case arose under
similar circumstances as those present in Exelon 1: Exelon revoked an employee's

14

unescorted access pursuant to mandatory NRC rules under 10 C.F.R. § 73 when the
employee failed to satisfy requirements under the company's access authorization
program, and the employee filed a grievance claiming the revocation was not supported
by just cause. The Seventh Circuit held that if the NRC had intended to do away with
the longstanding and notorious practice of committing to arbitration disputes about
unauthorized access revocation, it would have done so expressly. Because it did not,
arbitration was still an acceptable method for an employee to challenge the revocation
of his unescorted access. See Exelon 3, 676 F.3d at 573–75 .
To be sure, the circumstances in these cases were different from those in the
present case. Exelon first attempts to distinguish them by pointing out that in both of
these prior cases, Local 15 brought grievances on behalf of employees challenging
actual revocations of their unrestricted access, long understood to be the type of
employment action that employees challenge through arbitration. Exelon argues that
although challenging a revocation is commonplace, challenging the adoption of an
SAE's recommendations is not and was never contemplated as a proper subject of
arbitration. But this argument presents a distinction without a difference. As noted
above, the arbitration clause in this CBA is quite broad. As such, the Court applies a
presumption of arbitrability, which may be rebutted only by forceful evidence that the
parties intended to exclude the particular type of dispute from arbitration. See, e.g.,
Exelon Gen. Co. v. Local 15, Int'l Bhd. of Elec. Workers, AFL-CIO, 540 F.3d 640, 646
(7th Cir. 2008) (quoting AT&T Techs., 475 U.S. at 650) ("Where the arbitration provision
is broad, as it is here, only an 'express provision excluding a particular grievance from
arbitration . . . [or] the most forceful evidence of a purpose to exclude the claim from

15

arbitration' can keep the claim from arbitration."). The CBA does not limit arbitration to
disputes about revocation of unescorted access. Instead, it provides that the parties
shall arbitrate all disputes about working conditions, and it broadly defines working
conditions as "those elements concerned with the hours when an employee is at work
and the acts required of the employee during such hours." Maintenance of unescorted
access, and new conditions on keeping it, are working conditions. This is true
regardless whether the company has already revoked it or threatens to do so if an
employee fails to meet certain requirements.
Exelon argues that this construction is problematic because it asks an arbitrator
to consider external law (which an arbitrator is not empowered to do) when determining
whether Exelon had just cause to implement SAE recommendations pursuant to
mandatory federal regulation. In response, Local 15 cites International Brotherhood of
Electrical Workers Local 2150 v. NextEra Energy Point Beach, LLC, 762 F.3d 592 (7th
Cir. 2014), in which an employee lost his unescorted access when he was deemed to
have violated a company's FFD policy. The employee in NextEra was subsequently
discharged, whereupon he filed a grievance claiming that he was "discharged from
employment without just cause due to an inappropriate site access denial
determination." Id. at 593. The company claimed it should not be required to arbitrate
because the parties' CBA did not expressly designate disputes about unescorted
access decisions as arbitrable. Id. at 596. The Seventh Circuit held that on its face, the
CBA committed disputes over discharge to arbitration, so the dispute giving rise to the
suit belonged in arbitration. Id. The court stated:
We note, however, that we do not hold that the arbitrator may, in fact,
review and overturn NextEra's revocation of [the employee's] unescorted
16

access privileges. We express no opinion on the subject. NextEra is
entitled to present its arguments on that issue to the arbitrator, and the
arbitrator may well find the decision unreviewable. If so, the entire matter
of the propriety of the discharge might be very quickly resolved. But the
potential weakness of the Union's claim on the merits is no defense to the
arbitrability of this dispute, as a threshold question.
Id. (emphasis in original).
Exelon is right to point out that NextEra did not concern whether NRC regulations
rendered unreviewable decisions to revoke (or impose conditions on) unescorted
access, but rather whether the arbitration provision that committed discharge disputes
to arbitration committed disputes about revocation of unescorted access to arbitration
as well. But see Int'l Bhd. of Elec. Workers Sys. Council U-4 v. Florida Power & Light,
580 F. App'x 868, 869 (11th Cir. 2014) (citing NextEra for the contention that the district
court should "consider only whether the collective bargaining agreement provides the
arbitrator with authority to adjudicate this dispute, not issues that go to the merits, such
as whether the NRC regulations render [the employer's] actions unreviewable"
(emphasis added)). But NextEra does reiterate the well known rule that where a
dispute is committed to arbitration, a court should not resolve the question of arbitrability
by making judgments as to whether the party seeking arbitration will or should win the
arbitration. Local 15's grievances do not require an arbitrator to consider whether
Exelon's FFD program complies with federal regulations, nor do they require an
arbitrator to make an unqualified fitness-for-duty determination regarding the grieving
employees. The grievances instead ask whether the company had just cause to act as
it did in restricting the employees' access to the company's plants, which is what the
Seventh Circuit has held is arbitrable under a sufficiently broad arbitration agreement
like this one. See Exelon 3, 676 F.3d at 575; NextEra, 762 F.3d at 598. No
17

consideration of external law is necessary to make this determination.
Exelon also contends that submitting this issue to arbitration will put it in the
impossible position of having to violate federal law in order to comply with an arbitration
award. As Local 15 argues, however, it is premature and speculative to seek
declaratory judgment to avoid that possible outcome when it is also entirely possible
that an arbitral award might not force Exelon to violate NRC regulations at all. If an
arbitrator determines Exelon had just cause to adopt the SAE's recommendation and
impose the abstinence conditions, Exelon will not be ordered to take any action that
contravenes federal law. And if an arbitrator finds Exelon's decision unsupported by just
cause, the arbitrator might order Exelon to give the SAE more information and direct the
SAE to reconsider her recommendation, an arbitral award that would be perfectly
acceptable under the applicable NRC regulation. See 10 C.F.R. § 26.189(d) ("After the
initial determination of fitness has been made, the professional may modify his or her
evaluation and recommendations based on new or additional information from other
sources including, but not limited to, the subject individual, another licensee or entity, or
staff of an education or treatment program."). More importantly, even if the result of
arbitration is an award that Exelon thinks is violative of federal regulations, it will have a
way out: it can revive its suit and ask the Court to vacate the arbitration award as
contrary to public policy. See Titan Tire Corp. of Freeport, Inc. v. United Steel, Paper &
Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 734 F.3d 708,
716–17 (7th Cir. 2013) ("A violation of a statute or some other positive law is the
clearest example of a violation of public policy.").
Finally, Exelon points out that both Exelon 1 and Exelon 3 dealt with company

18

action taken in compliance with 10 C.F.R. § 73, which provides that all regulated entities
must provide a means of independent review when employees are found to have
violated the access authorization program. See 10 C.F.R. § 73.56(l). In contrast, this
case concerns FFD determinations under 10 C.F.R. § 26. Section 26 has a similar
provision for independent review when employees are found to have violated an FFD
policy, see 10 C.F.R. § 26.39, but it also contains the limiting provision that forbids a
party from seeking a second determination of fitness or seeking a determination from
anyone other than the SAE herself, see 10 C.F.R. § 26.189. Exelon seems to argue
that because section 26.189 contains a limitation on review that is unique to section 26,
disputes over adverse employment action taken pursuant to regulations in section 26
are generally less amenable to arbitration than are disputes over adverse action taken
pursuant to section 73. But it is a stretch to construe a regulation forbidding a second
determination of fitness as forbidding or even limiting review of any company action
arising out of an SAE's recommendation. Section 26.189 says that a party may not
seek a determination of fitness from someone other than the authorized SAE or a
second determination of fitness after one has already been completed. It says nothing
about removing from arbitration disputes about working conditions that arise out of an
SAE's recommendation.
Conclusion
For the foregoing reasons, the Court grants Local 15's motion for summary
judgment and to compel arbitration [dkt. no. 40] and denies Exelon's motion for
summary judgment [dkt. no. 22]. In light of the Court's ruling on cross-motion for
summary judgment, the Court denies as moot Local 15's motion for discovery. The

19

Clerk is instructed to enter judgment in favor of defendant and directing that the
grievances that are the subject of the lawsuit are to be submitted to arbitration pursuant
to the parties' collective bargaining agreement.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: October 6, 2015

20