International Brotherhood of Electrical Workers Local Union 2150 v. NextEra Energy Point Beach LLC

Filing 34

DECISION AND ORDER Denying Defendant's Motion for Summary Judgment 28 and Granting Plaintiff's Motion for Summary Judgment 29 signed by Judge Charles N Clevert, Jr on 11/30/16. (cc: all counsel) ((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL UNION 2150,
Plaintiff,
v.

Case No. 13-C-0724

NEXTERA ENERGY POINT BEACH LLC,
Defendant.
DECISION AND ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (DOC. 28) AND GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (DOC. 29)
The International Brotherhood of Electrical Workers Local 2150 (“IBEW”) brought this
action against NextEra Energy Point Beach, LLC claiming that NextEra improperly refused
to submit to arbitration a grievance IBEW filed on behalf of two NextEra employees.
NextEra maintains that the grievance, relating to access to its nuclear energy facility, is
outside the scope of the parties’ collective bargaining agreement, and that it is not required
to address the grievance through arbitration.
The parties filed cross-motions for summary judgment prior to a Seventh Circuit
decision in a closely related case involving the same parties, the same issues, and similar
facts. See Int’l Bhd. of Elec. Workers Local 2150 v. NextEra Energy Point Beach, LLC, 762
F.3d 592 (7th Cir. 2014). After that case was decided in favor of IBEW, the court denied the
prior motions and directed the parties to file new motions in light of the new decision.
FACTS
IBEW is a labor organization that represents certain employees of NextEra for
purposes of collective bargaining. IBEW maintains offices in Menomonee Falls, Wisconsin,

within this judicial district. NextEra owns and operates the Point Beach Nuclear Power
Plant, a two-unit commercial nuclear energy generating facility in Two Rivers, Wisconsin,
within this judicial district. NextEra is an employer within an industry affecting commerce as
defined in the Labor-Management Relations Act, 29 U.S.C. §151 et seq.
In September 2007, NextEra acquired the Point Beach facility from Wisconsin Electric
Power Company (“WE Energies”) and as successor to WE Energies assumed the collective
bargaining agreements between IBEW and WE Energies. IBEW represents four bargaining
units at the Point Beach facility, each of which is covered by a separate collective bargaining
agreement. The “Blue Book” is the collective bargaining agreement between NextEra and
IBEW that has applied to the bargaining unit that established the terms and conditions of
employment applicable to the employees at issue in this case, Michael Walker and Clyde
Engelbrecht. In 2004, IBEW and WE Energies had entered the agreement constituting the
“2004-2007 Blue Book.” NextEra assumed the 2004-2007 Blue Book when it acquired Point
Beach from WE Energies.
Article XVII of the 2004-2007 Blue Book contained a multi-step dispute resolution
procedure by which the parties addressed grievances. The procedure provided for final and
binding arbitration of a dispute “not satisfactorily resolved as described in [the Grievance
Procedure] and [involving] compliance with the terms and conditions of this Agreement.”
In 2006, IBEW and WE Energies submitted to arbitration a dispute concerning an
employee whose unescorted access1 had been revoked by WE Energies and who was

1

“Unescorted access” is a security clearance level applicable to personnel working at com m ercial
nuclear generating facilities in the United States. The United States Nuclear Regulatory Com m ission’s
regulations and NextEra’s policy regarding unescorted access to its nuclear plants are described in detail
below.

2

consequently terminated. Arbitrator Suntrup defined the issue submitted for resolution as
whether WE Energies’ decision to revoke the grievant’s unescorted access-to-work status
was substantively arbitrable under the parties’ agreement. Arbitrator Suntrup analyzed the
language of the 2004-2007 Blue Book, and in so doing reproduced and relied on the text
of the following sections of Article XVII-Grievance Procedure: section 17.1(1)(A) (Step 1),
section 17.1(3)(A), (B) (Step 3), and section 17.1(4) (Step 4). Arbitrator Suntrup also
reproduced and relied on the text of Article XVIII-Method of Arbitration, Sections 18.1,
18.1(2) and 18.1(3). Arbitrator Suntrup determined (in the “2006 Suntrup Award”) that the
issue of revocation of unescorted access at Point Beach was not arbitrable under the
parties’ agreement and, as a result, that he had no jurisdiction over the issue of the loss of
unescorted access.
Following expiration of the 2004-2007 Blue Book, IBEW and NextEra negotiated and
entered three successor collective bargaining agreements, the most recent of which is
effective for the period of 2013-2016. At no time during negotiations over the terms of the
three successor Blue Book collective bargaining agreements following issuance of the 2006
Suntrup Award did IBEW propose any terms to provide that unescorted-access decisions
be subject to arbitration or propose terms or changes from the 2004-2007 Blue Book to
address, rescind, or modify the effect of the 2006 Suntrup Award.
The collective bargaining agreement at issue in this lawsuit is the Blue Book that was
in effect from August 16, 2010, to September 15, 2013 (the “2010-2013 Blue Book”). Steps
1, 3, and 4 of Article 17—Grievance Procedure contained in the 2010-2013 Blue Book were
identical to the provisions of the 2004-2007 Blue Book that Arbitrator Suntrup reproduced
and relied upon. Similarly, sections 18.1, 18.1(2) and 18.1(3) of Article 18—Method of
3

Arbitration in the 2010-2013 Blue Book were materially identical2 to the same provisions in
the 2004-2007 Blue Book that Arbitrator Suntrup reproduced and relied upon.
Article 8—Management Rights of the 2010-2013 Blue Book stated:
The right to employ, layoff, release, re-employ, promote, demote, transfer,
discipline, and discharge are reserved by and shall be vested exclusively in
the Company, except as modified by the terms of this Agreement. The
management of the property and corporate affairs are reserved by and shall
be vested exclusively in the Company. The Company shall have the right to
determine who it shall employ, how many persons it will employ or retain, the
work they shall perform and the manner in which they shall do their work, the
way they shall deport themselves while on the Company’s property, the
character of organization required for the most effective performance of the
work, together with the right to exercise full control and discipline in the
interest of good service and the proper conduct of its business.
Article 11—Discipline of the 2010-2013 Blue Book stated:
In the matter of discipline including discharge, charges brought against an
employee shall be specific and shall promptly be called to the employee's
attention. The Company may, as it deems appropriate and without prejudice
to the rights of any involved party, temporarily suspend an employee pending
completion of its investigation into a disciplinary matter. If upon completion of
the investigation the charges are not sustained, the employee shall have
his/her record cleared of such charges and, in the case of loss of wage
because of temporary suspension, shall receive reimbursement for such loss.
Discipline involving disciplinary layoff or discharge shall not be administered
until the employee has been given an opportunity of presenting his/her case
at a review meeting, at which the Company will disclose its findings of the
investigation to date. Such review meeting must involve the appropriate
official of the Company and a representative designated by the L.U. 2150
office before a discharge or disciplinary layoff is administered. An employee’s
seniority rights shall not be permanently impaired because of disciplinary
layoff. In those matters of discipline in which a formal record of the
disciplinary action is prepared for placement in the disciplined employee’s
personnel file, a copy of such formal record shall be given to the disciplined
employee, the steward, the Unit Chairperson, and the Union office.

2

Any difference between the Method of Arbitration provision in the 2010-2013 Blue Book and the
2004-2007 provision quoted by Arbitrator Suntrup is im m aterial. For exam ple, Arbitrator Suntrup quotes
(em phasis added) Article XVIII-Method of Arbitration as stating “if the m atter in dispute is arbitrable under the
term s of this agreem ent,” whereas the 2010-2013 Blue Book states “if the m atter in dispute is subject to
arbitration under the term s of this Agreem ent.”

4

Members of the Union are not to be reprimanded within hearing of others.
The 2010-2013 Blue Book contained a four-step procedure for filing a grievance,
outlined in Article 17 of the agreement, as well as procedures for seeking and proceeding
with arbitration, outlined in Articles 17 and 18. Article 17—Grievance Procedure provided,
in relevant part:
Step 1
A.
In order to foster the most harmonious relationships between
employees and their supervisors, it is mutually agreed that potential
grievances and other employee problems relating to the employee's job
performance, assignment of work, overtime, or other matters which
may arise from day to day shall be promptly discussed between the
employees involved and their immediate supervisors, with or without a
Union representative present. It shall be the supervisor's responsibility
to promptly schedule any meeting necessary to discuss such potential
grievances and problems employees may bring to their attention.
B.
If the matter is not satisfactorily resolved as described in Item A
above and is to be processed as a grievance, the employee involved
and the steward shall . . . prepare a written grievance . . . [that] . . .
should provide specific facts about the problem and stipulate the
provision (if any) of the Labor Agreement alleged to have been violated.
C.
The steward will inform the person to whom the supervisor
reports of the Union’s intent to pursue the grievance. This person will
promptly hold a meeting to hear the grievance and, following an
investigation, will issue a written decision to the Union on the matter in
question.
Step 2
If the matter is not satisfactorily resolved as described in Step 1 above,
the Union may . . . appeal the unresolved grievance to the next
appropriate level of management.
Step 3
Grievance matters involving discipline, discharge, promotion, and
demotion which are not satisfactorily resolved in Step 2 may be

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appealed by the Union . . . to the officer-in-charge (or designated
representative).
Step 4
If the matter is not satisfactorily resolved as described in Step 3 above
and it involves compliance with the terms and conditions of this
Agreement, the Union may . . . submit the dispute to an arbitrator, to be
selected in the manner specified hereinafter, and the Company and the
Union agree that the decision of such arbitrator shall be binding on both
parties.
Article 18 of the 2010-2013 Blue Book contained the following terms governing arbitration:
If the Union desires to arbitrate any matter in dispute pursuant to Section
17.1(4) above, if the matter in dispute is subject to arbitration under the terms
of this Agreement . . . arbitration shall proceed as follows:
....
2.
It is understood that the function of the arbitrator shall be to
decide, by interpreting and applying this Agreement, the matter or
matters specifically set before it and that the arbitrator shall have no
power to extend the duration of the Agreement; to add terms or
provisions thereto; . . . nor to enlarge its own jurisdiction except upon
mutual consent of the Company and the Union.
3.
. . . the decisions of the arbitrator concerning any mater referred
to it pursuant to the provisions hereof shall (if not contrary to state or
federal law or regulations thereunder) be final and conclusive upon the
employees, the Union, and the Company.
The 2010-2013 Blue Book does not contain any terms or language addressing
whether an arbitrator or court is authorized to determine issues of arbitrability.
Nuclear Regulatory Commission regulations concerning unescorted access are
contained in 10 C.F.R. pt. 26 and 10 C.F.R. pt. 73. NextEra created and maintains an
“Access Authorization and Fitness for Duty Program” (the “Access and Fitness Program”).
The Access and Fitness Program includes a criminal background investigation,
psychological assessment, drug and alcohol screening including random testing, and
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behavioral observation of those individuals seeking unescorted access. These requirements
apply not only to NextEra’s initial decision to grant unescorted access but also continually
to those individuals already holding unescorted access clearance. Accordingly, NextEra
assesses whether those persons currently holding unauthorized access privileges continue
to be “trustworthy and reliable, such that they do not constitute an unreasonable risk to
public health and safety.”
At no point during development of its Access and Fitness Program did NextEra
receive input from or consult with IBEW. Further, IBEW is not consulted at any point
regarding the merits of NextEra’s assessment of whether an individual meets or continues
to meet the standard for unescorted access; IBEW plays no role in determining whether an
individual qualifies for unescorted access.
NextEra provides a review procedure whereby individuals whose unescorted access
is denied or revoked can obtain an impartial and independent internal management review
of that decision. An individual whose access to Point Beach is revoked or denied is provided
written notice of the right to appeal such a decision to an independent management panel.
The affected individual is afforded the right to be represented by counsel and to submit any
materials or arguments he or she chooses, and the review panel undertakes a de novo
review of the decision.
NextEra maintains its Access and Fitness Program as an independent policy and
document.

Unescorted access decisions are made pursuant to the standards and

procedures established for the Access and Fitness Program, without reliance on other
company documents.

7

There are no specific references to NextEra’s Access and Fitness Program in the
2010-2013 Blue Book. The lone references to unescorted access in the 2010-2013 Blue
Book provide that “[w]ith respect to the nature of site access-related psychological
interviews, employees in this bargaining unit will be treated no less favorably than
employees of other PBNP bargaining units and/or Critical Groups,” and “[t]he Company
agrees to review any information provided by the Union regarding denial of access, so long
as any such information is provided within the normal appeals process timeline and does
not delay the appeals process.” All employees at Point Beach must have and maintain
unescorted access authorization.
Michael Walker and Clyde Engelbrecht were full-time employees of NextEra from
May 24, 2010, until February 7, 2013. Both had unescorted-access authorization to Point
Beach as a requirement of their employment. Walker and Mr. Engelbrecht are members of
IBEW and, at the time of their termination, were employed in the bargaining unit covered by
the 2010-2013 Blue Book.
Taking the evidence in NextEra’s favor, Walker and Engelbrecht were denied nuclear
access because they gained unauthorized access to a restricted security locker containing
weapons and ammunition, which was stationed inside the nuclear power plant for the sole
use of the NextEra plant security force, and they failed to notify supervision or security of this
incident. On the other hand, taking the evidence in IBEW’s favor, Walker and Engelbrecht
were denied nuclear access because both were present when a restricted security locker
containing weapons and ammunition, stationed inside the nuclear power plant for the sole
use of the NextEra plant security force, was unlocked, and neither made supervision or
security aware of this incident until a later date.
8

NextEra deemed Walker and Engelbrecht no longer trustworthy and reliable, and
therefore revoked their unescorted access effective February 7, 2013. On February 15,
2013, Walker appealed NextEra’s decision to revoke his unescorted access. Engelbrecht
likewise appealed on February 18, 2013. During their appeals, Walker and Engelbrecht
were represented by counsel.
Walker’s and Engelbrecht’s appeals were considered and heard by an appeal panel,
no member of which was involved in the initial decision to revoke their access. The appeal
panel conducted an independent review of the facts and considered all the information
submitted by Walker’s and Engelbrecht’s counsel. On February 28, 2013, the appeal panel
affirmed NextEra’s decision to revoke Walker’s and Engelbrecht’s unescorted access.
On March 5, 2013, IBEW filed written grievances on behalf of Walker and
Engelbrecht, alleging they were “[d]ischarged from employment due to an inappropriate site
access denial determination without due process or just cause,” referencing Articles 7 and
11 of the 2010-2013 Blue Book.

IBEW’s requested remedy was that Walker and

Engelbrecht receive “[r]einstatement of site access, reinstatement of employment and to be
made whole.”
In letters dated March 11, 2013, NextEra responded in writing to IBEW’s grievances:
The Company and the Union have previously arbitrated whether access denial
is substantively arbitrable under the contract and an arbitrator has decided
that it is not (See Suntrup Decision – FMCS Case No. 05/54861). Per Article
17, Section 17.1(4) “ . . . the Company and the Union agree that the decision
of such arbitrator shall be binding on both parties.”
As an arbitrator has decided this matter is not subject to the grievance and
arbitration procedures, the Company denies the grievance.
On April 3, 2013, IBEW contacted NextEra by e-mail, stating:

9

We intend to continue to pursue these grievances. Rather than following a
path similar to the one followed in Jon Hofstra’s grievance, we suggest placing
both grievances in abeyance pending the resolution of the court case to
compel arbitration in Jon Hofstra’s grievance. Please let me know whether or
not you agree. Thanks.
On April 10, 2013, NextEra responded:
As the company has previously stated, the subject matter of the grievances
the union is purporting to take up on behalf of Engelbrecht and Walker are not
subject to the arbitration provisions of the collective bargaining agreement
currently in effect between the company and IBEW Local 2150. Moreover, the
issue of arbitrability of the company’s nuclear access decisions was already
decided in the Suntrup Case wherein the arbitrator held that such decisions
were not arbitrable.
The company cannot advise the union on how to proceed but cannot agree
to hold the instant grievances in abeyance.
On April 10, 2013, IBEW wrote via e-mail: “Please verify that you understand that we
are requesting arbitration for the termination grievances for both Engelbrecht and Walker
and that you are refusing to participate in arbitration. Thanks.” On April 18, 2013, NextEra
responded as follows:
Article 18.1 of the CBA states in pertinent part, “ . . . the decisions of the
arbitrator concerning any matter referred to it pursuant to the provisions hereof
shall (if not contrary to state or federal law or regulations there under) be final
and conclusive upon the employees, the Union and the Company.”
The parties negotiated this provision to avoid the need to constantly rehash
disputes about the meaning of contract terms.
The denial of access for Walker and Engelbrecht was not punitive, but made
in conjunction with the Company’s obligations as a nuclear licensee. In 2006,
Arbitrator Suntrup was asked by the parties to interpret the CBA to determine
if the provisions demonstrate an agreement between the parties to arbitrate
access decisions. Arbitrator Suntrup determined that there was no such
agreement and that nuclear access decisions are NOT arbitrable under the
terms of the contract. Since 2006, the Union has had several opportunities to
bargain new contract language on this matter but has failed to do so. Neither
has the Union taken steps to establish that Arbitrator Suntrup’s decisions
violated either state or federal law. Accordingly, that decision, is final and
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binding and governs the relationship between the parties on that issue until
such time as the parties bargain something new.
The Union’s current attempt to move these matters to arbitration in the face
of the Suntrup decision is a violation of Article 18.1 which contemplates that
both the Company and the Union will abide by arbitration awards. The
Company therefore refuses to arbitrate these matters and will take all
reasonable steps to ensure that the Suntrup award is honored.
NextEra held that the issues regarding Walker’s and Engelbrecht’s loss of unescorted
site access and termination were not arbitrable under the terms of the Blue Book, and
refused to participate.
In August 2014, the Seventh Circuit released its opinion in International Brotherhood
of Electrical Workers Local 2150 v. NextEra Energy Point Beach, LLC, involving the same
parties and similar facts. 762 F.3d 592 (7th Cir. 2014). The Seventh Circuit ruled that under
a different IBEW unit’s collective bargaining agreement with NextEra (known as the “White
Book”) a termination-based grievance stemming from a loss of unescorted access privileges
by employee Jonathan Hofstra was arbitrable.
ANALYSIS
Arbitration “is a matter of contract and a party cannot be required to submit to
arbitration of any dispute which he has not agreed so to submit.” Int’l Union of Operating
Eng’s, Local Union 103 v. Ind. Constr. Corp., 13 F.3d 253, 256 (7th Cir. 1994) (quoting
United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct.
1347, 1353 (1960)). However, requests to submit a particular grievance to arbitration are
only to be denied if it may be said with “positive assurance” that a collective bargaining
agreement’s arbitration clause is not susceptible to an interpretation that covers the

11

grievance at hand. Warrior & Gulf Navigation, 363 U.S. at 582-83. Thus, the burden to
show that a particular dispute is not subject to arbitration is on the party opposing arbitration.
In determining whether there is “positive assurance” that a collective bargaining
agreement’s arbitration clause does not cover a particular dispute, courts look at the
agreement and all relevant evidence surrounding the agreement’s formation. AT&T Techs.,
Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649, 106 S. Ct. 1415, 1419 (1986); Indiana
Constr. Corp., 13 F.3d at 256.

This evidence must be “forceful” to overcome the

presumption of arbitrability in collective bargaining agreements, one that is strongest when
the arbitration clause at issue is written broadly. NextEra, 762 F.3d at 594; Ind. Constr.
Corp., 13 F.3d at 256. Furthermore, the party opposing arbitration must demonstrate with
specificity that a particular topic is excluded from arbitration through the language of the
collective bargaining agreement. Int’l Bhd. of Teamsters, Local Union No. 371 v. Logistics
Support Grp., 999 F.2d 227, 231 (7th Cir. 1993). Any ambiguity as to the agreement’s
scope will be construed in favor of arbitration. NextEra, 762 F.3d at 594. When it comes
to management’s right to retain control over certain decisions, “nonarbitrability requires an
absolutely undeniable reservation of unfettered managerial authority.” Logistics Support,
999 F.2d at 231.
In this instance, the language of the 2010-2013 Blue Book was broad enough to
trigger a presumption of arbitrability. See Ind. Constr. Corp, 13 F.3d at 257. Article 17,
§ 17.1(1)(A) (emphasis added) listed “the employee’s job performance, assignment of work,
overtime, or other matters which may arise from day to day” as potential bases for an
employee’s filing of a grievance—language so broad as to potentially encompass any workrelated issue at NextEra’s plant. The 2010-2013 Blue Book also stated that arbitration may
12

be sought when a matter was not satisfactorily resolved through other steps in the grievance
process and involved compliance with the terms and conditions of the Blue Book. Here,
IBEW seeks arbitration regarding a matter that arose in the day-to-day life of two NextEra
employees, namely the status of their unrestricted access privileges and overall
employment. See, generally, NextEra, 762 F.3d 592. Thus, the 2010-2013 Blue Book
facially allowed the IBEW to request arbitration to resolve these matters.
Nevertheless, a party may show that a dispute falls outside of a collective bargaining
agreement’s arbitration clause if it can provide “positive assurance” that the parties intended
to exclude the dispute from arbitration. AT&T Techs., 475 U.S. at 649. NextEra attempts
to show that disputes over unrestricted access are not contemplated by the 2010-2013 Blue
Book, and that this case is one about access, not discharge. Because IBEW wishes to have
the arbitrator review the revocation of Walker’s and Engelbrecht’s unescorted site access,
NextEra posits that this court cannot compel arbitration unless it finds that the arbitrator has
the authority to review such decisions.
The Seventh Circuit rejected these offerings in its 2014 NextEra decision. Although
the Court relied on different language in the White Book to come to its conclusion, the
rationale underlying that decision remains the same as here. While the 2010-2013 Blue
Book did not mention unescorted access decisions directly, “‘exclusion of particular parties
or issues from coverage by an agreement’s arbitration provisions . . . must be stated
explicitly in the agreement.’” 792 F.3d at 596 (quoting Ceres Marine Terminals, Inc. v. Int’l
Longshoremen’s Ass’n, Local 1969, 683 F.2d 242, 247 (7th Cir. 1982)). Because this
subject was not delegated explicitly to management’s purview in the 2010-2013 Blue Book,

13

it cannot be said that it is verboten to send it to arbitration. Thus, whether or not an
arbitrator will find the unescorted-access issue arbitrable is irrelevant. See id.
The Seventh Circuit also rejected evidence similar to what NextEra advances here
to provide “positive assurance” of an intent to exclude this type of grievance from arbitration.
IBEW’s failure to negotiate language into the 2010-2013 Blue Book covering the situation
at hand does not constitute an explicit or implicit relinquishment of arbitration as a potential
solution to it. Id. at 597. Furthermore, that the arbitrator in the Suntrup arbitration—a
decision involving “different parties, a different collective bargaining agreement, and different
facts,” id.—decided that access decisions were not reviewable in 2006 has no binding effect
here. “It is black letter law that arbitration awards are not entitled to the precedential effect
accorded to judicial decisions.” Id. The 2006 Suntrup Award provides, at best, arguments
that parallel the arguments NextEra makes here. However, that is far from the kind of
positive assurance of intent necessary to exclude this matter from arbitration. AT&T Techs.,
475 U.S. at 649. The same can be said for NextEra’s internal review process for unescorted
access decisions as part of its Access and Fitness Program. The existence of this program
suggests NexEra’s desire to retain control of unescorted access determinations but does
nothing

to

provide

assurance

of

a

purposeful

intent

to

exclude

those

determinations—particularly as they relate to an employee’s discharge—from arbitration.
NextEra, 762 F.3d at 597; see AT&T Techs., 475 U.S. at 649.
Because NextEra cannot provide positive assurance through forceful evidence that
the issues IBEW brought forward through the grievance process were intentionally excluded
from arbitration in negotiating the 2010-2013 Blue Book, this court finds that NextEra is
required to arbitrate the Walker and Engelbrecht grievances. Accordingly,
14

IT IS ORDERED that NextEra’s motion for summary judgment (Doc. 28) is denied
and IBEW’s motion for summary judgment (Doc. 29) is granted.
Dated at Milwaukee, Wisconsin, this 30th day of November, 2016.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

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