Labor — nuclear power plants — security clearance

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United States Court of Appeals For the Seventh Circuit

Civil

Labor — nuclear power plants — security clearance

Labor arbitrators deciding grievances under collective bargaining agreements can review access denial decisions and order unescorted access as a remedy for a wrongful denial.

“This policy continuity is especially important in the context of subsection (l), for there is no doubt that its 1991 version permitted arbitral review of access denials. The issue of arbitral review was a significant controversy when the 1991 rule was issued. Some licensees objected to any requirement for a review process, while organized labor representatives raised questions about the implications for workers’ grievance rights. In its published analysis of the final 1991 rule, the Commission assured union leaders and everyone else in the industry that it ‘never intended that any review procedure that already exists in a bargaining agreement be abandoned.’ 56 Fed. Reg. at 19002. The Commission spelled out that the review proceedings set forth in subsection (l) could be conducted by a neutral arbitrator: ‘if procedures under collective bargaining agreements’ so provide, ‘the rule would allow the use of a grievance procedure for review of denials or revocations of access authorizations.’ Id. In assuaging the industry’s concerns about third parties like arbitrators deciding disputes over access, the Commission made clear that such review was permissible: ‘if the evidence indicates a proper application of relevant criteria in excluding an employee, the review procedure . . . should result in a decision vindicating the management action.’ Id. at 19003. In short, the Commission’s unequivocal and reasoned position in 1991 was that what is now subsection (l) established a procedural floor that could be exceeded by providing for arbitral review of access decisions.”

Reversed and Remanded.

11-2423 Exelon Generation Co., LLC, v. Local 15

Appeal from the United States District Court for the Northern District of Illinois, Gettleman, J., Hamilton, J.