Sunday, November 17, 2013

Denial of unescorted access to nuclear facility found to be an arbitrable dispute

Grievant, an employee of MIT and a member of the bargaining unit represented by the Research, Development and Technical Employees Union, received an oral warning for allegedly removing mail from another employees mailbox without authorization. In addition, her authorization for unescorted access to the facility's nuclear reactor area was revoked. While she continued to perform duties commensurate with her job classification, she was assigned only to areas not requiring unescorted access. The Union pursued a grievance on her behalf, challenging both the warning and the revocation of her authorization for unescorted access. Unable to resolve the dispute in the grievance procedure, the Union sought to arbitrate both issues.

 MIT sought a declaratory judgment that the denial of unescorted access was not an arbitrable dispute, and asked the court to enjoin the union from pursuing the case to arbitration. The Massachusetts District Court did not immediately decide the issue; instead it remanded  the case to the arbitrator for resolution, including resolution of the arbitrability question and stayed the case pending the decision of the arbitrator.

Before the arbitrator, MIT conceded that the question of whether there was just cause for the oral warning, and whether the grievant was "transferred" within the meaning of the contract and if so whether it was for just cause were appropriate subjects for arbitration. It maintained, however, that the initial decision to revoke grievant's right of unescorted access, and the subsequent decision not to reinstate it, were not arbitrable issues. The arbitrator rejected MIT's position, finding the dispute arbitrable, and MIT then returned to court and renewed its argument on arbitrability.

The court summarized the arbitrator's award:

The Arbitrator concluded that while the language of the arbitration clause only permits arbitration of grievances "regarding the interpretation or application of [the] Agreement," and the fact that the Agreement is silent on the unescorted access issue seems to counsel against arbitrability of this issue in view of the arbitration clause's language, ... the revocation of unescorted access under the circumstances of this case amounted to discipline and thus implicated Article XX of the Agreement, .... As additional ground for his reasoning, the Arbitrator considered the Order's language and opined that the denial of unescorted access "must be for specific and valid and reliable reason(s)," and the determination of whether [grievant] showed a "pattern of trustworthy and reliable behavior" necessarily relied on "an investigation of the events leading up to her removal of access .. . which [could] only take place if this portion of the grievance" was arbitrable. ...Lastly, the Arbitrator reasoned that doubts as to questions of arbitrability should be resolved in favor of arbitration and as the Agreement "contains no provision which prohibits the grievance regarding the denial of access to proceed to arbitration," the issue must be substantively arbitrable.

Noting that the question of substantive arbitrability was a matter for a court to decide, the District Court first concluded that the presumption of arbitrability applied here in light of what it considered to be a broad arbitration clause. It noted that the"absence of a specific provision does not necessarily equate to an intentional exclusion" of any particular dispute from arbitration, and in the absence of evidence of intentional exclusion of the issue from arbitration the dispute was properly before the arbitrator.

The court then turned to MIT's contention that decisions concerning the denial of unescorted access to nuclear facilities falls outside the scope of arbitration for reasons of public policy. While noting that there was some support for MIT's position, it concluded that it agreed with the decision of the Seventh Circuit (discussed here)  that the applicable regulations did not prohibit an arbitrator from deciding this issue. It noted:

 While it is arguably in the public interest for a publicly accountable judiciary to review site access disputes for our nuclear facilities, it is not in fact the Commission's or Congress's policy or intent to exclude access revocation disputes from private (and largely secret) arbitration. Thus, MIT's policy argument must fail.

The courts decision in Massachusetts Institute of Technology v. Research, Development and Technical Employees Union can be found here.

The Nuclear Regulatory Commission is currently considering a petition to amend its regulations to prohibit "third parties (including arbitrators)" from restoring or granting unescorted access. Ineligible Access to Nuke Plants Questioned.

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