Sunday, June 15, 2014

Grievance over termination because of denial of unescorted access not subject to arbitration

Grievant was employed as an armed nuclear security officer at Exelon Generation Co.'s Oyster Creek nuclear generating facility in Forked River, N.J. After his employer discovered he had failed to identify a previous medical condition on a medical history questionnaire, ExGen's Access Authorization department began a review of his access status and ultimately denied him unescorted access. Grievant appealed this denial through the appeal procedure and, at the same time, filed a grievance. His appeal was denied and his employment was terminated because of his inability to have unescorted access to the facility. His grievance was also denied and the Union sought to pursue the dispute to arbitration. The Company refused to arbitrate and the Union brought an action seeking to compel arbitration.

The grievance procedure of the cba provided for the arbitration of differences or disputes but also provided "that issues involving the decision to grant or deny unescorted access under the access authorization program ... shall be resolved through the access authorization program appeal procedure, not through the grievance and arbitration procedure."

Despite this language, the Union claimed the provision was ambiguous, and that the employer had not shown the requisite "forceful evidence" of an intent to exclude the grievance from arbitration.

The court was not persuaded. It noted:

Regardless of why an employee ended up losing his unescorted access, that he lost it, and that discharge was based in some way on that loss of access (i.e. somehow "involve[d]" the loss of access) brings the dispute within the exclusion clause and thus renders it unarbitrable. This atom cannot be split.
Any suggestion that this state of affairs is somehow unfair is also unpersuasive: The question here, one must remember, is not whether review may be sought, but rather whether the parties agreed, as a matter of contract, to arbitrate this particular type of dispute. The CBA's language is unambiguous that they did not, and that, in essence, is the end of the matter.

Accordingly the court denied the Union's motion to compel and granted the employer's cross motion, dismissing the action.

The court's decision in United Government Security Officers of America v. Excelon Nuclear Security can be found here.

Other cases involving arbitration of disputes concerning unescorted access (one also involving Excelon) can be found here and here.

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