International Broth. of Elec. Workers, Local 97 v. Niagara Mohawk Power Corp.

Decision Date08 May 1998
Docket NumberNo. 363,D,363
Citation143 F.3d 704
Parties135 Lab.Cas. P 10,157 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 97, Plaintiff-Appellant, v. NIAGARA MOHAWK POWER CORPORATION, Defendant-Appellee. ocket 97-7113.
CourtU.S. Court of Appeals — Second Circuit

Donald D. Oliver, New York City (Blitman & King), for Plaintiff-Appellant.

Robert W. Kopp, Syracuse, NY (Bond, Schoeneck & King), for Defendant-Appellee.

Before: KEARSE and McLAUGHLIN, Circuit Judges, and TRAGER, District Judge. *

TRAGER, District Judge:

In this case we revisit the question of reconciling the proper role of the courts and of labor arbitrators where a claim is made that a labor arbitration award should not be enforced because it contravenes public policy. The factual context, nuclear safety, is one that this Court has not confronted before, and one which makes the issue more difficult than it otherwise might be.

Plaintiff-appellant, International Brotherhood of Electrical Workers, Local 97, appeals from a judgment of the United States District Court for the Northern District of New York vacating an arbitration award which ordered the conditional reinstatement of Patrick Rando, a technician at a nuclear power plant owned by defendant-appellee Niagara Mohawk Power Corporation. Rando was discharged after he adulterated a drug test and subsequently tested positive for cocaine. On appeal, plaintiff argues that enforcement of the arbitration award reinstating Rando would not violate public policy and that the district court exceeded its reviewing power in setting aside the arbitration award. We conclude that public policy here is defined by the regulations of the Nuclear Regulatory Commission and that the arbitration panel's award of conditional reinstatement, following rehabilitation, does not violate public policy as defined by those regulations. We also conclude that the district court impermissibly employed a de novo standard when reviewing the arbitration panel's factual findings. Accordingly, the district court erred in vacating the arbitration award and we reverse.

Background

Defendant Niagara Mohawk Power Corporation ("Company") is engaged in the business of generating and supplying electrical power and supplying natural gas to residential and commercial users throughout upstate New York. Among the facilities operated by the Company are two nuclear power plants located at Nine Mile Point in Lycoming, New York. Plaintiff International Brotherhood of Electrical Workers, Local 97 ("Union") is the collective bargaining representative for a bargaining unit consisting of hourly paid production, maintenance, non-technical, office and clerical employees of Niagara Mohawk. The Company and the Union (and the Union's predecessor local unions affiliated with the International Brotherhood of Electrical Workers) have been parties to a series of collective bargaining agreements concerning the terms and conditions of employment for employees in the collective bargaining unit which included Rando.

The events which preceded Rando's discharge are essentially undisputed. At the time of his discharge, Rando was employed as a chemistry technician at the Company's Nine Mile Point, Unit 2 plant, a position he held for approximately four and a half years. As a chemistry technician, Rando was responsible for ensuring that the plant chemistry was maintained within the technical specifications required by the federal Nuclear Regulatory Commission ("NRC"), including testing "air effluence, influence, water effluence, pump oils" and other related activities. Opinion and Decision of the Arbitration Panel ("O & D") at 4. Prior to the incident that ultimately would give rise to this appeal, Rando had a clean disciplinary record.

As a nuclear power plant operator, Niagara Mohawk is required to comply with extensive regulations promulgated by the NRC. The regulations are designed to ensure the safety of nuclear power plant workforces and the public at large. One of the NRC regulations mandates that nuclear power plants maintain "Fitness For Duty Programs" which provide for random drug screening of employees. See 10 C.F.R. §§ 26.1, 26.27. On February 4, 1993, pursuant to the Company's Fitness for Duty Program, Rando was selected on a random basis to provide a urine sample for testing. The Company's policy also required that, prior to submitting the sample, Rando sign a consent form in which he certified that the specimen he was about to provide was not adulterated or altered in any way. The signed consent form acknowledged Rando's understanding that the results of the test or his lack of cooperation in providing the specimen "[would] be used to make decisions regarding [his] future access to nuclear facilities." Consent Form, Joint Appendix at 34.

The sample that Rando provided on February 4 was detected by technicians to smell of chlorine, and subsequent tests and laboratory analysis confirmed the presence of sodium hydrochloride (a chloride compound) in the specimen. See O & D at 4. Rando was contacted at home and advised that he would be required to provide a second sample as soon as possible. On February 5, Rando submitted a second urine sample, this time under observation as required by the consent form which accompanied his first sample. The second sample submitted by Rando tested positive for cocaine. See id.

On the same day, a meeting was convened; attending were Robert LaDue, Niagara Mohawk's then General Supervisor of Labor Relations for the Nuclear Division; Mike Kenific, Rando's union representative; and Rando. At this meeting, Rando admitted that he had altered his initial drug test with chlorine but stated that he did not use drugs or illegal substances. When asked why he had adulterated the test, Rando responded that he did it to "test the system." O & D at 5. A subsequent search of Mr. Rando's locker by security personnel revealed the existence of a ten ounce bottle of chlorine solution, a small vial of urine, and another small vial of a chlorine solution. The Company claims that the results of the search were significant because they demonstrated that "[the] act on [Rando's] part to alter his drug test was planned well in advance, premeditated." O & D at 5. According to Rando, he obtained the chlorine on the morning of the test.

A disciplinary meeting was held on February 8, 1993 pursuant to Article XVI of the collective bargaining agreement. 1 At this meeting, Rando admitted that he had a substance abuse problem and that he had altered the first sample in an attempt to conceal this problem. He and the Union requested leniency from the Company regarding the imposition of a disciplinary penalty. Rando's union representative noted that the Company had found no fault with Rando's job performance, despite conducting a full audit of his work records. The union representative further noted that Rando had no prior disciplinary infractions and had once been selected as safety employee of the month. The Company, however, represented by LaDue, decided to terminate Rando that day "on the basis of his intentional behavior to defraud the company as far as his drug test was concerned and his falsification of the document when he certified that it was not altered in any way." O & D at 5.

The Union appealed the termination through the Step Three grievance hearing procedure specified in the collective bargaining agreement. Rando's union representative argued that Rando had voluntarily begun treatment for chemical abuse following his discharge and that he deserved credit for taking that step. More significantly, Rando's union representative cited Section 3.2.3 of the Nuclear Division Directive, a Company-issued document governing nuclear employees, which provides that "[a]lteration or interference with the proper collection of samples or conduct of tests shall be treated as a positive test and shall result in the appropriate management sanctions." Rando's union representative noted that pursuant to the Company's own Fitness for Duty Program, an initial positive test subjected an employee to a two week suspension. See O & D at 6. Representing the Company at the Step Three grievance hearing, LaDue responded that the termination had nothing to do with a positive drug test, but rather was appropriate because Rando had proved himself untrustworthy by falsifying a document and altering his sample. See id. Citing NRC regulations, 2 LaDue stated: "[They] require, if someone is untrustworthy and unreliable, he can't have unescorted access to the site." Id. LaDue admitted that a first positive test had never resulted in more than a two-week suspension, combined with referral to the Employee Assistance Program ("EAP"). See id.

The matter was ultimately submitted to arbitration as required by the collective bargaining agreement. See Article XXII, Joint Appendix at 72. The parties stipulated that the issue to be decided by the arbitration panel ("Panel") was: "Did the Company have just cause for the discharge of the Grievant, Patrick Rando? If not, what shall the remedy be?" 3 O & D at 1. On July 23, 1995, the Panel issued its "Opinion and Decision." 4 The Panel found that Rando had been discharged without just cause and ordered that he be reinstated to his former position "contingent on his producing a negative drug test and satisfying any requirements that may be imposed by the Employee Assistance Program after an evaluation." O & D at 14. The award also provided that, pursuant to the Fitness for Duty Program, Rando would be subject to follow-up testing at the Company's discretion for eighteen months, and that the Company could require that Rando provide urine samples under observation. See id. The Panel further ordered that if Rando met the terms for reinstatement, he was to receive back pay for the period from the date of his discharge to the date of his reinstatement, less eighteen months. See id. At this point, almost...

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