Public Service Elec. & Gas Co. v. Local 94 Intern.

Citation140 F.Supp.2d 384
Decision Date06 April 2001
Docket NumberNo. CIV. A. 99-3634 (GEB).,CIV. A. 99-3634 (GEB).
PartiesPUBLIC SERVICE ELECTRIC & GAS COMPANY, Plaintiff, v. LOCAL 94 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, Defendant.
CourtU.S. District Court — District of New Jersey

Patrick Westerkamp, Newark, NJ, for Plaintiff.

Brian Curtis, Paul Montalbano, Schneider, Goldberger, Cohen, Finn, Solomon, Leder & Montalbano, P.C., Kenilworth, NJ, for Defendant.

MEMORANDUM OPINION

HUGHES, United States Magistrate Judge.

This matter comes before the Court on motion by Plaintiff Public Service Electric & Gas Company ("PSE & G") for summary judgment requesting the Court to declare that site access issues are not subject to arbitration under the grievance/arbitration provision of the Collective Bargaining Agreement ("CBA") between PSE & G and Local 94, International Brotherhood of Electrical Workers ("Local 94"). Defendant Local 94 opposes the motion and has submitted a cross-motion for summary judgment requesting the Court to order PSE & G to submit to arbitration the issue of the revocation of site access for Vincent Forte and all other Local 94 represented employees whose employment may be adversely affected. The parties have consented to the exercise of jurisdiction by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and FED. R. CIV. P. 73, for all purposes. Oral Argument was conducted on December 18, 2000 and the matter was taken under advisement. For the following reasons, Plaintiff's motion for summary judgment is granted and Defendant's cross-motion for summary judgment is denied in part, and denied without prejudice in part.

I. BACKGROUND & PROCEDURAL HISTORY

This action arises from a dispute between Plaintiff PSE & G and Defendant Local 94 concerning the arbitrability of a site access issue in the context of a grievance challenging the discharge of Union Member Vincent Forte. Plaintiff PSE & G is a public utility incorporated under the laws of the State of New Jersey to provide safe and dependable electric and gas energy within its service territory. Statement of Undisputed Material Facts ¶ 1. Defendant Local 94 is an unincorporated labor organization commonly known as a union as the term is defined in Section 2(d) of the Labor-Management Relations Act. Id. ¶ 2. Since 1943, Local 94 and its predecessors have bargained collectively with PSE & G on behalf of employees engaged in the generation and distribution of electricity. Id. ¶ 9. Local 94 is recognized by PSE & G as the exclusive representative for bargaining unit members including those assigned to the Artificial Island nuclear stations. Pl.'s Compl. at ¶ 10. Vincent Forte is a Local 94 bargaining unit member.

Among the facilities operated by PSE & G are Salem I & II, and Hope Creek nuclear generating stations on Artificial Island in Salem County, New Jersey. Statement of Undisputed Material Facts ¶ 4. There is a fence which surrounds these stations and the land and the buildings inside the fence are know as the "unescorted access" or "protected" areas. Id. ¶ 6. Out of about 2000 employees who work on Artificial Island, Local 94 represents approximately 800. Id. ¶¶ 7 and 8. Approximately 99% of the union represented employees work in the unescorted access area. Id. ¶ 9. Employees of independent contractors also work at the nuclear stations and unions, other than Local 94, represent some of these workers. Id. ¶¶ 12 and 13.

The operation of the Island's generating stations is licensed and regulated by the Nuclear Regulatory Commission ("NRC") pursuant to the Atomic Energy Act of 1954, as amended, 42 U.S.C. §§ 2011-2394. As an NRC licensee, PSE & G must comply with applicable rules promulgated by the NRC, which are contained in 10 C.F.R. Part 0-199. Id. ¶ 17. One of these rules requires a licensee to design and implement a procedure "to limit unescorted access to vital areas during nonemergency conditions to individuals who require access in order to perform their duties." Id. ¶ 18 (quoting 10 C.F.R. § 73.55(7)(i)). Licensees including PSE & G are responsible for granting, denying, or revoking unescorted access to their own employees, contractors, and vendors. Id. ¶ 22 (referring to 10 C.F.R. § 73.56(a)(4)).

PSE & G and Local 94 entered into their current Collective Bargaining Agreement effective May 1, 1996. Id. ¶ 25. Article IX of the CBA provides for a grievance/arbitration procedure agreed upon by PSE & G and Local 94. Id. ¶ 33. This grievance/arbitration procedure was invoked by Local 94 after the termination of Mr. Forte, who until March 9, 1998, worked for PSE & G at the Hope Creek Nuclear Station. Id. ¶ 36. Mr. Forte had held the position of Nuclear Technician/Mechanical Welder and had unescorted access under the Personal Access Program ("PAP") established by PSE & G pursuant to 10 C.F.R. § 73.56. Id. ¶ 39. In August 1997, Forte's site access privilege was suspended following his third arrest for driving under the influence ("DUT"). Id. ¶ 40. PSE & G found temporary work for Forte that did not require site access. Id. ¶ 41. In November 1997, Forte was convicted of the DUI charge and forfeited his driver's license to the State of New Jersey. Id. ¶ 42. In January of 1998, PSE & G indefinitely continued the suspension of Forte's site access privilege. Id. ¶ 43. PSE & G discharged Forte on March 9, 1998. Id. ¶ 44.

PSE & G and Local 94 were unable to settle the grievance as to whether Forte had been discharged for just cause and the matter was submitted for arbitration with the American Arbitration Association (hereinafter "AAA"). Id. ¶ 71. The AAA appointed as arbitrator Shyam Das, Esquire. Id. ¶ 72. Arbitrator Das opened the hearings on April 7, 1999. Id. ¶ 76. The parties then stipulated that the issues for resolution were "[w]hether the discharge of Vinni Forte was for just cause" and "[i]f not, what shall the remedy be?" Id. ¶ 78. Immediately thereafter, PSE & G submitted a motion in limine to the arbitrator requesting the arbitrator to "bar Local 94 from presenting evidence touching on the January 1998 decision to revoke the grievant's unrestricted access to the Company's nuclear facilities." Pl.'s Compl. ¶ 25.

Plaintiff PSE & G filed the present action in Federal District Court, District of New Jersey, requesting a declaratory judgment that the site access issue is not subject to the arbitration provisions of the CBA, or any other agreement between PSE & G and Local 94, and seeking an Order staying Defendant Local 94 from proceeding with the arbitration on the site access question. See Pl.'s Compl. Defendant Local 94 filed an Answer and cross-motion requesting a declaratory judgment that site access is subject to arbitration and for an Order from the Court requiring PSE & G to submit to arbitration the issue of revocation of site access for Vincent Forte. Def.'s Answer and Countercl. The arbitration hearing has been stayed pending resolution of the arbitrability issue by the United States District Court for the District of New Jersey. Statement of Undisputed Material Facts ¶ 80.1

The first issue to be addressed by the Court is whether there is anything in the NRC regulations which prevent site access issues from being arbitrated pursuant to a grievance/arbitration provision in a collective bargaining agreement. If not, then the next issue to be addressed is whether the arbitration provision in the operative collective bargaining agreement covers revocation or denial of site access authorization.

II. STANDARD FOR SUMMARY JUDGMENT

A court may enter summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its initial burden, the non-moving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the differences at trial. Id. at 324, 106 S.Ct. 2548. In deciding whether there is a genuine issue of material fact, the Court must view the evidence in the light most favorable to the non-moving party, and the non-moving party receives the benefit of all reasonable inferences that may be drawn from the underlying facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Baker v. Monroe Township, 50 F.3d 1186, 1190 (3d Cir.1995).

III. DISCUSSION
A. DO THE NRC REGULATIONS PREVENT SITE ACCESS ISSUES FROM BEING ARBITRATED?
1. NRC REGULATIONS

By enacting the Atomic Energy Act of 1954, 42 U.S.C. § 2011 and the Energy Reorganization Act of 1974, 42 U.S.C. § 5841, which established the NRC and transferred to it the licensing jurisdiction over private nuclear power plants which were formerly exercised by the Atomic Energy Commission, Congress intended that the "federal government maintain complete control of the safety and `nuclear' aspects of energy generation," by regulating safety aspects involved in the construction and operation of nuclear power plants. Pacific Gas and Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 212, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). The NRC's "prime area of concern in the licensing context ... is national security, public health, and safety." Id. at 207, 103 S.Ct. 1713 (citation omitted). The NRC is authorized to prescribe regulations, including standards and restrictions governing the design, location and operation of nuclear facilities in order to protect health and to minimize danger to life and property. Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231, 235-36 (3d Cir.1980) (citing 42 U.S.C. § 2201(i)(3) (1976 & Supp. I)).

Pursuant to NRC regulations, nuclear power plant licensees must have an approved Physical Security...

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