From: The Honorable Robert A. Brady
Sent By: tierney.smith@mail.house.gov
Date: 4/12/2016

Dear Colleague:

I invite you to join me in sending a letter to the Nuclear Regulatory Commission (NRC) Chairman Burns urging the Commission to reject a staff request SECY-15-0149 to send the Role of third Party Arbitrators in licensee Access Authorization and Fitness-For-Duty Determinations at Nuclear Power Plants, that would place severe limits on arbitration for nuclear power plant workers to Expedited Rule Making.

In order to work in a nuclear power plant, an employee must have “unescorted access authorization.” NRC regulations require licensed owners of nuclear power plants to implement rules governing unescorted access to those plants.

Unescorted access authorization may be revoked when the employer deems the employee untrustworthy or unreliable.  For example, in Tennessee Valley Authority and IBEW Local 721, (Bankston, 1993), TVA revoked an employee’s access authorization because he had failed to report as “convictions” legal proceedings resulting in small traffic fines and suspended sentences.  The arbitrator noted that small fines were exempt from the obligation to report prior convictions and that a suspended sentence did not constitute a conviction, properly defined.  He also noted that the licensee had deemed the employee not trustworthy and reliable primarily because he had not shown any remorse for his failure to report, even though many of the employee’s legal issues arose from his decision to pay for his wife’s cancer treatment, rather than maintain automobile insurance.

In a nuclear plant where the employees are represented by a local union, if the union believes the employer unfairly revoked an employee’s access, the union will typically file a grievance challenging the employer’s decision and, if the grievance is not resolved, submit that grievance to arbitration under the collective bargaining agreement. The NRC (Nuclear Regulatory Staff) has filed a petition for expedited rulemaking SECY-15-0149, asking the Commission to amend its regulations to limit the availability of arbitration over access.

NRC’s proposed rule would severely limit the issues that an arbitrator could consider and the remedies that an arbitrator could award. Arbitrators would be precluded from deciding whether unescorted access had been properly denied and prohibited from requiring the restoration of an employee’s access authorization.

If adopted, that rule would gut dozens of collective bargaining agreements, making arbitration a useless charade, in which a union could never win and an employee could never obtain the restoration of his or her access.

If you are interested in signing this letter, please contact Tierney Smith in my office at Tierney.Smith@mail.house.gov by COB on Thursday, April 14th.

Sincerely,

Robert A. Brady

Member of Congress

 

The Honorable Stephen G. Burns
Chairman
U.S. Nuclear Regulatory Commission
11555 Rockville Pike
Rockville, MD

Dear Chairman Burns:

The Nuclear Regulatory Commission is currently considering SECY-15-0149 a petition for expedited rulemaking requesting the Commission limit the scope of third party review of employer decisions revoking employee unescorted access.  In light of the recent 7th Circuit court ruling, we urge the Commission to deny this petition for rulemaking as an unnecessary curtailment of due process for nuclear workers.

For over twenty years, nuclear power plant licensees and their employees have effectively engaged in third party review of unescorted access decisions, as NRC rules permit.  Unescorted access is a requirement for most employees at nuclear plants, and that access may be revoked when the employer deems the employee untrustworthy or unreliable.  In 1991, the NRC implemented a minimum level of due process review for these access denials.  A nuclear generating licensee was henceforth required to provide “an opportunity for an objective review of the information upon which the [unescorted access] denial… was based.”  Union represented employees at numerous plants were able to review the denial or revocation of unescorted access as part of their grievance procedure as settled upon in collective bargaining agreements.  These labor contract grievances procedures could ultimately lead to arbitration, where an objective third party would have the power to reinstate a wrongful access denial.

Despite a functioning third party review process, the licensees – as represented by the Nuclear Energy Institute (NEI) – have repeatedly fought to limit independent review.  When the NRC undertook a comprehensive review of its regulations, NEI argued unsuccessfully that the changes prohibited arbitral review.  A unanimous Seventh Circuit Court of Appeals panel held that NRC’s 2009 amendments were not a reversal of its prior allowance of third party review.  Exelon v. Local 15, 676 F.3d 566 (7th Cir. 2012). The Court found:

“[The Licensee’s] reading of [10 C.F.R. §] 73.56 mistakenly assumes that the Commission wrote the 2009 revision to roll back workers’ rights.  The text of the amended subsection (l) reveals the opposite purpose – to enhance rather than erode procedural protections.  Subsection (l) provides baseline rights to employees challenging adverse access determinations: to receive notice, to be heard, and to have an objective decision-maker…. The change in the 2009 from “may be “to “must provide” clarified that the internal management review is a require procedural floor of protection for employees.  We see no basis for inferring that the internal review was also a procedural celling.  Subsection (l) does not bar arbitral review of unescorted access denials.” Id. At 571-72

Also keenly noted is the fact that nothing in the Commission’s record so much as hinted at the Commission’s intent to modify the long-established allowance of objective, third party review.

The decision to revoke or deny unescorted access is tantamount to termination of an employee, and that employee would face dim prospects of finding another nuclear power plant job.  Recognizing the gravity of that determination, the NRC has – for decades – established a floor of employee protection and due process.  And for decades employee grievances have been subject to possible arbitral review where the collective bargaining agreement affords the employee greater procedural protections.  If Judge Posner had his way, no employer would have carte blanche authority to remove security clearances and every employee –not just the unionized- would be able to benefit from third party review of those decisions.  Exelon v. Local 15, 682 F.3d 620 (7th Cir. 2012).  We find this history convincing, and urge the NRC to not advance this SECY-15-0149 expedited petition for rulemaking, which seeks to limit the existing rights of workers.  Creating a ceiling where there has long existed a due process is not the proper course of action.

Sincerely,