granted unescorted access to protected areas within the nuclear power plant must be "trustworthy and reliable," and "not constitute an unreasonable risk to the health and safety of the public." 10 C.F.R. § 73.56(b)(1).
The NRC regulations are buttressed by Niagara Mohawk company policies which conform to federal regulations such as its Nuclear Division Directive, which implements its own "Alcohol/Drug Testing Fitness For Duty Program." Under the program, any employee who, as a condition of his job, has unescorted access to the nuclear site is subject to alcohol/drug testing.
In light of the foregoing, the Court finds that federal statutes, regulations, and case law support a finding of a well-defined and dominant public policy against employment of individuals who deliberately violate nuclear safety rules and cannot meet NRC standards of trustworthiness and reliability.
Given the strong public policy issues involved, the Court will review the findings of the arbitration panel de novo.
C. Grievant's Conduct
The Second Circuit has yet to address the public policy issues involved in an arbitration panel's reinstatement of an employee who violated NRC safety regulations. However, the Court finds the decision of the Eight Circuit in Iowa Electric instructive. As stated, in Iowa Electric, the court concluded that the employer had "just cause" to terminate an employee where the employee knew he was "short circuiting an important safety system required by the federal government." Id. at 1426.
Similarly, the grievant in this case planned to defeat the NRC's Fitness For Duty drug testing procedures to conceal his cocaine use and continue working at the facility. Moreover, as a Chemistry Technician in the nuclear facility, grievant was responsible for certifying that the power plant chemistry was maintained within the NRC safety regulations. Award at 4. Thus, contrary to plaintiff's allegations, grievant's position is directly related to the safety of the public and is indistinguishable from the machinist's position in Iowa Electric.
In the present case, the arbitration panel's majority decision rested in part on their perception that the grievant here was not afforded due process. The majority found that the grievant did not have "full and unmistakable notice of the disciplinary penalty" for his actions, which was "alien to the concept of due process." Award at 9. However, the regulations and policies regarding drug testing are well documented, and the grievant was fully aware of them by virtue of his employment.
Under Niagara Mohawk's program, all employees subject to drug testing are required to complete and sign a prescribed form, which states in part that "any employee who refuses to complete and sign the required forms or to provide a specimen for testing will immediately become subject to the disciplinary procedure of Article XVI of the parties' labor agreement."
The panel decision also noted that Mr. LaDue, a Niagara Mohawk representative, stated that initial and yearly employee training emphasizes that falsification of documents "will result in disciplinary action and could result in criminal prosecution." Award at 6. Yet, the majority of the panel concluded that there was no evidence that the training provided to the employees made them aware that "adulteration" of a urine sample would be equivalent to a "falsification" of a work document, stating that "the link is by no means self evident."
Id. at 9. Therefore, the majority of the Panel found that the grievant's behavior in providing a false urine sample constituted "insubordination" rather than "falsification." Id.
The insubordination versus falsification distinction set forth by the Panel's majority, in terms of notice to the grievant of the possible consequences of his actions, is unconvincing.
Clearly the certification by the employee on the consent form is operative each and every time a drug sample is produced, otherwise it would have no meaning.
A reasonable person in the grievant's employment position would be on notice that violating the federally mandated drug policy set forth by Niagara Mohawk, adulterating a urine sample, falsifying a certification that he would not adulterate his urine sample, and falsely denying illegal drug use could result in termination.
The Court finds little relevance in the Panel's classification of plaintiff's wrongful conduct as "insubordination" rather "falsification of work documents," particularly in light of the public policy interests of trustworthiness and reliability in nuclear facility employees.
Grievant's conduct supports a finding that he is neither trustworthy or reliable as required by the NRC regulatory scheme implemented by Niagara Mohawk. First, grievant used cocaine, conduct which the NRC's Fitness For Duty Regulations are specifically designed to prevent. Grievant then engaged in a scheme to circumvent the regulations by adulterating his urine sample,
and falsely certified that he would not alter the specimen provided. When confronted with the test results, grievant eventually admitted that he had adulterated his urine sample as an experiment for future use, but continued to deny ever using illegal drugs.
These actions by the grievant are substantial evidence that grievant can no longer be considered trustworthy or reliable, at least to the degree required to hold the position of chemistry technician at a nuclear power plant. Such behavior is a clear violation of the NRC Fitness For Duty regulations, as well as Niagara Mohawk's company policies. The Court therefore finds that the reinstatement of grievant would contravene public policy requiring strict adherence to nuclear safety rules. Defendant's cross-motion for summary judgment must be granted and the Award vacated.
D. Attorneys' Fees
Local 97 seeks an award of attorneys' fees on the basis that Niagara Mohawk's refusal to comply with the arbitration award was without justification. As stated, defendant's cross-motion for summary judgment is granted and the Award is vacated. Therefore, plaintiff was unsuccessful in this action and is not entitled to attorneys' fees.
Niagara Mohawk has also moved for an award of attorneys' fees. Under the prevailing American rule, in a federal action, attorney's fees cannot be recovered by the successful party in the absence of statutory authority for the award. Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). Pursuant to its inherent equitable powers, however, a court may award attorney's fees when the opposing counsel acts "in bad faith, vexatiously, wantonly, or for oppressive reasons. International Chemical Workers v. BASF Wyandotte Corp., 774 F.2d 43, 47 (2d Cir. 1985) (quoting F.D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129, 40 L. Ed. 2d 703, 94 S. Ct. 2157 (1974)). As applied in suits for the confirmation and enforcement of arbitration awards, "the guiding principle has been stated as follows: 'when a challenger refuses to abide by an arbitrator's decision without justification, attorney's fees and costs may be properly be awarded.'" International Chemical Workers, 774 F.2d at 47 (quoting Bell Production Engineers Ass'n, 688 F.2d at 999. The Court finds that an award of attorneys' fees is not warranted in this case.
After carefully considering the record, the papers submitted by counsel, counsel's arguments, and the relevant law, it is hereby
ORDERED that plaintiff's motion for summary judgment is DENIED ; that defendant's cross-motion for summary judgment is GRANTED ; and the Arbitration Award is VACATED. It is further
ORDERED that plaintiff's motion for attorney's fees is DENIED ; and defendant's motion for attorney's fees is also DENIED. Finally, it is further
ORDERED that the complaint is dismissed in its entirety.
IT IS SO ORDERED.
Dated: December 27, 1996
Syracuse, New York
Frederic J. Scullin, Jr.
United States District Judge