Petition for Writ of Certiorari — Bechtel Construction, Inc. v. Laborers District Council
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7 | eee Court, U.S,
88-1047 «
ie DEC 22 1988
| FILED
{
fi
No. } YOSEPH F. SPANIOL, JR.
BLERK
4
IN THE i. nS See
Supreme Court of the United States
October Term, 1988
BECHTEL CONSTRUCTION, INC.,
Petitioner,
Vv.
LABORERS DISTRICT COUNCIL
and
LABORERS INTERNATIONAL UNION
OF NorRTH AMERICA, LOCAL 135,
Responderts.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
LAWRENCE S. COBURN*
MarK J. FOLEY
PEPPER, HAMILTON & SCHEETZ
3000 Two Logan Square
Eighteenth & Arch Streets
Philadelphia, PA 19103-2799
Attorneys for Petitioner
Bechtel Construction, Inc.
*Counsel of Record
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QUESTIONS PRESENTED FOR REVIEW
A. Does the Nuclear Regulatory Commission’s policy that
off-site drug users be denied work access to the construction site
of a nuclear power facility pending mandatory rehabilitation
invalidate an arbitrator’s award directing an employer to grant
back pay and unlimited reemployment rights to employees who
the arbitrator found had traces of manjuana in their systems at
the construction site of a nuclear power plant?
B. Where a nuclear power plant owner, in accordance with
Nuclear Regulatory Commission policy and its contractual
rights, directs a contractor to deny certain of its employees work
access to a nuclear power plant construction site because of
possession and/or use of drugs, does an arbitrator exceed his
authority by requiring the contractor to provide the excluded
employees with back pay and unlimited reemployment nights at
the construction site?
LIST OF PARTIES
The caption of the case in this Court contains the names of
all the parties.
RULE 28.1 LIST
The listing of all parent companies, subsidiaries and
affiliates of Bechtel Construction, Inc. required by Rule 28.1 is
too lengthy for inclusion here. Accordingly, the Rule 28.1
listing is contained in the Appendix to this Petition beginning at
E-lI.
3
TABLE OF CONTENTS
QUESTIONS PRESENTED .sccnscccsssssnsssesasssanscassptescessenses
LIST OF PARTI ciciiscisccicecsocacienteeinatannis
BRULEE 26.0 DOE socsivcccsccscssinevinsesccsnssaeaeanenans
TABLE OF COIN FIR IN Bip cccisestesssarcicieciensancemmeniecsmeioens
TABLE OF ACTIN Fame sansiaictniceatsntaiseigeeemans
OPINIONS BELOW cccssecsiccuiistiiemanaamene
FURR, TIS wisencccnesinsncssccensasenslemesenic tian earenase
STATUTES AND REGULATIONS INVOLVED.........
STATEMENT OF ‘THERM Ab cencchcsc enn
REASONS FOR GRANTING THE WRIT....................
I. The Enforcement Of The Arbitrator’s Award,
Which Undermines The NRC’s Efforts To En-
sure The Safe Construction And Operation Of
Nuclear Power Plants, Raises Important Ques-
tions Of Federal Labor Law Which Should Be
Settled By ‘This GOUtt csccisiiscicacasieetetasens
II. This Court Should Resolve The Conflict In Pnn-
ciple Among The Circuits Concerning Whether
An Arbitration Award Fails To Draw Its Es-
sence From The Agreement When The Absence
Of A Causal Connection Between The Employ-
er’s Actions And The Gnevants’ Injuries Ren-
ders The Award POMBIIU ccscccictntecteeeienss
CONCLUSION 0 oacassscsosncasxisnsenambamnadendaeaaaasies
APPENDIX
Judgment and Order of the United States Court of
Appeals for the Third Circuit in Bechtel Construction,
Inc. v. Laborers District Council, et al., No. 88-1433
(3d Cir. Now. 2, TUB) nxncctacomicsaeccmninuaeneenneeees
Memorandum and Order of the United States District
Court for the Eastern District of Pennsylvania in
Bechtel Construction, Inc. v. Laborers District Coun-
cil, et al., No. 87-6536 (E.D. Pa. April 25, 1988) .......
Decision and Award of Arbitrator Charles L. Mullin,
Jr., In the Matter of Arbitration Between Bechtel
Construction, Inc. and Laborers District Council, Lo-
cal 135, AAA Case No. 14-300-0595-86A .................4.
11
13
B-|
ll
Pertinent Text of Section 301 of the Labor-Management
Relations Act, 29 U.S.C. §185 (1982) ooo...
Pertinent Sections of the Nuclear Regulatory Commis-
sion Regulations Governing Domestic Licensing of
Production and Utilization Facilities, 42 U.S.C.
§§2131-2141 (1982), 10 C.F.R. Part 50 & App. B
(BES CRUSOE ESE se a nen ea
Pertinent text of Nuclear Regulatory Commission, Po-
licy Statement on Fitness for Duty of Nuclear Power
Plant Personnel, 51 Fed. Reg. 27,921 (August 4,
sla cad adeeb ita teeienonleged aed nasestkoiohnann
Et aN OR eRe ne a Eee ea
Page
D-3
IV
TABLE OF AUTHORITIES
CASES:
Alverado v. Washington Public Power Supply System,
111 Wash. 2d 424, 759 P.2d 427 (1987) .................
Bacardi Corp. v. Congresso de Uniones Industriales de
Puerto Rico, 692 F.2d 210 (Ist Cir. 1982) ..............
Baltimore Regional Joint Bd. v. Webster Clothes, Inc.,
Oe ae Ser Cn Ge. BTS Vatetinticdectincicicsinericttininne
Bechtel Constructors Corp. v. Detroit Carpenters Dist.
Council, 610 F. Supp. 1550 (E.D. Mich. 1985) ......
Carolina Power & Light Co. (Shearon Harris Nuclear
Plant), 23 N.R.C. 299, aff'd, 24 N.R.C. 532
Pe icici iescatasaiseidiceseinicecbinnieessuniansiidenaintialamanantabeasatine
Delta Air Lines, Inc. v. Air Line Pilots Ass’n, No. 87-
Be FR ae, Ee Gy BD acchncccinrnenccecsenesersenens
Florida Power & Light Co. v. Fleitas, 488 So. 2d 148
CF: FT SED ctenecnannnneceeincensitssieninsaniiiinvinies
Howard P. Foley Co. v. International Bhd of Elec.
Workers, 789 F.2d 1421 (9th Cir. 1986), vacated,
Pullman Power Products Corp. v. Local 403, United
Ass’n of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry, No. 88-6572 (9th Cir.
Seoe. RE ,_: RUINS Ria reer en etme aCe
International Ass’n of Heat & Frost Insulators, Local
Union 34 v. General Pipe Covering, Inc., 792 F.2d
Se eC esateca eens tentspactectinnshan cenieneadictcionain
Iowa Elec. Light & Power Co. v. Local Union 204,
IBEW, 834 F.2d 1424 ( 8th Cir. 1987) oe
Pullman Power Products Corp. v. Local 403, United
Ass’n of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry, No. 86-6572 (9th Cir.
es Mas EE cacailasindadaionsascaaiahaiecsnsinionectainmieeamaienie
Rushton v. Nebraska Public Power Dist., 653 F.
Supp. 1510 (D. Neb. 1987), aff'd, 844 F.2d 562
PE I HIE clinic candid cucvehcuahabensgiumnauauieniaiidibakesine
Stead Motors of Walnut Creek v. Automotive
Machinists Lodge No. 1173, Int’l Ass’n of
Machinists and Aerospace Workers, 857 F.2d 682
CR A EIEN cisrininnsesilcanlectesspminenneniasicacadsimacuab
Page
12
United Paperworkers Int’l Union v. Misco, Inc., 56
dW. SOU8 CUS, Drees, 1, FGF) vscnsccecansncsereinnace 9,12
W.R. Grace & Co. v. Local Union 759, Int’! Union of
United Rubber, Cork, Linoleum & Plastic Workers,
GOR GES. Fa 7 © RO Ue Vervcccpeennicaicliicd ee 9
STATUTES
om Ua SETI) CIID acne s
Fe A, BEOe CPR) kvieiciimmiosoiatuee a p
EP UB. GEGF € POD cticcinticcineitieunaetale see 2,6
42 UDA. SEZUFUH RUG CAG Y evsitccnceietdicccata 2,4
ADMINISTRATIVE MATERIALS
Nuclear Regulatory Commision Domestic Licensing
of Production and Utilization Facilities, 10 C.F.R.
PONE Fa U BOE YE eciacioceectcintisacieseauel ak ee passim
50 CP TR. Pe Fh A By We eticininsccteenae ae 10
004 .Fk, Fee iicinkscsnnaeecntmeiea ee 4
5G CPR. SISO ROD nies ence: =
i RM A. 7 REE PNM LE MEO TNT IT Noy oN 4
Oe iF Bie BR ics dieicncittincledasasdaoaac anna Ame 5
51 Fed. Reg. 27,921 (Aug. 4, 1986) ......ccccceeceeeeeeees 2,4, 5
MISCELLANEOUS
U.S. Council for Energy Awareness, Electricity from
anetnmr Trent ( CFG Y scseiatnitecdsintkcnate enc en 7
No.
IN THE
Suprene Court of the United States
October Term, 1988
BECHTEL CONSTRUCTION, INC.,
Petitioner,
.
LABORERS DISTRICT COUNCIL
and
LABORERS INTERNATIONAL UNION
Or NorTH AMERICA, LOCAL 135,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
Petitioner, Bechtel Construction, Inc., respectfully prays
that a wnit of certioran issue to review the Judgment Order of
the United States Court of Appeals for the Third Circuit
entered in the above-titled proceeding on November 2, 1988.
OPINIONS BELOW
The Judgment Order of the United States Court of Appeals
for the Third Circuit issued without opinion on November 2,
1988, is unreported and is reprinted in the Appendix hereto
beginning at A-1.
2
The Memorandum and Order of the United States District
Court for the Eastern District of Pennsylvania (Gawthrop,
D.J.) is unreported and is reprinted in the Appendix hereto
beginning at B-1.
The Opinion and Award of Arbitrator Charles L. Mullin,
Jr., is unreported and is reprinted in the Appendix hereto
beginning at C-1.
JURISDICTION
Petitioner invoked the jurisdiction of the district court
pursuant to Section 301 of the Labor-Management Relations
Act of 1947, 29 U.S.C. § 185.. On April 25, 1988, the district
court entered judgment in favor of Respondents. The court of
appeals had jurisdiction over Petitioner’s appeal of the district
court judgment pursuant to 28 U.S.C. §1291. On November 2,
1988, the Third Circuit entered an order affirming without
opinion the judgment of the district court. No petition for
rehearing was filed. This Court’s jurisdiction to review the
decision of the Third Circuit is invoked under 28 U.S.C.
§1254(1).
STATUTES AND REGULATIONS INVOLVED
Involved in this Petition are the Labor-Management Rela-
tions Act, 29 U.S.C. §185 and the Nuclear Regulatory Commis-
sion’s regulations governing the construction and operation of
nuclear power facilities, 42 U.S.C. § 2131-2141, 10 C.F.R. Part
50, including its Policy Statement on Fitness for Duty of
Nuclear Power Plant Personnel, 51 Fed. Reg. 27,921 ( August 4,
1986). Relevant portions of the statutes, regulations, and
policy statement are reproduced in the Appendix hereto begin-
ning at D-1.
STATEMENT OF THE CASE
This case involves a direct and fundamental conflict be-
tween the finality of arbitration awards and the primacy of
federal policies governing the safe construction and ultimate
operation of nuclear power plants. A Nuclear Regulatory
Commission policy requires a nuclear power plant owner to
exclude from the site, pending mandatory rehabilitation, indi-
viduals who use drugs off-site. Here, the arbitrator found that
three of Petitioner’s employees had traces of marijuana in their
systems, but held that Petitioner did not have cause to restrict
their access to the site pending mandatory rehabilitation. The
arbitrator so held even though he found that Petitioner’s
exclusion of the employees from the site was mandated by the
owner of the site.
The facts of this case are not in dispute. A full discussion
of the facts is set forth in the arbitrator’s opinion which is
included in the Appendix to this Petition beginning at C-1.
Petitioner, Bechtel Construction, Inc. (“Bechtel” or “the
Company” or “the Petitioner”), has served, pursuant to a
contract with Philadelphia Electric Company (““PECO”’), as the
general contractor for construction of the Limerick Unit II
Generating Station owned by PECO and located in Limerick
Township, Pennsylvania. The grievants, members of Union
Local 135 of the Laborers International Union of North
America (“the Union” or “the Respondents”), were employed
by the Petitioner as laborers at the Limerick II site.
Bechtel and the Union were parties to a Collective Bargai-
ning Agreement (‘‘The Project Agreement”) which governed
labor matters in connection with the construction of the Lime-
rick Unit II facility. The Project Agreement provides for the
resolution of disputes arising under the Project Agreement
through grievance and “final and binding” arbitration. Article
IV of the Project Agreement reserves to the Company the right
to discipline or discharge employees for just cause.
4
The nuclear power industry is subject to an extensive and
comprehensive regulatory scheme promulgated by the Nuclear
Regulatory Commission (“NRC”) designed to promote the
safe and efficient construction and ultimate operation of nuclear
powered production and utilization facilities. See 42 U:S.C.
§§2131-2141, 10 C.F.R. Part 50. Under this regulatory scheme,
a potential operator that has undertaken to construct a nuclear
power production and utilization facility must obtain a con-
struction permit and comply with detailed regulations in order
to qualify for an operating license. See 10 C. F.R. §50.10. As
part of its compliance, a potential operator is obligated to
formulate and adopt a “Quality Assurance Program” which
meets the criteria set forth by the NRC to ensure the ultimate
safe operation of the facility. See 10 C.F.R. §50.34 & App. B.
Failure to comply with the strictures of the Quality Assurance
Program may be grounds for revocation of the potential
operator’s construction permit or, upon completion of the
facility, denial of an operator’s license. 10 C.F.R. §50.55-57.
The NRC, recognizing the potential impact of illicit drug
use on the safe construction and operation of nuclear power
stations, has issued a formal Policy Statement on “Fitness for
Duty of Nuclear Power Plant Personnel.” 51 Fed. Reg. 27,921
(Aug. 4, 1986) (“NRC Policy Statement”). This Policy
Statement, which is not a formal regulation, recognizes the
nuclear industry’s own initiatives to combat drug use in nuclear
power facilities, and sets forth what is expected from a potential
operator’s fitness for duty program. In this connection, the
NRC has determined that an effective fitness for duty policy is
an integral part of a potential operators Quality Assurance
Program during the construction phase of the facility. See
Carolina Power & Light Co. (Shearon Harris Nuclear Plant),
23 N.R.C. 299, 304, aff'd, 24 N.R.C. 532 (1986).
The NRC Policy Statement provides that fitness for duty
programs covering ihe restriction of work access to those
involved with illicit drugs, either on- or off-site, are a minimum
requirement. Subparagraph (1) requires that use or possession
of drugs
“within the protected area” requires discharge of an
q g
employee. Subparagraph (2) requires that “any other” use or
possession of drugs, necessarily including off-site use or posses-
sion, requires revocation of access to the site and mandatory
rehabilitation.
e It is Commission policy that the sale, use, or
possession of alcoholic beverages or illegal drugs within
protected areas at nuclear plant sites is unacceptable.
e It is Commission policy that persons within pro-
tected areas at nuclear power plant sites shall not be under
the
influence of any substance, legal or illegal, which
adversely affects their ability to perform their duties in any
way
related to safety.
e An acceptable fitness for duty program should at a
minimum include the following essential elements:
(1) A provision that the sale, use or possession
of illegal drugs within the protected area will result in
immediate revocation of access to vital areas and
discharge from nuclear power plant activities. The use
of alcohol or abuse of legal drugs within the protected
area will result in immediate revocation of access to
vital areas and possible discharge from nuclear power
plant activities.
(2) A provision that any other sale, possession, or
use of illegal drugs will result in immediate revocation
of access to vital areas, mandatory rehabilitation pr.ar
to reinstatement of access, and possible discharge from
nuclear power plant activities.
(3) Effective monitoring and testing procedures to
provide reasonable assurance that nuclear power plant
personnel with access to vital areas are fit for duty.
51 Fed. Reg. at 27,921 (emphasis added ).'
‘Protected areas” refers to any area encompassed by physical barriers
and to which access is controlled. See 10 C.F.R. § 73.2(g).
At the time of the incident giving mse to the underlying
arbitration, pursuant to its Quality Assurance Program and in
accord with NRC policy, PECO had in place a policy regarding
on- or off-site drug use by PECO or Bechtel employees who had
access to the Limerick I and II sites. The policy recognized that
PECO, rather than Bechtel, retained contro: over access deci-
sions, and that such decisions could be based on off-duty
conduct where that conduct posed a risk of adversely affecting
on-site performance.
The dispute began when Bechtel, at PECO’s direction,
denied work access to the nuclear power plant construction site,
pending mandatory rehabilitation, to three of its employees
who had tested positive for marijuana use in connection with a
drug incident at the site. The Union challenged Bechtel’s action
by submitting the dispute to an arbitrator. After a hearing, the
arbitrator found as a fact that the three employees involved had
tested positive for manjuana, and that the Company had
denied these employees access to the site at PECO’s direction.
In addition, he found that manjuana users pose a threat to their
own safety, other site employees, and the general public
through the hazard of work not properly performed. Never-
theless, the arbitrator concluded that under the parties’ Project
Agreement the urinalysis test results that were positive for
marijuana did not provide just cause to exclude the employees
from the site pending mandatory rehabilitation.
Following issuance of the arbitrator’s opinion, the Petition-
er filed an action in the United States District Court for the
Eastern District of Pennsylvania under Section 301 of the
Labor-Management Relations Act of 1947 (“‘Section 301’’), 29
U.S.C. §185 to vacate the award on the grounds that it was
contrary to public policy and failed to draw its essence from the
Agreement. Respondents filed an answer and counterclaim
under Section 301 seeking enforcement of the award. Follow-
ing the submission of cross-motions for summary judgment by
the parties, the district court issued a memorandum and order
granting the Union’s motion for summary judgment and enter-
ing judgment in favor of the Union.
Petitioner filed a timely notice of appeal from the district
court’s order. On November 2, 1988, after full briefing by both
sides and oral argument, the United States Court of Appeals for
the Third Circuit affirmed the district court’s order without
opinion. Petitioner did not seek rehearing.
REASONS FOR GRANTING THE WRIT
{. The Enforcement Of The Arbitrator’s Award, Which
Undermines The NRC’s Efforts To Ensure The Safe
Construction And Operation Of Nuclear Power Plants,
Raises Important Questions Of Federal Labor Law
Which Should Be Settled By This Court.
This case raises substantial and important questions under
federal labor law concerning whether a federal court may
enforce an arbitrator’s award which directly conflicts with the
expressed policy of the NRC governing the safe construction
and operation of nuclear power facilities in this country.
Resolution of these questions is of importance to all parties
involved in the nuclear power industry as well as to the general
pubiic. As of January 1988 there were 109 nuclear power
generating units in operation throughout the country and 14
under construction.? Thirteen of these units are located within
the jurisdiction of the Third Circuit.3 Petitioner itself is present-
ly involved in the construction or maintenance of many of these
units in several states. The questions raised by the Petition have
not yet been, but should be, resolved by this Court.
2U.S. Council for Energy-Awareness, Electricity from Nuclear Energy 21
(1988).
3 Td. at 8.
The first question involves the public policy implications of
the award. The nuclear power industry is subject to pervasive
safety regulations designed to ensure the safe and efficient
construction and ultimate operation of nuclear power gener-
ating facilities. See Jowa Elec. Light & Power Co. v. Local
Union 204, IBEW, 834 F.2d 1424 (8th Cir. 1987); Rushton v.
Nebraska Public Power Dist., 653 F. Supp. 1510 (D. Neb.
1987), aff'd, 844 F.2d 562 (8th Cir. 1988); Alverado v.
Washington Public Power Supply System, 111 Wash. 2d 424,
759 P.2d 427 (1987). Indeed, NRC regulations and policies,
and judicial decisions, evidence a well-defined and dominant
public policy in favor of strict adherence to all NRC safety
regulations designed to protect the health and safety of the
general public. See Jowa Elec. Light & Power Co., 834 F.2d at
1427.
In the case at bar, the arbitrator found as a fact that three
of the grievants had tested positive for manjuana, and that
traces of manjuana in an employee’s umne would suggest
generally that that employee was a marijuana user. Never-
theless, the arbitrator found that Bechtel, which acted at
PECO’s direction, did not have just cause to exclude the
grievants from the site pending mandatory rehabilitation. The
arbitrator found that Bechtel lacked just cause because the
Project Agreement did not specifically address the issue of
employees having drug traces in their urine. Accordingly, the
arbitrator ordered the Company to grant the grievants back pay
and unlimited reemployment mghts at the site.
The NRC’s regulations, its 1986 Policy Statement, and
PECO’s substance abuse policy, which was part of PECO’s
NRC-mandated Quality Assurance Program and to which
Bechtel and its employees were subject, together evince a well-
defined and dominant public policy that construction site
employees engaged in off-site drug use be denied work access to
the site pending mandatory rehabilitation. That is precisely the
course of action which Bechtel took, at PECO’s direction, with
respect to the gnevants who had tested positive for marijuana
use in this case. Under these circumstances, enforcement of the
award invalidating Bechtel’s and PECO’s actions, and granting
the employees back pay and unlimited reemployment nghts,
violates the well-defined and dominant public policy of the
NRC regarding denial of work access to employees engaged in
on- or off-site drug use.
The Third Circuit’s decision enforcing the award under
these circumstances has the effect of elevating an arbitration
award to a position of superiority over the expressed public
policy of the NRC and this nation concerning the safe construc-
tion and ultimate operation of nuclear power facilities. It
jeopardizes the integrity of NRC policies and the public safety
which those policies are designed to protect. The impact of the
Third Circuit’s decision has ramifications throughout the nu-
clear power industry.
Where an award clearly conflicts with a well-defined and
dominant public policy, a federal court is obliged to refrain
from enforcing it. United Paperworkers Int’l. Union v. Misco,
Inc., 56 U.S.L.W. 4011 (U.S. Dec. 1, 1987); W.R. Grace & Co.
v. Local Union 759, Int’l Union of United Rubber, Cork,
Linoleum & Plastic Workers, 461 U.S. 757 (1983); Delta Air
Lines, Inc. v. Air Line Pilots Ass’n, No. 87-8839 (11th Cir. Dec.
8, 1988); Iowa Elec. Light & Power Co., supra; Stead Motors of
Walnut Creek v. Automotive Machinists Lodge No. 1173, Int'l
Ass’n of Machinists and Aerospace Workers, 857 F.2d 682 (9th
Cir. 1988). While there is no question that federal labor policy
favors the finality of arbitration awards, they should not be
permitted to override the expressed public policy of the NRC.
There is nothing in this Court’s decision in Misco, Inc. that
would warrant a contrary conclusion. Cf. Misco, Inc., supra
(arbitration awards that clearly conflict with well-defined and
dominant public policy should not be enforced ).
Closely related to this issue is the question of the primacy
of a nuclear power plant owner’s control over site access. The
regulations governing the construction and operation of nuclear
power facilities, and administrative interpretations of those
a
10
regulations, require a potential licensee to adopt a Quality
Assurance Program which must include a fitness for duty
program governing access to the facility. See Carolina Power &
Light Co. (Shearon Harris Nuclear Plant), 23 N.R.C. 299, 304,
aff'd, 24 N.R.C. 532 (1986). Under the NRC regulations, the
site owner retains ultimate responsibility for ensuring adherence
to the Quality Assurance Program. See 10 C.F.R. Part 50, App.
B, I. PECO’s retention of exclusive authority over site-access
decisions, pursuant to NRC regulations, and Bechtel’s duty to
defer to PECO’s decisions concerning access, are confirmed in
the parties’ contract and reiterated in PECO’s substance abuse
policy.
The effect of the Third Circuit’s decision is to wrest from a
nuclear power plant owner and prospective licensee the author-
ity to deny site access to contractor-employees who, an arbi-
trator confirmed, tested positive for marijuana use, thereby
posing a significant safety threat to site employees and the
general public. This result fundamentally conflicts with the
expressed public policy of the NRC governing the safety of
nuclear power facilities, and owner control over access to such
facilities. See, e.g., Bechtel Constructors Corp. v. Detroit Carpen-
ters Dist. Council, 610 F. Supp. 1550 (E.D. Mich. 1985)
(nuclear power site owner has mght to exclude contractor’s
employees that is superior to mghts contained in collective
bargaining agreement between contractor and its employees );
Florida Power & Light Co. v. Fleitas, 488 So. 2d 148 ( Fla. App.
Dist. 1986) (nuclear power site owner must be given widest
possible authority to bar anyone from premises). The Third
Circuit’s decision in this case has grave implications for the
NRC-owner-contractor¢ relationship at all nuclear power facil-
ities throughout the nation. Resolution of this important issue is
essential not only to an accommodation of federal labor law
and NRC policy, but also to the safe construction and operation
4 Contractors include not only construction contractors, but also mainte-
nance contractors on nuclear power plants which now are in operation.
Ll
of nuclear power plants. Because the issues involved in this
case are so important, this Court should grant certiorari and
resolve them.
II. This Court Should Resolve The Conflict In Principle
Among The Circuits Concerning Whether An Arbitration
Award Fails To Draw Its Essence From The Agreement
When The Absence Of A Causal Connection Between
The Employer’s Actions And The Grievants’ Injuries
Renders The Award Punitive.
In this case the arbitrator found that PECO had directed
Bechtel to exclude the three gnevants from the site pending
rehabilitation. Under the terms of PECO’s contract with
Bechtel, PECO retained exclusive authority over access to the
Limerick II site. Because PECO, not Bechtel, caused the
grievants to be excluded from the site and because Bechtel was
and remains powerless to return the grievants to the site over
PECO’s objection, there is no causal link between Bechtel’s
alleged breach of the Project Agreement and the grievants’
injuries. Where there is no causal link between the breach of a
collective bargaining agreement and the grievants’ losses, the
award is punitive and not compensatory. See Baltimore
Regional Joint Bd. v. Webster Clothes, Inc., 596 F.2d 95, 98
(4th Cir. 1979). In this case, the Project Agreement contains
no provision for the award of punitive damages for violations of
the Project Agreement, and it prohibits the arbitrator from
changing, amending, adding to or subtracting from the terms of
the Project Agreement. Nevertheless, the Third Circuit en-
forced the arbitrator’s award.
The circuits are in conflict over the question of whether a
punitive award fails to draw its essence from the collective
bargaining agreement where the agreement does not provide
for punitive awards. The First, Fourth and Eighth Circuits
have held that punitive awards do not draw their essence from
12
the agreement, where the agreement does not otherwise author-
ize such awards, and are therefore unenforceable. See Bacardi
Corp. v. Congresso de Unianes Industriales de Puerto Rico, 692
F.2d 210, 214 (Ist Cir. 1982); Baltimore Regional Joint Bd. v.
Webster Clothes, Inc., supra at 98; International Ass’n of Heat
& Frost Insulators, Local Union 34 v. General Pipe Covering,
Inc., 792 F.2d 96 (8th Cir. 1986).
The Ninth Circuit and, by implication, the Third reject that
view and enforce such arbitration awards. See Pullman Power
Products Corp. v. Local 403, United Ass’n of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry, No. 86-
6572 (9th Cir. September 16, 1988) (overruling Howard P.
Foley Co. v. International Bhd of Elec. Workers, 789 F.2d 1421
(9th Cir. 1986))5. According to the Ninth Circuit, its earlier
decision in Howard P. Foley Co, was inconsistent with this
Court’s recent decision in United Paperworkers Int’l Union v.
Misco, Inc., supra.
These cases point up the conflict among the circuits on an
issue which is of utmost importance to all contractors and site
owners involved in the construction of nuclear power facilities.
Resolution of this conflict is essential to the proper adminis-
tration of federal labor law.
5 A petition for rehearing en banc has been filed in the Pullman case. As
of the date of this Petition, the Ninth Circuit has not acted on that petition.
13
Ill. CONCLUSION
For the foregoing reasons, Bechtel Construction, Inc. re-
spectfully requests that the petition for a writ of certiorari be
granted.
Respectfully submitted,
LAWRENCE S. COBURN*
MarRK J. FOLEY
Pepper, Hamilton & Scheetz
3000 Two Logan Square
Eighteenth and Arch Streets © ©
Philadelphia, PA 19103
(215) 981-4000
Attormeys for Petitioner,
Bechtel Construction, Inc.
*Counsel of Record
A-|
UNITED STATES COURT OF APPEALS
For THE THIRD CIRCUIT
- No. 88-1433
BECHTEL CONSTRUCTION, INC.
Appellant
VS.
LABORERS DISTRICT COUNCIL AND
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 135
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(Civil Action No. 87-6536)
District Judge: Honorable Robert S. Gawthrop, III
Argued October 17, 1988
\
BEFORE: STAPLETON, SCIRICA, AND COWEN
Circuit Judges
JUDGMENT ORDER
After consideration of the contentions raised by appellant,
it is
A-2
ORDERED AND ADJUDGED that the judgment of the
district court be and is hereby affirmed.
Costs taxed against appellant.
By the Court
Circuit Judge
ATTEST:
Sally Mrvos, Clerk
Dated: November 2, 1988
B-|
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BECHTEL CONSTRUCTION, INC. }
CiviL ACTION
Vv.
No. 87-6536
LABORERS DISTRICT COUNCIL '
and
LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 135 J
MEMORANDUM
Pending before this court are two motions, the first being a
motion for summary judgment, filed on behalf of the defend-
ants, Laborers District Council and Laborers International
Union of North America, Local 135 (union), and the second
being a cross motion for summary judgment, filed on behalf of
Bechtel Construction, Inc. (company). The case revolves
around the discharge of four employees by the company on
charges of possession of illegal drugs on the company premises.
Pursuant to a collective bargaining agreement, the case was
heard before an arbitrator, who concluded that the company
had failed to establish that they were guilty of the charges. The
arbitrator accordingly ordered the company to compensate the
grievants for the time they lost from work. The company filed
suit in this court, seeking to vacate the arbitrator’s award on the
basis that it violated the public policy against permitting drug
users work access to the construction site of a nuclear power
plant.
a
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FACTS
On January 10, 1985, the company entered into a bar-
gaining agreement with its union, which was to apply to all
construction work performed on the construction site of Lime-
rick Unit II Generating Station, a nuclear power plant located
in Limerick Township, Pennsylvania. Pursuant to the agree-
ment, all disputes arising under the contract would be referred
to an impartial arbitrator for final and binding arbitration.
Article XI. The agreement also provided, in pertinent part,
that:
[i]n order to provide for the safety of employees
and to provide a safe working environment, the
following Drug and Alcohol Abuse Policy shall be
adhered to by all Employers, employees, visitors and
suppliers on the construction site.
Any person covered by this policy shall be denied
access to or removed from the project and subject to
termination if he/she is:
1. Under the influence of; using; possessing,
buying, selling . . . controlled substances or drug para-
phernalia.
Article IV.
In February 16, 1986, the company barred Legrand Craw-
ford from the construction site for violation of the rule against
the possession of drugs at the site. On February 17, 1986, the
company provisionally barred Donald Flippen, Glenn Bullock,
and Darryl Carrol from the site because they had tested positive
for manjuana, subject to their rehire upon successful com-
pletion of a drug rehabilitation program.
The facts giving rise to the above discharges are not in
dispute. On February 12, 1986, a securty guard, making his
rounds at the construction site, came across a small pouch in the
employee parking area. The pouch contained a white powdery
substance, some money, and a small metal tube. Near the spot
B-3
where the pouch was found was a parked car with a suspicious
looking cigarette protruding from the rear door armrest ashtray
on the passenger side of a parked vehicle. The company called
the township police who arrived shortly afterwards. The officer
surmised that the cigarette contained manjuana and requested
that the owner of the vehicle be summoned for questioning.
The owner granted the officer access to the vehicle, and a search
was conducted.
Following the search, the owner of the automobile was
interviewed by the officer. The owner told the officer that he
had carried passengers that morning, and that one of them, Mr.
Crawford, had been seated next to the rear door ashtray.
Shortly afterwards, a test was conducted which confirmed
the officer’s suspicion that the cigarette in question was indeed a
marijuana cigarette. Mr. Crawford was summoned for an
interview with the officer. After talking with him, the officer
agreed to drop any drug charges, if one of the passengers would
plead guilty to a lesser offense of Disorderly Conduct. Mr.
Crawford later appeared at the police station and pled guilty to
the Disorderly Conduct charge in connection with the incident. '
On February 14, 1986, the company denied Crawford
access to the site and informed him that his employment at the
1 The Pennsylvania Crimes Code defines Disorderly Conduct as follows:
A person is guilty of disorderly conduct if, with intent to cause public
inconvenience, annoyance or alarm, or recklessly creating a risk thereof,
he:
(1) engages in fighting or threatening, or in violent or tumultuous
behavior,
(2) makes unreasonable noise;
(3) uses obsene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act
which serves no legitimate purpose of the actor.
18 Pa. Cons. Stat. 5505. I am aware that creative prosecutors, in their quest
for an amicable resolution, have been known to offer bargained-down pleas to
disorderly conduct upon scenarios which have to be factually gerrymandered
in order to squeeze or stretch within that definition. Be that as it may, for
purposes of this analysis, the discussion must be confined to the four comers
of the statutory definition.
B-4
Limerick Unit II site was terminated. The Company informed
the other occupants of the vehicle that they were to submit to a
drug screen or be barred from the site. The employees all
agreed to submit to such tests. rake
Messrs. Flippen, Bullock, and Carrol tested positive for
marijuana, and were summarily dismissed from employment,
subject to successful completion of an approved rehabilitation
program, if work was available.
On September 15, 1987, the arbitrator, having considered
the evidence presented to him in the hearings on this matter,
concluded that the company had failed to establish just cause
for the discharge of the employees. In particular, he found that
the evidence relied upon the company to discharge Mr. Craw-
ford was wholly circumstantial, and that Crawford’s entry of a
guilty plea to a charge of disorderly conduct “did not encom-
pass and in no way related to possession of a [manjuana]
cigarette.”” Nor did the arbitrator find that traces of manjuana
in the urine samples of the other employees resulted in “‘posses-
sion” as the term was used in the bargaining agreement,
because the term required that drugs be “on one’s person” and
not “in” or “within” one’s person. (Arb. Op. at 11). Likewise,
the arbitrator rejected the company’s contention that the em-
ployees had been under the influence of drugs, stating:
[T]here is no evidence of possession or aberrant
behavior of any one of these Gnevants. It is critical
that by the admission of the Company’s own expert
witness,... there is no scientific method of proving
impairment based on even a high positive reading of
the test results. The expert witness stated that the
marijuana metabolites may have been present in the
urine for a penod of one to two weeks with no
measure of how much was ingested or under what
circumstances. Moreover, the possibility that man-
juana can enter the human system through passive
smoking cannot be overlooked.
Id.
B-5
The arbitrator further noted that the pouch and cigarette
had not been presented at the hearings, having been lost by the
police, and therefore the evidence was subject to “an aura of
some question,” particularly since the test kit used to determine
the contents of the cigarette was not properly used. He also
noted that the testimony of the company witnesses regarding
the pouch was “somewhat in conflict.” Jd.
The arbitrator ordered the company to pay each of the
employees the difference between potential earnings froim the
date of discharge until the date cf the award, and earnings
otherwise realized during this period.
DISCUSSION
Summary judgment is proper where “the pleadings, depo-
sitions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any matenal fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552, 91 L.Ed. 2d 265, 273 (1986).
The scope of judicial review of an arbitrator’s decision is
narrow. Where the parties’ bargaining agreement provides for
dispute resolution by an arbitrator, courts may not overrule the
arbitrator’s interpretation of the bargaining agreement merely
because the courts would have reached a different inter-
pretation of the agreement, or because they would have
evaluated the evidence differently. Equitable Gas Co. v. United
Steelworkers of America, 676 F. Supp. 648 (W.D. Pa. 1987).
‘“*(O]nly where there is a manifest disregard of the agreement,
totally unsupported by principles of contract construction and
the law of the shop, may a reviewing court disturb the
[arbitrator’s] award.” Koshatka v. Philadelphia Newspapers,
Inc., 762 F.2d 329, 333 (3d. Cir. 1985), quoting Ludwig Honold
Manufacturing Co. v. Fletcher, 405 F.2d 1123, 1128 (3d. Cir.
1969).
B-6
Plaintiff asserts that the arbitrator’s award should be
vacated because it violates “the well defined and dominant
public policy against permitting drug users work access to the
construction site of a nuclear plant.” See: W.R. Grace & Co. v.
Rubber Workers, 461 U.S. 757, 103 S.Ct. 2177, 76 L-Ed 2d 298
(1983) (arbitrator’s award may be vacated where enforcement
would violate explicit public policy). See also: Iowa Electric
Light & Power v. Local Union 204, 834 F.2d 1424 (8th Cir.
1987) (court refused to enforce award permitting reinstatement
of nuclear power machinist where machinist deliberately vio-
lated safety regulations ).
I have no quarrel whatsoever with the general proposition.
Drugs are, of course, properly prohibited from the workplace,
and the propriety of that prohibition is enhanced geometrically
when that workplace happens to be nuclear. The question,
however, is not the propriety of the prohibition of the workrule,
but whether the arbitrator’s finding that the company failed to
prove a violation of its work rules concerning use or possession
of a controlled substance is within the scope of this court’s
review.
In United Paperworkers International Union, AFL-CIO v.
Misco, Inc., U.S. , 108 S.Ct. 364, 98 L.Ed. 2d
286 (1987), an employee was apprehended by the police in the
back seat of a car with a lighted marijuana cigarette in the
front-seat ash tray. The arbitrator held that, based on this
evidence, the company had failed to prove that the employee
had violated its policy against possession or use of drugs on the
premises. The Fifth Circuit of the Court of Appeals refused to
enforce the arbitrator’s decision on the basis that it was contrary
to the well-defined public policy against the introduction of
drugs into the work place. In reaching its conclusion, the Court
noted that “we had thought it common knowledge that the
narcotic effect of marijuana can be obtained by simply sitting in
a small enclosure where smoke from it is present.” See: Misco,
Inc. v. United Paperworkers International Union, AFL-CIO,
768 F.2d 739, 741 n.2 (Sth Cir. 1985). On appeal, the Supreme
a
B-7
Court held that the Fifth Circuit had exceeded its scope of
review, inter alia, by second guessing the arbitrator’s evaluation
of the evidence. The Court, speaking through Justice White,
observed: ““No dishonesty is alleged: only improvident, even
silly factfinding is claimed. This is hardly sufficient basis for
disregarding what the agent appointed by the parties deter-
mined to be the historical facts.” 108 S. Ct. at 371.
Here, the company asserts, in essence, that arbitrator erred
in failing to find that the evidence before him was sufficient to
sustain the company’s charges that the employees had violated
company work rules pertaining to controlled substances, and
that, by so doing, the arbitrator, in effect, condoned illegal acts
of the employees. I cannot, however, alter the result without
illicitly placing myself in the role of a factfinder. United Postal
Service v. National Association of Letter Carriers, AFL-CIO,
No. 87-3501, slip. op. at 9, (3d Cir. February 5, 1988).
Accordingly, I will deny the plaintiffs and grant the
defendant’s motion for summary judgment.
An appropriate order follows.
B-8
IN THE UNITED STATES DISTRICT COURT
_ For THE EASTERN DISTRICT OF PENNSYLWANIA
‘
BECHTEL CONSTRUCTION, INC.
Crvm ACTION
Vv.
No. 87-6536
LABORERS DISTRICT COUNCIL
and
LABORERS INTERNATIONAL UNION
OF NorRTH AMERICA, LOCAL 135 }
7
ORDER
AND Now, this 22nd day of Apml 1988, Defendant’s
Motion for Summary Judgment is GRANTED, and Plaintiff's
Motion for Summary Judgment is DENIED. Judgment is entered
in favor of Defendants, enforcing the Opinion and Award of
Arbitrator Charles Mullen. Plaintiff is ORDERED to comply with
the Award by making payments to each of the Grevants in
accordance with the arbitrator’s award. Such payment shall be
made within the next pay period after this Order is entered, and
shall include interest at the legal rate from September 15, 1987,
the date of Arbitrator Mullen’s Award, to the date of payment
pursuant to this ORDER.
BY THE CourrT:
Robert S. Gawthrop, III, J.
C-|
IN THE
MATTER OF ARBITRATION
iin DECISION IN
GRIEVANCE INVOLVING
BECHTEL CONSTRUCTION, INC. DISCHARGE OF
aed FOUR EMPLOYES
FOR ALLEGED VIOLATION
LABORERS DISTRICT COUNCIL OF DRUG POLICY
LocaL 135
BOTH OF
LIMERICK, PENNSYLVANIA
AAA CASE NO: 14 300 0595 86 A
GRIEVANCE: Each of four Gnevants protests dis- ©
charge for the alleged violation of
the Company’s Drug Policy.
AWARD: 1. The grievance is granted in part
in the case of each of the four
Grievants.
2. The Company is directed to
make payment to each of the
Grievants for the difference be-
tween potential earnings from
the date of discharge until the
date of this Award, and earnings
otherwise realized during this
period, and it is directed that
such payment be made within
the pay period following that in
which this Award is rendered.
3. The Union and the Grievants are
directed to cooperate with the
Company in establishing intenm
earnings.
4. The Gnevants’ nght to return to
employment as new employes is
not limited by this Award.
C-2
Administration
By letter of July 1, 1986 from the Philadelphia Regional
Office of the American Arbitration Association the undersigned
was notified of his selection to hear and decide a matter then in
dispute between these Parties. The case was bifurcated by the
Parties and hearings went forward on the matter of arbitrability
on September 29 and 30, 1986 where the Parties presented
testimony and evidence in support of positions advanced, and
on the evenings of September 30, 1986 and October 3, 1986 the
undersigned met with the representatives of the Parties. That
record was closed and the matter resolved by an Award of
December 6, 1986.
The Parties reconvened to present testimony and evidence
on the menits of the issue on March 24, 25, 27 and 31; Apmil 9
and 30; and May |, 1987, where the Gnevants appeared and
testified in their own behalf. The undersigned met with
representatives of the Parties on June 11 and July 20, 1987.
Post-Hearing Briefs were duly filed and exchanged, whereupon
the record was closed. The matter is now ready for final
disposition.
Grievances and Questions To Be Resolved
The following Demand For Arbitration was filed on March
25, 1986 (Union Exhibit-1 ):
NATURE OF DISPUTE:
The Union grieves the termination from employment of
Glenn Bullock, Donald Flippen, Darryl Carroll and L.
Crawford.
REMEDY SOUGHT:
The Union requests that the above four employees be
reinstated to employment and paid full back pay for all
time lost.
C-3
The questions to be resolved are:
(1) Did the Company have just cause to summarily
discharge Gnevant LeGrand Crawford;
(2) Did the Company have just cause to provi-
sionally discharge Grievants Glenn Bullock, Donald Flip-
pen and Darryl Carrol; and
(3) If not, what shall the remedy or remedies be?
Cited Portions Of The Agreement
The following portions of the Agreement (Joint Exhibit-1 )
were cited:
ARTICLE IV — MANAGEMENT RIGHTS
The Employer retains full and exclusive authority for
the management of its operations. The Employer shall
direct its work force, including, but not limited to hiring,
promotion, transfer, lay-off or discharge for just cause. ...
se eee
(f) In order to provide for the safety of employees
and to provide a safe working environment, the following
Drug and Alcohol Abuse Policy shall be adhered to by all
Employers, employees, visitors and suppliers on the con-
struction site.
Any person covered by this policy shall be denied
access to or removed from the project and subject to
termination if he/she is:
1. Under the influence of; using; possessing,
buying, selling or otherwise exchanging; whether or
not for profit, controlled substances or drug para-
phernalia.
C-4
_ 2. Under the influence of; consuming; possessing,
buying, selling or otherwise exchanging; whether or
not for profit, alcoholic beverages.
Factual Background
The Company is the general construction contractor at the
Philadelphia Electric Company (“PECO”) Limenck Unit II
Generating Station, a nuclear-fueled electric power generating
plant. As may be gathered, Limerick II is the second in-
stallation to be erected and is adjacent to Limerick I, both of
which are located in Limerick Township in the general vicinity
of Pottstown, Pennsylvania.
The incidents giving rise to this issue occurred in February,
1986. More precisely, the triggering event occurred at approxi-
mately 8:45 A.M. on February 12, 1986 when a Security Guard
on his appointed rounds came upon a small pouch in the
employe parking area. The pouch contained a small amount of
money as well as two small plastic bags of a white powdery
substance and a small metal tube. The pouch with its contents
was turned over to a Secunty Supervisor a short time later.
The Guard and the Security Supervisor then carried the
pouch with its contents to the Project Security Supervisor for his
scrutiny and direction. The Project Security Supervisor, after
observing the pouch contents, directed the Guard to lead the
two Supervisors to the location where he found the pouch.
After pointing out the approximate location of the spot where
the pouch was found, the Guard returned to his regular duties.
The two Supervisors proceeded to survey the surrounding area
and the parked vehicles to ascertain the possible presence of
additional material of a suspicious nature.
In the course of their search they did observe a suspicious
looking cigarette protruding from a rear door armrest ash
receiver on the passenger side of an employe’s parked automo-
bile. The two then returned to their office to apprise the Project
SSL.
C-5
Superintendent of their findings. The Superintendent instructed
the Supervisors to notify the local police department of their
discovery. Shortly after receiving their call the Limerick
Township Chief of Police arrived at the Plant Security Office.
Having examined the pouch and its contents the Chief re-
quested to be taken to the place where the pouch had been
found. The Security Guard once more was asked to point out
the spot where he had come across the pouch. Once again he
was dismissed from the investigation to resume his regular
duties.
The Project Security Officer then directed the Chief to the
vehicle with the suspicious cigarette. The Chief opined that the
subject cigarette was a hand-rolled marijuana cigarette. Predi-_
cated on probable cause, the Chief requested that the employe-
owner of the vehicle be summoned for questioning and per-
mission to search the vehicle. The owner was identified
through police channels and subsequently appeared at the
parking area escorted by his Union Steward. Observing
accepted police procedure, access to the vehicle in question was
granted by the owner and a search was conducted by the Chief.
The suspicious cigarette and residue from two ash receivers
were gathered as evidence in the investigation and were
wrapped for further examination. The employe-owner of the
vehicle was then interrogated regarding the presence of the
“cigarette” and the identity of recent passengers in his vehicle.
He freely disclosed not only the names of his passer gers but
also their respective seating positions during the morning drive
to work that day. The Grievant seated adjacent to the ash
receiver that contained the “cigarette” was LeGrand “Billy”
Crawford. There were five passengers in all, four of whom
became Gnevants herein. In addition to identifying his passen-
gers, the dnver commented that he had smelled what he
thought was marijuana smoke in the car on the way to work.
The driver’s cooperation was motivated by his eagerness to be
disassociated from what obviously would develop into a police
investigation.
eee
C-6
The Chief took the “cigarette” to the construction site
Security Office where he conducted a reagent kit field test of a
portion of the filler from the suspicious cigarette. The Chief
determined that the test results, color, confirmed his orginal
deduction that the cigarette contained manjuana rather than
tobacco. Because of his alleged seating position in the vehicle
that morning, employe Crawford was summoned to the Plant
Security Office for questioning. The content of the conversation
between the Chief, Crawford and the vehicle’s owner is the
subject of some controversy between the Parties. It is agreed,
however, that an offer was made to the two that if one
passenger would report to Police Headquarters after 4:00 P.M.
of that day and would plead guilty to a disorderly conduct
charge, and would pay a fifty dollar fine, no manjuana charges
would be lodged by the police. Disorderly conduct is, of
course, a summary offense and therefore of considerably less
consequence than a violation of the Drug Device and Cosmetic
Act, a misdemeanor.
Understanding that the plea bargain would absolve all of
the passengers of drug charges by the police and additionally
would bar discipline by the Company, employe Crawford
availed himself of the less egregious charge of disorderly
conduct at the appointed place and time.
All of the foregoing incidents took place on Wednesday,
February 12, 1986. No disciplinary action was taken by the
Company on Thursday, the Gnevants working their normal
shift. Meanwhile the Company deliberated on the appropriate
response to the circumstances. The information that the
Company had available was: (1) Crawford had confessed to
the Limerick Township Chief of Police that he had piaced the
“cigarette” in the ash receiver; (2) the Chief determined the
“cigarette” to be marijuana; and, (3) the Company had cause
to require the driver, Granby, and his five passengers Crawford,
Daily, Flippen, Bullock and Carrol to submit to urine tests.
OO |
C-7
Bechtel’s management had conferred with their customer,
PECO, regarding what action would be appropriate. PECO
initially suggested that all who had been in the vehicle be
removed from the job site. Bechtel countered with the recom-
mendation that the six be given drug screens before deciding
which employes would be denied access to the job site. PECO
agreed to that approach for everyone except Crawford, taking
the position that he must be denied access to the site without
the benefit of a drug screen.
The Company concurred with PECO’s directive and ac-
cordingly barred Crawford from the site on Friday morning,
February 14, 1986. Additionally, the other four occupants of
the involved vehicle were intercepted at the clock-in gate and
were told that they would either submit to a drug screen or be
barred from the job site. They elected to submit to the test and
were escorted to the plant dispensary. Employe Flippen was
not intercepted and had proceeded to his work station.
The four employes furnished the Plant Nurse with urine
specimens which were duly marked with each employe’s name.
Certain precautions were taken to ensure that the specimens
were properly submitted and identified. The four specimens
were then delivered to the Pottstown Memonal Medical Center
(PMMC) for forwarding to the American Medical Laboratory
(AML) in Fairfax, Virginia for analysis. Later that shift,
Mr. Flippen went through the same routine and his specimen
was delivered to PMMC.
AML conducted drug and manjuana tests on the speci-
mens and reported back that the results of four tests had come
Out positive for manjuana. Of those four, one also showed
traces of cocaine although that fact is not relevant to the action
takea by the Company. The four employes whose urine
contained manjuana were Daily, Flippen, Bullock and Carrol.
The driver, Granby, was exonerated by virtue of his negative
results.
eee
C-8
Learning of the test results, the Company provisionally
discharged the four whose test results were positive for man-
juana. That meant that they would be denied access to the job
site at Limerick II until each of them underwent drug rehabili-
tation in a recognized program and provided the Company with
written confirmation that they had successfully completed the
program. Crawford’s discharge was final, to the extent that
under no circumstances would he be employed by the Com-
pany at Limerick II.
The four employees who were offered the rehabilitation
option elected not to comply and consequently have never
returned to work at PECO’s job site in Limerick Township.
Instead they have joined with Crawford to challenge the
Company’s action in the instant discharges.
Preliminanly, the Company challenged the Union’s night
to move this issue to arbitration as they alleged that no
grievance was filed in Step One of the gnevance procedure,
inter alia. A separate hearing went forward on September 30,
1986 regarding the threshold question of arbitrability. The
undersigned found the issue to be arbitrable, and this Award
addresses the merits of the grievance.
Contentions Of The Parties
Contentions of the Company
The Company contends that possessing drugs at the job
site, including traces of drugs in an employe’s system, is a
serious breach of acceptable conduct. In support of its position
it emphasizes that the nature of the work being performed at a
nuclear power plant is particularly sensitive, requiring special
attention to matters of personal safety. Failure to exercise such
safety, it urges, poses serious risks to the employes and, indeed,
residents of the community. Because of the possible con-
sequences the Company asserts an inherent right to take
reasonable steps to ensure a drug-free workforce.
C-9
The Company argues that the Gnevants here were well
aware of the prevailing rules regarding the Company’s prohibi-
tion against drugs. The Company cites the specific language of
the Agreement, Article IV, Paragraph (f) to bolster its argu-
ment. That language, the Company urges, is reinforced by
work rules restating the same drug prohibition, which rules
have been presented to each employe.
The Company contends that it had just cause to discharge
employe Crawford because he did admit to the Chief of Police
that the marijuana cigarette was his. That fact, the Company
maintains, constitutes introduction of marijuana onto PECO’s
property, an offense punishable by discharge. In turn, the
Company rejects the Grievant’s contention that the Chief
promised employe Crawford that if he pleaded guilty to the
summary offense of disorderly conduct, none of the passengers
of the suspected vehicle would be discharged by the Company.
The Company points out that the plea was related to a police
investigation which had no bearing on the continuing employ-
ment of the suspects and that the Chief had no authority to
make any representation regarding job status.
The Company contends further that it acted reasonably in
denying job site access to Carrol, Bullock and Flippen until
each could demonstrate that he was rehabilitated. It submits
that a finding of evidence of manjuana in the vehicle gave it
probable cause to require urine tests and the results of those
tests in turn established the nght to bar the Grievants’ return to
work.
Contrary to the urging of the Union, the Company con-
tends that the urine specimens were prepared and transported
with due care. From the time the specimens were collected in
the presence of the Union Steward until they were placed in the
custody of AML, the Company maintains that there was no
opportunity for a misidentification of the samples.
C-10
Further, the Company maintains that the drug and man-
juana screens performed by AML were extraordinanly accu-
rate. In support of that contention the Company cites AML’s
quality control statistics which indicate accuracy levels of 99.50
to 99.75 percent.
Finally, the Company contends that actual impairment
need not be shown to justify the imposition of discipline. It
argues that the mere presence of controlled substances in the
employe’s systems presents a risk of impairment which could
result in injury to the employe or his fellow workers.
Accordingly, the Company maintains that it took reason-
able action in all four cases and seeks to have those actions
upheld in a denial of the gnevance.
Union Contentions
At the outset the Union contends that serious doubt is
raised regarding the existence of the mystenous pouch, the
suspicious looking “cigarette” and alleged residue from the ash
trays of the automobile central to this issue. This doubt, it
submits, arises out of the disappearance of the matenal evi-
dence that was subpoenaed but allegedly is no longer in police
custody.
Additionally, the Union contends that no consensus could
be reached by the Company’s Witnesses as to where the pouch
was found and its general description.
Even if the “cigarette” did exist, the Union contends, the
field testing of its contents as performed by the Chief of Police
was seriously flawed because, according to the Chief’s testi-
mony, he failed to follow the explicit test instructions of the
manufacturer of the kit. Specifically, he ruptured all three
ampules simultaneously rather than in the described sequence
at timed intervals.
C-11
The Union argues further that the Company’s tactics of
forcing the employes to be drug tested or be discharged was
improper. Had the employes refused, as the Union claims they
should have done, the Company would have been forced to try
this issue without the so-called negative test results. The fact
that they did cooperate, the Union maintains, is indicative of
the fact that the Grievants felt that they had nothing to conceal.
Another contention advanced by the Union is that Griev-
ant Crawford never admitted to the police that the “cigarette”’
was his. He maintains that he merely did what he was
requested to do, namely plead guilty to the summary offense of
disorderly conduct to ensure that he and the other employes
under suspicion would neither be prosecuted by the police nor
discharged by the Company. This, the Union would have it, is
the understanding that he reached after meeting with Company
representatives and the police.
The Union points to considerable testimony on the record
as characterizing the urine specimen chain of custody relative to
the identity and transportation of the samples as fraught with
gaps and potential opportunities for mishandling. The Union
urges that the chain of custody did not meet acceptable
standards, especially where its compromise might seriously
affect the long-term well being of the Gnevants.
It is also important to consider, the Union contends, that
the marijuana screen results were not confirmed under the most
- Stringent technology available to the testing laboratory. Again,
the Union maintains, when a testing procedure involves the
discharge of several employes, every scientific means of con-
firmation ought to have been employed. In the absence of such
care, the Union argues, the possibility does exist that one or
more of the test results were false.
Finally, the Union maintains that even if the test results
were accurate, they do not support the Company’s position of
just cause for discharge. This is true, the Union argues, because
C-12
there is no evidence of impairment, when, how or how much of
the marijuana was ingested by any Grievant.
For all of these reasons, the Union contends that the
Company has failed to prove guilt beyond any reasonable
doubt, the standard for discharging the Gnevants involved in
this issue.
Discussion And Findings
While on its face, the fact is accepted that safety goals are
critical and must be sought, it must also be accepted that safety
goals cannot be attained absent some focus on the fundamental
concepts of industrial discipline. If.the enforcement of drug
rules there does exist the possibility of obscuring the nghts of an
employe in the face of strict enforcement of these rules. Here
the issue turns essentially on the balance between rules enforce-
ment rights as argued for by the Company, and employe nghts
as argued for by the Union.
Certainly, in the instant set of circumstances there exists
grave cause for concern for the matter of safety since the
workplace is the construction site of a nuclear-fueled power
plant. Indeed, the Company here is under contract with the
Philadelphia Electric Company, who at the time of concern had
experienced drug-related safety problems similar to the one at
hand, and it is a fact that PECO had established strict
guidelines for employes of contractors working on the site, as
well as its own employes.
The Agreement between the Parties does address the
matter of concern here in Article IV, Management Rights,
Paragraph (f), Drug and Alcohol Abuse Policy, and the
Preamble of Article [TV addresses the matter of just cause for
discharge actions.
Management relies on this language to support its dis-
charge action of employe Crawford, essentially sub-paragraph
C-13
1, which in part proscribes being, “‘under the influence of; using,
possessing ....” Crucial here is the fact that the evidence on
record regarding the use or possession is wholly circumstantial.
No Witness testified to having observed Crawford either
smoking or placing a suspicious cigarette in the ash receptacle.
It was established that he had ridden that morning and that he
had been seated just next to the receptacle in which the
cigarette was found in the Granby vehicle.
The Grievant strenuously denies that he admitted to the
Chief of Police that the “cigarette” belonged to him. He
maintains rather that he merely entered a guilty plea to the
summary charge of disorderly conduct. He maintains that
while he entered a guilty plea to the summary charge of
disorderly conduct, this action did not encompass and in no
way was related to possession of a majijuana cigarette. The
Company position relative to this critical matter is ambivalent.
On one hand the Company would have it that since the
discussion between the Chief of Police and the Gmnevant
occurred outside and away from the plant that it has no
standing whatsoever. On the other hand it attaches significance
to this conversation insofar as it constitutes an admission by the
Grievant, according to the Company, that he “possessed”’ the
“cigarette” found in the Granby vehicle.
In considering the possession question further, it was never
established that Crawford had traces of manjuana in his urine.
He was summarily discharged on the strength of the Chief's
allegation of an admission of possession and Grievant Craw-
ford was not subjected to a manjuana test as were the other
Gnevants. Even if the Grievant had been subjected to a
marijuana screen and had tested positively it strains the defini-
tion of “possession” to maintain that that word would encom-
pass the contents of one’s bladder. Based on the foregoing then
there is no just cause here for this Grievant’s separation.
Turning then to the other three Gnevants, the Company
relies, inter alia, on the technical results of the manjuana screen
C-14
which in each case revealed traces of manjuana in the urine
sample and this is the essence of the Company’s case involving
these three Gnevants.
The finding of a trace of manjuana in a urine sample of an
employe would suggest generally that that employe was a
marijuana user. A marijuana user is one who does pose a
threat to his own safety and the safety of other employes, not to
mention the hazard of work not properly performed at a
nuclear power site. These straightforward facts notwithstand-
ing, it would be an oversimplification, indeed it would be totally
improper, for the undersigned to make findings on this basis.
This is so simply uccause he is bound otherwise by the
Agreement, under the standards for interpretation of Article IV,
Paragraph (f), for disposition of drug matters.
Here the Company attempts to establish some nexus
between the test results and “‘possession,” as this term is used in
the Agreement. Literally, possession means “the detention and
control, or the manual ... custody” ( Black’s Law Dictionary,
Revised Fourth Edition). The Company’s interpretation of the
word “possess” does not comport with that definition, since the
Gnevants neither held nor had control of the manjuana that
had been metabolized within their respective bodily systems.
In common usage then “possession” must mean “on” one’s
person and not “in” or “within” one’s person.
The language of Paragraph (f) would serve the Parties
determinatively in an instance where an employe was found to
be in possession of drugs on Company property, but, as
indicated, this is not the case here.
Turning to the “under the influence” aspect of Paragraph
(g), as it is involved here, there is no evidence of possession or
aberrant behavior of any one of these Gnevants. It is critical
that by the admission of the Company’s own expert witness, Dr.
Bogema, there is no scientific method of proving impairment
based on even a high positive reading of the test results. The
C-15
expert witness stated that the manjuana metabolites may have
been present in the urine for a period of one to two weeks with
no measure of how much was ingested or under what circum-
stances. Moreover, the possibility that manjuana can enter the
human system through passive smoking cannot be overlooked.
On all of the foregoing it must be found that the Company
has not established just cause for the summary discharge of
Grievant Crawford or the provisional discharges of Gnevants
Flippen; Carrol or Bullock, in the absence of a showing of the
controlling language of the Agreement, Article IV, Paragraph
(f) having been violated.
With respect to the tnggering incident, finding of the
purple pouch or purse, the alleged marijuana cigarette, and the
alleged residue in the ash trays, the fact that these were not
presented as evidence, having been lost or destroyed by the
Limerick Township Police, would at best place them in an aura
of some question. Moreover, the testimony with respect to the
pouch or purse adduced from the Company Witnesses was
somewhat in conflict.
At the same time, the Chief's field test performed on the
suspicious cigarette, based on his recitation of how he used the
test kit, is not persuasive. The test kit obviously was not
properly used. Therefore, the results of that test are less than
convincing.
With respect to the Union’s numerous challenges of the
manner in which the urine samples of the Gnevants were
collected, transported and processed, it is true that the Com-
pany has developed certain refinements in the chain of custody
since these Gnevants were involved. In the main, however,
there is no evidence whatsoever that would establish that the
Grievants’ respective cases were adversely affected by the
manner in which the samples were collected by the Company
and transported and processed by AML. The Company in fact
appears to have dealt evenhandedly with the Grievants in this
respect, as did AML in its processing of the tests.
C-16
In summary, the Company has not established the fact of
contract violations which were the basis of its separation
actions. Accordingly, there exists no cause for the Company’s
action and the grievance must be granted.
AWARD
1. The grievance is granted in part in the case of each of
the four Gnevants.
2. The Company is directed to make payment to each of
the Gnevants for the difference between potential earnings
from the date of discharge until the date of this Award, and
earnings otherwise realized during this period, and it is directed
that such payment be made within the pay penod following
that in which this Award is rendered.
3. The Union and the Grievants are directed to cooperate
with the Company in establishing interim earnings.
4. The Grievants’ nght to return to employment as new
employes is not limited by this Award.
September 15, 1987
Pittsburgh, Pennsylvania
D-1
Labor-Management Relations Act, 29 U.S.C. § 141 et seq.
§ 185. Suits by and against labor organizations
Venue, amount, and citizenship
(a) Suits for violation of contracts between an employer
and a labor organization representing employees in an industry
affecting commerce as defined in this chapter, or between any
such labor organizations, may be brought in any district court
of the United States having junsdiction of the parties, without
respect to the amount in controversy or without regard to the
citizenship of the parties.
Responsibility for acts of agent; entity for purposes of suit;
enforcement of money judgments
(b) Any labor organization which represents employees in
an industry affecting commerce as defined in this chapter and
any employer whose activities affect commerce as defined in
this chapter shall be bound by the acts of its agents. Any such
labor organization may sue or be sued as an entity and in
behalf of the employees whom it represents in the courts of the
United States. Any money judgment against a labor organiza-
tion in a district court of the United States shall be enforceable
only against the organization as an entity and against its assets,
and shall not be enforceable against any individual member or
his assets.
Jurisdiction
(c) For the purposes of actions and proceedings by or
against labor organizations in the district courts of the United
States, district courts shall be deemed to have jurisdiction of a
labor organization (1) in the district in which such organization
maintains its principal office, or (2) in any district in which its
duly authorized officers or agents are engaged in representing
or acting for employee members.
D-2
Service of process
(d) The service of summons, subpoena, or other legal
process of any court of the United States upon an officer or
agent of a labor organization, in his capacity as such, shall
constitute service upon the labor organization.
Determination of question of agency
(e) For the purposes of this section, in determining
whether any person is acting as an “agent” of another person so
as to make such other person responsible for his acts, the
question of whether the specific acts performed were actually
authorized or subsequently ratified shall not be controlling.
June 23, 1947, c. 120, Title ITI, § 301, 61 Stat. 156.
D-3
10 CFR Ch (1-1-88 Edition)
PART 50—DOMESTIC LICENSING OF
PRODUCTION AND
UTILIZATION FACILITIES
Nuclear Regulatory Commission
§ 50.1 Basis, purpose, and procedures applicable.
The regulations in this part are promulgated by the
Nuclear Regulatory Commission pursuant to the Atomic
Energy Act of 1954, as amended, (68 Stat. 919) and Title II of
the Energy Reorganization Act of 1974 (88 Stat. 1242) to
provide for the licensing of production and utilization facilities.
x * *
§ 50.10 License required.
(a) Except as provided in § 50.11, no person within the
United States shall transfer or receive in interstate commerce,
manufacture, produce, transfer, acquire, possess, or use any
production or utilization facility except as authorized by a
license issued by the Commission.
(b) No person shall begin the construction of a produc-
tion or utilization facility on a site on which the facility is to be
operated until a construction permit has been issued.
* * *
§ 50.34 Contents of applications; technical information.
(a) Preliminary safety analysis report. Each application
for a construction permit shall include a preliminary safety
sitet iain
D-4
analysis report. The minimum information’ to be included
shall consist of the following:
(1) A description and safety assessment of the site on
which the facility is to be located, with appropnate atten-
tion to features affecting facility design. Special attention
should be directed to the site evaluation factors identified
in Part 100 of this chapter. Such assessment shall contain
an analysis and evaluation of the major structures, systems
and components of the facility which bear significantly on
the acceptability of the site under the site evaluation factors
identified in Part 100 of this chapter, assuming that the
facility will be operated at the ultimate power level which
is contemplated by the applicant. With respect to oper-
ation at the projected initial power level, the applicant is
required to submit information prescribed in paragraphs
(a)(2) through (8) of this section, as well as the informa-
tion required by this paragraph, in support of the appli-
cation for a construction permit.
(2) A summary description and discussion of the
facility, with special attention to design and operating
characteristics, unusual or novel design features, and prin-
cipal safety considerations.
ss
(6) A preliminary plan for the applicant’s organiza-
tion, training of personnel, and conduct of operations.
(7) A description of the quality assurance program to
be applied to the design, fabrication, construction, anc.
testing of the structures, systems, and components of the
facility. Appendix B, “Quality Assurance Cnitena for
Nuclear Power Plants and Fuel Reprocessing Plants,” sets
forth the requirements for quality assurance programs for
nuclear power plants and fuel reprocessing plants. The
5 The applicant may provide information required by this paragraph in
the form of a discussion, with specific references, of similanties to and
differences from, facilities of similar design for which applications have
previously been filed with the Commission.
D-
sn
descnption of the quality assurance program for a nuclear
power plant or a fuel reprocessing plant shall urclude a
discussion of how the applicable requirements of Appendix
B will be satisfied.
(b) Final safety analysis report. Each application for a
license to operate a facility shall include a final safety analysis
report. The final safety analysis report shall include informa-
tion that describes the facility, presents the design bases and the
limits On its operation, and presents a safety analysis of the
structures, systems, and components and of the facility as a
whole, and shall include the following:
(6) The following information concerning facility
operation:
(1) The applicant’s organizational structure, allo-
cations or responsibilities and authonities, and person-
nel qualifications requirements.
(ii) Managerial and administrative controls to
be used to assure safe operation. Appendix B,
“Quality Assurance Critena for Nuclear Power Plants
and Fuel Reprocessing Plants,” sets forth the require-
ments for such controls for nuclear power plants and
fuel reprocessing plants. The inforrnation on the
controls to be used for a nuclear power plant or a fuel
reprocessing plant shall include a discussion of how
the applicable requirements of Appendix B will be
satisfied.
§ 50.55 Conditions of construction permits.
Each construction permit shall be subject to the following
terms and conditions:
ee
D-6
(c) Except as modified by this section and § 50.5S5a,
the construction permit shall be subject to the same
conditions to which a license is subject.
** *
(e)(1) If the permit is for construction of a nuclear
power plant, the holder of the permit shall notify the
Commission of each deficiency found in design and con-
struction, which, were it to have remained uncorrected,
could have affected adversely the safety of operations of
the nuclear power plant at any time throughout the
expected lifetime of the plant, and which represents:
(i) A significant breakdown in any portion of the
quality assurance program conducted in accordance
with the requirements of Appendix B to this part; or
xe
(f)( 1) Each nuclear power plant or fuel reprocessing
plant construction permit holder subject to the quality
assurance criteria in Appendix B of this part shall imple-
ment, pursuant to § 50.34(a)(7) of this part, the quality
assurance program described or referenced in the Safety
Analysis Report, including changes to that report.
x * *&
§ 50.56 Conversion of construction permit to license; or
amendment of license.
Upon completion of the construction or alteration of a
facility, in compliance with the terms and conditions of the
construction permit and subject to any necessary testing of the
facility for health or safety purposes, the Commission will, in
the absence of good cause shown to the contrary issue a license
of the class for which the construction permit was issued or an
appropnate amendment of the license, as the case may be.
on xs» = *
D-7
APPENDIX B— QUALITY ASSURANCE CRITERIA
For NUCLEAR POWER PLANTS AND
FUEL REPROCESSING PLAN1Ts
Introduction. Every applicant for a construction permit is
required by the provisions of § 50.34 to include iy its prelimi-
nary safety analysis report a description of the quality assurance
program to be applied to the design, fabrication, construction,
and testing of the structures, systems, and gOmponents of the
facility. Every applicant for an operating license is required to
include, in its final safety analysis report, information pertaining
to the managerial and administrative’ controls to be used to
assure safe operation. Nuclear power plants and fuel reproces-
sing plants include structures, systems, and components that
prevent or mitigate the consequences of postulated accidents
that could cause undue msk fo the health and safety of the
used in this appendix, “quality assurance” comprises all
planned and systematic actions necessary to provide
adéquate confidence that a structure, system, or component will
rform. satisfactorily in service. Quality assurance includes
quality control, which comprises those quality assurance actions
related to the physica! characteristics of a material, structure,
component, or system which provide a means to control the
quality of the material, structure, component, or system to
predetermined requirements.
D-8
I. Organization
The applicant’ shall be responsible for the establishment
and execution of the quality assurance program. The applicant
may delegate to others, such as contractors, agents, or con-
sultants, the work of establishing and executing the quality
assurance program, or any part thereof, but shall retain respon-
sibility therefor. The authority and duties of persons and
organizations performing activities affecting the safety-related
functions of structures, systems, and components shall be
clearly established and delineated in writing. These activities
include both the performing functions of attaining quality
objectives and the quality assurance functions. The quality
assurance functions are those of (a) assuring that an appropni-
ate quality assurance program is established and effectively
executed and (b) verifying, such as by checking, auditing, and
inspection, that activities affecting the safety-related functions
have been correctly performed. The persons and organizations
performing quality assurance functions shall have sufficient
authority and organizational freedom to identify quality prob-
lems; to initiate, recommend, or provide solutions; and to verify
implementation of solutions. Such persons and organizations
performing quality assurance functions shall report to a man-
agement level such that this required authority and organiza-
tional freedom, including sufficient independence from cost and
schedule when opposed to safety considerations, are provided.
Because of the many vanables involved, such as the number of
personnel, the type of activity being performed, and the
location or locations where activities are performed, the organi-
zational structure for executing the quality assurance program
may take various forms provided that the persons and organi-
zations assigned the quality assurance functions have this
1 While the term “applicant” is used in these criteria, the requirements
are, of course, applicable after such a person has received a license to
construct and operate a nuclear powerplant or a fuel reprocessing plant.
These criteria will also be used for guidance in evaluating the adequacy of
quality assurance programs in use by holders of construction permits and
operating licenses.
D-9
required authority and organizational freedom. Irrespective of
the organizational structure, the individual(s) assigned the
responsibility for assuring effective execution of any portion of
the quality assurance program at any location where activities
subject to this appendix are being performed shall have direct
access to such levels of management as may be necessary to
perform this function.
II. Quality Assurance Program
The applicant shall establish at the earliest practicable
time, consistent with the schedule for accomplishing the activi-
ties, a quality assurance program which complies with the
requirements of this appendix. This program shall be docu-
mented by written policies, procedures, or instructions and shall
be carried out throughout plant life in accordance with those
policies, procedures, or instructions. The applicant shall identi-
fy the structures, systems, and components to be covered by the
quality assurance program and the major organizations
Participating in the program, together with the designated
functions of these organizations. The quality assurance pro-
gram shall provide control over activities affecting the quality of
the identified structures, systems, and components, to an extent,
consistent with their importance to safety. Activities affecting
quality shall be accomplished under suitably controlled condi-
tions. Controlled conditions include the use of appropriate
equipment; suitable environmental conditions for accom-
plishing the activity, such as adequate cleanness; and assurance
that all prerequisites for the given activity have been satisfied.
The program shall take into account the need for special
controls, processes, test equipment, tools, and skills to attain the
required quality, and the need for verification of quality by
inspection and test. The program shall provide for in-
doctrination and training of personnel performing activities
affecting quality as necessary to assure that suitable proficiency
D-10
is achieved and maintained. The applicant shall regularly
review the status and adequacy of the quality assurance pro-
gram. Management of other organizations participating in the
quality assurance program shall regularly review the status and
adequacy of that part of the quality assurance program which
they are executing.
D-11
Commission Policy Statement on
Fitness for Duty of Nuclear
Power Plant Personnel
51 Fed. Reg. 27, 921 (Aug, 4, 1986)
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement.
* * *
Introduction
The Nuclear Regulatory Commission (NRC) recognizes
drug and alcohol abuse problems to be a social, medical, and
safety problem affecting every segment of our society. Given
the pervasiveness of the problem it must be recognized that it
exists to some extent in the nuclear industry. Prudence,
therefore, requires that the Commission consider additional
appropnate measures to provide reasonable assurance that a
person who is under the influence of alcohol or any substance
legal or illegal which affects that person’s ability to perform
duties safely, is not allowed access to a vital area at a nuclear
power plant.
The nuclear power industry, with assistance from programs
developed and coordinated by EEI and the Institute of Nuclear
Power Operations (INPO), has made and is continuing to
make substantia! progress in this area.
x= * *
Policy Statement
The Commission recognizes that the industry, through the
initiatives of the Nuclear Utility Management and Resources
Committee (NUMARC), EEI, and INPO, has made progress
in developing and implementing nuclear utility employee fit-
ness for duty programs. The Commission stresses the impor-
tance of industry’s initiative and wishes to further encourage
such self-improvement.
D-12
Subject to the continued success of industry’s initiatives in
implementing fitness for duty programs and NRC’s ability to
monitor the effectiveness of those programs, the Commission
will refrain from new rulemaking on fitness for duty of nuclear
power pliant personnel for a minimum of 18 months from the
effective date of this Policy Statement. The Commission’s
decision to defer implementation of rulemaking in this area is in
recognition of industry efforts to date and the intent of the
industry to utilize the EEI Guidelines in developing fitness for
duty programs. The Commission will exercise this deference as
long as the industry programs produce the desired results.
However, the Commission continues to be responsible for
evaluating licensee’s efforts in the fitness for duty area to venfy
effectiveness of the industry programs. The Commission will
reassess the possible need for further NRC action based on the
success of those programs during the 18-month penod.
At the Commission’s request, the industry agreed to under-
take a review of the program elements and acceptance criteria
for a fitness for duty program. EEI modified and issued the
revised ““EEI Guideline to Effective Drug and Alcohoi/Fitness
for Duty Policy Development.” Further, INPO enhanced its
performance objectives and criteria for its periodic evaluations
to include appropmate criteria for fitness for duty. Copies of the
documents describing the program elements and cniteria for
fitness for duty programs developed by the industry are pro-
vided to NRC for review and comment.
The NRC will evaluate the effectiveness of utility fitness for
duty programs by its normal review of industry activities,
through reviews of INPO program status and evaluation re-
ports, periodic NRC observation of the conduct of INPO
evaluations, and direct inspections conducted by the NRC’s
Performance Appraisal Teams, Regional Office, and Resident
Inspectors. NRC will also monitor the progress of individual
licensee programs.
D-13
By way of further guidance to licensees, Commission
expectations of licensee programs for fitness for duty of nuclear
power plant personnel may be summanized as follows:
e It is Commission policy that the sale, use, or
possession of alcoholic beverages or illegal drugs within
protected areas at nuclear plant sites is unacceptable.
e It is Commission policy that persons within pro-
tected areas at nuclear power plant sites shall not be under
the influence of any substance, legal or illegal, which
adversely affects their ability to perform their duties in any
way related to safety.
e An acceptable fitness for duty program should at a
minimum include the following essential elements:
(1) A provision that the sale, use, or possession
of illegal drugs within the protected area will result in
immediate revocation of access to vital areas and
discharge from nuclear power plant activities. The use
of alcohol or abuse of legal drugs within the protected
area will result in immediate revocation of access to
vital areas and possible discharge from nuclear power
plant activities.
(2) A provision that any other sale, possession,
or use of illegal drugs will result in immediate revoca-
tion of access to vital areas, mandatory rehabilitation
prior to reinstatement of access, and possible dis-
charge from nuclear power plant activities.
(3) Effective monitoring and testing procedures
to provide reasonable assurance that nuclear power
plant personnel with access to vital areas are fit for
duty.
The industry, by perodic bnefings or other appropriate
methods, is expected to keep the Commission informed on
program status. The NRC may also from time to time ask
individual licensees to provide such information as the Commis-
sion may need to assess program adequacy.
ss *
E-|
Pursuant to Rule 28.1, Petitioner makes the following
statement disclosing parents, subsidiaries (except wholly owned
subsidiaries), and affiliates of Bechtel Construction, Inc. as of
January 15, 1988:
American Bechtel, Inc.
Arabian Bechtel Company Limited
Bechtel American Incorporated
Bechtel Associates Professional Corporation
Bechtel Associates Professional Corporation, (D.C. )
Bechtel Associates Professional Corporation, (Ohio)
Bechtel Associates Professional! Corporation, ( Virginia )
Bechtel Australia Proprietary Limited
Bechtel Canada Engineers Limited
Bechtel Capital Management Corporation
Bechtel Chile S.A.
Bechtel China, Inc.
Bechtel Civil, Inc.
Bechtel Construction, Inc.
Bechtel Constructora, S.A.
Bechtel de Mexico, S.A. de C.V.
Bechtel Development Company
Bechtel do Brasil Construcoas Limitada
Bechtel Eastern Limited
Bechtel Energy Corporation
Bechtel Environmental, Inc.
Bechtel Espana, S.A.
Bechtel Financing Services, Inc.
Bechtel Foreign Sales Corporation
Bechtel Foundation
Bechtel Foundation of Canada
Bechtel France S.A.
Bechtel Group, Inc.
Bechtel, Inc.
E-2
Bechtel Intercontinental Corporation
Bechtel International Constructors, Inc.
Bechtel International, Inc.
Bechtel International Services Corporation
Bechtel Investments, Inc.
Bechtel Leasing Services, Inc.
Bechtel Limited
Bechtel National, Inc.
Bechtel North American Power Corporation
Bechtel Norway A:S.
Bechtel Operating Services Corporation
Bechtel Overseas Corporation
Bechtel Pacific Corporation Limited
Bechtel Personnel & Operational Services Limited
Bechtel Petroleum Development Limited
Bechtel Petroleum Operations, Inc.
Bechtel Power Corporation
Bechtel Quebec Limites
Bechtel Software, Inc.
Bechtel Telecommunications, Inc.
Becnor Construction Company, Ltd.
Becon Construction Company, Inc.
BEFC Corp.
BIC Foreign Sales Corporation
Birch Power Corporation
Cranberry Power Corporation
Eastern Bechtel Corporation
Engineering Management Inc.
Integrated Port Terminals, Inc.
International Bechtel Incorporated
Lakeside Corporation
Mesquite Terminal Corporation
Oak Power Corporation
Offshore Bechtel Exploration Corporation
Overseas Bechtel. Incorporated
E-3
Pacific Bechtel Corporation
Pacific Engineers and Constructors, Ltd.
PMB Systems Engineering, Inc.
PMB Systems Engineering Limited
Saudi Arabian Bechtel Company
Saudi Arabian Bechtel Corporation
Sequoia Ventures Inc.
Sierra Asset Management, Inc.
Uranium Enrichment Associates, Inc.
Waste-Tech Services, Inc.
Welded Construction Company
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.