Entergy Operations v. United Govt. Security Officers , 856 F.3d 561 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-1219
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Entergy Operations, Inc.
lllllllllllllllllllll Plaintiff - Appellant
v.
United Government Security Officers of America International Union; United
Government Security Officers of America Local 23
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: December 13, 2016
Filed: May 9, 2017
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Before WOLLMAN, SMITH,1 and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
Entergy Operations, Inc. (“Entergy”) terminated Michael Phillips—a security
officer at a nuclear power plant—because it thought he could not satisfy a job
1
The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
requirement that he pass a “fit test” for a full-face gas mask. Phillips’s job requires
him to be ready, in coordination with others, to repel an armed chemical attack on the
plant while wearing the mask. But Phillips has chronic folliculitis. If he shaves too
often, his hair follicles become infected or inflamed. Entergy thought this would keep
Phillips from shaving often enough to properly wear the mask. An arbitrator ordered
Phillips reinstated, largely because Entergy never fit-tested Phillips with facial hair
before concluding that it disqualified him from the position. Because Entergy could
have reassigned Phillips to a position that did not require a gas mask, and because the
arbitrator arguably applied Entergy’s collective bargaining agreement, we affirm the
district court’s2 decision to uphold the arbitration award.
I. Background
Arkansas Nuclear One near Russellville, Arkansas, is subject to numerous
federal regulations intended to protect nuclear power plants from “[r]adiological
sabotage” carried out by “[w]ell-trained . . . and dedicated individuals, willing to kill
or be killed” and involving “incapacitating agents and explosives for use as tools of
entry.” 10 C.F.R. § 73.1(a)(1)(i)(A),(D). The Nuclear Regulatory Commission
promulgates these regulations. The Commission sets broad guidelines and tasks each
nuclear-power-plant licensee with developing a plant-specific protection plan. See 10
C.F.R. § 73.55(b)(1). Entergy is the licensee for Arkansas Nuclear One.
Entergy signed a collective bargaining agreement with the United Government
Security Officers of America, Local 23 (“Union”), to provide guard services. The
agreement covers a single category of worker: nuclear security officer. Phillips was
such an officer. After a year on the job, Phillips was ordered to report to the training
department for respirator fit-testing on November 13, 2012. At the time, Phillips had
2
The Honorable Joe J. Volpe, United States Magistrate Judge for the Eastern
District of Arkansas, to whom the case was referred for final disposition by consent
of the parties under 28 U.S.C. § 636(c).
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what Entergy describes as a “full goatee.” Senior Technical Training Instructor David
Rasmussen, relying on federal regulations, told Phillips that he could not be fit-tested
with facial hair.
A week later, Phillips’s doctor diagnosed him with chronic folliculitis. Phillips
saw an Entergy doctor, Dr. Andrew Monfee, in December. Dr. Monfee confirmed the
diagnosis. He told Entergy that Phillips’s condition could be avoided by not shaving
his upper lip and chin, though he could shave often enough to limit his facial hair in
these areas to 3–4mm. Dr. Monfee also opined that these areas of facial hair would
not be in the sealing area of the respirator that Phillips was required to wear. Days
later, Dr. Monfee updated his letter, noting that after speaking with Entergy security
personnel, he now understood that the “inner chin cup” of the respirator is part of the
seal, and that Phillips would not be allowed to have any hair in that area.
Entergy temporarily reassigned Phillips to train new recruits while it tried to
find him an alternative respirator or position. By late January 2013, Entergy had
found neither, and it terminated Phillips.
Phillips filed a grievance and the dispute went to arbitration. In March 2015,
an arbitrator found that Entergy lacked just cause to terminate Phillips. The
arbitrator’s decision turned on two principal facts. First, Entergy never fit-tested
Phillips with 3–4mm of facial hair to see whether he could pass. The arbitrator noted
that Entergy “refused to provide empirical tests by the application of the mask to
[Phillips]’s face . . . . The only manner to determine if [Phillips] can obtain a positive
seal is by an actual fit-test.” Thus, the arbitrator said, Phillips “should be allowed to
undergo a fit-test to lay to rest any argument as to whether or not his condition can
be accommodated through the use of any currently available respirator.” Second, the
arbitrator pointed out that “[t]here are Post assignments at [Arkansas Nuclear One]
that do not require the use of a respirator/mask.” So “[t]he Company position that
obtaining a proper face to facepiece seal on a respirator is an essential function of all
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[Arkansas Nuclear One] Nuclear Security Officers is not supported by the record.”
This finding relied on Security Manager Josh Toben’s testimony that officers
assigned to two particular posts, the Sally Port and the SOCA Port, are not required
to wear a respirator. Toben also testified that the officers assigned to those posts do
not routinely rotate between other posts.
The arbitrator ordered Phillips reinstated with backpay. It also ordered Entergy,
“upon successful completion of respirator fit-testing, [Arkansas Nuclear One]
Tactical Qualification Course and a review of [Phillips’s] diagnosed medical
condition,” to provide Phillips with an acceptable respirator or a reasonable
accommodation. The arbitrator was clear, though, that Phillips had to meet basic
requirements: “[Phillips] should not view this decision as approval to continuously
remain unshaven. He is reminded herein that he must meet the annual respirator fit-
testing and Tactical Qualification Course requirements.”
Entergy sued to vacate the award on the grounds that it violated public policy
and that the arbitrator exceeded his authority. The district court granted summary
judgment to the Union, which represents Phillips in this litigation. The district court
concluded that it could not rule in Entergy’s favor “without some evidence to show
Mr. Phillips’s medical condition prevents him from properly wearing his respirator.”
Because Entergy did not fit-test Phillips, the court could not find any regulatory
violation, and therefore it could not find that the award violated public policy. The
court mentioned, but did not address in detail, Entergy’s alternative argument that the
arbitrator exceeded his authority.
II. Discussion
A. Public Policy
We review de novo the district court’s decision to uphold the arbitrator’s
award. Homestake Mining Co. v. United Steelworkers of Am., 153 F.3d 678, 680 (8th
Cir. 1998). We accept the facts as found by the arbitrator, but we review his legal
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conclusions de novo to determine whether the award violates public policy. Iowa
Elec. Light & Power Co. v. Local Union 204 of the Int’l Brotherhood of Elec.
Workers, 834 F.2d 1424, 1427 (8th Cir. 1987). Only a “well defined and dominant”
public policy arising from “laws and legal precedents” will trump an arbitration
award—“general considerations of supposed public interests” are not enough. W.R.
Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum
& Plastic Workers, 461 U.S. 757, 766 (1983) (quoting Muschany v. United States,
324 U.S. 49, 66 (1945)). And in employment cases, the question is not whether the
employee’s underlying actions violated public policy, but whether his reinstatement
will. E. Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 62–63 (2000).
Entergy contends that federal nuclear powerplant regulations establish public
policy governing facial hair and respirator use. The following is an overview of the
relevant regulations. One covers general interference with a respirator’s seal:
The licensee shall ensure that no objects, materials or substances, such
as facial hair, or any conditions that interfere with the face—facepiece
seal or valve function, and that are under the control of the respirator
wearer, are present between the skin of the wearer’s face and the sealing
surface of a tight-fitting respirator facepiece.
10 C.F.R. § 20.1703(h) (2012). Another speaks more clearly to facial hair:
The employer shall not permit respirators with tight-fitting facepieces
to be worn by employees who have . . . [f]acial hair that comes between
the sealing surface of the facepiece and the face or that interferes with
valve function . . . .
29 C.F.R. § 1910.134(g)(1)(A) (2012). An appendix to that regulation specifies how
fit-tests are to be done—or rather are not to be done:
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The test shall not be conducted if there is any hair growth between the
skin and the facepiece sealing surface, such as stubble beard growth,
beard, mustache or sideburns which cross that respirator sealing surface.
29 C.F.R. § 1910.134, App. A, Pt. I A.9. And one of the Commissions’s regulatory
guides—which is non-binding but nonetheless gives the Commission’s view—is even
more direct:
Anything in the face-to-facepiece seal area of a tight-fitting respirator
that is under the control of the respirator user is prohibited by 10 CFR
20.1703(h). . . . The list of prohibited materials includes (but is not
necessarily limited to) facial hair of any kind in the seal area (the worker
must be clean-shaven) . . . .
Nuclear Regulatory Commission, Regulatory Guide 8.15, § 6.2 (1999).
Entergy argues that these regulations prohibit fit-testing Phillips with 3–4mm
of facial hair on his chin. We need not decide whether fit-testing Phillips with facial
hair would violate federal law. If Entergy may employ Phillips in a post that does not
legally require a respirator, then the respirator/facial hair conflict disappears. The
arbitrator found such a post: “[O]fficers assigned to the Sally Port or the SOCA Port
are not required to wear a respirator.” The officers assigned to these posts are serving
not as an “armed responder,” but as an “armed security officer.” According to the
arbitrator’s findings, if the plant were attacked, “those officers assigned to either the
Sally Port or the SOCA Port would remain at the respective Port Post.” The officers
at these posts do not routinely rotate among other posts.
Entergy contends that these two non-respirator posts are too intertwined with
the armed-responder posts for this to be a workable solution. There are two problems
with this argument. The first is that to adopt Entergy’s position, we would have to
review and overturn the arbitrator’s fact findings, which we may not do. See Iowa
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Elec. Light & Power Co., 834 F.2d at 1427. The arbitration testimony, moreover,
supports the arbitrator’s conclusions. Security Manager Toben testified as follows:
Q. Are there duties that security officers do that do not require an
armed response?
A. There are armed security officers and armed responders. I’ll be
fairly general . . . .
So in general armed responders are responsible to stay on
site, which is in the protected area, and are required to have a gas
mask. Armed security officers are another portion of our strategy
that can be outside of the protected area and don’t have to always
have a gas mask. They need to have one readily available.
We have people working, like I’m sure you know, in the
sally port that don’t have to have a gas mask.
Asked whether an officer working at the Sally Port or the SOCA Port would stay
there during an attack, Toben answered: “They would stay there.” The reason, Toben
made clear, is that “the guys at the sally port aren’t necessarily part of the integral
[response] strategy necessary to implement.” (Toben seems to have been referring to
the written response strategy that Entergy is required to submit to the Commission.)
It is true that Toben said there would be institutional pressure to join the fight, but
that is not the same as a legal pressure, which is the concern of public policy.
The second problem with Entergy’s argument is that the difficulties it asserts
are not matters of federal law, but of Entergy practice. Entergy has not argued that its
own practice—that is, not requiring officers at the Sally and SOCA ports to have
respirators—violates federal law. And at oral argument, Entergy conceded that the
alleged need for all officers to be interchangeable rather than assigned to particular
posts arises from the parties’ bargaining agreement, not from federal law. Asked
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whether there is a federal regulation that requires all of Entergy’s security officers to
have essentially the same respirator requirements, counsel for Entergy answered: “I
don’t believe there’s anything that specific; it’s just the manner in which we’re set
up.” Entergy noted that it could, consistent with federal law, have light-duty positions
that do not require a respirator.
Entergy also seizes on the arbitrator’s apparently contradictory findings about
the respirator requirement. Before finding that certain posts did not require a
respirator, the arbitrator found that all nuclear security officers at the plant must be
given respirators, must be able to quickly put them on, and must be able to provide
an armed response while wearing them. This finding, however, does not contradict
the arbitrator’s alternative-post finding. The arbitrator made this finding in the
background section of his opinion, while discussing the training required of all
officers. All Entergy officers undergo the same training, but they do not carry out the
same duties. Phillips, as the arbitrator found, can shave for a fit-test, and presumably
can meet the non-respirator training requirements (no one argues otherwise).
Phillips’s facial hair becomes a problem if continued respirator use is required. But
if there is a post that Phillips can man without continued use of a tight-fitting
respirator—and on this record we must conclude that there is—then Entergy will not
violate federal law by placing Phillips in that post. This might not be Entergy’s
preference, but it agreed to have an arbitrator resolve this issue, and it has not
persuaded us that its own staffing practices violate federal law.
B. Arbitrator’s Authority
Entergy also argues that the arbitrator exceeded his authority. A party making
this argument bears a heavy burden. Oxford Health Plans LLC v. Sutter, 133 S. Ct.
2064, 2068 (2013). Entergy bargained for the arbitrator’s interpretation of its
contract. If the arbitrator even arguably interpreted and applied the agreement, then
we must uphold the award. Id. The narrow exception to this rule is when the arbitrator
“‘act[s] outside the scope of his contractually delegated authority’—issuing an award
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that ‘simply reflect[s] [his] own notions of [economic] justice’ rather than ‘draw[ing]
its essence from the contract.’” Id. (alterations original) (quoting E. Associated Coal
Corp., 531 U.S. at 62)). To put it another way, the arbitrator cannot ignore or amend
the parties’ agreement. Excel Corp. v. United Food & Commercial Workers Int’l
Union, 102 F.3d 1464, 1468 (8th Cir. 1996).
Entergy first contends that the arbitrator exceeded his authority by requiring
Entergy to violate federal regulations. But as we noted above, the arbitrator did not
do so. Next Entergy argues that the arbitrator required Entergy to disregard the
bargaining agreement’s testing-and-training provision. This provision, according to
Entergy, allows Entergy to require industry-standard—and legally-required—testing
and training. The agreement, though, speaks of testing and training only in general,
and Entergy has not shown that respirator testing and training are required for all
positions, particularly when not relevant to the position. Entergy also argues that the
arbitrator ordered Phillips reinstated to a position that does not exist. Yet this
argument contradicts the arbitrator’s finding that an alternative position did exist, and
we must accept that finding.
Entergy’s remaining arguments focus on the alleged divergence between the
bargaining agreement’s single job category and the arbitrator’s findings about
multiple, different posts. According to Entergy, the agreement does not contemplate
permanent placement in the Sally or SOCA ports, and the arbitrator’s award therefore
forces Entergy to create a new position. Entergy correctly points out that the
bargaining agreement envisions one broad job category, but Entergy’s actual practice
established differences between various posts. The arbitrator did not alter or
contradict the bargaining agreement by relying on Entergy’s actual practice in staffing
the posts. (Entergy does not argue that its own practice is inconsistent with the
agreement.) Also, the arbitrator was discussing the implications of placing Phillips
at the Sally or SOCA ports in the context of the bargaining agreement’s
accommodation provision. The arbitrator therefore did not stray outside his authority
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to interpret and apply the contract. The award was within the range of possibilities
that Entergy bargained for.
III. Conclusion
Accordingly, we affirm the district court’s judgment.
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