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BPS GUARD SERVS. v. INTERNATIONAL UNION

May 3, 1990

BPS GUARD SERVICES, INC., d/b/a BURNS INTERNATIONAL SECURITY SERVICES, INC., Plaintiff,
v.
INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA and its LOCAL 228, Defendants



The opinion of the court was delivered by: BUA

 NICHOLAS J. BUA, UNITED STATES DISTRICT JUDGE

 After an arbitrator ordered the reinstatement of one of plaintiff's former employees who had been discharged for violating a safety regulation, plaintiff brought this action pursuant to § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a). Plaintiff's complaint asks the court to overturn the arbitrator's decision for being violative of public policy. The parties agree on the material facts underlying this action, so they have filed cross motions for summary judgment pursuant to Fed. R. Civ. P. 56(a). For the reasons stated herein, defendants' motion for summary judgment is granted; plaintiff's motion is denied.

 FACTS

 Plaintiff BPS Guard Services, Inc., d/b/a Burns International Security Services, Inc. ("Burns"), provides guard services for Commonwealth Edison's Braidwood Nuclear Generating Station in Braidwood, Illinois. In January 1988, Karen Sullivan was employed by Burns at the Braidwood Station as a nuclear security officer. On January 21-22, 1988, Sullivan was assigned to firewatch duty, a position requiring her to patrol a designated area and remain alert for signs of fire. The firewatch was posted as a substitute for Braidwood's mechanical fire detection system, which was not functioning in the area at that time.

 When Sullivan assumed her firewatch post, she received specific written instruction from Burns not to leave her post without obtaining relief. The "Post Order" she received provided in part: "The firewatch posts are continuous until otherwise directed by supervision. The firewatch will not leave his/her assigned post unless properly relieved or so directed by supervision." Burns' written training materials, which Sullivan had previously received, also emphasized the importance of a guard's duty to remain on her post. In addition, Burns had provided Sullivan with a hand-held, two-way radio so Sullivan could contact her supervisors in case she required relief from her duty. Telephones also were available for that purpose in the area to which Sullivan was assigned.

 Notwithstanding Burns' instructions, on January 22, 1989, Sullivan left her post without permission or relief. She claimed she left her area to seek an aspirin for a headache; she also stated that she had only been away from her post for a few minutes when she encountered a supervisor. As a result of Sullivan's absence from her post, Commonwealth Edison reported a Fire Reporting Deviation pursuant to the regulations of the Nuclear Regulatory Commission ("NRC"). In addition, four days after the incident, Burns discharged Sullivan for leaving her firewatch post. Burns stated the discharge was made pursuant to Category A, Rule 24, of its Employee Code of Conduct, which makes "abandonment or desertion of post without authorized relief" a dischargeable offense.

 After Sullivan's discharge, her union, defendant International Union, United Plant Guard Unions of America Local 228 ("UPGWA"), filed a grievance on her behalf. The grievance was submitted to arbitration pursuant to the collective bargaining agreement between Burns and the UPGWA. On July 6, 1989, the arbitrator ruled in favor of the UPGWA and ordered the reinstatement of Sullivan, with partial back pay. The arbitrator acknowledged the significance of Sullivan's assignment and the seriousness of her failure to remain on her firewatch post as instructed. The arbitrator also conceded that Sullivan's conduct violated Burns' rules and directives. Nevertheless, the arbitrator found that Burns lacked just cause to discharge Sullivan because Burns had not provided her with adequate notice that a brief departure from her post would result in discharge.

 DISCUSSION

 Where parties to a labor contract agree to submit their disputes to arbitration, federal courts generally are reluctant to interfere with the arbitrator's decision. The federal policy favoring the private settlement of labor disputes would be undermined if courts re-examined the merits of every labor conflict resolved by an arbitrator. United Paperworkers International Union v. Misco, Inc., 484 U.S. 29, 36, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987); see also International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Keystone Consolidated Industries, Inc., 782 F.2d 1400, 1402 (7th Cir. 1986). Thus, even if a federal court disagrees with an arbitrator's ruling, or finds the arbitrator's award ambiguous, the court must enforce the award, "as long as the arbitrator's award 'draws its essence from the collective bargaining agreement' and is not merely 'his own brand of industrial justice.'" Misco, 484 U.S. at 36, (quoting Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960)).

 However, where the arbitrator's award violates public policy, the court may refuse to enforce the award. Misco, 484 U.S. at 42-43 (citing W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 103 S. Ct. 2177 (1983)). Unlike issues concerning the merits of the arbitrator's award, where courts must give deference to the arbitrator's findings, the question of public policy is ultimately one for resolution by the courts. Grace, 461 U.S. at 766; E.I. DuPont de Nemours & Co. v. Grasselli Employees Independent Association of East Chicago, 790 F.2d 611, 615 (7th Cir.), cert. denied, 479 U.S. 853, 93 L. Ed. 2d 120, 107 S. Ct. 186 (1986). Nevertheless, the judiciary must remain cautious about overruling an arbitrator's award on public policy grounds. E.I. DuPont, 790 F.2d at 615. A court cannot refuse to enforce an arbitrator's interpretation of a collective bargaining agreement unless the contract as interpreted would violate some "explicit" public policy that is "well defined and dominant." W.R. Grace, 461 U.S. at 766, (quoting Muschany v. United States, 324 U.S. 49, 66, 89 L. Ed. 744, 65 S. Ct. 442 (1945)). Moreover, to justify invalidating an arbitrator's award, the court must rely on public policy which is derived "by reference to the laws and legal precedents and not from general considerations of supposed public interests." Id.

 In the instant case, Burns argues that the arbitrator's award must be overturned pursuant to Grace and Misco. To succeed with such an argument, Burns must first show the existence of a clear public policy established in the laws and legal precedents. Burns must then demonstrate that the arbitrator's award violated that public policy.

 Burns claims that the public policy at issue in this case is one requiring strict adherence to nuclear safety regulations. To demonstrate the existence of such a policy, Burns points to the elaborate federal regulatory scheme governing nuclear safety. Burns argues that the Nuclear Regulatory Commission keeps a tight control over the nuclear industry by strict enforcement of federal safety standards, further evidencing a strong public policy in favor of nuclear safety. In addition, Burns relies on the Eighth Circuit's decision in Iowa Electric Light and Power Co. v. Local Union 204 of the International Brotherhood of Electrical Workers, 834 F.2d 1424 (8th Cir. 1987). In that case, the court held that "there is a well defined and dominant national policy requiring strict adherence to safety rules." Id. at 1427. The court based its finding on "the volumes of safety rules that govern all nuclear power plants" as well as on several Supreme Court cases "recognizing the critical role of this federal safety system for nuclear power plants." Id. at 1428.

 In line with the court in Iowa Electric, this court finds that a clear public policy exists favoring strict adherence to nuclear safety regulations, and that such a policy is firmly rooted in the laws and legal precedents. Although the question of what constitutes public policy is not always answered so easily, this court agrees with the court in Iowa Electric that "nothing could be plainer than the public interest in the ...


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