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Entergy Operations, Inc. v. United Government Security Officers of America International Union

United States Court of Appeals, Eighth Circuit

May 9, 2017

Entergy Operations, Inc. Plaintiff-Appellant
United Government Security Officers of America International Union; United Government Security Officers of America Local 23 Defendants-Appellees

          Submitted: December 13, 2016

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before WOLLMAN, SMITH, [1] and BENTON, Circuit Judges.

          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 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's[2] 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 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 [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 ...

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