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
from United States District Court for the Eastern District of
Arkansas - Little Rock
WOLLMAN, SMITH,  and BENTON, Circuit Judges.
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 decision to
uphold the arbitration award.
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.
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.
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.
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
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.
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."
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 ...