CHICAGO (CN) – A 7th Circuit judge bemoaned the “strange and dangerous” lack of oversight over security clearances at nuclear power plants, challenging Congress and the Nuclear Regulatory Commission to enact new policies to address the safety concern.
The statements, penned by well-known Judge Richard Posner, came attached to the court’s refusal to rehear en banc a case concerning mandatory arbitration requirements in a collective bargaining agreement for employees at an Excelon power plant.
As Posner described, the underlying suit involved the discharge of two power plant employees – one for failing a drug and alcohol test and lying about his abuse and a second for lying about his alcohol abuse. Excelon’s Nuclear Security Department determined that the employees’ lies revealed them to be untrustworthy and revoked their access credentials.
The Commission currently does not review grants or denials of security clearance. Companies are licensed to grant clearances and universally claim the right to revoke them without judicial or administrative review.
At unionized nuclear plants collective bargaining agreements frequently provide for third-party arbitration of disputes over whether a worker was properly deprived his access privileges.
The two employees filed grievances with the union seeking reinstatement and return of their clearances. While arbitration was pending, Excelon filed suit. The company sought and won a declaratory judgment that the Nuclear Regulatory Commission’s rules prevent arbitrators from overturning the company’s security clearance revocation decisions.
Excelon had relied primarily on the Commission’s post-9/11 overall of security requirements, which it claimed overturned the prior policy of allowing unions to compel arbitration.
But a three-judge panel of the 7th Circuit reversed, ruling that the Commission’s requirements were at best ambiguous and did not overturn the established policy.
Posner, who was not part of the original three-judge panel, had asked for a response to Excelon’s petition for en banc rehearing. But finding that “there is nothing judges can do without exceeding the proper bounds of our office,” Posner instead used the court’s order to explain his qualms with the clearance system.
“The safety of nuclear energy facilities cannot be taken for granted,” he warned.
Under the current system only company representatives and union arbitrators, not government employees, decide whether security clearance should be granted or revoked.
“The employer should have a right to revoke administrative review of a labor arbitrator’s restoration of a revoked security clearance. Equally an employee claiming to have been wrongfully deprived of his security clearance should have a right to administrative review because the deprivation may bar him from future employment in his chose line of work. But it is the failure to provide public remedies for grants of security clearances that is especially disturbing. An errant employee of a nuclear power plant, including a substance abuser who is also a liar, could do catastrophic damage.”
Posner pointed to the tendency of arbitrators, who must be agreed upon by both parties, to “split the difference” in their awards – giving each side a partial victory in order to ensure that no party will object to their selection in the future – as cause for concern.
“There are enough indications of split-the-difference behavior in labor arbitration to make one worry about the possible tendency of an arbitrator reviewing a nuclear facility’s revocation of an employee’s security clearance to impose a sanction that would enable him to retain a right of unescorted access to the facility even if he were a drug addict, a drunkard, and a congenital liar all rolled up into one.”
Posner went on to suggest that the Commission amend its regulations to prevent arbitrators from resolving disputes over security clearances or establish its own an administrative process of review.
It is time that the Commission, or failing that Congress, instituted administrative review of decisions by private arbitrators granting or denying security clearances to employees of nuclear facilities,” Posner wrote.
“But whatever the correct solution to the problems created by the mysterious absence of government review of decisions involving security clearances for employees of nuclear facilities, it is beyond judicial authority to command.”