SECRETARY 

DECISION ITEM: 

TITLE: 

UNITED STATES 

NUCLEAR REGULATORY COMMISSION 

WASHINGTON, D.C. 20555-0001 

June 6, 2016 

COMMISSION VOTING RECORD 

SECY-15-0149 

ROLE OF THIRD-PARTY ARBITRATORS IN LICENSEE 

ACCESS AUTHORIZAflON AND FITNESS-FOR-DUTY 

DETERMINATIONS AT NUCLEAR POWER PLANTS 

The Commission acted on the subject paper as recorded in the Staff Requirements 

Memorandum (SAM) of June 6, 2016. 

This Record contains a summary of voting on this matter together with the individual vote 

sheets, views and comments of the Commission. 

Enclosures: 

1. Voting Summary 

2. Commissioner Vote Sheets 

cc: Chairman Burns 

Commissioner Svinicki 

Commissioner Ostendorff 

Commissioner Baran 

OGC 

EDO 

PDR 

af Acting Secretary of the Commission 
VOTING SUMMARY - SECY-15-0149 

RECORDED VOTES 

NOT 

APPROVED DISAPPROVED ABSTAIN PARTICIPATING COMMENTS DATE 

Chrm. Burns x x x 05/20/16 

Cmr. Svinicki x x 02/17/16 

Cmr. Ostendorff x x 02/26/16 

Cmr. Baran x x 02/05/16 
TO: 

FROM: 

SUBJECT: 

NOTATION VOTE 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

Chairman Burns 

SECY-15-0149: ROLE OF THIRD-PARTY ARBITRATORS IN 

LICENSEE ACCESS AUTHORIZATION AND FITNESS-FORDUTY DETERMINATIONS AT NUCLEAR POWER PLANTS 

Approved X Disapproved X Abstain Not Participating -- --

COMMENTS: Below Attached X None 

I approve in part and disapprove in part the staff's proposal as discussed in the 

attached comments. 

Entered in STARS 

Yes x 20 May 2016 

No DATE 
Chairman Burns's Comments on SECY-15-0149 

Role of Third-Party Arbitrators in Licensee Access Authorization 

and Fitness-For-Duty Determinations at Nuclear Power Plants 

I approve the staff's Option 1 A to proceed with the "normal" rulemaking process to further 

explore the issues raised in the staff's paper and in the divergent comments offered by unions 

and licensees on the topic. My approval of rulemaking initiation does not come without 

reservations. I have yet to be convinced on the merits that a change to our regulations is 

warranted . 

The safety and security of nuclear facilities must remain our paramount concern. This agency 

has always taken very seriously potential security threats, including insider threats, against 

nuclear facilities. But before making a decision on amending our regulations, I would need 

further demonstration that a compelling issue of common defense and security is presented by 

the alleged "gap" or interpretive conundrum in the NRC's regulations with respect to the role 

played by arbitration where allowed under some labor-management contracts, or that some 

means other than rulemaking is inadequate to address the concern.

1 However, in light of the 

NRC staff's stated security concerns, and the fact that proceeding with rulemaking does not 

guarantee any particular outcome -- let alone any outcome at all -- I am willing to let the 

rulemaking process proceed . In my view, this is a case where it is prudent to hear from all 

potentially affected parties in a public process before taking any alternatives off the table and 

making a final decision on how to proceed. 

The rulemaking process affords the staff an opportunity to further complete its analysis of this 

issue through the invaluable inclusion of views from the public, labor unions, industry, and other 

interested stakeholders. Indeed, the history of this issue seems to reflect a circumstance in 

which the interested parties are often talking past one another. For example, in meeting with 

interested stakeholders prior to voting on this matter, I've heard from either side in this debate 

that they have offered approaches that would accommodate the mutual interests of those 

involved but, for one reason or another, those solutions have fallen by the wayside. From my 

standpoint, a facilitated engagement among interested stakeholders would be valuable and, 

indeed, approaching the issues through the techniques of a negotiated rulemaking (see 5 USC 

§§ 561-570) might be worth pursuing. 

In proceeding with rulemaking, the staff should endeavor to ensure that any proposed revisions 

to our regulations are as narrowed in scope as is necessary to ensure the public safety and 

security. To the extent possible, the staff should not unnecessarily preclude arbitration outright 

but should consider whether the NRC's goals can be achieved while still allowing some degree 

of redressability with respect to a licensee's access determinations. Consequently, I agree with 

Commissioner Svinicki that the staff should make specific outreach to potentially affected labor 

organizations regarding the proposed content and timeframe for the proposed rule, in addition to 

its normal outreach efforts. 

Finally, I note that Judge Posner's views in agreeing with the court's denial of rehearing en bane 

in Exelon Generation Co. v. Local 15, /BEW, 682 F.3d 620 (71

h Cir. 2012), have been invoked to 

1 I note that the staff has issued "non-cited" violations in a few instances based on its current interpretive 

approach to the regulations at issue where licensees have followed arbitrators' decisions. Although I have 

questions about the purpose and basis for such actions, I acknowledge that this awkward situation 

warrants at least further exploration through the rulemaking process. 
support arguments regarding the inappropriateness of private arbitration in the circumstances 

involving access authorization. Whether or not one subscribes to those views on private 

arbitration or holds a particular view on the interpretation of the Commission's adoption of its 

rule in 1991 , it is worth noting that Judge Posner argues for public administrative review (i.e, the 

NRC would be directly involved in review of licensee determinations of trustworthiness and 

rel iability), which is not provided under current regulations. The NRC has resisted such an 

approach for a variety of reasons. Are those prepared to eliminate arbitration prepared to adopt 

this alternative and create a more enhanced role for the NRC in reviewing contested licensee 

access decisions? Such a step would appear unwarranted given the experience with the 

system that has largely worked well since its inception, but any further rule on this matter should 

ensure that there is a reasonable and balanced accommodation of interests in access 

determinations. 
TO: 

FROM: 

SUBJECT: 

NOTATION VOTE 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

COMMISSIONER SVINICKI 

SECY-15-0149: ROLE OF THIRD-PARTY ARBITRATORS IN 

LICENSEE ACCESS AUTHORIZATION AND FITNESS-FORDUTY DETERMINATIONS AT NUCLEAR POWER PLANTS 

Approved XX Disapproved Abstain Not Participating -- -- --

COMMENTS: Below Attached XX None 

Entered on "STARS" 

J>ATE 

Yes J_No_ 
Commissioner Svinicki's Comments on SECY-15-0149 

Role of Third-Party Arbitrators in Licensee Access Authorization and Fitness-for-Duty 

Determinations at Nuclear Power Plant 

I approve the staff's recommendation that the agency proceed to rulemaking, which may take 

the form of an expedited rulemaking, for the purpose of developing a proposed rule containing a 

clear requirement that only nuclear power plant licensees may make final access authorization 

(e.g. , unescorted access and fitness-for-duty) determinations. Although the staff may proceed 

under "expedited" rulemaking timeframes, the staff should make specific outreach to potentially 

impacted labor organizations regarding the proposed content and timeframe for the proposed 

rule, including opportunities for public comment, in order to facilitate the input from such entities. 

I have monitored the issues at play here since they were initially litigated in 2009, including the 

subsequent petition for rehearing, filed and denied in 2012. I have considered also the 

thoughtful vote filed by my colleague, Commissioner Baran. Although the issues can be framed 

through many different prisms, I root my consideration of this matter in the Commission's 

obligation, under law, to provide for the common defense and security of the United States in 

matters of nuclear security related to the operation of commercial nuclear power plants. In this 

light, I do not seek to re-litigate whether the questions underlying Exelon v. Local 15, 

International Brotherhood of Electrical Workers were correctly decided by the Court. I accept 

that they were. Rather, the question occurs whether, in light of the c[,rcumstances as we now 

understand them, coupled with the growing numbers of arbitrated and reversed access 

authorizations of which we are aware, and with the specific and contemporary knowledge 

members of this Commission have regarding the capability and intent of the adversaries of this 

Nation, can we - as individuals and as a collective body burdened with this obligation - tolerate 

these trends. I suggest that we cannot. 

As noted by Judge Posner, in his views appended to the denial of the petition for rehearing en 

bane, "I am persuaded that the panel decision is sound and that the criteria for granting 

rehearing en bane have not been satisfied. But the result is disturbing, and while there is 

nothing judges can do without exceeding the proper bounds of our office, Congress and the 

Nuclear Regulatory Commission can do something and one or both of them should." 

Posner goes on: "The safety of nuclear energy facilities cannot be taken for granted ... . An 

errant employee of a nuclear power plant, including a substance abuser who is also a liar, could 

do catastrophic damage .... 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."1 

Our regulations place the burden for protection and defense of a nuclear power plant site on the 

licensee. If that licensee does not have the authority - the ultimate backstop authority - to deny 

unescorted access to individuals the licensee determines to be untrustworthy of that access, 

every aspect of defensive strategy is a chimera. I do not propose that we change the 

accountability residing with licensees. Instead, I suggest that we take action to remedy the 

potential for third-party arbitrators to erect obstacles to this accountability through the 

1 Exelon Generation Co., LLC, v. Local 15, Intern. Broth. ofElec. Workers, AFL-CIO, 682 F.3d 620, 621-

623 (7th Cir. 2012) (Posner, J., concurring). 
development of a rule that will make licensee accountability clear and unambiguous under our 

regulations going forward . 
TO: 

FROM: 

SUBJECT: 

NOTATION VOTE 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

Commissioner Ostendorff 

SECY-15-0149: ROLE OF THIRD-PARTY ARBITRATORS IN 

LICENSEE ACCESS AUTHORIZATION AND FITNESS-FORDUTY DETERMINATIONS AT NUCLEAR POWER PLANTS 

Approved XX Disapproved Abstain Not Participating 

COMMENTS: Below 

Entered in STARS 

Yes 

No 

-- -- --

Attached XX None 

Signa~7' Date 
Commissioner Ostendorff's Comments on SECY-15-0149, 

Role of Third-Party Arbitrators in Licensee Access Authorization and Fitness-for-Duty 

Determinations at Nuclear Power Plants 

I approve the staff's recommendation to pursue an expedited rulemaking to clearly articulate 

that licensees must make final access authorization determinations to ensure the safety of their 

plants and the public. I further approve the staff's recommendation to include in the revised rule 

a robust appeal process for workers whose access authorization is denied or revoked. 

Commissioner Baran has thoughtfully summarized the history of our access authorization 

regulations, which have up to this point allowed for unrestricted arbitration of licensees' access 

authorization determinations. Shortly after we issued a revision to 10 C. F. R. Part 73 in 2009, the 

staff endorsed NEI 03-01 , Revision 3, which prohibits arbitrators from overturning licensees' 

access authorization determinations. And in 2012, the Seventh Circuit Court of Appeals held 

that Exelon is required to arbitrate access authorization determinations with its unionized 

workers. I see rulemaking as the best way to resolve this conflict. 

The Atomic Energy Act vests the NRC with the responsibility for licensing the use of nuclear 

materials in such a way that the public health and safety and common defense and security are 

ensured. We do that by holding our licensees responsible for compliance with our regulations. 

When a third party overturns a licensees' decision, our ability to carry out our responsibility is 

challenged. 

I recognize that there is a tension between protecting the public and protecting employees' 

rights. A nuclear worker's future livelihood can be permanently damaged by an adverse access 

authorization decision. I do not take that lightly and therefore do not advocate for entirely 

removing third parties from negotiations. Due process must be maintained. But knowing what 

we know about today's threat environment and the potential impacts of an insider's malicious 

acts within the protected area of a nuclear power plant, safety and security must be paramount. 

The NRC, licensees, unions, and employees all share the same goal of safety and security, but 

licensees are ultimately responsible for the safety of their facilities and compliance with NRC 

regulations. I agree that rulemaking, which will provide an opportunity for comment on the rule 

and draft guidance, is the best method to ensure that potential security vulnerabilities are 

addressed while at the same time ensuring workers' rights are protected. For the same reasons, 

I approve the staff's recommendation to address third-party review of fitness-for-duty 

determinations in the same rulemaking. 

Page 1 of 1 
TO: 

FROM: 

SUBJECT: 

NOTATION VOTE 

RESPONSE SHEET 

Annette Vietti-Cook, Secretary 

Commissioner Baran 

SECY-15-0149: ROLE OF THIRD-PARTY ARBITRATORS IN 

LICENSEE ACCESS AUTHORIZATION AND FITNESS-FORDUTY DETERMINATIONS AT NUCLEAR POWER PLANTS 

Approved Disapproved X Abstain Not Participating -- -- -- --

COMMENTS: Below 

Entered in STARS 

Yes XX 

No 

Attached X None 

Date 
Commissioner Saran's Comments on SECY-15-0149, 

"Role of Third-Party Arbitrators in Licensee Access Authorization and Fitness-for-Duty 

Determinations at Nuclear Power Plants" 

In this paper, the NRC staff seeks a Commission decision that only licensees can make 

final access authorization and fitness-for-duty determinations for power plant employees. 

Specifically, the staff recommends an expedited rulemaking "that would make clear that only 

licensees can make final access authorization determinations." The staff also presents the 

option of issuing a policy statement to this effect. I disapprove both the staff's recommended 

rulemaking option (Option 1) and the alternative policy statement option (Option 2). 

History of Arbitration of Access Authorization Determinations 

In 1991 , the Commission established a requirement for licensees to have access 

authorization programs for individuals with unescorted access to protected and vital areas of 

nuclear power plants. An access authorization program has three elements: background 

investigation, psychological assessment, and behavioral observation. The "general 

performance objective" set by the Commission is to provide "high assurance that only 

trustworthy and reliable personnel are granted unescorted access." 

The Commission required licensees to put in place procedures to allow an individual 

who is denied unescorted access or has unescorted access revoked to have that decision 

reviewed. In its Statement of Considerations for the 1991 rule, the Commission explained the 

need for a review procedure: 

The effectiveness of the program will depend on the accuracy of the information that 

forms the basis for access authorization decisions and on the perception of the 

licensee's employees that the program is a fair one worthy of their cooperation. The 

review procedures mandated by the rule .. . provide a necessary additional assurance 

that where access is denied there is a sound basis for the decision and that mistaken 

access denials, which would undermine the quality of a licensee's work force and 

thereby counter the interests of safety, will not stand uncorrected. 1 

In response to concerns that workers' rights could be eroded, the Commission stated: "the 

Commission never intended that any review procedure that already exists in a bargaining 

agreement be abandoned." The Commission also explicitly stated that "the rule would allow the 

use of a grievance procedure for review of denials or revocations of access authorizations." 

The Commission went on to explain: "It is not the intent of the Commission to exclude from 

consideration or to require consideration of access authorization issues in the collective 

bargaining process as long as the resolution of these issues is within the limits set by this 

rulemaking." These are unambiguous statements that third-party arbitration of grievances 

provided for in a collective bargaining agreement between a licensee and the union 

representing its employees is allowed under the rule. In response to public comments that "[a] 

third party (i.e. , an independent adjudicator) should not be deciding disputes over access 

authorization," the Commission expressed confidence in the efficacy of the review procedure, 

stating that "if the evidence indicates a proper application of relevant criteria in excluding an 

employee, the review procedure, if utilized, should result in a decision vindicating the 

management action." In short, the Commission was very clear that third-party arbitration of 

1 Final Rule: Access Authorization Program for Nuclear Power Plants, 56 Fed. Reg. 18997, 19002 (April 

25, 1991 ). 

1 
access authorization denials and revocations is permitted by and consistent with NRC 

regulations. 

Third-party arbitration of access authorization determinations was common practice for 

the next two decades. As the Seventh Circuit Court of Appeals explained in a 2012 decision, 

"From 1991 to 2009, the Commission took the unequivocal position that labor arbitrators have 

the power [to review access denial decisions and order unescorted access as a remedy for a 

wrongful denial], and courts agreed."2 The Seventh Circuit held that the 2009 amendments to 

NRC's access authorization regulations did not prohibit arbitration of unescorted access denials 

and revocations. The court persuasively concluded that nothing in the 2009 rulemaking record 

indicated any Commission intent to change the clear policy of allowing arbitrators to review 

denials and revocations of unescorted access. The court found that the changes to the review 

procedure provision merely "established a procedural floor that could be exceeded by providing 

for arbitral review of access decisions." 

In January 2013, the Nuclear Energy Institute filed a petition for rulemaking requesting 

that NRC amend its regulations to prohibit third-party arbitrators from overturning a licensee's 

decision to deny or revoke unescorted access. After NRC published the petition for public 

comment, a significant number of stakeholders and Members of Congress expressed strong 

opposition to the petition. The petition was later withdrawn. 

Now, the NRC staff proposes to reverse the Commission's long-standing position of 

allowing third-party arbitration of access authorization decisions through a rulemaking "to clarify 

that only licensees can make final decisions on access authorization." 

The Role of NRC 

NRC's requirement that licensees provide "high assurance that only trustworthy and 

reliable personnel are granted unescorted access to protected and vital areas of nuclear power 

plants" is a classic performance-based standard. Licensees are legally responsible for 

complying with the requirement, but there are different ways to do so. The fact that licensees 

are responsible for complying with the regulatory requirements does not prevent a licensee from 

establishing a program in which the validity of a licensee's access authorization determination is 

subject to review by a disinterested arbitrator from outside the company. 

And that is what many licensees have opted to do. They entered into collective 

bargaining agreements with employee unions that provide for third-party arbitration of access 

authorization decisions. As the NRC staff acknowledges in the paper, "A majority of licensees 

have generic provisions in their collective bargaining agreements that do not preclude the 

arbitration of licensee access authorization determinations." In its June 2013 comments on the 

NEI petition for rulemaking, the International Brotherhood of Electrical Workers explained: 

Parties must submit to arbitration only those disputes that they have agreed should be 

resolved through arbitration. A licensee is obligated to submit a dispute over access to 

arbitration only because it has agreed in collective bargaining to do so. If a licensee 

believes that certain types of disputes should be excluded from arbitration or that 

2 Exelon Generating Co. v. Local 15, Intern. Broth. of Elec. Workers, AFL-CIO, 676 F.3d. 566, 568 (71

h 

Cir. 2012). 

2 
arbitration over some issues should be limited in scope, that licensee would be free to 

negotiate a contract provision so stating.

3 

Pursuant to labor contracts, arbitration of these issues has been routine for decades. 

There is no reason to believe that every licensee determination that an employee is not 

trustworthy and reliable will always be correct. There is also no reason to believe that a union 

will arbitrate non-meritorious claims on behalf of an employee who would pose a threat to a 

nuclear plant or that a neutral, third-party arbitrator would find in favor of such an employee. On 

the contrary, providing an impartial, third-party review of these management decisions and a 

forum for challenging a licensee determination should increase the reliability of those 

determinations and facilitate compliance with NRC's requirements. 

However, if a licensee is concerned that it has agreed to a review process that could 

result in noncompliance with NRC's access authorization requirements, that licensee can seek 

to address the issue through collective bargaining. It is not appropriate for NRC to interfere with 

the collective bargaining process by re-writing the agreements reached by licensees and 

unions. NRC should not dictate the terms of labor contracts; that's for licensees and unions to 

negotiate. There is no indication that a licensee has attempted to address an access 

authorization arbitration concern in negotiations and failed to reach an agreement acceptable to 

both parties. 

In fact, just the opposite occurred at Arkansas Nuclear One. There, Entergy and IBEW 

Local 647 agreed on a specific provision relating to arbitration of access authorization decisions. 

The clause provides for a grievance procedure tailored to access authorization issues that 

includes the use of "a permanent panel of five neutral arbitrators who have a demonstrated 

record of experience and expertise in fitness for duty and unescorted access authorization 

issues." If management and labor can resolve the issue to their mutual satisfaction at this plant, 

why should NRC start dictating contract terms at other plants? 

The NRC staff argues that "allowing third-party arbitrators to overturn a licensee's 

access authorization determination presents both a safety concern and a security vulnerability" 

because "[a]rbitrators' decisions could result in people that the licensee has already determined 

are not trustworthy and reliable having unescorted access to nuclear equipment and materials." 

But in the rare case in which NRC believes an untrustworthy person with unescorted access 

poses a genuine danger to a plant, the agency can issue an order to ensure safety and security. 

This is unlikely to be burdensome for the agency as there are only a few arbitrations of access 

authorization denials and revocations each year (and not all of those arbitrations result in 

unescorted access being restored or granted). 

To support its recommendation for a rulemaking, the NRC staff points to the 2009 staff 

endorsement of NEI guidance that "clearly states that the access authorization determinations 

of the licensee are final and may not be overturned by any third party." But regulatory guidance 

provides only one acceptable approach to meeting NRC's performance-based access 

authorization requirements. And more importantly, non-binding guidance endorsed by the NRC 

staff cannot displace unambiguous rulemaking language approved by the Commission. When 

the Commission voted to adopt the access authorization requirements and accompanying 

Statement of Considerations in 1991, the Commission was clear that arbitration of access 

decisions was allowed. The staff lacks authority to reverse that determination by endorsing a 

guidance document. 

3 International Brotherhood of Electrical Workers comment (June 5, 2013). 

3 
Conclusion 

For the reasons discussed above, I approve Option 3 to take no action at this time. If 

the staff determines it is necessary, the staff should develop a process to maintain awareness of 

ongoing arbitration of access authorization determinations so that orders can be prepared in any 

case in which Commission intervention is necessary to ensure the safety and security of a 

nuclear power plant. 

4