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International Brotherhood of Electrical Workers Local Union 2150 v. Nextera Energy Point Beach, LLC

United States District Court, E.D. Wisconsin

November 30, 2016

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 2150, Plaintiff,
v.
NEXTERA ENERGY POINT BEACH LLC, Defendant.

          DECISION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DOC. 28) AND GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DOC. 29)

          C.N. CLEVERT, JR. U.S. DISTRICT JUDGE

         The International Brotherhood of Electrical Workers Local 2150 (“IBEW”) brought this action against NextEra Energy Point Beach, LLC claiming that NextEra improperly refused to submit to arbitration a grievance IBEW filed on behalf of two NextEra employees. NextEra maintains that the grievance, relating to access to its nuclear energy facility, is outside the scope of the parties' collective bargaining agreement, and that it is not required to address the grievance through arbitration.

         The parties filed cross-motions for summary judgment prior to a Seventh Circuit decision in a closely related case involving the same parties, the same issues, and similar facts. See Int'l Bhd. of Elec. Workers Local 2150 v. NextEra Energy Point Beach, LLC, 762 F.3d 592 (7th Cir. 2014). After that case was decided in favor of IBEW, the court denied the prior motions and directed the parties to file new motions in light of the new decision.

         FACTS

         IBEW is a labor organization that represents certain employees of NextEra for purposes of collective bargaining. IBEW maintains offices in Menomonee Falls, Wisconsin, within this judicial district. NextEra owns and operates the Point Beach Nuclear Power Plant, a two-unit commercial nuclear energy generating facility in Two Rivers, Wisconsin, within this judicial district. NextEra is an employer within an industry affecting commerce as defined in the Labor-Management Relations Act, 29 U.S.C. §151 et seq.

         In September 2007, NextEra acquired the Point Beach facility from Wisconsin Electric Power Company (“WE Energies”) and as successor to WE Energies assumed the collective bargaining agreements between IBEW and WE Energies. IBEW represents four bargaining units at the Point Beach facility, each of which is covered by a separate collective bargaining agreement. The “Blue Book” is the collective bargaining agreement between NextEra and IBEW that has applied to the bargaining unit that established the terms and conditions of employment applicable to the employees at issue in this case, Michael Walker and Clyde Engelbrecht. In 2004, IBEW and WE Energies had entered the agreement constituting the “2004-2007 Blue Book.” NextEra assumed the 2004-2007 Blue Book when it acquired Point Beach from WE Energies.

         Article XVII of the 2004-2007 Blue Book contained a multi-step dispute resolution procedure by which the parties addressed grievances. The procedure provided for final and binding arbitration of a dispute “not satisfactorily resolved as described in [the Grievance Procedure] and [involving] compliance with the terms and conditions of this Agreement.”

         In 2006, IBEW and WE Energies submitted to arbitration a dispute concerning an employee whose unescorted access[1] had been revoked by WE Energies and who was consequently terminated. Arbitrator Suntrup defined the issue submitted for resolution as whether WE Energies' decision to revoke the grievant's unescorted access-to-work status was substantively arbitrable under the parties' agreement. Arbitrator Suntrup analyzed the language of the 2004-2007 Blue Book, and in so doing reproduced and relied on the text of the following sections of Article XVII-Grievance Procedure: section 17.1(1)(A) (Step 1), section 17.1(3)(A), (B) (Step 3), and section 17.1(4) (Step 4). Arbitrator Suntrup also reproduced and relied on the text of Article XVIII-Method of Arbitration, Sections 18.1, 18.1(2) and 18.1(3). Arbitrator Suntrup determined (in the “2006 Suntrup Award”) that the issue of revocation of unescorted access at Point Beach was not arbitrable under the parties' agreement and, as a result, that he had no jurisdiction over the issue of the loss of unescorted access.

         Following expiration of the 2004-2007 Blue Book, IBEW and NextEra negotiated and entered three successor collective bargaining agreements, the most recent of which is effective for the period of 2013-2016. At no time during negotiations over the terms of the three successor Blue Book collective bargaining agreements following issuance of the 2006 Suntrup Award did IBEW propose any terms to provide that unescorted-access decisions be subject to arbitration or propose terms or changes from the 2004-2007 Blue Book to address, rescind, or modify the effect of the 2006 Suntrup Award.

         The collective bargaining agreement at issue in this lawsuit is the Blue Book that was in effect from August 16, 2010, to September 15, 2013 (the “2010-2013 Blue Book”). Steps 1, 3, and 4 of Article 17-Grievance Procedure contained in the 2010-2013 Blue Book were identical to the provisions of the 2004-2007 Blue Book that Arbitrator Suntrup reproduced and relied upon. Similarly, sections 18.1, 18.1(2) and 18.1(3) of Article 18-Method of Arbitration in the 2010-2013 Blue Book were materially identical[2] to the same provisions in the 2004-2007 Blue Book that Arbitrator Suntrup reproduced and relied upon.

         Article 8-Management Rights of the 2010-2013 Blue Book stated:

The right to employ, layoff, release, re-employ, promote, demote, transfer, discipline, and discharge are reserved by and shall be vested exclusively in the Company, except as modified by the terms of this Agreement. The management of the property and corporate affairs are reserved by and shall be vested exclusively in the Company. The Company shall have the right to determine who it shall employ, how many persons it will employ or retain, the work they shall perform and the manner in which they shall do their work, the way they shall deport themselves while on the Company's property, the character of organization required for the most effective performance of the work, together with the right to exercise full control and discipline in the interest of good service and the proper conduct of its business.
Article 11-Discipline of the 2010-2013 Blue Book stated:
In the matter of discipline including discharge, charges brought against an employee shall be specific and shall promptly be called to the employee's attention. The Company may, as it deems appropriate and without prejudice to the rights of any involved party, temporarily suspend an employee pending completion of its investigation into a disciplinary matter. If upon completion of the investigation the charges are not sustained, the employee shall have his/her record cleared of such charges and, in the case of loss of wage because of temporary suspension, shall receive reimbursement for such loss. Discipline involving disciplinary layoff or discharge shall not be administered until the employee has been given an opportunity of presenting his/her case at a review meeting, at which the Company will disclose its findings of the investigation to date. Such review meeting must involve the appropriate official of the Company and a representative designated by the L.U. 2150 office before a discharge or disciplinary layoff is administered. An employee's seniority rights shall not be permanently impaired because of disciplinary layoff. In those matters of discipline in which a formal record of the disciplinary action is prepared for placement in the disciplined employee's personnel file, a copy of such formal record shall be given to the disciplined employee, the steward, the Unit Chairperson, and the Union office.
Members of the Union are not to be reprimanded within hearing of others.

         The 2010-2013 Blue Book contained a four-step procedure for filing a grievance, outlined in Article 17 of the agreement, as well as procedures for seeking and proceeding with arbitration, outlined in Articles 17 and 18. Article 17-Grievance Procedure provided, in relevant part:

         Step 1

A. In order to foster the most harmonious relationships between employees and their supervisors, it is mutually agreed that potential grievances and other employee problems relating to the employee's job performance, assignment of work, overtime, or other matters which may arise from day to day shall be promptly discussed between the employees involved and their immediate supervisors, with or without a Union representative present. It shall be the supervisor's responsibility to promptly schedule any meeting necessary to discuss such potential grievances and problems employees may bring to their attention.
B. If the matter is not satisfactorily resolved as described in Item A above and is to be processed as a grievance, the employee involved and the steward shall . . . prepare a written grievance . . . [that] . . . should provide specific facts about the problem and stipulate the provision (if any) of the Labor Agreement alleged to have been violated.
C. The steward will inform the person to whom the supervisor reports of the Union's intent to pursue the grievance. This person will promptly hold a meeting to hear the grievance and, following an investigation, will issue a ...

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