dissenting.
I respectfully dissent. The district court’s opinion affirming the arbitrator’s award should be reversed, as the arbitrator’s award violates public policy.
The majority finds “the illogie and weakness” of Daniel’s public policy argument to lie in the “unwarranted and unsupported assumption that the NRC actually evaluated, expressly approved, or otherwise decided that the plan in question (the mini-IPAT) complied with NRC regulations * * *.”1 Such an assertion is contrary to the evidence presented before the arbitrator. Gary Pendergraff, Superintendent of Security for Union Electric at the Callaway plant, testified before the arbitrator that the NRC asked to look at Union Electric’s screening program, and after reviewing it “did not have any objections or problems [with] how we were doing things.” The majority opinion also mistates and misconstrues the opinion of the arbitrator.2
Additionally, Daniel’s counsel stated at oral argument before this court that since the grievances were filed in this case, the NRC has reviewed Union Electric’s security plan, and has not objected to it. According to evidence presented by the unions, the mini-IPAT is still being used to screen employees of Union Electric at the Calla-way plant. As noted in the majority opinion, Union Electric committed to the NRC in its security plan that it would use a reliable and valid written personality test to screen employees. Had the NRC found Union Electric to be in violation of this commitment, it could have revoked Union Electric’s operator license. However, even after reviewing Union Electric’s security program, and knowing that Union Electric used the mini-IPAT, the NRC did not and has not withdrawn Union Electric’s license. At the very least, the NRC has implicitly approved of Daniel and Union Electric’s use of the mini-IPAT.
In accordance with the principles set out by the Supreme Court in W.R. Grace & Co. v. Local Union 759, Int’l Union of the United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 764, 103 S.Ct. 2177, *11842182, 76 L.Ed.2d 298 (1983), this court has previously recognized as a well-defined and dominant public policy that the NRC maintains control over the regulation of security matters during the construction of nuclear power plants in order to protect the health and safety of the general public. See Iowa Elec. Light & Power Co. v. Local Union 204 of the Int’l Bhd. of Elec. Workers, 834 F.2d 1424, (8th Cir.1987). In that case, we stated:
From the very beginning of the nuclear power industry, the safety of nuclear power plants has been a matter of public concern. The federal government has been heavily involved in the planning, construction, and operation of nuclear plants since the enactment of the Atomic Energy Act and creation of the Atomic Energy Commission (AEC) in 1954. The NRC, the successor to the AEC, has promulgated volumes of safety rules that govern all nuclear power plants. See, e.g., 42 U.S.C. § 2131-41; 10 C.F.R. pt. 50. Each plant, in turn, develops its own more detailed specifications and regulations in order to obtain and then maintain its federal license. * * * Any violation of any rules must be reported to the NRC; the NRC responds by issuing enforcement penalties against the offending facility.
The Supreme Court has recognized the critical role of this federal safety system for nuclear power plants: “The Commission’s prime area of concern in the licensing context ... is national security, public health, and safety.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 550, 98 S.Ct. 1197, 1215, 55 L.Ed.2d 460 (1978) (citing 42 U.S.C. §§ 2132, 2133, 2201). The “regulatory scheme ... is ‘virtually unique in the degree to which broad responsibility is reposed in the [NRC]....”’ Carstens v. NRC, 742 F.2d 1546, 1551 (D.C.Cir.1984) (quoting Siegel v. AEC, 400 F.2d 778, 783 (D.C.Cir.1968)), cert. denied, 471 U.S. 1136, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985).
Id. at 1428.
The majority opinion flies right in the face of this very recent Eighth Circuit opinion. There is no question but that to allow an arbitrator, who has no apparent experience or expertise in the fields of nuclear safety or psychological testing, to second-guess the validity of security procedures which have been approved by the NRC would thwart such a public policy.
Further, it must be noted that the majority’s opinion fails to consider the practical aspects of this case. As stated by the majority, Daniel was obligated by Union Electric to use Union Electric’s screening procedures or develop its own procedures which met Union Electric’s approval and conformed with ANSI standards. Daniel, in good faith, chose to use the screening procedures which were developed by Union Electric and which were part of Union Electric’s security program approved by the NRC. The unions apparently did not object to the mini-IP AT until after the employees’ test results were known and the grievants were dismissed. At that time, construction at the Callaway plant was nearing completion and nuclear material was being introduced into the plant. At such a point it would not have been possible for Daniel to suspend work until it could develop a new screening test which would be acceptable to the unions, Union Electric and the NRC.
Additionally, the majority is concerned that Daniel could have provided escorted access to those employees who failed the psychological test, rather than dismiss them. This ease concerns the grievances of over 150 employees who were denied unescorted access. Certainly it would not have been a practical or feasible alternative for Daniel to supply escorted access to all of these employees.
For these reasons, I dissent from the majority opinion.
. The majority repeatedly emphasizes its mistaken belief that the NRC has never in any way approved the screening procedures used by Union Electric. For example, the majority states “[tjhe only evaluation of the screening plan was one rigorously tested in the adversary process before the arbitrator and reviewed by the district court and this court.” Further, the majority states "[wjhat is quite clear * * * is that the NRC did not approve the mini-IPAT.”
. The majority mistakenly says that the results of the mini-IPAT could be reproduced by flipping a coin, citing the arbitrator's opinion at 92-94. What the arbitrator says is that the predictive utility of the test over random selection "is not substantial.” The majority also states “we are skeptical whether the NRC would have approved the mini-IPAT, because the mini-IPAT provided for no avenue of appeal by a personal interview, and thus, as the district court noted, did not satisfy the ANSI standards.” The majority implies that ANSI standards require a clinical interview — they do not. Neither the arbitrator nor the district court stated that ANSI standards require an interview.