Chicago Tribune Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 495 (N.L.R.B. 1991)

495
304 NLRB No. 62
CHICAGO TRIBUNE CO.
1 On December 12, 1989, Administrative Law Judge Bernard Ries issued the
attached decision. The General Counsel and the Charging Party each filed ex-
ceptions and supporting briefs. The Respondent filed answering briefs to the
General Counsel’s exceptions and to the Charging Party’s exceptions.
The National Labor Relations Board has delegated its authority in this pro-
ceeding to a three-member panel.
The Respondent filed a motion to strike the General Counsel’s exceptions
and supporting brief on the ground that they fail to meet the specificity re-
quirements of Sec. 102.46(b) and (c). We deny the Respondent’s motion. Al-
though the General Counsel’s exceptions and supporting brief do not conform
in all particulars with Sec. 102.46, they are not so deficient as to warrant strik-
ing.
2 In adopting the judge’s ruling that the management-rights clause of the
collective-bargaining agreement privileged the Respondent’s unilateral imple-
mentation of the attendance policy set forth in its Standards of Conduct Em-
ployee Guide (Standards), we reject the Charging Party’s argument that the
policy directly conflicts with the collective-bargaining agreement. As more
fully described in the judge’s decision, the attendance policy provides for a
system of limitations on absences involving varying levels of discipline. The
Charging Party contends that this policy contradicts art. V, sec. 6 of the Gen-
eral Laws of the Printing, Publishing and Media Workers Sector Union (Gen-
eral Laws) which is incorporated into the collective-bargaining agreement and
provides that journeymen shall employ a substitute while absent and shall not
suffer loss of situation or priority standing if a substitute is not available. This
contention, however, ignores art. II, sec. 2 of the collective-bargaining agree-
ment which states that ‘‘the provisions of the Modified Agreement for Consent
Decree (Decree) in the matter known as Chicago Typographical Union No. 16
v. Chicago Tribune Co., No. 86–C–1998 (N.D. Ill.) supersedes any conflicting
provision in this Agreement.’’ The Decree states at par. 9 that ‘‘the Compa-
ny’s composing room employees have no ability to engage a substitute.’’ The
General Laws provision relied on by the Charging Party, therefore, is clearly
superseded by the Decree and the Respondent’s attendance policy, accordingly,
does not conflict with an express term of the collective-bargaining agreement.
3 Member Cracraft agrees with the judge’s finding that the management-
rights clause contained in the collective-bargaining agreement authorizes the
unilateral reservation of the right to discipline employees for failing to abide
by departmental dress and grooming standards. She, therefore, finds it unnec-
essary to pass on the judge’s additional rationale for dismissing this allegation
of the complaint.
Chicago Tribune Company and Chicago Typo-
graphical Union No. 16, Communications
Workers of America, AFL–CIO. Case 13–CA–
28307
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
The issue we address in this decision is whether the
management-rights clause in the collective-bargaining
agreement between the Respondent and the Union au-
thorizes the Respondent’s unilateral implementations of
provisions for drug and alcohol testing and for dis-
cipline for certain off-the-job drug-related conduct.1
The Respondent’s contested conduct involves its im-
plementation of an alcohol and drug abuse policy. All
efforts directed toward creating a safe, drug-free work-
place are of the utmost national concern. Of equal con-
cern, however, is the statutory right of the selected bar-
gaining representative to bargain over mandatory sub-
jects of bargaining and to rely on the stability of the
terms of the agreement it negotiates with an employer
on behalf of the unit employees. These rights, ex-
pressed in Section 8(a)(5) and Section 8(d) of the Act,
are central to promoting our national labor policy of
industrial peace. In finding that the Respondent’s con-
duct is unlawful, we do not discourage the Respondent
from establishing an alcohol and drug-free workplace.
Rather, we encourage the Respondent and the Union to
work together through the collective-bargaining proc-
ess toward that goal.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions as modified, but not to adopt the rec-
ommended Order.
The judge found that the management-rights clause
in the collective-bargaining agreement between the Re-
spondent and the Union authorized the Respondent’s
unilateral implementation of the provisions for drug
and alcohol testing and for discipline for certain off-
the-job drug-related conduct set forth in its Standards
of Conduct Employee Guide (Standards), effective
February 1, 1989. We disagree. We find, instead, that
the drug and alcohol testing provision is an unlawful
midterm modification of the terms and conditions of
employment contained in the collective-bargaining
agreement. We further find that the management-rights
clause in the agreement lacks the specificity to con-
stitute a clear and unmistakable waiver of the right to
bargain about discipline for off-the-job drug-related
employee conduct.
With respect to drug and alcohol testing, the Re-
spondent unilaterally implemented the Standards, effec-
tive February 1, 1989, which contains the following
provisions:
Whenever Management has an ‘‘articulable be-
lief’’ that an employee may be under the influ-
ence of an intoxicant during working hours on
Company property, the employee will be given an
opportunity to explain his/her conduct as part of
the overall investigation process. If the employee
is taking prescription or non-prescription medica-
tion, acceptable proof may be requested. All em-
ployees suspected of being under the influence
will be required to undergo a medical evaluation
and take an alcohol and/or drug test as determined
by the Medical Division. . . .
. . . .
If the employee displays work-related problems
and is not taking prescription or non-prescription
medication, the following procedure should be
strictly followed:
The employee shall be escorted to the Medical
Division and asked to submit to a medical evalua-
tion. The Medical staff will be apprised of the
employee’s behavior, symptoms and all relevant
facts and requested to administer an appropriate
alcohol/drug test. The Medical Division will re-
quest that the employee sign a ‘‘Consent Agree-
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The proviso to the first paragraph of Sec. 8(d) reads as follows:
Provided, That where there is in effect a collective-bargaining contract
covering employees in any industry affecting commerce, the duty to bar-
gain collectively shall also mean that no party to such contract shall ter-
minate or modify such contract, unless the party desiring such termination
or modification—
(1) serves a written notice on the other party to the contract of the pro-
posed termination or modification sixty days prior to the expiration date
thereof, or in the event such contract contains no expiration date, sixty
days prior to the time it is proposed to make such termination or modi-
fication;
(2) offers to meet and confer with the other party for the purpose of
negotiating a new contract or a contract containing the proposed modi-
fications;
(3) notifies the Federal Mediation and Conciliation Service within thirty
days after such notice of the existence of a dispute, and simultaneously
therewith notifies any State or Territorial agency established to mediate
and conciliate disputes within the State or Territory where the dispute
ccurred, provided no agreement has been reached by that time; and
(4) continues in full force and effect, without resorting to strike or
lockout, all the terms and conditions of the existing contract for a period
of sixty days after such notice is given or until the expiration date of such
contract, whichever occurs later.
5 In this regard, the drug and alcohol testing provisions differ from the at-
tendance policy and the corrective action options set forth in the Standards.
The General Laws permit journeymen to use substitutes (see art. V, sec. 6)
and prohibit the use of suspensions (see art. II, sec. 3). However, in contrast
to the subject of physical examinations, provisions on the use of substitutes
and on suspension are made elsewhere in the agreement and therefore super-
sede the General Laws. Thus, as discussed above, the Decree states that com-
posing room employees have no ability to engage a substitute. Similarly, as
the judge found, the management-rights clause in the agreement expressly
grants management the right to suspend employees for just cause. 6 273 NLRB 171, 177 (1984).
ment,’’ agreeing to submit to a drug urine screen
and/or alcohol blood test, as appropriate.
Article XXIV of the collective-bargaining agreement
executed by the parties on January 3, 1989, states:
The General Laws of the Printing, Publishing and
Media Workers Sector Union (formerly Inter-
national Typographical Union) in effect as of the
effective date of this Agreement and not in con-
flict with State or Federal Laws shall govern rela-
tions between the parties on those subjects con-
cerning which no provision is made in this Agree-
ment.
Article II, section 14 of the General Laws referred
to above states: ‘‘No journeyman shall be required to
submit to a physical examination as a condition of em-
ployment.’’
In reviewing these provisions, the judge found that
it could be argued that the drug and alcohol testing
provisions of the Standards conflict with the collective-
bargaining agreement, resulting in an unlawful mid-
term modification of the agreement violative of the
proviso to Section 8(d).4 He reasoned that the General
Laws, which prohibit physical examinations for jour-
neymen, governed the relations between the parties in
this matter because no provision was made in the
agreement on the subject of physical examinations.5
He further reasoned that the drug and alcohol testing
provisions of the Standards might be found in conflict
with the General Laws if there were some indication
in the record of what the General Laws considered to
be a physical examination or of what sort of testing the
Respondent intended to use in cases of suspected alco-
hol or drug abuse. He determined, however, that be-
cause of the uncertainty of what procedures were con-
templated, he could not conclude that the adoption of
drug and alcohol ‘‘tests’’ violates the contractual pro-
scription against ‘‘physical examinations.’’
The Charging Party excepts to the judge’s conclu-
sions on the ground that the Standards calls for spe-
cific procedures which clearly fall within any accepted
definition of a physical examination. We find merit in
this exception.
The Standards refers to a ‘‘medical evaluation’’ by
the medical division and to a ‘‘drug urine screen’’ and
an ‘‘alcohol blood test.’’ At a minimum, therefore, the
Standards contemplates that medically trained person-
nel will evaluate the physical condition of an employee
believed to be under the influence of an intoxicant and
will collect urine and/or blood samples.
We find that these provisions are sufficiently spe-
cific to fall within the contractually prohibited category
of physical examinations. It is common knowledge that
a routine physical examination involves the evaluation
of the physical condition of an individual by medically
trained personnel and may include the collection of
blood and urine samples for laboratory analysis. In-
deed, the Board has treated other similar technical tests
as virtually synonymous with physical examinations. In
Lockheed Shipbuilding Co.,6 the collective-bargaining
agreement provided as follows: ‘‘There shall be no
Doctor’s physical examination . . . except as required
by law . . . .’’ The Respondent argued, inter alia, that
the provision did not preclude pulmonary and
audiometric testing which it had implemented for the
purpose of screening out or disqualifying employees
from employment. The Board, however, adopted the
following conclusion by the administrative law judge:
Physical examinations being a mandatory subject
of bargaining, and the Respondent having failed
to show that the Unions either agreed to or
waived and/or acquiesced in the Respondent’s use
of the pulmonary and audiometric testing program
for the purpose of terminating or refusing to em-
ploy employees, or that the testing program was
in accordance with applicable laws and regula-
tions, the Master Agreement or past practices, it
is found that the Respondent violated Section
8(a)(5) and (1) by implementing the pulmonary
and auditory tests for the purpose of screening
out, or disqualifying employees from employment.
[Footnotes and citation omitted.]
Thus, the Board implicitly assumed that the category
of physical examinations included pulmonary and
audiometric tests.
497CHICAGO TRIBUNE CO.
7 We are aware that the laboratory procedures and conditions for collection
of the sample may differ according to the specific drug urine screen used, and
that these procedures may differ from other urine tests conducted in connec-
tion with routine physical examinations. Any uncertainty generated by such
differences, however, does not preclude a determination that a clause which
bars the general category of physical examinations also bars the general cat-
egory of blood and urine tests.
Our dissenting colleague charges that we have equated the possible compo-
nents of a physical examination with a physical examination and thereby un-
reasonably confused the meaning of these terms. We have committed no such
error. We have merely found that a category includes its component parts. If
the entire category of physical examination is barred, reason requires a finding
that all items within the category, such as blood and urine tests, are also
barred. As noted above, this is not a novel approach. The Board similarly
treated pulmonary and audiometric tests as included in the covered category
of physical examinations in Lockheed Shipbuilding Co., supra. Thus, the ma-
jority’s approach is clearly consistent with Board precedent. Pennsylvania
Power Co., 301 NLRB 1104 (1991), relied on by our dissenting colleague, is
factually inapposite and provides no support for his view in this case. That
case, unlike this one, had no allegation that the implementation of the employ-
er’s drug policy was unlawful, and instead involved simply an information re-
quest in which the Board addressed an employer’s confidentiality argument.
8 We agree with the judge’s finding that although the complaint was not
framed in terms of Sec. 8(d), the matter was fully litigated.
9 295 NLRB 180 (1989).
10 287 NLRB 198 (1987), Supplemental Decision and Order 292 NLRB 249
(1989), enfd. 884 F.2d 1569 (2d Cir. 1989).
11 We note that the case cited by our dissenting colleague as support for
his assertion that employee conduct during nonworking time as it relates to
alcohol and drug use is of concern to unions and employers involves conduct
which occurred during the course of a working day. In New Jersey Bell Tele-
phone Co., 301 NLRB 719 (1991), cable splicers McLellan and Reilly were
working on a Saturday and went to a bar for lunch. They left the company
truck parked outside the bar. They were subsequently suspended for, inter alia,
drinking on the job and being away from the job without permission. We see
little connection between this type of conduct and the conduct regulated by
Continued
Similarly, we find that the General Laws prohibition
of physical examinations includes urine and blood
tests, such that the drug and alcohol testing provisions
of the Standards conflict with the collective-bargaining
agreement and amount to a modification of the agree-
ment.7
As set forth above, the proviso to Section 8(d) re-
quires that when, as here, a collective-bargaining
agreement is in effect, an employer seeking to modify
the terms and conditions contained in the contract must
obtain the union’s consent before implementing the
change.8 We have found that the drug and alcohol test-
ing provisions at issue here constitute a modification of
the agreement. Further, it is undisputed that the Re-
spondent neither sought nor obtained the Union’s con-
sent to this modification. Accordingly, we find that the
Respondent’s unilateral implementation of the drug
and alcohol testing provisions is contrary to the re-
quirements of Section 8(d) of the Act, and, therefore,
constitutes a violation of Section 8(a)(5) and (1) of the
Act.
The collective-bargaining agreement contains no
similar express provision concerning discipline for off-
the-job drug-related activities. This provision of the
Standards must, as the judge found, be analyzed in
light of the management-rights clause. As noted ear-
lier, the judge found that the language in the clause al-
lowing the Respondent to ‘‘establish and enforce rea-
sonable rules and regulations relating to . . . employee
conduct’’ authorized the unilateral implementation of
the provisions concerning discipline for off-the-job
drug-related activities. Contrary to the judge, we find
that the management-rights clause lacks the specificity
to constitute a clear and unmistakable waiver of the
Union’s right to bargain over discipline imposed for
employee conduct away from the job.
The relevant section of the Standards states:
Off-the-job illegal drug activities or alcohol addic-
tion that could have an adverse effect on an em-
ployee’s job performance or that would jeopardize
the safety of other employees, the public, Com-
pany equipment, or the Company’s relations with
the public or its employees is prohibited and will
be grounds for termination of employment.
Off-the-job selling, distributing or manufacturing
illegal drugs by an employee is a dischargeable
offense. Likewise, illegal selling, distribution,
manufacturing of alcohol is also a dischargeable
offense. The arrest for any of these activities will
result in immediate suspension without pay and
lead to termination of employment, regardless of
legal dispositions.
As the judge correctly stated, the starting point for
analyzing the clause at issue here is indisputable: waiv-
er of a statutory right must be ‘‘clear and unmistak-
able.’’ Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983). The Board, in applying this standard,
has repeatedly required specificity for finding a waiver.
Thus, in Johnson-Bateman Co.,9 the Board held that
the management-rights clause permitting issuance of
‘‘company rules’’ was too general to constitute a waiv-
er of the union’s right to bargain about the respond-
ent’s implementation of a drug and alcohol testing re-
quirement. By contrast, in United Technologies
Corp.,10 the Board found the management-rights clause
which allowed the respondent to ‘‘make and apply
rules and regulations for production, discipline, effi-
ciency and safety’’ was sufficiently specific to con-
stitute a waiver of the right to bargain over the elimi-
nation of the third step of the established progressive
discipline procedures for absenteeism.
Applying these principles to the instant case, we
find that the clause allowing the Respondent to make
and enforce reasonable rules governing ‘‘employee
conduct’’ lacks the specificity to constitute a waiver of
the right to bargain over the implementation of dis-
cipline for drug-related conduct occurring when the
employee is not on the job.
Collective-bargaining agreements are the means by
which the parties establish terms and conditions of em-
ployment. As such, they necessarily focus on the work
process.11 It follows that management-rights clauses
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Standards which occurs outside of the workday and away from the work-
place.
Similarly, United Technologies Corp., supra, cited by our dissenting col-
league as supporting a broad waiver here, related to disciplinary policy with
respect to absenteeism, and thus involved conduct which, unlike the conduct
in this case, is clearly work related.
12 The record reveals one instance where the Respondent implemented rules
concerning off-the-job conduct. The Respondent introduced a substance abuse
policy, effective in 1986, which contained provisions concerning off-the-job
drug-related activities. However, we agree with the judge’s findings that the
Union was not afforded adequate notice and opportunity for bargaining about
this policy and that the 1986 policy was significantly narrower than the 1989
Standards. We further note that there appears to have been no discussion of
the 1986 policy during the mediated negotiations for the current collective-bar-
gaining agreement. In these circumstances, we cannot find that in agreeing to
the management-rights clause, the Union clearly and unmistakably waived the
right to bargain about discipline for off-the-job drug-related activities.
typically reserve to management the right to take cer-
tain actions concerning that process. Thus, the manage-
ment-rights clause in the instant case retains the right
to ‘‘direct and control the operations’’ and ‘‘to estab-
lish and enforce reasonable rules and regulations relat-
ing to the operation of its facilities and to employee
conduct.’’
The off-the-job conduct regulated by the Standards,
however, is far removed from the work process. Some
of the regulated conduct involves selling, distributing,
or manufacturing illegal drugs—activity away from the
job which has no direct bearing on job performance.
Further, the Standards provides that arrest for these ac-
tivities will result in immediate suspension and can
lead to discharge regardless of legal dispositions. Thus,
the Standards reaches off-the-job conduct which ulti-
mately could prove to have no connection with illegal
drugs. We find that the language of the management-
rights clause lacks the specificity to warrant the con-
clusion that it authorizes such far-reaching rules gov-
erning conduct away from the workplace. Nor do we
find anything in the bargaining history that warrants
such a conclusion.
Five collective-bargaining agreements executed by
the Respondent and the Union, covering the period
from 1971 to 1992, were submitted into evidence.
None of these agreements regulates employee conduct
away from the job.12 Although the current agreement
is the first to contain a management-rights clause, there
is no express indication in the clause that it extends to
conduct away from the job. Against this background,
and in consideration of the broad reach of the Stand-
ards, we find that the right to regulate employee con-
duct reserved to management in the management-rights
clause does not constitute a clear and unmistakable
waiver by the Union of the statutory right to bargain
about the Respondent’s implementation of discipline
for off-the-job drug-related activities. We, therefore,
find that the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally implementing the provi-
sions for discipline for off-the-job drug-related activi-
ties contained in the Standards.
CONCLUSIONS OF LAW
1. By implementing, without the consent of the
Union, the drug and alcohol testing provisions set forth
in the substance abuse policy of the Standards of Con-
duct Employee Guide, effective February 1, 1989, the
Respondent unilaterally modified that provision of the
collective-bargaining agreement prohibiting physical
examinations for journeymen. The Respondent’s con-
duct constitutes a refusal to bargain within the mean-
ing of Section 8(d) of the Act, and is, therefore, an un-
fair labor practice affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the Act.
2. By unilaterally implementing the provisions for
discipline for off-the-job drug-related conduct set forth
in the substance abuse policy of the Standards of Con-
duct Employee Guide, effective February 1, 1989, the
Respondent engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, and to take certain affirmative actions
designed to effectuate the purposes of the Act. We
shall order the Respondent to rescind the provisions
for drug and alcohol testing and for discipline for off-
the-job drug-related activities set forth in the Standards
of Conduct Employee Guide. We shall further order
the Respondent to bargain collectively with the Union
concerning the provisions for discipline for off-the-job
drug-related conduct set forth in the Standards of Con-
duct Employee Guide.
We shall also order that the Respondent remove
from the files of employees all memoranda, reports, or
other documents resulting from the application of the
drug and alcohol testing provisions and/or the provi-
sions for discipline for off-the-job drug-related activi-
ties set forth in the Standards of Conduct Employee
Guide.
ORDER
The National Labor Relations Board orders that the
Respondent, Chicago Tribune Company, Chicago, Illi-
nois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Implementing the provisions for drug and alco-
hol testing set forth in the Standards of Conduct Em-
ployee Guide, contrary to its existing collective-bar-
gaining agreement with Chicago Typographical Union
No. 16, Communications Workers of America, AFL–
CIO without the consent of the Union.
(b) Unilaterally implementing the provisions for dis-
cipline for off-the-job drug-related activities set forth
in the Standards of Conduct Employee Guide.
499CHICAGO TRIBUNE CO.
13 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(c) In any like or related manner interfering with, re-
straining, or coercing any employee in the exercise of
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the provisions for drug and alcohol test-
ing set forth in the Standards of Conduct Employee
Guide.
(b) Rescind the provisions for discipline for off-the-
job drug-related activities set forth in the Standards of
Conduct Employee Guide.
(c) Remove from the files of unit employees all
memoranda, reports, or other documents resulting from
the implementation of the provisions for drug and alco-
hol testing and for discipline for off-the-job drug-relat-
ed activities set forth in the Standards of Conduct Em-
ployee Guide.
(d) Bargain collectively with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning discipline for off-the-job
drug-related conduct:
All ‘‘current employees’’ in the composing room
as defined in paragraph 1(a) of the Modified
Agreement for Consent Decree in Chicago Typo-
graphical Union No. 16 v. Chicago Tribune Co.,
No. 86–C–1998 (N.D. Ill.), whose names appear
on the list attached to the current collective-bar-
gaining agreement and all those who may in the
future be employed as typographical associates to
perform manual paste-up functions in the compos-
ing room, excluding guards and supervisors as de-
fined in the Act.
(e) Post at its facility in Chicago, Illinois, copies of
the attached notice marked ‘‘Appendix.’’13 Copies of
the notice, on forms provided by the Regional Director
for Region 13, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations not found herein.
MEMBER OVIATT, dissenting.
The administrative law judge found that aspects of
the Respondent’s drug and substance abuse rules of
conduct that were unilaterally instituted during the
term of the collective-bargaining agreement were per-
mitted by the management-rights clause of that agree-
ment. Accordingly, he dismissed the complaint with
respect to those issues and as to other unilateral
changes alleged in the complaint to be unlawful. Be-
cause I find that the administrative law judge properly
interpreted the pertinent contractual provisions, and
that the Union waived its right to bargain about the
disputed rules, I would affirm his determination that
the complaint should be dismissed in its entirety. I
therefore dissent from my colleagues’ conclusion that
the imposition of these rules violated Section 8(a)(5)
and (1).
I. BACKGROUND
The pertinent part of article VI, the management-
rights provision of the current agreement, states that:
‘‘[T]he Company has and remains [retains] exclusively
to itself . . . the exclusive right to . . . establish and
enforce reasonable rules and regulations relating to the
operation of its facilities and to employee conduct
. . . .’’ The discipline and discharge provision of the
agreement, article VII, section 1, provides, among
other things, that the ‘‘foreman shall be judge of an
employee’s . . . general fitness to work for the Com-
pany. However, the fairness of his judgment shall be
subject to review under the Grievance Procedure.’’
This same article also provides, in section 2, that the
foreman may discharge a unit employee ‘‘for violation
of Company rules conspicuously posted . . . .’’
The contract also contains a broad waiver provision,
in article XXII, providing in pertinent part that the
Company and Union
. . . each voluntarily and unqualifiedly waives the
right, and each agrees that the other shall not be
obligated, to bargain collectively with respect to
any subject matter not specifically referred to or
covered in this Agreement and the Modified
Agreement for Consent Decree, even though such
subject or matter may not have been within the
knowledge or contemplation of either or both of
the parties at the time they negotiated or signed
this Agreement.
After the agreement went into effect, the Respondent
unilaterally promulgated ‘‘Standards of Conduct’’ that
included among ‘‘examples’’ of prohibited conduct,
the ‘‘refusal to submit to an alcohol and/or drug test
when requested by the immediate supervisor or man-
agement representative.’’ The Standards also required
that an employee suspected of being under the influ-
ence of an intoxicant undergo a ‘‘medical evaluation’’
and an ‘‘alcohol and/or drug test as determined by the
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 It is interesting to note that the General Counsel made no such contention;
the Charging Party alone made this argument.
2 If anything, the language of the Standards supports the view that ‘‘medical
evaluation’’ is nothing more than the medical division’s evaluating the em-
ployee’s condition solely on the basis of (1) the employee’s conduct, as re-
ported to the medical staff by the employee’s supervisors, and (2) the results
of the tests. Thus, the Standards provides the employee be asked to sign a
‘‘Consent Agreement’’ limited just to ‘‘a drug urine screen and/or alcohol
blood test. . . .’’ The employee’s consent is not sought for a ‘‘physical exam-
ination.’’ Further, as provided in the Standards, after being ‘‘apprised of the
employee’s symptoms, and all relevant facts’’ the medical staff ‘‘will be re-
quested to administer an appropriate alcohol/drug test.’’ The medical staff is
not being requested to administer a ‘‘physical examination,’’ including tests.
Medical Division.’’ In addition, the Standards con-
tained a prohibition of off-the-job ‘‘illegal drug activi-
ties or alcohol addiction’’ which could affect job per-
formance, safety, or ‘‘the Company’s relations with the
public or its employees,’’ and provided that arrest for
drug or alcohol offenses would result in ‘‘immediate
suspension without pay’’ and lead to termination, ‘‘re-
gardless of legal dispositions.’’
In finding that these provisions of the Standards did
not constitute an unlawful midterm modification of the
agreement, the judge relied principally on the quoted
language from the management-rights clause. He rea-
soned that these words related to the very regulation
of employee conduct covered in the Standards. He
found that the waiver of the Union’s right to bargain
contained in the management-rights clause was both
specific enough to cover the provisions of the drug-re-
lated standards and broad enough to encompass the
range of conduct covered in those standards to warrant
a finding that the Respondent did not first have to bar-
gain about those standards. The judge also relied on
the ‘‘Discipline and Discharge’’ provision which, he
noted, gave the foreman the right to discharge an em-
ployee for ‘‘violation of Company rules conspicuously
posted . . . .’’ This, he observed, was an acknowl-
edgement by the parties that the Respondent had the
exclusive right to promulgate and revise rules govern-
ing the activities of its employees, subject to the
Union’s right to challenge the reasonableness of the
rules through the grievance procedure.
My colleagues reverse the judge, however, with re-
spect to the standards on drug testing. They do so be-
cause the Union’s General Laws, which are made a
part of the contract to the extent that ‘‘no provision is
made in’’ the agreement, provide that ‘‘[n]o journey-
man shall be required to submit to a physical examina-
tion as a condition of employment.’’ The majority rea-
sons that the medical evaluation and drug testing in the
Standards is in essence a ‘‘physical examination.’’ The
majority also finds that the management-rights clause
provision governing ‘‘employee conduct’’ is not suffi-
ciently specific to constitute a waiver of the Union’s
right to bargain over discipline for drug-related em-
ployee conduct off the job. In the majority’s view,
‘‘employee conduct’’ in the management-rights provi-
sion refers only to employee conduct while at work. I
disagree.
II. ANALYSIS
A. Drug Testing
In reviewing the allegations of the complaint, I am
mindful of the Board’s recent admonition that: ‘‘To
overlook the pervasive drug problem in this country
and in the workplace, and to disregard the violence
that accompanies that national concern would be unre-
alistic and contrary to national policy.’’ [Footnote
omitted.] Pennsylvania Power Co., 301 NLRB 1104,
1107 (1991). In my experience, unions are often as
much aware of, and concerned about, the impact on
the workplace of drug and substance abuse problems
as are employers. Thus, when a union, as here, enters
into a management-rights provision that permits the
employer to establish ‘‘reasonable rules . . . relating
to . . . employee conduct,’’ and when a union, also as
in this case, agrees to permit a foreman to judge the
‘‘general fitness to work’’ of an employee and to dis-
charge an employee for ‘‘violation of Company rules,’’
the union must have understood this to include those
rules related to drug and substance abuse.
My colleagues, however, conclude that the Respond-
ent violated the Act when it unilaterally promulgated
the drug-testing rules because the contract contains a
prohibition on physical examinations.1 The judge re-
jected reliance on the physical examination prohibition
because the General Counsel had not made a record on
what the Union’s General Laws considered to be a
‘‘physical examination’’ or on what sort of ‘‘medical
evaluation’’ the Respondent intended in cases of sus-
pected alcohol or drug abuse. I agree. In common par-
lance, a ‘‘medical evaluation’’ and urine and blood
tests are not the same as a ‘‘physical examination.’’
What the majority has done is to take possible compo-
nents of a physical examination and to equate them
with a ‘‘physical.’’ In my view, the majority’s analysis
unreasonably stretches and confuses the meaning of
these terms.2
B. Drug-Related Conduct Off the Job
I also disagree with the majority’s observation that
collective-bargaining agreements ‘‘necessarily focus on
the work process,’’ to the exclusion of nonworking
time conduct related to drugs or alcohol that may di-
rectly affect job performance. Nonworking time em-
ployee conduct as it relates to alcohol and drug use is
often of concern both to unions and employers. See,
e.g., New Jersey Bell Telephone Co., 301 NLRB 719
(1991). Particularly is this true of the composing room
employees in this case, whose alertness is critical to
their work. This being so, I find the judge’s analysis
to be correct.
I note also that the language of the agreement—
‘‘reasonable rules’’ concerning ‘‘employee conduct’’—
501CHICAGO TRIBUNE CO.
3 The majority also relies on the fact that the previous five collective-bar-
gaining agreements contained nothing regulating employee conduct away from
the job. The majority concedes, however, that this is the first contract having
a management-rights clause. Of equal importance, the majority does not dis-
pute that, as recited by the judge, the Union’s vice president, Steven Berman,
interpreted the management-rights and waiver provisions, among other things,
to ‘‘wipe out . . . other agreements . . . .’’ Thus, the majority’s reliance on
the absence of any mention of off-duty conduct in prior agreements is ques-
tionable.
1 All dates hereafter refer to 1989, unless otherwise indicated.
2 Certain errors in the transcript have been noted and corrected.
is not limited in any way to on-the-job activities. It is
thus reasonable to infer that the contract’s references
to an employee’s ‘‘general fitness,’’ and to ‘‘reason-
able rules’’ related thereto, include, when it comes to
drug and alcohol abuse, more than on-the-job activity.
In my experience, it is not realistic in these cir-
cumstances to require parties engaged in collective
bargaining first to identify every subject to be covered
in the rules of conduct in order for there to be a waiv-
er of the duty to bargain about matters covered under
those rules. In my opinion, the agreement’s language
waives the Union’s right to bargain about rules cover-
ing an employee’s off-duty conduct as it relates to
drugs and alcohol. See United Technologies Corp., 287
NLRB 198 (1987); LeRoy Machine Co., 147 NLRB
1431, 1432 (1964).3 The majority blinds itself to the
realities of industrial life and gives short shrift to the
Respondent’s earnest efforts to act in consonance with
the national drug policy. I dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT implement the provisions for drug
and alcohol testing contained in the Standards of Con-
duct Employee Guide, contrary to our existing collec-
tive-bargaining agreement with Chicago Typographical
Union No. 16, Communications Workers of America,
AFL–CIO without the consent of the Union.
WE WILL NOT unilaterally implement the provisions
for discipline for off-the-job drug-related activities
contained in the Standards of Conduct Employee
Guide.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the provisions for drug and alcohol
testing contained in the Standards of Conduct Em-
ployee Guide.
WE WILL rescind the provisions for discipline for
off-the-job drug-related activities contained in the
Standards of Conduct Employee Guide.
WE WILL remove from the files of unit employees
all memoranda, reports, or other documents resulting
from the implementation of the provisions for drug and
alcohol testing and for discipline for off-the-job drug-
related activities contained in the Standards of Conduct
Employee Guide.
WE WILL bargain collectively with the Union as the
exclusive representative of the employees in the fol-
lowing appropriate unit concerning discipline for off-
the-job drug-related conduct:
All ‘‘current employees’’ in the composing room
as defined in paragraph 1(a) of the Modified
Agreement for Consent Decree in Chicago Typo-
graphical Union No. 16 v. Chicago Tribune Co.,
No. 86–C–1998 (N.D. Ill.), whose names appear
on the list attached to the current collective-bar-
gaining agreement and all those who may in the
future be employed as typographical associates to
perform manual paste-up functions in the compos-
ing room, excluding guards and supervisors as de-
fined in the Act.
CHICAGO TRIBUNE COMPANY
Emilie F. Fall, Esq., for the General Counsel.
Keltner W. Locke, Esq. (King & Ballow), of Nashville, Ten-
nessee, for the Respondent.
Gail E. Mrozowski, Esq. (Cornfield & Feldman), of Chicago,
Illinois, for the Charging Party.
DECISION
BERNARD RIES, Administrative Law Judge. This case was
tried in Chicago, Illinois, on July 24–26, 1989,1 based on a
charge filed on January 23, and a complaint issued on March
31. The complaint alleges that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by, on or about February 1,
‘‘unilaterally implement[ing] ‘Standards of Conduct’ which
affect terms and conditions of employment’’ in the relevant
bargaining unit, i.e., without affording the Charging Party an
opportunity to negotiate regarding policies relating to five
areas (‘‘substance abuse and drug testing’’; ‘‘attendance and
attendance corrective actions’’; ‘‘progressive discipline’’;
‘‘mandatory overtime’’; and ‘‘dress code’’). The answer de-
nies the complaint in critical aspects.
Briefs were received from all parties on or about October
2. Based on the record and legal precedent, I make the fol-
lowing findings of fact,2 conclusions of law, and rec-
ommendation.
I. FACTS
The Respondent has recognized the Charging Party as the
representative of its composing room employees for many
years, and the two entities have executed a series of basically
similar bargaining agreements, apparently without serious
difficulty; the four contracts in evidence cover the period
January 15, 1971, through January 14, 1983. When the last
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In fact, Respondent’s proposal did not strictly involve the concept of ‘‘pro-
gressive discipline’’; as shown above, it simply enumerated various forms of
discipline which Respondent could, but need not, impose (and would not be
limited to).
contract in this line expired, however, the parties were unable
to conclude negotiations for the next agreement, and in July
1985, the unit employees went on strike.
The record tells us nothing about the substance of the ne-
gotiations prior to the strike, and we do not have a complete
picture of the poststrike negotiations. We do know the fol-
lowing.
After the Respondent partially refused the Union’s offer to
return the employees to work in February 1986, the Union
brought suit in U.S. District Court, contending that a 1975
supplemental agreement required the Respondent to reinstate
all of the employees. In an effort to resolve this and other
formal disputes between the two sides, District Judge Aspen
elicited their agreement to enlist the mediatory efforts of
William J. Usery, Jr.. Between March 1987 and November
1988, the parties met often to bargain for a collective agree-
ment. Virtually all of the ‘‘meetings’’ in fact were conducted
by written communication, with Usery engaging in shuttle di-
plomacy between the two caucuses; there is, accordingly,
nothing in the record in the form of discussions that might
be illuminative of the parties’ intent as to particular portions
of the agreement which was finally signed.
None of the four contracts which preceded the strike con-
tained either a management-rights clause, a zipper clause, or
an abolition-of-past-practices clause. They were nuts-and-
bolts contracts which included few provisions pertaining to
either the scope, nature, or juridical effect of the contracts or
to employer control over the workforce. At this mid-1980’s
juncture in the relationship, however, the Respondent sought
to restructure the contract.
The earliest proposal contained in this record was a com-
plete contract submitted to the Union on June 11, 1987 (G.C.
Exh. 2). While the document preserved many of the provi-
sions contained in the prior agreements, it also introduced a
management-rights clause some two pages in length and
comprising 21 sections, ranging from the unlimited (‘‘The
sole and exclusive rights of management shall include but are
not limited to the following rights: . . . To establish or con-
tinue policies, practices and procedures for the conduct of the
business and, from time to time, to change or abolish such
policies, practices or procedures’’) to the esoteric (‘‘sole and
exclusive right to . . . operate such vending machines as it
may determine and to place them within its plant in such lo-
cations as it may determine’’). Of some interest to us here
were proposed provisions authorizing sole employer discre-
tion ‘‘[t]o make and enforce safety rules and rules governing
the conduct of employees within the plant and for the main-
tenance of discipline’’; ‘‘[t]o suspend, discharge or otherwise
discipline employees for cause and otherwise to take such
measures as management may determine to be necessary for
the orderly, efficient and profitable operation of its busi-
ness’’; and ‘‘to require of any employee at any time a phys-
ical examination . . . to determine said employee’s physical
and mental ability to perform his job assignment efficiently
and safely.’’
Proposed article VI (‘‘Discipline and Discharge’’) recited
that the Company’s ‘‘right to discipline employees for
cause’’ included but was not limited to ‘‘(a) suspension . . .
for not more than four (4) months, (b) reduction in pay . . .
(c) demotion, (d) transfer to another job classification, and
(e) discharge.’’ There followed a provision for imposing a
penalty and then suspending it, thus placing the employee on
‘‘disciplinary probation.’’ Next came a lengthy list of
‘‘causes for discharge’’ (not to be considered exclusive),
which included ‘‘Violation of Company rules,’’ possessing or
using intoxicants or illegal substances on or away from com-
pany property, and ‘‘Unexcused absence and tardiness.’’
Another provision relevant to this case would have re-
quired that ‘‘[e]ach employee covered by this Agreement
shall work overtime when asked, unless he is excused by the
Company’’ and would have made refusal to work overtime
‘‘grounds for discharge or other disciplinary action.’’ Finally,
pertinent to this case was a ‘‘Waiver’’ clause, also referred
to as a ‘‘zipper’’ clause, which will be set out infra.
The Union, on June 12, 1987, made an informal counter-
proposal. In response to Respondent’s management-rights
clause, the Union wrote cryptically, ‘‘Prefer Union’s Man-
agement’s Rights proposal.’’ The record does not disclose
what this refers to, but obviously the Union had made some
earlier stab at such a clause. As for the ‘‘Discipline and Dis-
charge’’ provision, the Union wrote, in part, ‘‘Agree to con-
cept of progressive discipline,3 but have difficulty with list
of items which automatically constitute ‘cause.’’’ Thus, the
Union made no specific objection to such disciplinary actions
as suspensions and demotion, as proposed by Respondent.
With regard to overtime, the Union wrote, in pertinent
part, ‘‘Cannot agree to mandatory OT but agree to a reason-
able standard.’’ What the Union meant by this is unclear.
The four contracts had contained the following, also less than
pellucid, language: ‘‘It is the intention of the Union that em-
ployees shall cooperate with the Office [i.e., management] by
working a reasonable amount of overtime when requested to
do so to meet the requirements of the Office.’’ Finally, the
Union’s response to the ‘‘Waiver’’ proposal was ‘‘OK—with
additional clause proposed by Union—also Union proposal
re: zipper.’’ What the ‘‘additional clause’’ or the ‘‘Union
proposal re: zipper’’ were, we do not know.
The Respondent immediately redrafted its proposals. How-
ever, it made no change in the management-rights clause, the
overtime provision, or the waiver clause. It did, however,
amend its ‘‘discipline and discharge’’ proposal to eliminate
the illustrative list of ‘‘causes for discharge,’’ substituting
therefor, in part, ‘‘The Company shall have the right in its
sole discretion to post work rules and applicable standards of
conduct, the violation of which shall constitute causes for
discipline, up to and including discharge.’’ This language is
reminiscent of a provision which had appeared in the four
preceding contracts under the heading ‘‘Discharges—Dis-
cipline’’:
The foreman may discharge composing room employ-
ees (1) for incompetency; (2) for neglect of duty; (3)
for violation of Office rules conspicuously posted and
which shall in no way abridge the civil rights of em-
ployees or their rights under accepted I.T.U. laws.
Dated copies of Office rules shall be furnished to the
chapel chairman.
The Union came back with a new ‘‘Discharge and Dis-
cipline’’ provision, which would have established a true pro-
503CHICAGO TRIBUNE CO.
4 In responding to the Union’s initial request to delete the clauses, Respond-
ent’s attorney wrote to Usery, ‘‘Deleting the entire management rights clause
(article IV) leaves the International Union’s general laws (article XXIV) as the
controlling authority in many matters that would otherwise be reserved to
management.’’
gressive disciplinary system, with penalties increasing for
each offense. It also would have deleted the proposed posting
of work rules and applicable standards of conduct, and it of-
fered a revised version of the foregoing clause from the pre-
vious contracts:
The company may discharge or discipline employees
for incompetency; for neglect of duty; for violation of
work rules conspicuously posted and which do not in
any other [sic] way abridge employee rights under this
agreement.
With regard to ‘‘Management Rights’’ and ‘‘Waiver,’’ the
Union simply wrote ‘‘Union Proposal 6/12/87.’’ As for
‘‘Overtime,’’ the Union accepted, inter alia, the Company
proposal that ‘‘[o]vertime shall be worked when deemed nec-
essary by the Company,’’ but marked ‘‘Discussion’’ next to
the separate clause making refusal to work overtime grounds
for discipline.
In January 1988, the parties agreed to submit a package,
including an agreement for consent decree and a collective-
bargaining agreement, to the unit members for ratification;
the Union bargaining committee expressly remained neutral
on the question of acceptance. The agreement contained,
inter alia, the laundry list management-rights clause; a ‘‘Dis-
cipline and Discharge’’ article which provided, inter alia, that
the ‘‘disciplinary range will consist of the following: (1) oral
warning; (2) written warning; (3) suspension and (4) dis-
charge’’; mandatory overtime coupled with discipline for re-
fusal; and the waiver clause. The package was rejected by
the union membership.
Subsequently, in June 1988, mediator Usery recommended
to the parties in summary form the basic outline of an agree-
ment. These recommendations included, among others, a
management-rights clause and a waiver clause taken directly
from another agreement in effect at the Tribune which had
resulted from an interest arbitration. Although in subsequent
correspondence the Union sought to delete the recommended
management rights and waiver clause, the Respondent op-
posed such deletions, and the Union thereafter responded by
seeking certain modifications of Usery’s original proposal,
but not again asking for the elimination of those clauses.4
The membership thereafter ratified, and the parties executed
on January 3, 1989, a bargaining agreement which included
such clauses, evidently the ones recommended by Usery.
The pertinent portions of the clauses of the executed con-
tract which the parties refer to on brief follow:
ARTICLE II
PURPOSE
Section 2. This Agreement covers only those matters
specifically contained herein and supersedes all prior
agreements whether express, implied, written or oral
between the Company and the Union, including any let-
ters of interpretation, verbal understandings and past
practices. . . .
. . . .
ARTICLE VI
MANAGEMENT RIGHTS
Except as specifically limited by the express language
of this Agreement and the Modified Agreement for
Consent Decree . . ., the Company has and remains
[sic] exclusively to itself the customary rights, privi-
leges and authority in the exercise of its management
function, including, but not limited to, the exclusive
right to manage, plan, direct and control the operations
and work force, to establish and change existing meth-
ods, to select and hire employees and assign them to
work as needed, to transfer and promote employees, to
establish hours of work, to establish and enforce rea-
sonable rules and regulations relating to the operation
of its facilities and to employee conduct, to suspend,
discipline and discharge regular employees for just
cause and to lay off employees or relieve them from
duty for lack of work or for other proper reasons.
. . . .
ARTICLE VII
DISCIPLINE AND DISCHARGE
Section 1. The foreman shall be judge of an employee’s
competency as a workman and of his/her general fitness
to work for the Company. However, the fairness of his
judgement shall be subject to review under the Griev-
ance Procedure.
Section 2. The foreman may discharge composing room
employees (1) for incompetency; (2) for neglect of
duty; (3) for violation of Company rules conspicuously
posted and which shall in no way abridge the civil
rights of employees or their rights under accepted Print-
ing, Publishing and Media Workers Sector laws. Dated
copies of Company rules shall be furnished to the chap-
el chairperson. . . .
ARTICLE X
SHIFTS, HOURS, AND APPLICABLE RATES
. . . .
Section 9. . . . It is the intention of the Union that em-
ployees shall cooperate with the Company by working
a reasonable amount of overtime when requested to do
so to meet the requirements of the Company. . . .
. . . .
ARTICLE XXII
WAIVER
The parties hereto acknowledge that, during the nego-
tiations that resulted in this Agreement and the Modi-
fied Agreement for Consent Decree, each had the un-
limited right and opportunity to make demands and pro-
posals with respect to all proper subjects of collective
bargaining; and all such subjects have been discussed
and negotiated on; and the agreements contained in this
Agreement and the Modified Agreement for Consent
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Except perhaps for this sort of conduct, the only other identified basis for
discipline in this section which is taken up in the complaint is ‘‘Failure to
abide by departmental dress and grooming standards.’’
Decree were arrived at after the free exercise of such
rights and opportunities. Therefore, the Company and
Union, for the life of this Agreement, each voluntarily
and unqualifiedly waives the right, and each agrees that
the other shall not be obligated, to bargain collectively
with respect to any subject matter not specifically re-
ferred to or covered in this Agreement and the Modi-
fied Agreement for Consent Decree, even though such
subject or matter may not have been within the knowl-
edge or contemplation of either or both of the parties
at the time they negotiated or signed this Agreement.
. . . .
ARTICLE XXIV
GENERAL LAWS
The General Laws of the Printing, Publishing and
Media Workers Sector Union (formerly International
Typographical Union) in effect as of the effective date
of this Agreement and not in conflict with State or Fed-
eral Laws shall govern relations between the parties on
those subjects concerning which no provision is made
in this Agreement.
It should be noted that a provision substantively identical
to the last one appeared in the previous contracts, and copies
of the General Laws were evidently attached to those con-
tracts as they are to the present one. Those laws have in-
cluded, and now include, the sentence, ‘‘Suspension is pro-
hibited as a method of discipline.’’
The record shows that in November and December 1988,
Respondent published and made known to the other unions
with which it bargains a booklet entitled ‘‘Standards of Con-
duct Employee Guide.’’ The purpose of the publication was
to make uniform the substance and applicability of rules
throughout the company. The record further shows that two
days after Respondent and the Charging Party signed their
bargaining agreement, Respondent by letter notified the
president of the Charging Party, August Sallas, that Respond-
ent intended to implement such a code of conduct in the
composing room, thereby making ‘‘minor modifications to
existing company policy,’’ to ‘‘become effective in the Com-
posing Room on February 1, 1989.’’ The letter further stated
that if Sallas had ‘‘any questions or wish[ed] to discuss this
matter in more detail,’’ he should contact Respondent’s labor
relations manager. By letter of January 10, Sallas asked for
a meeting ‘‘to discuss Chicago Tribune Company’s minor
modifications to existing company policies prior to imple-
mentation.’’
Such a meeting was held on January 17. The meeting
opened with Respondent’s attorney James Kulas distributing
copies of the lengthy document to the union representatives.
When the union spokesmen asked for time to study the new
code, Kulas instructed a fellow company representative to
read and explain it. The union agents replied that they need-
ed time to study the rules and asked if Respondent was pre-
pared to negotiate, but Kulas said the meeting was informa-
tional and explanatory only, and there would be no negotia-
tion. In rejecting the Union’s request for another meeting,
Kulas made it clear that the Company would not engage in
substantive negotiations.
On the following 2 days, Kulas and other agents of Re-
spondent met with groups of composing room employees to
explain the new ‘‘Standards of Conduct.’’ The standards be-
came effective in the composing room on February 1. The
Union filed its charge on January 23. On brief, Respondent
does not argue that Respondent indicated to the Union that
it was prepared to engaged in bargaining about the rules, and
the record is clear that Respondent was presenting the Union
with a fait accompli.
The ‘‘Standards’’ consist of 30 pages of occasionally du-
plicative rules and guidelines. The first substantive section,
‘‘Standards of Conduct,’’ lists ‘‘examples’’ of prohibited
conduct, such as discrimination, gambling, neglect of job du-
ties, etc. These examples include ‘‘Refusal to submit to an
alcohol and/or drug test when requested by the immediate su-
pervisor or management representative’’ and to enter or com-
plete a rehabilitation program.5 The next major section,
‘‘Corrective Action Policy,’’ lists a series of disciplinary al-
ternatives, any of which may be instituted ‘‘depending on the
seriousness of the offense,’’ ‘‘either singly or in combina-
tion.’’ The manual identifies these ‘‘corrective options’’—
counseling, verbal warning, written warning, probation, sus-
pension, and termination—and describes in some detail the
methods by which and the circumstances in which such dis-
cipline will be dealt out. The complaint attacks the adoption
of this section under the misnomer of ‘‘progressive dis-
cipline.’’
The following section, entitled ‘‘Attendance Policy,’’ is
also alleged to be unlawfully adopted. It introduces a system
of limitations on absence, tardiness, and early departure.
Based on ‘‘revolving’’ 12-month periods, these violations
(referred to as ‘‘incidents’’) would receive designated levels
of discipline (counseling, verbal warning, written warning,
‘‘Decision Making Leave—5 work days without pay,’’ ‘‘Sus-
pension—10 work days without pay,’’ and termination) for
graduated numbers of ‘‘incidents.’’ Although absences would
not be characterized as ‘‘excused or unexcused, legitimate or
illegitimate,’’ ‘‘the reasons given for the absence’’ is one of
the factors on which ‘‘[e]mphasis shall be placed,’’ which in-
dicates that discretion is involved in deciding whether an
‘‘incident’’ deserves discipline.
The next section, ‘‘Overtime Policy,’’ also complained of
here, provides that overtime work ‘‘is a requirement’’ of the
job; employees ‘‘should expect to work overtime whenever
operational needs require it’’; and employees who refuse to
do so ‘‘will be subject to Corrective Action.’’ While this lan-
guage sounds mandatory, the policy also seems to allow the
exercise of supervisory discretion, by recognizing that some
circumstances, ‘‘such as illness or a family emergency,’’ may
excuse overtime work.
The next, and longest, section (also a complaint allegation)
provides that employees ‘‘suspected of being under the influ-
ence’’ of an intoxicant will be required to undergo a medical
evaluation ‘‘and take an alcohol and/or drug test as deter-
mined by the Medical Division,’’ on pain of suspension and
termination for refusal to do so. When an employee agrees
to submit to testing, he or she ‘‘will be’’ suspended without
pay pending receipt of the test results (which ‘‘typically re-
quire 48 to 72 hours’’), and even if the results are negative,
505CHICAGO TRIBUNE CO.
the employee may be reinstated and compensated only if he
or she had not engaged in any ‘‘serious violation(s) of the
Standards of Conduct.’’ In the event of positive test results,
the employee has 24 hours in which to contact the Employee
Assistance Program and arrange admission to an approved
rehabilitation program; failure to do so may result in termi-
nation. The testing requirements include other procedures, in-
cluding random testing for a 2-year period.
Other provisions in this section relate to procedures in the
event of use, possession, selling, or manufacturing of alcohol
and drugs. There is a further potential (not a requirement) for
testing when employees sustain injuries or cause vehicle ac-
cidents, or when there is a history of ‘‘accidents, near acci-
dents, or accidents that are the fault of the employee.’’ There
are other provisions, including prohibition of off-the-job ‘‘il-
legal drug activities or alcohol addiction’’ which could affect
job performance, safety, or ‘‘the Company’s relations with
the public or its employees,’’ and there is the principle that
‘‘arrest’’ for drug or alcohol offenses ‘‘will’’ result in ‘‘im-
mediate suspension without pay and lead to’’ termination,
‘‘regardless of legal dispositions.’’ Finally, provision is made
for searches of employees and property, including the use of
trained dogs; refusal to submit to a search will result in sus-
pension and may result in termination.
The adoption of the final section, entitled ‘‘Safety Pol-
icy,’’ which sets out a list of safety work practices, is not
alleged to be violative of Section 8(a)(5).
II. ANALYSIS
The most appropriate mode of analysis here seems to be
the discussion, seriatim, of the five topics named in the com-
plaint whose adoption assertedly violated Section 8(a)(5).
A. Substance Abuse and Drug Testing
Although the complaint, by using the above language, ap-
pears to attack the entire ‘‘policy’’ relating to the captioned
matter as it is set out in the Standards of Conduct, on brief,
counsel for General Counsel asks only that an 8(a)(5) viola-
tion be found with respect to the institution of ‘‘drug and al-
cohol testing and discipline for certain off-the-job drug-relat-
ed conduct.’’ Thus, although the bargaining agreement does
not, as does the policy, expressly refer to such subjects as
the ‘‘use or possession’’ of drugs or alcohol during work
time or refusal to submit to searches as dischargeable of-
fenses, the General Counsel appears to be conceding that
management was entitled to promulgate rules pertaining
thereto in the Standards handbook.
Respondent begins its argument on this general issue by
pointing out that in August 1985, after the strike had begun,
Respondent both mailed to and subsequently handed to the
Union’s president at a negotiating meeting a copy of a policy
on ‘‘drug and alcohol abuse.’’ Because the Union did not ob-
ject to the policy, the Respondent contends, when it subse-
quently became effective in 1986, it bound the Union-rep-
resented employees as well as the other employees of Re-
spondent, and when the policy was promulgated as part of
the Standards of Conduct, it did ‘‘not constitute a unilateral
change, but only a restatement of the status quo.’’ There are
reasons for not accepting this argument.
First, the proffer of the policy in 1986, while done at the
bargaining table, was not clearly labeled as a proposal which
management was prepared to put into effect. Instead, the
covering letter stated in part: ‘‘We are considering imple-
menting the attached policy throughout the company. If you
have questions or would like to meet me on this policy,
please contact me by September 1, 1985.’’ Notes of the bar-
gaining session show a very brief and general conversation
about the matter. No further discussion of the policy was
had, management never stated that it had gone beyond ‘‘con-
sidering’’ implementation of the policy, and it was not until
8 months later that the policy was published, as having been
‘‘adopted’’ and applicable to ‘‘all employees,’’ in an in-
house journal, apparently without any prior formal notice to
the Union. In these circumstances, I cannot agree with Re-
spondent that adequate notice and opportunity for bargaining
was afforded.
I do agree, however, that the policy as adopted in 1986
cannot be attacked now as a nullity. But I cannot accept that,
as Respondent asserts, the promulgation of the drug policy
in 1989 constituted merely a ‘‘restatement of the status
quo.’’ For one thing, as General Counsel points out, the 1986
policy was much more circumscribed than that set out in the
Standards of Conduct. The only testing provided by the
former was in the case of employees ‘‘involved in a job-re-
lated accident’’; the 1989 policy authorizes testing of ‘‘all
employees suspected of being under the influence’’ and, as
well, contains a number of other provisions not found in the
earlier edition.
Respondent’s reliance on these rules which preexisted the
1989 agreement might also be argued to be made inappropri-
ate by one provision of that agreement. The briefs devote a
good deal of space to the evidence relating to past practices
(relating to such matters as overtime requirements, types of
discipline, and disciplinary systems) under the earlier bar-
gaining agreements, much of such evidence involving occur-
rences in the 1970’s. After consideration, I question whether
any of this evidence is relevant, except insofar as it might
cast light on the parties’ common understanding of the lan-
guage of the current contract.
As noted, the agreement signed in January 1989 provided
a new item:
This agreement covers only those matters specifically
contained herein and supersedes all prior agreements
whether express, implied, written or oral between the
Company and the Union, including any letters of inter-
pretation, verbal understandings and past practices.
This clause appears to make irrelevant any contentions based
on the experience of the parties prior to January 3, 1989. Re-
spondent introduced evidence of past practices (e.g., the
practice of issuing written warnings) in an effort to show that
the Standards of Conduct effected no material changes in
terms and conditions of employment. General Counsel also
produced experiential evidence to prove the opposite. But if
the foregoing clause were to be read so as to include in the
phrase ‘‘past practices’’ all procedures routinely employed in
the composing room prior to the 1989 agreement, such a
construction would seem to have the effect of nullifying that
history and making the terms of the January 1989 contract
the only terms against which to measure whether the Feb-
ruary Standards of Conduct caused alterations in the existing
conditions of employment.
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The 1986 policy provided for discretionary drug or alcohol testing only in
the event of a ‘‘job-related accident,’’ while the Standards of Conduct require
testing when employees are ‘‘suspected of being under the influence.’’ While
the 1986 policy specifically provided for discipline for ‘‘off-the-job illegal
drug use, possession or sale which adversely affects’’ an employee’s job per-
formance, safety, or Respondent’s reputation, the Standards embellish this by
adding ‘‘alcohol addiction’’ and also making off-the-job ‘‘distributing or man-
ufacturing’’ of drugs and alcohol a ‘‘dischargeable offense.’’ In addition, it ap-
pears that , under the Standards, the mere ‘‘arrest’’ for any any of these activi-
ties might lead to termination, ‘‘regardless of legal dispositions.’’
7 The Board made no reference to the language in the clause regarding the
right to ‘‘discipline or discharge for just cause,’’ unlike the Second Circuit in
United Technologies.
Such an approach would obviously favor General Counsel
and the Charging Party. However, they make no such conten-
tion on brief, accepting, like the Respondent, that the terms
by which to judge alteration are the terms which existed
prior to January 3, 1989. General Counsel makes this posi-
tion specific (e.g., the contention that the corrective action
policy in the Standards of Conduct ‘‘represents a substantial
and material change from the prior disciplinary practice in
the composing room’’). This may be because General Coun-
sel does not regard the pre-January 3 counterparts (or lack
of counterparts) of the Standards as ‘‘past practices.’’ The
phrase seems to have a rather clear meaning, but it is used
in a context that connotes consensuality and does not nec-
essarily imply other existing conditions. Given the General
Counsel’s apparent decision to abjure this interpretation, and
since the phrase is not without ambiguity, I would defer to
the approach adopted by all parties for purposes of this as-
pect of the analysis.
As indicated, the evidence shows that the ‘‘drug and alco-
hol testing and discipline for certain off-the-job drug-related
conduct’’ (the particular rules, as earlier noted, singled out
by General Counsel on brief) announced in the Standards of
Conduct are more extensive than the policy adopted in
1986.6 Despite the foregoing, however, I am inclined to
agree with Respondent that the unilateral implementation of
the substance abuse policy was authorized by the manage-
ment-rights clause, which is a major theme of Respondent’s
position throughout.
The starting point is indisputable: waiver of a statutory
right must be ‘‘clear and unmistakable.’’ Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693, 708 (1983). In making this
assessment, ‘‘[t]he Board looks to a variety of factors, in-
cluding the evidence of contract negotiations, the precise
wording of the relevant contractual provision, and the com-
pleteness of the bargaining agreement.’’ Bancroft-Whitney
Co., 214 NLRB 57 (1974). The quantum of proof necessary
to show that the parties ‘‘clearly and unmistakably’’ agreed
to a waiver is the question presented here.
As Respondent points out on brief, a Board panel (Mem-
ber Johansen dissenting on this point) reversed an adminis-
trative law judge’s decision in United Technologies Corp.,
287 NLRB 198 (1987), and held that a management-func-
tions clause which vested the employer with ‘‘sole right and
responsibility to direct the operations of the company and in
this connection . . . to select, hire, and demote employees,
including the right to make and apply rules and regulations
for production, discipline, efficiency, and safety’’ (emphasis
added by Board), granted the employer the right unilaterally
to alter its established progressive discipline procedures for
absenteeism by eliminating suspension as the third discipli-
nary step. The panel majority recognized a need for some
specificity, but found sufficiently specific the word ‘‘dis-
cipline.’’ Ibid. fn. 4. Concluding further that the evidence re-
garding the bargaining history of the management-rights
clause gave no indication that the contract language was in-
tended to mean ‘‘something other than that which it plainly
states,’’ the panel majority dismissed the complaint.
On review, the Court of Appeals for the Second Circuit
agreed with the Board majority. NLRB v. United Tech-
nologies Corp., 884 F.2d 1569 (2d Cir. 1989). The Court,
while recognizing that ‘‘national labor policy disfavors waiv-
ers of statutory rights by unions’’ (quoting Chesapeake &
Potomac Telephone Co. v. NLRB, 687 F.2d 633, 636 (2d Cir.
1982)), believed that the Board majority correctly held that
the employer’s retention of the right to make rules and regu-
lations for ‘‘production, discipline, efficiency, and safety’’
‘‘granted the company the unilateral right to make changes
in its progressive system of discipline for absenteeism.’’
And, thought the Court, this language, ‘‘taken together’’ with
the company’s right ‘‘to discharge or otherwise discipline
any employee for just cause . . . plainly grants United Tech-
nologies broad authority to make disciplinary rules and im-
pose discipline leading up to and including discharge for
good cause.’’ Id. at 1575.
A more recent case, heavily relied on by the General
Counsel and the Charging Party, is Johnson-Bateman Co.,
295 NLRB 180 (1989) in which the employer unilaterally
adopted a drug/alcohol testing procedure during the course of
a contract. There, the management-rights clause read, in part,
that ‘‘the management of the plant . . . including but not
limited to the right . . . to discipline or discharge for just
cause . . . to issue, enforce and change Company rules [is
reserved to the company].’’ (Emphasis added.) The Board
noted that it had ‘‘repeatedly held that generally worded
management-rights clauses or ‘zipper clauses’ will not be
construed as waivers of statutory bargaining rights.’’ Id. at
184. It cited Suffolk Child Development Center, 277 NLRB
1345, 1350 (1985), which found no waiver by the union of
the right to bargain about changes in medical benefits be-
cause the management-rights clause made ‘‘no specific ref-
erence to employee medical benefits or other terms of em-
ployment.’’ Ibid.
In Johnson-Bateman, the Board held that the clause refer-
ring to the issuance of ‘‘company rules’’ is ‘‘couched in the
most general of terms and makes no reference to any particu-
lar subject areas, much less a specific reference to
drug/alcohol testing’’ and thus did not amount to an ‘‘ex-
press, clear, unequivocal, and unmistakable waiver’’ of the
right to bargain about a unilaterally-adopted rule that em-
ployees would be tested when they sustained injuries.7 The
Board found to be consistent with this holding the case of
LeRoy Machine Co., 147 NLRB 1431 (1964), where it had
concluded that management’s reservation of the right to ‘‘de-
termine the qualifications of employees’’ constituted a union
waiver of the right to bargain about a new rule requiring em-
ployees with poor attendance records to undergo physical ex-
aminations; the distinction between that case and Johnson-
Bateman was said to be the ‘‘degree of specificity of lan-
guage’’ in the LeRoy management-rights clause. Johnson-
Bateman, supra at 185 fn. 26.
It should be clear from the cases that the decision whether
to draw an inference of waiver from the particular language
507CHICAGO TRIBUNE CO.
8 Neither the fact that the Union at first opposed the Respondent’s proferred
clause, but seemed willing to accept some sort of management-rights clause.
and then flatly opposed any such clause, but finally entered a contract contain-
ing one; nor the fact that Respondent eventually agreed to less specificity than
it originally asked for, meet these criteria.
9 Where, as here, membership ratification is a prerequisite to union accept-
ance, an interesting question arises as to how an employer sets about proving
a conscious waiver. Must he produce all voting members to question them
about their subjective understanding of the management rights clause? The
test, I think, must be an objective one, as suggested by the Court in United
Technologies, supra: whether the contract ‘‘plainly grants’’ the authority ar-
gued for.
10 Union Vice President Berman was asked if, when he worked in the Trib-
une composing room, he was aware of any written rules not recited in the bar-
gaining agreement which applied to him, and he identified the ‘‘posted office
rules.’’
of a management-rights clause is not subject to any immu-
table natural laws. Although, as Johnson-Bateman and count-
less other cases have held, an affirmative finding of waiver
can also be derived from bargaining history (which would re-
quire ‘‘the matter at issue to have been fully discussed and
consciously explored during negotiations and the union to
have consciously yielded or clearly and unmistakably waived
its interest in the matter,’’ id. at 185), there is no evidence
here of full discussion and conscious exploration which dem-
onstrates yielding or clear and unmistakable waiver.8 What
legal significance is to be attached to a clause like the
present one, in which Respondent retained the exclusive
rights, inter alia, to ‘‘establish and enforce reasonable rules
and regulations relating to employee conduct [and] to sus-
pend, discipline and discharge regular employees for just
cause?’’ (Emphasis added.) LeRoy Machine, supra, and
United Technologies Corp., supra, would seemingly find this
language specific enough to constitute a waiver of most or
all of the changes alleged to have been unlawfully imple-
mented here. Johnson-Bateman was dealing with language
which was a good deal less precise than that found in the
instant case. The right to ‘‘issue, enforce and change Com-
pany rules’’ is perhaps as vague as this sort of clause can
get. What ‘‘rules’’? Work rules? Conduct rules? Benefit
rules? When, on the other hand, this Union was presented by
mediator Usery with the clause allowing the Respondent to
‘‘establish and enforce reasonable rules and regulations relat-
ing to . . . employee conduct,’’ (followed immediately by
‘‘to suspend, discipline and discharge’’), what could the
Union have believed ‘‘employee conduct’’ to have referred
to if it was not the subject area of employee behavior and
the disciplinary measures necessary to control that behavior?
These parties examined contract language on and off for
over 6 years. I cannot believe that the Union did not recog-
nize the logical and necessary import of these words, much
like the word ‘‘discipline’’ in United Technologies, when it
signed the agreement.9 While it is true that Respondent’s
original management-rights proposal in 1987 had encom-
passed both ‘‘rules governing the conduct of employees
within the plant and for the maintenance of discipline,’’ the
management-rights clause imported by Usery from another
contract must have seemed to Respondent to serve the same
purpose as its own language, and I cannot think that the
Union did not similarly recognize that effect. The words had
to mean something, and that something related to the regula-
tion of employee conduct. The words are specific and, at the
same time, broad. The right to make ‘‘and enforce’’ rules
governing ‘‘employee conduct’’ necessarily entails the right
to make corollary rules implementing and enforcing such
regulations.
I also find some support for this analysis in the fact that
the clause as adopted required any rules and regulations to
be ‘‘reasonable.’’ This word, I believe, clearly connotes an
implication that management would make the rules and the
Union could grieve their reasonableness; in such a context,
it would be unlikely that prior negotiation of the rules was
contemplated.
Similarly, the understanding of the parties may be further
derived from their adoption of the ‘‘Discipline And Dis-
charge’’ provision, which is almost identical to that found in
the preceding contracts, giving the foreman the right to dis-
charge for incompetency, neglect of duty, and ‘‘violation of
Company rules conspicuously posted and which shall in no
way abridge the civil rights of employees or their rights
under accepted Printing, Publishing and Media Workers Sec-
tor Laws. Dated copies of Company rules shall be furnished
to the chapel chairperson.’’ It is perfectly clear that, in agree-
ing to such a provision, the parties were acknowledging the
exclusive right of the Respondent to promulgate and revise
rules governing the activities of the employees, subject only
to certain limitations (conspicuous posting, no abridgement
of named rights, furnishing of dated copies to the chapel
chairperson).10 Ceding such power to the Respondent in this
article very strongly suggests the breadth of the rights in the
management functions clause to ‘‘establish and enforce rea-
sonable rules and regulations relating to . . . employee con-
duct’’ and to ‘‘suspend, discipline and discharge regular em-
ployees.’’
In reaching this conclusion, I have considered an October
4, 1988 letter written by Union Vice President Steven Ber-
man in response to a query by an assistant shop steward re-
garding the effect of the management rights and waiver pro-
visions in the pending proposal. Although Respondent’s brief
stresses only the sentence emphasized below, I believe that
the sentence should be read in context:
These provisions wipe out any past practices, other
agreements and the obligation of employer to negotiate
over major changes in working conditions during the
life of an agreement. The provision states that the par-
ties had the unlimited right and opportunity to make de-
mands and proposals with respect to all proper subjects
of collective bargaining and further each voluntarily
and unqualifiedly waives the right, and each agrees that
the other shall not be obligated, to bargain collectively
with respect to any subject matter not specifically re-
ferred to or covered in this Agreement. In short, if its
not in the contract you don’t have it. I have listed
below some of the items that the Composing Room
members now enjoy, but are not in the proposed Agree-
ment: [a list of benefits, such as life insurance and
scholarships, follows].
As I read what Berman (a lifelong printer, not a lawyer)
wrote, his focus was on the summary sentence: ‘‘In short, if
it’s not in the contract you don’t have it.’’ ‘‘The provision’’
that he addresses appears to be the zipper clause, not the
management-rights clause. One way of saying ‘‘you don’t
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Why Berman distinguished between ‘‘major changes’’ and, presumably,
minor ones, is not found in the record, but the fact that he did so suggests
to me that he was not intending to discuss the statutory obligation to bargain
over changes in terms and conditions. It would be puzzling for Berman to
imply that the duty to bargain obtained as to ‘‘minor’’ changes, but not as
to ‘‘major’’ ones.
12 As correctly stated in General Counsel’s brief:
The Standards of Conduct handbook details a range of ‘‘Corrective Ac-
tion’’ options, ranging in severity from ‘‘counselings’’ and verbal warn-
ings that parallel the prior practice of oral warnings (R. Exh. 7), to termi-
nation of employment. Whereas these options are progressively severe,
the Tribune retains discretion to select any option to deal with an offense,
depending on the severity of the offense, without progressing through the
range.
13 While there is no evidence that ‘‘probation,’’ as such, was a term of dis-
ciplinary art in the past, I agree with counsel for Respondent that the ‘‘final
warnings’’ which had previously been issued could be considered the func-
tional equivalent of probation.
14 The record shows that on that date, after the contract had expired in
1983, the Respondent declared an impasse and posted ‘‘new working condi-
tions,’’ which actually was a draft collective-bargaining agreement containing,
inter alia, the language quoted above.
have it’’ is to note that ‘‘if it’s not in the contract,’’ the em-
ployees cannot ‘‘get it’’ by asking the employer to bargain
about it during the term of the contract.11
B. Attendance and Attendance Corrective Actions
Although the complaint generally alleges the unilateral
adoption of the policies as captioned above to be violative,
General Counsel’s brief submits that the violation to be
found relates to the ‘‘attendance point system.’’
The record shows that the Respondent had maintained in
the past an unstructured and unwritten policy of issuing
issuing verbal and written warnings, or discharging, employ-
ees for absenteeism and tardiness. The Standards of Conduct
which became effective on February 1 establish a schedule
of progressive discipline based on the number of ‘‘incidents’’
incurred by an employee on a ‘‘revolving 12-month basis.’’
The explanation of the policy, however, indicates that the
corrective actions are to be applied with discretion; while
‘‘[a]ll absences from work, tardiness, and early departures
for any reason whatsoever shall be recorded and are part of
the employee’s overall attendance record,’’ ‘‘[e]mphasis
shall [be] placed on the number of absences, the duration of
each absence, and the reasons given for the absence,’’ and
‘‘should it become necessary to impress on an employee that
there is a need to improve his/her attendance to an accept-
able level, the supervisor shall implement the appropriate op-
tion of Attendance Corrective Action Policy.’’ (Emphasis
added.) Thus, it appears that the new policy does not operate
automatically in the event of the occurrences covered, but
rather that the supervisor may take disciplinary action when
he or she deems it to be necessary, much as in the past.
I need not pass on the Respondent’s claim that the change
is not a material one. The attendance point system falls well
within the regulation of ‘‘employee conduct’’ preserved by
the management-rights clause as a management prerogative.
C. Progressive Discipline
As previously noted, the general disciplinary policy adopt-
ed by Respondent is not what would normally be termed a
‘‘progressive discipline’’ system, as alleged in the complaint;
General Counsel recognizes that fact on brief by asking that
the adoption of a ‘‘formal disciplinary system’’ be found un-
lawful.12
While, as discussed, it can be argued that all ‘‘past prac-
tices’’ have been wiped from this slate, it may be worth not-
ing that the record indicates that all of the Standards of Con-
duct ‘‘corrective actions’’ (counseling, verbal warning, writ-
ten warning, probation, suspension without pay, and termi-
nation of employment) appear in the record as forms of dis-
cipline which were used in the composing room in the past.
The Charging Party makes an argument based on the facts
that article XXIV of the agreement provides, ‘‘The General
Laws of the Printing, Publishing and Media Workers Sector
Union . . . shall govern relations between the parties on
those subjects concerning which no provision is made is
made in this Agreement,’’ and article II, section 3, of the
General Laws, states, ‘‘Suspension is prohibited as a method
of discipline.’’ As Respondent points out, however, the man-
agement-rights clause of the new agreement specifically em-
powers Respondent ‘‘to suspend’’ employees for just
cause.13
Although the ‘‘Corrective Action Policy’’ is certainly
more formalized and detailed than the disciplinary proce-
dures applied in the past, by and large it is not a great deal
different than the actual practice. However, a few provisions
(such as ‘‘Whenever an employee is placed on probation for
a second time in a revolving 12-month period, he/she will be
subject to immediate termination’’) do not appear to have
any specific counterparts in past practice, and I cannot say
that the policy is simply a replication of preexisting proce-
dures.
Nonetheless, it appears to me that the ‘‘exclusive right to
. . . establish and enforce reasonable rules and regulations re-
lating to . . . employee conduct’’ must ineluctably have been
understood to include the authority to issue formal (and
grievable) rules setting out the types of discipline which
could be administered.
D. Mandatory Overtime
As executed on January 3, 1989, the bargaining agreement
contained the same provision relating to mandatory overtime
as had the prior contracts: ‘‘It is the intention of the Union
that employees shall cooperate with the Company by work-
ing a reasonable amount of overtime when requested to do
so to meet the requirements of the Company.’’ The General
Counsel argues that the ‘‘practice under the prior contracts
and under the working conditions posted January 15, 1985,14
has always allowed composing room employees to turn down
overtime work completely some of the time.’’ (Emphasis
added.) Although there is some general testimony that, in the
past, employees had been allowed to refuse overtime, it
would appear that they had to offer some excuse in order to
do so. Documentary evidence (see R. Exhs. 14, 15, 16) indi-
cate that the Respondent has taken the consistent position
that this contract provision authorizes it to require employees
to work overtime, and it appears that the Union has at least
once acquiesced (R. Exh. 15: ‘‘It is still the position of the
Union that the issuing of the [warning] letters [for refusing
to work overtime] was unwarranted, considering the overtime
work record of the two machinists.’’ (Emphasis added.))
The Standards of Conduct pertaining to ‘‘Overtime Pol-
icy’’ does not seem to make that policy any more mandatory
than the contract language. It makes clear to employees that
509CHICAGO TRIBUNE CO.
15 Since counsel for General Counsel cites Jacobs, her ‘‘regardless of’’ ref-
erence may simply be a timesaving effort to meld the Jacobs rule and Sec.
8(d).
16 While the complaint is not framed in terms of an 8(d) violation, the case
was plainly tried on that basis, and there is no doubt that the matter was
‘‘fully litigated.’’ NLRB v. Bighorn Beverage Co., 614 F.2d 1238, 1241 (9th
Cir. 1980).
17 General Counsel does not make this argument; the Charging Party’s brief
contains a passing reference to this provision of the General Laws.
overtime is ‘‘a requirement of their jobs,’’ but it also spells
out the existence of an ingredient of reasonableness: the pol-
icy explicitly recognizes that there are circumstances which
can make overtime work onerous for a given employee, but
‘‘[w]hen refusal to work overtime becomes unreasonable,’’
overtime may be compelled.
The basic argument advanced by General Counsel here is
that the policy stated in the Standards of Conduct ‘‘conflicts
with the language of the current collective bargaining agree-
ment’’ and represents a significant and material change in
that it ‘‘establishes mandatory overtime with disciplinary
consequences flowing from each refusal to work overtime,
unlike in the past.’’ I find it difficult to agree with either
statement. Moreover, I am inclined to think, as Respondent
contends, that this particular issue is the sort contemplated by
the Board in NCR Corp., 271 NLRB 1212, 1213 (1984)
(quoting Vickers, Inc., 153 NLRB 561, 570 (1965)):
‘‘[W]hen ‘an employer has a sound arguable basis for ascrib-
ing a particular meaning to his contract and his action is in
accordance with the terms of the contract as he construes it,’
the Board will not enter the dispute to serve the function of
arbitrator in determining which party’s interpretation is cor-
rect.’’ See also Thermo Electron Corp., 287 NLRB 820
(1987).
E. Dress Code
Of the 20 paragraphs listed as ‘‘examples of prohibited be-
havior’’ under the heading ‘‘DISRUPTIVE CONDUCT’’ in the
Standards of Conduct, the complaint names the following
item as violative of Section 8(a)(5): ‘‘Failure to abide by de-
partmental dress and grooming standards.’’
The record shows that the composing room employees
have not been, and are not now, subject to dress and groom-
ing standards. General Counsel nonetheless argues that the
reservation of a right to discipline employees for failing to
abide by standards which may be promulgated some day
‘‘constitutes a unilateral expansion of the management rights
provision . . . amounting to a unilateral mid-term modifica-
tion of that provision.’’ Apart from the effect, as found here,
of the ‘‘employee conduct’’ authority granted by the man-
agement-rights clause, it is difficult to conceive that provi-
sionally making subject to enforcement a nonexistent dress
code constitutes a material change in the terms and condi-
tions of employment of the composing room employees
which could give rise to a bargaining obligation. I would, ac-
cordingly, find no violation based on this sentence.
As discussed, the complaint alleges that the adoption of
various policies, ‘‘without having afforded the Union an op-
portunity to negotiate and bargain,’’ violated Section 8(a)(5).
This statement of the cause of action implies that, had there
been proper notice and bargaining, the Respondent would
have been entitled to make the changes complained of. The
format used here is that customarily found in situations in
which a union is the exclusive bargaining representative, no
contract is in effect, and the employer makes unilateral
changes in the terms of employment. See, e.g., Bay Area
Sealers, 251 NLRB 89, 90 (1980), enfd. in pertinent part 665
F.2d 970 (9th Cir. 1982).
At the end of the brief, however, counsel for General
Counsel advances a separate argument, affecting all five sub-
ject areas of the complaint, that ‘‘the waiver provision in the
current collective bargaining agreement protects both parties
to the agreement from being obligated to bargain during the
term of the contract regarding changes in mandatory subjects
of bargaining regardless of whether the subjects are treated
in the contract . . . unless Respondent’s unilateral changes
are privileged by the management rights provision.’’ Al-
though I have concluded that the changes are so privileged,
I should say that the waiver clause does not appear to shield
the parties from having to bargain about changes in manda-
tory subjects ‘‘regardless of whether the subjects are treated
in the contract.’’ The clause on its face, rather, only pre-
cludes either party from seeking to bargain ‘‘with respect to
any subject matter not specifically referred to or covered’’ in
the agreement; it is the standard response to the principle
adopted in Jacobs Mfg. Co., 94 NLRB 1214 (1951), enfd.
196 F.2d 680 (2d Cir. 1952).
Section 8(d) of the Act, however, does expressly prohibit
insistence on discussing or agreeing to a midterm modifica-
tion of ‘‘the terms and conditions contained in a contract for
a fixed period.’’15 It could be argued here, I think, that Re-
spondent made a misstep, resulting in a violation of the
Act.16
Article XXIV of the January 3, 1989 contract provides (as
did the previous contracts) that the General Laws of the
Union ‘‘shall govern relations between the parties on those
subjects concerning which no provision is made in this
Agreement.’’ The General Laws state, in article II, section
14, ‘‘No journeyman shall be required to submit to a phys-
ical examination as a condition of employment.’’ ‘‘[N]o pro-
vision is made’’ in the January 1989 agreement on the ‘‘sub-
ject’’ of physical examinations. Counsel for Respondent, at-
tempting to show that this General Laws provision was not
adhered to in the past, introduced two letters from the 1970’s
in which management instructed employees that they would
be required to submit to physicals in order to retain their po-
sitions. There is no evidence of compliance with these in-
structions, and I do not view them as effecting a tacit
recission of article II, section 14, of the General Laws.
It could be argued, therefore, that the portions of the
Standards of Conduct which require employees to take alco-
hol and drug tests are in conflict with article XXIV of the
agreement.17 I might be persuaded that this was so if there
was some indication in the record of what the General Laws
considered to be a ‘‘physical examination’’ or of what sort
of testing Respondent intends to use in cases of suspected al-
cohol or drug use. It may be that no procedures are con-
templated which would fall within the normal understanding
of the term ‘‘physical examination.’’
In view of this uncertainty, I can reach no conclusion that
the adoption of ‘‘tests’’ violates the proscription against
‘‘physical examinations.’’
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent Chicago Tribune Company is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Chicago Typographical Union No. 16, Communications
Workers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent has not violated the Act as alleged in the
complaint (and clarified by General Counsel’s brief).
[Recommended Order omitted from publication.]