Inland Container Corp.

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 715 (N.L.R.B. 1990)

INLAND CONTAINER CORP.
Inland Container Corporation and International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO. Case 10-CA-23491
May 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFP AND DEVANEY
On charges filed by the International Association
of Machinists and Aerospace Workers, AFL-CIO,
the General Counsel of the National Labor Rela-
tions Board issued a complaint on February 13,
1989, alleging that the Respondent, Inland Contain-
er Corporation, violated Sections 8(a)(5) and (1),
8(d), and 2(6) and (7) of the National Labor Rela-
tions Act.
The complaint alleges that on or about May 26,
1988, the Respondent unilaterally, i.e., without bar-
gaining and without consent of the Union, imple-
mented a drug testing program for its employees
and thereby unilaterally modified the terms and
conditions of the existing collective-bargaining
agreement. The Respondent filed an answer admit-
ting in part and denying in part the complaint's al-
legations and asserting affirmative defenses.'
On March 13, 1989, the Respondent filed with
the Board a Motion for Summary Judgment and a
supporting memorandum with exhibits. On March
16, 1989, the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the Respondent's motion should not be
granted. On March 20, 1989, the General Counsel
filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record the Board makes the fol-
lowing
Ruling on Motion for Summary Judgment
In its Motion for Summary Judgment and its
supporting memorandum the Respondent contends
that the unfair labor practice allegations should be
deferred to the parties' contractual grievance and
arbitration procedure pursuant to Collyer Insulated
Wire, 192 NLRB 837 (1971), and United Technol-
ogies Corp., 268 NLRB 557 (1984).2
i The complaint alleges, and the answer admits, that the Respondent is
an Employer engaged in commerce within the meaning of Sec 2(6) and
(7) of the Act and that the Union is a labor organization within the mean-
ing of Sec. 2(5) of the Act
2 In its answer to the complaint the Respondent affirmatively contend-
ed that it discussed a controlled substance policy with the Union, that the
Union waived any right to bargain over the policy, and that the com-
plaint should be deferred. The Respondent did not there, and does not
here, affirmatively raise issues decided by Johnson-Bateman Co, 295
NLRB 180 (1989), in which the Boaid held that implementation of a
715
The Respondent contends that the alleged unilat-
eral establishment of a "controlled substance
policy" concerns the implementation of a company
rule, and the collective-bargaining agreement clear-
ly, provides for resolution of disputes arising from
such rules through the grievance and arbitration
procedures. As exhibits to its motion, the Respond-
ent submitted certain documents, including the par-
ties' bargaining agreement and the Company's
rules. The bargaining agreement contains a broad
grievance procedure "as the exclusive method for
the settlement of all grievances involving the inter-
pretation of or compliance with the Agreement,"
culminating in final and binding arbitration. There
are no restrictions on the subject matter of griev-
ances. The bargaining agreement also specifically
incorporates the Company's rules. The incorporat-
ed rules in turn provide:
It is understood that any injustice or inequities
deemed to exist because of the establishment
or application of any such rules shall be sub-
ject to the grievance procedure.
Based on the above the Respondent argues that the
alleged unilateral modification of the bargaining
agreement should be deferred to the grievance and
arbitration provisions.
In response the General Counsel cites the fol-
lowing zipper clause in the bargaining agreement:
This agreement represents the complete and
total agreement between the parties and super-
sedes all previous agreements, understandings,
practices, and customs, whether written or
oral; and there shall be no other agreements,
understandings, practices or customs, unless in
writing and signed by representatives of the
Local Union, International Union, Division
Manager and Vice President Human Re-
sources.
The General Counsel contends that pursuant to the
bargaining agreement the Union must consent to
work rule changes and that the Union never con-
sented to the drug testing policy. The General
Counsel argues that deferral is inappropriate as the
case does not turn on any underlying dispute over
the meaning of the terms of any contract provision.
In opposing the motion, the General Counsel
does not dispute the authenticity of the parties'
labor agreement, the incorporated company rules,
or the controlled substance policy appended to the
Respondent's motion, or contend that the griev-
drug and alcohol testing program for current employees was a mandato-
ry subject of bargaining In its present motion, the Respondent argues
only for deferral,
298 NLRB No. 97
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ance procedure itself limits or prevents full consid-
eration of the complaint allegations. Thus, the Gen-
eral Counsel does not raise any material issues of
fact regarding the appropriateness of deferral.
Rather, the nature of the General Counsel's conten-
tion is that deferral is inappropriate as a matter of
law.
The sole unfair labor practice allegation in the
complaint is that the Respondent unilaterally modi-
fied the terms and conditions of the bargaining
agreement by implementing a substance abuse pro-
gram . The parties' grievance and arbitration proce-
dure is sufficiently broad to encompass the com-
plaint allegations . It is the exclusive method for re-
solving disputes over the interpretation or applica-
tion of the parties' labor agreement. Further, the
contractually incorporated company rules provide
that disputes regarding "the establishment or appli-
cation" of any rules are subject to the grievance
procedure. There is no contention or evidence that
the grievance and arbitration procedure is incapa-
ble of resolving or unlikely to resolve the dispute,
or that the Respondent has impeded access to the
grievance procedure. In these circumstances we
find that, barring any legal impediment, deferral is
appropriate.
The General Counsel's argument that deferral is
inappropriate because the alleged unilateral change
does not turn on a dispute over the meaning of any
specific contract provision is without merit. Al-
though the Board has not previously been present-
ed with the issue of whether to defer allegations in-
volving unilateral implementations of substance
abuse or drug testing programs, the Board has,
from the inception of its deferral policy, deferred
other alleged unilateral changes. to grievance-arbi-
tration. Collyer, supra, itself, deferred in the face of
alleged unilateral changes involving a skilled em-
ployee wage premium, a reassignment of certain
job duties, and an incentive rate increase for some
employees. Further, the Board has deferred alleged
unilateral actions to grievance arbitration even
though no specific contract provisions were in dis-
pute. See E. I. du Pont & Co., 275 NLRB 693
(1985), involving alleged unilateral changes in cer-
tain work schedules; and Standard Oil Co. (Ohio),
254 NLRB 32 (1981), involving an alleged unilater-
al implementation of a comprehensive medical ex-
amination .3 Also the existence of a zipper clause
does not preclude deferral.4 The zipper clause is
one factor for the parties to discuss during griev-
ance procedure meetings or, if the parties fail to
reach accord, for the arbitrator to consider in
making his award.
In conclusion, we find not only that there are no
impediments to deferral, but also that deferral will
fulfill the Act's mandate to foster the practice and
procedure of collective bargaining. Although the
complaint alleges that the Respondent has failed to
meet its bargaining obligation by unilaterally imple-
menting its substance abuse policy, we find that de-
ferral will foster the Act's mandate by requiring
the parties to abide by their agreed-to method of
resolving such disputes through the grievance and
arbitration procedure and by encouraging them to
resolve their dispute through bargaining within the
grievance procedure. Accordingly, we shall grant
the Motion for Summary Judgment and dismiss the
complaint subject to the retention of limited juris-
diction.
ORDER
The Motion for Summary Judgment is granted
and the complaint is dismissed, provided that
Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an appropriate and
timely motion for further consideration on the
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of
this Decision and Order, been either resolved by
amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair
and regular or have reached a result that is repug-
nant to the Act.
3 The General Counsel's citation to Oak Cliff-Golman Baking Co, 207
NLRB 1063 (1973), enfd mem . 505 F 2d 1302 (5th Cir 1974), cert
denied 423 U S 826 (1975), is misplaced . That case held that deferral was
inappropriate not because there was no specific contract provision for the
arbitrator to interpret , but because the unilateral change involved a
wholesale repudiation of wage rates amounting to "a basic repudiation of
the bargaining relationship " (207 NLRB at 1064) In contrast , in the case
now before us there is no contention or evidence that the Respondent has
refused to follow major portions of its bargaining agreement, repudiated
its relationship with the Union , or engaged in other actions amounting to
the total repudiation of the principles of collective bargaining
4 Radioear Corp, 199 NLRB 1161 (1972), supplemental decision 214
NLRB 362 (1974)