Johnson-Bateman Co.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 180 (N.L.R.B. 1989)

180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Johnson-Bateman Company and International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO, District Lodge 120, Local Lodge
1047. Cases 31-CA-16299 and 31-CA-16578
June 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN , CRACRAFT, HIGGINS, AND
DEVANEY
On November 25, 1987, Administrative Law
Judge Gerald A. Wacknov issued the attached de-
cision . The General Counsel and the Respondent
each filed exceptions , supporting briefs, and briefs
in answer to each other 's exceptions . The Respond-
ent also filed a request for oral argument.'
The Board has considered the decision and the
record in light of the exceptions , briefs, and oral
argument , and has decided to affirm the judge's
rulings , findings, and conclusions as modified and
to adopt the recommended Order as modified.
1. FACTS
The Respondent manufactures concrete pipe.
The Union represents the Respondent's production
and maintenance employees . The parties have had
collective-bargaining agreements since 1960. The
current agreement is for the period August 1, 1986-
July' 31, 1989 , which period encompasses all the
events material to this case . Three provisions of
this contract are relevant to the issues presented:
Section 3 : Management 's Rights
.1 The management of the plant , direction of
the working forces, and work affairs of the
Company, including but not limited to the
right . . . to discipline or discharge for just
cause . . . to issue , enforce and change Com-
pany rules [is reserved to the Company] . . . .
Thus, the Company reserves and retains, soley
[sic] and exclusively , all of the rights, privi-
leges and prerogatives which it would have in
1 The Respondent 's request for oral argument was granted Oral argu-
ment in this case, and in Star Tribune, 295 NLRB No . 63, decided today,
was conducted on March 15 , 1989, in Washington , D.C. The instant case
involves, inter alia , the issue of whether drug/alcohol testing of current
employees is a mandatory subject of bargaining ; Star Tribune involves,
inter alia , the issue of whether drug/alcohol testing of applicants for em-
ployment is a mandatory subject of bargaining.
The question of whether drug/alcohol testing of current employees is a
mandatory subject of bargaining under the National Labor Relations Act
involves legal considerations fundamentally different from the question of
whether such testing constitutes an unreasonable search in violation of
the Fourth Amendment of the Constitution of the United States of Amer-
ica. Consequently , our consideration of the former question is not affect-
ed by the recent decisions of the Supreme Court concerning the latter
question - Skinner Y. Railway Labor Executives Assn., 130 LRRM 2857
(1989); National Treasury Employees Union v. Von Raab, 4 IER Cases 246
(1989).
the absence of this Agreement , except to the
extent that such rights , privileges and preroga-
tives are specifically and clearly abridged by
express provision of this Agreement.
Section 8: Wage Rates and Classifications
.1 The rates of pay and classifications set
forth in Appendix "A" are agreed upon by the
parties and are attached hereto and made a
part of this Agreement.
.2 The wage rates as set forth are minimum
rates under this Agreement and are not to be
construed as preventing the employer from
paying or the employee accepting additional
pay or benefits.
Section 17: Discrimination
.3 Except as provided herein, this Agree-
ment resolves all the bargainable issues for the
term hereof.2
All collective-bargaining agreements between the
parties since 1960 have contained management-
rights clauses materially similar to the current con-
tractual one set out above. Acting under the au-
thority putatively contained in these successive
management-rights clauses, the Respondent has
unilaterally implemented numerous work rules,
without objection from the Union. Thus, in 1962,
the Respondent unilaterally implemented a rule
prohibiting numerous forms of employee miscon-
duct. s
Similarly , in 1982, again acting under rights os-
tensibly reserved to it under the Management's
Rights clause then in effect , the Respondent unilat-
erally implemented a set of work rules covering,
inter alia, adherence to work hours and breaktimes;
use of timecards ; excused absence from scheduled
overtime ; timely notification of unanticipated ab-
sences; careful use of equipment ; standards for
work attendance ; vacation/leave scheduling; and
adherence to safety requirements . Also, since 1981,
the Respondent has unilaterally implemented indi-
vidual work rules pertaining to, inter alia, use of
company telephones , use and wearing of safety
2 This "zipper" clause is the final substantive term of the collective-
bargaining agreement, appearing just above the parties ' signatures and the
incorporation of certain appendices . By its express terms, it pertains to
the entire agreement . Nevertheless , and without explanation in the
record, this "zipper" clause is a subsection of the discrimination clause.
a This unilaterally implemented rule prohibited , inter alia , falsification
of personnel records and timecards ; repeated lateness; possession of
weapons or cameras on company premises , insubordination ; "horseplay";
fighting; leaving the workplace without permission , smoking in restricted
areas; threatening, intimidating , or coercing other employees on company
premises; gambling on company premises , misusing or damaging compa-
ny property ; sabotage; knowingly violating safety rules ; exceeding break-
times; "immoral conduct or indecency"; below-standard productivity or
workmanship , and interfering with plant discipline or efficiency.
295 NLRB No. 26
JOHNSON-BATEMAN CO.
equipment , excused absences from work , and emer-
gency procedures-'
Two of the above-mentioned extra-contractual
written plant work rules have particular relevance
to the issues in the instant case:
PERFECT ATTENDANCE
All employees who have a perfect attend-
ance record in a 12 month calendar year will
receive special recognition.[5]
Discharges
The- Company shall have the right to dis-
charge or discipline any employee . for just
cause . The term "just cause" shall include .. .
drinking or possessing any alcoholic beverages
on company premises or on company time or
reporting for work while under the influence
of alcohol or drugs.
Finally, the Respondent has had in effect for
some time an extra-contractual policy , to which the
Union has not objected , requiring newly hired em-
ployees to undergo drug/alcohol testing at the time
of their hiring.
On December 1, 1986, the Respondent, without
notifying or bargaining with the Union , posted the
following notice:
ATTENTION ALL EMPLOYEES:
AS OF DECEMBER 1, 1986, ANY INJU-
RIES REQUIRING TREATMENT WILL
NOW BE ACCOMPANIED BY A DRUG/-
ALCOHOL TEST.
THANK YOU,
MANAGEMENT.
On December 4, the Union notified the Respond-
ent in writing that:" "The Union is not in agreement
with [the above] policy; neither have we been con-
tacted to negotiate such a policy." The Union re-
quested the Respondent not to implement this
policy and to remove the above-posted notice. The
4 One of the work rules unilaterally implemented by the Respondent in
1982 requires employees who are unable to work scheduled overtime to
notify the Respondent in writing , in advance of their absence, of their
reasons for not being able to work the scheduled overtime The collec-
tive-bargaining agreement then in effect provided that employees would
not "unreasonably" refuse to work prescheduled overtime . In 1982, the
Union filed a grievance over a disciplinary warning given to an employee
for violating the above work rule . In the 1983 arbitration of this gnev-
ance, the arbitrator found , inter aha, ( 1) that the Respondent had a right
to make rules to manage the plant , provided that such rules do not vio-
late the collective-bargaining agreement , and (2) that the work rule re-
quiring advance written notification of and reason for inability to work
scheduled overtime was "entirely reasonable and consistent with" the
contractual requirement that employee refusals to work scheduled over-
time be reasonable ; according to the arbitrator , "a written record can
only reduce unnecessary disputes over who said what."
5 Union Steward Pete Valdez, an employee since 1975, testified that he
was unaware of any attendance award or bonus .being given by the Re-
spondent prior to the March 1987 attendance incentive bonus plan in-
volved in the instant case; there is no record evidence of any such prior
plan
181
Respondent did not reply to the Union's December
4 letter, and it did not grant either of the Union's
requests. Rather, the Respondent implemented the
policy as announced.6
On March 23, 1987, the Respondent, again with-
out giving the Union advance notice or an oppor-
tunity to bargain, posted a notice announcing a
new attendance incentive bonus plan for employees
hired after September 1, 1986. Essentially, such em-
ployees who achieved perfect attendance for an
entire week would receive a wage .bonus of $1 per
hour for that week. Such employees who achieved
perfect attendance for an entire month would re-
ceive an additional bonus of 50 cents per hour for a
total wage bonus of $1.50 per hour for an entire
month of perfect attendance.? The record estab-
lishes that some employees have received attend-
ance bonuses under this program.8
II. ISSUES
The complaint alleges that the drug/alcohol test-
ing program and the attendance incentive bonus
program relate to wages, hours, and other terms
and conditions of employment, and are therefore
mandatory subjects of bargaining. The complaint
further alleges that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by unilaterally im-
plementing these programs without giving the
Union prior notice of them and an opportunity to
bargain with the Respondent about them.
The judge found that the drug/alcohol testing
requirement for current employees who are injured
on the job "is not a work rule within the common
As of the time of the instant hearing in August 1987 , 14 employees
had been tested under the above policy, and some other employees had
refused to undergo such testing . The Respondent had taken no discipli-
nary actions against those who refused to take the test or those who
tested positive.
Although the collective-bargaining agreement contained grievance and
arbitration procedures, the Union did not file a grievance over the Re-
spondent 's announcement or implementation of the new drug /alcohol
testing policy , and neither party now seeks deferral to contractual griev-
ance and arbitration procedures. Indeed , as found by the judge, the Re-
spondent has clearly expressed its unwillingness now to waive any of the
timeliness provisions of the contractual grievance and arbitration proce-
dures. Under the above circumstances , deferral of the instant issues to
those procedures is not appropriate. Southwestern Bell Telephone Co., 276
NLRB 1053 fn. 1 (1985); Victor Block Inc., 276 NLRB 676, 680 (1985).
Cf. United Technologies Corp., 268 NLRB 557, 560 fn. 22 (1984) (employ-
er expressed willingness , "indeed its eagerness," to arbitrate dispute; de-
ferral is appropriate provided employer waives timeliness provisions).
7 Although this appears to be the first attendance incentive bonus plan
implemented by the Respondent , the record reveals that the Respondent
has unilaterally implemented other types of employee incentive bonus
plans without objection from the Union . Thus, at one time, the Respond-
ent awarded T-shirts, jackets, or small tool sets (wrenches, screw drivers,
pliers)- for accident-free job performance over a 3-month period . Also, for
3 to 4 years in the midsixties the Respondent awarded employees an ap-
proximately 3-percent hourly wage bonus for exceeding certain periodic
production standards.
9 Here again , the Union did not file a grievance over the Respondent's
unilateral implementation of this program , and neither party now seeks
deferral to the contractual grievance and arbitration provisions.
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
understanding of the term ," and thus not a "Com-
pany rule" within the scope of that term as con-
tained in the contractual Management 's Rights
clause. Accordingly, the judge found that the
Union had not contractually waived its right to
bargain . with the Respondent about the drug/-
alcohol testing requirement , and that the Respond-
ent's unilateral implementation of that requirement
violated Section 8(a)(5) of the Act. For the reasons
discussed below , we find that the drug/alcohol
testing requirement is a mandatory subject of bar-
gaining , that the Union has not waived its right to
bargain about this subject , and that the Respond-
ent's unilateral implementation of this requirement
violated Section 8(a)(5) of the Act.
It is well settled that wage incentive programs
are mandatory subjects of bargaining .9 Neverthe-
less, the judge found that the Union had contrac-
tually waived its right to bargain with the Re-
spondent about the attendance incentive wage
bonus program , and that the Respondent 's unilater-
al implementation of that program therefore did
not violate Section 8(a)(5) of the Act. For the rea-
sons discussed subsequently in this decision, we
affirm the judge 's dismissal of this allegation.
III. ANALYSIS AND CONCLUSIONS
A. Drug/Alcohol Testing
1. Mandatory subject of bargaining
A threshold issue , not directly addressed by the
judge, and one of first impression for the Board, is
whether drug/alcohol testing of current employees
is a mandatory subject of bargaining. 10
° See, e .g., Wellman Industries, 248 NLRB 325, 336, 339 (1980); United
Parcel Service, 223 NLRB 1381 (1976); C&S Industries, 158 NLRB 454
(1966).
10 Although the Respondent argued to the judge that the instant
drug/alcohol testing requirement is not a mandatory subject of bargain-
ing, the Respondent did not renew this argument to the Board . In its ex-
ceptions to the judge 's decision , the Respondent implicitly concedes that
the Union had a right to bargain with the Respondent about the latter's
implementation of. the drug/alcohol testing requirement , but the Re-
spondent asserts that the Union waived that right . At oral argument, the
Respondent asserted that the purpose of the drug/alcohol testing require-
ment was to obtain information about whether the recent increase in job-
related injuries was related to drug/alcohol use by its employees. The
Respondent, noting that no employee had been disciplined for failing the
test , or for refusing to take it , conceded arguendo that if it actually took
steps against employees for failing the test , or for refusing to take it, the
drug/alcohol testing requirement could well be a mandatory subject of
bargaining
Various amici curiae presented oral argument to the Board in this case
and in Star Tribune, supra . The American Federation of Labor and Con-
gress of Industrial Organizations (AFL-CIO), and the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America argued that drug/alcohol testing of both current employees and
job applicants is a mandatory subject of bargaining While the Chamber
of Commerce of the United States of America , the Equal Employment
Advisory Council (EEAC), and the Council on Labor Law Equality
(COLLE) all argued that drug/alcohol testing of job applicants is not a
mandatory subject of bargaining , none of the amici curiae argued cate-
Sections 8(a)(5) and 8 (b)(3) of the Act, in con-
junction with Section 8(d), essentially mandate em-
ployers and designated collective -bargaining repre-
sentatives to bargain in good faith with each other
about wages , hours, and other terms and conditions
of employment." Generally, it is an unfair labor
practice for an employer whose employees are rep-
resented for collective-bargaining purposes to make
changes in mandatory subjects of bargaining with-
out first providing the collective -bargaining repre-
sentative with an opportunity to bargain with the
employer about such proposed changes.12
We find that the Respondent 's newly imposed
requirement of drug/alcohol testing for employees
who require medical treatment for work injuries is
a mandatory subject of bargaining . In Ford Motor
Co. v. NLRB, 13 the Supreme Court described man-
datory subjects of bargaining as such matters that
are "plainly germane to the `working environ-
ment"' and "not among those `managerial deci-
sions, which lie at the core of entrepreneurial con-
trol."' 14 Applying these standards to the issue
before us , we find the drug/alcohol testing require-
ment to be both germane to the working environ-
ment, and outside the scope of managerial decisions
lying at the core of entrepreneurial control.
As to the first factor-germane to the working
environment-the drug/alcohol testing requirement
is most closely analoagous to physical examinations
and polygraph testing , both of which the Board
has found to be mandatory subjects of bargain-
ing.1 s
In Medicenter, supra, the employer was alleged
to have violated Section 8(a)(5) of the Act when it
unilaterally instituted polygraph testing of all em-
ployees in an attempt to find which, if any of them
were responsible for certain acts of vandalism that
had been occurring at the employer 's facility. The
Board majority found that "a change of this nature
in the method by which Respondent investigated
gorically that a drug testing program accompanied by penalties or bene-
fits for current employees is not a mandatory subject of bargaining.
11 NLRB Y. Borg-Warner Corp., 356 U.S. 342, 348-349 ( 1958).
12 NLRB v. Katz, 369 U.S. 736 (1962).
Is 441 U S. 488 (1979).
14 Id at 498, quoting from Fibreboard Corp. v NLRB, 379 U.S. 203,
222-223 (1964) (Stewart , J., concurring).
is Lockheed Shipbuilding Co., 273 NLRB 171, 177 (1984) (physical ex-
aminations); LeRoy Machine Co., 147 NLRB 1431, 1432, 1438-1439 (1964)
(physical examinations); Austin-Berryhill, Inc., 246 NLRB 1139 (1979)
(polygraph testing); Medicenter, Mid-South Hospital, 221 NLRB 670
(1975) (polygraph testing).
In LeRoy Machine, supra, the full five-member Board unanimously
agreed that physical examinations were mandatory subjects of bargaining.
However, the Board was divided over the question of whether the union
had contractually waived its right to bargain about this subject; a three-
member Board majority found that the union had so waived its bargain-
ing rights . The contractual waiver aspect of LeRoy Machine will be fur-
ther discussed , infra, in conjunction with our discussion and resolution, of
the waiver issue in the instant case.
JOHNSON-BATEMAN CO. 183
suspected employee misconduct is a change in the
`terms and conditions ' of employment ." 16 More
specifically, the Board majority, adopting the deci-
sion of Administrative Law Judge Bernard Ries,
emphasized that the introduction of polygraph test-
ing in the employer's investigatory methodology
substantially varied both the mode of investigation
and the character of proof on which an employee's
job security might depend. Thus, "the test itself
substantially altered the existing terms and condi-
tions of employment and constituted a subject of
mandatory bargaining." 17
The analysis as to why the polygraph testing in
Medicenter was a mandatory subject of bargaining
is applicable to the drug/alcohol testing require-
ment at issue in the instant case . The record estab-
lishes that the Respondent implemented the
drug/alcohol testing requirement because of an in-
creasingly high number of workplace accidents, re-
sulting in sharply increasing insurance rates. Ac-
cording to the Respondent's vice president, Larry
Johnson, "we felt that there was a good probability
that there was drugs involved with the significant
amount of the accidents that we were experiencing,
and that we were wanting some way to enforce
our . . . drug policies that we have in our Compa-
ny rules" (i.e., according to Johnson, the written
rules against use or possession of alcohol on com-
pany premises or company time or reporting for
work while under the influence of alcohol or
drugs). Violation of these rules, as set forth above,
is punishable by discipline , including discharge.
Thus, in accordance with the Respondent's written
policies : (1) employees who require medical treat-
ment for work injuries must undergo drug/alcohol
testing ; (2) the results of such testing might estab-
lish that the injured employee has violated the Re-
spondent's drug/alcohol policies; (3) violation of
those policies could result in the discharge or other
discipline of the injured employee . Accordingly,
the record firmly establishes that the drug/alcohol
testing requirement is a condition of employment
because ; it has the potential to affect the continued
employment of employees who become subject to
it.
In this regard , the drug/alcohol testing require-
ment is materially similar to the polygraph testing
requirement found to be a mandatory subject of
bargaining in Medicenter, supra . Here, as with the
investigation of vandalism in Medicenter, there has
been a change in the method by which the Re-
spondent investigates possible employee responsi-
bility for a sharp increase in workplace accidents,
and, like the employer in Medicenter, the Respond-
19 221 NLRB at 675.
17 Id.
ent has introduced . relatively sophisticated technol-
ogy, substantially varying both the mode of the in-
vestigation and the character of proof on which an
employee's job security might depend.18
In light of the above considerations , therefore,
we conclude that the drug/alcohol testing require-
ment is entirely "germane to the working environ-
ment," as that term was applied by the Court in
Ford Motor Co., supra, and thus, to that extent, it is
a mandatory subject of bargaining.
The second criterion considered by the Supreme
Court in Ford Motor Co. is that the subject in ques-
tion not be among those managerial decisions that
lie at the core of entrepreneurial control . In its dis-
cussion of this subject, the Court relied on the con-
curring opinion of Justice Stewart in Fibreboard
Corp., supra:
Nothing the Court holds today should be un-
derstood as imposing a duty to bargain collec-
tively regarding such managerial decisions,
which lie at the core of entrepreneurial con-
trol. Decisions concerning the commitment of
investment capital and the basic scope of the
enterprise are not in themselves primarily
about conditions of employment, though the
effect of the decision may be necessarily to
terminate employment . If, as. I think clear, the
purpose of § 8(d) is to describe a limited area
subject to the duty of collective bargaining,
those management decisions which are funda-
mental to the basic direction of a corporate en-
terprise or which impinge only indirectly upon
employment security should be excluded from
that area.19
We find that the Respondent's drug/alcohol test-
ing requirement is not among that class of manage-
rial decisions that lie at the core of entrepreneurial
control . Here again , the Board majority's treatment
of this question in Medicenter is applicable to the
instant case . There , the Board majority affirmed
the judge 's application of the standards set forth in
Justice Stewart's concurring opinion in Fibreboard,
supra, and found, in agreement with the judge,
that:
The institution of a polygraph test is not en-
trepreneurial in character , is not fundamental
to the basic direction of the enterprise, and
18 As noted, the Respondent's work rules expressly and specifically
prohibit use, possession, or being under the influence of drugs or alcohol
in the workplace , and expressly provide that employees may be dis-
charged for violating that prohibition Although none of the seven em-
ployees who have tested positive under the drug/alcohol test have been
disciplined , this fact does not, in our view, eliminate the potential for dis-
cipline resulting from positive results , as clearly contained in the Re-
spondent 's written policies.
19 379 U.S at 223.
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does not impinge only indirectly upon employ-
ment security .. It is, rather , a change in an im-
portant facet of the workaday life of employ-
ees, a change in personnel policy freighted
with potentially serious implications for the
employees which in no way touches the dis-
cretionary "core of entrepreneurial control."20
The same can be said of the institution of
drug/alcohol testing . It does not involve the com-
mitment of investment capital and cannot otherwise
be characterized as a. decision taken with a view
toward changing the scope or nature of the Re-
spondent 's enterprise . It is rather a more limited
decision directed toward reducing workplace acci-
dents and attendant insurance rates. Accordingly,
we conclude that the instant drug/alcohol testing
requirement is a mandatory subject of bargain-
ing.21
2. Alleged waiver of right to bargain
The Respondent contends (1) that under the con-
tractual Management's Rights clause it has "ex-
pressly and unambiguously " been granted the right
unilaterally to implement work rules ; (2) that its
unilaterally implemented drug/alcohol testing re-
quirement is.such a work rule within the scope of
the Management 's Rights clause ; and (3) that the
Union has therefore effectively contractually
waived any right it may have had to bargain with
the Respondent about the drug/alcohol testing re-
quirement . In agreement with the judge , we find
that the Respondent 's contention is contrary to es-
tablished principles of law under the Act. More
specifically , as discussed in full below, we find that
the Management 's Rights clause does not constitute
20 221 NLRB at 676 . The Board ultimately determined in Medicenter
that the employer had provided the union with sufficient notice and op-
portunity to bargain about the polygraph testing , and that the employer
therefore did not violate the Act as alleged by its subsequent implementa-
tion of the polygraph testing . In the instant case, the Union was given no
poor notice or opportunity to bargain about the drug/alcohol testing.
21 Similarly , in Locomotive Engineers v. Burlington Northern Railroad
Co., 838 F . 2d 1087 (9th Cit . 1988), cert. granted 57 LW 3056 (July 19,
1988) the court held that mandatory drug/alcohol testing of employees
involved in "human factors" accidents, which testing could lead to disci-
pline including discharge, was a mandatory subject of bargaining under
the Railway Labor Act (RLA), 45 U.S.C.A. § 151 et seq . and thus could
not be implemented unilaterally.
The court determined that the RLA required parties to bargain over
any proposal whose primary impact is the loss, or potential loss, of exist-
ing employment or employment-related benefits . The court found that
since the jobs of employees were jeopardized by the results of the em-
ployer's new drug/alcohol testing requirement , that requirement was
therefore not simply a matter of management prerogative, outside the
scope of the employer 's bargaining obligation , but was instead a mandato-
ry subject of bargaining under the RLA, one which could not be imple-
mented unilaterally. 838 F . 2d at 1090.
The court also determined that the employer 's unilateral implementa-
tion of its drug/alcohol testing requirement constituted a "clear change in
working conditions governed by the collective agreement" and was
therefore, on that basis also, a mandatory subject of bargaining under the
RLA. 838 F .2d at 1093.
a waiver of the Union's right to bargain about the
drug/alcohol testing • requirement ; that the issue
presented in this case is not solely a matter of con-
tract interpretation ; that the bargaining history of
the instant contract does not establish that
drug/alcohol testing was discussed in contract ne-
gotiations ; and that neither the 1983 arbitration
award nor the parties ' past practice of union acqui-
escence in the Respondent 's unilateral implementa-
tion of work rules constitute a waiver of the
Union's right to bargain about ' the drug/alcohol
testing requirement.
a. General principles
It is well settled that the waiver of a statutory
right will not be inferred from general contractual
provisions ; rather , such waivers must be clear and
unmistakable.22 Accordingly , the Board has repeat-
edly held that generally worded management rights
clauses or "zipper" clauses will not be construed as
waivers of statutory bargaining rights.23 In Suffolk
Child Development Center , for example , the Board
found that the management -rights clause did not
constitute a waiver by the union of its right to bar-
gain about , changes in medical benefits, because
there was no specific reference in that clause to
employee medical benefits or other terms of em-
ployment . Likewise, in Kansas National Education
Assn ., at 639, the Board found that language in the
management-rights clause reserving to management
"the right to carry out the ordinary and customary
functions of management and to adopt policies . . .
and practices in furtherance thereof " did not con-
stitute a waiver by the union of its right to bargain
about employee transfer arrangements . More spe-
cifically , the Board found "[t]he provision is at best
vague and as such insufficient to meet the standard
of a `clear and unmistakable waiver."124
22 Metropolitan Edison Co. Y. NLRB, 460 U.S. 693 , 708 (1983). The Su-
preme Court stated that it would not infer from a general contractual
provision that the parties intended to waive a statutorily protected right
unless such an intent is explicitly stated. Id.
as Suffolk Child Development Center, 277 NLRB 1345, 1350 ( 1985);
Kansas National Education Assn ., 275 NLRB 638, 639 (1985). Cf Rock-
ford Manor Care Facility, 279 NLRB 1170 (1986) (employer's unilateral
substitution of new health insurance plan not unlawful ; union waived
right to bargain about carrier -induced changes in health insurance by
virtue of contractual agreement to a "highly detailed 'zipper clause' . .
and an equally comprehensive management rights clause " demonstrating
mutual intent to waive bargaining during term of contract with respect to
all subjects left unregulated within the four corners of the contract, and
constituting an "incisive , direct, and specific ... assault on the existence
of any negotiating responsibility during the term of the contract," thus
committing unresolved issues to management prerogative)
24 However, the Board went on to find that ultimately the union effec-
tively acquiesced in the employer's unilateral conduct , by failing to
timely protest the employer's proposed actions and by failing to timely
request bargaining over the matter. Here, by contrast, the Respondent's
December I announcement of the drug /alcohol testing requirement was
made without giving the Union any prior notice and opportunity'to bar-
Continued
JOHNSON-BATEMAN CO. 185
Waiver of a statutory right may be evidenced by
bargaining history , but the Board requires 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.25
Thus, in Southern Florida Hotel Assn., 245 NLRB
561, 567-569 fn. 22 (1979), enfd. in relevant part
751 F.2d 1571 (11th Cir. 1985), the Board found a
waiver in a management-rights clause that reserved
to the employer the right to "make , continue and
change such reasonable rules and regulations as it
may deem necessary and proper in the conduct of
its business." The Board found that in light of the
extensive history and -nature of the parties' negotia-
tions about the wording and potential effect of the
clause , it was understood by the parties that the
clause granted the employer "significantly expand-
ed authority to unilaterally implement reasonable
changes in work rules." Indeed , the Board found,
under the circumstances , that the union 's accept-
ance of the management-rights clause "amounted
to a broad waiver of.the Union's right to be noti-
fied of and to bargain about changes in working
conditions ." Id. at 568 . Notwithstanding the above
analysis and findings, however , the Board found
that the union's acceptance of the management-
rights clause did not constitute a waiver with re-
spect to every one of the numerous changes imple-
mented by the employer. More specifically, the
Board in Southern Florida found that the broad,
contractually reserved right of the employer to
change rules and regulations did not specifically
give the employer the right unilaterally to make
changes in employment and rates of pay, and thus
to that extent did not constitute a waiver by the
union of its right to be informed of and negotiate
about rule changes that directly affected employ-
ees' wages . Thus, even in the context of a broad
waiver by the union of the right to be notified of
and to bargain about changes in working condi-
tions in general , the Board found that the union
had not : made a clear , unequivocal, unmistakable
waiver of its specific right to be notified of and
bargain about such changes that affected wages.26
gain , thus presenting the Union with a fait accompli . The Union notified
the Respondent promptly in writing on December 4 that it disagreed
with the new drug/alcohol testing requirement , specifically noting in its
letter that it had not been contacted to negotiate such a policy . Accord-
ingly , we find no acquiescence here. See Intersystems Design Corp., 278
NLRB 759 (1986); Pinewood Care Center, 242 NLRB 816, 822 (1979);
Caravelle Boat Co ., 227 NLRB 1355, 1358 (1977).
25 Rockwell International Corp , 260 NLRB 1346, 1347 ( 1982).
86 But see LeRoy Machine Co ., 147 NLRB 1431 (1964), relied on by
the Respondent as support for its contention that the Union has waived
its right to bargain about the instant drug /alcohol testing requirement. In
that case , the Board majority found that language in the contractual man-
agement-rights clause reserving to the employer the right to "determine
the qualifications of employees" constituted a waiver by the union of its
Applying these principles to the instant case, we
note that the provision in the Management 's Rights
clause permitting the Respondent unilaterally to
issue, enforce , and change company - rules is
couched in the most general of terms and makes no
reference to any particular subject areas , much less
a specific reference to drug/alcohol testing.27 Ac-
cordingly , we find that neither the Management's
Rights nor zipper clauses set out in - section I,
above , of this decision constitutes an express, clear,
unequivocal, and unmistakable waiver by the
Union of its statutory right to bargain about the
Respondent 's implementation of the instant drug/-
alcohol testing requirement.28
right to bargain about the employer's unilaterally imposed requirement
that certain employees with particularly bad attendance records (about 10
percent of the bargaining unit ) undergo physical examinations , at compa-
ny expense , in order to determine whether their poor attendance was at-
tributable to a health problem , so as to require a transfer to another shift,
assignment , or discharge . The Board majority found that the language in
the management -rights clause, when given its plain meaning , encom-
passed such physical examinations as those in question, effectively remov-
ing that subject from the scope of bargaining dung the term of the con-
tract.
We agree with the judge that LeRoy Machine is distinguishable from
the instant case on the basis of the degree of specificity of language in the
management-rights clause in that case as compared to the clause at issue
here.
27 In addition to giving the Respondent the right unilaterally to issue,
enforce, and change rules , the Management 's Rights clause also reserves
to the Respondent the right to discipline or discharge employees for just
cause . There is a written work rule specifying that drinking or possessing
any alcoholic beverages on company premises or on company time or re-
porting for work while under the influence of alcohol or drugs consti-
tutes just cause for discharge. However, this work rule is'not incorporat-
ed or otherwise referred to in the collective-bargaining agreement, but
was instead unilaterally promulgated and implemented by the Respondent
(albeit without subsequent objection from the Union ). There was no dis-
cussion or mention during negotiations for the collective -bargaining
agreement about the possibility of drug /alcohol testing being used as a
method of enforcement of the rule against drug/alcohol use , possession,
or influence . Under these circumstances, we find , contrary to our dissent-'
ing colleague , that the general contractual rights of the Respondent to
make and enforce rules , and to discipline or discharge for just cause, do
not constitute a clear and unmistakable waiver by the Union of its right
to bargain about the implementation of the instant drug/alcohol testing
requirement, even if those general contractual rights are coupled with the
extra-contractual , unilaterally implemented categorization of the above
aspects of drug and alcohol use as just causes for discharge
28 Suffolk Child, supra, Kansas National, supra; Southern Florida, supra.
Cf. BASF Wyandotte Corp., 278 NLRB 173, 177- 178, 181-182 ( 1986) (em-
ployer's unilateral implementation of new rule , effectively prohibiting
facial hair on employees who may from time to time need to wear respi-
ratory protective equipment, not unlawful where management rights
clause reserves to employer right to "make and enforce such rules as the
Company may deem necessary or proper for the conduct of its employ-
ees and the operation of the plant" and where there were already in
.effect general safety rules and plant regulations expressly providing for
wearing of respirators where indicated or directed by employer; when
viewed in light of such rules , provisions of management -rights clause
constitute waiver by union of right to bargain about new rule against
facial hair), Kohler Co., 273 NLRB 1580 (1985) (employer 's unilateral sub-
contracting of bargaining unit work not unlawful where , inter alia, man-
agement-rights clause expressly provided that employer retained - right to
determine where and by whom unit work would be performed ); Colum-
bus Electric Co., 270 NLRB 686 (1984), affd. sub nom . Electrical Workers
IBEW Local 1466, 795 F .2d 150 (D C Cir. 1986) (employer 's unilateral
discontinuation of longstanding extra-contractual unwritten Christmas
bonus not unlawful where zipper clause expressly provided that all pre-
Continued
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. Contract interpretation
We also find, contrary to the Respondent's asser-
tions, that its unilateral implementation of the
drug/alcohol testing requirement is not beyond the
scope of our consideration as an unfair labor prac-
tice on the basis that this issue presents solely a
matter- of contract interpretation . The Respondent
relies on NCR Corp., 271 NLRB 1212 (1984). That
case is inapposite . There, the employer unilaterally
transferred work from one district to another. One
article in the contract governed transfers into and
out of a district while another article concerned the
employer's right to consolidate, merge , or reorga-
nize a district . The General Counsel and the union
interpreted the two articles as not permitting the
employer 's unilateral transfer of work, whereas the
employer construed the articles as allowing its uni-
lateral action . The Board found that both the em-
ployer and the union had equally plausible interpre-
tations of the collective -bargaining agreement pro-
visions in dispute ; that the employer 's allegedly un-
lawful conduct was based on a "substantial claim
of contractual privilege "; and that the dispute in
that case was solely one of contract interpretation.
Quoting from the Board's decision in Vickers, Inc.,
153 NLRB 561, 570 (1965), the Board in NCR (271
NLRB at 1213) stated:
[W]hen "an employer has a sound arguable
basis for ascribing 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 correct.
In contrast, the Respondent here does not point
to clauses in the contract governing specific rules
that are subject to more than one plausible inter-
pretation . Instead , the Respondent relies on a broad
management-rights clause . Unlike in NCR, we are
not here presented with two equally plausible inter-
pretations of the instant collective-bargaining
agreement ;, we do not consider the Respondent's
unilateral implementation of the drug/alcohol test-
ing requirement to have been based on a substantial
claim of contractual privilege; and we do not view
the dispute as solely one of contract interpretation.
Rather , we view the dispute here as similar to that
presented in Southern California Edison Co., 284
NLRB 1205 fn. 1 (1987). There, the Board majori-
ty found that the employer did not have a "sound
and arguable" basis for concluding that the man-
agement prerogatives and wages clauses of the col-
contractual "agreements and understandings , oral or written , expressed or
implied" between the parties were superseded by current contract-which
did not contain provisions for a Christmas bonus).
lective-bargaining agreement entitled it unilaterally
to implement changes in temporary work assign-
ment policies for injured employees . The Board
majority found that the two contract clauses relied
on by the employer in defending its unilateral
action were not sufficiently specific to overrule the
clear terms of a separately negotiated disability
plan; neither the management prerogatives nor
wages clause expressly addressed disabled workers,
who were clearly dealt with under the terms of the
existing disability plan. Thus, the Board majority
found that the management prerogatives and wages
clauses did not constitute a waiver by the union of
its statutory right to bargain about benefits and
work requirements for disabled employees.
Although in the instant case there is no separate-
ly negotiated plan dealing with drug/alcohol test-
ing of employees injured while working (and thus,
unlike in Southern California Edison, no express
extra-contractual terms to rebut the Respondent's
asserted implications of the Management 's Rights
clause), we nevertheless find that the express, gen-
eral provisions of the Management 's Rights clause,
even standing alone, do not provide the Respond-
ent with a "sound arguable basis" for ascribing to
that clause a specific privilege to implement unilat-
erally the drug/alcohol testing requirement. We
have not, therefore, improperly entered this dispute
merely to serve the function of an arbitrator who
determines a correct interpretation of a contract.29 _
c. Contract negotiations
Nor is there anything in the bargaining history of
the contract to show that the meaning and poten-
tial implications of the Management -Rights clause
in general, or drug/alcohol testing in particular,
were "fully discussed and consciously , explored"
during negotiations , or that the Union "consciously
yielded or clearly and unmistakably waived its in-
terest" in regard to bargaining about the
drug/alcohol testing requirement . 30 Indeed, there
is nothing in the record to show that drug/alcohol
testing was even mentioned , much less discussed,
during contract 'negotiations . According to Union
Business Representative Bill Phillips, drug/alcohol
testing was not discussed during negotiations for
the current collective-bargaining agreement. The
Respondent proposed an addition to the seniority
clause that would have reserved to the Respondent
the right to require laid-off employees to undergo a
physical examination as a condition of recall. The
Respondent subsequently withdrew this proposal.
89 Cf. Plasterers Local 627 (Jack Hart Concrete), 274 NLRB 1286 (1985)
(facial ambiguity in contract ; no extrinsic evidence as to meaning -or
intent ; different interpretations equally reasonable).
90 See Rockwell International Corp, 260 NLRB 1346, 1347 (1982).
JOHNSON-BATEMAN CO.
According to the Respondent 's vice president,
Larry Johnson , during the negotiations over this
proposal there was no discussion of drug testing of
employees who had suffered industrial accidents.
During the same negotiations , the Respondent pro-
posed to add a new section , entitled "Discharge
and Discipline," to the current contract . This pro-
posed section would have reserved to the Respond-
ent the "absolute right" to suspend or discharge
employees for, inter alia, intoxication or possession
of narcotics or alcoholic beverages during working
hours . The Respondent also subsequently withdrew
this proposal . Johnson did not testify about wheth-
er the parties discussed drug/alcohol testing in the
context of this proposal.
Further , the Respondent's president , Lewis John-
son, testified that there was never any discussion
during contract negotiations "to the effect that" the
Management's Rights clause "could not be used for
drug testing ." We infer from this that there was
also no discussion about whether the Management's
Rights clause could be used for drug testing ; again,
there is no evidence of any such discussion . In sum,
there is no evidence that the parties engaged in any
discussion of drug/alcohol testing during contract
negotiations, in this or any other context.
Thus, in light of the complete absence of any
evidence that the parties discussed drug/alcohol
testing during negotiations for the instant ' collec-
tive-bargaining agreement, we will not infer a
waiver by the Union of its right to bargain about
that subject.sl
d. Arbitration award
We also do not find that the 1983 arbitration
award discussed above constitutes , or is evidence
of, a waiver by the Union of its right to bargain
about the drug/alcohol testing requirement or in
any other way privileged the Respondent's unilat-
eral implementation of that requirement. First, in
finding that the Respondent "has a right to make
rules to manage the plant , provided that those rules
do not violate the collective bargaining agree-
ment," the arbitration award does not give the Re-
spondent a right that is any broader or more inclu-
sive than the rights expressly reserved to the Re-
spondent under the contractual Management-
Rights 'clause itself. We have , of course, already
found that this clause itself does not constitute a
waiver by the Union of its right to bargain about
the instant drug/alcohol testing requirement. Con-
sequently, we find that the 1983 arbitration award
does not constitute such a waiver by the Union.
si Rose Arbor Manor, 242 NLRB 795, 798 (1979); Granite-Ball-Groves,
240 NLRB 1173, 1177 (1979)
187
Second , the extra-contractual written work rule
involved in the 1983 arbitration-that employees
who are unable to work scheduled overtime must
provide advance written notice of and reasons for
that inability-was found by the arbitrator to be di-
rectly related to, consistent with , and a reasonable
refinement of the specific express contractual pro-
vision that employees would not unreasonably
refuse to work scheduled overtime . Here, on the
other hand , the extra-contractual written rule re-
quiring drug/alcohol testing of employees who are
injured while working is not related to any express
term or provision in the collective -bargaining
agreement . Indeed , as seen , the only contractual
basis asserted by the Respondent as justification for
its unilateral implementation of drug/alcohol test-
ing is the Management 's Rights clause itself-a
basis which we have found not to support this
claim.32
Thus, in light of the above considerations, we
find that the 1983 arbitration decision does not
privilege the Respondent to implement unilaterally
the drug/alcohol testing requirement , and does not
constitute a waiver by the Union of its right to bar-
gain about this subject.
e. Past practices
Finally, we do not find. that the Union's acquies-
cence in either the Respondent 's unilateral imple-
mentation of the requirement that new employees
undergo drug/alcohol testing at the time of their
hiring, ' or the Respondent 's unilateral implementa-
tion of numerous work rules , as discussed above in
section I of this decision , constitutes a waiver by
the Union of its right to bargain about the drug/-
alcohol testing requirement for employees who are
injured while working . First , as to the requirement
that new employees undergo drug/alcohol testing,
32 The Supreme Court's opinion in Metropolitan Edison Ca v. NLRB,
460 U.S. 693 (1983), is relevant to this aspect of our discussion . There,
the Court held that the union 's failure affirmatively to seek modification
of the contractual no-strike clause , in the face of two earlier arbitration
decisions upholding the employer's disparately severe punishment of cer-
tain union officials for their participation in unlawful strikes , did not con-
stitute a waiver by the union of the statutory protection of employees
against disparate treatment on the basis of their union activities. The
Court held, inter alia , that an arbitration decision may be relevant to es-
tablishing a waiver of the statutory right in question where (1) the arbi-
trator has stated that the collective-bargaining agreement itself clearly
and unmistakably imposed an explicit duty on union officials to end un-
lawful work stoppages , or (2) (absent such an express statement by the
arbitrator) there is a clear and consistent pattern of arbitration decisions,
and circumstances exist under which it could be said that the parties have
incorporated those decisions into subsequent bargaining agreements. 460
U.S. at 709 fn. 13. Quite clearly, no such circumstances as suggested by
the Court exist in the instant case, which involves only one arbitration
decision , on a matter not related to the subject at hand . Indeed , the Court
itself stated, with reference to the facts before it in Metropolitan Edison,
that "We do not think that two • arbitration awards establish a pattern of
decisions clear enough to convert -the union 's silence into binding
waiver." Id at 709.
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a union 's past acquiescence in an employer 's unilat-
eral action on a particular subject generally does
not, without more , constitute a waiver by that
union of any right it may have to bargain about
future action by the employer in that matter. As
the Board majority found in Owens-Corning Fiber-
glas, 282 NLRB 609 (1987), the fact that an em-
ployer previously changed the terms of a particular
program without bargaining does not preclude a
union from effectively demanding to bargain over
the most recent change in the program : "A union's
acquiescence in previous unilateral changes does
not operate as a waiver of its right to bargain over
such changes for all time ." Id. (citations omitted).
Thus, we, find that the Union' s acquiescence in the
drug/alcohol testing requirement for new employ-
ees at time of hiring does not constitute a waiver of
its right to bargain about drug/alcohol testing of
injured employees.33
A fortiori, the Union's acquiescence in the Re-
spondent's past unilateral implementation of other
work rules , not involving drug/alcohol testing,
does not constitute a waiver of the Union's right to
bargain about the Respondent 's new rule imposing
drug/alcohol testing.34
In this connection , we note that the Ninth Cir-
cuit Court of Appeals addressed this issue in
NLRB v. Miller Brewing Co., 408 F.2d 12 (9th Cir.
1969), enfg . 166 NLRB 831 (1968). There, the em-
ployer unilaterally promulgated a set of written
plant rules, without providing the union with
notice of or opportunity to bargain about this
matter . Thereafter, the employer refused the
union's post facto request for bargaining . The em-
ployer asserted - that the union had waived its right
to bargain about the promulgation of written plant
rules because of, inter alia, its failure to object to
the previous unilateral issuance of plant rules by
the employer's contractual predecessors . The Ninth
Circuit rejected this argument as follows:
[I]t is not true that a right once waived under
the Act is lost forever. . . . Each time the
bargainable incident occurs-each time new
rules are issued-[the] Union has the election
of requesting negotiations or not . An opportu-
nity once rejected does not result in a perma-
nent "close out" . . . . [Citations omitted.]
Id. at 15 . Similarly , in Murphy Diesel Co., 184
NLRB 757 (1970), enfd. 454 F.2d 303 (7th Cir.
33 As noted above, the question of whether drug/alcohol testing of ap-
plicants for employment or of new employees at time of hire is a manda-
tory subject of bargaining is not at issue here. That issue is addressed in
Star Tribune, 295 NLRB No. 63 (June 15 , 1989).
94 Ciba-Geigy Pharmaceuticals, 264 NLRB 1013, 1017 ( 1982), enfd. 722
F.2d 1120 (3d Cir 1983) (union's acquiescence in employer 's past unilat-
eral changes in other plant rules does not constitute waiver by union of
right to bargain about employer 's implementation of new plant rule).
1971), the Board held that the union 's past acquies-
cence in the employer 's unilateral promulgation of
written work rules concerning , inter alia , lateness
and absenteeism did not constitute a waiver of the
union 's right to bargain about the employer 's subse-
quent unilateral promulgation of substantially re-
vised , stricter rules concerning lateness and absen-
teeism.
As in the cases discussed above, here too we find
that the Union 's past acquiescence in the Respond-
ent's unilateral implementation of plant rules and a
drug/alcohol testing requirement for new employ-
ees at time of hire does not constitute a waiver by
the Union of its right to bargain with the Respond-
ent about the drug/alcohol testing requirement for
employees who are injured • in workplace acci-
dents: 3 5
f. Conclusion
Accordingly, in light of all the above consider-
ations, we conclude that drug/alcohol testing of
employees who require treatment for injuries re-
ceived while on the job is a mandatory subject of
bargaining ; that the Union has not waived its right
to bargain with the Respondent about this subject;
and that the Respondent 's unilateral implementa-
tion of the requirement for such testing , without
providing the Union with prior notice and an op-
portunity to bargain , violated Section 8(a)(5) and
(1) of the Act, as alleged.
B. Attendance Incentive Bonus Plan
As discussed more fully in section I , above, the
Respondent unilaterally implemented an attendance
incentive bonus plan for employees hired after Sep-
tember 1 , 1986 . As stated in section II, above, such
wage incentive plans are mandatory subjects of
bargaining . Also as seen in section I, above, (1) an
33 Continental Telephone Co., 274 NLRB 1452 (1985), and Emery Indus-
tries, 268 NLRB 824 (1984), relied on by the Respondent in this regard,
are distinguishable . In those cases , the Board found that the unions' past
acquiescence in the employers ' unilateral changes in attendance policy
coupled with and viewed in light of certain language in the contractual
management rights clauses constituted agreements on the part of the
unions to permit the employers to act unilaterally in that area . Here, on
the other hand , as fully discussed above , there is no language in the in-
stant Management's Rights clause which, even when coupled with the
Union 's past acquiescence in the Respondent's earlier unilateral changes
in plant rules , would constitute a waiver by the Union of its right to bar-
gain about drug/alcohol testing of employees who are injured on the job.
Also, we note that the Board has never relied on either Continental Tele-
phone or Emery Industries as support for a finding that a union has
waived its right to bargain with an employer. In American Stores Packing
Co., 277 NLRB 1656, 1658 (1986), the Board (not relying on Emery)
found that the union had clearly and unmistakably waived , by the express
terms of the management-rights clause , its right to bargain with the em-
ployer about plant closure and subcontracting . Having established the ex-
istence of such a waiver, the Board further found (relying on Emery) that
the union was also not entitled to information it had requested from the
employer pursuant to its unrightful demand for bargaining.
JOHNSON-BATEMAN CO.
extra-contractual written work rule has been in
effect since 1982, providing for unspecified "special
recognition" for employees who achieve perfect at-
tendance for a 12-month calendar year, while (2)
the instant attendance incentive plan provides for a
wage bonus for employees who achieve perfect at-
tendance for as short as 1 week. Thus, the instant
plan does effect a change in the eligibility criteria
for a reward for perfect attendance.
In its answer to the complaint , the Respondent
admits that the attendance incentive bonus plan is a
mandatory subject of bargaining and that it imple-
mented the plan without providing the Union with
prior notice and opportunity to bargain. Thus, the
only issue before us is whether the Union waived
its right to bargain with the Respondent about the
plan.
As fully discussed in section III,A,2,a, above, the
waiver of a statutory right will not be inferred
from general contractual provisions, but must be
clear and unmistakable . A waiver by contract may
be- found where the language in question is suffi-
ciently specific. 36
We find that the express provisions of section 8.2
of the collective-bargaining agreement, stating
without qualification that the contractual wage
rates are minimums and are not to be construed as
preventing the employer from paying , or an em-
ployee from accepting, additional pay, are suffi-
ciently clear and specific to establish that the
Union has contractually waived its right to bargain
about the attendance incentive bonus plan. As the
plan involves the payment of additional pay, it is
encompassed within the scope of the express word-
ing of section 8 .2. It is important to note in this
regard that the essence of the attendance incentive
bonus plan is the payment of additional pay to em-
ployees who achieve perfect attendance, and not
the modification of attendance rules themselves.
Indeed, the plan effects no change in the Respond-
ent's attendance and timeliness rules. Rather, the
Respondent has simply exercised its contractual au-
thority to pay additional wages as a means to en-
courage improved compliance with those rules.
The Ninth Circuit Court of Appeals addressed a
similar issue in NLRB v. Honolulu Star-Bulletin, 372
F.2d 691, 693 (9th Cir. 1967), denying enf. 153
NLRB `763 (1965). There, the contract provided
that "[n]othing in this agreement shall limit the
right of the employer at its discretion to pay
amounts in excess of the [minimum ] salary set forth
above." The contract also provided that "present
36 See Rockford Manor Care Facility, 279 NLRB 1170 (1986); BASF
Wyandotte Corp., 278 NLRB 173 (1986); Kohler Co., 273 NLRB 1580
(1985); Columbus Electric Co., 270 NLRB 686 (1984), affd. sub nom. Elec-
trical Workers IBEW Local 1466, 795 F.2d 150 (D.C. Cir. 1986).
189
salaries" would not be reduced ; "present salaries"
was expressly defined, however, to exclude, inter
alia, bonus payments. The employer refused to bar-
gain with the union about the former's refusal to
reinstate certain advertising sales incentive bonus
plans that the employer had discontinued during
the contractual hiatus preceding the current con-
tract; the employer contended that such incentive
bonus plans were not part of the wage structure,
and that it therefore had no obligation to bargain
with the union about them.
The court focused on the provision of the con-
tract regarding the right of the employer at its dis-
cretion to* pay amounts in excess of minimum sala-
ries, and found that the employer was given discre-
tion whether to pay such amounts; that the incen-
tive bonus plans sought by the union were clearly
within the language of those provisions ; and that
the matter was therefore removed from the scope
of collective bargaining during the term of the con-
tract.37 The court concluded that the provisions of
the contract involving the right of the employer at
its discretion to pay amounts in excess of minimum
salaries gave the employer discretion whether to
institute the bonus incentive plans in question, and
that the employer did not violate Section ' 8(a)(5)
and (1) of the Act by failing to bargain about such
plans.38
Absent the Board's consideration of the provi-
sions in the contract, similar to those in section 8.2
of the instant contract, giving the employer the dis-
cretionary right to pay amounts in excess of mini-
mum salaries, we find the reasoning of the Ninth
Circuit to be particularly applicable to the circum-
stances here. Thus; we find that the express terms
of section 8.2 of the collective-bargaining agree-
ment gave the Respondent the right to pay addi-
tional wages; that the attendance incentive bonus
plan is within the scope of the term "additional
wages"; that this contractual language constitutes a
clear and unmistakable waiver by the Union of its
right to bargain with the Respondent about the in-
stant attendance incentive bonus plan;39 and that
37 372 F.2d at 693, citing , inter alia, LeRoy Machine Co., 147 NLRB
1431 (1964), which we earlier found to be inapposite on the issue wheth-
er, in the context of the broadly worded Management 's Rights clause, the
Union waived its right to bargain about the Respondent 's drug/alcohol
testing requirement.
38 The Board had found that the employer had unlawfully refused to
bargain about the incentive bonus plans, on the grounds that the contrac-
tual provision expressly excluding bonus plans from the scope of the term
"present wages" did not constitute a clear and unmistakable waiver by
the union of its right to bargain about bonus plans We find no fault with
the Board's reasoning to that extent, but we note that the Board did not
consider the ultimately dispositive issue addressed by the court.
99 It appears from the record that the parties did not discuss these pro-
visions during negotiations for the collective -bargaining agreement. Ac-
cording to the Respondent's president, Lewis Johnson, language identical
Continued
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent did not, therefore, act unlawfully
in unilaterally implementing this plan. Accordingly,
we affirm the judge' s dismissal of this allegation.40
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Johnson-Bateman Company , Etiwanda,
California, its officers , agents, successors , and as-
signs, shall take the action set forth in the Order as
modified.41
1. Substitute the following for paragraph 1(a).
"(a) Unilaterally instituting and implementing a
requirement that employees who require treatment
for work injuries must undergo a drug/alcohol
test."
2. Substitute the following for paragraph 2(c).
"(c) Bargain collectively , on request , with the
Union as the exclusive representative of the em-
ployees of the appropriate unit described above,
concerning the December 1, 1986 drug /alcohol
testing program and embody any understanding
reached in a signed agreement."
• 3. Substitute the attached notice for that of the
administrative law judge.
MEMBER JOHANSEN , dissenting in part.
I agree with my colleagues that the Respondent's
December 1, 1986 drug/alcohol testing require-
ment is a mandatory subject of bargaining. Con-
trary to the majority, however, I find that the
Union clearly and unmistakably waived its right to
bargain over this testing requirement.
Under the Management 's Rights provision of the
current collective-bargaining agreement , the Re-
to that in sec. 8 .2 has been in every collective-bargaining agreement be-
tween the parties since 1960. Neither party proposed any change in this
language during negotiations for the current contract . Thus, our finding
that the Union has waived its bargaining rights on this subject is based on
the express contractual language set out and discussed above.
4° See also S-B Mfg. Co., 270 NLRB 485, 492-493 (1984). We find the
General . Counsel 's reliance on Valley Ford Sales, 211 NLRB 834 (1974),
affd . sub nom. Machinists Lodge 87 v. NLRB, 530 F.2d 849 (9th Cir.
1976), to be misplaced . The issue in that case was whether the Board
should defer to an arbitration decision concerning an employer 's contrac-
tual right to discontinue a wage incentive plan. The General Counsel ap-
parently would have the Board consider as precedent the arbitrator's sub-
stantive conclusions on the contract language concerning "rates of pay"
and minimum wages However, the Board majority deferred to the arbi-
tration decision and ultimately dismissed the unfair labor practice com-
plaint on the grounds that the arbitration decision satisfied the criteria for
deferral established in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and ex-
pressly found it unnecessary to consider the substantive merits of the em-
ployer's "management rights-union waiver" defense . In denying the
union's petition for review of the Board 's decision, the Ninth Circuit fo-
cused only the "narrow issue" of whether the Board abused its discretion
in deferring to the arbitration decision , and found no such abuse of dis-
cretion . The court expressly declined to address the merits of the under-
lying dispute . Thus, the substantive merits of the union-waiver issue were
expressly avoided by both the Board and the court in Valley Ford.
41 The judge 's Order has been modified to remedy more precisely the
specific' unfair labor practice found in this case
spondent retains broad rulemaking authority. Sec-
tion 3.1 of the contract empowers the Respondent
to, inter alia , "disclipine or discharge [unit employ-
ees] for just cause" and "issue, enforce and change
Company rules." (Emphasis added.)
Section 3 . 1 is not a recent addition to the parties'
contract. Materially similar provisions have ap-
peared in each contract since 1960. Pursuant to the
expansive language of these contractual provisions,
the Respondent has instituted numerous work rules.
Until the instant case , the Union has never chal-
lenged the Respondent 's rulemaking authority.
Indeed , the Union acquiesced in a related work
rule, enacted in 1962, which authorized the Re-
spondent to discipline and discharge employees for
drug and alcohol possession and use:
Discharges
The Company shall have the right to dis-
charge or discipline any employee for just
cause . The term "just cause" shall include
.... drinking or possessing any alcoholic
beverages on company premises or on compa-
ny time or reporting for work while under the
influence of alcohol or drugs.
A instant drug/alcohol testing requirement; like
the "Discharges" provision, is a rule within the
plain meaning of section 3.1. In view of the unre-
stricted authority granted the Respondent under
section 3 . 1 to "issue , enforce and change" rules,
and given the Union's repeated acquiescence to the
Respondent 's institution of work rules; I find, con-
trary to the majority, that the Union clearly and
unmistakably waived its right to bargain over the
December 1, 1986 drug/alcohol testing require-
ment.
In view of the Union's waiver , I conclude that
the Respondent did not violate Section 8 (a)(5) and
(1) by unilaterally instituting its drug/alcohol test-
ing requirement . Accordingly, I would dismiss the
complaint. -
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 ordered us to post and abide by this notice.
WE WILL NOT unilaterally and without consulta-
tion with the International Association of Machin-
ists and Aerospace Workers, AFL-CIO, District
Lodge 120, Local Lodge 1047 institute or imple-
JOHNSON-BATEMAN CO. 191
ment a drug/alcohol testing program for employ-
ees who require treatment for work injuries, and
WE WILL cancel , withdraw, and rescind the pro-
gram we unlawfully put into effect.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees in
the exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WILL bargain collectively, on request, with
the Union with respect to this or any similar pro-
gram , as the exclusive representative of the em-
ployees in the following appropriate unit:
Included: All production and maintenance
employees employed by the Employer at its
Etiwanda, California facility.
Excluded: All office clerical employees,
truck drivers , guards, and supervisors, as de-
fined in the Act.
WE WILL remove from the files of employees
notices, reports, or memoranda resulting from. the
application of the December 1, 1986 drug /alcohol
testing program.
JOHNSON-BATEMAN COMPANY
On the entire record , and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following .
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation duly organized under and
existing by virtue of the laws of the State . of California,
with an office and principal place of business located in
Etiwanda, California, where it is engaged in the manu-
facture of concrete pipe.
In the course and conduct of its business operations,
Respondent annually sells goods or services valued in
excess of $50,000 to customers or business enterprises
within the State of California, which customers or busi-
ness enterprises themselves meet one of the Board 's juris-
dictional standards other than the indirect inflow or indi-
rect outflow standard.
It is admitted , and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. . .
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein , a labor organization within the
meaning of Section 2(5) of the Act.
Raymond M. Norton, Esq., for the General Counsel.
Glen H. Mertens, Esq. (Ford & Harrison), of Los Angeles,
California , for the Respondent.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice , a hearing with respect to this matter
was held before me in San Bernardino , California, on 11
August 1987. The charge in Case 31-CA-16299 was filed
on 28 January 1987 by International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, District
Lodge 120, Local Lodge 1047 (the Union). The charge
in Case 31-CA-16578 was filed by the Union on 8 June
1987.
On 26 June 1987, the Regional Director for Region 31
of the National Labor Relations Board (the Board) issued
a complaint and notice of hearing in Case 31-CA-16299
alleging a violation by Johnson-Bateman Company (Re-
spondent) of Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act).
Thereafter, on 21 July 1987, the Regional Director
issued an order consolidating cases, consolidated amend-
ed complaint and notice of hearing, alleging violations
by Respondent of Section 8(a)(1) and (5) of the Act in
both captioned cases.
The parties were afforded a full opportunity to be
heard, to call, to examine and cross-examine witnesses,
and to introduce relevant evidence. Since the close of
the hearing , briefs have been received from the General
Counsel and counsel for Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether
Respondent unilaterally instituted new work rules or
policies in violation of Section 8(a)(1) and (5) of the Act.
B. The Facts
1. The drug/alcohol testing program
Respondent , a manufacturer of concrete pipe, has had
a collective-bargaining relationship with the Union since
1960.
The current collective-bargaining agreement , effective
by its terms from 1 August 1986 until 31 July 1989, con-
tains a management-rights clause giving Respondent the
right to "issue , enforce, and change Company rules."
On 1 December 1986, Respondent posted the follow-
ing notice:
ATTENTION ALL EMPLOYEES:
AS OF DECEMBER 1, 1986, ANY INJURIES
REQUIRING TREATMENT WILL NOW BE
ACCOMPANIED BY A DRUG/ALCOHOL
TEST.
THANK YOU,
MANAGEMENT
The shop steward reported the new policy to the
Union, and on 4 December 1986 Union Business Repre-
sentative Bill Phillip sent the following letter to Re-
spondent:
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It has come to my attention that the Company
has advised the employees of a new policy requir-
ing them to undergo a drug and alcohol test if they
are hurt on the job.
This letter is to advise you that the Union is not
in agreement with such a policy; neither have we
been contacted to negotiate such a policy.
We are, therefore, asking the Company to not
implement this policy and immediately remove all
communication advising the employees of such a
policy.
Respondent neither responded to the Union's letter nor
removed its 1 December notice to employees from the
bulletin board. Rather, it implemented the new policy.
The record shows that from 1 December 1986 until
the day of hearing herein, more than 14 of Respondent's
employees have experienced on-the-job injuries. Of these,
14 have submitted to drug/alcohol testing in connection
with treatment and some have refused such testing. Of
the 14 who submitted to testing, 7 tested positive. Re-
spondent has taken no action against those testing posi-
tive or against those refusing to be tested.
The Union has not grieved the announcement or im-
plementation of the policy."
Respondent has always maintained written "Plant
Rules and Regulations" providing that violation of vari-
ous enumerated rules constitutes just cause for discharge.
Among the 38 stated rules are the following: "Drinking
or possessing any alcoholic beverages on Company
premises or on Company time"; and , "Reporting for
work while under the influence of alcohol or, drugs."
Further, the Respondent has had a long standing policy
of requiring new hires to undergo drug/alcohol testing at
the time of hire. a
2. The attendance incentive program
The agreement also provides, in connection with wage
rates and classifications, that:
The wage rates as set forth [in Appendix A of the
Agreement] are minimum rates under this Agree-
ment and are not to be construed as preventing the
Employer from paying or the employee accepting
additional pay or benefits. -
On 23 March 1987, the Respondent posted the follow-
ing notice on the bulletin board:
RE: NEW INCENTIVE PLAN FOR EMPLOY-
EES HIRED AFTER SEPTEMBER 1, 1986.
THE PLAN:
' The contract contains a binding grievance arbitration provision re-
quiring grievances to be submitted within 10 days of "the true discovery
of the event giving rise to the grievance." Grievances not timely submit-
ted in writing , according to the contract , "shall be null and void and for-
ever barred from consideration."
2 Regarding new employees , the contract provides that employees shall
accrue seniority rights after the first 30 days and that employees with less
than 60 working days of employment shall not have recourse to the
grievance procedure in cases of discharge or layoff.
You will receive ($1 per hour for every straight
time hours worked). Here is the catch; you must
have perfect attendance for that entire week. This
will be payed [sic] with your weekly check.
You will receive an additional (50 cent per hour
for every regular straight time hours worked) on
completion of an entire month with perfect attend-
ance. This will be payed [sic] with your regular
check after the end of the month.
THE FINE PRINT:
This plan can be terminated at any time without
any liability to the company for any money not ac-
tually paid.
The company has the sole responsibility for this
plan as to the interpretation and administration of
its workings.
Perfect attendance is defined as being to work
everyday, on time except: Bereavement (contractual
only), Jury Duty, Military Leave, Vacation, and
Holidays.
You must have completed your probationary
period to be eligible for this incentive plan.
Appendix A of the agreement, entitled "Wage Rate
and Classifications," sets forth, a two-tiered wage struc-
ture with different hourly rates of pay for similar job
classifications depending on whether the employee was
hired before or after 1 August • 1986. Assuming that an
employee hired after 1 August 1986, who had completed
his probationary period, had perfect attendance for the
month and therefore, under the new attendance incentive
program, received $1.50 per hour more than the rate of
pay specified in Appendix A, the hourly pay for that em-
ployee would still remain about $1.50 per hour less than
the comparable pay for an employee hired prior to 1
August 1986. .
Another related longstanding policy of Respondent,
which has apparently remained in effect, is the follow-
ing:
PERFECT ATTENDANCE.• All employees who have
a perfect attendance record in a 12 month calendar
year will receive special recognition.
The Union elected not to file a grievance over this
matter, but rather filed the instant charge in Case 31-
CA-16578 on 8-June 1987, some 2-1/2 months after the
new policy was posted . Thereafter , Union Business Rep-
resentative Robert Welch spoke to Larry Johnson, Re-
spondent's vice president , about the matter . Johnson
stated that the contract gave Respondent the right to
raise the rates of employees . Welch disagreed and argued
that it was not the intent of that contract language to
allow Respondent to discriminate against employees
hired before 1 September 1986.
JOHNSON-BATEMAN CO. 193
Analysis and Conclusions
1. The drug/alcohol testing program
Respondent maintains that the collective -bargaining
agreement language permitting it to "issue , enforce, and
change Company rules" constitutes "clear and unmistak-
able"3 authority for it to unilaterally require that em-
ployees be subjected to a drug/alcohol test if they have
sustained any injuries requiring treatment . I do not agree.
In LeRoy Machine Co., 147 NLRB 1431 (1964), cited
by Respondent , the contract management -rights provi-
sion gave the employer "the sole right to . . . hire,
layoff, assign , transfer , promote and determine the quali-
fications of employees." The Board found that the
Union, by permitting the employer to "determine the
qualifications of employees" waived its right to bargain
about the employer's unilaterally instituted policy requir-
ing physical examinations for employees who were ex-
cessively tardy or absent. The majority's rationale for
this conclusion was that the contract language, "when
given its plain meaning did encompass such physical ex-
amination ." While, in my opinion , it appears that the
Board 's holding in LeRoy Machine is anomalous and pa-
tently incorrect under the aforementioned "clear and un-
mistakable" test, nevertheless the Board did solely rely
on contract language which specifically permitted the
employer to determine the qualifications of employees.
In the instant case there is no similar language . Rather,
the Employer may only "issue , enforce, and change
Company rules."
Rules of the workplace , in common parlance, may be
fairly characterized as those designed to maintain or in-
crease the productivity and efficiency of employees and
ensure their safety during the workday. It would appear
that drug/alcohol testing is not a work rule within the
common understanding of the term as it necessarily in-
trudes upon employees ' personal and private lives outside
the workplace . Moreover, unlike Respondent's conven-
tional work rules,4 drug/alcohol testing constitutes an
extraordinary incursion into highly sensitive and confi-
dential matters which could directly affect the employ-
ees' continued employment .5 I therefore find that by
agreeing to the contractual language that the Respondent
may issue Company rules, the Union has not "clearly
and unmistakably" waived its right to bargain about the
drug/alcohol testing of employees.
a See Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983); Ciba-
Geigy Pharmaceuticals Division, 264 NLRB 1013, 1017 (1982), enfd 722
F 2d 1120 (3d Cir. 1983); Kansas National Education Assn., 275 NLRB
638 (1985).
4 Respondent has, from time to time, unilaterally issued work rules
under the aforementioned contract language. Rules such as establishing a
time for filling up vehicles with gas, requiring that employees be at their
work stations at the start of their shift, prohibiting employees from
changing clothes while on the timeclock, advising employees what to do
and whom to call in the case of an industrial accident, reminding employ-
ees of safety procedures and requiring the wearing of safety gloves, hard-
hats and earplugs, and announcing Respondent's intention to strictly en-
force the existing attendance policy, are rules or policies which have
been unilaterally instituted by Respondent without objection from the
Union.
S See, for example, Medicenter, Mid-South Hospital, 221 NLRB 670, 676
(1975); Electrical Workers IBEW Local 1900 Y. PEPCO, 121 LRRM 3071,
3072 (D.D.C. 1986).
Respondent argues that the new drug/alcohol testing
policy is similar to other longstanding rules regarding the
use of alcohol or drugs, and thus must necessarily have
been contemplated by the parties at the time the current
contract was entered into . However, the preexisting rules
are materially different. Thus, only new hires have been
subject to drug/alcohol testing. Thereafter the employ-
ees, in accordance with the prior rules, were subject to
discharge for drinking or possessing alcoholic beverages
on company premises or company time, or for reporting
to work while under the influence of drugs . Such rules
clearly encompass only the Respondent's legitimate con-
cern with the employees ' on-the-job work performance,
and not with their private lives.
The new drug/alcohol testing policy, however, even
though administered only in connection with injuries re-
quiring treatment, may apprise Respondent of employees'
propensities to use drugs or alcohol at any time and thus
are not limited to the workplace . While the Respondent
argues that this Respondent is of no consequence, par-
ticularly as it has taken no adverse action against those
employees testing positive or refusing to be tested, there
is clear cause for concern that the Respondent may, in
the future , decide to discharge or otherwise discipline
such employees ; or that the result of the testing may be
utilized , objectively or subjectively , by Respondent' in
regard to future promotions or benefits ; or that, indeed,
the very livelihoods of employees may be compromised
by erroneous test results . All of the foregoing consider-
ations are matters which must necessarily be of the
utmost concern to the employees and therefore to their
bargaining representative . Moreover, Larry Johnson, Re-
spondent 's vice president , testified that an increase in Re-
spondent's accident experience rating caused Respondent
to believe that there was a probability of drug related ac-
cidents and that "we were wanting some way to enforce
our [drug] policies ." Such testimony clearly reflects Re-
spondent 's intention to use the results of the testing for
purposes of supporting a decision to discipline or dis-
charge employees.
The following principal cases cited by the Respondent
are instructive but inapposite to the instant factual situa-
tion . In Continental Telephone , 274 NLRB 1952 ( 1985),
the Board determined that the management-rights clause
giving the employer the right to promulgate and change
rules and regulations did not alone confer upon the em-
ployer the right to unilaterally alter its attendance policy.
Rather, the management-rights provision coupled with
the fact that the employer had consistently, without ob-
jection from the Union, made past changes in its'attend-
ance policy, established that the Union had waived its
bargaining rights. And the Board applied a similar ration-
ale in Emery Industries, 268 NLRB 824 (1984), which
also involved unilateral revisions of an employer's absen-
teeism policy.
Respondent places reliance on a 1983 arbitration deci-
sion in which it was found that the contract then : in
effect, which contained the same management -rights
clause involved herein , permitted the Respondent to pro-
mulgate a new work rule requiring employees to notify
management in writing of their ' reasons for not being
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
able to work scheduled overtime , and to discipline em-
ployees for failure to comply . However, the contract
also contained the following provision : "Employees will
not unreasonably refuse to work overtime." Thus, the ar-
bitrator determined - that under the contract , management
had the right to determine the reasonableness of an em-
ployee's refusal to work overtime , and that if the excuse
was in writing , pursuant to the new work rule, this
would "reduce unnecessary disputes over who said
what." Clearly, this interpretation of the contract which
contains a specific overtime provision , sheds no light on
the issue herein where the contract is silent about
drug/alcohol testing.
Respondent maintains that the case should be dis-
missed on the authority of NCR Corp., 271 NLRB 1212
(1984), in which the Board determined that the employer
and union, which had been given notification of the em-
ployer's intent to transfer bargaining unit work 4 months
in advance of implementation but did not request bar-
gaining , had equally, plausible interpretations of specific
contract provisions dealing with the dispute in question.
Deciding that "the Board will not enter the dispute to
serve the function of an arbitrator in determining which
party's interpretation is correct," the Board dismissed the
complaint . In the instant case , however, there are no spe-
cific contract provisions dealing with drug/alcohol test-
ing. Moreover , the Respondent announced the new
policy without prior notification to the Union , and there-
after implemented the policy after a timely protest by the
Union that the Respondent 's unilateral conduct was un-
acceptable and that the Union had been given no oppor-
tunity to bargain . See Caravelle Boat Co., 227 NLRB
1355, 1358 (1977).
Finally, the Respondent does not propose that this
matter be deferred to the grievance procedure under
Collyer Insulated Wire, 192 NLRB 837 (1971). Thus, the
Respondent maintains in its brief that the Union did not
file a timely grievance but rather let the time for filing a
grievance expire and that the "Board should hold the
Union to its bargain ." Thus, it is clear that Respondent is
not willing to waive any timeliness provisions of the con-
tractual grievance language . See United Technologies
Corp., 268 NLRB 898 (1973).
Based on the foregoing , I conclude that neither the
contract nor the past practice of maintaining and enforc-
ing the aforementioned rules regarding the use of drugs
or alcohol ,, nor a combination of both the contract lan-
guage and past practice , permits the Respondent to uni-
laterally implement a rule of this nature . I therefore find
that Respondent has violated Section 8 (a)(5) and (1) of
the Act, as alleged.
2. The attendance incentive program
The contract language specified above permits the Re-
spondent to pay additional pay or benefits to any em-
ployee . As incentive pay constitutes additional pay or
benefits, it appears that the contract language permitting
the Respondent to do what it did is "clear and unmistak-
able."e Indeed , the General Counsel does not point out
6 See cases cited at fn 3, supra.
any ambiguity in this language , and the record contains
no evidence of past history or prior bargaining negotia-
tions which would tend to limit the Respondent's con-
tractual right to make unilateral changes of this nature.
I shall therefore dismiss this allegation of the com-
plaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following described employees of Respondent
constitutes a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
Included: All production and maintenance em-
ployees employed by Respondent at its Etiwanda,
California facility.
Excluded: All office clerical employees, truck
drivers, guards , and supervisors, as defined in the
Act.
4. At all times material herein the Union has been the
exclusive collective-bargaining representative of the em-
ployees in the aforesaid appropriate unit within the
meaning of Section 9(a) of the Act.
5. By unilaterally promulgating a Drug /Alcohol Test-
ing Program effective 1 December 1986 without first
bargaining with the Union, Respondent has engaged in
and is engaging in unfair labor practice within the mean-
ing of Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. The Respondent has not committed any other unfair
labor practices as alleged.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and that it take certain affirmative
action to effectuate the policies of the Act. Respondent
has unlawfully and unilaterally instituted a Drug/-
Alcohol Testing Program effective on 1 December 1986.
As a result of said unlawful conduct I shall recommend
that Respondent be ordered to cease and desist from uni-
laterally instituting any such program . Affirmatively, I
shall recommend that Respondent rescind the 1 Decem-
ber 1986 Drug/Alcohol Testing Program and, on re-
quest, bargain with the Union about the implementation
of any such program governing employees represented
by the Union.
I shall also recommend that Respondent fully restore
the status quo ante which existed at the time of its un-
lawful actions by removing from the files of employees
all memoranda , reports or other documents resulting
from the application of the program.
JOHNSON-BATEMAN CO. 195
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Johnson-Bateman Company, Eti-
wanda , California , its officers , agents, successors , and as-
signs, shall
1. Cease and desist from
(a) Instituting unilaterally and thereafter enforcing a
Drug/Alcohol Testing Program without first bargaining
with the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing any employee in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Cancel, withdraw, and rescind the 1 December
1986 Drug/Alcohol Testing Program in effect as to em-
ployees represented by the Union.
(b) Remove from the files of unit employees notices,
memoranda, or reports resulting from the application of
the program.
(c) Bargain collectively , on request , with the above-
named Union as the exclusive representative of the em-
ployees of the appropriate unit described above, concern-
ing the Drug/Alcohol Testing Program and embody any
understanding reached in a signed agreement.
(d) Post at its Etiwanda, California facility copies of
the attached notice marked "Appendix."s Copies of said
notice on forms provided by the Regional Director for
Region 31 , after being signed by the Respondent's au-
thorized representative , shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable set F shall
be taken by Respondent to ensure that said notices are
not altered , defaced , or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
7 If no exceptions are filed as provided by Sec . 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
Order shall , as provided in Sec. 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
8 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al 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 "