Pennsylvania Power Co.

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1104 (N.L.R.B. 1991)

PENNSYLVANIA POWER CO.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
301 NLRB No. 138
Pennsylvania Power and Light Company and Local 1600, International
Brotherhood of Electrical Workers, AFL-CIO. Case 4-CA-16213
FEBRUARY 28, 1991
DECISION AND ORDER•
BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT
On January 21, 1988, Administrative Law Judge Walter H. Maloney
issued the attached decision. The Respondent, the General Counsel, and
the Charging Party filed exceptions, supporting briefs, and reply
briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to affirm the judge's rulings,\1\
findings, and conclusions only to the extent consistent with this
Decision and Order.\2\
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\1\The judge failed to rule on the Charging Party's motion to reopen
the record but relied on the evidence it sought to introduce in his
decision. We find sufficient record evidence to support his decision and
find the error harmless, however.
\2\The General Counsel's request for a visitatorial clause is denied
as unnecessary. Cherokee Marine Terminal, 287 NLRB 1080 (1988).
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A. FACTS
The Respondent is a large public utility employing approximately
5000 bargaining unit employees. The collective-bargaining agreement
between the parties includes grievance and arbitration provisions. In
January 1984, the Respondent implemented a drug and alcohol policy\3\
which prohibits, inter alia, the use, sale, or possession of drugs on
company property by employees and prohibits drug use during off-hours if
that use impairs on-the-job performance. Pursuant to this policy an
employee may be sent to a physician for blood and urine testing if there
is a ``suspicion'' that he is under the influence of drugs. If an
employee refuses to see the physician or to be tested, he is sent home
and suspended; if the employee does not cooperate with a medical
evaluation following testing, he will usually be terminated.
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\3\It is unclear from the record whether the policy was unilaterally
imposed. No party has alleged that implementation of the policy was
unlawful.
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In October 1985, the Union discovered that 16 employees had been
tested pursuant to the Respondent's drug policy. Six employees tested
negative and were retained. Ten employees tested positive: five were
suspended and five were discharged.\4\ In October 1985, the Union filed
grievances on behalf of each employee who was tested and one overall
grievance challenging the validity of the testing procedure.\5\ All the
grievances were denied, and in March 1986 the Union demanded
arbitration.
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\4\The judge stated that employees who tested negative were
disciplined. Only employees who tested positive were disciplined.
1
\5\The arbitration hearing was being conducted at the same time as
the hearing before the judge.
The Respondent excepts, inter alia, to the judge's finding that the
Union's grievance attacked the accuracy of the drug tests. We have
examined the exhibits and agree, but we find this error harmless.
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Sometime between October 1985 and January 1986 the Union became
aware that the Respondent had obtained information by the use of
informants and made several oral requests for their names and any
information they had provided.\6\ On September 29, 1986, the Union made
a written request for the names of the informants who supplied the
information that led to the investigation, statements (either oral or
written) made by the informants that led the Company to investigate the
employees, names of individuals present during any interviews with the
informants, and copies of any minutes kept during these interviews. The
Respondent replied on November 17, 1986, and supplied the name of the
management representative present during the interviews but refused to
supply the names of the informants or any of their statements, asserting
that it had promised them confidentiality and that prevailing Board law
protected the statements from disclosure. The Union, after filing unfair
labor practice charges with the Board, made another request on November
21, 1986, for the identity of the informants and their statements. It
also requested certain other information including the names of the
employees who were investigated, the accreditation of the facilities
used for testing, the names of the management personnel who conducted
the interviews, the dates and places of the interviews and names of
persons who were present, and copies of all statements signed by
employees who were interviewed. The Respondent supplied the Union with
all this later-requested information but continued to refuse to disclose
the identity of the informants, any statements made by them, or the
minutes of interviews.
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\6\The Respondent refused to state the number of informants it used.
It is clear, however, that there was at least one. Also, the record is
unclear, and the Respondent refused to stipulate, whether the informants
in this case were unit employees.
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The judge found that the Respondent violated Section 8(a)(5) and (1)
by refusing to supply the Union with the names and addresses of the
informants, but did not violate the Act by refusing to provide the Union
with the informants' statements, minutes of investigative meetings with
them, or summaries thereof. The Respondent excepts to the judge's former
finding and the General Counsel and the Charging Party except to his
latter findings. For the reasons set forth below, we find merit in each
of the parties' exceptions.
B. ANALYSIS
An employer has a statutory obligation to supply requested
information that is potentially relevant and will be of use to the union
in fulfilling its responsibilities as the employees' exclusive
bargaining representative. NLRB v. Acme Industrial Co., 385 U.S. 432,
435-436 (1967). Information concerning wage rates, job descriptions, and
other information pertaining to employees within the bargaining unit is
presumptively relevant, Curtiss-Wright Corp., 145 NLRB 152 (1963), enfd.
347 F.2d 61 (3d Cir. 1965), whereas the relevancy of requested
information pertaining to employees outside the bargaining unit must be
demonstrated by the union. Adams Insulation Co., 219 NLRB 211 (1975);
Curtiss-Wright Corp., supra. The standard for relevancy in either
situation is the same: a liberal ``discovery-type standard.'' Acme
Industrial, supra at 437 and fn. 6. Thus, the information need not be
dispositive of the issue between the parties but must merely have some
bearing on it.
In general, the Board and the courts have held that information that
aids the arbitral process is relevant and should be provided. Acme
Industrial, supra at 438. In this regard, the relevancy of information
and the concomitant duty to furnish it are not affected by whether the
2
request for information is made at the grievance stage or after the
parties have agreed to arbitration. Fawcett Printing Corp., 201 NLRB
964, 972 (1973); Chesapeake & Potomac Telephone Co., 259 NLRB 225, 227
(1981). This is so because the goal of the process of exchanging
information is to encourage resolution of disputes, short of arbitration
hearings, briefs, and decision so that the arbitration system is not
``woefully overburdened.'' Acme Industrial, supra at 438.
Moreover, information of ``probable relevance'' is not rendered
irrelevant by an employer's claims that it will neither raise a certain
defense nor make certain factual contentions, because ``a union has the
right and the responsibility to frame the issues and advance whatever
contentions it believes may lead to the successful resolution of a
grievance.'' Conrock Co., 263 NLRB 1293, 1294 (1982). Further, because
the Board, in passing on an information request, is not concerned with
the merits of the grievance, it is also not ``willing to speculate
regarding what defense or defenses an employer will raise in an
arbitration proceeding.'' Id. at 1294.
A union's interest in information, however, will not always
predominate over other legitimate interests. As stated by the Supreme
Court in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979), ``a union's
bare assertion that it needs information to process a grievance does not
automatically oblige the employer to supply all the information in the
manner requested.'' Id. at 314. In Detroit Edison, the union requested
information concerning job aptitude tests in connection with the pursuit
of grievances alleging that the tests had been unfairly used to deny
unit employees promotions. The employer supplied the union with some,
but not all, of the requested information.\7\ The Board found all the
requested information relevant, rejected the employer's claim that its
need to keep the withheld information confidential outweighed the
union's need for it, and ordered the employer to submit the information
directly to the union, subject only to restrictions on disclosure of the
test's contents to employees. The Supreme Court refused to enforce the
Board's Order and was especially critical of its failure to accord
proper weight to the employer's need to keep the information
confidential: ``the strength of the company's concern [for
confidentiality] has been abundantly demonstrated. The Board has cited
no principle of a national labor policy to warrant a remedy that would
unnecessarily disserve this interest, and we are unable to identify
one.'' Ibid. The Court ruled that as to the tests and answer sheets, the
employer had demonstrated the need for secrecy and held that the
safeguards imposed by the Board did not adequately protect their
security. We find the Court's comments on confidentiality particularly
instructive here. As to disclosure of the test scores, the Court
accepted the Board's conclusion that the scores were relevant but held
that this was a situation in which an employer's conditional offer was
warranted. The Court ruled that the employer had a ``well-founded
interest'' in preserving employee confidence in the testing program and
that there would be only a ``minimal burden'' placed on the union in
complying with the company's offer of disclosing the test scores only on
receipt of a consent form from the examinees. Id. at 319.
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\7\The employer had refused to turn over the test questions, the
employee answer sheets, and the test scores linked with the names of
employees. It did, however, offer to turn over the score of any employee
who waived confidentiality. The union declined to seek the waivers.
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It is clear from the foregoing that in dealing with union requests
for relevant, but assertedly confidential information, the Board is
required to balance a union's need for the information against any
``legitimate and substantial'' confidentiality interests established by
the employer. The appropriate accommodation necessarily depends on the
particular circumstances of each case. The party asserting
confidentiality has the burden of proof.\8\ Legitimate and substantial
confidentiality and privacy claims will be upheld,\9\ but blanket claims
of confidentiality will not.\10\ Further, a party refusing to supply
information on confidentiality grounds has a duty to seek an
accommodation. Thus, when a union is entitled to information concerning
3
which an employer can legitimately claim a partial confidentiality
interest, the employer must bargain toward an accommodation between the
union's information needs and the employer's justified interests.\11\
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\8\Washington Gas Light Co., 273 NLRB 116, (1984).
\9\See, e.g., Minnesota Mining & Mfg. Co., 261 NLRB 27 (1982), enfd.
sub nom. Oil Workers v. NLRB, 711 F.2d 348 (D.C. Cir. 1983), in which
the Board adopted the judge's conclusion that identifying data such as
names, addresses, and social security numbers could be excluded from
individual medical records before being disclosed. See also Borden
Chemical, 261 NLRB 64 (1982), enfd. sub nom. Oil Workers v. NLRB, supra.
(Respondent entitled to bargain with the union over disclosure of
substances which the respondent claimed constituted confidential trade
secrets.)
\10\Washington Gas Light Co., supra at 117.
\11\Minnesota Mining & Mfg. Co., supra at 32. See also Borden
Chemical, supra.
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C. POSITIONS OF THE PARTIES
The Union originally sought the names of the informants who supplied
the information that led to the investigation, statements (either oral
or written) made by the informants that led to the investigation, the
names of individuals present during any interviews with the informants,
and any copies of the minutes kept during interviews with the
informants. The General Counsel contends that the Respondent has a duty
to furnish this information because it is relevant to the grievances
filed; that is, the information would aid the Union in evaluating the
propriety of proceeding with a pending arbitration. Acme Industrial,
supra. The Charging Party supports the General Counsel in these
claims.\12\
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\12\The Charging Party, in its exceptions, argues that it should be
provided with the actual statements of the informants or, in the
alternative, the substance of those statements. The General Counsel in
its amended complaint sought only the substance of the statements.
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The Respondent contends that it has no duty to provide any of the
requested information. It asserts that it has a clear interest in
keeping all the requested information confidential and that in Detroit
Edison, the Supreme Court recognized that a union's interest in
information will not necessarily outweigh all other interests, however
legitimate. Relying on Anheuser-Busch, Inc., 237 NLRB 982 (1978), in
which the Board found that a refusal to provide prearbitration
disclosure of witness statements did not violate Section 8(a)(5) and
(1), the Respondent also contends that the statements do not have to be
disclosed.
The General Counsel and Charging Party counter that, at a minimum,
summaries of the informants' statements are necessary for the Union to
perform its function as exclusive bargaining representative and,
further, that the judge correctly ordered the names and addresses of the
informants to be disclosed based on Transport of New Jersey, 233 NLRB
694 (1977).\13\
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\13\In Transport of New Jersey, the Board found that an employer was
required to disclose to the union the names and addresses of bus
passengers who had witnessed an accident.
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We have carefully balanced the Respondent's interest in maintaining
the confidentiality of the identity of its informants and the contents
of their disclosures and the Union's need for information to evaluate
the basis of the decision to test the employees. We find that the
Respondent did not violate Section 8(a)(5) and (1) by refusing to
disclose to the Union, in a case involving the possible impairment of
employee job performance by the use of illegal drugs, the names and
addresses of the informants or the informants' statements. We also find,
4
however, that the Respondent's refusal to provide a summary of the
informants' statements in these circumstances did violate Section
8(a)(5), and we do so for the following reasons.\14\
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\14\We adopt the judge's dismissal of 8(a)(5) allegations with
regard to the Respondent's refusal to disclose minutes of the
investigative meetings.
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D. DISCUSSION AND CONCLUSIONS
At the outset, we reject the Respondent's contention that the
requested information is not necessary to pursue the grievances because
any discipline imposed on the employees was based on the test results
and not on information obtained from the informants. As noted above, a
party's guarantee that it will not advert to certain issues or defenses
at arbitration is not a defense to a refusal to provide requested
information. Conrock Co., supra. Instead, we agree with the judge that
``[t]he accusation is what set the entire machinery in motion. Without
it there would be no interview, no test, no suspension, and no
discharge.'' Thus, the issue before us is not the Respondent's
obligation regarding disclosure of information needed to determine its
basis for imposing the discipline, but the Respondent's obligation
regarding the information that led it to test those specific 16
employees. In other words, the information at issue here is that on
which the Respondent relied to form its ``suspicion'' and to test the
employees.
The Respondent's disciplinary system is triggered by a ``suspicion''
that an employee may be under the influence of drugs. The Union is
arguing before the arbitrator that the Respondent violated the
provisions of its own policy because it lacked ``suspicion'' to test the
employees for drugs in the first place. The Respondent admits that it
relied on the informants' reports, yet it refuses to supply to the Union
any information contained in those reports. Although ``suspicion'' is a
minimal standard, it is nonetheless one to which the Respondent has
committed itself, and, moreover, one that permits a conclusion that the
standard has been violated. For all the Union knows, the Respondent
might have acted on tips that were based not on behavior indicating drug
use, but on personal animus or other specious motivation. Information
about what led the Respondent to order the employees tested would lend
support to union arguments that the Respondent had no grounds for its
``suspicion'' and thus no reason to test employees. Conversely, such
information might well indicate to the Union that further pursuit of the
grievances would be fruitless. Acme Industrial, supra at 438. Thus, the
Union has a strong interest in obtaining at least the essentials of the
information on which the Respondent relied so that it may determine if
the Respondent met this standard. The Respondent's refusal to provide
the Union, after request, with this information leaves the Union with no
recourse other than to pursue the grievances without any concrete
information whatsoever as to the actual basis for the Respondent's
``suspicion.''
With regard to the identity of the informants, the circumstances
here compel us to conclude that, in which its efforts to control
possible drug-related impairment of employee job performance are
involved, the Respondent's confidentiality interests are entitled to
unusually great weight. The connection of confidentiality to the safety
of the public and other employees and to job performance is plain here.
The Respondent's workplace includes both nuclear and fossil power
production plants as well as other inherently dangerous work settings
that make the need for a drug-free environment both obvious and
necessary. The Respondent contends that if it is not able to maintain
strict confidentiality in its drug program, informants will be deterred
from coming forward with information regarding drug use by other
employees. The Respondent further claims that identifying informants
potentially subjects them to harassment. We find these arguments
persuasive. Like the employer in Detroit Edison, supra, the Respondent
has demonstrated the strength of its concerns, and we find no national
5
labor policy warranting a remedy that would ``unnecessarily disserve''
the legitimate interest in confidentiality here. Detroit Edison, supra,
440 U.S. at 341. Although we agree that the names and addresses of the
informants here are relevant to the Union's collective-bargaining
responsibilities, we find that in investigations of this kind of
criminal activity, a potential for harassment of informants, with a
concomitant chilling effect on future informants, it is sufficiently
likely that the Respondent has a legitimate interest in keeping the
informants' identities confidential and that this confidentiality
interest outweighs the Union's need for the informants' names and
addresses. For a discussion of similar considerations in other contexts,
see Hodgson v. Charles Martin Inspectors of Petroleum, 459 F.2d 303,
305-307 (5th Cir. 1972), and Donovan v. Forbes, 614 F.Supp. 124, 126
(D.Vt. 1985). See also Roger J. Au & Sons v. NLRB, 538 F.2d 80, 83 (3d
Cir. 1976). We therefore hold that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing to supply them to the
Union.\15\
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\15\We find this case distinguishable from Transport of New Jersey,
supra, a case in which the Board found the danger of harassment
speculative at most when the witnesses were passengers in a bus involved
in an accident. The potential for harassment is far greater here where
alleged criminal activity in the workplace is under investigation.
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By contrast, we are not persuaded that the Respondent's
confidentiality and other interests outweigh the Union's need for any
information with respect to the context of what the informants told the
Respondent. The Union was denied any information on which to determine
what initially led the Respondent to form its ``suspicion'' to test the
16 employees. We agree with the judge that the Respondent did not
violate Section 8(a)(5) and (1) by refusing to supply the informants'
statements, and we adhere to our holding in Anheuser-Busch, supra.
Balancing the competing interests, however, we find, contrary to the
judge, that the Respondent is required to supply the Union with a
summary of the informants' statements. This summary should be drafted to
include the information on which the Respondent relied to meet the
threshold ``suspicion'' standard for performing the drug tests. As we
have found that the Respondent's interest in protecting the identity of
informants is overwhelming, this summary need not, however, contain any
information from which the identity of the informants can be
ascertained, and any doubt whether the information can be used to
identify the informants should be resolved in favor of nondisclosure. In
our view, such a summary should be sufficient to give the Union notice
of whether the Respondent satisfied the ``suspicion'' standard.\16\
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\16\We note that the Respondent will carry the burden before the
arbitrator of establishing that it had reasonable suspicion, as
specified in the contract, for testing the grievants. It therefore will
suffer the consequences in the arbitration if the arbitrator determines
that the evidence proffered by the Respondent to establish reasonable
suspicion is insufficient. We are assuming, of course, that the
Respondent is not planning to present its informants as witnesses in the
arbitration proceeding. The Respondent cannot legitimately claim a need
to keep their identities secret if it plans to have them testify.
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Requiring a carefully drafted summary of the informants' statements
to be disclosed, but not the statements themselves or the names of the
informants, is consistent with prior Board rulings in this area. In
Anheuser-Busch, the Board found that the witnesses' statements did not
have to be disclosed, but in that case the union already possessed the
substance of the affidavits as well as the identity of most of the
affiants. In Columbus Products Co., 259 NLRB 220 (1981), the Board did
not require disclosure of the names of employees who had allegedly been
instructed to disobey orders, concluding that such disclosure would not
enable the union to represent employees more effectively. The Board
reached this conclusion, however, only after acknowledging that the
union had already been informed of the substance of the statements
6
pertaining to the conduct which was the subject of the grievance.
It is incumbent on us to examine the facts of this case in light of
the surrounding circumstances. To overlook the pervasive drug problem in
this country and in the workplace, and to disregard the violence that
accompanies that national concern would be unrealistic and contrary to
national policy.\17\ This case compels us to weigh these formidable
problems against a national labor policy which favors disclosure of
information. We find that the accommodation we have made today achieves
the proper balance among the Respondent's desire and need to maintain a
safe, drug-free workplace, the employees' right to privacy, the Union's
right to information, and society's goal of curbing the national drug
epidemic. The Respondent will be required to furnish the Union with a
summary of the information it relied on to meet the ``suspicion''
standard it had to meet to require the drug tests, but need not contain
any information from which the identity of the informants can be
ascertained.\18\
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\17\For example, see Executive Order 12564, 51 Fed.Reg. 32,889
(1986), signed by President Reagan on September 15, 1986, calling for
various measures designed to create a ``drug-free Federal workplace.''
\18\We recognize that the remedy ordered here deviates in some
respects from the Board's usual view that parties should bargain over
the disclosure of partially confidential information. However, we view
this departure as necessitated by the peculiar circumstances of this
case and the strong interest in fostering efforts to create safe and
drug-free workplaces.
In agreeing with his colleagues, Member Devaney stresses that he
accords decisive weight in this matter to the public policy of
encouraging employers--and labor organizations--to work toward providing
drug-free workplaces.
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In all other respects the complaint is dismissed.
ORDER
The National Labor Relations Board orders that Pennsylvania Power
and Light Company, Allentown, Pennsylvania, its officers, agents,
successors, and, assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with Local 1600, International
Brotherhood of Electrical Workers, AFL-CIO, as the exclusive collective-
bargaining representative of the employees listed in article I, section
1A, of the collective-bargaining agreement in force and effect between
the Respondent and the Charging Party between July 29, 1985, and July
24, 1988.
(b) Failing and refusing to supply the Union, on request, with a
summary of the statements provided by the informants, on which the
Respondent relied to form its ``suspicion'' to perform the drug tests.
This summary need not contain any information from which the identity of
the informants can be ascertained, and any doubt whether the information
can be used to identify the informants should be resolved in favor of
nondisclosure.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the
policies of the Act.
(a) Recognize and, on request, bargain collectively with the Union
as the exclusive collective-bargaining representative of the
Respondent's employees employed in a bargaining unit described in
article I, section 1A, of the collective-bargaining agreement in force
and effect between the Respondent and the Charging Party between July
29, 1985, and July 24, 1988.
(b) On request, provide the Union with a summary of the statements
provided by the informants, on which the Respondent relied to form its
``suspicion'' to perform the drug tests. This summary need not contain
any information from which the identity of the informants can be
7
ascertained, and any doubt whether the information can be used to
identify the informants should be resolved in favor of nondisclosure.
(c) Post at all of its facilities in northeastern Pennsylvania
copies of the attached notice marked ``Appendix.''\19\ Copies of the
notice, on forms provided by the Regional Director for Region 4, after
being signed by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
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\19\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
National Labor Relations Board'' shall read ``Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.''
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(d) Notify the Regional Director for Region 4 in writing within 20
days from the date of this Order what steps the Respondent has taken to
comply.
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 refuse to bargain collectively with Local 1600
International Brotherhood of Electrical Workers, AFL-CIO as the
exclusive bargaining representative of our employees who are employed in
a bargaining unit described in article I, section 1A, of the collective-
bargaining agreement in effect between ourselves and the Charging Party
from July 29, 1985, to July 24, 1988.
We will not in any like or related manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you by Section 7
of the Act.
We will, on request, provide the Union with a summary of the
statements provided by the informants, on which the Respondent relied to
form its ``suspicion'' to perform the drug tests. This summary need not
contain any information from which the identity of the informants can be
ascertained, and any doubt whether the information can be used to
identify the informants should be resolved in favor of nondisclosure.
Pennsylvania Power and Light Company
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Susan Stahl, Esq., for the General Counsel.
Larry J. Rappoport, Esq., of Philadelphia, Pennsylvania, for the
Respondent.
Ira H. Weinstock, Esq., of Harrisburg, Pennsylvania, for the Charging
Party.
DECISION
Statement of the Case
Walter H. Maloney, Administrative Law Judge. This case came on for
for hearing before me at Bethlehem, Pennsylvania, on an unfair labor
8
practice complaint,\1\ issued by the Regional Director for Region 4,
which alleges that Respondent Pennsylvania Power and Light Company\2\
violated Section 8(a)(1) and (5) of the Act. More particularly, the
complaint, as amended, alleges that the Respondent refused to supply the
Union with information concerning the identity of informants who
provided the Respondent with information concerning drug use by
Respondent's employees and further refused to supply the Union with
copies of statements, or summaries thereof, made by informants, as well
as minutes of interviews with informants, relating to alleged drug use
by company employees. Respondent admits that it has refused to supply
such information with respect to some 16 bargaining unit employees who
were accused of using illegal drugs and justifies its refusal on the
basis that such information is confidential. On these contentions the
issues here were joined.
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\1\The principal docket entries in this case are as follows:
Charge filed against the Respondent by Local 1600, International
Brotherhood of Electrical Workers, AFL-CIO (the Union), on November 19,
1986; complaint issued against Respondent by Regional Director for
Region 4, on January 30, 1987; Respondent's answer filed on February 10,
1987; complaint amended on July 21, 1987; Respondent's answer to amended
complaint filed on August 17, 1987; hearing held in Bethlehem,
Pennsylvania, on October 14, 1987; briefs filed with me by the General
Counsel, the Charging Party, and the Respondent on or before November
30, 1987.
\2\Respondent admits, and I find, that it is a Pennsylvania
corporation which operates as a public utility and provides electricity
to customers located in some 29 counties in northeast Pennsylvania. In
the course and conduct of this business, it annually receives gross
revenues in excess of $250,000 and purchases electricity valued in
excess of $5000 at its Pennsylvania places of business directly from
points and places located outside the Commonwealth of Pennsylvania.
Accordingly, the Respondent is an employer engaged in commerce within
the meaning of Sec. 2(2), 6), and (7) of the Act. The Union is a labor
organization within the meaning of Sec. 2(5) of the Act.
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Findings of Fact
i. unfair labor practices alleged
The Respondent is a large public utility which generates and
distributes electricity to residential and commercial customers
throughout 29 counties in northeast Pennsylvania. Its headquarters is in
Allentown, but it maintains shops, plants, offices, and distribution
lines throughout its service area. Respondent employs about 5000
individuals in a bargaining unit represented by the Charging Party. The
unit includes production, maintenance, repair, and office clerical
employees. Both the Charging Party and the Respondent have had an
ongoing collective-bargaining relationship for many years and are
parties to a contract which includes both grievance and arbitration
provisions.
On January 18, 1984, the Respondent inaugurated a drug and alcohol
policy and, in pursuance of this effort, distributed to all its
employees a detailed explanation of the various elements of its policy
and the procedures which it would follow in implementing it. Among other
things the policy prohibits the use, possession, or sale of drugs on
company property and also prohibits the use of drugs by employees during
their off-duty hours if such use impairs their effectiveness during the
hours of their employment.
The policy encourages employees who have a drug problem to request
assistance from the Employee Consultation Service. It also provides for
disciplinary action to be taken against those who have been found to
have violated its provisions. One facet of the Respondent's announced
procedure is a requirement that, where there is reason to believe that
an employee may be under the influence of drugs, the employee may be
required to undergo blood and urine testing. Refusal by an employee to
9
submit to drug screening will normally result in suspension, and a
refusal by an employee to cooperate with a medical evaluation resulting
from screening will normally result in termination.
In October 1985, the Charging Party became aware of the fact that
some 16 unit employees\3\ who were under suspicion for drug use had been
tested by the Respondent in accordance with the announced policy. Six
employees tested negatively and were retained in employment, although
the fact that they had been tested appears in their respective personnel
folders. Five employees tested negatively and were suspended; five
others tested negatively and were discharged. In October 1985, the
Charging Party filed 17 grievances relating to the drug testing of these
employees. One grievance is a general one relating to the overall
procedure used in the testing of employees. The other 16 are individual
grievances pertaining to 16 employees who were tested. Those grievances
are presently pending before Arbitrator Richard Block, who was
conducting a lengthy arbitration hearing during the same period of time
that this case was being heard.\4\
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\3\In its brief the Respondent states that in fact 18 employees were
screened for drug and alcohol use but that grievances concerning the
screening were not filed by 2 employees who tested negatively.
\4\At the conclusion of the hearing in this case, the Charging Party
requested and was given permission to place in the record excerpts from
the transcript of the arbitration hearing or any other documentary
evidence before the arbitrator which might be relevant and material to
this inquiry. The record was held open in this manner in order to
obviate a delay in this hearing or a formal resumption of the hearing in
this case. The Charging Party has filed a motion to reopen the record to
submit, as Exh. 1 an instruction sheet and list of questions used by
company interrogators in interviewing employees suspected of illegal
drug use. Also submitted was Exh. 2, which consists of excerpts from the
testimony of Respondent's vice president for human relations and
development, Richard Gombos, before the arbitrator hearing the drug
testing grievances. As the record in this case was left open for
submission of this kind of evidence, it was not necessary for the
Charging Party to move to reopen the record to submit it. The evidence
in question has some relevance to the issues in this case and is
admitted as C.P. Exhs. 1 and 2.
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The employees whose grievances are now in arbitration were
identified as drug users or sellers by one or more informants, who
submitted this information to Ronald Newman, a company security officer.
As a result of these identifications, each suspected drug user or seller
was interviewed privately by a company official. The text of a standard
interview, as contained in the outline furnished each interrogator,
included the following statement:
We are here to ask you some questions. We hope you will
cooperate with us. This interview is part of a Company
investigation relating to the use and abuse of drugs by
Company employees. As you know, the Company has a policy
on drugs. Employees are not to sell, use, possess, or
purchase drugs on Company property or on Company time.
Off-hours drug use which may adversely affect an employee
or the interests of the Company is likewise subject to the
policy on drugs.
The Company has certain information that you may have been
involved in drugs contrary to the policy on drugs. This
information plus any additional information obtained
during this investigation will be used to determine if any
discipline--up to and including discharge--is appropriate.
Also, information obtained during this investigation may
be provided to law enforcement authorities by the Company.
We are giving you an opportunity to respond today to the
information.
The interrogator was given certain written instructions. If an
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employee refused to answer any particular question, the interrogator was
directed to move on to the next question in the outline. The
interrogator was instructed to remind any employee who refused to answer
any questions that the Company was in possession of certain information
concerning his conduct and that it would turn that information over to
law enforcement authorities ``as appropriate.'' An interrogator was
instructed to say, if asked, that an employee was not required to answer
any question but that he had to remain for the duration of the
interview. In such an instance, the interrogator was instructed to skip
most of the questions on the interview sheet and concentrate on the six
questions listed below.
Among the 21 questions posed to each suspected employee were the
following, which were singled out with special significance in the
company instruction sheet. They were to be put to each employee ``as
appropriate,'' presumably meaning on the basis of the specific
information given to the Company by the informant:
5. The Company has information identifying you as a regular
user of cocaine and that you use this during (work hours/
non-working hours/both). Please comment.
9. The Company has information identifying you as a seller
of ________ on more than one occasion. Please comment.
10. Have you ever sold ________ to ________. If yes, when,
how often, where, how much, on PP&L property, on PP&L
time?
12. The Company has information identifying you as coming to
work or working while ``high.'' Please comment.
14. The Company has information identifying you as a
purchaser of ________ from ________. Please comment.
16. The Company has information identifying you as smoking
marijuana with others at ________. Please comment.
Employees who were interviewed
were also asked if they had any
information concerning drug
policy violations on the part of
other employees.
At the end of each interview, each employee was requested to sign a
release form authorizing a drug screen. Any who refused to sign were to
be informed that they would be immediately suspended for an indefinite
period of time until the Company might determine what, if any,
disciplinary action would be warranted.
The parties agreed to initiate a consideration of the 17 grievances
at the third step of the grievance procedure. The grievances attacked
the propriety of the testing procedure, the accuracy of the tests, and
the appropriateness of the discipline which was meted out to the 10
employees who were either suspended or discharged. All grievances were
denied. On March 20, 1986, the Union demanded arbitration.
Respondent insists that it took no disciplinary action based on
information derived from informants and that it decided to mete out
discipline solely on the results of drug screening. To date it has not
defended its actions before the arbitrator with the use of eyewitness
evidence of employee misconduct and states that its evidence to date in
the arbitration proceeding has been limited to the results of the
screening and expert testimony designed to explain the meaning and
significance of test results, and the methodology used. There is no
dispute that the only employees who were suspended or discharged were
those who tested positively following their interviews.
On January 3, 1986, the Union requested copies of the test results
of the screenings. Eventually this information was provided. Various
oral requests were also made relating to the identity of the informant
or informants and the information which they provided. On September 29,
1986, while the grievances were pending before the arbitrator but before
any hearings had begun, Union President-Financial Secretary Jon F.
Henrich wrote the following letter to Gary Saeger, the Respondent's
labor agreement administrator:
11
Local Union 1600 is again requesting the following
information as it relates to the company's drug
investigation, which commenced on October 22, 1985. This
led to investigation of approximately 16 bargaining unit
employees and discipline ranging from suspension to
discharge.
1. Name of informant(s) who supplied information that led to
the investigation.
2. Statements (either verbal or written) made by the
informant(s) that led the company to investigate
employees.
3. Names of individuals present during any interviews(s) of
the informant(s).
4. Copies of the minutes kept during any interview(s) of the
informant(s).
It is imperative that you provide this information
immediately, in order for the Union to properly represent
our members.
On November 17, 1987, Saeger replied to the Union's letter as
follows:
In answer to your most recent request for information in
connection with the referenced cases which are scheduled
for hearing on December 8, 1986, we respond as follows:
1. As we informed you at the Third Step meeting, the person
who initially provided us with information concerning drug
use by PP&L employees was assured confidentiality, and we
will honor that commitment. Moreover, none of the
information provided by that person served as the basis
for the discipline of any of the grievants.
2. Because of our confidentiality commitment and in
accordance with prevailing National Labor Relations Board
law, any statement provided by the person who furnished
the initial information is not subject to disclosure.
3. The person who provided us with the information
concerning drug use was interviewed by Ronald Newman, a
PP&L Corporate Security Agent.
4. For the same reason stated with respect to any statement
provided by the person who provided the company with
information, we are under no obligation to furnish any
minutes or notes taken by Mr. Newman during the interview.
On November 21 the Union submitted a second written request for
information, repeating in this letter its earlier request for the
identity of informants and statements made by them to the Company's
security officer. It enlarged its request to include the names of
employees who had been investigated, the accreditation of the facilities
used for the test, the types of tests administered, the names of
management personnel who conduct interviews of suspected drug users, the
dates and places of the interviews, the names of persons who were
present, and copies of all statements signed by employees who were
interviewed. The Respondent supplied the Union this additional
information but remained adamant in its refusal to identify informants
or supply statements made by informants or the minutes of interviews
between informants and the company security officer.
ii. analysis and conclusions
In 1967, the Supreme Court announced that the duty to bargain,
imposed on employers by Section 8(a)(5) of the Act, includes the duty to
provide collective-bargaining representatives with information in their
possession which is relative to actual or potential grievances which the
union might wish to press on behalf of its members. The statutory duty
to supply such information devolves on an employer before any
determination of relevance is made by an arbitrator, and it includes any
and all information which might be obtainable under a liberal discovery-
12
type standard of relevance. NLRB v. Acme Industrial Co., 385 U.S. 432
(1967). The Board is obligated to inquire into the substantive question
of why the particular information sought is relevant to a grievance or
arbitration issue which is or may be raised, but a showing of
probability of need by the union is sufficient. A union is not required
to disclose exactly why it is seeking the particular information
requested. Washington Star Co., 273 NLRB 391 (1984).
If an employer resists a union demand on the basis that relevant
information which is being sought in the context of a grievance or
arbitration proceeding is somehow confidential, it must show that the
employee whose confidentiality it is seeking to protect has not
consented to disclosure and that some consideration of overriding
importance, such as the ``sensitivity of any human being to disclosure
of information that may bear upon his basic competence,'' precludes
disclosure. Detroit Edison Co. v. NLRB, 440 U.S. 301, 318 (1979). This
rationale has been extended to protect medical records of employees who
have not consented to their release. Johns-Manville Sales Corp., 252
NLRB 368 (1980). The mere fact that an employer has promised
confidentiality to an individual or that the disclosure of information
in the possession of the employer might violate a canon of professional
ethics of some group is not a reason for withholding the information if,
in fact, it is relevant to the duty of a labor organization to file
grievances and undertake arbitrations on behalf of its members.
I am at a loss to understand why the Respondent refers to the
request for information in this case as a prearbitration disclosure,
inasmuch as an arbitration proceeding is well underway and the
information sought is for use in that proceeding. It is immaterial that
a union has already decided to grieve or to demand arbitration when it
makes its request for information. The duty to supply information
extends to material which is helpful in preparing a case for
arbitration, as well as information which would be helpful at the outset
in deciding whether or not to initiate a grievance. Chesapeake & Potomac
Telephone Co., 259 NLRB 225 (1981). The Respondent here insists that the
identity of a drug informant and the information provided by the
informant to the Company is not relevant to the arbitration proceeding
which is underway because the Company did not utilize this information
in determining to discipline the grievants and relied solely on results
of drug screening when it discharged or suspended anyone. This
contention is somewhat misleading and not entirely accurate. The
Respondent admits that, under its announced policy concerning drug and
alcohol abuse, it is not at liberty to conduct random testing among its
5000 unit employees. It must have probable cause before proceeding with
a test. The general or catchall grievance filed by the Union now pending
before the arbitrator asserts that the Respondent did not have probable
cause to test any of the 16 grievants who filed individual grievances.
In this case the Respondent tested at least 16 employees; 6 of them
tested negatively. Even if the Board should approve the questionable
doctrine that probable cause may be established by the results obtained,
the test results obtained in this case as to six individuals was
negative. A determination of probable cause in their cases must rest on
something more than what the Respondent has supplied the Union to date.
If probable cause for drug testing must be established by something
other than the test results, then the same consideration extends to the
grievants who tested positively.
Moreover, the 16 grievants who were singled out for testing by the
Respondent from a pool of 5000 employees were told by company officials
at preliminary interviews in effect that they could either consent to a
drug test or be suspended and possibly discharged. Under this procedure,
once an individual was identified by an informant or informants as a
drug or alcohol abuser, his job was in jeopardy. He could only save it
by consenting to a screening and this option provided no sure means of
retaining his employment status. In short, under the chain of events
disclosed in this record, the informant's accusation itself placed an
employee's job in jeopardy, so it is disingenuous to contend that
accusation was irrelevant to the outcome because an intervening event,
namely a positive test, had to occur before the Company decided to
invoke discipline. The accusation is what set the entire disciplinary
13
machinery in motion. Without it there would be no interview, no test, no
suspension, and no discharge. Under such circumstances, the relevance of
the identity of the informant can hardly be disputed.
The controlling case on this point is Transport of New Jersey, 233
NLRB 694 (1977), in which the Board required a bus company to supply the
names and addresses of witnesses to an accident in which the grievant
was the bus operator. The Board was confronted in that case with
arguments similar to the ones advanced here, namely that any discipline
to be meted out to the driver would be based solely on physical evidence
and not on the testimony of eyewitnesses and that disclosure of the
identities of passengers who were witnesses to the incident would expose
them to unnecessary harassment. The Board found that there was relevance
in the evidence sought to the grievance under consideration and held
that any possible harm resulting from disclosure of the identity of
witnesses was outweighed by the Union's need for information necessary
to perform its statutory function. While it is quite true in this case
that the disclosure of the identity of informants by the Respondent
might well chill any future effort on its part to induce other employees
to come forward with information leading to the exposure of other drug
users, serious consequences to an employee's job tenure result from such
accusations themselves, so it is not too much to ask of potential
accusers that they be willing to stand up and be counted when they set
in motion the investigative machinery which can lead to the suspension
or discharge of a fellow employee.
Not long after Transport of New Jersey, the Board refused to compel
an employer to disclose to a union written statements made by witnesses
in the possession of the employer which could form the basis for
employee discipline. The Board held that witness statements were
``fundamentally different'' from the information contemplated by the
Supreme Court in the Acme case since they involve ``critical
considerations'' which do not apply to other types of information
requests. Anheuser-Busch, Inc., 237 NLRB 892 (1978). The statements
requested in Anheuser-Busch would have required a prearbitration
disclosure by the employer while the information sought here pertains to
cases in which arbitration is well under way. I do not know if this
distinction is of critical significance in determining the
confidentiality of relevant statements, as distinguished from the names
of those who gave the statements, but it is a question for the Board to
resolve. Accordingly, I will dismiss so much of the amended complaint
which seeks to require the Respondent to disclose to the union witness
statements, minutes of investigative meetings with witnesses, or
summaries thereof.
The Charging Party argues that it makes little sense to require an
employer to disclose to a union, for purposes of grievance and
arbitration processing, the names of accusers but permits the substance
of their accusations to remain private. I am inclined to agree but, in
light of the decisional law on these points, this anomaly must be
addressed by the Board, not by an administrative law judge.
On these findings of fact and conclusions of law and on the entire
record here considered as a whole, I make the following
Conclusions of Law
1. Respondent Pennsylvania Power and Light Company is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Local 1600, International Brotherhood of Electrical Workers, AFL-
CIO is a labor organization within the meaning of Section 2(5) of the
Act.
3. All employees employed by the Respondent in a bargaining unit set
forth in article I, section 1A, of a collective-bargaining agreement
between the Respondent and the Charging Party, effective from July 29,
1985, through July 24, 1988, constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the exclusive
collective-bargaining representative of all employees in the unit
described above in Conclusion of Law 3 with respect to wages, hours of
14
employment, and other terms and conditions of employment, within the
meaning of Section 9(a) of the Act.
5. By failing and refusing to supply the Union, pursuant to its
request, with the names and addresses of a person or persons who
provided the Respondent with information relating to the use of drugs
and/or alcohol by bargaining unit employees of the Respondent, the
Respondent here violated Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practice violates Section 8(a)(1) of
the Act and has a close, intimate, and substantial effect on the free
flow of commerce within the meaning of Section 2(6) of the Act.
Remedy
Having found that the Respondent herein committed certain unfair
labor practices, I will recommend that it be required to cease and
desist therefrom and to take other actions designed to effectuate the
purposes and policies of the Act. Specifically, I will recommend that
the Respondent be required to furnish the Union with the names and
addresses of any persons who provided it with information concerning the
violation of its drug and alcohol abuse by any employees who were the
subject of a company investigation and drug testing in 1985 and 1986.
The General Counsel requests that a visitatorial clause be inserted in
the order permitting the use of discovery under the Federal Rules of
Civil Procedure in the event that this case must be enforced in a
contempt proceeding. I will recommend such an order. I will also
recommend that the Respondent be required to post the usual notice
advising its employees of their rights and of the results in this case.
[Recommended Order omitted from publication.]
15