Reynolds Metal Co.

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 995 (N.L.R.B. 1993)

995
310 NLRB No. 161
REYNOLDS METAL CO.
1 On October 9, 1992, Administrative Law Judge Robert A. Gritta
issued the attached decision. The General Counsel filed exceptions
and a supporting brief, and the Respondent filed a brief in opposition
to exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
The judge discredited the testimony of Local 155’s president and
business agent, Stephen Stoll, to the extent that he asserted that he
made a demand for bargaining about the Respondent’s substance
abuse program to personnel managers at two of the Respondent’s fa-
cilities. Because we adopt the judge’s credibility resolutions, we find
it unnecessary to pass on his further finding that even assuming Stoll
made the demand as alleged, the demand was insubstantial and did
not constitute a demand for bargaining necessary to give rise to a
statutory obligation on the part of the Respondent.
3 In support of his conclusion that the Respondent did not violate
Sec. 8(a)(5) or (1) of the Act by failing and refusing to negotiate
over the substance abuse program with Local 155, the judge relies,
in part, on the International union’s constitution. In particular, the
judge notes that art. XV, sec. 1, states that the International union
shall negotiate all labor agreements on behalf of the local unions,
and sec. 2 states that the International president, or his designee,
shall be the chairman of all negotiating committees. The judge then
notes that the parties’ collective-bargaining agreement in effect dur-
ing the period in question provides for joint bargaining representa-
tive status for the local unions and the International union.
We find that additional support for the judge’s conclusion that the
Respondent did not unlawfully fail to negotiate with Local 155 about
the substance abuse program is provided in the International con-
stitution, at art. XV, secs. 4 and 5, where the constitution sets forth
the express authority of the joint bargaining committee to bargain of
items over mutual concern to the local unions, and the limited au-
thority of the local unions to bargain over such items:
Section 4. When joint negotiations are undertaken, a com-
mittee shall be established for such purpose. This Joint Negotia-
tions Committee shall confine itself to economic and/or other
issues which may be of mutual concern to the local unions in-
volved. The extent of jurisdiction of such items as well as rules
governing negotiations, shall be determined by the Joint Bar-
gaining Committee.
Section 5. Each local union shall have jurisdiction over nego-
tiable items which are of concern only to that particular local
union, however, such items shall not conflict with the jurisdic-
tion established by a Joint Bargaining Committee.
The substance abuse program was of national concern to the
Union, as evidenced by the International’s development of a policy
on alcohol and drug abuse which it sent to the Respondent in July
1987, and the International’s meetings with the Respondent on the
subject in 1987 and early 1988. Further, a companywide policy on
drug testing would be of ‘‘mutual concern’’ to the local unions, and
as such would be an issue in the jurisdiction of the joint negotiations
committee and not the locals, pursuant to sec. 4. This conclusion is
strengthened by the International’s request at the January 18, 1988
meeting with the Respondent that it would be more appropriate to
discuss the substance abuse program with the joint bargaining com-
mittee. In addition, sec. 5 provides that items that the local has juris-
diction over shall not conflict with the jurisdiction established by the
joint bargaining committee, and it appears that the joint bargaining
committee established its jurisdiction over the corporatewide sub-
stance abuse program when it met with the Respondent on February
26, 1988.
In agreeing with his colleagues and the judge that the Respondent
did not unlawfully fail or refuse to bargain about its substance abuse
program, Member Devaney notes that the June 1, 1986, through May
31, 1989 collective-bargaining agreement between the parties does
not contain a ‘‘zipper’’ clause or equivalent language, and that this
case therefore does not present a situation in which an employer is
arguably wielding such a clause as a ‘‘sword’’ to permit it to make
unilateral changes in subjects not covered by the terms of the clause.
See generally Michigan Bell Telephone Co., 306 NLRB 281 (1992)
(Member Devaney dissenting).
1 Notwithstanding the Charging Party’s name as stated on the
charge, Local 155 is not an International union but rather is affiliated
with the International Union in the traditional sense.
Reynolds Metal Company and Local 155, Alu-
minum, Brick and Glass Workers Union affili-
ated with Aluminum, Brick and Glass Workers
International Union, AFL–CIO, CLC. Case 11–
CA–13648
March 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
Exceptions filed to the judge’s decision in this case1
present the issue of whether the Respondent violated
the Act by unilaterally implementing a substance abuse
policy and program without notice to or consultation
with Local 155 as an exclusive joint bargaining rep-
resentative of its employees.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Donald R. Gattalaro, Esq., for the General Counsel.
Patrick R. Laden, Esq., of Richmond, Virginia, for the Re-
spondent
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This case
was tried before me on November 19 and 20, 1991, in Win-
ston-Salem, North Carolina, based on a charge filed by Local
155, Aluminum, Brick and Glass Workers International
Union Affiliated with Aluminum, Brick and Glass Workers
International Union, AFL–CIO, CLC1 (Local 155) on August
4, 1988, and a complaint issued by the Regional Director for
Region 9 of the National Labor Relations Board on Novem-
ber 2, 1988. The complaint alleged that Reynolds Metal
Company (Respondent) violated Section 8(a)(1) and (5) of
the Act by refusing to bargain collectively and in good faith
with a representative of its employees concerning the sub-
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Based on undisputed testimony and objective evidence in the
record.
stance abuse program implemented in April 1988. Respond-
ent’s timely answer denied the commission of any unfair
labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce
evidence, and to argue orally. Briefs were submitted by Gen-
eral Counsel and Respondent. Both briefs were duly consid-
ered.
On the entire record in this case and from my observation
of the witnesses and their demeanor on the witness stand,
and upon substantive, reliable evidence considered along
with the consistency and inherent probability of testimony, I
make the following
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATIONS—PRELIMINARY CONCLUSIONS OF LAW
The complaint alleges, Respondent admits, and I find that
Reynolds Metal Company is a corporation engaged in the na-
tionwide manufacture and nonretail sale and distribution of
aluminum foil, powder, and extrusion products. This case in-
volves the three locations in Louisville, Kentucky. Jurisdic-
tion is not in issue. Reynolds Metal Company, in the past 12
months, in the course and conduct of its business operations
shipped products from its Louisville, Kentucky facilities val-
ued in excess of $50,000 directly to points located outside
the State of Kentucky.
I conclude and find that Reynolds Metal Company is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The complaint alleges, Respondent admits, and I conclude
and find that Local 155, Aluminum, Brick and Glass Work-
ers Union and the Aluminum, Brick and Glass Workers
International Union, AFL–CIO, CLC are labor organizations
within the meaning of Section 2(5) of the Act.
II. ISSUE
Whether Respondent unilaterally implemented a substance
abuse policy and program without notice to or consultation
with an exclusive joint collective-bargaining representative of
its employees.
III. BACKGROUND2
Since 1937, the Aluminum, Brick and Glass Workers
International Union (herein ABG) and its Local 155 have
been the designated exclusive joint collective-bargaining rep-
resentative of Respondent’s employees in appropriate units in
the three plants located in Louisville, Kentucky. At present
the ABG and its respective local unions represent employees
of Respondent in a total of 11 or 12 plants nationwide. Addi-
tional plants of Respondent are represented by the Steel-
workers Union.
Historically the Respondent and the two unions (ABG and
Steelworkers) have coordinated bargaining for all plants and
when feasible the Respondent and the two unions have co-
ordinated their bargaining with the represented plants of
ALCOA, another national aluminum producer.
For years the ABG has engaged in joint national negotia-
tions with Respondent pursuant to its constitutional provi-
sions designating the International president as chairman of
all negotiating committees and establishing a joint negotia-
tion (bargaining) committee made up of the International
president, his aides, and the local union presidents or busi-
ness agents. The joint bargaining committee determines the
agenda for the national negotiations and has the authority to
negotiate on behalf of all the local unions and the various
plants. At the conclusion of national negotiations each local
union bargains with its respective plant management over
local work rules and other locally unique working conditions
such as overtime scheduling and meal tickets. Although the
Union’s constitution provides that the International president
can authorize a local union to bargain on its own behalf, no
such authority was given to Local 155 at any time material
herein.
Respondent’s corporate industrial relations department ne-
gotiates at the national level and each plant personnel direc-
tor negotiates at the local level. National negotiations include
items of multiplant impact, those that affect more than one
location and economic issues for all plants. In addition to
wages, pension, insurance, and rates of pay a corporate job
evaluation system is of national concern. Although jobs may
differ in the plants the parties negotiate the manner to deter-
mine the relative values of the different jobs among the
plants.
During 1986, the aluminum industry was experiencing cost
problems resulting in hard bargaining over economics.
ALCOA endured a nationwide strike lasting 6 weeks while
Respondent resolved the issues in national negotiations and
continued to operate its plants except the three facilities in
Louisville, Kentucky, and a facility in Longview, Wash-
ington. The 1986 strikes were unique to the parties’ labor re-
lations in that prior to 1986 strikes were national in scope
and were called by the ABG. The ratification process had
been majority votes of all local unions. If a majority of local
unions voted to accept the negotiated contract, it then applied
to all local unions and their respective plants. In 1986, Local
155 had authority to initiate its own economic sanctions
against the Employer at the Louisville facilities. The strike
at the Louisville facilities involved a two-tier wage system
at plants 3 and 15. Although the ABG was involved with the
corporate staff in an attempt to settle the strike initially the
local union and local management did ultimately resolve
their differences and settle the strike.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
The gravamen of this cause had its beginning in 1986. Pe-
terson, corporate director of industrial relations for Respond-
ent, testified without contradiction that the United States Oc-
cupational Safety and Health Administration has for years
dictated uses of hardhats, safety glasses, safety shoes, safety
spats, flame retardent clothing, and any number of special-
ized pieces of safety equipment, all designed to make the
workplace safe for employees. Each state in which a plant
is located also impresses on the Respondent certain controls
or specified rules of workplace safety. All of these measures
are relative to Respondent’s responsibility for its workplaces.
Respondent contracts with the Department of Defense and
other Government agencies, which for employee safety re-
quire some measure of substance abuse control in the work-
997REYNOLDS METAL CO.
place. In addition the Department of Transportation requires
controls on substance abuse for employee and public safety.
Government contractors such as Respondent must abide by
the Drug-Free Workplace Act of 1988 which coexists with
a national policy favoring regulation of drug use on and off
the job.
The nature of the industry is defined by mechanical equip-
ment, high electrical voltages, molten metal, and in some
cases explosive materials, all which raise concerns for em-
ployees’ responsibility. During 1986 Respondent initiated a
policy of urinalysis drug testing for new hires throughout the
corporation and following its institution began developing a
corporatewide substance abuse policy (SAP) for all employ-
ees. While in the process of developing its SAP, Peterson re-
ceived a letter, dated July 22, 1987, from ABG president, La
Baff, stating that the ABG had adopted a policy on alcohol
and drug abuse and enclosing a copy of that policy (R. Exh.
3). On September 18, 1987, Peterson sent a letter to La Baff
notifying the ABG of a new corporate substance abuse policy
adopted for all plants and enclosing a copy of that policy (R.
Exh. 4, 5). On October 5, La Baff responded to Peterson’s
notification by demanding that Respondent negotiate with the
ABG over the SAP for unit employees and job applicants
prior to any implementation of such policy (R. Exh. 7). The
parties agreed to meet December 14, 1987, at the ABG head-
quarters in St. Louis, Missouri, for the sole purpose of dis-
cussing the SAP. Respondent was represented by Peterson
and Bob Newman, director of industrial relations operations
and the Union was represented by La Baff and John Murphy,
executive assistant to the president of ABG. Respondent pre-
sented its SAP to the Union including a title page outlining
training of supervisors (R. Exh. 8). During discussions the
Union, through La Baff, suggested that local union officers
and grievance committeemen receive the same training as the
supervisors. Following discussions the parties agreed to meet
again on January 18, 1988, at the same location.
The parties did meet January 18 with the Union including
an additional member, ABG General Counsel Thomas Pow-
ers. During the meeting Powers stated that Respondent could
not implement the SAP without negotiating with the Union.
La Baff suggested that it would be more appropriate to
present the SAP to the joint bargaining committee of the
Union. Respondent through Peterson agreed to meet with the
joint bargaining committee on February 26, 1988. At some
point before the scheduled February meeting Peterson caused
a revised title page to the corporate SAP to be sent to the
Union. The revision incorporated the suggested changes by
La Baff at the first meeting (R. Exh. 9). Also La Baff in-
formed Peterson on January 21 that Murphy was the new di-
rector of negotiations for the ABG (R. Exh. 1).
On February 26, the parties met with Respondent includ-
ing Tom Stark, coordinator of bargaining for ABG, as a
member of its team. The union team included Stephen Stoll,
president and business agent of Local 155, and other local
union’s presidents and representatives as additions to La
Baff, Murphy, and Powers. In addition to discussions be-
tween the teams the Respondent presented films to be used
as training aids for the supervisors and union officials. Re-
spondent detailed the procedures designed to implement the
policy and fielded questions from the union team. Peterson
recalled that most questions dealt with future plans rather
than the SAP. Stoll recalled three questions: (1) ‘‘is there an
obvious drug problem in the plants,’’ to which Respondent
answered no; (2) ‘‘is the contract being opened up,’’ to
which Respondent answered no; (3) ‘‘If we don’t negotiate
do you intend to implement it,’’ but according to Stoll, was
not answered. Peterson states that the Union caucused in the
room then invited the Company back to the room. La Baff
speaking for the Union, stated that the Union would have a
response soon. Peterson asked, ‘‘How soon is soon?’’ La
Baff replied he would get back to Peterson within a week.
Stoll testified that after the Company left the meeting the
committee discussed drug testing. None of the local unions
agreed with drug testing. All thought it was inappropriate.
With no response from ABG, Peterson called La Baff and
asked when the Union would respond. La Baff said soon.
Several days later, having heard nothing, Peterson called
Murphy and asked when the Union would respond. Peterson
made several additional calls to the ABG with the same re-
sult. On April 20, 1988, Peterson sent a letter to the ABG
outlining three negotiation meetings over the SAP and em-
phasizing the ending of the February 26 meeting and citing
the lack of any response from the Union (R. Exh. 10). The
letter also advised the ABG that Respondent would imple-
ment the SAP in all its plants. There was no immediate re-
sponse from the Union but on May 12, ABG General Coun-
sel Powers informed Peterson by letter (R. Exh. 11):
I wish to put you on notice that your unilateral decision
to implement this policy would, in my opinion, be an
unfair labor practice. New collective bargaining agree-
ments were negotiated with Reynolds in 1986. The
Company, during these negotiations, never put drug
testing on the table. The collective bargaining agree-
ments we reached with you in 1986 incorporate all the
agreed upon terms and conditions of employment and
drug testing is not included. Your attempt to modify or
amend these agreements by unilateral implementation
of your drug testing program violates our rights under
the Act and accordingly, I ask that you rescind actions
taken in this regard. You should advise local personnel
managers that the Corporate Substance Abuse Policy
cannot be implemented until agreed upon by the Alu-
minum, Brick and Glass Workers International Union.
We are not willing to open up our contracts at this time
and, therefore, the earliest this matter can be considered
will be during negotiations on successor agreements.
Peterson did not reply to Powers.
Stoll testified that in mid-May he met with Carter and
Growe, the local personnel directors for the three facilities in
Louisville, Kentucky. His testimony on that meeting is as
follows:
A. Sometime during the month of May, we went
down to Plant One for a grievance meeting.
Q. When you say ‘‘we,’’ who are you referring to?
A. It was myself, the secretary-treasurer of the Local,
who is Gene Douglas and Robert Wisdom who is the
general shop steward for that plant. We went down to
have a grievance meeting and we were informed by Ike
Growe, who is the personnel representative for that
plant. Here again, someone informed me and we have
a pretty good relationship, and Ike told me, you know,
very casually, that Reynolds Metals was going to im-
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plement the drug policy and that knowing me the way
he did, that my response would probably be that he
could take that drug testing policy and shove it up his
ass. You know, in a joking type manner. My response
was, No, Ike. You know, I don’t like drug testing. I
think it’s an invasion of privacy. I think it violates our
contract. And possibly some NLRB laws. But that, if
indeed, Reynolds was hell bent on implementing it, I
wanted to sit down and negotiate with them.
Q. What, if anything, did Ike Growe say in response
to your request to negotiate?
A. Ike told me that it was a corporate policy. He
wasn’t in a position to negotiate. All he could do was
tell me of the implementation.
Q. What, if anything, else happened at Local 155 rel-
ative to the program?
A. Soon thereafter, I believe in the same month of
May, we were at one of the other plants, Plant Three,
which is the powder and paste plant. And that—the per-
sonnel director for that facility was Charles Carter. And
we were down there for a grievance meeting.
Q. When you say ‘‘we,’’ who was that?
A. It would have been myself, Gene Douglas, the
secretary-treasurer, and the general shop steward for
that plant, Jack Colts. I can’t recall if he was actually
present at that very second, but here again, we were
down there, not for anything about drug testing. We
were down there for a grievance meeting. And I was
informed by Charles Carter, here again, in a low key
manner, that Reynolds Metals was going to implement
the drug testing program.
Q. And what, if anything, did Mr. Carter say in re-
sponse to you?
A. Well, he told me about the drug testing policy
and I guess I repeated myself word for word from when
I told Ike Growe that we were against it, but if indeed,
Reynolds, you know, was hell bent, we wanted to sit
down and negotiate. And I want to say that Charles’ re-
sponse was identical to Ike’s, that he couldn’t negotiate.
He could only tell me of the implementation.
Q. At any time, did Local 155 authorize the Inter-
national Union to bargain over drug testing?
A. Just the opposite.
Wisdom testified that during the grievance meeting in
mid-May Growe said the Company was implementing the
drug abuse policy. Stoll told Growe if management was
going to implement it, then ‘‘we [Local 155] would want to
sit down and negotiate it.’’ Growe replied, there will be no
negotiations.
Growe recalled several phone conversations with Stoll
about the SAP but did not recall any discussion in person
with Stoll about the SAP. Growe believes he notified Stoll
by phone that the SAP was to be implemented prior to send-
ing Stoll the letter of May 20, 1988 advising of Respondent’s
adoption of the SAP (R. Exh. 26). Growe does affirm that
Stoll said he was totally against any testing process and that
he told Stoll the policy was being discussed at the Inter-
national level between the Union and the Company. Growe
denies that Stoll mentioned anything about negotiating the
SAP with the local union in any of the conversations and
particularly does not recall any conversation with Stoll in-
volving the SAP and any reference to ‘‘shove it up his ass.’’
On May 25, 1988, Stoll or someone from the Union’s of-
fice, initiated a grievance for filing in all three plants (G.C.
Exh. 4). The grievance subject was a drug testing program.
The grievance logs for all three plants contain the filing entry
but no other entries to indicate processing (R. Exh. 27, 28).
Stoll could not give any particulars on the grievance filing
other than to say that he thought he filed the grievance based
on prior conversations with both Growe and Carter.
Carter testified that the only conversations he had with
Stoll concerning the SAP occurred after he sent the May 26,
1988 letter to Stoll advising him that the Company had
adopted the SAP (R. Exh. 24). Stoll, in the phone conversa-
tions, objected to the SAP as nothing more than a tool to be
used against employees that could be abused in respect to re-
quiring drug testing. Carter told Stoll that the SAP was not
a tool but was an addition to the employee assistance pro-
grams (REAP) which had been successful. Carter did not re-
ceive a bargaining request from Stoll for the SAP in May or
any other time. Carter had no immediate recall of the griev-
ance filing but did explain that the grievant is the moving
party under their system. Once filed, no meetings are sched-
uled on a grievance unless and until requested by the griev-
ant. No meeting request was made by the Union for the drug
testing grievance.
Growe recalled that when the grievance was filed he noti-
fied the Regional Industrial Relations Director Michael Fos-
ter, who advised him to get back if anything further devel-
oped. Nothing further developed.
In July 1988, Local 155’s negotiating committee, through
Stoll, presented written contract proposals to Growe and
Carter for the upcoming early negotiations for a new con-
tract. The local proposals by Stoll did not include any pro-
posals on the SAP (R. Exh. 25). Early negotiations between
the joint bargaining committee of the ABG and Peterson (co-
ordinated with the Steelworkers and the ALCOA units)
began the first week of August in Cincinnati. During the first
week of negotiations the General Counsel of the ABG filed
10 unfair labor practice charges against an equal number of
Respondent’s plants charging violations of Sections 8(a)(5)
and 8(d) of the Act based upon implementation of the cor-
porate SAP. Albeit the charges were filed on behalf of the
ABG and its respective local unions the subject of the SAP
was not raised in negotiations nor was it discussed in nego-
tiations. It simply never came up.
On Wednesday, August 10, 1988, following a negotiating
session, Peterson and his team were leaving the hotel. As
they passed through the lobby, La Baff and Murphy called
to them. La Baff suggested that an appropriate way to deal
with the SAP would be a special meeting for the purpose of
considering the matter. Peterson agreed to meet at the
Union’s convenience and La Baff suggested the following
Friday. Peterson told La Baff that was agreeable and to let
him know the particulars. No special meeting was ever
scheduled.
Later during a break in negotiations, Murphy told Peterson
the ABG was aware that the Company was bargaining with
the Steelworkers over the SAP. Murphy asked Peterson if the
Company had made any concessions to the Steelworkers. Pe-
terson replied in the affirmative and Murphy further asked if
the Company would extend the same concessions to the
999REYNOLDS METAL CO.
ABG. Peterson told Murphy that to resolve the matter he
would extend to ABG the same concessions. At that point
the conversation ended.
The negotiations for a contract between Respondent and
the two unions continued but Peterson was unable to reach
agreement with either ABG or the Steelworkers. Negotiations
ceased, to be continued at a later date.
On September 2, 1988, during the investigation of the
charges by the Board’s Regional Office, Respondent’s attor-
ney Laden sent a position letter to the Regional Office. In
part, the letter acknowledged that Stoll in mid-May had re-
quested bargaining on the SAP from Carter and Growe (G.C.
Exh. 5), a fact later explained by Laden as a mistake due to
the volume of communications involved in answering the
several charges that had been filed nationwide.
In late November, Peterson and both unions met in Cin-
cinnati again. After several sessions Peterson reached agree-
ment with both unions. The ABG agreement was effective
immediately, November 1, 1988, to May 31, 1992, replacing
the June 1, 1986, to May 31, 1989 contract (G.C. Exh. 3).
During the final negotiations the SAP was neither raised as
a subject nor discussed between the parties.
A hiatus of concern for the SAP, on behalf of the ABG,
occurred from November 1988 to September 1989. On Sep-
tember 12, 1989, following a request from the ABG that Re-
spondent reconsider and bargain with the local unions over
the procedure for enforcing the SAP, Peterson sent a letter
to Murphy. Peterson agreed to negotiate with the local
unions on procedures based on a timely request and an
agreement that the SAP as implemented will remain in effect
during negotiations with any local union. Further, absent a
timely request from a given local union the SAP in that loca-
tion would be the plant rule as implemented (R. Exh. 21).
Murphy, of the ABG, responded to Peterson on September
27, 1989 (R. Exh. 22). The ABG, through Murphy, accepted
Peterson’s proposal for ground rules to control bargaining
with local unions over procedures enforcing the SAP and
sent copies to all local unions. One local union requested
bargaining in response to Murphy’s acceptance of Peterson’s
proposal, however, no bargaining actually took place.
Another SAP hiatus consumed the time until October 1991
when the President’s meeting convened. Respondent’s presi-
dent Richard Holder, Peterson, Newman, Stark, and John
McGill represented the Company. La Baff, Murphy, and Har-
vey Martin, ABG secretary-treasurer represented, the Union.
Historically the president’s meetings have been to confirm
the good will between the parties and to cement future rela-
tions in a social atmosphere. During this meeting the parties
discussed the SAP and Peterson told La Baff that the Com-
pany was still prepared and willing to negotiate with the
local unions over SAP enforcement procedures. La Baff ex-
pressed the reasonableness of the Company’s position and
stated he would discuss the situation with the local unions.
Later, Murphy informed Peterson that the local unions were
agreeable to negotiations but, Local 155 wanted to bargain
in May 1992, rather than then.
Analysis
The facts of record are substantially undisputed, excepting
the material fact of a demand to bargain by Local 155 in
mid-May 1988. The alleged demand to bargain over the SAP
by Stoll is material because the General Counsel’s theory
presumes Local 155 alone, is the exclusive joint bargaining
representative with whom Respondent has a single obligation
to bargain. General Counsel’s theory may partially be based
on record testimony that the International Union (ABG) au-
thorized Local 155 to bargain over drug testing thereby pre-
cluding the International Union from bargaining. Notwith-
standing the absence of evidence that such authorization pre-
dated the critical events herein, it is instructive as to the ori-
gin of any bargaining rights for Local 155 with respect to
the SAP. Albeit in May 1988, no bargaining authority issue
existed, Stoll allegedly made an oral demand to bargain lo-
cally over the SAP. Stoll’s recall of the ‘‘demand’’ was a
bare account outlining statements that would substantiate the
allegations of the complaint yet reflecting almost a complete
lack of recollection for the context in which they were made.
Stoll’s account, and Wisdom’s account as well, were ambig-
uous relative to Respondent’s implementation of the SAP
and the alleged demand was qualified by this ambiguity.
Whereas other record evidence clearly established Respond-
ent’s intent to implement the month before, neither Stoll nor
Wisdom’s related conversation was based upon such cer-
tainty of events. There is no question that conversations took
place in mid-May with Growe and Carter and there is no
doubt that Stoll objected to the SAP as implemented by Re-
spondent. However, it is more plausible to me that if Stoll
had made an oral demand to bargain, he, as an experienced
union official, would have reduced the demand to writing
rather than submit grievances reduced to writing to Growe
and Carter. Moreover, little if any importance was attached
to the SAP implementation by Stoll for he never followed up
on his oral demand or his written grievances. The utterance
and the filing stand alone. While I credit Stoll’s testimony
of conversations that are undenied, I discredit his testimony
of conversations with Growe and Carter except where cor-
roborated by Growe and Carter. Both Growe and Carter deny
that Stoll ever made a demand to bargain over the SAP to
them and under all the circumstances and based upon the
record as a whole I credit the denials of Carter and Growe.
Wisdom’s testimony is nothing more than a parroting of
Stoll’s account and suffers from the same ambiguity and lack
of plausibility. I therefore discredit Wisdom’s account of the
alleged demand to bargain by Stoll. Assuming arguendo, I
further find that Stoll’s alleged demand, if made as stated by
Stoll, is insubstantial and does not constitute a demand for
bargaining necessary to give rise to a statutory obligation to
bargain on the part of Respondent.
The International constitution effective in 1987, as well as
its predecessor and its successor in article XV, section 1,
state that the International Union (ABG) shall negotiate all
labor agreements on behalf of the local unions. Further, the
International president, or his designate, shall be the chair-
man of all negotiating committees. Moreover, the collective-
bargaining agreement effective June 1, 1986, to May 31,
1989, in its preamble states, ‘‘The Aluminum, Brick and
Glass Workers Union, Number 155, Louisville, Kentucky;
and Number 400, Richmond, Virginia; and the Aluminum,
Brick, and Glass Workers International Union acting as sole
bargaining agency for the employees of the company . . . .’’
(Emphasis added.) Historically, a national agreement has
been negotiated with ABG for all of Respondent’s plants
with each local union then negotiating local issues separately,
thus, the joint bargaining representative status.
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel contends that significant changes in the
International constitution, article XV, installed Local 155 as
the bargaining representative for negotiations on the SAP at
the Louisville facilities. General Counsel emphasizes the lan-
guage contained in the July 31-August 4, 1989 International
constitution which included an additional phrase in section 1.
‘‘The International Union shall negotiate all labor agreements
on behalf of the local unions, and such agreements shall be
subject to membership ratification. [Emphasis added.)
No other changes were made in article XV. In my view
the change was less than substantial, in that the manner of
conducting negotiations, i.e., the International president is
chairman of all negotiating committees and the International
Union is the primary bargaining agent for the joint bar-
gaining representatives, is unchanged. As clearly dem-
onstrated by the language itself, Local 155 simply has the
new right to ratify, or not, the national agreement negotiated
by the joint bargaining committee of the ABG. Just as clear-
ly this right of ratification of the national agreement came
into existence with the August 1989 constitutional conven-
tion. The constitutional change therefore postdated the crit-
ical events herein. General Counsel’s evidence of the settle-
ment by Local 155 of the local strike in 1986 is irrelevant
in reference to new found authority of Local 155. The Inter-
national constitutions have consistently provided that strike
votes can be taken by local memberships and local unions
may carry out any economic action they deem necessary on
issues within their jurisdiction with the approval of the presi-
dent of the International Union. The record evidence shows
that Local 155 membership voted strike over a two-tier wage
system that was unique to the Louisville facilities and al-
though strike settlement began on the International and cor-
porate level, the International president acquiesced and al-
lowed Local 155 to settle its own strike. There is no evi-
dence that any residual local authority over contract negotia-
tions existed after the strike ended. Stoll’s testimony that
Local 155 did not authorize the International Union to bar-
gain over drug testing is an unsupported, self-serving incon-
gruity unworthy of credence. Stoll’s statement presumes
more than a factual basis not in evidence. The import of the
statement is contrary to the entire weight of the record evi-
dence, the historical bargaining procedures of the parties and
the International constitution which governs both the ABG
and the local unions. The International Union as the primary
bargaining authority, may in accord with the International
constitution, grant subordinate authority to a local union.
There is no evidence of such a grant of authority relative to
the SAP prior to September 1989, and then several qualifica-
tions were extant due to a written agreement between the
ABG and Respondent covering the future negotiations.
The bulk of the record evidence comes from the undis-
puted testimony of Peterson. He testified in a forthright and
direct manner, even as to certain matters unfavorable to Re-
spondent and it corresponded with a number of objective
considerations. I credit his testimony completely. The evi-
dence shows that a SAP was initiated by the ABG and later
Respondent prepared and adopted its own. The ABG, in writ-
ing, demanded to bargain over the Respondent’s policy for
all unit employees and applicants. Contrary to ABG’s de-
mand for bargaining it is clear that an Employer’s statutory
duty to bargain attaches only to current employees rep-
resented by a union in an appropriate unit. No bargaining ob-
ligation exist for applicants for hire. It is equally clear, as ad-
mitted in the pleadings, that a SAP is a mandatory subject
of bargaining for unit employees. As a general rule it is an
unfair labor practice for an employer, whose employees are
represented by a union, to establish or make changes in con-
ditions of employment involving a mandatory subject of bar-
gaining, without first providing the employees’ representative
with an opportunity to bargain over the changes.
Here the parties, represented as always by Peterson and La
Baff, and pursuant to La Baff’s demand to bargain, met on
three different occasions to discuss the Respondent’s SAP.
At the behest of La Baff the third meeting included the
ABG’s joint bargaining committee and La Baff ended the
meeting by telling Peterson he would respond on behalf of
the ABG within a week. Stoll’s undisputed testimony of the
joint bargaining committee’s caucus, that none of the local
unions present agreed with drug testing in principle, is plau-
sible under all the circumstances and I credit the testimony.
With the failure of a response and after repeated request
from Peterson to respond, the Respondent notified the ABG
that the SAP would be implemented as last presented to the
ABG. La Baff did not reply to the notice of implementation
but ABG’s general counsel did stating that implementation
could not take place until agreed to by the ABG. No further
demand to bargain was made albeit the general counsel did
suggest that the earliest negotiations could take place would
coincide with negotiations for a new contract. A position that
bargaining, notwithstanding the prior negotiations, could not
take place for 12 months. Why the ABG abandoned the de-
mand for bargaining made 8 months before, particularly in
view of the obvious objections to drug testing by the local
unions, is known only to them.
The 1986–1989 agreement between the parties is silent on
a SAP and admittedly the parties never discussed drug test-
ing during negotiations. Thus the issue of a SAP is an open
one for bargaining. But just as a response to a demand for
bargaining must be continuous so must the demand be con-
tinuous. Any unexplained hiatus or abandonment of the de-
mand is perilous to a continuing obligation to bargain. The
Board has held that where an employer gives a union ad-
vance notice of an intention to make a change in a term or
condition of employment, the union must make a reasonably
timely demand for bargaining over the matter to avoid a
finding of waiver or acquiescence. It cannot be denied that
the union, once demanding to bargain over the issue, must
continue to do so to the point of an agreement or to a bona
fide impasse. For that is the obverse of the employer’s statu-
tory obligation to bargain with the union. Failure of the
union to bargain continuously, particularly in the absence of
any reason for the failure, constitutes inaction on the part of
the union and results in abandonment of its right to bargain.
The numerous unfair labor practice charges filed by the
ABG in August 1988, and based on Respondent’s expressed
intent in April 1988, do not constitute a demand for further
bargaining over the SAP. Nor do the grievances filed by
Local 155 in May 1988 over the Respondent’s intent to im-
plement the SAP constitute a further demand for bargaining
over the SAP. The Board law is clear; simply protesting the
Respondent’s action by filing a charge or filing a grievance
is not enough to preserve the right to bargain for the union.
The law is equally applicable to the attempted resurrection
of a prior demand to bargain. The filing of a charge or the
1001REYNOLDS METAL CO.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
filing of a grievance are not sufficient in law to preserve the
unions’ continued right to bargain where the initial demand
to bargain was at first pursued then abandoned.
Under general principles of Board law a waiver of a statu-
tory right must be clear and unmistakable. Waiver of a statu-
tory bargaining right may be evidenced by bargaining his-
tory, 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 un-
mistakable waived its interest in the matter. The ABG’s
avoidance, for whatever reason, of further bargaining over
the SAP in the face of Respondent’s repeated queries for bar-
gaining, envinces a clear and unmistakable lack of interest in
the SAP. In my view this avoidance and lack of interest con-
stitutes a waiver by inaction justifying Respondent’s imple-
mentation of the SAP at its plants where employees are rep-
resented by the ABG.
Respondent argues alternatively that the parties bargained
to impasse. The record evidence of the negotiating sessions
is too sparse in substance upon which to base a determina-
tion of impasse. The resolution of an impasse issue, unlike
the waiver issue in the present circumstances, requires spe-
cifics of a bilateral discussion. I therefore make no findings
on impasse.
Contrary to General Counsel I conclude and find that the
die was cast by the ABG establishing negotiations of SAP
on a national basis pursuant to their written demand to bar-
gain. Respondent, based upon ABG’s demand, negotiated
over the SAP as the statute requires. ABG is an exclusive
joint representative of Respondent’s employees and by con-
tract and historical negotiation is the sole or primary agent
for bargaining. Therefore the failure or refusal to negotiate
with Local 155 over the SAP, whether a demand was made
or authorization to bargain locally was granted, does not,
under the circumstances presented herein, constitute an unfair
labor practice and I so conclude and find.
CONCLUSION OF LAW
The General Counsel has failed to sustain his burden of
proof that Respondent failed and refused to negotiate with
Local 155 over the SAP in violation of Section 8(a)(1) and
(5) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
It is ordered that the complaint be dismissed.