Southern California Edison Co.

National Labor Relations Board - Board Decisions

Apr 30, 1993

310 N.L.R.B. 1229 (N.L.R.B. 1993)

1229
310 NLRB No. 211
SOUTHERN CALIFORNIA EDISON CO.
1 All dates are in 1992, unless otherwise stated.
2 As an affirmative defense, the Respondent contends, among other
things, that all the claims, allegations, and disputes underlying the
charges and amended charges composing the second amended con-
solidated complaint have been resolved by the arbitration award in
Grievance No. 10–86–141, thereby requiring dismissal in accordance
with Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp.,
268 NLRB 573 (1984). The Respondent also contends that the
charges underlying in the second amended consolidated complaint,
with the exception of the third amended charge in Case 21–CA–
22850 and the charge in Case 21–CA–28584, had been administra-
tively deferred for arbitration under Collyer Insulated Wire, 192
NLRB 837 (1971), and United Technologies Corp., 268 NLRB 557
(1984), but that deferral was withdrawn when the General Counsel
instituted these proceedings. The Respondent contends that the Board
should continue to defer to the parties’ grievance-arbitration mecha-
nism and dismiss the complaint.
3 The Respondent asserts that the Regional Director withdrew its
previous Collyer letters and commenced this consolidated proceeding
despite the Respondent’s request that the charges (other than the one
specifically referenced in Arbitrator Roberts’ decision) should con-
tinue to be deferred until an arbitration award issues that addresses
the precise issue underlying each discrete charge.
The Respondent has requested oral argument. The request is de-
nied as the record and briefs adequately present the issues and the
positions of the parties.
Southern California Edison Company and Utility
Workers Union of America Local 246, AFL–
CIO
Southern California Edison Company and Inter-
national Brotherhood of Electrical Workers,
Local 47, AFL–CIO–CFL
Southern California Edison Company and Utility
Workers Union of America, Local 246, AFL–
CIO; International Brotherhood of Electrical
Workers, Local 47, AFL–CIO–CFL. Cases 21–
CA–22850, 21–CA–27573, 21–CA–23587–1, 21–
CA–23668, 21–CA–26450, 21–CA–26962, 21–
CA–28584, and 21–CA–26885
April 30, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On November 21, 1991, the Acting Regional Direc-
tor for Region 21 of the National Labor Relations
Board issued an order consolidating cases, consolidated
complaint and notice of hearing against Southern Cali-
fornia Edison Company, the Respondent. The com-
plaint alleged that the Respondent has unilaterally im-
plemented various drug and alcohol testing programs
and search practices, thereby modifying the terms and
the conditions of employment of the collective-bar-
gaining agreement in violation of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the National Labor Re-
lations Act. Thereafter, on March 10 and May 15,
1992,1 the Regional Director for Region 21 issued an
amendment to consolidated complaint and a second
order consolidating cases, second amended consoli-
dated complaint and notice of hearing, respectively.
Subsequently, the Respondent filed answers, admitting
in part and denying in part the allegations of the var-
ious complaints and submitting affirmative defenses.2
Thereafter, on June 5, the Respondent filed a Motion
for Summary Judgment, or in the alternative, to sever
proceedings and a brief in support that renewed its
contention that the Board should defer to the arbitra-
tor’s decision and dismiss all of the charges or, in the
alternative, sever those charges which were not the
subject of the arbitrator’s decision and dismiss them or
defer them pursuant to the Board’s Collyer doctrine.3
On June 22, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On July
6, the Charging Parties, Utility Workers Union of
America, Local 246 and International Brotherhood of
Electrical Workers, Local 47, filed briefs in opposition
and on July 8 the General Counsel likewise filed a
brief in opposition to the motion. They argue, among
other things, that the Board should not defer to the ar-
bitrator’s decision on the ground that it is repugnant to
the purposes and policies of the Act. On August 20,
the Respondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on the Motion for Summary Judgment
The facts are relatively complex, concerning 14 dis-
crete charges and amended charges, spanning an 8-year
period, and implicating a variety of drug and alcohol
policies and procedures which the Respondent has al-
legedly implemented during that time period. In light
of our disposition of the issues, we will not detail each
of the complaint allegations. Because the unfair labor
practice allegations allegedly derive from the Respond-
ent’s initial implementation of its drug and alcohol
policy and procedures at its San Onofre Nuclear Gen-
erating Station (SONGS) in 1984, the Respondent ar-
gues that the arbitration decision rendered by Arbi-
trator Thomas T. Roberts in Grievance No. 10–86–141,
which upholds the Respondent’s unilateral implementa-
tion of the SONGS drug screen program, should con-
trol the resolution of all the charges and amended
charges and qualifies for deferral under Spielberg Mfg.
Co., supra.
Grievance No. 10–86–141, which challenged the Re-
spondent’s SONGS drug screen program, was filed on
April 23, 1986. Arbitrator Roberts was presented with
the following question: ‘‘Does the Company’s imple-
mentation and/or application of the San Onofre Red
Badge Drug Test Program violate the collective bar-
gaining agreement?’’
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Complaint paragraph 9(b) tracks the language of this
grievance and alleges that:
On the dates noted herein below, at the SONGS
facility, Respondent, without prior notification to
or bargaining with Local 246, changed terms and
conditions of employment of the employees in the
Local 246 unit described in paragraph 5(a) above,
by the noted conduct: On or about August 7,
1984, instituted modifications to the Alcohol and
Drug Abuse policy which provided, inter alia, that
employees would be subjected to blood and urine
tests to ensure their compliance with the Alcohol
and Drug Abuse policy.
The Respondent argued before the arbitrator that the
drug screening program is grounded in safety because
drug use by a SONGS employee working in a poten-
tially lethal environment creates an unacceptable haz-
ard. The Respondent insisted that, under its collective-
bargaining agreement with Local 246, management has
broad authority to implement a variety of work and
safety related rules and to enforce them through dis-
ciplinary action. The Respondent particularly relied on
section N of article X of the collective-bargaining
agreement, which provides that:
(1) The Company shall make reasonable provi-
sions for the safety of employees in the perform-
ance of their work. The Union shall cooperate in
promoting the realization of the responsibility of
the individual with regard to the prevention of ac-
cidents.
(2) The Company reserves the right to draft
reasonable safety rules for employees and to insist
on the observance of such rules. The Union may
submit suggestions to the Company’s Labor Rela-
tions Division concerning plant safety conditions
and revision and enforcement of safety rules.
Local 246 asserted that the Respondent violated its
contractual obligations by unilaterally imposing man-
datory drug testing. Local 246 added that this unilat-
eral conduct was a violation of the National Labor Re-
lations Act as well.
The arbitrator specifically found that the challenged
drug tests were directly related to safety considerations
and, because the collective-bargaining agreement re-
serves to the Company the right to establish and en-
force reasonable safety rules, ‘‘the duties and obliga-
tions of management in that regard have been bar-
gained so that no basis remains to implicate Section
8(a)(5) of the NLRA.’’ He also found that the terms
of the collective-bargaining agreement afforded man-
agement the discretion to implement the SONGS Red
Badge drug test policy. He found that paragraph (2) of
section N of article X
reserves to management the right to draft (i.e., es-
tablish) safety rules and to insist upon the observ-
ance of those rules. While the Union may submit
suggestions concerning plant safety conditions in
addition to proposals directed to the revision or
enforcement of safety rules, the prerogative to
promulgate and implement such rules lies exclu-
sively with management.
In the arbitrator’s view, the Respondent’s preroga-
tive to promulgate and implement safety rules was
only limited by the contractual language requiring that
the safety rules be ‘‘reasonable.’’ After considering
several factors, including the nature of the testing; the
manner in which the testing affects individual employ-
ees; the Nuclear Regulatory Commission requirements
that licensees develop and implement procedures for
the security of their facilities; and the weight of arbi-
tral authority on the issue, the arbitrator concluded that
the Respondent’s SONGS drug test policy was a rea-
sonable safety rule permitted by the contract. Accord-
ingly, the arbitrator denied the grievance.
The Board requires that several criteria be met be-
fore post-arbitral deferral is exercised. The parties
agree, however, that the only criterion at issue here is
whether the arbitrator’s decision is ‘‘clearly repugnant
to the purpose and policies of the Act.’’ Olin Corp.,
268 NLRB at 573–574. The ‘‘clearly repugnant’’ test
requires that the party urging nondeferral, here, the
General Counsel, must show that the decision to which
deferral is sought is ‘‘palpably wrong,’’ i.e., ‘‘not sus-
ceptible to an interpretation consistent with the Act.’’
Id.
The General Counsel and the Charging Parties assert
that the arbitral award is repugnant because the arbi-
trator failed to use the Board’s statutory standard
which would require a showing that the safety provi-
sion set forth in article X, section N of the contract
clearly and unmistakably waived the right to bargain
about drug testing. See, e.g., Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 708 (1983); Johnson-Bateman
Co., 295 NLRB 180 (1989); Bath Iron Works Corp.,
302 NLRB 898, 902 (1991). They note that Arbitrator
Roberts effectively concluded that, by having agreed to
the safety provision, the Union waived its right to bar-
gain concerning the implementation and/or application
of the drug test program. According to the General
Counsel and Charging Parties, however, this ‘‘waiver’’
was not clear and unmistakable because the safety
clause is couched in general terms, it does not make
specific reference to drug or alcohol regulations or
testing, and the arbitrator cited no evidence that drug
testing was discussed during negotiations.
The General Counsel and the Charging Parties do
not raise any material issues of fact regarding the ap-
propriateness of deferral. Rather, the nature of their
contention is that deferral is inappropriate as a matter
of law.
1231SOUTHERN CALIFORNIA EDISON CO.
4 Compare Johnson-Bateman, above. In Johnson-Bateman, the
Board found neither the management-rights clause in the parties’
agreement nor the parties’ bargaining history demonstrated that the
union had clearly and unmistakably waived its right to bargain over
the implementation of a drug testing program. However, the Board
also noted that no party sought deferral of the charge to arbitration.
Thus, the Board did not purport to decide whether either pre- or
post- arbitral deferral would be appropriate under the circumstances
presented there.
5 Contrary to the General Counsel and the Charging Parties, the
Board has found that prearbitral deferral of unfair labor practice
charges challenging unilateral changes in terms and conditions of
employment is appropriate even where no specific contractual provi-
sion’s meaning is in dispute. Inland Container Co., 298 NLRB 715
(1990) (8(a)(5) charge concerning unilateral implementation of drug
testing deferred to arbitration under Collyer).
6 Because the only arbitral award presented to us does not address
the events underlying these additional allegations, we deny the Re-
spondent’s Motion for Summary Judgment to the extent that it seeks
dismissal under Spielberg with respect to those allegations. In this
regard, we note that the Respondent avers that certain arbitration
awards have issued with respect to some of the other controlled sub-
stance rules at issue in this case. Inasmuch as copies of the alleged
awards have not been placed into evidence nor have we been pre-
sented with any other evidence concerning their contents, we find no
basis for deferring to those awards under Spielberg at this time. Al-
though the Respondent has requested in its reply brief that it be per-
mitted to move for dismissal of the complaint allegations related to
these alleged awards if the Board does not defer to the Roberts
award, in light of our disposition of this case it would serve no pur-
pose to allow the Respondent to file additional motions concerning
these awards with the Board at this time.
We disagree with the General Counsel’s and the
Charging Parties’ view of the ‘‘clearly repugnant’’
standard as it is applied to the arbitrator’s decision re-
garding the contractual authorization for the Respond-
ent’s implementation of the SONGS drug testing pro-
gram. Contrary to the contentions of the General
Counsel and the Charging Parties, the Board has de-
ferred to arbitration decisions which find that language
in a general management-rights clause authorizes uni-
lateral changes in terms and conditions of employment
by an employer. See, e.g., Hoover Co., 307 NLRB 524
(1992) (arbitrator found that clause giving employer
the right to ‘‘establish and from time to time amend
rules and regulations’’ authorized unilateral ban on
smoking under the circumstances); Dennison National
Co., 296 NLRB 169 (1989) (arbitrator found that the
management-rights clause authorized unilateral elimi-
nation of job classifications). Indeed, the Board has
specifically stated that, ‘‘if an arbitrator upholds an
employer’s argument that its actions were justified by
a contractual management-rights clause, the Board, in
an 8(a)(5) unilateral change case, would defer to the
award, even if neither the award nor the clause read
in terms of the statutory standard of clear and unmis-
takable waiver. Motor Convoy, 303 NLRB 135, 136
(1991). Thus, an award can be susceptible to the inter-
pretation that the arbitrator found a waiver, even if the
arbitral award does not speak in those terms. Further,
given such a finding of waiver, the mere fact that the
Board would not have found a waiver is insufficient by
itself to establish repugnance.4 The Board will deter-
mine whether a particular award is ‘‘clearly repugnant
to the Act’’ by reviewing all the circumstances, includ-
ing the contractual language, evidence of bargaining
history and past practice presented in the case.
Applying these principles to the facts of this case,
we find that the arbitrator’s decision is susceptible to
an interpretation consistent with the Act. First, the ar-
bitrator reasonably found that the contractual language
at issue is specifically worded to reserve to manage-
ment the right to implement reasonable safety rules.
This determination was based, in part, on the text of
the clause, which states that the Respondent may draft
and enforce ‘‘reasonable safety rules,’’ and that Local
246 may submit suggestions regarding such rules.
After reviewing the working conditions at the Re-
spondent’s nuclear plant, the parties’ past practice with
respect to work and safety rules, and the bargaining
history of the particular clause at issue in the pro-
ceeding, the arbitrator found that the SONGS drug test
program was a safety rule within the meaning of the
parties’ agreement. Likewise, based on his review of
industry practice, the responsibilities of the employees
covered by the rule, the procedures and safeguards es-
tablished by the Respondent, and arbitral and legal
precedent, the arbitrator found that the testing program
was ‘‘reasonable’’ as well.
In view of these amply supported findings, we find
no basis for concluding that the award is ‘‘palpably
wrong.’’ Accordingly, we will defer to the arbitration
award in Grievance No. 10–86–141. However, the
terms of that arbitration award directly implicate only
one paragraph in the complaint—paragraph 9(b). We
will, therefore, grant the motion to dismiss under
Spielberg only insofar as paragraph 9(b) is concerned.
We now turn to the other allegations of the complaint.
As noted supra, some of them were originally deferred
by the General Counsel under Collyer, and such defer-
ral was subsequently revoked; some of these allega-
tions were never deferred by the General Counsel
under Collyer. As to both categories, we conclude,
contrary to the General Counsel, that Collyer deferral
is appropriate. In this regard, we note that the allega-
tions raise issues of contract interpretation, the broad
arbitration clauses in the applicable bargaining agree-
ments clearly encompass the matters in dispute, the
Respondent has asserted its willingness to arbitrate the
disputes, there is no claim of employer animosity to
the employees’ exercise of protected rights, and the
parties have a stable bargaining relationship. See, e.g.,
August A. Busch & Co., 309 NLRB 714 (1992).5 Ac-
cordingly, as to these allegations, we shall dismiss the
complaint, subject to the retention of limited jurisdic-
tion.6
1232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In sum, we grant the Motion for Summary Judgment
as to paragraph 9(b) of the complaint and dismiss that
allegation. As to the other allegations, we grant the
Motion for Summary Judgment and dismiss such alle-
gations, provided that:
Jurisdiction of this proceeding is retained for the
limited purpose of entertaining an appropriate and
timely motion for further consideration on the proper
showing that either (a) the dispute has not, with rea-
sonable promptness after the issuance of this Decision
and Order, been either resolved by amicable settlement
in the grievance procedure or submitted promptly to
arbitration, or (b) the grievance or arbitration proce-
dures have not been fair and regular or have reached
a result that is repugnant to the Act.