United Cable Television Corp.

UNITED CABLE TELEVISION CORP. United Cable Television Corporation of Connecticut and Local 1109, Communications Workers of America, AFL-CIO. Case 39-CA-3568 August 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On December 14, 1988, Administrative Law Judge Joel P. Biblowitz issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief. The Respondent filed cross-excep- tions and a brief in support; it also filed a brief in opposition to the General Counsel's exceptions. The General Counsel and the Charging Party filed briefs in opposition to the Respondent's cross-ex- ceptions. The National Labor Relations Board has delegat- ed 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, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and re- fusing to bargain with the Union concerning the in- stitution of a policy of testing all job applicants for drug and alcohol use. He found that drug testing is a mandatory subject for collective bargaining, even when applied solely to job applicants, that the charge was timely filed under Section 10(b) of the Act, and that the Union had not waived its right to negotiate about drug testing. The Respondent has excepted to each of those findings. We agree with the Respondent that the judge erred in finding drug testing of job applicants to be a mandatory bargaining subject, based on our recent holding in Star Tribune, 295 NLRB 543 (1989).1 There the Board determined that preem- ployment drug and alcohol testing of applicants for employment is not a mandatory subject of bargain- ing because applicants are not "employees" within the meaning of the Act's collective-bargaining obli- gations, and the testing does not "vitally affect"2 the terms and conditions of employment and the working environment of bargaining unit employees. The Board concluded that the employer in Star Tribune had not violated the Act by refusing to ' No exceptions were taken to the judge's finding that , because the in- clusion of "rehires" in the drug and alcohol testing policy had been dis- continued, it was unnecessary to decide whether that aspect of the policy constituted a violation of the Act. ' See Star Tribune, at 547 163 bargain with the union over drug and alcohol test- ing of job applicants. Nothing in the record indi- cates a different result is required here. We there- fore find that the Respondent's implementation of a preemployment drug and alcohol testing program without prior notice to and bargaining with the ° Union was not a violation of the Act. Accordingly, we shall dismiss the complaint.3 ORDER The complaint is dismissed. ' Because of our disposition of the case , we do not reach the 10(b) or waiver issues Thomas W. Meiklejohn, Esq. and Rita C. Lisko, Esq., for the General Counsel. Gary S. Starr, Esq. (Siegel, O'Connor, Schiff, Zangari & Kainen), for the Respondent. Kent Y. Hirozawa, Esq. (Gladstein, Reif & Meginniss), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOwITz, Administrative Law Judge. This case was heard by me on June 27, 1988, in Hartford, Connecticut. The complaint and notice of hearing herein, which issued on October 29, 1987,1 and was based on an unfair labor practice charge filed on July 20 by Local 1109, Communications Workers of America, AFL-CIO (Union), alleges that United Cable Television Corpora- tion of Connecticut (Respondent), violated Section 8(a)(1) and (5) of the Act, by unilaterally implementing a drug testing program, on or about May 29, for job appli- cants seeking new employment with Respondent, and for individuals seeking to be reinstated in their employment status, without previously bargaining with the Union, the collective-bargaining representative of these employees. On the entire record, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union is a labor organization within the meaning of Section 2(5) of the Act. 11. FACTS AND ANALYSIS Since about 1985, the Union has been the collective- bargaining representative of the following employees of Respondent, admittedly constituting an appropriate unit: All full-time and regular part-time installers, service technicians, line technicians, construction foremen, ' Unless indicated otherwise, all dates referred to herein are for the year 1987. 296 NLRB No. 21 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD construction helpers, signal leakage auditors, and converter repair technicians employed by Respond- ent in the State of Connecticut, excluding audit em- ployees, office clerical employees, guards and super- visors as defined in the Act. The most recent collective-bargaining agreement be- tween the parties is effective for the period January 1, 1986, through December 31, 1988. Two relevant provi- sions in that agreement are the management rights clause and an exception to the grievance procedure that applies to probationary employees. Article II states: The Employer has and will retain the sole and ex- clusive right and prerogative to manage all aspects of its business and direct its work force, including but not limited to the right to select, hire and assign employees; to prescribe and enforce reasonable rules for the maintenance of discipline and the per- formance of work in accordance with the require- ments of the Employer; to suspend, demote, dis- charge or otherwise discipline employees for just cause; to promote, transfer or lay off employees; to determine shift schedules and hours of work within the bounds of this Agreement; to establish the meth- ods, procedures and means of conducting the work; and to assign all work to employees or others. Section 6 of article VII states: There shall be a sixty (60) day trial period for all new employees. During this period, the Union waives it right to grieve and arbitrate any disputes involving termination of employment. This period may be extended for an additional thirty (30) days by mutual agreement of the Employer and Union. The agreement makes no mention of alcohol or drug testing. About November 18, 1985, Respondent began to notify each applicant for employment that a preemploy- ment physical examination, which may include testing for the presence of drugs and alcohol, might be required for certain positions. Subsequent to that time, all applica- tions for employment stated at the bottom of the first page: "The company, for certain positions , may require a physical examination which may include testing for the presence of drugs and alcohol. Any offer of employment may be contingent upon passing such a physical examina- tion." Respondent requires all applicants for employment to sign a consent form for the testing. "Refusal to sign the `Consent Form' will result in incomplete, pre-em- ployment conditions and, therefore, the applicant will be ineligible for hire with the Company." The testimony of Alan Wiersema, Respondent's vice president of operations, establishes that on September 8, 1986, Respondent established the policy of testing all job applicants through a urinalysis. That summer, he had dis- cussions with Respondent's corporate office on the sub- ject. Previously, by memo to his superiors (with copies to department heads) dated July 17, 1986, Wiersema wrote: In regards to the attached letter, I plan on taking an aggressive approach on drug testing when hiring and also with present employees . In my opinion, in a service business such as ours where a large number of employees are dealing with our custom- ers face to face, we have an obligation not only to our business but more importantly to our subscrib- ers and the public to insure against drug and alco- hol abuse. We will be drafting and implementing policies in the very near future. Wiersema testified that although the memo refers to "when hiring and also with present employees," because it was a "delicate issue to deal with," after discussions with their attorneys, and others, Respondent decided not to implement the drug testing for present employees. Al- though the procedure was changed effective January 1, 1988, in order to comply with a 1987 statute of the State of Connecticut, and to eliminate "rehires" from the test- ing, Respondent continues to require all job applicants to submit to a physical examination , which includes a uri- nalysis screening for drugs and alcohol . Respondent never notified the Union of this policy and the evidence establishes that the subject of drug and alcohol testing was never raised during the prior negotiating sessions be- tween the parties. The Union alleges that it did not learn of the drug testing policy until an arbitration between the parties on or about May 29; this concerned the termination of Gary Overby. Attending were the grievant, Tony Califra; ex- ecutive vice president of the Union , Ron Nelson, former- ly a shop steward (at the time of the hearing herein, he was a supervisor for Respondent ); Larry Grant (also a steward); and Dan Livingston, attorney for the Union. For Respondent, Wiersema and Tom Rouse, its attorney attended. After about 1 hour of testimony, there was a break; when Livingston returned to the room, he in- formed Califra that a settlement was possible and Overby could be reemployed if he took a drug test. Califra then approached Wiersema and asked him why a drug test was part of the proposed settlement and Wiersema told him that all new employees and rehires have to be drug tested . Califra then asked him : "When did we talk about this? I never heard about this . When were you going to inform me about this?" Wiersema did not answer and Califra told him that he would soon send him a letter on the subject.2 By letter dated June 12, Califra wrote to Wiersema: At the Gary Overby arbitration case on Friday, May 29, 1987, a general discussion of drug testing took place between the Union and the Company. At that time, Local 1109 was first informed that United Cable TV Corp., as a condition of employ- ment, required new employees to be tested for 2 About a month later the parties finalized a settlement of this arbitra- tion The settlement provided , inter alia, that Overby would be rehired and would submit to a drug test, but that it was "purely for purposes of resolving the [grievance]" and the Union was not waiving any rights by agreeing to it UNITED CABLE TELEVISION CORP. 165 drugs as part of their physical . Use of such testing of applicants is an unfair labor practice when such a rule is imposed without notice to and bargaining with the Union. If this policy is not rescinded in two weeks, we will be forced to take out charges against United Cable TV Corp. of CT with the National Labor Relations Board. Awaiting your immediate reply, I am ... . Califra, who is the chief negotiator for the Union, tes- tified that prior to this Overby arbitration, he had never heard of, or been notified about, drug testing by Re- spondent, and the subject never arose during negotia- tions. He testified further that from September through December 1986 he went to Respondent's facility once or twice and met with Wiersema and Grant and a member of the Union's bargaining committee (not Nelson). During the first half of 1987, he had one or two union meetings with Respondent 's employees and may have had a steward with him when he met with Wiersema during the period . The stewards and union members have Califra's home telephone number and during the period from September 1986 through May 1987 he re- ceived telephone calls from stewards and members, but none were in regard to the hiring process or the tests at- tendant thereto. As stated, supra, Nelson was a line technician for Re- spondent until April 4, 1988; at that time he became line maintenance supervisor . He was a steward for the Union for about 18 months, ending on about January 1. Nelson testified that sometime during the fall of 1986 he heard that Respondent was drug testing job applicants; howev- er, he does not know who told him about it or where he was at the time, although it was probably on Respond- ent's premises during working hours . Additionally, he never discussed drug testing with any employee, with any other shop steward or with Califra. While he was a steward, he spoke to Califra sometimes several times a week or sometimes not for a month or two, but never about drug testing, even though Califra had instructed him that as a steward he should contact Califra if he had any questions about what was occurring at Respondent. At the Overby arbitration (which he attended as a sub- poenaed witness) Califra told him that Overby would have to be drug tested as part of a proposed settlement. He testified that he does not recall whether Califra asked him if he knew anything about drug testing. To counter this testimony , General Counsel produced two rebuttal witnesses-Grant and Califra. Grant testi- fied that at the Overby arbitration he was sitting with Nelson in a room adjacent to the arbitration. At one point, Califra come into the room and told them that there was a possible settlement that would involve Overby being drug tested . Grant had not previously heard of drug testing by Respondent and Califra asked them if they knew anything about drug testing and they said that they did not. After Califra walked out, Grant asked Nelson if he knew anything about drug testing and he said that he did not. Grant testified that prior to that day, he heard no rumors or jokes about drug testing by Respondent. Califra testified that during the Overby arbi- tration he asked Nelson if he was ever notified by Wier- sema about drug testing, and he said that he was never told of drug testing. Martin Eichelman , who has been employed by Re- spondent as a line tech supervisor since about January, and was operations manager for Respondent prior to that, testified that during the transition period between those two jobs "there was a general joke going around that individuals would sell each other 's urine to pass the test." This joke was spoken of for about a week among the technicians (although he could not be more specific); Nelson was the steward for the technicians at the time. Carlton Small was hired by Respondent on June 15 as an installer. He testified that after he saw the advertise- ment in the newspaper, he filled out an employment ap- plication for Respondent . A few days later, he was inter- viewed, was asked some questions about his background and was told that he would have to take a written test, which he took about a week later . Additional tests that he took involved carrying a ladder (agility), carrying a wheel of insulation wire (strength), and driving Respond- ent's vehicle (driving). At the conclusion of these tests, he was told that he would have to take a physical and that being hired was contingent on passing the physical. He passed it and was hired . He testified that when he filled out the application, he did not read anything that said that he would have to take a physical examination which included a test for the presence of drugs or alco- hol (although, as stated, supra, it is included on the first page of the application) nor did anyone inform him that a prerequisite to being hired was to pass a physical exam- ination that included a drug and alcohol test. On June 1, Small signed an Authorization For Use or Disclosure of Medical Information, which referred to being tested for drug and alcohol and had a urine test along with the rest of his physical exam. When he was asked for the urine sample, he asked the doctor what it was for ; the doctor told him that the purpose was "to see if I was involved with drugs." After beginning his employment with Re- spondent, he never discussed this urine test with any fellow employees . The first time he discussed it was in preparation for the instant hearing. Arthur Jones, who was hired by Respondent as an in- staller on January 26, testified in a similar manner. After seeing an advertisement in the newspaper he completed an application for employment. He was interviewed and given a mathematical test, a driving test , and was asked to carry a ladder. After passing these tests, he was told that he would have to take a physical examination. At the physical examination , he was asked to, and signed the disclosure form ("I understand that a preemployment medical examination which may include a drug and/or alcohol tests are part of United Cable Television employ- ment policy"), but was not told what the forms were for. He gave a urine sample at the physical . He did not dis- cuss the drug test with any fellow employees until short- ly before the hearing herein. William Johnson, who has been an installation supervi- sor for Respondent since about January, and was installa- tion manager prior to that, testified that both these posi- tions have responsibilities for hiring. Beginning in late 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1986, when he has interviewed job applicants, he in- formed them of the interview process, certain tests (math, driving and agility) to be taken, and that the ap- plicant must produce a copy of a driver's license and di- ploma. He also informed every applicant that they must take a physical examination "and I do specifically tell them that it's drug and alcohol related." He testified fur- ther that in late 1986, he also told Robert Sousa, a bar- gaining unit employee, who was referring somebody for employment, of these preemployment tests . Sousa did not respond. Grant testified that prior to the Overby arbitration, he was never informed by any new employee that they had taken a physical examination; in fact, prior to that time he was not aware that the Respondent gave physical ex- aminations to applicants for employment. The evidence establishes that in or about September 1986 Respondent instituted a policy of testing all appli- cants for employment for drug or alcohol use through urinalysis, and that this testing procedure was instituted without notice to, or bargaining with, the Union. While admitting this much, Respondent defends on a number of grounds: (a) Drug testing is not a mandatory subject of bargain- ing. (b) Drug testing is a legitimate management preroga- tive. (c) The Union has waived any right it has to negotiate over hiring issues. (d) The applicants who are tested are not employees and therefore are not protected by the Act. (e) Drug testing of applicants does not affect employ- ees. (f) The filing of the charge is barred by Section 10(b) of the Act. The initial question is whether drug and alcohol test- ing is a mandatory subject of bargaining; whether it is re- moved from this category because it involved job appli- cants rather than employees, will be discussed , infra. In NLRB v. Borg-Warner Corp., 356 U.S. 342, 350 (1958), the Court defined mandatory subjects of bargaining: "It regulates the relations between the employer and the em- ployees." In Allied Chemical Workers Local 1 v. Pitts- burgh Plate Glass Co., 404 U.S. 157 (1971), the Court stated that mandatory subjects of bargaining include ..only issues that settle an aspect of the relationship be- tween the employer and employees." See also First Na- tional Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). In Medicenter, Mid-South Hospital, 221 NLRB 670, 677 (1975), involving the introduction of polygraph tests for its employees, Administrative Law Judge Bernard Ries stated : "the introduction of new employment-related rules and requirements, disobedience to which may result in forfeiture of employment, are bargainable 'conditions' of employment within the pale of Section 8(d)." In Lock- heed Shipbuilding Co., 273 NLRB 171 (1984), the Board found that the implementation of a pulmonary function and audiometric medical screening program for new em- ployees, without first bargaining with the union , violated Section 8(a)(5) of the Act. In Timber Products Co., 285 NLRB 1114 (1987), an issue was the company 's imple- mentation of mandatory drug and alcohol testing for cer- tain classifications of new employees , as well as existing employees suspected by the company to be under the in- fluence of alcohol or other drugs. In finding that the Company violated Section 8(a)(5) of the Act by unilater- ally implementing this program , Administrative Law Judge Jay Pollack stated (supra at 1117): It should be obvious that unit employees have vital concerns about drugs in the workplace and the means by which the employer will use for screening out drug users. Based on the Lockheed cases, it would appear that drug testing or screening of ap- plicants would be a mandatory subject of bargain- ing. The issues for bargaining are not simply wheth- er testing should take place but include significant issues of privacy and confidentiality. In LeRoy Machine Co., 147 NLRB 1431 (1964), the employer unilaterally instituted physical examinations for employees with poor absentee records, subject to disci- plinary action for employees who refuse such examina- tions. While agreeing with the then trial examiner that such examinations were a mandatory subject of bargain- ing, the Board dismissed this allegation because the con- tract's management rights clause provided inter alia: "The Company retains the sole right to . . . hire, layoff, assign, transfer, promote and determine the qualifications of employees." (Emphasis added.) The management-rights clause in the agreement between Respondent and the Union is not similarly strong enough to overcome the fact that drug and alcohol testing is a mandatory subject of bargaining. It provides that Respondent shall have the right to select, hire, and assign employees . I therefore find that urinalysis testing for drug or alcohol substances is a mandatory subject of bargaining. Respondent next alleges that it had no obligation to bargain with the Union about the subject because it in- volved job applicants-prospective employees-rather than existing employees. In this regard , both counsel for General Counsel and counsel for Charging Party cite As- sociated Contractors of America of Houston, 143 NLRB 409 (1963). Counsel for Respondent alleges that this case and others relied on are inapplicable because they in- volve hiring halls. I disagree. The Board in AGC, supra, stated (at 412 fn. 9): "The concept of 'hire' though not specifically set out with 8(d), is clearly a 'term or condi- tion of employment,' and makes bargaining mandatory with respect to the hiring of prospective employees." The Board (citing Borg-Warner) stated: "Certainly, the matter of what standards are to be applied in determin- ing priorities for employment must of necessity regulate relations between the employer and the employees." No- where does the Board limit this holding to hiring halls; in fact, the language it used cannot correctly be con- strued that way. Two additional Board cases, though not right on point, contain language supporting General Counsel's position. In Tanner Motor Livery, Ltd., 148 NLRB 1402 (1964), the Board found that employees' concerted activities to protest what they consider to be unfair hiring policies and practices , are protected under Section 7 of the Act, stating (at 1404): "an employer's hiring policies and practices are of vital concern to em- UNITED CABLE TELEVISION CORP. 167 ployees inasmuch as such policies and practices inherent- ly affect terms and conditions of employment." See also White Farm Equipment Co., 242 NLRB 1373 (1979), where the Board found an 8(a)(5) violation where the employer refused to comply with the union's request, inter alia, for the number of males, females, whites, blacks and other minority job applicants for a specified period and the number from each group who were actu- ally hired. In addition to citing the above quoted lan- guage from Tanner, supra, the Board stated : "we have likewise held such data to be presumptively relevant, in- asmuch as it is 'integral to the Union 's fulfillment of its functions as statutory bargaining representative of unit employees."' In the East Dayton Tool Co., 239 NLRB 141 (1978), the Board reached a similar finding, also quoting from the same language of Tanner, supra. I therefore find that drug and alcohol testing is a mandato- ry subject of bargaining, even when applied solely to job applicants. Respondent next defends that the complaint should be dismissed under Section 10(b) of the Act. The evidence establishes that Respondent commenced the drug and al- cohol testing in September 1986 and that applicants who refused to submit to such a physical were not considered for employment . As the unfair labor practice charge herein was filed on July 20, Respondent alleges that the complaint must be dismissed because it is time -barred by Section 10(b). General Counsel alleges that as Califra did not learn of the drug testing until May 29 at the Overby arbitration hearing, the statute of limitations did not begin to run until that day, and , therefore, the charge was timely filed. The law under Section 10(b) is that notice, whether actual or constructive, must be clear and unequivocal and that Section 10(b) is a defense with the burden on Respondent to establish notice . L. C. Cassidy & Sons, Inc., 185 NLRB 920 (1970); Alabaster Lime Co., 194 NLRB 1116 (1972); Service Employees Local 3036 (Linden Maintenance), 280 NLRB 995 (1986). In ACF Industries, 234 NLRB 1063 (1978), the Board stated : "For where, as here, the rights of parties to use our processes are at stake, we have long applied a more stringent test for de- termining when a party has notice of a possible infringe- ment of its rights." And in Wisconsin River Valley District Council v. NLRB, 532 F.2d 47 (7th Cir. 1976), the court stated : "The Act's statute of limitations does not begin to run until the aggrieved party knew or should have known that his statutory rights were violated ." Respond- ent has produced no evidence that the Union knew of the drug testing at any time prior to May 29. The issue, therefore, is whether Respondent has established that the Union "should have known" of it prior to January 20. To establish that the Union knew or should have known of the drug testing by, at least, the end of 1986, Respond- ent presented Nelson who testified that, while a shop steward, he heard about the drug testing. Eichelman, who testified to the joke among the employees about selling urine, Johnson, who testified that he told all ap- plicants (and Sousa) that drug and alcohol testing was part of a physical examination required before being hired by Respondent, and the testimony of Jones and Small that they were so tested prior to being hired. I find the testimony of Nelson so indefinite as to not be be- lieved. He testified only that sometime during the fall of 1986, he heard that Respondent was drug testing job ap- plicants; he does not know who told him about it or the circumstances surrounding it. He never subsequently dis- cussed this with anyone, including Califra, even though Califra had previously instructed him to contact him if anything unusual occurred . Although he had contact with Califra on a number of occasions between the fall of 1986 and May, he never told Califra about the drug testing. I also credit the testimony of Grant and Califra that at the Overby arbitration , Nelson told them that he had not previously heard of Respondent drug testing job applicants . Recognizing the difficult position Nelson is in-formerly a union steward and now a supervisor-but principally the vague nature of his testimony , I do not credit him. I likewise find Eichelman 's testimony about the joke at Respondent 's facility clearly inadequate to es- tablish notice . The notice required must be "clear and unequivocal"; testimony about a joke allegedly going around the facility hardly reaches that level. Finally, Johnson's testimony that he informed all applicants (and Sousa, a bargaining unit employee), that the physical ex- amination included a drug and alcohol test, as well as Small and Jones' testimony that they took such tests, also c.-as not establish that the Union had (or should have had) notice of such tests prior to January 20. Both Small and Jones testified that they never informed any fellow employee (or union representative) about the drug test- ing until shortly before the instant hearing. It must be noted that the bargaining unit employees herein install and maintain cable television lines within a large area; this is not a situation where the employees all work their 8-hour day in close quarters. All the above convinces me that Respondent has not sustained its burden that the Union knew, or should have known , of its drug testing prior to January 20. Southern California Edison Co., 284 NLRB 1205 (1987). Finally, Respondent defends that the Union has waived any right it may have had to negotiate about drug testing . The evidence establishes that drug testing was never mentioned during collective-bargaining nego- tiations between the parties. In support of its waiver de- fense, Respondent cites article II which gives it the sole and exclusive right to "select, hire and assign employees; to prescribe and enforce reasonable rules for the mainte- nance of discipline and the performance of work," as well as article VII, section 6, which provides that the Union waives its right to grieve or arbitrate disputes in- volving probationary employees (employed less than 60 days). Any waiver by a union of its statutory right to be con- sulted about a change in terms and conditions of employ- ment must be "clear and unmistakable." Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). "Such a waiver may not be lightly inferred ." Kansas National Education Assn., 275 NLRB 638, 639 (1985), and the burden of establishing waiver is on the party alleging it. Litton Systems, 283 NLRB 973 (1987). Respondent al- leges that because the contract between the parties gives Respondent the sole and exclusive right to "select, hire 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and assign employees" the Union waived its right to complain about the drug testing policy it instituted in September 1986. In support of this argument, Respond- ent cites LeRoy Machine Co., supra. In that case, the management rights clause, in addition to providing that the employer retained the sole right to hire employees, also stated that the employer had the sole right to "de- termine the qualifications of employees." The Board stated: In our opinion, the language conferring on the Re- spondent the right to determine the "qualification of employees," when given its plain meaning did en- compass such physical examinations and therefore removed that subject from the scope of collective bargaining during the term of the contract. The contract between Respondent and the Union did not contain the additional language the Board found de- termining in LeRoy Machine, supra. Additionally, Kansas National Education Assn., supra, involved an allegation that the employer violated Section 8(a)(5) of the Act by entering into agreements with employees regarding trans- fers to other positions, without previously notifying, or bargaining with, the union. The employer defended on the basis of waiver (inter alia) because its management- rights clause gave it "the right to carry out the ordinary and customary functions of management and to adopt policies . . . and practices in furtherance thereof." The Board found no waiver; "the provision is at best vague and as such insufficient to meet the standard of a `clear and unmistakable waiver."' The situation is similar herein; the contractual language giving Respondent the exclusive right to select an employer is not definitive enough to constitute a "clear and unmistakable" waiver of the Union's right to negotiate about drug testing. I therefore find that the Union never waived its right to bargain over the drug testing. On the basis of all of the above, I find that Respondent violated Section 8(a)(1) and (5) of the Act when it insti- tuted drug and alcohol testing of job applicants without prior negotiating with the Union. As testing of rehires was discontinued on about January 1, 1988, I find it un- necessary to decide that issue. CONCLUSIONS OF LAW 1. United Cable Television Corporation of Connecticut is, and at all times material herein has been , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 1109, Communications Workers of America, AFL-CIO is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time installers , service technicians, line technicians, construction foremen, construction helpers, signal leakage auditors and converter repair employees employed by Respond- ent at its 91 Shield Street, Hartford, Connecticut lo- cation; but excluding all other employees , office clerical employees, and guards, professional em- ployees, and supervisors as defined in the Act. 4. The Union is, and at all times material has been, the exclusive bargaining representative of all employees in the appropriate unit described above. 5. Respondent violated Section 8(a)(1) and (5) of the Act by failing and refusing to bargain with the Union concerning the institution of a policy of testing all job applicants for drug and alcohol use. 6. The aforesaid unfair labor practice is an unfair labor practice within the meaning of Section 2(6) of the Act. THE REMEDY Having found that Respondent has engaged in, and is engaging in, an unfair labor practice in violation of Sec- tion 8(a)(1) and (5) of the Act, it will be recommended that Respondent be ordered to cease and desist there- from, and to take certain action designed and found nec- essary to effectuate the policies of the Act. [Recommended Order omitted from publication.]