Electric Energy, Inc.

ELECTRIC ENERGY Electric Energy, Inc. and International Union of Operating Engineers, AFL-CIO, Local Union No. 148. Case 14-CA-19765 September 18, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On January 31, 1989, Administrative Law Judge Frank H. Itkin issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief 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 implementing a preemployment drug screening policy and refus- ing to employ various job applicants pursuant to this policy without prior notice to or bargaining with the Union, the certified representative of the Respondent's production and maintenance employ- ees. In finding drug testing of job applicants to be a mandatory subject of bargaining , the judge relied, inter alia, on the Board's decision in Rockwood & Co., 285 NLRB 1114 (1987). The Respondent has excepted to the judge's findings. We agree with the Respondent that the judge erred in finding drug testing of job applicants to be a mandatory subject of bargaining . In Star Tribune, 543 (1989), the Board recently held that drug test- ing of applicants was not a mandatory subject of bargaining because applicants were not bargaining unit employees nor did drug testing of applicants vitally affect the terms and conditions of employ- ment of unit employees. Therefore, the employer did not violate Section 8(a)(5) and (1) by refusing to bargain with the union that represented the unit employees over the employer's drug screening pro- gram for applicants . We find nothing in the record that would warrant a different result in this case.I See also GTE Hawaiian Telephone Co., 296 NLRB 1 (1989). For the reasons set forth in Star Tribune, we therefore find that the Respondent had no duty to bargain with the Union over the Respondent's preemployment drug screening policy. According- ly, we shall dismiss the complaint. I The judge's reliance on Rockwood & Co, above, is misplaced See Star Tribune, above, fn 6 567 ORDER The complaint is dismissed. Michael Jamison, Esq., for the General Counsel. John Lovett and Robert Mattingly, Esqs., for the Employ- er. Mark Waldemer, Esq., for the Union. DECISION FRANK H. ITKIN, Administrative Law Judge. The Union filed an unfair labor practice charge in this case on October 13 and a complaint issued on November 14, 1988. The complaint was amended at the hearing. The complaint alleges that Respondent Employer violated Section 8(a)(1) and (5) of the National Labor Relations Act by implementing a preemployment drug screening policy and refusing to employ various job applicants pur- suant to this policy without having afforded the Union an opportunity to negotiate and bargain as the exclusive bargaining agent of its employees in an appropriate unit. The Employer denies violating the Act as alleged. A hearing was held on the issues raised in St . Louis, Mis- souri on December 5, 1988 . On the entire record, includ- ing my observation of the demeanor of the witnesses, I make the following FINDINGS OF FACT The Employer is a public utility engaged at Joppa, Illi- nois, in the generation, transmission, distribution, and sale of electric power and energy. The Employer's Joppa plant has been described as a "coal fired steam electric generating plant." It is undisputed that the Employer is in commerce and the Union is a labor organization as al- leged. The Union is the exclusive bargaining agent of the following appropriate unit of the Employer's employees: All production and maintenance employees, includ- ing control operators, relay and electronics techni- cians, control and instrument technicians , results technicians and laboratory technicians, excluding systems supervisors, chemists, chemical engineers, office clerical and professional employees, guards and supervisors as defined in the Act. The parties have entered into successive collective- bargaining agreements since the Union's certification in 1970, the most recent agreement being effective from July 1, 1988, through June 30, 1991. (See A. Exh. 1.) None of these agreements provide for preemployment drug testing or similar testing of current employees. On September 5, 1988, the Employer admittedly implement- ed a preemployment drug screening policy without af- fording the Union an opportunity to negotiate and bar- gain over this policy. (See Tr. 19-20 and it. Exh. 2.) The relevant testimony and documentary evidence pertaining to the Employer's implementation of this policy is sum- marized and discussed below. Donald Giljum, the Union's business manager, testified that he negotiated the current collective-bargaining agreement with the Employer in 1988. At the second 296 NLRB No. 76 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining session on May 10, the Employer's vice presi- dent Harry Chambers stated: this had nothing to do with contract negotiations ... he [Chambers] just wanted to make us aware of the fact that sometime towards the end of the year they hoped to implement a drug testing pro- gram and procedure for bargaining unit job appli- cants . . . they were in the process of developing a policy and procedure and hopefully when they got that concluded they would implement such a policy but they were not negotiating with us over that .. . he wanted to reiterate that we were talking about bargaining unit job applicants not current employ- ees.... Giljum then told Chambers that preemployment drug testing was a mandatory subject of collective bargaining; that "before any type of a program was implemented we were demanding negotiations with the Company over it"; and that he, Chambers, should "double check" with the Employer's attorney. Giljum next recalled the June 10 negotiating session with the Employer. Chambers then told Giljum that the Employer had "a right to go ahead and implement such a drug testing program for bargaining unit job applicants and that they did not have to negotiate with us over that." Giljum again demanded bargaining and threatened to file an unfair labor practice charge if the Employer implemented such a policy. Giljum testified: We said we didn't have a problem with drug testing per se, we had it at another unit that we represent, we sat down and negotiated a program there, and we were more than willing to sit down and negoti- ate a program with them... . Giljum added that Chambers had also "indicated that down the road they were looking at implementing a pro- gram for current employees." However, as counsel for the Employer acknowledged (Tr. p. 33), the Employer "will bargain with the Union " over drug testing for "current employees" as distinguished from "applicants." During late August, after the contract negotiations had been concluded and the parties had signed the current agreement, Giljum was informed that the Employer would implement its preemployment drug testing pro- gram about September 5. On September 2, Giljum wrote Chambers restating the Union's position and again de- manding bargaining . (See G.C. Exh. 2.) On September 13, Chambers replied restating the Employer 's refusal to bargain. (See G.C. Exh. 3.) And, on September 8 or 9, Chambers telephoned Giljum and he [Chambers] wanted to know specifically what our problem was with drug testing, what we had against it. And I [Giljum] told him again that we had no problem with drug testing , but we wanted to negotiate over it ... . Giljum recalled that Chambers again mentioned "some possible testing down the road respecting current em- ployees" and my [Giljum's] statement to him was that we felt ne- gotiations [were] mandatory . . . it impacted upon the bargaining unit ... and that again, with their intentions of going forward with a program possibly in the future on drug testing current employees, it would serve as a basis for those negotiations ... . Chambers again acknowledged that the Employer would negotiate with respect to "current employees," but would not negotiate with respect to "applicants." As noted, the Employer unilaterally implemented its preem- ployment drug testing policy on September 5. Curtis Stairs Jr. is the Employer's general plant man- ager at its Joppa facility . Stairs testified that the Joppa facility was "originally" a "national defense plant" with "extremely high security"; that "current employees," however, are no longer subjected to "security checks" to work at the Joppa facility; that the Joppa facility princi- pally generates power for the Department of Energy plant at Paducah although some of its surplus power may also be sold to individual customers; that there is no drug testing for its some 260 "current [unit] employees" at Joppa; that periodically about four or five of its `cur- rent employees" must go into the Department of Energy Paducah facility and consequently must have a "class Q clearance" although no drug-testing is required at that facility by the Department of Energy; that employees of outside contractors also have come into the Joppa facili- ty without having submitted to a drug testing program; and that article 18 of the collective-bargaining contract between the parties, as well as the agreement between the Employer and the Department of Energy, provides that the "Company shall make every reasonable effort in the selection of its employees to secure persons who are competent, careful, honest and loyal to the United States of America." (See A. Exh. 1, 48.) Stairs, after summarizing the Employer 's Joppa oper- ation, including what he characterized as the "hazards" of working in such a facility , asserted: [I]n recent years we hear more and more within our community about drug abuse. We felt like due to the sensitive nature of our plant and our jobs and to provide safety for our current employees as well as those coming in that we should initiate such a [drug testing] program. Stairs, when asked whether his "security" and "safety" reasons are any "less applicable to the current unit em- ployees than they are to the applicants ," responded: "No sir. We felt like we had to start somewhere here ." Stairs added that the Employer "will hire up to 35 utility me- chanics" and this "is one reason that we are looking at this." Stairs acknowledged that "many" of these "utility workers" "will become "regular employees" with recall rights after they accumulate 6 months of service." Stairs, when again asked whether this is "any less serious a problem for the applicants than it is for the people that are working there already," responded: "Not necessari- ly." Elsewhere, Stairs claimed that the Employer has the "opportunity to keep under surveillance the employees ... already . . . on the job." Stairs then cited two in- ELECTRIC ENERGY stances of drug problems involving "current employees." He later acknowledged that these two cited instances in the past 3 to 4 years involved employees using pre- scribed medications . He also acknowledged that none of the 19 applicants tested under this recently instituted pro- gram, from September 5 to November 30, tested positive. (See R. Exh. 3.) Stairs was asked why the Employer was unwilling to bargain with the Union before instituting its drug testing policy for applicants . He responded that "it was Manage- ment's right to determine how the drug testing was ad- ministered"; that the Employer "was treating everyone fairly according to our contract"; that the Employer was "limiting this to our preemployment physical doing it ex- actly the same way" for all job applicants ; and that bar- gaining involved the "potentiality" for "delay" and "ex- pense." Stairs, however, could cite no specific basis for this anticipated "potentiality" for "delay" and "expense." Stairs acknowledged that the last round of contract ne- gotiations between the parties ran from May 9 to June 30; this was the "normal length" of time for contract ne- gotiations; and "this preemployment controlled substance testing could have been discussed during these negotia- tions" and "an agreement could have been negotiated . .. well ahead of [the Employer's] planned projects." Michael Hefner, the laboratory director at Massac Me- morial Hospital, testified that his hospital conducts the preemployment physical examinations for the Employer's job applicants. He described the drug screening part of the examination . A physician will issue the required order for the test . A urine specimen is obtained in a cup and then the specimen , after being labeled and marked, is transmitted in a sealed container to National Health Lab- oratories in Louisville, Kentucky. As Hefner acknowl- edged, "we do not do the drug screening, we simply act as handlers [or] collectors." The job applicant certifies that the specimen is his and dates the tag. The hospital also fills out a form for National Health Laboratories with information. The sealed specimen does not leave the hospital's possession until a courier from the labora- tory picks it up. Later, a teletype report is sent from the laboratory to the hospital . If the test is positive, the phy- sician may request that "we quantitate it." The laborato- ry will do this test also . In addition, as Hefner noted, when the initial test is positive , the laboratory will do a second test by a different method . Hefner was unaware of what "internal chain of custody " if any exists at the laboratory in Louisville. Hefner was unaware of the guidelines for drug testing issued by the United States Department of Health and Human Services. (See G.C. Exh. 4 and Tr. 103-112.) The hospital apparently com- plies with some but not all of the pertinent guidelines for specimen collection.' Discussion General Counsel argues that drug testing of "current employees" as well as "job applicants" is a mandatory subject of collective-bargaining; that such testing is in ' I credit the essentially uncontroverted and mutually corroborative testimony of Gillum , Stairs Jr, and Hefner summarized above as reliably and completely reflecting the pertinent sequence of events 569 effect a fitness for duty requirement and condition of em- ployment that may affect employment status" ; and that, consequently, how such tests are formulated and per- formed are of vital concern to the unit employees in- volved and their collective-bargaining representative. Further, General Counsel would not regard such testing as within the privileged scope of managerial or entrepre- neurial prerogatives since such testing is not fundamental to the basic direction of the enterprise and does not im- pinge only indirectly upon employment security . In sum, it is the General Counsel's position that such testing of "job applicants" not only establishes a condition of em- ployment it also settles a term and condition of employ- ment for "current employees" by vitally affecting their working environment. As General Counsel states, "There can be no quarrel with an employer 's desire to ensure a drug free work force or a drug free working en- vironment . We simply conclude that upon request an em- ployer must bargain in good faith with its employees' Section 9(a) representative about a decision to institute drug testing and the content, procedures and effects of such a program." (See G.C. Exh. 2 and cases cited.) Counsel for Respondent Employer concedes that such testing for "current employees" is a mandatory subject of collective bargaining; however, he argues that such test- ing of "job applicants" is not a mandatory subject of col- lective bargaining. The Board, in Rockwood & Co., 285 NLRB 1114 (1987), in agreement with the administrative law judge, rejected a similar contention . As the adminis- trative law judge stated in Rockwood, "It should be obvi- ous that unit employees have vital concerns about drugs in the work place and the means by which the employer will use for screening out drug users . Based on the Lock- heed cases, it would appear that drug testing or screening of applicants would be a mandatory subject of bargain- ing." See also Star Tribune, 295 NLRB 543 (1989), in which the administrative law judge similarly concluded that the employer's "new drug and alcohol policy as it pertains to prospective employees is a mandatory subject of bargaining and that the new policy as it applies to prospective employees does vitally affect the terms and conditions of employment and working environment of the . . . bargaining unit, " and cases cited . Indeed, in the instant case, I note that the Employer's stated "goal" in adopting its policy is "to establish and maintain a work environment that is free from the effects of illegal drugs" (G. C. Exh. 3) and that Employer is also "looking at im- plementing a program for current employees." Counsel for Respondent Employer acknowledges that the above decisions are "contrary" to his "argument"; however, he contends that none of the cited decisions in- volved "an extremely dangerous plant"; "plants critical to the national defense"; "policies [initiated] under severe time pressure"; and there was then "no broad Congres- sional condemnation of drug abuse in the work place." I find these and related contentions to be without merit. There is nothing in this record which would show an employer operation which should arguably be privileged from fulfilling the statutory obligation to bargain in good faith with the employees' collective-bargaining agent over mandatory subjects of bargaining . The Employer 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD concededly is willing to bargain over these same subjects insofar as they pertain to "current employees ." More- over, this record shows no "severe time pressure"; on the contrary, this record makes it clear that the Employ- er had ample time to negotiate this contemplated policy with the Union and satisfy its own internal time targets. The Union had repeatedly expressed to the Employer that "we had no problem with drug testing, but we wanted to negotiate over it"- "we had it in another unit that we represent, we sat down and negotiated a pro- gram there and we were more than willing to sit down and negotiate a program with" the Employer here. Like- wise, nothing in this record supports an argument to the effect that negotiating with the Union here would in some way involve an attempt to delay or frustrate the Employer's goal to create a drug-free workplace. In sum, I find that Respondent Employer has violated Section 8(a)(1) and (5) of the Act as alleged. CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in commerce as alleged. 2. Charging Party Union is a labor organization as al- leged. 3. Respondent Union violated Section 8(a)(1) and (5) of the Act by failing and refusing to bargain in good faith with the Union by implementing a preemployment drug screening policy and refusing to employ various job applicants pursuant to this policy without having afford- ed the Union an opportunity to negotiate and bargain as the exclusive bargaining agent of its employees in an ap- propriate unit. The appropriate unit is as follows: All production and maintenance employees , includ- ing control operators, relay and electronics techni- cians, control and instrument technicians, results technicians and laboratory technicians , excluding systems supervisors, chemists, chemical engineers, office clerical and professional employees , guards and supervisors as defined in the Act. 3. The unfair labor practices found above affect com- merce as alleged. REMEDY To remedy the unfair labor practices found above, Re- spondent Employer will be directed to cease and desist from engaging in such unlawful conduct or like or relat- ed conduct and to post the attached notice . Affirmative- ly, Respondent Employer will be directed to revoke and rescind its preemployment drug screening policy; to bar- gain, on request, in good faith with the Union before adopting and implementing such a policy; to offer em- ployment to those employees or prospective employees who tested positive or who refused to submit to said pro- gram and were thus excluded from further consideration for employment; and to make said employees or prospec- tive employees whole for any loss of earnings or benefits they may have suffered due to the Employer 's unlawful conduct as found herein, as prescribed in F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest to be com- puted as provided in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), unless Respondent Employer can demonstrate on an individual basis that said employee or prospective employee would have been denied employ- ment for a lawful nondiscriminatory reason.2 [Recommended Order omitted from publication.] 2 In accordance with the Board's decision in New Horizons for the Re- tarded, supra, interest on or after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1987 amendment to 26 U S.C § 6621 . Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U S C § 6621 ), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). See also Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971).