Gte Hawaiian Telephone Co. Inc.

GTE HAWAIIAN TELEPHONE CO. ' GTE Hawaiian Telephone Company Incorporated and International Brotherhood of Electrical Workers, Local Union 1357, AFL-CIO. Case 37-CA-2594 August 4, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY On October 19, 1988 , Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief.' The Equal Employment Advisory Council filed a brief amicus curiae in support of the Respondent. 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) of the Act by implementing a pro- gram of urinalysis drug screening of applicants for employment without prior notice to or bargaining with the Union, which has been the certified repre- sentative of certain of the Respondent's employees since 1943. The judge found that, although appli- cants are not unit employees , drug screening of ap- plicants for bargaining unit positions is a mandato- ry subject for collective bargaining because in his view such screening vitally affects the terms and conditions of employment of unit employees. He also found that the Union's charge was timely filed under Section 10(b) and that the Union had not waived its right to bargain over the drug testing program. The Respondent has excepted to each of those findings. We agree with the Respondent that the screen- ing program here is not a mandatory bargaining subject. In Star Tribune, 295 NLRB 543 (1989), the Board recently held that drug testing of applicants did not "vitally affect" the terms and conditions of employment of unit employees ,2 and therefore that ' The Respondent has requested oral argument . The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 2 In Allied Chemical & Alkali Workers a Pittsburgh Plate Glass Ca, 404 U.S. 157, 179 (1971), the Supreme Court held that, in determining wheth- er a matter affecting individuals outside the bargaining unit is a mandato- ry subject for bargaining, "the question is not whether the third-party concern is antagonistic to or compatible with the interests of bargaining- unit employees, but whether it vitally affects the 'terms and conditions' of their employment ." In United Technologies, 274 NLRB 1069, 1070 ( 1985), the employer did not violate Section 8 (a)(5) by re- fusing to bargain with the union over its drug screening program for applicants . We find nothing in the record that would require a different result in this case. S For the reasons set forth fully in Star Tribune, we therefore find that the Respondent had no duty to bargain with the Union over its drug screening program for applicants for employment. Accordingly, we shall dismiss the complaint.4 ORDER The complaint is dismissed. enfd. 789 F.2d 121 (2d Cir. 1986), the Board interpreted the "vitally af- fects" test in the following way: An indirect or incidental impact on unit employees is not sufficient to establish a matter as a mandatory subject. Rather, mandatory sub- jects include only those matters that materially or significantly affect unit employees' terms and conditions of employment Similarly, the phrase "terms and conditions of employment" is to be construed in a limited sense and does not include all subjects that may merely be of interest or concern to the parties. s The judge noted, in support of his finding that drug screening of ap- plicants is a mandatory subject, that one of the purposes of the program was to spread to unit employees the message that the Respondent was paying attention to problems of substance abuse We are not persuaded that this reason warrants a result different from that which we reached in Star Tribune. The possibility of such an indirect deterrent effect on unit employees is not enough to meet the "vitally affects" test. 4 Because of our disposition of the case , we do not reach the waiver or 10(b) issues Michael S. Hurtado, Esq., for the General Counsel. Cheryl Ann Klepper. Esq., of Honolulu, Hawaii, for the Respondent. Herbert R. Takahashi, Esq., of Honolulu, Hawaii, for the Charging Party. DECISION STATEMENT OF THE CASE, ISSUES RICHARD J. BOYCE, Administrative Law Judge. This matter was tried before me in Honolulu, Hawaii, on June 7, 1988. The complaint, based on a charge filed March 1, 1988, by International Brotherhood of Electrical Work- ers, Local Union 1357, AFL-CIO (Union) alleges that GTE Hawaiian Telephone Company Incorporated (Re- spondent) violated Section 8(a)(5) and (1) of the National Labor Relations Act (Act) by: (a) "unilaterally implementing a drug testing program for new-employee applicants " in July 1985; and (b) "fail[ing] and refus[ing] to bargain with the Union concerning the subject ... of pre-employment employee drug testing" since about February 8, 1988. Respondent contends that it was and is under no legal duty to bargain with the Union concerning the drug screening of job applicants ; and affirmatively defends that, even if it were, the action herein is barred by the 6- month limitation period prescribed by Section 10(b) of the Act, and that the Union has waived its right to bar- gain over the matter in any event. 296 NLRB No. 1 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I. JURISDICTION, LABOR ORGANIZATION Respondent is a public utility engaged in the business of telecommunications in the State of Hawaii . That it is an employer engaged in and affecting commerce within Section 2(2), (6), and (7) of the Act is not in dispute. That the Union is a labor organization within . Section 2(5) of the Act likewise is not in dispute. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Union has been the NLRB-certified representative of certain of Respondent's employees since 1943. The latest of a succession of bargaining , agreements covering those employees, to the time of trial, was entered into on May 30, 1985, and ran for 3 years from May 1, 1985. The unit now numbers about 2900.1 The bargaining agreements have provided, since at least the 1961- 1963 agreement, that "the Company will furnish . . . pre-employment [medical] examinations to new probationary employees"; and, in a separate subsec- tion, that "all employees shall take any examination that the Company deems necessary in any instance." Effective July 1, 1985, Respondent expanded its preemployment examinations to include urinalysis drug screening.2 Respondent admits in its answer that this was done "unilaterally," "without formally notifying the Union or bargaining with the Union," its position being that it has no "obligation or duty to engage in bargaining over the testing of applicants for employment, applicants not being included in the [bargaining] unit." Respondent first informed the Union of the screening program in January 1988. This came about when an un- successful job applicant told an assistant business agent, Harold Dias, in late 1987, that she believed her nonhire was because of drugs. Then, in January, Dias asked Re- spondent's labor relations manager, Norman Aramaki, if Respondent was subjecting applicants to drug screening. Aramaki confirmed that it was. A meeting followed on January 19, attended by Ara- maki, Dias, and several other representatives of Respond- ent and the Union, one purpose being to discuss the matter of drug screening. The discussion was short-lived, however, for the Union insisted at the outset that it rep- resented applicants, and Respondent disagreed. The Union's business manager, Joe Benevides, there- upon sent a letter, dated January 25, to Respondent's em- ployee relations director, Charles Kerle. It stated: We recently learned that Hawaiian Telephone Company has engaged in drug testing of job appli- cants. During the meeting held on or about January 19, 1988, we were informed that drug testing has ' The 1985-1988 agreement describes the unit as consisting, in essence, of all employees of Respondent, statewide, with specified exclusions. The complaint alleges, the answer admits, and I conclude that this is an ap- propriate unit for purposes of the Act. 2 This applied to applicants for all positions, in and out of the unit. 9 Although Respondent presumably was considering drug screening while negotiations leading to the 1985-1988 agreement were underway, the record contains no evidence that the subject came up in those negoti- ations. been conducted as part of the pre-employment ex- aminations of new probationary employees. Recognizing that drug testing or screening is a mandatory subject of bargaining, the Union requests that Hawaiian Tel cease and desist from drug test- ing immediately. A unilateral implementation of this practice constitutes an unfair labor practice. We re- quest that the Company confirm in writing within the next seven days that it has suspended its testing until bargaining has been completed and an agree- ment reached between the Company and the Union. We also request that the Company agree within the next seven days to bargain over the subject. As the exclusive bargaining representative, the employ- er is required to recognize the Union over "terms and conditions of employment." As Article 30 of the current agreement indicates , a similar subject has been negotiated .4 The NLRB requires that drug testing be negotiated. We will be submitting a request for information soon. We request that you prepare a response in writing so that . . . bargaining can begin shortly on this issue. Kerle responded by letter dated February 8: This is in response to your letter of January 25, 1988 concerning drug testing of job applicants by GTE Hawaiian Tel. As you know, the Company's drug testing of job applicants has been in effect since July 1, 1985. Ar- ticle 2 of the current Collective Bargaining Agree- ment specifies that Local Union 1357 is the exclu- sive representative of the employees of the Compa- ny. The Company is of the opinion that such repre- sentation does not extend to job applicants. There- fore, doing screen testing prior to employment is not a mandatory subject for bargaining. Furthermore, it is within the recognized right of the Company to institute such policies as it deems appropriate for the efficient and effective operation of the Company and the Union has acknowledged this authority. It is also the Company's understanding that the issue of bargaining over drug testing of job appli- cants has not been reviewed before the full board of the National Labor Relations Board (NLRB). We will not alter our existing pre-employment proce- dures. As earlier mentioned, the Union filed the charge herein on March 1. By letter dated March 11, Dias advised Kerle that "the Union . . . will not tolerate unilateral implementation of policies; practices, or procedures which violate our . . . agreement and which constitute an unfair labor prac- tice"; that Respondent had "abused its rights under Arti- cle 8" of the agreement; and that the Union therefore * Art. 30 being the previously mentioned provision for medical exami- nations. . GTE HAWAIIAN TELEPHONE CO. 3 was "pursuing this matter to the grievance procedure in accordance with" the agreement. Dias' letter concluded: The Union contends that drug testing on pre-em- ployment examinations to new employees is [a] mandatory subject of bargaining and [demands] that the Company cease and desist from drug testing im- mediately. We also request as the exclusive bargaining rep- resentatives that the Company bargain over the sub- ject. Article 8 of the agreement, cited by Dias, pertains to management rights and states in relevant part: 8.1 The supervision and control of all operations and the direction of all working forces, which shall include, but not be limited to, the right to hire, to establish work schedules, to suspend or discharge for proper cause, to promote or transfer employees, to relieve employees from duty because of lack of work, or for other legitimate reasons, shall be bested exclusively in the Company, except as other- wise covered in this Agreement. Kerle replied to Dias by letter dated March 24, assert- ing that the Union's grievance request was untimely; that Respondent "is of the opinion that" the Union's repre- sentative status "does not extend to job applicants" and thus that "drug screening prior to employment is not a mandatory subject for bargaining"; and that Respondent was "within its authority to institute such policies as it deems appropriate for the efficient and effective oper- ation of the Company." Dias came back by letter dated March 25, disputing Kerle's contention that the grievance request was un- timely, and demanding anew that the matter of drug screening be resolved through the grievance procedure. This, apparently, was the last communication between the parties on the subject. The screening program was the idea of Respondent's director of human resources, Nicholas Doria. By letter of June 25, 1985, to the parent corporation's vice presi- dent, human resources, Doria explained: This measure is being instituted as a result of in- creases in the use of illicit drugs nationwide and the reported high use of certain materials locally... . [T]he use of a screening process at the time of ap- plication for employment should be a significant de- terrent to our hiring individuals who are using these substances. Furthermore, the fact that such tests are being done may, by word of mouth, spread the mes- sage to incumbent employees that some attention is being paid to the problems of substance abuse, even though we are not contemplating any diagnostic measures for those currently employed. Coincident with its institution of drug screening, Re- spondent revised the "Release and Acknowledgement" contained in its job application forms to elicit permission from the applicant to undergo "a drug screening." About 850 applicants had been hired into bargaining unit posi- tions from July 1, 1985, to the time of trial. Those failing the drug screening were not hired . The record does not reveal their number. Pamela Nakoa, a unit employee and a union steward in the summer of 1986, testified that, while instructing tem- porary employees from Kelly Services at that time, she was told by an unidentified "temporary" that the tempo- rary had been terminated for "not passing a physical" and that "it was because of drugs." Nakoa testified that her informant did not say if Kelly Services, or Respond- ent, administered the physical. The temporary elaborat- ed, according to Nakoa, that she had not taken drugs, but "just happened to be around somebody that did." Respondent hired the sons of the previously mentioned union officials, Benevides and Dias, into unit positions after July 1985-one in 1986, one in 1987. They thus un- derwent drug screening . The record contains no evi- dence that either informed his father of that before Re- spondent informed the Union, directly, of the program. B. Conclusions An employer generally violates Section 8(a)(5) and (1) by changing terms and conditions of employment-i.e., matters deemed "mandatory subjects of bargaining"- without first affording its employees' collective-bargain- ing representative a meaningful opportunity to bargain over the changes. 5 As applicants for hire to bargaining unit positions, those subject to the drug screening now under scrutiny are yet to become employees of Respondent,6 let alone constituents of the unit;' and the Supreme Court has stated that "normally matters involving individuals out- side the employment relationship do not fall within that category" of mandatory bargaining subjects.8 The Court added in the same decision , however, that the exclusion is not absolute, and that "the question" in each case is whether the matter "vitally affects the 'terms and condi- tions' of . . . employment" of those in the unit.9 The Board, construing the Court's decision, in turn has stated: While matters affecting individuals outside the bar- gaining unit are not automatically excluded from the scope of mandatory bargaining , . . . the touch- stone is whether such matters "vitally affect" the terms and conditions of employment of unit em- ployees. An indirect or incidental impact on unit employees is not sufficient to establish a matter as a mandatory subject. Rather, mandatory subjects in- clude only those matters that materially or signifi- cantly affect unit employees' terms and conditions of employment. . . . [T]he phrase "terms and condi- tions of employment" is to be construed in a limited S E.g., Alamo Cement Co. , 281 NLRB 737, 738 (1986). 8 Although applicants are "employees " within the protections of the Act. Phelps Dodge Corp. Y. NLRB, 313 U.S. 177 (1941), Houston Chapter, ACC, 143 NLRB 409, 412 (1963). 7 Cf. Chemical Workers Y. Pittsburgh Plate Glass, 404 U S. 157, 172-173 (1971). 8 Chemical Workers v. Pittsburgh Plate Glass, supra at 404 U S. 178 9 Id. at 179 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sense and does not include all subjects that may merely be of interest or concern to the parties.' ° Nearer the issue at hand, the Board takes the view that an employer's hiring policies and practicies are of vital concern to employees inasmuch as such poli- cies and practices inherently affect terms and condi- tions of employment." Yet closer to the immediate point, the Board has deter- mined that "medical screening programs for the purpose of terminating new employees or refusing to hire appli- cants for employment" are a mandatory subject of bar- gaining.12 And, more recently, the Board left undis- turbed the determination of Administrative Law Judge Jay R. Pollack that "unit employees have vital concerns about drugs in the work place and the means the em- ployer will use for screening out drug users "; and, conse- quently, that "drug testing or screening of applicants [is] a mandatory subject of bargaining ."' s The validity of this thinking is particularly evident in the present case, where an avowed purpose of the screening program, as revealed by Doria's June 25, 1985 letter to the parent company, is "by word of mouth, [to] spread the message to incumbent employees that some attention is being paid to the problems of substance abuse." I therefore conclude that Respondent's drug screening of applicants for unit positions is a mandatory subject of bargaining.' 4 The question then becomes whether the General Counsel is barred by Section 10(b) from proceeding on a charge filed some 33 months after institution of the screening program; and, if not, whether the Union has waived its statutory right to bargain over that program. Regarding the 10(b) issue, the Board has stated: [I]t is well settled that Section 10(b) is tolled until the Charging Party has either actual or constructive notice of the alleged unfair labor practice. The Board has ruled that the notice , whether actual or constructive, must be clear and unequivocal, and that the burden of showing such notice is on the party raising the affirmative defense of Section 10(b).15 United Technologies Corp., 274 NLRB 1069, 1070 ( 1985). Tanner Motor Livery, 148 NLRB 1402, 1404 (1964). Also While Farm Equipment, 242 NLRB 1373, 1375 (1979); Houston Chapter, AGC, supra at 143 NLRB 411-413. '2 Lockheed Shipbuilding Ca, 273 NLRB 171, 171 (1984). 13 Rockwood and Co., 285 NLRB 1114, 1116-1117 (1987). The Board adopted Judge Pollack 's determination with respect to this issue pro forma in the absence of exceptions on the point. Id. at 1114 fn . 2 I never- theless believe, Respondent's brief to the contrary, that it is soundly based and persuasive. 14 Respondent argues in its brief- "(Ili is hard to imagine any legitimate [union] interest in having employees in the work force who are drug users and who violate the law by utilizing illegal drugs ." This misses the point. "[T]he question is not whether the employer's action is antagonis- tic to or compatible with the interests of bargaining unit employees, but whether it vitally affects the 'terms and conditions ' of their employment." Chemical Workers Y. Pittsburgh Plate Glass, supra at 404 U.S. 179 15 Service Employees Local 3036 (Linden Maintenance), 280 NLRB 995, 996 (1986) The General Counsel contends that the Union did not receive the requisite notice until Aramaki informed Dias of the screening program in January 1988, less than 2 months before the charge was filed. Respondent argues, on the other hand, that the Union obtained actual knowl- edge of the program in 1986, when the Kelly Services "temporary" told the union steward, Nakoa, that she had been terminated for "not passing a physical ," etc. That, however, hardly , constituted "blear and unequivocal" notice of Respondent's screening program. The tempor- ary's elaboration that she had not taken drugs, but "just happened to be around somebody that did," suggested guilt by association rather than clinically-administered screening; and, in any event, her link with Kelly Serv- ices, coupled with her failure to disclose who had given the physical, would have worked to dispel any percep- tion on Nakoa's part that Respondent was involved-116 Respondent further contends that constructive if not actual knowledge was imparted by the sheer number of applicants-over 850-subjected to drug screening since July 1985; by the notification to the applicants through the "Release and Acknowledgement" on the application forms that they would be so screened ; by the fact that the sons of Benevides and Dias submitted to the process incidental to being hired into unit positions ; and by the fact that Respondent did not purposely conceal the new program. I am not persuaded. The applicants, however many, including the two sons, had no way of knowing that the procedure represented a departure from past practice, so had no reason to inform the Union; a son's knowledge cannot be imputed to his father in these circumstances; and the absence of deliberate concealment is irrelevant.17 I accordingly reject Respondent's 10(b) defense. Turning to the question of waiver, Respondent bases its defense on four provisions in its bargaining agree- ment: the two previously set forth dealing with manage- ment rights and preemployment medical examinations, that containing the unit description, and that defining "employee" for purposes of the agreement. The Supreme Court has stated: [W]e will not infer from a general contractual pro- vision that the parties intended to waive a statutori- ly protected right unless the undertaking is "explic- itly stated." More succinctly, the waiver must be clear and unmistakable. 18 Similarly, the Board has stated: [A] waiver of a statutory right is not to be lightly inferred but must be "clear and unmistakable." The Board will not find that contract terms of them- selves confer on the employer a management right to take unilateral action on a mandatory subject of ie Even had the temporary's disclosure made it "more likely " than not in Nakoa's mind that Respondent had undertaken unilateral action, that would not have been sufficient notice . AMCAR Division, ACF Industries, 234 NLRB 1063, 1063 (1978). T AMCAR Division, ACF Industries, supra at 234 NLRB 1063 at fn. 3. 'Metropolitan Edison Ca Y. NLRB, 460 U.S 693, 708 (1983). GTE HAWAIIAN TELEPHONE CO. bargaining unless the contract expressly or by nec- essary implication confers such a right.19 The unit description and the definition of employee, which do no more than impliedly rule out job applicants as unit members and as employees under the agreement, plainly fall short of the "clear and unmistakable" stand- ard.20 The management-rights clause likewise falls short, despite its investiture of "the right to hire . . . exclusive- ly in the Company," for it fails, "expressly or by neces- sary implication," to say anything about drug screen- ing.21 The provision concerning preemployment medical ex- aminations presents a closer question . It does not express- ly mention drug screening, however, and the record con- tains no evidence otherwise to suggest that both con- tracting parties ever intended that it encompass such screening. Indeed, that it has been in effect, substantially unchanged, going back at least to the 1961-1963 agree- ment-long before employee drug use became a societal concern-suggests the contrary. Further, the clause that "all employees shall take any examination that the Company deems necessary in any instance," conjoined with the aforementioned definition of "employee," is of uncertain application to those not yet hired; and one must question whether drug screen- ing, which bears. more on behavior than physical health, and presents a host of complex technical and legal issues, comes within the generally understood meaning of "med- ical examination." In short, while Respondent's reading of the medical examination portion of the agreement to permit drug 1B New York Mirror, 151 NLRB 834, 839-840 (1965). Also Collateral Control Corp, 288 NLRB 308, 311 ( 1988); Southern California Edison Ca, 284 NLRB 1205 fn 1 (1987); Suffolk Child Development Center, 277 NLRB 1345, 1349-1351 (1985), General Tire & Rubber Ca, 274 NLRB 591, 592-593 (1985); Lamont's Apparel, 268 NLRB 1332, 1335-1336 (1984); Tocco Div. of Park-Ohio Industries, 257 NLRB 413, 414 ( 1981); Gravenslund Operating Ca, 168 NLRB 513, 514 (1967). 20 See citations in preceding two footnotes 21 Ibid. 5 screening perhaps is plausible, I conclude that this provi- sion also fails the test of clear and unmistakable waiver. To quote the Board, "a merely plausible reading does not meet the clear and unmistakable standard."22 To summarize, the drug screening of applicants for bargaining unit positions is a mandatory subject of bar- gaining. Therefore, Respondent having failed its burden of showing that the Union's charge was untimely under Section 10(b), and its further burden that the Union has waived its statutory right to bargain on the point, I con- clude that Respondent violated Section 8(a)(5) and (1) as alleged by unilaterally instituting the drug screening pro- gram for unit applicants on July 1 , 1985, and by its refus- al, starting with Employee Relations Director Kerle's letter of February 8, 1988, to bargain with the Union re- garding the program. CONCLUSIONS OF LAW Respondent violated Section 8(a)(5) and (1) of the Act by: I. Instituting a drug screening program for applicants for bargaining unit positions, effective July 1, 1985, with- out first notifying the Union and giving it an opportunity to bargain over the matter. 2. Refusing, starting February 8, 1988, to bargain with the Union concerning the drug screening of said appli- cants. [Recommended Order omitted from publication.] 22 Collateral Control Corp., supra at 288 NLRB 308, 311 fn 18 Re- spondent makes the additional argument that waiver is inferable from its having otherwise revised its medical examination on occasion-to include tuberculin and bood-glucose tests, for instance-without union objection. This argument is rejected, first, because the record contains no evidence that the Union was made aware of those changes; second, because, as in- dicated above in the text , the other revisions cannot fairly be equated with drug screening in the context of medical examinations; and, third, because "the Union's past acquiescence in Repondent 's unilateral changes alone would not preclude it from bargaining about later changes Continental Telephone Co., 274 NLRB 1452, 1453 (1985)