Court Cases Court Cases
AL  AK  AZ  AR  CA  CO  CT  DE  FL  GA  HI  ID  IL  IN  IA  KS  KY  LA  ME  MD  MA  MI  MN  MS  MO  MT  NE  NV 
NH  NJ  NM  NY  NC  ND  OH  OK  OR  PA  RI  SC  SD  TN  TX  UT  VT  VA  WA  WV  WI  WY  EO  NR  PR  DC  US 
 
View Case Details
 
CHICAGO TRIBUNE COMPANY Petitioner Cross-Respondent
vs.
NATIONAL LABOR RELATIONS BOARD Respondent Cross-Petitioner. and CHICAGO TYPOGRAPHICAL UNION NO. 16 COMMUNICATIONS WORKERS OF AMERICA AFL-CIO Petitioner Cross-Respondent.
 
Case:
Nos. 91-3135 91-3275 & 91-3317
 
Location:
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
 
Date:
September 10 1992 Decided
 
Attorneys:
For CHICAGO TRIBUNE COMPANY Petitioner (No. 91-3135): R. Eddie Wayland 615/726-5430 John J. Matchulat 615/726-5424 Michael D. Oesterle KING & BALLOW 200 Fourth Avenue N. 1200 Noel Place Nashville TN 37219 USA.
For NATIONAL LABOR RELATIONS BOARD Respondent (No. 91-3135): John C. Truesdale NATIONAL LABOR RELATIONS BOARD Contempt Litigation Branch 1717 Pennsylvania Avenue N.W. Washington DC 20570 USA. Emilie F. Fall Suite 800 NATIONAL LABOR RELATIONS BOARD Region 13 200 W. Adams Street Chicago IL 60606 USA.Aileen A. Armstrong FTS 254-9216 202/254-9216 Suite 1231 Linda J. Dreeben 202/254-9341 Margaret E. Luke 202/254-9113 NATIONAL LABOR RELATIONS BOARD Appellate Court Enforcement Litigation 1717 Pennsylvania Avenue N.W. Washington DC 20570 USA.
For CHICAGO TYPOGRAPHICAL UNION NO. 16 COMMUNICATIONS WORKERS OF AMERICA AFL-CIO Intervenor - Respondent (No. 91-3135): Gail E. Mrozowski 312/922-2800 13th Floor CORNFIELD & FELDMAN 343 S. Dearborn Street Chicago IL 60604-3852 USA.
For CHICAGO TYPOGRAPHICAL UNION NO. 16 COMMUNICATIONS WORKERS OF AMERICA AFL-CIO Petitioner (No. 91-3275): Gail E. Mrozowski 312/922-2800 13th Floor CORNFIELD & FELDMAN 343 S. Dearborn Street Chicago IL 60604-3852 USA.
For NATIONAL LABOR RELATIONS BOARD Respondent (No. 91-3275): John C. Truesdale NATIONAL LABOR RELATIONS BOARD Contempt Litigation Branch 1717 Pennsylvania Avenue N.W. Washington DC 20570 USA. Emilie F. Fall Suite 800 NATIONAL LABOR RELATIONS BOARD Region 13 200 W. Adams Street Chicago IL 60606 USA. Aileen A. Armstrong FTS 254-9216 202/254-9216 Suite 1231 Margaret E. Luke 202/254-9113 NATIONAL LABOR RELATIONS BOARD Appellate Court Enforcement Litigation 1717 Pennsylvania Avenue N.W. Washington DC 20570 USA.
For CHICAGO TRIBUNE COMPANY Intervenor - Respondent (No. 91-3275): R. Eddie Wayland 615/726-5430 Michael D. Oesterle KING & BALLOW 200 Fourth Avenue N. 1200 Noel Place Nashville TN 37219 USA.
For NATIONAL LABOR RELATIONS BOARD Petitioner (No. 91-3317): John C. Truesdale NATIONAL LABOR RELATIONS BOARD Contempt Litigation Branch 1717 Pennsylvania Avenue N.W. Washington DC 20570 USA. Elizabeth Kinney 312/353-7574 8th Floor NATIONAL LABOR RELATIONS BOARD Region 13 200 W. Adams Street Chicago IL 60606 USA. Aileen A. Armstrong FTS 254-9216 202/254-9216 Suite 1231 Margaret E. Luke 202/254-9113 NATIONAL LABOR RELATIONS BOARD Appellate Court Enforcement Litigation 1717 Pennsylvania Avenue N.W. Washington DC 20570 USA.
For CHICAGO TRIBUNE COMPANY Respondent (No. 91-3317): R. Eddie Wayland 615/726-5430 John J. Matchulat 615/726-5424 Michael D. Oesterle KING & BALLOW 200 Fourth Avenue N. 1200 Noel Place Nashville TN 37219 USA.
For CHICAGO TYPOGRAPHICAL UNION NO. 16 COMMUNICATIONS WORKERS OF AMERICA AFL-CIO Intervenor - Petitioner (No. 91-3317): Gail E. Mrozowski 312/922-2800 13th Floor CORNFIELD & FELDMAN 343 S. Dearborn Street Chicago IL 60604-3852 USA.
 
Court:
Before BAUER Chief Judge POSNER Circuit Judge and GIBSON Senior Circuit Judge. * * Hon. Floyd R. Gibson Senior Circuit Judge of the Eighth Circuit sitting by designation.
 
Author:
The Hon. Justice Posner
 

Employer and union both dissatisfied with the Labor Board's order ask us to set different parts of it aside and the Board asks us to enforce it in its entirety. The case concerns the interpretation of the management-rights clause and related documents in the collective bargaining agreement between the publisher of the Chicago Tribune and the union that represents employees in the Tribune's composing room. Without negotiating with the union the company adopted certain standards of employee conduct that it claims the management-rights clause entitled it to adopt. The Board (304 N.L.R.B. no. 62 (Aug. 27 1991)) agreed except with regard to the standard concerning drug and alcohol use and we begin with that issue.

The management-rights clause emerged from a long history of wrangling (more politely bargaining). The parties draw different inferences from the history. We find it singularly unilluminating. It is full of unintelligible sentence fragments such as a union negotiator's note that one of the company's proposals was "OK--with additional clause provided by the Union--also union proposal re: Zipper from which the company draws a significance that eludes us. The company also wants us to give great weight to the fact that the Board voted against it on the drug and alcohol issue by 2-1, reversing the administrative law judge, who had ruled for the company. The company says that that makes the score 2-2. Would it were so; then the Supreme Court could not reverse a one-sided en banc decision of this court by a 5.4 vote--and could not reverse a unanimous en banc decision of this court (i.e., 11-0) by any vote (9-0 wouldn't do it). The rule of one person, one vote does not apply to officers at different levels of a judicial or administrative hierarchy.

What is true is that an administrative law judge's determinations of credibility are entitled to a certain weight by a reviewing court, because he sees and hears the witnesses and the Board has only a transcript of their testimony. Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-97, 95 L. Ed. 456, 71 S. Ct. 456 (1951). But that is not a factor here. A number of decisions seem to go further, suggesting without express limitation to issues of credibility that judicial review of a decision by the Board is less deferential when the Board is reversing the administrative law judge. E.g., International Union, UAW v. NLRB, 802 F.2d 969, 971 (7th Cir. 1986); C.E.K. Industrial Mechanical Contractors, Inc. v. NLRB, 921 F.2d 350, 355 (1st Cir. 1990); Litton Microwave Cooking Products Division v. NLRB, 868 F.2d 854, 857 (6th Cir. 1989); Centre Property Management v. NLRB, 807 F.2d 1264, 1268 (5th Cir. 1987). No doubt that is true as a practical matter when factual determinations, even if they don't involve credibility, are involved, but it should not be treated as a fixed policy or a rigid rule. We want simplicity, not complexity, in standards of appellate review, United States v. Spears, 965 F.2d 262, 269-72 (7th Cir. 1992)--though for completeness we add that sometimes judicial review is of an administrative law judge's decision, and it is the appellate tribunal within the agency, corresponding to the Labor Board, that receives no deference. Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589 (7th Cir. 1985). That is not the case with review of the Labor Board's decisions. Id. At 590.

The materials for the decision of this appeal are really very simple. There is to begin with a management-rights clause which provides, so far as pertinent to this case, that except as specifically limited by the express language of this Agreement . .. the Company has and retains exclusively to itself . . . the exclusive right . . . to establish and enforce reasonable rules and regulations relating to the operation of its facilities and to employee conduct." So we must consider first whether the challenged standard authorizing testing for the presence of drugs or alcohol is a regulation relating to employee conduct and next whether even if so language elsewhere in the collective bargaining agreement carves the standard out of the management-rights clause.

The standard has several parts but only two need be discussed. One regulates conduct on the job and provides that "whenever Management has an 'articulable belief' that an employee may be under the influence of an intoxicant during working hours on Company property . . . [he] will be required to undergo a medical evaluation and take an alcohol and/or drug test as determined by the Medical Division." (The alcohol test is a blood test the drug test a urine test.) The other part regulates conduct off the job. It provides that the sale distribution or manufacture of alcohol or illegal drugs is a dischargeable offense--and if the employee is arrested for any of these activities he is to be discharged regardless of the eventual disposition of the charge for which he was arrested. It also makes "off-the-job illegal drug activities or alcohol addiction that could have an adverse effect on an employee's job performance or that would jeopardize the safety of other employees the public Company equipment or the Company's relations with the public or its employees" grounds for discharge.

We have no doubt that the alcohol and drug standard the critical parts of which we have just quoted is a regulation relating to employee conduct. That is plainest with respect to being drunk or high on the job but it is plain enough with regard to conduct off the job that affects performance on the job. Even if the effect takes the form of a harm only to the company's public relations the ultimate consequence is to make the employee less valuable to the company.

No doubt there are limits to a company's reasonable concern with the off-duty conduct of its employees. Suppose the publisher of the Tribune made divorce a ground for discharge. The prevention of this sort of abuse of the "employee conduct" provision in the management-rights clause lies however precisely in the requirement that the company's rule or regulation relating to such conduct be "reasonable." Our hypothetical divorce rule would be unreasonable unless perhaps the employer was a religious organization and the religion forbade divorce. We do not understand the union to be arguing that the alcohol and drug standard is unreasonable only that it does not relate to employee conduct--an argument we barely understand.

But we must consider whether the standard is inconsistent with language or implications elsewhere in the agreement. Dreis & Krump Mfg. Co. v. International Association of Machinists 802 F.2d 247 252-53 (7th Cir. 1986). The agreement provides that the "General Laws" of the international union which are appended to the agreement shall govern relations between the parties on those subjects concerning which no provision is made in this Agreement. The General Laws include a provision that "No journeyman shall be required to submit to a physical examination as a condition of employment." The parties oddly overlooking the question whether the provision even applies to retention of employment as distinct from obtaining employment in the first place have treated us to an elaborate Scholastic dispute over whether a blood or urine test is "a physical examination." Literally it is not; it is a part of some physical examinations but is often administered separately from any "physical examination" as that term is ordinarily understood. The Board argues that any part of a physical examination is itself a physical examination. This is like arguing that any part of an atom must be an atom too or that a person's finger is a person. Physical examinations typically include such things as weighing the person being examined and asking him whether he's had any illnesses since the last examination. These components are not themselves physical examinations. The examination is the ensemble.

But if we have regard not to the meaning of "physical examination" but to the purpose of the provision in the General Laws concerning it we can see the basis for an argument that an employee cannot be required to pass a test of medical fitness such as a blood or a urine test. After all these workers are more likely to be concerned about their jobs than about the modest invasion of privacy involved in a "real" physical examination and the jobs are as much threatened by the tests as they are by the doctor's poking in private places. We must not forget however that the General Laws apply only to "subjects concerning which no provision is made in" the collective bargaining agreement. It's a gap filler. There is no gap concerning employee conduct. The management-rights clause gives management carte blanche to impose rules relating to employee conduct provided only that they are reasonable rules. The alcohol and drug standard is a reasonable rule of employee conduct.

The part of the standard that regulates employee conduct off the job makes no provision for medical tests but the Board concluded that "the language of the management-rights clause lacks the specificity to warrant the conclusion that it authorizes such far-reaching rules governing conduct away from the workplace." It thought the rules far-reaching because for example they could result in the discharge of a worker arrested for illegal drug activities but later exonerated.

The Board is here appealing to the oft-intoned principle that a waiver of statutory rights as of rights generally must be clear and unmistakable (as it unquestionably is with regard to the regulation of on-the-job conduct the first part of the challenged standard). Metropolitan Edison Co. v. NLRB 460 U.S. 693 708 75 L. Ed. 2d 387 103 S. Ct. 1467 (1983); International Union UAW v. NLRB supra 802 F.2d at 973. Yet as the waiver need not be express Metropolitan Edison Co. v. NLRB supra 460 U.S. at 708 n. 12; Teamsters v. Lucas Flour Co. 369 U.S. 95 7 L. Ed. 2d 593 82 S. Ct. 571 (1962); G. Heileman Brewing Co. v. NLRB 879 F.2d 1526 1532-33 (7th Cir. 1989); W.W. Grainger Inc. v. NLRB 860 F.2d 244 248-49 (7th Cir. 1988); NLRB v. New York Telephone Co. 930 F.2d 1009 1011 (2d Cir. 1991); NLRB v. United Technologies Corp. 884 F.2d 1569 1575 (2d Cir. 1989) we wonder what the exact force of the "clear and unmistakable" principle can be when the parties have an express written contract and the issue is what it means or whether the principle makes much sense now that the Supreme Court has held that even a waiver of precious constitutional rights need not be proved by clear and convincing evidence. Colorado v. Connelly 479 U.S. 157 167-69 93 L. Ed. 2d 473 107 S. Ct. 515 (1986).

The union had a statutory right to bargain over the terms of employment 29 U.S.C. SEC. 158(d) of which a provision regulating behavior off the job was one but it gave up that right so far as the subjects comprehended by the management-rights clause were concerned by agreeing to the clause. We have a simple question of interpretation--and do not see how the Board could draw the line between on-the-job and off-the-job conduct. The clause gives management the exclusive right to establish reasonable regulations relating to employee conduct. There is no limitation to conduct on the job and even if there were a regulation of conduct off the job could be related to conduct on the job and thus come within the scope of the clause.

In expressing concern about the far-reaching character of the regulation of conduct off the job the Board overlooked the word "reasonable." The standard may be unreasonable in making arrest a ground for immediate discharge without waiting to see whether the employee actually violated any law. If so the standard or that part of the standard is invalid. But this has nothing interesting to do with the doctrine of waiver. It is a question of interpretation. Of course people should not be tripped into forgoing valuable rights but where as in this case a union agrees to a broadly worded management-rights clause the scope of that clause depends on the usual principles of contract interpretation rather than on a doctrine that tilts decision in the union's favor. Cf. Truck Drivers Local 705 v. Schneider Tank Lines Inc. 958 F.2d 171 (7th Cir. 1992); Sheet Metal Workers Local 19 v. Keystone Heating & Air Conditioning 934 F.2d 35 40-41 (3d Cir. 1991); Plumbers and Steamfitters Local No. 150 Pension Fund v. Vertex Construction Co. 932 F.2d 1443 1448 (11th Cir. 1991). It is true that many cases illustrated by Operating Engineers Pension Trusts v. B & E Backhoe Inc. 911 F.2d 1347 1352 (9th Cir. 1990) say that the principles governing the interpretation of labor contracts are special. We expressed skepticism about these dicta in Schneider Tank Lines. Perhaps though all that these courts are trying to do is to make sure that the principles of contract interpretation are not used to subvert federal labor law. Fair enough but there is no suggestion that a grudging interpretation of management-rights clauses is necessary to fulfill the goals of federal labor law.

And the breadth of a contractual provision need not detract from the clarity of its meaning. Indeed a management's-right clause can be drawn so broadly as to leave no doubt that a particular regulation was intended to be within its scope. NLRB v. United Technologies Corp. supra 884 F.2d at 1575; EPE Inc. v. NLRB 845 F.2d 483 491 (4th Cir. 1988). Unions employ experienced contract negotiators who do not need special rules of construction to protect them from being outwitted by company negotiators. We agree therefore that "where the contract fully defines the parties' rights as to what would otherwise be a mandatory subject of bargaining it is incorrect to say that the union has 'waived' its statutory right to bargain; rather the contract will control and the 'clear and unmistakable' intent standard is irrelevant." Local Union No. 47 v. NLRB 927 F.2d 635 641 (D.C. Cir. 1991). See also United Mine Workers v. NLRB 879 F.2d 939 944 (D.C. Cir. 1989).

The Board might still prevail in this case if we were required to give its interpretation of the contract a special weight. We are not. Litton Financial Printing Division v. NLRB 115 L. Ed. 2d 177 111 S. Ct. 2215 2223 (1991); Jones Dairy Farm v. NLRB 909 F.2d 1021 1028 (7th Cir. 1990); Local Union No. 47 v. NLRB supra 927 F.2d at 640. The Board is not an expert in contract interpretation. Most collective bargaining agreements contain arbitration clauses and most disputes over the meaning of those agreements are decided therefore by arbitrators and are never seen by the Board. The Board has the power to interpret a collective bargaining agreement as an incident to adjudicating an unfair labor practice charge as it did in this case but its interpretation does not bind us as an arbitrator's would. "We apply a de novo standard of review when interpreting the contract itself." Id. at 641.

The collective bargaining agreement at issue in this case had an arbitration clause and the union could have challenged the drug and alcohol standard by filing a grievance the first step under the agreement to invoking arbitration. Ordinarily when a union has a good contractual remedy the Board will stay its hand rather than spend public funds on an unfair labor practice proceeding unlikely to provide the union with any greater relief than it could obtain from the arbitrator. Collyer Insulated Wire 192 N.L.R.B. 837 839 (1971); United Technologies Corp. 268 N.L.R.B. 557 558 (1984); Hammontree v. NLRB 925 F.2d 1486 1490 (D.C. Cir. 1991) (en banc). We are unclear why the Board did not follow that procedure in this case. Of course if an employer adopts an unreasonable interpretation of an agreement in order to evade its duty to bargain collectively the Board has a reason to intervene. That is not this case. The Board intervened unnecessarily and has misconstrued the contract. We need not decide whether the union can still file a grievance challenging the drug and alcohol standard as unreasonable in whole or part.

The union's challenge to the Board's order can be discussed very briefly. It is extremely weak. We shall discuss only one of the two regulations of employee conduct that it challenges that which provides for "progressive" discipline for absenteeism and related infractions culminating in discharge if the employee commits 11 violations of the regulation in a 12-month period. The regulation is applicable even if the absenteeism is due to illness provided that it is not authorized by the company's sick-leave policy. The union claims that this regulation infringes a provision of the General Laws that a journeyman absent either because he is working for the union or because he is ill "shall not suffer loss of situation . . . while so employed or so incapacitated in the event a substitute is not available." The reference to "substitute" is to a practice since abolished whereby a list of persons available for substitute employment was posted in the composing room and an employee who was going to be absent could make an arrangement with one of the substitutes to take his place. The union argues that since the substitute system has been abolished no substitute is available for a sick worker and therefore he cannot be disciplined.

When the substitute system was in force the consequences of an absence for the employer were minimized so there was no compelling reason to discipline an employee who was unable to use the system because for some reason no substitute was available when he needed one. With all the substitutes gone absenteeism is a more serious problem for the company so naturally it needed a stricter policy. The provision of the General Laws must therefore be construed as being limited to the vanished regime of substitutes.

This is an adequate ground to support this part of the Board's order though our preferred alternative for reasons discussed earlier would be to rule that the General Laws have no application to regulations comprehended within the management-rights clause.

No other issues need be discussed. The company's petition for review is granted and the union's denied and the Board's order will be enforced in part and denied enforcement in part in accordance with this opinion.