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STAR TRIBUNE, A DIVISION OF COWLES MEDIA CO.
vs.
THE NEWSPAPER GUILD OF THE TWIN CITIES, LOCAL 2, THE NEWSPAPER GUILD, AFL-CIO, CLC
 
Case:
Cases 18-CA-9938, 18-CA-10296
 
Location:
NATIONAL LABOR RELATIONS BOARD
 
Date:
June 15, 1989
 
Court:
Wilford W. Johansen, Member; Mary Miller Cracraft, Member; John E. Higgins, Jr., Member; Dennis M. Devaney, Member; James M. Stephens, Chairman
 

On November 3, 1988, Administrative Law Judge Wallace H. Nations issued the attached decision. The Respondent filed exceptions and a supporting brief and the Council on Labor Law Equality filed an amicus curiae in support of the Respondent's exceptions. The Newspaper Guild of the Twin Cities, Local 2, AFL -- CIO, and the AFL -- CIO filed a joint brief in opposition to the Respondent's exceptions. The Respondent also filed a request for oral argument.

On February 10, 1989, the Board scheduled oral argument for March 15, 1989, because this case and another case *fn1a presented important issues in the administration of the National Labor Relations Act. On the scheduled date, the General Counsel, the Charging Party, the Respondent, the American Federation of Labor and Congress of Industrial Organizations, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL -- CIO, the Chamber of Commerce of the United States of America, the Equal Employment Advisory Council, and the Council on Labor Law Equality presented oral argument before the Board. *fn2a

The Board has considered the decision and the record in light of the exceptions, briefs, and oral argument 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's unilateral implementation of a drug and alcohol policy on January 1, 1987, its unilateral revision of this policy effective September 1, 1987, and its refusal to furnish information relating to the preemployment testing policy violated Section 8(a)(5) and (1) of the Act.

The Respondent's drug and alcohol policy consisted of three components: (1) a preemployment medical examination, including drug and alcohol screening for prospective employees to whom job offers had been made contingent on passage of the drug test; (2) a medical examination for current employees, including a drug and alcohol screen in certain circumstances; and (3) a disciplinary schedule for drug and alcohol related offenses.

There were no exceptions to the judge's findings with respect to unilateral implementation of drug and alcohol screening of current employees and a disciplinary schedule for drug and alcohol related offenses. *fn3a The Respondent did except, however, to the judge's findings that it violated Section 8(a)(5) and (1) of the Act by unilaterally implementing a drug and alcohol screen for prospective employees and by refusing to furnish the Union with the requested information relating to the drug and alcohol testing of prospective employees. For reasons discussed more fully below, we affirm the judge's conclusion that the refusal to furnish the requested information violated the Act, but reverse the judge's conclusion that the Respondent's unilateral implementation of a drug and alcohol testing policy for prospective employees constituted an unfair labor practice. *fn4

The facts are not in dispute. The Star Tribune is a daily newspaper published in Minneapolis, Minnesota. The Charging Party Union (the Guild or the Union) has been the exclusive bargaining representative of a unit of employees of the Respondent since the early 1930's. Currently the unit encompasses between 350 and 400 employees. The Guild represents the Respondent's reporters, some editors, news assistants, photographers, news artists, metro-circulation employees, and promotion employees. The parties' most recent collective-bargaining agreement, which expires on July 31, 1989, provides that the Guild is the exclusive bargaining representative "on behalf of all the employees (except those herein excluded) employed in the News and Editorial Departments of the Minneapolis Star and Tribune including the Sunday Tribune, employed in the Sales Development/Promotion Department doing art and creative work, and all Metro District Sales Managers in the Metro Circulation Department, and no others." Article XIV, paragraph 8 of the parties' agreement is a nondiscrimination clause which provides as follows:

The Publisher prohibits discrimination in employment on the basis of race, color, national origin, religion, marital or parental status, disability, status with regard to public assistance, political affiliation, sex, sexual preference or age. The Guild or the Publisher shall not discriminate against any employee because of membership or nonmembership in the Guild or activity therein, or because of any of the other categories set forth in this paragraph.

All phases of employment are covered by this policy, including but not limited to: recruiting and recruiting advertising; testing and hiring; promotion; demotion and transfer; training; termination; layoff and recall; and compensation.

In 1985, as a result of a review conducted by the Respondent of a number of company-wide employee policies, changes were made to the existing drug and alcohol abuse program. Pursuant to these changes, prospective employees who had been offered jobs were required to take a preemployment medical exam, including an unobserved urinalysis for evidence of alcohol or illegal or controlled substances. Applicants who tested positive according to established standards or who refused to take the test were denied employment. The Guild first learned of the Respondent's new policy on December 10, 1986, when the Respondent's vice president for labor relations, John Dennison, telephoned then Guild Executive Secretary Bruce Nelson to inform the Guild that the Respondent planned to implement such a policy in January 1987. *fn5 As discussed more fully in the judge's decision, on several occasions the Union told the Respondent that it considered all components of the new drug and alcohol policy to be mandatory subjects of bargaining and demanded bargaining over the policy.

The new drug policy was implemented in January. On January 4, Nelson received a telephone call from a bargaining unit employee informing him that a prospective employee's offer of employment had been withdrawn because the individual refused to take the preemployment drug and alcohol test. In response to this first indication that the Respondent's drug and alcohol policy had been implemented, Nelson immediately telephoned Dennison, who was unavailable. On January 9, Dennison returned Nelson's call and informed Nelson that he did not know that the new policy had been implemented nor did he know whether the Respondent was willing to bargain with the Union over the policy. At the end of January, while still awaiting the Respondent's response to the Union's demand to bargain, the Union learned that another prospective employee had been offered a job conditioned on the passage of a drug and alcohol test. In a January 29 telephone conversation, Dennison informed Nelson that all three components of the drug and alcohol policy had been implemented and that the Respondent would not bargain with the Union on any aspect of the policy. On February 5, the Union filed the unfair labor practice charge in Case 18 -- CA -- 9938 alleging that the unilateral implementation of the drug and alcohol testing program for prospective and current employees and the schedule of discipline for violations of the drug and alcohol policies violated Section 8(a)(5) and (1) of the Act.

In a September 16 letter, Dennison notified Taylor, Nelson's assistant, that the Respondent had implemented a revised drug policy effective September 1. The revised policy imposed new rules providing, in pertinent part, that any prospective employee who tested positive for drugs or alcohol, or who refused to submit to testing, would not be considered for employment for a minimum of 6 months, if at all; any prospective employee who wished to explain a positive test result must do so within 3 working days of receiving notice of the test result; and any prospective employee who wished to request a retest must do so within 5 days of receiving notice of the result.

On August 19, following the administrative deferral to arbitration of the Union's unfair labor practice charge in Case 18 -- CA -- 9938, the Union filed a grievance alleging, inter alia, violations of the nonwork activities and nondiscrimination provisions of the parties' contract. On October 29, the Union requested certain information pertaining to the application and enforcement of the preemployment drug testing requirement.

In a November 16 letter, the Respondent refused to comply with the information request for the following stated reasons: (1) the Company had already refused to submit the issue of preemployment testing to arbitration; (2) the requested information was not "material" to the Guild's function as bargaining representative; and (3) "most" of the requested information could not be disclosed under the privacy provisions of the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA) Minn. Stat. 181.97 (1987). On November 24, the Union filed the unfair labor practice charge in Case 18 - CA -- 10296, alleging that the Respondent's refusal to furnish the information violated Section 8(a)(5) and (1) of the Act. On December 16, the Region issued a consolidated complaint, amended on February 29, 1988, alleging that the Respondent's conduct in unilaterally implementing its drug and alcohol testing policy and discipline schedule, its unilateral revision of such policy, and its refusal to furnish the requested information relating to the preemployment aspects of the drug and alcohol testing policy to the Union violated the Act.

The judge found that the unilateral implementation of the drug and alcohol screening for prospective employees violated Section 8(a)(5) and (1) of the Act based on his conclusion that drug and alcohol testing of prospective employees is a mandatory subject of bargaining. The Respondent excepted to this finding and we find merit to this exception.

The judge relied primarily on Houston Chapter, Associated General Contractors (Houston AGC), 143 NLRB 409 (1963), enfd. 349 F.2d 449 (5th Cir. 1965), to conclude that drug and alcohol testing for prospective employees is a mandatory subject of bargaining. In that case, the Board held that the employer to bargain over the process by which applicants are employed stating that the statutory duty to bargain about "terms and conditions of employment" as defined in Section 8(d) of the Act "connotes the initial act of employing as well as the consequent state of being employed." 143 NLRB at 412. We conclude that the Board's decision in Houston AGC is inapposite to the instant case. In Houston AGC, the Board focused on the intermittent nature of employment therein, namely, "the involvement of all the employees (those who are seeking employment as well as those who are currently employed) with the hiring hall." 143 NLRB at 413 fn. 10. The Board reasoned "[t]hus, those employees who are working in the industry and who have a deep concern not only about the length of their present jobs, but also about the opportunities for continued employment elsewhere when they are laid off, are clearly and directly affected by the job priority standards established by the hiring hall." 143 NLRB at 412. The Fifth Circuit in enforcing the Board's decisions in Houston AGC specifically relied on the intermittent, temporary, transitory nature of the employment of current employees in that case and noted that the essence of employee security therein rested on the establishment of seniority rights through a common source of job priority and priority standards. 349 F.2d at 452. By contrast, the subject case does not involve an intermittent employment situation nor does the drug and alcohol testing of applicants have a direct effect on current employees by setting job priority standards with respect to their future employment.

Lockheed Shipbuilding Co., 273 NLRB 171 (1984) (Lockheed I), relied on by the judge, is also factually distinguishable. In that case, the Board found that an employer violated Section 8(a)(5) by unilaterally implementing new medical screening tests for the purpose of terminating new employees or refusing to hire applicants for employment. Under the contractual hiring procedure, the employer was obligated to pay at least 4 hours' pay to any employee who reported to work. In Lockheed Shipbuilding Co., 278 NLRB 18 (1986) (Lockheed II), the Board found the continuation of the same medical screening program to be unlawful. In Lockheed II, the Board noted that "as an accommodation to that contractual requirement, employees dispatched to Respondent ordinarily were considered as being hired and then if problems arose during the application process those employees were terminated, being paid at least the minimum reporting pay called for by the contract." 278 NLRB at 19 fn. 3. Under those circumstances, the Board concluded in Lockheed II that for purposes of the issues raised in Lockheed I and II, which involved a hiring hall, "there [was] no distinction of significance between an employee who was dispatched but never hired and, on the other hand, a dispatched employee who was hired but then terminated as a result of events occurring during the application process." Id. *fn6

In Laney & Duke Storage Warehouse Co., 151 NLRB 248 (1965), enfd. in relevant part 369 F.2d 859 (5th Cir. 1966), cited by the judge, the Board held there was a duty to bargain about changes in application forms. The facts in that case indicate that the Board's conclusion that the employer's unilateral institution of new application forms violated Sec. 8(a)(5) was based in part on the finding that the new application forms constituted changes in the terms and conditions of employment of unit employees. To the extent that the 8(a)(5) violation is premised on a duty to bargain about applicants, Laney & Duke is overruled.

Contrary to the judge, we conclude that the Supreme Court's discussion in Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971) (Pittsburgh Plate Glass), concerning the scope of the mandatory bargaining obligation under the Act does not support a finding that preemployment drug and alcohol testing is a mandatory subject. In Pittsburgh Plate Glass, *fn7 the employer and the union had negotiated benefits for retired employees, including health insurance benefits. Following the enactment of Medicare legislation, the employer unilaterally changed the health insurance benefits for its retired workers. In the underlying case, the Board found that the employer's conduct violated Section 8(a)(5) and (1) of the Act on the theory that retired employees are employees within the meaning of the Act for purposes of bargaining about changes in their retirement benefits and, alternatively, that the subject of benefits for retired employees is embraced by the bargaining obligation of the Act because it vitally affects active bargaining unit employees. The Court disagreed with the Board's decision and specifically held that the statutory bargaining obligation does not extend to terms and conditions of retired unit employees' retirement benefits. In concluding that retired employees' benefits are not terms and conditions of employment of the employer's "employees," the Court held that former employees do not fall within the statutory definition of employee set forth in Section 2(3) of the Act. *fn8 404 U.S. at 165.

The term "employee" shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment . . . .

The Court further noted that Sections 8(a)(5), 8(d), and 9(a) of the Act together establish the obligation of an employer to bargain collectively "with respect to wages, hours, and other terms and conditions of employment," with "the representatives of his employees" designated or selected by the majority "in a unit appropriate for such purposes." *fn9 Id. at 164. This obligation, however, extends only to "terms and conditions of employment" of the employer's "employees" in the "unit appropriate for such purposes" that the union represents. Id.

The Court noted that the legislative history of Section 2(3) of the Act indicates that the term "employee" is not to be stretched beyond its plain meaning embracing only those who work for another for hire. In rejecting the Board's argument that retired workers are employees whose ongoing retirement benefits are embraced by the bargaining obligation of Section 8(a)(5), the Court concluded that the ordinary meaning of "employees" does not include retired workers because they have ceased to work for another for hire. Id. at 166 -- 168.

Moreover, the Court noted that Section 9(a) of the Act requires that representative status be accorded only in a unit appropriate for purposes of collective bargaining. The Court held that even if it were to find that retirees might fit the statutory definition of "employee" within the meaning of the collective-bargaining obligations of the Act, retirees could nevertheless not be included in the bargaining unit because they lacked a substantial community of interest with active employees. Id. at 171 -- 173.

Consistent with the Court's analysis in Pittsburgh Plate Glass, we conclude that applicants for employment are not "employees" within the meaning of the collective-bargaining obligations of the Act. *fn10 Applicants for employment do not fall within the ordinary meaning of an employer's "employees." Applicants perform no services for the employer, are paid no wages, and are under no restrictions as to other employment or activities. And, unlike the intermittent employment situation that gives rise to the need of employers and unions for hiring halls, there is no economic relationship between the employer and an applicant, and the possibility that such a relationship may arise is speculative.

We further conclude that the applicants could not properly be joined with the active employees in the Guild unit because they do not share a community of interest broad enough to justify their inclusion in the bargaining unit. *fn11 Like retirees, applicants are not permitted by the Board to vote in elections or considered to be part of a bargaining unit for purposes of representation elections. *fn12

For the reasons discussed above, we reverse the judge's findings and conclude that applicants are not bargaining unit "employees" and that preemployment drug and alcohol testing is not encompassed within the statutory duty to bargain about terms and conditions of employment of the employer's employees in an appropriate unit.

We also reject the judge's alternative rationale for finding that the employer's preemployment drug and alcohol testing policy is a mandatory subject of bargaining. The judge concluded that even if applicants are not bargaining unit "employees," the drug and alcohol policy as it applies to prospective employees is a mandatory subject of bargaining because it vitally affects the terms and conditions of employment and working environment of the Guild bargaining unit. In support of his conclusion that applicant testing vitally affects the terms and conditions of employment of Guild unit employees, the judge stated the following reasons: (1) "the Respondent's [applicant] testing program has a direct effect on the composition of the bargaining unit and defines the very terms under which bargaining unit employment may be achieved"; (2) "[the] Respondent's preemployment drug and alcohol testing program introduces a nonperformance related condition of hire which may arbitrarily compromise the quality of the workforce, and the unit members themselves may suffer, both in their professional reputations and in their future employment opportunities"; (3) "it is highly likely that the Respondents' [sic] program will not only deter from employment those prospective employees who abuse prohibited substances, but those who simply refuse to take a screening test for reasons of principle "; and (4) the Guild "might want a drug and alcohol screening program implemented to insure a safer, drug free workplace." *fn13

In Pittsburgh Plate Glass the Court set forth the following standard for determining whether there is an obligation to bargain about matters affecting individuals outside the bargaining unit:

[I]n each case 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.

404 U.S. 157, 179 (1971) (footnote omitted).

The Court disagreed with the Board's determination that changes in retirees' benefits vitally affect the terms and conditions of active unit employees. The Court made it clear that more than speculative or insubstantial effects must be shown to conclude that a matter involving individuals outside the employment relationship constitutes a mandatory subject of bargaining. Specifically, the Court noted that the benefits that active workers may reap by including retired employees under the same health insurance contract were speculative and insubstantial. The Court also rejected the Board's argument that active employees seek to represent retirees in order to protect their own future retirement benefits, finding that the effect that bargaining on behalf of retirees would have on the negotiation of active employees' retirement plans is too speculative a foundation on which to base a bargaining obligation. The Court noted that there are no guarantees that benefits negotiated by active employees would not be altered after they retired. In reversing the Board's holding that terms and conditions of employment of active employees are "vitally" affected by retirees' benefits, the Court stated that the Board "simply neglected to give the adverb its ordinary meaning." *fn14

In United Techologies Corp., 274 NLRB 1069 (1985), enfd. 789 F.2d 121 (2d Cir. 1986), a post-Pittsburgh Plate Glass decision, the Board defined the "vitally affects" standard as follows:

An indirect or incidental impact on unit employees is not sufficient to establish a matter as a mandatory subject. Rather, mandatory subjects 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. *fn15

We disagree with the judge's conclusion that the Respondent's applicant drug and alcohol testing policy is a mandatory subject of bargaining because it vitally affects the terms and conditions of unit employees. The judge observed that the applicant drug and alcohol testing policy may affect the composition of the bargaining unit by preventing applicants who fail or refuse to submit to a drug and alcohol screen from becoming unit employees. The judge also asserted that drug testing introduces "a non-performance related condition of hire which may arbitrarily compromise the quality of the workforce, and unit members themselves may suffer, both in their professional reputations and in their future employment opportunities."

The judge's observation that applicant testing will to some degree affect the composition of the bargaining unit does not, standing alone, support the conclusion that it vitally affects the terms and conditions of employment of unit employees. Any hiring criterion or individual hiring decision affects the composition of the bargaining unit. If applicant drug testing is deemed to vitally affect the terms and conditions of employment of unit employees solely on the basis that unit composition is affected, then any applicant qualification could be subject to this argument. We conclude that the "vitally affects" test has not been met. *fn16

The judge also reasoned that because a union proposal to establish a drug and alcohol screening program to ensure a safer, drug-free workplace would be a mandatory subject of bargaining, the Respondent's decision to implement a drug and alcohol screening program for applicants is a mandatory subject of bargaining. We disagree.

Certainly, safety in the workplace is a mandatory subject of bargaining. But the testing of applicants does not vitally affect workplace safety. That concern can be addressed effectively in union proposals that seek post-hiring testing of new employees. Thus, there is nothing in our decision today that would preclude a union from seeking physical examination, including drug testing, of newly hired employees at the very outset of their employment.

In light of all the above considerations, we find that drug and alcohol testing of applicants for employment is not a mandatory subject of bargaining, and that the Respondent has therefore not violated the Act as alleged by refusing to bargain with the Union about this subject.

2. Notwithstanding our finding that drug and alcohol testing of applicants for employment is not a mandatory subject of bargaining, we nevertheless find, for the reasons discussed below, that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to furnish the Guild with information concerning the drug and alcohol testing of applicants for Guild positions.

As set forth above, paragraph 8 of article XIV of the collective-bargaining agreement prohibits discrimination in all phases of employment, including recruiting, testing, and hiring. Guild International Representative Nelson testified that one of the Guild's concerns about the drug and alcohol testing of applicants was uniformity of testing procedures, i.e., whether the same testing procedures were being used for male and female applicants. *fn17 The Guild requested certain information pertaining to the application and enforcement of the Respondent's applicant drug and alcohol testing policy: (1) the names, addresses, and telephone numbers of all prospective employees who had been extended tentative or firm offers of employment in Guild bargaining unit positions since the implementation of the drug testing program; (2) the identity of applicants who had been required to undergo a preemployment medical examination or a drug and alcohol screen; (3) the identity of applicants who refused to submit to a drug and alcohol screen; and, (4) whether the reason for not hiring an individual was due to or related to a refusal to submit to a drug and alcohol test, the results of a drug and alcohol test, or issues related to drug and alcohol testing.

The Guild requested this information pursuant to a pending grievance relating to the Respondent's unilateral implementation of the applicant drug and alcohol testing program. The grievance alleged violations of several contractual provisions, including the nondiscrimination provisions of the collective-bargaining agreement referred to above.

The elimination of actual or suspected sexual discrimination is a mandatory subject of bargaining, and an employer's refusal to engage in bargaining over such elimination violates Section 8(a)(5) and (1) of the Act. *fn18

In Emporium Co. v. Western Addition Community Organization, 420 U.S. 50, 66 (1975), the Supreme Court stated that "national labor policy embodies the principles of nondiscrimination as a matter of highest priority [citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974)], and it is a commonplace that we must construe the [National Labor Relations Act] in light of the broad national labor policy of which it is a part." The Board has also recognized that unions, as the collective-bargaining representatives of employees, have a legitimate and important interest in a workplace free of discrimination. In Westinghouse Electric Corp., 239 NLRB 106 (1978), enfd. As modified sub nom. Electrical Workers IUE, 648 F.2d 18 (D.C. Cir. 1980), the Board observed that the Court's statement in Emporium that "[t]he elimination of discrimination and its vestiges is an appropriate subject of bargaining" was a reaffirmation of the Board's holding that "the elimination of race or sex discrimination practices is a proper subject of bargaining." *fn19 In Westinghouse, the Board held that a union has a legal right as a statutory bargaining representative to ensure that discriminatory practices are not established or continued, and therefore, is entitled to information that relates to alleged discrimination.

Further, the Board has held that requested information concerning applicants for union-represented positions is necessary and relevant to a union's performance of its bargaining obligation with respect to eliminating discriminatory employment practices. East Dayton Tool & Die Co., 239 NLRB 141 (1978). See also Bendix Corp., 242 NLRB 62, 63 (1979); White Farm Equipment Co., 242 NLRB 1373, 1375 (1979), enfd. sub nom. Electrical Workers IUE, 650 F.2d 334 (D.C. Cir. 1980). In such cases, an employer has a corresponding statutory duty to furnish information about actual or suspected discriminatory hiring practices. *fn20

Similarly, we agree with the holding of Tanner Motor Livery, 148 NLRB 1402 (1964), enf. denied on other grounds 419 F.2d 216 (9th Cir. 1969), that employee picketing to protest discriminatory hiring policies and practices is concerted activity protected by Sec. 7 of the Act. We note that Tanner also contains certain broad language suggesting that in general an employer's hiring practices are a mandatory subject of bargaining. As our discussion in the previous section indicates, we reject that view.

In this regard, there is a significant difference between the ways in which a union can address its legitimate concerns for a drug-free, safe working environment and for elimination of discrimination in the employment relationship. As seen in the preceding section of this decision, one reason for finding that testing of applicants does not vitally affect unit employees' terms and conditions of employment is because a union's legitimate concerns about a safe and drug-free working environment can be effectively addressed in union proposals that seek physical examination, including drug testing, of newly hired employees at the very outset of their employment. But considerations of a union's concerns about eliminating, inter alia, sexual discrimination in the employment relationship cannot so easily exclude the hiring process. If an employer engages in discrimination at that stage, the discriminatee will never enter into the employment relationship, and will not become a member of the work force. A union's legitimate efforts to seek elimination of discrimination in the employment relationship would be severely impeded, therefore, if it were required to wait until the hiring process is complete and the employment relationship has begun before investigating actual or suspected sexual discrimination. In this connection, possible discrimination in the hiring process is so intertwined with possible discrimination in the employment relationship that to bar a union from investigating the hiring process could bar it from effectively seeking elimination of discrimination in the employment relationship. For these reasons, in accord with the Board's holding in East Dayton, we find that information concerning actual or suspected discrimination in the hiring process is necessary and relevant to the Union's performance of its statutory duties.

Finally, we reject the Respondent's contention that its refusal to supply the requested information was privileged by the confidentiality provisions of the Minnesota Drug and Alcohol Testing in the Workplace Act (DATWA). *fn21

Test result reports and other information acquired in drug or alcohol testing process are, with respect to private sector employees and job applicants, private and confidential information and may not be disclosed by an employer or laboratory to another employer or to a third-party individual, governmental agency, or private organization without the written consent of the employee or job applicant tested.

First and fundamentally, we note that the Respondent refused to furnish the Guild any of the requested information, whereas the statute only prohibits unconsented disclosure of certain test-related information but does not prohibit the disclosure of the names of individuals tested. Thus, the statute does not appear to provide a basis for nondisclosure. Moreover, the statute expressly provides for the use of test results in arbitrations pursuant to collective-bargaining agreements. The statute also specifically provides that the confidentiality provisions

shall not be construed to limit the parties to a collective-bargaining agreement from bargaining and agreeing with respect to a drug and alcohol testing policy that meets or exceeds and does not otherwise conflict with, the minimum standards and requirements for employee protection provided *fn22

To remedy the refusal to provide information violation the judge ordered the Respondent to:

[f]urnish the Union with the information requested in October 1987, supplying the names, addresses and telephone numbers of persons to whom conditional offers of employment in the Guild bargaining unit have been made since January 1987, identifying those persons who have refused to submit to drug and alcohol screening.

The judge's recommended Order provides the Guild with less information than it originally sought. The recommended Order does not require the Respondent to furnish the identity of all applicants who were requested to submit to preemployment medical examinations, the identity of all applicants who were requested to submit to a drug and alcohol screen, the identity of those who were denied employment for a refusal to submit to the drug and alcohol screen, and whether the reasons for not hiring a prospective employee were due to any issue related to the drug and alcohol policy. The Guild did not except to the judge's modification of its original request for information. *fn23 Accordingly, we adopt the remedy provided in the judge's recommended Order with respect to the refusal to furnish information violation.

Amended Conclusions of Law

1. The Respondent, Star Tribune, A Division of Cowles Media Co., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

2. The Newspaper Guild of the Twin Cities, Local 2, The Newspaper Guild, AFL -- CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act.

3. At all times material to this proceeding, the Respondent has recognized the Union as the exclusive representative of its employees in the following unit:

All of the employees of the Publisher [except those herein excluded] employed in the News and Editorial Departments of the Minneapolis Star and Tribune including the Sunday Tribune, employed in the Sales Development/Promotion Department doing art and creative work, and all Metro District Sales Managers in the Metro Circulation Department, and no others.

4. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as requested, by its January 1987 unilateral implementation of a drug and alcohol policy for current employees, by its September 1987 unilateral implementation of a revised drug and alcohol policy for current employees, and by its October 1987 refusal to furnish the Union requested information.

5. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

6. The Respondent did not violate the Act except as specifically found above.

The Remedy

Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we shall order the Respondent to furnish the Union the information requested in October 1987, supplying the names, addresses, and telephone numbers of those persons to whom it has conditionally offered employment in the Guild bargaining unit since January 1987, identifying those persons who have refused to submit to drug and alcohol screening.

We shall order the Respondent to rescind any discipline imposed on employees in Guild bargaining unit positions as a result of its unilaterally implemented drug and alcohol policy and related disciplinary schedule, and to make such employees whole for any losses suffered therefrom. *fn24 The Respondent is ordered to remove from the files of employees all memoranda, reports, or other documents resulting from the implementation of the drug and alcohol policy with respect to current Guild-unit members.

The Respondent is also ordered to revoke its drug and alcohol policy for current employees implemented in January 1987 and revised in September 1987, including the drug and alcohol screening and medical examination provisions and the schedule of discipline for substance abuse offenses, as it pertains to employees in Guild bargaining unit positions.

In addition, we shall order the Respondent, on request, to bargain with the Union in good faith concerning medical examinations, including drug and alcohol screening, and disciplinary schedules for substance abuse offenses pertaining to employees in Guild bargaining unit positions.

ORDER

The National Labor Relations Board orders that the Respondent, Star Tribune, A Division of Cowles Media Co., Minneapolis, Minnesota, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain in good faith with the Union, on request, with respect to its drug and alcohol policy as it pertains to current Guild bargaining unit employees.

(b) Unilaterally, without giving prior notice to or affording the Union an opportunity to bargain, implementing and revising its drug and alcohol policy, including its drug and alcohol screening and medical examination provisions and its schedule of discipline for substance abuse offenses pertaining to current Guild bargaining unit employees.

(c) Refusing to comply with the information request, as modified herein, made by the Union in October 1987.

(d) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) On request, bargain in good faith with the Union as the exclusive representative of the employees of the appropriate unit described below concerning its drug and alcohol policy as it pertains to current Guild bargaining unit employees, and embody any understanding reached in a signed agreement. The appropriate unit is:

all employees of the Publisher [except those herein excluded] employed in the News and Editorial Departments of the Minneapolis Star and Tribune including the Sunday Tribune, employed in the Sales Development/Promotion Department doing art and creative work, and all Metro District Sales Managers in the Metro Circulation Department, and no others.

(b) Revoke its drug and alcohol policy for current employees implemented in January 1987 and revised in September 1987, including the drug and alcohol screening and medical examination provisions and the schedule of discipline for substance abuse offenses, as it pertains to employees in Guild bargaining unit positions.

(c) Furnish the Union with the information requested in October 1987, supplying the names, addresses, and telephone numbers of persons to whom conditional offers of employment in the Guild bargaining unit have been made since January 1987, identifying those persons who have refused to submit to drug and alcohol screening.

(d) Rescind any discipline imposed on employees in Guild bargaining unit positions as a result of its drug and alcohol policy and related disciplinary schedule, and make such employees whole for any losses they may have suffered, in the manner set forth in the remedy section of this decision.

(e) Remove from the files of employees notices, reports, or memoranda resulting from the implementation of the January 1987 drug and alcohol policy or the revised September 1987 drug and alcohol policy.

(f) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records and entries necessary to determine the Respondent's compliance with this Order and the amount of sums and benefits due under the terms of this Order.

(g) Post at its Minneapolis, Minnesota facilities copies of the attached notice marked "Appendix." *fn25 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

(h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.

I agree with my colleagues, for the reasons stated in the foregoing opinion, that drug and alcohol testing of employee applicants is not a mandatory subject of bargaining and that therefore the Respondent did not violate Section 8(a)(5) of the Act by failing to bargain over the testing of applicants. I also agree with my colleagues that the Respondent did violate Section 8(a)(5) in its denial of the Guild's request for information; but I concur separately in order to state my own understanding of the limits to be placed on implications of the rationale underpinning that finding of a violation.

My colleagues have found that the Respondent was obligated to respond to the Guild's request for information because the request related to hiring discrimination, and because the prevention of such discrimination --- embodied here in the parties' contractual nondiscrimination clause---is a mandatory subject of bargaining. I agree that the request was related to a mandatory subject, but only for the following reasons.

As we have explained in the first part of our opinion, under the principles set out in Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971), only those matters that concern the "wages, hours, and other terms and conditions of employment" of current employees or matters that "vitally affect" those terms and conditions are mandatory subjects of bargaining. Hence, in finding that discrimination in hiring is a mandatory subject of bargaining, we are not finding that a union in any sense represents the interests of employment applicants. In my view, a prohibition of hiring discrimination is a mandatory subject only insofar as it may prevent practices that are likely to result in a partly or wholly segregated bargaining unit that is the product of hiring discrimination. Because of our need to accommodate the Federal employment policy pertaining to discrimination, we may properly find that employees have a legitimate interest in work force composition to the extent that it is affected by discrimination under the Federal civil rights laws. *fn1b

The Guild's information request relates to this current-employee interest because the Guild seeks information that it believes might show discriminatory practices that would likely lead to screening out women at a disproportionate rate over men. *fn2b Learning the identities of the applicants is relevant to a mandatory subject because it will allow the Guild to determine how each female applicant was treated as compared with how the male applicants were treated. If the Guild learns that there was disparate treatment and that this treatment resulted, or was likely to result, in a work force skewed in the direction of the favored class, then it will have established grounds both for asserting a breach of the contractual clause and for seeking to bargain in future contracts over the practice in question. I would not, however, agree that a conclusion that nondiscrimination clauses are mandatory bargaining subjects means that a hiring practice or requirement, or any change in such practices or requirements, is automatically a mandatory subject of bargaining simply on a bare claim that it might lead to a work force from which a class based on race, sex, religion, or national origin is largely excluded or on the theory that because hiring practices generally may be used to discriminate, the union therefore has the right to bargain about all of them in order to insure that they do not. Under Pittsburgh Plate Glass, supra, it is clearly necessary to show that the proposed action to be taken with respect to nonunit employees "vitally affects" the terms and conditions of current employees before it will be considered a mandatory subject of bargaining.

Of course, an analogous standard is applied to information requests themselves where information about nonunit employees is concerned. But a liberal discovery standard is applied and so long as a union shows that the information it seeks has "some bearing" on the terms and conditions of current unit employees, the employer will be obligated to comply with the request. *fn3b In my view the Guild's request meets that standard here.

Dated, Washington, D.C. June 15, 1989

ALJ: WALLACE H. NATIONS

ALJ-DECISION: DECISION

Statement of the Case

WALLACE H. NATIONS, Administrative Law Judge: On February 5, 1987 and November 24, 1987, The Newspaper Guild of the Twin Cities, Local 2, The Newspaper Guild, AFL-CIO, CLC (Union or Guild) filed charges against the Star Tribune, A Division of Cowles Media Company (Respondent or Publisher). On December 16, 1987, The Regional Director for Region 18 issued an Order Consolidating Cases, Consolidating Complaint and giving Notice of Hearing alleging that Respondent has violated and is continuing to violate Section 8(a)(1) and (5) of the National Labor Relations Act (Act) by refusing to provide the Union with certain information and by unilaterally implementing a drug testing program without first affording the Union an opportunity to bargain.

Hearing was held in these matters in Minneapolis, MN on April 18 - 21, 1988. Timely Motions to Intervene as Amicus Curiae were received from the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the Council on Labor Law Equality (COLLE). Both Motions were granted and intervention allowed. Subsequently briefs were received from all parties and intervenors.

Based upon the entire record, and upon my observation of the demeanor of the witnesses and in consideration of the briefs submitted, I make the following:

Findings of Fact

I.

Jurisdiction

The Respondent is a Delaware corporation with an office and place of business in Minneapolis, Minnesota where it engages in the publication, circulation and distribution of a daily newspaper in the Minneapolis, MN area. Respondent has admitted the jurisdictional allegations of the Consolidated Complaint and I find that the Respondent is now, and has been at all times material to this proceeding, an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

II.

Labor Organization Involved

It is admitted and I find that the Union is, and has been at all times material to the proceeding a labor organization within the meaning of Section 2(5) of the Act.

III.

Alleged Unfair Labor Practices

A. Statement of Issues Presented

The Respondent unilaterally implemented a drug and alcohol policy on January 1, 1987 *fn1. The policy, as initially implemented on January 1, and as unilaterally revised on August 31, consists of three components: (1) a pre-employment medical exam, including drug and alcohol screening for applicants to whom job offers have been made, contingent on passage of the drug test; (2) a medical exam, including drug and alcohol screening, in certain circumstances for current employees; and (3) a disciplinary schedule for drug and alcohol related offenses. The questions presented for determination are (1) whether these unilateral implementations of Respondent's drug and alcohol policy violated Sections 8(a)(1) and (5) of the Act and (2) whether the Union is entitled to information which it requested relating to the unilaterally implemented policy.

In defense of its actions, the Respondent asserts: (1) implementation Respondent asserts: (1) implementation of its drug and alcohol testing program is not a mandatory subject of bargaining under the Act, either for existing bargaining unit members or prospective employees; (2) the Guild does not represent prospective new employees and cannot legally demand bargaining over their conditions of employment; and (3) the Guild has waived its right to request bargaining because it acquiesced in certain of Respondent's past practices, has given management a contractual right to act as it did, and because it did not seek to bargain in good faith. It defends its refusal to supply information requested by the Guild on all of the above stated grounds and additionally, for the reason that the information requested is confidential and cannot lawfully be supplied. In general, COLLE's arguments in support of Respondent are the same or similar to Respondent's arguments. All of the parties' contentions will be discussed below under appropriate subheadings.

B. Background Facts

The Star Tribune is a daily newspaper published in Minneapolis, MN; it has a circulation of 389,400 on Monday through Saturday and 629,000 on Sunday; and its annual revenues exceed $256,000,000. Approximately 4,000 those employees work in 11 separate bargaining units that are represented by 10 different unions. The Charging Party Union has been recognized as the exclusive collective bargaining representative of a unit of employees of Respondent since the early 1930's. The Guild represents the Respondent's reporters, some editors, news assistants, photographers, news artists, metro-circulation employees and promotion employees. Currently, the unit encompasses between 350 and 400 of Respondents employees. The parties' most recent collective bargaining agreement runs from 1986 - 89. This agreement, reached by the parties in October 1986, and ratified and executed in December 1986, was negotiated during 26 bargaining sessions over a five-month period from May to October 1986.

The Publisher has a number of company-wide employee policies, which as of 1985 had been in effect for varying periods of time. In 1985, the Star Tribune began reviewing the policies for consistency and fairness. The review was conducted by an Operations Committee comprised of senior managers and department heads. The Publisher's existing drug and alcohol abuse program was among the policies examined. The content and history of this particular program will be discussed in detail later with respect to Respondent's defense of waiver. As immediately pertinent, the Operations Committee reviewed the drug policy for three to five was modified and substantially increased in scope and detail. Under the new drug policy, at least the following changes were effected:

The new policy provides for pre-employment medical exams that include alcohol and drug screening. In addition, tests for alcohol and drug use may be administered to current employees under certain specific circumstances.

Under the new policy, prospective employees who are offered jobs will be required to take a pre-employment medical exam. Included will be an unobserved urinalysis for evidence of alcohol or illegal or controlled substances. Employment will be denied to those who test positive according to established standards.

Current employees also may be asked to undergo a medical exam, including substance screening when management believes that job performance or conduct is impaired by substance abuse.

In addition, employees who operate or work around company machinery or who operate vehicles in the course of their job will be required to take a medical exam, including drug/alcohol screening in cases of serious injuries that require treatment by a physician.

Metropolitan Medical Center will conduct the substance screening and analyze the results. Specimens will be collected and processed in a way that ensures the integrity of the sample. Containers will be quality controlled and clearly marked.

A "chain of custody" form will document all people who handle the sample from collection through analysis. All positive results will be confirmed by a second test using a different analytical technique, and all positive specimens are stored frozen for at least 60 days.

In the case of current employees, test results will be kept confidential. MMC will, however, furnish the employee's supervisor, through the Human Resources department, sufficient information on test results to enable the Company to administer discipline, when necessary.

Discipline for first substance abuse offenses will be:

A three-day suspension for possession on the premises or in company vehicles.

A five day suspension for consumption on premises, being under the influence or impaired performance or conduct.

Discharge for distribution on the premises.

A five-day suspension will require a chemical dependency evaluation and disciplinary actions will be reviewed by the Human Resources department before any action is taken.

The Guild first learned of Respondent's new policy on drugs and alcohol on December 10, 1986, at which time John Dennison (Respondent's vice-president for labor relations) called Bruce Nelson (then the Guild's executive secretary) to inform the Guild that Respondent planned to implement such a policy in January. During that call, Dennison described the program as having three components: (1) Mandatory testing for prospective employees, after a conditional offer had been extended; (2) drug testing for current employees under certain circumstances; and (3) a schedule of discipline for violations of the drug and alcohol policies. Nelson testified that at this time Dennison called to notify the Union and find out if the Union had any objections. Nelson responded that "the company could certainly count on an objection from the Union", emphasizing that the Union's position was that the entire policy was a mandatory subject of bargaining and demanding bargaining on it. Nelson further testified that Dennison conceded that bargaining with the Union on the policy made a certain amount of sense, but cautioned Nelson that the decision of whether to bargain rested with other management officials.

As a follow-up to this conversation, Dennison sent Nelson and the representatives of the Publisher's other unions a letter dated December 12, 1986 and included a copy of an article on the subject which was distributed to employees later that month. The pertinent contents of the article are set out above in the description of changes that were made in the Publisher's existing drug policy. The article indicated that the changes were to be implemented on January 1.

On December 15, 1986, the Guild published an article of its own which indicated its at least initial opposition to the new drug policy. More importantly, on December 17, 1986, Nelson wrote Dennison a letter emphasizing that the Union considered all components of the new policy to be mandatory subjects of bargaining and demanding bargaining over the new policy. Nelson also made clear that the Union would consider unilateral implementation of the new policy unlawful. The letter ended thusly, "We stand ready to meet with you for that purpose (bargaining) at a time and place of mutual convenience." (Emphasis added)

The new drug policy went into effect in January as announced in the article appended to Dennison's December 12 letter. On January 4, Nelson received a call from a bargaining unit employee informing him that a prospective employee's offer of employment had been withdrawn because of that individual's refusal to take the pre-employment drug test. As this was the first indication to the Union that Respondent's drug and alcohol policy had been implemented, Nelson immediately called Dennison, who was unavailable. On January 9, Dennison returned Nelson's call. Dennison then learned, from Nelson, about the prospective employee who had had an offer withdrawn. Dennison remarked that if it had happened, he hoped it had not happened after Respondent had received the Union's demand to bargain. At this point, Dennison did not know the new policy had been implemented or whether the company was willing to bargain with the Union as demanded. Nelson suggested that Respondent send the union a letter stating that the policy would be suspended during negotiations.

During this telephone conversation, Nelson and Dennison agreed to discuss the drug policy on January 21, at which time an omnibus grievance meeting had already been scheduled. At this January 21 meeting, The Union reiterated its demand to bargain over the drug policy and asked for the company's response. Dennison acknowledged that a prospective employee had been offered a job conditioned on the drug test, but declined to say whether Respondent would agree to suspend the policy and bargain with the union. The union agreed not to file any unfair labor practice charge until the company concluded it internal deliberations over the Guild's bargaining demand.

About a week later, with still no response from the company to the bargaining demand, the Union found out that another prospective employee had been offered a job conditioned on the passage of a drug test. Again, Nelson called Dennison and asked if the company was going to bargain. Dennison replied that he was "90 percent certain" that the company would not bargain with the union over the drug policy, but that he was not completely certain and needed more time to respond. On January 29, Dennison informed Nelson by telephone that all three components of the drug and alcohol policy were fully in place and that the company would not bargain with the Union on any aspect of the policy. Nelson then told Dennison, in the same call, that the Union would be filing a charge.

After that charge was filed and while the investigation was pending, a meeting of the Inter-Plant Council with Respondent was convened in March. The Inter-Plant Council, an informal organization made up of business agents and officers of the various unions with whom Respondent bargains, had scheduled this meeting regarding the drug and alcohol policy for informational purposes. Nelson and Marilynn Taylor (then assistant to the Union's executive secretary) reemphasized at the outset of the meeting that the Guild believed the entire policy to be a mandatory subject of bargaining and that it demanded bargaining. The new policy had been in effect since January 1.

By letter dated September 16, more than nine months following Respondent's unilateral implementation in January, Dennison notified Taylor (then the interim administrator of the Union) that the company had revised the drug policy and that the revised policy had gone into effect on September 1. It is this version of the drug and alcohol policy which remained in effect as of the time of the hearing in this case. At no time prior to Dennison's letter of September 16 had the Union been notified of or given a copy of any revisions to the policies. The revisions include, in part, the following changes from the policy implemented on January 1:

Prospective Employees

who test positive or refuse the test will not be considered for employment earlier than six months after the initial test or refusal, if at all.

who wish to explain a positive test result must do so within three working days of receiving notice of the result.

who wish to request a retest must do so within five working days of receiving notice of the result.

Current Employees

will be required to undergo a medical exam, including a drug and alcohol test, when management believes an employee is "under the influence of alcohol."

who refuse to take the test will be disciplined for impaired performance or behavior.

who test positive for the first time will receive a five day suspension and must undergo a substance abuse evaluation prior to returning to work.

who wish to explain a positive test result must do so within three working days of receiving notice of the result.

who wish to request a retest must do so within five working days of receiving notice of the test result.

Respondent concedes that it engaged in no bargaining whatsoever over any component of the drug and alcohol policy, as initially implemented or revised. Respondent's publisher, Roger Parkinson, stated that the company's plan in implementing the policy was to avoid distinctions among employees or bargaining units, and to have a uniform policy in effect across-the-board.

C. Is Implementation of Respondents New Drug and Alcohol Policy for Prospective Employees a Mandatory Subject of Bargaining?

1. Are Prospective Employees "Employees" Represented by the Guild and Does Implementation of Prospective Employee Testing Vitally Affect Current Unit Employees?

It is well-established that an employer must notify and bargain with its employees' collective bargaining representative before changes are implemented in mandatory subjects of bargaining. NLRB v. Katz, 369 U.S. 736 (1962). Respondent's refusal to bargain with the Guild on the issue of pre-employment medical exams, including drug and alcohol screening, is based on its assertions that the issue is not a mandatory subject of bargaining under the Act and that prospective employees are not employees represented by the Guild.

Under Section 8(d) of the Act, "wages, hours and other terms and conditions of employment" are delineated as mandatory subjects of bargaining. Determining the scope of this inexact statutory language has been left to the Board. NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). Generally, an issue is a mandatory subject of bargaining under Section 8(d) if it is "germane" to the "working environment" of employees and if its establishment is not a managerial decision "at the core of entrepreneurial control." Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979), citing Fibreboard Paper Products Corp. vs. NLRB, 379 U.S. 203, 222-23 (1964).

The question of whether drug and alcohol screening for prospective employees is a mandatory subject of bargaining has been before the Board in Rockwood and Co.d/b/a/ Timber Products & Co., 285 NLRB No. 138 (Sept. 25, 1987). In Rockwood, the Board affirmed, without comment, the conclusion of the Administrative Law Judge that drug testing of applicants is a mandatory subject. In Rockwood, as in the instant case, the employer unilaterally implemented a policy containing components for testing of both current employees and prospective employees. As in this case, the Respondent in Rockwood argued that insofar as its policy pertained to applicants, the subject of drug testing was not mandatory. The Judge questioned the validity of the employer's argument that components of the unified policy were severable for purposes of the unfair labor practice hearing, but did provide an analysis supporting his conclusion that drug testing for applicants is a mandatory subject. The Judge's analysis focused upon 20 years of Board precedent providing that conditions for becoming employed can be mandatory subjects.

The question of whether an employer is obligated to bargain over applicant drug testing has also been raised and resolved in a recent Administrative Law Judge Decision in RCA Corp., JD -- 116 -- 88 (June 14, 1988). The Judge there held that applicant drug testing clearly falls within the ambit of mandatory bargaining. Citing Rockwood, supra, the Judge in RCA found that the employer's unilaterally implemented drug testing policy, applied to applicants only, was mandatory because of its effects on the working conditions of employees and because it regulated employer-employee relations by setting an aspect of employment. Quoting Operating Engineers Local 12 (Associated General Contractors of Calif.), 187 NLRB 430, 432 (1970), the Judge in RCA noted that:

the touchstone is whether or not the proposed clause sets a term or condition of employment or regulates the relation between the Employer and its employees.

The RCA decision rejected the employer's contention that drug testing, as a safety matter, fell outside the bargaining obligation.

In as early as 1965, the Board concluded that "terms and conditions of employment" within the meaning of Section 8(d) of the Act "connotes the initial act of employing as well as the consequent state of being employed." Houston Chapter, Associated General Contractors, 143 NLRB 409, 412 (1963), enfd. 349 F.2d 449 (5th Cir. 1965). In Houston AGC, the Board held that the subject of the establishment of a hiring hall was a mandatory subject of bargaining. In so holding, the Board specifically rejected the employer's argument that only those issues arising after an actual employer-employee relationship is established can be mandatory. In Houston AGC, the Board rejected the employer's contention that it had no obligation to bargain over "the obtaining of employment." Regarding the requirement in Borg-Warner that, for a subject to be mandatory, it must regulate relations between an employer and employees, the Board in Houston AGC held that the term "employees" was not limited to individuals already working. Accord Phelps Dodge Corp. V. NLRB, 313 U.S. 177 (1941). The Board buttressed its holding with the observation that "the Board has consistently stated that the definition of "employee" in Section 2(3) of the Act covers "applicants for employment" and specifically denied that this interpretation was restricted to the construction industry. 143 NLRB 412 fns. 8-9, citing Briggs Mfg. Co., 75 NLRB 569 (1975) and Texas Natural Gasoline Corp., 116 NLRB 405 (1956), enf. den. on other grounds, 253 F.2d 322 (5th Cir. 1958).

The Respondent's arguments in Houston AGC mirror those raised by the Respondent herein, and the Board's disposition of those arguments in that case is equally applicable and sound on these facts. In Houston AGC, the employer was ordered to bargain over hiring criteria, e.g., the process by which applicants are employed. It follows that the hiring criteria unilaterally imposed herein, e.g., testing procedures for screening prospective employees, must also be bargained. Nothing in the Board's reasoning in Houston AGC limits its holding in that case to the hiring hall issue. This is confirmed by Lockheed Shipbuilding and Construction Co., 273 NLRB 171 (1984).

In Lockheed, the Board found that the employer unilaterally implemented new medical screening tests unlawfully. The tests were designed "for the purpose of terminating new employees or refusing to hire applicants for employment." Id. at 171. In its decision, the Board -- affirming the Administrative Law Judge's conclusions -- made no distinction between applicants and new employees in finding the unilateral implementation unlawful. Similarly, in Laney & Duke Co., 151 NLRB 248 (1965), enfd. in pertinent part, 369 F.2d 859 (5th Cir. 1966), the Board held that the union was entitled to bargain over changes in application forms, to the extent that questions thereon contained questions affecting employment.

That applicants and prospective employees are clearly within the purview of the Act is demonstrated through the number of cases evolving under Sections 8(a)(1) and (3) of the Act regarding unlawfully discriminatory hiring practices. See, e.g., A & A Ornamental Iron, Inc., 259 NLRB 1019 (1982); Crown Cork & Seal Co., Inc., 255 NLRB 14 (1981). Respondent's implementation of its policy herein requires no analysis of discriminatory intent in the ways that a Section 8(a)(3) refusal to fire would. Nevertheless, the analogy strongly establishes that issues involving applicants are certainly not outside the scope of the Act.

The Respondent and Intervenor COLLE argue that the pre-employment testing program cannot be considered mandatory because job applicants are not "employees" under the Act and are not represented by the Guild. They contrast the language of Section 8(a)(5), mandating good faith bargaining, with Section 8(a)(3), prohibiting discrimination in hiring and employment. Because the latter provision specifically mentions discrimination "in regard to hire," which the former provision does not, they argue that Congress did not intend the bargaining duty to extend to issues of hire.

Section 8(d), not Section 8(a)(5), defines the scope of the mandatory bargaining obligation. The Board in Houston AGC rejected this argument as explained at 143 NLRB 412, thusly:

We note that Section 8(d) not only omits "hire," but also makes no specific mention of "tenure of employment" as does Section 8(a)(3). Yet it could scarcely be denied today that the concept of "tenure of employment" lies within the "terms and conditions of employment" of Section 8(d). In similar fashion the concept of "hire," though not specifically set out within 8(d), is clearly a "term or condition of employment," and makes bargaining mandatory with respect to the hiring of prospective employees.

Respondent's discussion of Allied Chemical & Alkali Workers v. Pittsburgh Glass, 404 U.S. 157 (1971) is its primary support for its conclusion that Section 8(a)(5) bargaining obligations do not extend to pre-employment drug testing. However, as the Supreme Court therein emphasized, its finding that the Pittsburgh Glass retiree's benefits are not a mandatory subject was based on the Board's certification of a unit composed expressly of "employees of the Employer's plant working on hourly rates," a unit definition clearing excluding individuals not currently earning wages. 404 U.S. at 160 fn. 4, 172. The critical distinction herein is that retirees, unlike prospective employees who have already received offers of employment, have no expectation of being employed, a factor specifically relied on by the Court in Pittsburgh Glass. Id. at 172. In fact, since the issuance of the Pittsburgh Glass decision, the Board has repeatedly reaffirmed its holding in Houston AGC that prospective employees are to be considered "employees" under the Act. See Pattern Makers' Ass'n of Detroit (Michigan Pattern Mfgs. Ass'n), 233 NLRB 430 (1977), enfd. in pertinent part, 622 F.2d 267 (6th Cir. 1980).

Further, Respondent argues that for matters affecting individuals outside the bargaining unit, such matters must vitally affect the terms and conditions of employment of unit employees, citing United Technologies Corp., 274 NLRB 1069 (1985). In that case, the Board also stated that "matters affecting individuals outside the bargaining unit are not automatically excluded from the scope of mandatory bargaining," citing Teamsters Union v. Oliver, 358 U.S. 283 (1959). 274 NLRB at 1070. Unlike the retirement benefits discussed in Pittsburgh Glass, or the summer help program addressed in United Technologies Corp., the Respondent's testing program has a direct effect on the composition of the bargaining unit and defines the very terms under which bargaining unit employment may be achieved. As in the construction industry, where the provisions of a hiring hall may have a great impact on unit member's seniority and future job opportunities, the Guild unit members see their future job opportunities as being largely determined by the quality of the paper and the reputation of their colleagues. It is their contention, and I believe a reasonable one, that Respondent's pre-employment drug and alcohol testing program introduces a non-performance related condition of hire which may arbitrarily compromise the quality of the workforce, and the unit members themselves may suffer, both in their professional reputations and in their future employment opportunities. Further, it is highly likely that the Respondents' program will not only deter from employment those prospective employees who abuse prohibited substances, but those who simply refuse to take a screening test for reasons of principle, especially when, as here, the screening program has been implemented without any input from the employees.

Turning the argument around, it is also reasonable to find that the Guild or one of Respondent's other unions might want a drug and alcohol screening program implemented to insure a safer, drug free workplace. In such a case, I believe it clear that the proposal to establish such a program by the Union would be a mandatory subject of bargaining. The Respondent in the instant case urges that the Guild opposes the establishment of a drug and alcohol program which includes testing, and for that reason this argument cannot be made. I believe the record is clear that the Guild does not want such a program implemented without some input into the program, but I cannot find that there is just total opposition to the program from the record.

In any event, I find that Respondent's drug and alcohol program as applied to prospective employees does vitally affect the involved bargaining unit and their working environment for the reasons set out above. See also White Farm Equipment Co., 242 NLRB 1373 (1979), enfd. 650 F.2d 334 (D.C. Cir. 1980). Additionally, the Respondent has heretofore bargained with the Guild over matters affecting prospective employees. Article XIV, paragraph 8 of the parties latest agreement reads:

The Publisher prohibits discrimination in employment on the basis of race, color, national origin, religion marital or parental status, disability, status with regard to public assistance, political affiliation, sex, sexual preference or age. The Guild or the Publisher shall not discriminate against any employee because of membership or nonmembership in the Guild or activity therein, or because of any of the other categories set forth in this paragraph.

All phases of employment are covered by this policy, including but not limited to: recruiting, advertising; testing and hiring; promotion; demotion and transfer; training; termination; layoff and recall; and compensation.

I can find nothing more or less serious about the Respondent's drug and alcohol program and its amenability to bargaining than any of the matters already made the subject of collective bargaining in the portion of the parties' agreement set out above. For all of the reasons set forth above, I find and conclude that Respondent'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 Guild bargaining unit.

2. Did the Guild Waive Its Right to Request Bargaining Over Prospective Employee Testing by Acquiescing in the Publisher's Past Practice With Respect to Pre-Employment Physical Exams?

Respondent concedes that prior to its unilaterally implemented policy of January 1987, there had been no pre-employment drug and alcohol screening of any prospective employees, whether for Guild unit positions or any other positions. Dennison himself admitted to the Guild, as early as March, that pre-employment testing was "unquestionably new." To the extent that any pre-employment medical exams for prospective employees for Guild unit positions were administered, the Union was unaware of their existence. The record reflects that in as early as 1968, prospective employees' offers were not made contingent upon the results of any pre-employment medical exam. In fact, testimony establishes that prior to January 1987, no mention of any pre-employment medical exam was made to prospective employees for Guild unit positions at the time their job offers were extended, an aspect of the testimony which remains unrebutted. *fn2

If employees hired into Guild unit positions prior to January 1987 were requested to take a physical at all, they were examined after their first day of employment or, at the earliest, after their job offers were unconditionally extended and accepted. As the Judge in RCA Corp. noted, a change in a "pre-employment" medical exam from an exam administered to individuals who have already accepted job offers to an exam required of all applicants is a significant change.

These pre-1987, sporadic examinations consisted of nothing more than a brief visit to the staff nurse for her to record blood pressure and weight. For some employees, whose apparently arbitrary selection was not explained by Respondent, a urine sample may also have been taken, but these urinalyses did not include a drug screen. In RCA Corp, the Judge found the addition of a drug screen to urinalysis constitutes a significant change. The consequences or purposes of these post-hire visits by some Guild employees to the nurse were not explained, either to the employees involved at the time or at the hearing. Although Personnel Manager Michael Seraphine initially stated the these medical exams were administered prior to January 1987, he later clarified that Guild unit positions have been exempt from any such policy since late 1983. Even then, Seraphine testified, the exam had never been the basis for refusing to hire anyone for a Guild bargaining unit position. The Vice President for Labor Relations, Dennison, could not recall any pre-employment exam policy prior to the one unilaterally implemented in January 1987.

The pre-employment exams, including drug and alcohol screening, implemented since January 1987 bear no resemblance to those cursory visits to the company nurse, if any, made by already hired Guild employees prior to 1983. As one recently hired employee testified, her pre-employment exam took place in a private medical office facility selected by the company after her conditional offer of employment had been extended. After an examination by two physicians, the prospective employee was told to undress completely from the waist down. Accompanied by a nurse, the prospective employee then had to remain in a public bathroom stall, with the stall door open, for 40 minutes while she made repeated and unsuccessful attempts to provide a urine sample. Throughout this period, the nurse remained with her in order to observe that the urine sample, which was eventually supplied, came from the woman being examined. The prospective employee was instructed by the nurse to keep her hands at her side throughout the process. Although the new drug and alcohol policy calls for an "unobserved" urinalysis, situations such as the one described above have occurred and to my mind, lend support to the Union's desire to have a part in formulating the policy and to its information request so it can monitor the policy.

Clearly, the new pre-employment testing procedure cannot reasonably be equated to having a company nurse take a blood pressure reading on your first day of work. The pre-employment drug screen is designed to determine whether a prospective employee uses drugs, regardless of whether the usage interferes with job performance. Once this is discovered through a positive result on the test the job offer is withdrawn. If the prospective employee refused to take the test, the job offer is also withdrawn. These drastic consequences of the policy, the invasiveness of which is a radical departure from the pre-1983 practices, are certainly substantial changes from the nature and purpose of the prior exams which intermittently existed for the Guild unit over five years ago. Even if one accepts Respondent's contention that the pre-employment physical exams were uniformly given, which the record does not support, they clearly did not have the purpose or consequences of the new exams, which include drug and alcohol screening. No prospective Guild unit member was ever denied employment based on the results of a pre-employment physical and none were made aware that passage of such an exam was a condition of employment. In fact, I believe the record will only support a finding that passage of the pre-1987 medical exams was not a condition of employment.

In conclusion, I find for all the reasons set out that Respondent's drug and alcohol program as it applies to prospective employees constitutes a mandatory subject of bargaining and its unilateral implementation in the face of requested bargaining is a violation of the Act. I further find for the reasons set out above that the Guild did not waive its right to demand bargaining because of its acquiescence in Respondent's pre-1987 pre-employment or post-employment physical exam policy.

D. Does Implementation of Respondent's New Drug and Alcohol Policy for Current Employees Constitute a Mandatory Subject of Bargaining and a Material, Substantial and Significant Change in Their Working Conditions?

Respondent's drug and alcohol policy providing for current employee screening is clearly germane to employee's work environment. Under the terms of the policy as initially implemented and revised, a complete medical exam, including a drug and alcohol test, will be required of current employees when management subjectively "believes" that an employee's job performance or conduct is "impaired" by substance abuse or when management "believes" an employee is "under the influence of alcohol". As discussed above, the disciplinary consequences of the exam's results are pre-established and provide for mandatory chemical dependency evaluations, mandatory suspensions, and mandatory discharge.

I agree fully with General Counsel that the new drug testing policy is a "fitness for duty" type of requirement that ultimately affects employment status in a profound way and becomes a literal "condition of employment." See LeRoy Machine Co., Inc., 147 NLRB 1431 (1964). In LeRoy Machine, the Board found that a physical examination policy for current employees is a mandatory subject of bargaining because of the policy's possible effects on employees' employment status if the exam were not passed. Id. at 1432, 1434. *fn3 Accord Lockheed Shipbuilding and Construction Co., 273 NLRB 171, 177 (1984)

The Board has held in other analogous cases that polygraph testing *fn4 and safety rules *fn5 are mandatory subjects of bargaining over which the Employer is obligated to bargain. For polygraph examinations, as for physical examinations, the Board has held that the bargaining obligation extends not only to whether an examination policy will exist at all but also as to the particulars of the policy, e.g., the policy's contents, its application, its purposes, and the consequences of its results. See Lockheed Shipbuilding, 273 NLRB at 171; Medicenter, Mid-South Hospital, 221 NLRB 670, 676 fn. 23, 677-78 (1975); LeRoy Machine Co., 147 NLRB at 1432, 1438-39. Analogizing these cases to drug testing, the bargaining obligation arising under the Act is similarly compelling. *fn6 As the Board noted in Medicenter in finding a unilaterally implemented polygraph test unlawful:

this sort of change in an employer's investigatory method, substantially varying both the mode of investigation and the character of proof upon which an employee's continued job security might hinge, is a bargainable change in the terms and conditions of his employment.

Id. at 675.

The fact that an employee's refusal to take the polygraph test would be penalized with discipline (discharge) provided a separate basis for a mandatory bargaining obligation. "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)." 221 NLRB at 677-78.

Not only is drug and alcohol testing of employees "germane" to the working environment but it also falls outside that realm of managerial or entrepreneurial prerogatives excluded from Section 8(d) of the Act. In a long line of cases, the Board has imposed a mandatory bargaining duty over a range of policies and rules designed to insure healthy, safe and efficient operations. See, e.g., J.P. Stevens & Co., 239 NLRB 738 (1978), enfd. in pertinent part, 623 F.2d 322 (4th Cir. 1980); Electric-Flex Co., 238 NLRB 713 (1978), enfd. 624 F.2d 1103 (7th Cir. 1979); Gulf Power Co., 156 NLRB 622 (1966), enfd. 384 F.2d 822 (5th Cir. 1967). The Board in Medicenter rejected the Employer's argument that the polygraph test policy it unilaterally implemented was a managerial prerogative:

The institution of a polygraph test is not entrepreneurial in character, is not fundamental to the basic direction of the enterprise, and does not impinge only indirectly upon employment security. It is, rather, a change in an important facet of the workaday life of employees, a change in personnel policy freighted with potentially serious implications for the employees which in no way touches the discretionary "core of entrepreneurial control."

Id. at 676. Similarly, Respondent's drug testing policy is not exempt from Section 8(d) as an entrepreneurial concern.

The sum of the Board and court precedents is clear: the Respondent's drug and alcohol testing of current employees falls within the scope of the mandatory bargaining obligation. The January 1 program called for testing of current employees in two basic situations: where management believed an employee's conduct to be impaired by substance abuse or where an employee was involved in a serious accident involving machinery or vehicles. The amended September policy, while eliminating the second testing situation, added a further requirement of employee testing when management believes an employee to be under the influence of alcohol.

At no previous time in the parties' bargaining history had the Respondent utilized a drug or alcohol test to ascertain impairment of a unit employee's performance, to determine whether an employee was "under the influence," or to investigate the cause of a workplace accident. The introduction of this new method to confirm impairment and to investigate employee misconduct constitutes the very same substantial alteration of employment terms that compelled the Medicenter Board to find a bargaining obligation in relation to polygraph tests.

As in Medicenter, the Respondent had previously relied exclusively on personal interrogation and sensory investigation to assess employee impairment or misconduct -- here, dilated eyes, slurred speech or sloppy physical movement. Reliance upon the test results of drug and alcohol urinalysis profoundly changes both the "mode of investigation and character of proof" of employee misconduct.

This change in the method of investigation is particularly significant, because, as with polygraph testing, drug and alcohol testing involves a technical procedure which raises serious questions as to its reliability and accuracy. The testimony of Respondent's expert witness, Dr. Robert Dupont establishes that the accuracy of drug and alcohol testing may be affected by many technical factors which were irrelevant to the Employer's previous investigatory method: the type of testing procedure used; quality control procedures; chain of custody techniques; and proper medical review to screen out positive tests attributable to prescription drugs or to other confounding compounds. Where improper techniques or procedures are used, the risks of inaccurate results is high. Given the range of technical factors newly implicated by the Respondent's use of drug and alcohol urinalysis, there can be no question that this change in the method of investigation materially altered the terms and conditions of employment that had prevailed prior to January 1. Dr. Dupont's testimony also establishes that the technology and human expertise exist which can make drug and alcohol testing if not wholly exact, exceedingly accurate. Having input into the choice of testing procedure therefore can directly impact on working conditions, given the serious consequences of an inaccurate, positive test result.

On brief, Respondent and Intervenor COLLE argues that the key to determining which subjects are mandatory is whether the action has effected "a material, substantial, and a significant change in its [the employer's] rules and practices which vitally affected employee tenure and conditions of employment. . ." *fn7 If a matter has only an "incidental impact on unit employees it is not sufficient to establish the matter as a mandatory subject of bargaining." *fn8

As examples of what the Publisher and COLLE consider a analogous, non-mandatory subjects of bargaining, it points to the unilateral imposition of timeclocks in lieu of manual attendance reports *fn9, new production levels *fn10 or the imposition of a specific penalty for violation of previously established efficiency standards. *fn11 They argue in the same vein that the imposition of an oral test to gauge employees' proficiency after a training program is likewise analogous to Respondent's imposition of the new drug and alcohol testing program. In the case relied upon, UNC Nuclear Industries, 268 NLRB 841 (1984), the employer had had an established practice of shutting its nuclear reactor at regular intervals for maintenance. During shutdowns, the employer had provided training for its certified reactor operators. In order to determine the effectiveness of the training, the employer developed a new oral test. The plant manager selected 10 of 70 questions relating to the training. The supervisors administer the questions orally to each operator. Based on the verbal responses, the supervisor made a judgment concerning whether the operator had sufficient knowledge to perform his duties. If the supervisor determined that an operator's knowledge was insufficient, the operator was required to take further training without loss of salary or job classification. Despite employee protest and the union's bargaining request, the employer unilaterally instituted the oral testing procedure. In adopting the decision of the administrative law judge, the Board held that the effects of the change were insignificant, and consequently, imposition of the test did not "constitute a radical change representing a "material, substantial and a significant change" from prior practice.

I do not find the decisions cited above by Respondent to be analogous to the facts of this proceeding and will find that the imposition of the new drug and alcohol policy, including the requirement of testing and mandatory substantial penalties does constitute a radical change representing a material, substantial and a significant change from prior practice. I find no equation between a test of effectiveness of training which simply results in further training upon its failure to the new drug and alcohol policy of Respondent.

Just as it conceded that drug and alcohol testing was "unquestionably new" for prospective employees, Respondent also admitted that it never had a policy providing for drug and alcohol testing for current employees before January 1987. In arguing that its unilaterally implemented testing policy for current employees is not unlawful, Respondent relies upon the contention that its impact is insignificant because: (1) the Publisher's Office Rules have consistently prohibited unit employees from working while under the influence of illegal drugs or alcohol; (2) the Publisher has consistently used its supervisors' sensory perceptions to monitor compliance with its Office Rules; (3) the circumstances under which testing may be requested are extremely limited; (4) testing is voluntary and a unit employee may refuse the test without suffering any consequences for refusal; (5) testing is a more dependable means of enforcing longstanding work rules than are supervisor's sensory perceptions; and (6) a unit employee who voluntarily submits to a test and tests positive is referred for a chemical dependency evaluation and if appropriate, treatment; the employee is not subject to discharge based on the test results.

The Office Rules, as documented by Respondent and as related to drugs and alcohol, prohibited three things: (1) the use of drugs or alcohol on company premises, (2) the possession of drugs or alcohol on company premises, and (3) being under the influence of drugs or alcohol on company premises. While the Office Rules are prefaced with the statement that employees shall be subject to discipline, including possible discharge, for Office Rule violations, no specific disciplinary schedule was identified. In fact prior to January 1987, not only were there not specified penalties for any drug or alcohol related offenses, but there was no mandatory schedule of discipline for any type of offense whatsoever. The disciplinary schedule implemented for first time substance abuse offences in January 1987 is the company's first. Prior to this policy, the contractual "just cause" standard was the only embodiment of written disciplinary standards.

The Respondent's witnesses testified that the Office Rules were posted at various times and places in the Publisher's facility and reference to them was routinely made in disciplinary letters sent to employees. Testimony from both Guild officers and Guild bargaining unit leaders indicated that, since as far back as 1935, the Guild has not been aware of the Office Rules in the course of extensive bargaining, grievance handling, contract administration and various meetings with company representatives. However, I find that the Guild must be presumed to have knowledge of the Rules because of their posting.

At the time the drug and alcohol policy was unilaterally implemented in January, the Office Rules were retitled "Standards of Conduct." As Dennison testified, the Standards of Conduct were implemented simultaneously with Respondent's drug and alcohol testing policy. In his letter to the union in December 1986, Dennison characterized the standards as being "new". Dennison testified that the Standards of Conduct did not exist as a separate policy, but were designed to "describe" the drug and alcohol testing policy. Since he did not provide a copy of the Standards of Conduct to the Union, Nelson thought Dennison's reference to "the new Standards of Conduct" in his December 12, 1986 letter, referred to the drug and alcohol policy itself.

There is no evidence that any employee in the Guild bargaining unit has ever been disciplined or discharged for any alleged violation of the Office Rules relating to drug or alcohol. Although Respondent claims that the Office Rules have been used as a basis upon which to argue that "just cause" exists for discipline, the rules have never been cited in grievance related meetings or arbitrations. Rather, prior to January 1987, any discipline imposed for impairment or behavior perceived to be related to drug or alcohol use, was based upon the observed impairment (i.e., unexcused absence) or the behavior (i.e., Physical aggression) not for the perceived drug or alcohol use itself. Similarly, as there were no medical exams requested or required of current employees prior to January 1, there is no past practice of disciplining employees for failing such exams. A first time failure on the drug test now carries a mandatory five day suspension and a mandatory chemical dependency evaluation for a current employee. In addition to this five day suspension for testing positive, an employee now would also receive discipline for the offence found, e.g. another five day suspension for "being under the influence."

Although Respondent claims that the drug and alcohol policy for current employees, along with the related disciplinary schedule, is an extension of the old Office Rules and therefore does not constitute any substantial change, the inaccuracy of this claim is apparent. *fn12 As noted above, the Office Rules prohibited the use of drugs or alcohol on company premises. However, as Dennison admitted, testing an employee for drugs cannot verify where drugs or alcohol were used, so this rule is not enhanced by the policy. Secondly, the Office Rules prohibited possession of drugs or alcohol on company premises. Again, it is obvious that no drug test can confirm the fact of possession. The third and final drug or alcohol related provision in the Office Rules prohibited being "under the influence" of alcohol or drugs on company premises. The Office Rules, on their face, provided no mechanism by which "being under the influence" was to be identified. Rather, Respondent employed "sensory reasons" (i.e., sight, smell, hearing) to make an assessment. The testing mechanism of the new policy is not an extension of a rule but is a means of policing and enforcing a rule.

However, the fact remains that Guild unit employees apparently have never been disciplined for "being under the influence" of drugs or alcohol. Of course, discipline has been imposed for certain behavior or impairment, such as chronic tardiness, but this behavior and impairment may or may not have been related to substance abuse. Any discipline imposed was based on the behavior. How this disciplinary practice will change under the drug and alcohol policy is significant. Obviously, no drug test can be useful in identifying a behavior problem such as tardiness, and Respondent would not contend that it could. Now however, "when management believes" that an employee's on-the-job performance or conduct is impaired, e.g. if an employee is tardy often, that employee can be required to undergo drug and alcohol testing. Further, employees will be required to undergo testing" when management has reasonable suspicion than an employee is under the influence of drugs or alcohol." Therefore, the decision to subject an employee to a required drug test rests on the subjective "belief" or "suspicion" of unnamed "management" that an employee is "impaired" or "under the influence," whatever those terms may mean. An example of behavior which Dennison provided as a possible trigger of drug testing under the policy included tardiness, even though Respondent's expert witness stated that tardiness in not necessarily related to substance abuse. Other examples were "being abusive," absenteeism, "erratic behavior," and "outbursts." Therefore, if an employee is now chronically tardy, the behavior (e.g. tardiness) can lead to an automatic five day suspension if the Employer requires a drug test and the results are positive. An entire new class of employees subject to mandatory testing has now been created.

At the hearing, Respondent attempted to change its arbitrary and subjective criteria for mandatory testing by adding to the written policy with extraneous assurances of what the policy purportedly really means. However, Publisher Roger Parkinson stated, it is the written policy itself upon which employees can be expected to rely. Many reassurances were offered by Dennison, Seraphine and Employer Communications Manager Judith Strom that management's assessment of who will be tested will be "fair", but none of them has any authority to revise the policy as it now exists. Their reassurances do not minimize the fact that the drug policy, as implemented and revised, represents a substantial change in employee's working conditions. Dennison and Seraphine spoke at length of their "understanding" that, for example, the drug testing policy requires the concurrence of two "objective' supervisors that testing is warranted, and that testing results obtained from an "unfairly" administered test will be disregarded. But these hypotheses are not reflected in or required by the policy implemented.

The drug and alcohol policy, as originally implemented and as revised, is quite clear that current employees will be "required" to take medical exams, including substance screening, under the circumstances specified. The consequences of refusing a required test is another area of significant change from Respondent's past policy on drugs as embodied in its pre-existing Office Rules. Respondent contends that it did not mean "required" when it drafted "required" in the January 1987 policy, even though when it revised the policy, it chose to continue to label testing for certain employees as "required." Consequently, Respondent denies that a current employee's refusal to take a required drug test will have disciplinary consequences as a result of the refusal itself. However, Respondent admits that there has been no consensus by management on this point and the policy, by its terms, provides that employees refusing the test will be disciplined on the basis of their impaired performance or their behavior pursuant to the Standards of Conduct. The Standards of Conduct specifically list "insubordination" as an offense that "will result in disciplinary action." Therefore, it is logical for an employee to assume that if he or she refuses to take a required test ordered by the Respondent, he or she may be disciplined for insubordination pursuant to the explicit provisions of the company's Standards of Conduct. Respondent argues further on brief that its representations at the hearing and on brief as to the manner in which the drug policy will be administered with respect to current employees substantially reduce the significance of the change between the old Office Rules and the new policy. I seriously disagree. As noted above, Respondent's Publisher, Mr. Parkinson indicated that the written drug and alcohol policy was what employees could rely upon as being the company policy. Does Respondent expect to distribute or post to employees the entire record in this case so that they may have a comprehensive understanding of the drug and alcohol policy? I think not. The mere fact that the policy can be changed so easily to diminish its scope demonstrates that if one accepts Respondent's position, it can just as easily be made more stringent. I fully accept General Counsel's contention that the written policy is what the Board should deal with and that policy does constitute a significant, material and substantial change in the Guild working conditions that existed before January 1987.

The Respondent also argues that because of the growing national concern over drug usage in the workplace and the federal government's emphasis on establishing drug testing among private sector employers, it is important that clear rules be delineated for determining the extent to which a drug testing program must be negotiated with an exclusive representative prior to implementation. Based on established precedent, the decision to institute a drug test for employees represented by a union should not be considered a mandatory subject of bargaining because the test itself cannot settle any aspect of the employment relationship. Only the effects of the decision which have a substantial impact on terms and conditions of employment should be deemed mandatory subjects. Such direct effects would include the nature and extent of disciplinary penalties, including warnings, suspension and discharge related to the results of the drug test. Direct effects also would encompass potential benefits like the availability of drug rehabilitation programs or leaves of absence, with or without pay, to undergo drug therapy. Psychological concerns over the possible trauma related to being tested are too speculative and insubstantial to require bargaining. Likewise, test procedures and methodology, such as the laboratory used or cut-off levels for chemicals, and the type of analysis should not be mandatory subjects. I do not agree with these arguments. For the reasons set out above and based on the precedents cited, I find that implementation of Respondent's drug and alcohol policy is a mandatory subject of bargaining and absent any other defense, its unilateral implementation without bargaining was unlawful.

As pointed out by General Counsel, a determination that the components of the company's drug and alcohol testing policy are mandatory subjects of bargaining does not mean that Respondent, or any other employer, is barred from proposing and/or ultimately implementing such a policy. The issue here is not whether Respondent is justified in wanting a drug testing program, but is, simply, whether Respondent is obligated to bargain over it. Even the finding of a bargaining obligation does not prohibit the company from having a drug testing program, after agreement or impasse is reached. In fact, at the hearing The Guild's chief negotiator for its 1986 negotiations with Respondent testified that he believes an agreement undoubtedly could have been reached on the policy within four or five meetings, if bargaining had taken place.

Respondent's expert witness on national drug policy conceded that his assessment of Respondent's drug testing policy did not include any consideration whatsoever of the company's legal obligations arising from the National Labor Relations Act. The expert concluded that the national policy on drugs about which he testified would not be hampered by collective bargaining, but in fact would be enhanced by the employee involvement and knowledge which would result from a bargained policy.

E. Does the New Schedule of Discipline Unilaterally Implemented by Respondent Constitute an Independent Violation?

The new, fixed schedule of disciplinary penalties for drug and alcohol related offenses which was unilaterally implemented by the Respondent as an element of its substance abuse program constitutes an independent violation of Sections 8(a)(1) and (5) of the Act. Imposition of a system of specific disciplinary penalties constitutes a mandatory subject of bargaining. See e.g. RAHCO, Inc., 265 NLRB 235 (1982); Amoco Chemical Corp., 211 NLRB 618 (1974); Medicenter, supra, at 675. The new penalties so imposed include a three day suspension for first time possession on the premises, a five day suspension for consumption on the premises or for being impaired or under the influence, and discharge for distribution on the premises.

This formalized ladder of discipline represents a marked change from the Respondent's past practice. Previously, discipline had been handled on a case by case basis, in accordance with the principles of progressive discipline imposed by the "just cause" provision of the parties' agreement. No penalty schedule existed, with regard to any employee misconduct, drug related or otherwise. The Respondent's previous disciplinary practices had been often internally inconsistent and in no way tied to a specific penal code. Thus, the unilateral implementation of the disciplinary schedule constituted a material, substantial and significant change in the Respondent's disciplinary rules and practices.

Although some of Respondent's witnesses indicated that the new penalty schedule constituted just a guideline and would be enforced on a case by case basis considering mitigating factors, no such amelioration of the penalties is set out in the new written policy. For the reasons I have given above, I do not agree with this argument and position. I find that Respondent's unilateral implementation of disciplinary procedures as an enforcement mechanism for its unilaterally implemented drug and alcohol policy is as unlawful as the implementation of the policy itself. Peerless Publications, Inc. 283 NLRB No. 54 (1987); Tenneco Chemicals, Inc., 249 NLRB 1176 (1980).

F. Has the Guild Waived Its Right to Demand Bargaining Over Respondent's New Policy as it Affects Current Bargaining Unit Members?

1. Does the Parties Contract Require a Finding of Waiver?

Pursuant to well-established Board law, any waiver by a union of its statutory right to bargain -- whether by contract, past practice or inaction -- will not be inferred but must be "clear and Unmistakable." *fn13 Regarding any alleged waiver by contract, it is undisputed that during the parties' 26 bargaining sessions for the current agreement there were no proposals, counterproposals or agreements of any kind on any issue related to drugs and alcohol, or any related discipline, whether for current employees or prospective employees. Similarly, although there were two brief informal conversations in 1986 involving Nelson and Dennison during which the generic subject of drug testing arose, these discussions did not constitute proposals or bargaining, as Dennison himself conceded. To find waiver, the Board has required that a matter be fully discussed and explored during negotiations and "consciously yielded" by the Union. Pay n' Serve, 268 NLRB 1332 (1984); Elizabethtown Water Co,. 234 NLRB 318 (1978); TTP Corp., 190 NLRB 240 (1971).

There is no management rights clause or "zipper" clause from which a contractual waiver by the Union of its right to bargain over the drug and alcohol policy possibly could be inferred. There is also no language in the agreement to support a finding of contractual waiver. The contract contains a section on health and safety, but Dennison acknowledged that drug testing was not raised during bargaining on this section at all. To the extent that the health and safety language refers to the Publisher's "final decision-making authority regarding recommendations on safety or health matters," the section is referring only to recommendations of a Joint Safety Committee and has no bearing on the company's implementation of a drug and alcohol policy or any other policy. Dennison testified that similar language has been used by the parties regarding other joint committees' recommendations.

On the issue of prospective employees, the parties' agreement contains, as noted earlier, a provision specifically prohibiting discrimination in employment covering "all phases of employment including, but not limited to: recruiting and recruiting advertising; [and] testing and hiring *fn14 This provision documents an agreement by the parties that the Union has a role in the process by which Respondent hires and tests applicants, a role which is fully grievable under the contract. Since, for example, urinalysis can detect pregnancy, Respondent's pre-employment medical exam procedures could result in sex-based discrimination in hiring. Under the parties' contract, monitoring such potential discrimination would clearly be within the Union's rights and obligations as the Units' collective bargaining representative. Respondent's recognition that drug testing for prospective employees is not outside the Guild's area of responsibility is illustrated by the fact that it notified the Union of the pre-employment policy. As Dennison testified, the company has never before notified a union regarding a pre-employment hiring criterion. Moreover, the Respondent has already bargained with at least two unions over pre-employment hiring criteria, with the result that certain prospective employees have been released from the testing requirement. I find that the Guild has not waived its right to demand bargaining on the issue of Respondent's drug and alcohol policy because of any contractual provisions.

2. Has the Guild Waived Its Bargaining Rights by Failing to Make a Good Faith Bargaining Demand?

Respondent argues that the Guild has waived its right to demand bargaining over the new drug and alcohol policy because of the Guild's: (1) contemporaneous denunciation of testing and characterization of a chemically-free workplace as a "boring place to work"; (2) failure to specify any provision of the policy on which it sought to bargain; (3) failure to make any counter-proposal; (4) refusal to discuss the policy at the Inter-Plant Council meeting; and (5) failure to demand bargaining at a specific time or place.

As noted earlier, the Union made a demand to bargain over all aspects of the new policy beginning with Respondent's first announcement of the policy in December 1986 and thereafter continued to make such requests. Although Respondent argues that the Union waived its bargaining rights by failing to offer a "counterproposal," Dennison conceded that there was not ever a proposal "on the table" to which to offer a counterproposal.

With respect to the argument that the Union never made a bargaining request naming a specific time and place, the Union's December 17, letter first demanding bargaining ended: "We stand ready to meet with you for that purpose [bargaining] at a time and place of mutual convenience." I find that this letter put the burden on Respondent to suggest a time and place if it desired bargaining. Of course, the fact is, it simply refused to bargain.

With respect to Respondent's argument about the Union's inflexibility at the March Inter-Plant Council meeting, I find the Union's action does not amount to waiver. In flatly refusing to bargain with the Guild in the face of repeated bargaining demands, the Respondent precluded any opportunity for bargaining. A willingness to "discuss" but not to "bargain" does not satisfy the Employer's obligations under the Act. As the Board concluded in Parents and Friends of the Specialized Living Center, 286 NLRB No. 46 (1983), where an employer similarly offered to "meet and confer" but not to bargain, the offer is "conditional" and does "not constitute a good-faith offer to bargain to which the Union was entitled." The Union's refusal to accept such a conditional offer does not satisfy the employer's bargaining duty.

Lastly, Nelson's article of December 15, 1986, (which I personally find to be an attempt to be humorous) critical of Respondent's new policy, even if accepted to be the Union's initial position on the policy, does not relieve the Respondent from attempting to bargain over the issue. Obviously, if the Union's position proved to be intractable, impasse could be declared and the policy implemented lawfully.

G. Did Respondent's Refusal to Provide Information About Prospective Employees Violate the Act?

On August 19, 1987, after the Union's unfair labor practice charge regarding Respondent's unilateral implementation of its drug and alcohol policy had been administratively deferred to arbitration, the Union filed a grievance alleging, in part, violations of Article XI and Sections 5, 8 and 9 of Article XIV. Shortly thereafter, on September 16. Respondent notified the Union, after the fact, that it had implemented revisions to the drug and alcohol policy.

On October 29, 1987, after the union had received this notice from the company, it requested certain information pertaining to prospective employees affected by the policy. Specifically, the Guild requested names, addresses and telephone numbers of all prospective new hires, as identified by the Publisher in its drug and alcohol policy, along with indications of who was requested to undergo a pre-employment medical exam, who was requested to undergo a drug and alcohol test, who has refused to submit to the test, and whether the reasons for not hiring a prospective employee were due to any issue related to the drug and alcohol policy.

Respondent, by letter dated November 16, refused to comply with the information request for the reasons that (1) the company had already refused to submit the issue of pre-employment testing to an arbitrator; (2) that the information requested was not "material" to the Guild's function as representative; and (3) that "most" of the requested information was confidential and could not be disclosed. Within days, a second unfair labor practice charge was filed to allege an unlawful refusal to provide the information.

As part of its statutory obligation to bargain in good faith, Respondent must supply information that is related to the Union's performance of its functions as the exclusive collective bargaining representative for unit employees. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). Without the requested information, the Guild cannot perform its function of administering and policing the collective bargaining agreement. This is the foundation upon which the duty to provide information is premised. The Guild cannot possibly determine whether the company's hiring and testing procedures have a discriminatory impact upon any of the classifications specified in the contract unless the Union can find who is being tested and who is, or is not, being hired. The parties negotiated Article XIV, Section 8, one of the violations alleged in the grievance, during the give and take of bargaining. For Respondent now to contend that, although negotiated and agreed upon, this contract provision cannot be monitored nor enforced, is clearly a violation of the duty to bargain. Just because Respondent had taken a position that the grievance as to prospective employees is not arbitrable does not mean that the information is not relevant to the Guild in seeking enforcement of the contract through other means.

In Stephen Oderwald, Inc. 284 NLRB No. 40 (1987), the Board held that even for information requests pertaining to matters outside the unit, it is only necessary to show that there is "some relationship to a subject of collective bargaining." 284 NLRB slip op. at 5, citing Associated General Contractors of Calif., 242 NLRB 891 (1979). See also Brooklyn Union Gas Co., 220 NLRB 189 (1975). As I have found drug testing for prospective employees is a mandatory subject for bargaining, the information requested is presumptively relevant and necessary not only for policing the contract, but also for bargaining. See Connecticut Light and Power Co., 229 NLRB 1032 (1977), enf. den. on other grounds, 573 F.2d 101 (1st Cir. 1978).

In contending that its refusal to provide the requested information is compelled by confidentiality interests, Respondent has the burden of proof. Washington Gas Light Co., 273 NLRB 116 (1984). In its refusal letter, the company cites Detroit Edison v. NLRB, 440 U.S. 301 (1979) as support for its refusal. However, Detroit Edison represents a narrow exception to the Board's well-established policy of liberally construing the relevancy of requested information, and Respondent's refusal does not fit within this narrow parameter. See Blue Cross and Blue Shield of New Jersey, Inc., 288 NLRB No. 50, slip op. at 6 (1988). In Detroit Edison, the issue was not whether the Employer was obliged to disclose requested information at all, but whether disclosure should, or could, be provided within certain conditions designed to accommodate the Employer's concerns about confidentiality and privacy.

In contrast to the Employer's proposed compromises in Detroit Edison is the situation here, wherein Respondent flatly refused all information, never proposing any type of modified compliance. The importance of this distinction is confirmed by E.W. Buschman Co., 277 NLRB 189 (1985), in which the Board rejected the Employer's confidentiality defense because of the Employer's failure to distinguish between the kinds of information requested when refusing the request. 277 NLRB at 191. Accord E. I. DuPont De Nemours & Co., 276 NLRB 335 (1985) (Board ordered employer to furnish information alleged to be confidential pursuant to agreed upon conditions); Johns-Manville Sales Corp., 252 NLRB 368 (1980) (employer required to provided information, as excised, to accommodate union's request.)

The Employer's reliance on Minnesota Statute No. 181.95 et seq. (1987) in refusing the Guild's information request is also misplaced. While the statute prohibits unconsented disclosure of certain test related information it does not bar the disclosure of the names of individuals tested. From these names. The Guild could then solicit waivers from the tested individuals. Further, the statute expressly recognizes the impact of a collective bargaining relationship upon a drug testing policy by allowing the use of test results in arbitrations pursuant to collective bargaining agreements. Even more significantly, the Statute provides that the confidentiality provisions:

. . . shall not be construed to limit the parties to a collective bargaining agreement from bargaining and agreeing with respect to a drug and alcohol testing policy that meets or exceeds and does not otherwise conflict with, the minimum standards and requirements for employee protection provided

For the reasons set out above, and taking the cited statute into consideration, I find that Respondent has engaged in an unfair labor practice by failing to supply to the Union the names, addresses and telephone numbers of all persons to whom conditional offers of employment have been made for Guild bargaining unit positions since January 1987, identifying those persons who have refused to submit to pre-employment drug and alcohol screening.

Upon the foregoing findings of fact and upon the entire record, I hereby make the following:

Conclusions of Law

1. Respondent, Star Tribune, A Division of Cowles Media Co., is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

2. The Newspaper Guild of the Twin Cities, Local 2, The Newspaper Guild, AFL-CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act.

3. At all times material to this proceeding, the Respondent has recognized the Union as the exclusive representative of its employees in the following unit:

All of the employees of the Publisher (except those herein excluded) employed in the News and Editorial Departments of the Minneapolis Star and Tribune including the Sunday Tribune, employed in the Sales Development/Promotion Department doing art and creative work, and all Metro District Sales Managers in the Metro Circulation Department, and no others.

4. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(5) and (1) of the Act by refusing to bargain with the Union as requested, by its January 1987 unilateral implementation of the drug and alcohol policy, by its September 1987 unilateral implementation of a revised drug and alcohol policy, and by its October 1987 refusal to furnish the Union requested information.

5. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Sections 2(6) and (7) of the Act.

6. Respondent did not violate the Act except as specifically found above.

The Remedy

Having found that Respondent has engaged in unfair labor practices, it is recommended that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act.

It is further recommended that Respondent be ordered to furnish the Union the information requested in October 1987, supplying the names, addresses and telephone numbers of those person to whom it has conditionally offered employment in the Guild bargaining unit since January 1987, identifying those persons who have refused to submit to drug and alcohol screening. Respondent should also be ordered to rescind any discipline imposed upon current employees in Guild bargaining unit positions as a result of its drug and alcohol policy and related disciplinary schedule, and to make such employees whole for any losses suffered therefrom.

It is further recommended that Respondent be ordered to offer employment to any individuals whose offers of employment to Guild bargaining unit positions were withdrawn because of the pre-employment drug and alcohol policy, and to make such individuals whole *fn15 for any losses suffered as a result of the policy, unless the Respondent can demonstrate on an individual basis that the individual would have been denied employment for some lawful non-discriminatory reason.

It is further recommended that Respondent be ordered to: (1) revoke its policy on pre-employment medical examinations, including the drug and alcohol screening, as implemented in January 1987 and as revised in September 1987, as it pertains to prospective employees for Guild bargaining unit positions; (2) revoke its policy on medical examinations for current employees, including the drug and alcohol screening, as implemented in January 1987 and revised in September 1987, as it pertains to employees in Guild bargaining unit positions; and (3) revoke its schedule of discipline for substance abuse offenses, as implemented in January 1987 and as revised in September 1987, as it pertains to employees in Guild bargaining unit positions.

It is further recommended that Respondent be ordered to, upon request, bargain with the Union in good faith concerning pre-employment medical exams, including drug and alcohol screening; medical examinations for current employees, including drug and alcohol screening; and disciplinary schedules for substance abuse offenses; insofar as prospective employees for Guild bargaining unit positions or current members of the bargaining unit are concerned.

Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: *fn16

ORDER

Respondent, Star Tribune, A Division of Cowles Media Co., its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

a. Refusing to bargain in good faith with the Union, upon request, with respect to its drug and alcohol policy.

b. Unilaterally, without giving prior notice to or affording the Union an opportunity to bargain, implementing and revising its drug and alcohol policy, including its drug and alcohol screening provisions, medical examination provisions and its schedule of discipline for substance abuse offenses.

c. Refusing to comply with the information request, as modified herein, made by the Union in October 1987.

d. In any like or related manner, interfering with, restraining or coercing employees in the exercise of rights guaranteed by Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

a. Upon request, bargain in good faith with the Union with respect to its drug and alcohol policy, to include all of the components of the policy as it pertains to current or prospective Guild bargaining unit members.

b. Revoke its: (1) policy on pre-employment medical examinations, including the drug and alcohol screening, as implemented in January 1987 and as revised in September 1987, as it pertains to prospective employees for Guild bargaining unit positions; (2) policy on medical examinations for current employees, including the drug and alcohol screening, as implemented in January 1987, and as revised in September 1987, as it pertains to employees in Guild bargaining unit positions; and (3) schedule of discipline for substance abuse offenses, as implemented in January 1987, and revised in September 1987, as it pertains to employees in Guild bargaining unit positions.

c. Furnish the Union with the information requested in October 1987, supplying the names, addresses and telephone numbers of persons to whom conditional offers of employment in the Guild bargaining unit have been made since January 1987, identifying those persons who have refused to submit to drug and alcohol screening.

d. Rescind any discipline imposed upon current employees in Guild bargaining unit positions as a result of its drug and alcohol policy and related disciplinary schedule, and make such employees whole for any losses they may have suffered therefrom, in the manner set forth in "Remedy" section of this decision.

e. Offer employment to any individuals whose offers of employment to Guild bargaining unit positions were withdrawn because of the pre-employment drug and alcohol policy, and to make such individuals whole for any losses suffered as a result of this policy, in the manner set forth in the "Remedy" section of this decision, unless Respondent can demonstrate on an individual basis that the individual would have been denied employment for some lawful non-discriminatory reason.

f. Preserve, and upon request of the Board or its agents, make available all payroll and other records necessary or helpful in determining the amounts necessary to make employees whole under the terms of this Order.

g. Post at its Minneapolis, Minnesota facilities copies of the attached notice marked Appendix. *fn17 Copies of said notice on forms provided the Regional Director for Region 18, after being duly signed by its authorized representative, shall be posted immediately upon receipt and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material.

h. Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith.

Dated, Washington, D.C. November 3, 1988.

APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government

The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize

To form, join, or assist any union

To bargain collectively through representatives of their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected concerted activities.

WE WILL NOT refuse to bargain in good faith with the Newspaper Guild of the Twin Cities, Local 2, with respect to our drug and alcohol policy as it pertains to current Guild bargaining unit employees.

WE WILL NOT unilaterally, without giving prior notice to or affording the Guild an opportunity to bargain, implement and revise our drug and alcohol policy as it pertains to current Guild bargaining unit employees, including its drug and alcohol screening and medical examination provisions and its schedule of discipline for substance abuse offenses.

WE WILL NOT refuse to comply with the information request, as modified, made by the Guild in October 1987.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act.

WE WILL, on request, bargain in good faith with the Guild with respect to our drug and alcohol policy as it pertains to current Guild bargaining unit employees and put into writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit:

all employees of the Publisher (except those herein excluded) employed in the News and Editorial Departments of the Minneapolis Star and Tribune including the Sunday Tribune, employed in the Sales Development/Promotion Department doing art and creative work, and all Metro District Sales Managers in the Metro Circulation Department, and no others.

WE WILL revoke our drug and alcohol policy for current employees implemented in January 1987 and revised in September 1987, including the drug and alcohol screening and medical examination provisions and the schedule of discipline for substance abuse offenses, as it pertains to employees in Guild bargaining unit positions.

WE WILL furnish the Guild with the information requested in October 1987, supplying the names, addresses, and telephone numbers of persons to whom conditional offers of employment in the Guild bargaining unit have been made since January 1987, identifying those persons who have refused to submit to drug and alcohol screening.

WE WILL rescind any discipline imposed on current employees in Guild bargaining unit positions as a result of our drug and alcohol policy and related disciplinary schedule, and make such employees whole for any losses they may have suffered therefrom.

WE WILL remove from the files of employees notices, reports, or memoranda resulting from the implementation of the January 1987 drug and alcohol policy or the revised September 1987 policy.

STAR TRIBUNE, A DIVISION OF COWLES MEDIA CO.

(Employer)

Dated

(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 110 South Fourth Street, Minneapolis, Minnesota 55401-2291, Telephone 612 -- 348 -- 1793.

APPENDIX Notice to Employees Posted by Order of the National Labor Relations Board An Agency of the United States Government

The National Labor Relations Board has found that we violated National Labor Relations Act and has ordered us to post and abide by this notice.

Section 7 of the Act gives employees these rights:

To organize

To form, join, or assist any union

To bargain collectively through representatives of their own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected concerted activities.

WE WILL NOT refuse to bargain in good faith with The Newspaper Guild of the Twin Cities, Local 2, with respect to our drug and alcohol policy.

WE WILL NOT unilaterally, without giving prior notice to or affording the Guild an opportunity to bargain implement or revise our drug and alcohol policy, including its drug and alcohol screening provisions, medical examination provisions and its schedule of discipline for substance abuse offenses.

WE WILL NOT refuse to comply with the information request, as modified, made by the Guild in October 1987.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act.

WE WILL, upon request, Bargain in good faith with the Guild with respect to our drug and alcohol policy, to include all of the components of the policy as it pertains to current or prospective Guild bargaining unit members.

WE WILL revoke our policy on pre-employment medical examinations, including drug and alcohol screening, as implemented in January 1987 and as revised in September 1987, as it pertains to prospective employees for Guild bargaining unit positions.

WE WILL revoke our policy on medical examinations for current employees, including drug and alcohol screening, as implemented in January 1987 and as revised in September 1987, as it pertains to employees in Guild bargaining unit positions.

WE WILL revoke our schedule of discipline for substance abuse offenses, as implemented in January 1987 and as revised in September 1987, as it pertains to employees in Guild bargaining unit positions.

WE WILL furnish the Guild with the information requested in October 1987, supplying the names, addresses and telephone numbers of persons to whom conditional offers of employment in the Guild bargaining unit have been made since January 1987, identifying those persons who have refused to submit to drug and alcohol screening.

WE WILL rescind any discipline imposed upon current employees in Guild bargaining unit positions as a result of our drug and alcohol policy and related disciplinary schedule, and make such employees whole for any losses they may have suffered therefrom.

WE WILL offer employment to any individuals whose offers of employment to Guild bargaining unit positions were withdrawn because of our pre-employment drug and alcohol policy, and make such individuals whole for any losses suffered as a result of this policy, unless we can demonstrate on an individual basis that the individual would have been denied employment for some lawful, non-discriminatory reason.

STAR TRIBUNE, A DIVISION OF COWLES MEDIA CO.

(Employer)

Dated

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 110 South 4th Street, Minneapolis, MN 55401 (Telephone No. (612) 349-5357.

 
Notes:

*fn1a Johnson-Bateman Co., 295 NLRB No. 26, issued today.

*fn1b As I understand the Respondent's position, it has not attacked the line of Board authority concerned with requests for information related to possible discrimination in hiring, and it concedes that current employees have an interest in working in a racially and sexually integrated workplace. Instead, it argues that the Guild's information request at issue here had no basis in such concerns. As explained in *fn2b below, I do not find that argument well taken.

*fn2a The American Federation of Labor and Congress of Industrial Organizations, the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL -- CIO, the Chamber of Commerce of the United States of America, the Equal Employment Advisory Council, and the Council on Labor Law Equality appeared as amici curiae.

*fn2b Contrary to the Respondent's contention, I agree that in making its request for information, the Guild adequately indicated its interest in looking at the applicant drug testing as a possible violation of the nondiscrimination clause in the collective-bargaining agreement. Thus, the Guild's initial information request referred to the pending grievances, which themselves asserted an alleged violation of art. XIV, SEC. 8, the nondiscrimination clause. Furthermore, at the hearing the Guild's representatives made its focus on the discrimination aspect even clearer; but the Respondent still took the position that it was not obligated to turn over the information. See Barnard Engineering Co., 282 NLRB 617, 620, 621 (1987); Ohio Power Co., 216 NLRB 987, 990 fn. 9 (1975), enfd. 531 F.2d 1381 (6th Cir. 1976).

*fn3a In Johnson-Bateman Co., supra, we found that drug testing of current employees is a mandatory subject of bargaining.

*fn3b Pfizer, Inc., 268 NLRB 916, 918 (1984), enfd. 763 F.2d 887 (7th Cir. 1985); Postal Service, 289 NLRB No. 123, slip op. 3 (July 19, 1988).

*fn4 The Respondent also excepted to the judge's finding that the Guild had not waived its right to bargain over the implementation of the applicant drug and alcohol testing policy. Because we conclude that applicant drug and alcohol testing is not a mandatory subject of bargaining, it is unnecessary to resolve the issues raised by this exception.

*fn5 All dates are in 1987 unless otherwise indicated.

*fn6 The judge also relied on Rockwood & Co., 285 NLRB No. 138 (Sept. 25, 1987), to support his conclusion that applicant drug and alcohol testing is a mandatory subject of bargaining. We note, however, that in Rockwood, the Board in the absense of exceptions adopted pro forma the judge's finding in this regard.

*fn7 Pittsburgh Plate Glass Co., 177 NLRB 911 (1969).

*fn8 Sec. 2(3) of the Act provides:

*fn9 Sec. 8(a)(5) provides that it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)." Sec. 8(d) defines "to bargain collectively" as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment . . . ." Sec. 9(a) states: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment."

*fn10 Our conclusion that applicants are not employees for purposes of Sec. 8(a)(5) does not affect the established body of law that holds that the anti-discrimination provisions of Sec. 8(a)(3) of the Act forbid discrimination against applicants for employment. Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).

*fn11 We note that the Guild does not contend that applicants for Guild unit positions are bargaining unit members. The Guild asserts, rather, that the obligation to bargain about applicant drug and alcohol testing arises from the Guild's status as exclusive bargaining representative of current unit employees. The Guild argues that the duty to bargain with an exclusive representative about terms and conditions of employment of unit employees extends to conditions of hire, such as the Respondent's applicant drug and alcohol testing requirement. We reject this argument in light of the Court's analysis in Pittsburgh Plate Glass finding that the duty to bargain with an exclusive representative about terms and conditions of employment of unit employees does not extend to pensioners' benefits. Although no one has suggested that testing of applicants should be a mandatory subject of bargaining on the grounds that applicants are actual or quasi unit members, we note that the Court in Pittsburgh Plate Glass found that one reason for not including retirees in the unit was the potential for severe internal conflicts that would impair the union's ability to function and would disrupt the process of collective bargaining. Pittsburgh Plate Glass, supra at 179. These same concerns are present with regard to inclusion of applicants.

*fn12 See, e.g., B.L.K. Steel, Inc., 245 NLRB 1347, 1353 (1979); Western Drug, 231 NLRB 890 (1977), enfd. in relevant part 600 F.2d 1324 (9th Cir. 1979).

*fn13 See sec. III,C,1, pars. 13 and 14 of the judge's decision.

*fn14 404 U.S. at 182.

*fn15 274 NLRB at 1070 (emphasis added) (fns. omitted). Applying this standard, the Board held that the employer did not violate the Act by refusing to bargain with the union over a summer help program under which the employer hired college-age children of unit and non-unit employees to perform both unit and non-unit work on a temporary basis during the summer. The Board concluded that because the program did not reduce the regular hours of work available to unit employees and because unit employees were given priority for any remaining overtime, the program did not "vitally affect" their terms and conditions of employment.

*fn16 In any event, there is no evidence to support the judge's speculation in this regard. The record indicates that only one applicant for a Guild-unit position refused to submit to the drug and alcohol screen and as a consequence was not hired. No applicant for a Guild-unit position has tested positive and been denied employment as a result of the applicant drug testing policy. Thus, the General Counsel has failed to establish that individuals who fail or refuse a drug test would vitally affect the work force or quality of work, that unit employees have had future job opportunities diminished for any reason, that the reputation of the newspaper has changed, or that the reputations of unit employees have been adversely affected by the institution of the applicant drug and alcohol testing policy. There has been no showing that as a result of this policy less qualified individuals were hired. No evidence has been presented that applicant drug testing will adversely affect the quality or reputation of the newspaper or its staff in the future. Under these circumstances, the alleged impact is speculative and insubstantial and therefore fails to meet the "vitally affects" standard as discussed in Pittsburgh Plate Glass and subsequent Board law.

*fn17 Evidence was introduced at the hearing that drug and alcohol testing procedures for applicants may have been discriminatorily implemented on the basis of sex. A male applicant testified that he had submitted an unobserved urine sample, while a female applicant testified that she was required to submit a urine sample while partially unclothed and observed by a nurse.

*fn18 Jubilee Mfg. Co., 202 NLRB 272 (1973), affd. sub nom. Steelworkers, 504 F.2d 271 (D.C. Cir. 1974).

*fn19 239 NLRB 106, 107 fn. 13, citing Farmers' Cooperative Compress, 169 NLRB 290 (1968), enfd. on this point sub nom. Packinghouse Workers, 416 F.2d 1126 (D.C. Cir. 1969), cert. denied 396 U.S. 903 (1969).

*fn20 To the extent that Bendix, White Farm, and East Dayton stand for this proposition they remain good law. We note in each of these cases the requested information about applicants was sought in the context of discrimination concerns by the union about the employer's hiring practices. To the extent that these cases can be read more broadly to provide for furnishing information regarding hiring practices in all circumstances, we do not espouse this view.

*fn21 Minn. Stat. SEC. 181.954, subd. 2 (1987), provides in pertinent part:

*fn22 Minn. Stat. SEC. 181.98, subd. 1 (1987). Moreover, to the extent that the Minnesota statute permits the Respondent to engage in conduct that is arguably prohibited by the National Labor Relations Act, the Board has primary jurisdiction over that conduct, and the state statute is preempted by the Act. San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959).

*fn23 In its joint brief with the AFL -- CIO in opposition to the Respondent's exceptions, the Guild specifically declined to except to this portion of the judge's recommended remedy and Order. The Guild characterized the language in the judge's recommended Order as "an apparent accommodation" to the DATWA statutory provision prohibiting unconsented disclosure of "test result reports and other information acquired in the drug and alcohol testing process."

*fn24 Backpay is to be computed in the manner prescribed in F.W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB No. 181 (May 28, 1987).

*fn25 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." CONCURBY: STEPHENS (In Part)

--------------------------------------ALJ'S NOTES-------------------------------------------------

*fn1 All dates are in 1987 unless otherwise specified.

*fn2 At least three witnesses offering testimony to this fact relocated families from out-of-state, selling and buying homes in the process. As two witnesses noted, they would never have put a house on the market and moved their families to another state if they had been led to believe that their offers were contingent on anything. In its reply brief, Respondent asserts that the record supports a finding that newly hired employees from out-of-state were exempt from the testing requirement. I cannot find in the record support for this purported exemption.

*fn3 In LeRoy Machine, the Board found a contractual waiver, so the employer's implementation of the physical exam policy was not unlawful. However, this does not affect the Board's holding that the policy is a mandatory subject.

*fn4 Austin-Berryhill, Inc., 246 NLRB 1139 (1979); Underwood Hair Adaption Process, Inc., 242 NLRB 1017 (1979); Medicenter, Mid-South Hospital, 221 NLRB 670, 675 (1975).

*fn5 Gulf Power Co., 156 NLRB 622, 625 (1966), enfd. 384 F.2d 822, 825 (5th Cir. 1967); Boland Marine & Mfg. Co., 225 NLRB 824, 829 (1976), enfd. 562 F.2d 1259 (5th Cir. 1977).

*fn6 Drug testing for incumbent employees has already been found to be a mandatory subject of bargaining under the Railway Labor Act. See Local 246 v. Southern Calif. Edison, 3 IER Cases 367 (9th Cir. 1988); Teamsters v. Southwest Airlines, Inc., 842 F.2d 794 (5th Cir. 1988); Brotherhood of Locomotive Engineers v. Burlington Northern Railroad, 838 F.2d 1102 (9th Cir. 1988).

*fn7 Murphy Diesel Company, 184 NLRB 757, 763 (1970), enfd. 454 F2d. 303 (7th Cir. 1971); Peerless Food Products, 236 NLRB (1978); United Technologies Corp., 274 NLRB 1069, 1070 (1985)

*fn8 United Technologies Corp., 274 NLRB at 1070; Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964).

*fn9 Rust Craft Broadcasting of New York, Inc., 225 NLRB 327 (1976); Bureau of National Affairs, Inc., 235 NLRB 8 (1978).

*fn10 The Trading Port, Inc., 224 NLRB 980 (1976)

*fn11 Wabash Transformer Corp., 215 NLRB 546 (1974)

*fn12 Respondent also cites its Employee Assistance Program (EAP) in its argument that the drug and alcohol policy for current employees does not constitute a significant change in employees' working conditions. Employees of the company have been able to participate in the EAP since its inception in approximately 1975. Since that time, Respondent's EAP has expanded to offer a wide range of services addressing not only substance abuse problems, but also legal, financial, medical, emotional and domestic concerns. The EAP, a program which has been implemented and administered with the cooperation, encouragement and support of the Union, has never contained any component for drug or alcohol testing or discipline. The EAP continues to exist as a program offered by the company, independent of Respondent's drug and alcohol policy.

*fn13 Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). Accord Owens-Corning Fiberglas Corp., 282 NLRB No. 85 (1987) Ciba-Geigy Pharmaceuticals Div., 264 NLRB 1013, 1017, enfd. 722 F.2d 1120 (3rd Cir. 1983).

*fn14 The categories upon which discrimination is prohibited are: race, color, national origin, religion, marital or parental status, disability, status with regard to public assistance political affiliation, sex, sexual preference or age.

*fn15 See generally, Ogle Protection Service, 183 NLRB 682 (1970), enforced 444 F.2d 502 (6th Cir. 1971). Appropriate interest should be added.

*fn16 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.

*fn17 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."