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LOCKHEED SHIPBUILDING AND CONSTRUCTION COMPANY
vs.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 46, AFL-CIO INTERNATIONAL BROTHERHOOD OF BOILLERMAKERS, LOCAL 104, AFL-CIO CLARENCE SPURGEON, an Individual GEORGE O. McDONNELL, an Individual JAMES O. BRANSON, an Individual
 
Case:
[NO NUMBER IN ORIGINAL]
 
Location:
NATIONAL LABOR RELATIONS BOARD
 
Date:
December 10, 1984
 
OPINION:

On 31 August 1982 Administrative Law Court James S. Jenson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Parties filed an answering brief to the Respondent's exceptions and a motion to strike affidavits attached to the Respondent's brief. *fn2

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the Court's rulings, findings, *fn3 and conclusions and to adopt the recommended Order as modified.

We agree with the Court that the Respondent violated Section 8(a)(5) of the Act by implementing a pulmonary function and audiometric medical screening program for the purpose of denying employment to new employees, without bargaining about the utilization of such results from the program with IBEW Local 46 and Boilermakers Local 104.The Respondent contends, however, in its Exceptions 12 and 13, that the recommended Order of the Court is overly broad, in that it would affect medical programs already in usage; and that it orders Lockheed to bargain about the implementation of medical screening programs generally, as opposed to the implementation and utilization, of such programs for the purpose of terminating new employees or refusing to hire applicants for employment. We find merit in these exceptions. It is clear that the Respondent had informed the Unions of its desire to establish such a program, but for the stated purpose of enabling the Respondent to properly place new employees in jobs within the employees' medical limitations. Thus, the understanding was that the results of such tests would not be used to "wash out," screen, or terminate employment to the tested employees, but only to establish "baseline data" for the new employees. The Unions acquiesced in the program, requesting only that a copy of the test results be furnished to each of the tested employees.

The record is also clear that the Respondent currently has in place with the Unions' approval certain testing programs, including those in "leadbonding" and "toxic paints." There was no evidence presented, however, that these programs had been utilized to deny employment to, or terminate, any of the Respondent's employees.

While the conclusions of the Court make it clear that the Respondent's violation rests in its use of the medical screening programs for the purpose terminating new employees or refusing to hire applicants for employment, we find that his recommended Order and notice are too restrictive. Accordingly, we shall modify the Order and notice to conform with his conclusions.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law Court as modified below and orders that the Respondent, Lockheed Shipbuilding and Construction Company, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

3. Substitute the following for paragraphs 1(a) and (b).

"(a) Refusing to bargain collectively regarding the implementation and/or utilization of a medical screening program for the purpose of terminating new employees and/or refusing to hire applicants for employment.

"(b) Discharging or refusing to hire any person for failure to pass a unilaterally imposed pulmonary function or audiometric medical screening program."

2. Substitute the attached notice for that of the administrative law Court.

ALJ: JAMES S. JENSON

Statement of the Case

JAMES S. JENSON, Administrative Law Court: This case was heard in Seattle, Washington, on January 21, 1982. The initial consolidated complaint issued on March 31, 1981, pursuant to charges filed in Case Nos. 19-CA-13226 and 19-CA-13298 on February 10 and 27, respectively. A second consolidated complaint issued on August 17, 1981 following the filing of the charge in Case No. 19-CA-13741 on July 20, 1981. The third consolidated complaint issued on December 28, 1981, following the filing of the charge in Case No. 19-CA-14066 on November 10, 1981. The third consolidated complaint alleges, in substance, that the Respondent unilaterally instituted a medical screening program for new employees, and refused employment to five individuals after undergoing the screening program, in violation of Section 8(a)(5) and (1) of the Act. The Respondent denies it violated the Act, and contends there was notice, bargaining and agreement over the implementation of the medical screening program and its effects, or that the Charging Parties waived and/or acquiesced in its right to administer the tests and to terminate individuals whose pulmonary conditions could not be accommodated. The implementation of the tests, Respondent claims, are completely consistent with applicable laws and regulations, the collective-bargaining agreement and the past practices. All parties were afforded full opportunity to appear, to introduce evidence and to examine and cross-examine witnesses. Briefs were filed by the General Counsel, the Respondent and the Charging Parties, all of which have been carefully considered.

Upon the entire record, including the demeanor of the witnesses, and having considered the post-hearing briefs, I make the following:

Findings of Fact

I. Jurisdiction

It is admitted and found that the Respondent is engaged in the business of operating a shipyard in Seattle, Washington, and that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

II. The Labor Organizations Involved

It is admitted and found that International Brotherhood of Electrical Workers, Local 46, AFL-CIO and International Brotherhood of Boilermakers, Local 104, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. The Setting

Respondent, through membership in the Pacific Coast Shipbuilders Association, and the Pacific Coast Metal Trades District Council, a bargaining group for various area metal trades councils and international unions, including IBEW Local 46 and Boilermakers Local 104, have been parties to a series of collective-bargaining agreements, the most recent agreement, herein called Pacific Coast Master Agreement, being effective from July 1, 1980 until June 30, 1983. *fn1 Pertinent sections of the Pacific Coast Master Agreement are set forth below:

Article 3.4 Hiring:

(c) The Employer retains the right to reject any job applicant referred by the Unions. The Employer may discharge any employee for just and sufficient cause . . . .

Article 14. Reporting Pay and Minimum Pay

14.1 Employees starting a shift or called and starting to work after the starting time of a shift shall receive not less than four (4) hours pay for the first period of the shift; and if required to continue on second period of the shift, they shall receive pay for a full shift.

14.3 Employees required to report for work and not used shall receive four (4) hours straight time pay.

Article 16. Safety, Sanitation, Ventilation and Physical Examination

16.1 The Employer will exert every reasonable effort to provide and maintain safe working conditions and shall comply with all federal and state Safety and Health Laws and Regulations. The Unions will cooperate to that end and encourage their members to work in a safe manner. . . .

16.10 Physical Examination: There shall be no Doctor's physical examination nor age limit, except as required by law. Unless required by law, no employee shall be compelled to pay hospital or examination fees in the course of employment or as a condition to secure employment.

16.11 Where employees are assigned to work in confined spaces as described by OSHA for shipbuilding, ship repairing and ship scrapping. . . ., frequent checks for the employees' safety shall be made. . . .

16.12. . . Where conditions of work are such as to require special protective devices and equipment in order to protect employees from injury, such devices and equipment will be supplied by the Employer at its expense. . . .

31. Effective Date and Duration of Agreement

31.3 All existing practices, customs, understandings or local agreements of interpretation or other local agreements of any nature whatsoever, whether expressly covered by the Master Agreement or otherwise, will continue in effect unchanged until June 30, 1983, except as specifically modified as provided herein or by mutual agreement between the parties.

The complaint alleges that on January 5, 1981, Respondent, without prior notice to the Unions, "instituted a medical screening program for new employees," and thereafter refused to employ five individuals after they had undergone the screening program. At the conclusion of the hearing, the General Counsel stated its position to be that the Respondent could continue administering the pulmonary function and hearing testing programs involved herein, for the purpose of determining "baseline data," but that the test scores or results could not be used to terminate or refuse to employ anyone. The Charging Parties appear to concur in this position. *fn2

The record shows that in the 1974 negotiations, management proposed adding a physical examination provision to the Pacific Coast Master Agreement. That proposal was withdrawn. During the 1980 negotiations, management proposed to change the no physical examination clause in the old contract to permit physicals. The proposal read as follows:

(a) Applicants for employment may be required to be examined by a physician selected by the Company. The expense of such examination will be borne by the Company. The purpose of such examination shall be to determine the physical fitness of the applicant to safely and efficiently perform the work of the classification for which the applicant is applying.

(b) The employer shall have the right to require a doctor's medical examination of an employee when, in the employer's opinion, the nature of the work assignment could jeopardize the safety and health of the employee or the employee's co-workers. Failure of the employee to pass the medical examination based on the doctor's evaluation of the employee's condition as related to the work assignment shall result in reassignment of duties (if possible), sick leave (if a temporary condition) or termination. The cost of such medical examinations will be paid by the employer. The Unions objected to the proposal which was thereafter withdrawn.

The record shows that in the fall of 1980, Respondent made arrangements to commence giving pulmonary function and hearing tests to all employees hired or recalled to work on the major overhaul of the ship U.S.S. Sacramento in early 1981. Paul Schell, Respondent's manager of industrial relations, testified that in late November or early December he met with Jack Tinker, then secretary-treasurer of the Seattle Metal Trades Council, and discussed implementation of a "medical screening program." Schell testified that Tinker was concerned that the program would be used "to wash out people and to use it just for an excuse to not hire somebody and I assured him that this was not the procedure that we were going to do, that it's used basically for placement of the person within his medical limitations, if there was a medical limitation." Schell went on to assure Tinker that this was not a pre-employment physical, and if there was any concern of anybody that they were not employed, they would be paid show-up time, as required in the contract." *fn3 Schell asked Tinker to bring up the matter at the next Metal Trades Council meeting. *fn4 David Stoner, Respondent's manager of personnel systems, testified that during the week of November 26, 1980, he informed Carpine that Respondent was planning to do pulmonary and audiometric testing of employees after they were hired and put on the payroll. Carpine expressed his concern that the procedure constituted a pre-employment physical, which Stoner assured him it did not. Stoner also discussed the new pulmonary and audiometric testing procedures with Nathan S. Ford, Jr., assistant business manager for the Boilermakers. Ford asked what would happen if someone refused to take, or didn't pass, the test. Stoner stated the test was not intended to screen people for employment, but rather to determine what their lung function was so that the company would have a "handle" on its liabilities with respect to the Longshoremen and Harbor Workers Act. He didn't know what would happen if someone refused to be tested. Ford responded that he "understood the company's need to find out what their liabilities were, and I told him that if one of our people did refuse, and if there was any disciplinary action or refusal to employ, then we were going to run into problems at that time, that I would definitely have to challenge that." Ford also discussed the testing procedure in December with John Lane, Respondent's manager of industrial safety, who explained the purpose of the testing procedures. Ford asked what would happen if someone didn't pass the test, and was told "that there was no real passing of the test, that the test merely told that the lung function in approximately four or five different areas was . . . ." Asked what would happen if someone refused to submit to the test, Lane replied "there were no definite plans . . . they would basically have to wait and see." Ford testified that during several later discussions he was advised that the company was trying to bring people back to work and the test was not for the purpose of eliminating people from work.

Carpine reported the substance of his conversation with Schell to the Seattle Metal Trades Council Executive Board at its next meeting. The Board minutes contain the following notation:

W. D. Carpine handed out letter from Lockheed Shipbuilding re man power needed for U.S.N.S. Sacramento. He also explained that rehires or new employees will be required to take hearing and breath test. Will be on employer's payroll during this period. This test will not be used to deny employment per company.

Discussion prevailed re testing by company doctor. The Seattle Metal Trades will write a letter stating employees be given written test results.

In accordance with the minutes, Tinker wrote Schell the following letter dated December 10:

Dear Mr. Schell:

Mr. Bill Carpine has advised us that effective January 1, 1981 you will be requesting additional manpower from all crafts. Also, we have been advised that it is the intention of the company that certain tests be given, specifically hearing and pulmonary.

We understand it is the company's intention that each employee given this test will be on the existing payroll and will be paid according to the report pay provision in the Agreement during the time of testing.

The one area of our concern at this point in time is in regard to test results. We are, therefore, requesting that any results obtained in this test be given to the individual employee for his own personal records. Also, it is our intention that we do not consider this a pre-employment physical and hopefully that the employer concurs with our thinking in this matter.

If you have any questions, feel free to give me a call.

Carpine testified the Unions had experienced problems in the past which resulted in the filing of grievances for show-up pay, where people had spent considerable time in interviews and waiting around and were denied employment.

Arrangements were made for the test results to be given to each employee. *fn5 In addition, Schell invited the representatives of several unions, including Tinker and Carpine, to review the working of the pulmonary function testing facility on December 19. Arrangements were made for the consulting physician to be present to answer questions and explain the procedure. No union representatives showed up.

B. Implementation of the Testing Procedures

The testing program was implemented on January 5, 1981, with the commencement of hiring of people to work on the Sacramento project. The procedure followed was for individuals dispatched by the Unions to report to the personnel office where they completed an application, and were interviewed or screened for qualifications and medical limitations. Those who qualified were than placed on the payroll, assigned a badge number, given a timecard and directed to the medical facility where a medical specialist administered the hearing and pulmonary function tests. Indoctrination and job placement followed. Those individuals receiving an unacceptable lung function score were referred to Respondent's physician, a pulmonary specialist, who reviewed all available information and established work restrictions or exposure limitations, which could require use of a respirator or assignment in an area free of respiratory irritants. A determination was then made as to whether a work assignment consistent with the doctor's recommendation could be made. Of approximately 1800 people who took the pulmonary test in 1981, approximately 16 failed to pass it but were put to work with restrictions imposed by the doctor. The five individuals involved herein failed to receive an acceptable test score, and consequently medical restrictions were imposed on each.

A week or two after Respondent implemented the test, Ford received complaints that Respondent was asking employees to sign a form for release of all personal medical information. On January 20, 1981 a meeting was held between representatives of both Respondent and the Seattle Metal Trades Council at which the Unions objected to the use of several new forms. Capine took the position that the medical release forms, together with the new pulmonary function and hearing tests, constituted a physical examination which was prohibited under the Pacific Coast Master Agreement. *fn6 The question was asked as to what would happen if an individual refused to sign the medical release form, and the response was that the company wasn't requiring people to sign the forms, that several had declined to sign and nothing had been done about it, but that the company would review the forms and see if they could make them less objectionable. According to Schell, the question was asked as to what would happen to an individual who failed the screening test and the company responded that it would make an effort to place the individual within the doctor's work restrictions. According to both Carpine and Ford, at the end of the meeting Carpine objected to the testing program on the ground it constituted a pre-job physical examination.

On January 29, 1981, Tinker wrote Schell the following letter:

Dear Mr. Schell:

This letter is in regard to our meeting with you on January 20, 1981. Specifically, during that meeting we discussed the company's request that new employees complete various forms pertaining to and entitled as follows: Medical History, Supplemental Questionnaire, Lung Fungus [sic] History, and Absence of Tool Clearance Policy.

Also, during the course of that meeting, we informed you that in recognizing that the company had previously approached the Seattle Metal Trades Council in regard to implementing two items, which were basically pulmonary and hearing tests, we are again reiterating that we object to these additional forms mentioned above.

You stated (at the meeting on January 20th) that management would review the matter and respond. To date, we have not heard from you, and we would appreciate your response as soon as possible.

On February 9, Schell responded as follows:

Dear Mr. Tinker:

In response to your letter dated January 29, 1981 and our meeting of January 20, 1981, the Company has reviewed this matter and feels that these forms, medical history and lung function, are necessary in the placing of an employee should he have a medical disability.

The supplemental questionnaires is not a form that is completed by the employees, but one that is filled out if required by the personnel interviewer.

Your letter made mention of a form that employees complete regarding absence of tool clearance policy. I feel this was clarified in our meeting of January 20, 1981. There is no form for this other than a statement in our employee information sheet. This statement has been extracted from Article 18.2 of the Pacific Coast Master Agreement.

Should you or any member of the Council have any question regarding this matter, please contact me.

C. The Terminations

Adolph Bukacek, who had never before been employed by Respondent, was dispatched by IBEW Local 46 on January 16, 1981. After failing the pulmonary function test, he was reviewed by Respondent's physician who restricted his work to areas free of fumes and dust and that did not involve exertion. An attempt to place him in a job within those restrictions was unsuccessful. He was therefore paid "show-up" pay in accordance with the contract and released.

Chris Boblet, a former employee, was dispatched by Boilermakers Local 104 on February 13, 1981. Having failed to pass the pulmonary function test, he was reviewed by the company physician who placed similar restrictions on the work he could perform. An attempt to place him in a job within those restrictions was unsuccessful that day and he was therefor paid "show-up" pay and released without having performed any work tasks.

Laszlo Biro, a former employee, was dispatched by Boilermakers Local 104 on July 1, 1981, and failed the pulmonary function test. He was dispatched that afternoon to a swing shift job and asked to return the following day for an evaluation by Respondent's physician. He didn't return. He was, however, dispatched again by the Union on October 14, 1981, again failed the pulmonary function test, restrictions against work involving "excessive smoke, fumes toxic chemicals" were imposed, and he was released with "show-up" pay after it was determined no work was available within the restrictions.

Donald Rowe was dispatched by Boilermakers Local 104 on August 19, 1981. Schell, whose testimony was based upon personnel files, testified that Rowe had a low pulmonary function test score, that as a consequence he was restricted to working with a respirator, that work was available to Rowe if he wore a respirator, but that Rowe declined to do so. Rowe, whom I credit, testified that he had worked as a "fitter" at Todd Shipyard until he was laid off in June 1981, and that he wore a respirator while working at Todd about 50 percent of the time. After he was dispatched by the Union to Respondent, he was given the pulmonary function test and told he had a low rating. He was asked, and consented, to take an X-ray. Rowe testified Respondent's physician said he recommended he be hired. He was sent back to the individual who had given him the pulmonary function test originally and was asked if he would take it again. He did and was informed his rating was too low, that the work required that he wear a respirator, which he wouldn't be able to do, and that he couldn't be hired. He was taken back to the personnel office where he turned in the timecard that had been issued to him, and was released with "show-up" pay. On August 25 he was dispatched back to Todd Shipyard where he was working at the time of the hearing. He wears a respirator about 7 out of every 8 hours of work.

Bayani Alvarez was dispatched by Boilermakers Local 104 on August 27, 1981, failed the pulmonary function test, was seen by the doctor who placed restrictions on the work he could perform, an attempt to find work within the restrictions was unsuccessful, and he was paid for "show-up" time and released.

Unsuccessful attempts to resolve the issue raised by the unfair labor practice charges involving Bukacek and Bablet were made in April 1981. A further unsuccessful effort was made to resolve the issue through the "contract interpretation committee," who recommended the issue be resubmitted under Article 16.10 of the Pacific Coast Master Agreement instead of Article 3.4(c). No further action has been taken by either side in this respect.

Lane testified that in January 1981, when Respondent commenced administering the pulmonary function test, Respondent "had seven projects - ships -- where" employees could have worked, three of which "could have had some lead exposure . . . . We did not do pulmonary functions on existing work force . . .. Just the returning members, either with seniority or without . . . we screened them without regard to assignment, because the probability of exposure to any person working in ship repair is fairly great during his employment with us."

Conclusions

Respondent argues it did not violate the Act by implementing the medical testing program or by terminating individuals whose pulmonary conditions could not be accommodated because (1) there was notice, bargaining and agreement over the implementation of the testing program and its effects; (2) the Charging Parties waived and/or acquiesced in its right to administer the tests and to terminate employees; and (3) the implementation of the program was in accordance with applicable laws and regulations, the Master Agreement, and part practices.

The evidence, in my view, does not support the Respondent's contention that the charging Unions agreed that the testing programs could be utilized to reject or terminate employees, or that they waived and/or acquiesced in the Respondent's utilization of the testing programs to terminate employees. A recap of the evidence makes this abundantly clear.

In late November or early December 1980, Schell discussed implementation of the testing program with Tinker, who expressed concern that it would be used "to wash out people" and as an excuse "not to hire somebody." Schell assured Tinker his fear was unfounded and that it would be used "basically for placement of the person within his medical limitation." At about the same time Stoner discussed the matter with Carpine who expressed concern that the testing procedure constituted a pre-employment physical, which Stoner assured him it did not. Stoner also discussed the new procedure with Ford. Ford asked what would happen if someone didn't pass the test, and Stoner assured him the tests were not intended to screen people for employment, but rather to determine their lung function so that the company could establish its liabilities under the Longshoremen and Harbor Workers Act. Ford recognized the Respondent's need to establish its liabilities under that Act, but went on to state that if the testing procedures resulted in disciplinary action or refusal to employ, he was opposed to it. Lane also told Ford that there was "no real passing of the test, that the test merely told what the lung function in approximately four or five different areas was . . . ." Ford was told on several occasions that the company was trying to bring people back to work and that the test was not for the purpose of eliminating people from work. The minutes of the Seattle Metal Trades Council Executive Board reveal the Unions' understanding that "This test will not be used to deny employment per company." This same theme is reiterated in Tinker's December 10 letter to Schell, wherein it is stated "Also, it is our intention that we do not consider this a pre-employment physical and hopefully that the employer concurs with our thinking in this matter." As late as January 20, 1981, prior to any knowledge on the part of the Unions that Bukacek had been refused employment after undergoing the pulmonary screening program, Carpine opposed the testing program on the ground it constituted a physical examination which was prohibited by Article 16.10 of the Pacific Coast Master Agreement. Moreover, in his February 9, 1981 letter, Schell informed Tinker that the medical forms, medical history and pulmonary test were "necessary in the placing of an employee should he have a medical disability." [Emphasis added.] Thus, while the Unions were indeed notified of the Respondent's proposed screening program and did not oppose implementation of the testing procedures for the purpose of determining the Respondent's liabilities under the Longshoremen and Harbor Workers Act, it is clear the Unions did not agree that the pulmonary and audiometric tests could be used to screen out, reject, terminate, or deny employment as claimed by Respondent. To the contrary, the foregoing facts show the Unions steadfastly opposed their use for those purposes, and were lead by Respondent to believe that they would not be so used. Therefore, Respondent's contention that the Unions waived and/or acquiesced in the use of the tests to terminate employees is without merit.

Article 16. 10 provides explicitly that "There shall be no Doctor's physical examination . . . except as required by law . . . ." Respondent argues that Article 16 does not in any way preclude medical testing, review of medical test results by the company physicians, or the imposition of medical restrictions by the company physician. It is argued that Article 16. 11 and 16.12 require that "frequent checks for the employee's safety shall be made," and that the employer shall provide special protective devices where conditions of work require employees to be protected from injury. In this regard, it is noted that in 1975, pursuant to Occupational Safety and Health Act (OSHA) regulations, the Respondent administered a "pre-placement physical" to long-term employees who were assigned to a new trade called "lead-bonder." There was no showing any employees were terminated as a result of failing to pass that examination. Beginning in 1977, a similar type examination was instituted for painters working in "tanks" and "bottoms" and other areas where toxic paints were used. The painters' physical examinations were not required by law or regulation but were administered pursuant to an agreement with the painters' collective-bargaining representative. Again, there is no evidence the tests were used to reject employees or terminate employment. Other instances where physical examinations are performed on employees are: (1) when a newly-hired worker indicates on a medical questionnaire that there is a pre-existing disability, in which case he is examined so that he can be assigned to a job consistent with his physical abilities; (2) all workers who are injured or become ill on the job are examined by the doctor; and (3) workers who have been off work because of an injury or illness are examined by the company doctor before returning to work. In short, there is no evidence that any physical examination heretofore performed by Respondent, whether required by law or regulation or past practice, has even been used to disqualify workers from employment. Further, Respondent's argument that the pulmonary and audiometric tests administered here were conducted pursuant to OSHA regulations has a hollow ring, when it is remembered that only new or returning employees were required to undergo the tests -- the existing workforce was not required to undergo the tests.

The history of bargaining between the parties hereto makes it obvious that physical examinations have been a point of bargaining contention on several occasions, in 1974 and as late as 1980 when the Respondent proposed a provision granting it the right, inter alia, to terminate an employee for failure to pass a medical examination based on a doctor's evaluation of the employee's condition as related to the work assignment. Upon objection by the Unions, the proposal was withdrawn. It seems obvious to me that what the Respondent could not obtain through collective bargaining, it decided to implement unilaterally. It terminated five employees for their "failure . . . to pass the medical examination based on the doctor's evaluation of the employee's condition as related to the work assignment." *fn7 Physical examinations being a mandatory subject of bargaining, *fn8 and the Respondent having failed to show that the Unions either agreed to or waived and/or acquiesced in the Respondent's use of the pulmonary and audiometric testing program for the purpose of terminating or refusing to employ employees, or that the testing program was in accordance with applicable laws and regulations, the Master Agreement or past practices, it is found that Respondent violated Section 8(a)(5) and (1) of the Act by implementing the pulmonary and auditory tests for the purpose of screening out, or disqualifying employees from employment. See, e.g., Hanes Corporation, 260 NLRB No. 77 (1982). In these circumstances, the refusal to employ Bukacek on January 16, 1981; Boblet on February 13, 1981; Biro on October 14, 1981; *fn9 Rowe on August 19, 1981; and Alvarez on August 27, 1981, because they failed to pass the pulmonary test, also violated Section 8(a)(5) and (1) of the Act.

Conclusions of Law

1. Respondent is an employer engaged in commerce within the meaning of

Section 2(6) and (7) of the Act.

  1. IBEW Local 46 and Boilermakers Local 104 are labor organizations within the meaning of Section
2(5) of the Act, and at all times material herein, each union has been and is now the exclusive bargaining representative of certain of Respondent's employees.

3. By unilaterally implementing and enforcing a medical screening program for the purpose of denying employment to new employees, and by denying employment to Adolph Bukacek, Chris Boblet, Laszlo Biro, Donald Rowe and Bayani Alvarez, Respondent has refused to bargain with IBEW Local 46 and Boilermakers Local 104 in violation of Section 8(a)(5) of the Act.

4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

The Remedy

Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent has unlawfully refused to bargain with the two Unions by unilaterally implementing and utilizing a medical screening program for the purpose of denying employment to new employees, it is recommended that Respondent cease such unlawful conduct and offer employment to Adolph Bukacek, Chris Boblet, Laszlo Biro, Donald Rowe and Bayani Alvarez in the first available job openings for which each is qualified, and make each of them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them. Loss of earnings for all individuals shall be computed as prescribed in F.W. Woolworth Company, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962) and Florida Steel Corporation, 231 NLRB 651 (1977).

Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: *fn10

ORDER

Respondent, Lockheed Shipbuilding and Construction Company, its officers, agents, successors and assigns shall:

1. Cease and desist from:

(a) Refusing to bargain collectively regarding the implementation and utilization of a medical screening program for new employees and/or applicants for employment.

(b) Discharging or refusing to hire any person for failure to pass a unilaterally imposed pulmonary function, audiometric or other type physical examination or medical screening program.

(c) In any like or related manner interfering with, restraining, or coercing its applicants for employment or employees in the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action which will effectuate the policies of the Act:

(a) Upon request, bargain collectively and in good faith with International Brotherhood of Electrical Worker, Local 46, AFL-CIO and International Brotherhood of Boilermakers, Local 104, AFL-CIO, concerning wages, hours, and other terms and conditions of employment of its employees and if an understanding is reached, embody such understanding in a written agreement.

(b) Offer employment to Adolph Bukacek, Chris Boblet, Laszlo Biro, Donald Rowe and Bayani Alvarez in the first available job openings for which each is qualified, and make each of them whole for any loss of earnings each may have suffered by reason of Respondent's unlawful conduct herein in the manner set forth in the section entitled "The Remedy."

(c) Post at its shipyard in Seattle, Washington, copies of the attached notice marked "Appendix." *fn11 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees and applicants for employment 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.

(d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.

Dated: August 31, 1982

APPENDIX

NOTICE TO EMPLOYEES POSTED BY ORDER OF THE AN AGENCY OF THE UNITED STATES GOVERNMENT

After a hearing at which all parties had the opportunity to present evidence, it has been found that we violated the National Labor Relations Act, and we have been order to post this notice.

WE WILL NOT refuse to bargain collectively regarding the implementation and utilization of a medical screening program for new employees and/or applicants for employment, and other terms and conditions of employment with International Brotherhood of Electrical Workers, Local 46, AFL-CIO and International Brotherhood of Boilermakers, Local 104, AFL-CIO, as the exclusive representatives of certain of our employees encompassed within the Pacific Coast Master Agreement.

WE WILL NOT discharge or refuse to hire any person for failing to pass a unilaterally imposed pulmonary function, audiometric or other type physical examination or medical screening program.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act.

WE WILL, upon request, bargain collectively and in good faith with International Brotherhood of Electrical Workers, Local 46, AFL-CIO and International Brotherhood of Boilermakers, Local 104, AFL-CIO, as the exclusive representatives of certain of our employees encompassed within the Pacific Coast Master Agreement, with respect to wages, hours, and other terms and conditions of employment, including the implementation and utilization of a medical screening program.

WE WILL offer employment to Adolph Bukacek, Chris Boblet, Laszlo Biro, Donald Rowe and Bayani Alvarez in the first available job openings for which each is qualified, and make each of them whole for any loss of earnings each may have suffered because of our unlawful conduct, with interest.

LOCKHEED SHIPBUILDING AND CONSTRUCTION COMPANY

(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, Federal Building Rm. 2948, 915 Second America Seattle, WA 98174 Telephone Number: (206) 442-7472

 
Notes:

*fn1 Counsel for the General Counsel filed a motion to transfer Cases 19-CA-15002, 19-CA-15003, and 19-CA-15044, in which a consolidated complaint issued but no hearing has been held, to the Board and to consolidate those cases with Cases 19-CA-13226, 19-CA-13298, 19-CA-13741, and 19-CA-14066. The General Counsel asserts that both sets of cases involve identical factual situations. The Respondent asserts that there are different factual circumstances and different issues. We note particularly that, in its answer to the complaint in Cases 19-CA-15002, 19-CA-15003, and 19-CA-15044 the Respondent raises as an affirmative defense that the "complaint or parts thereof are barred by the statute of limitations contained in Section 10(b) of the Act." We believe that the question of whether the facts and issues are identical and the matter of the 10(b) defense can best be resolved by the administrative law Court if the cases are scheduled for hearing or by the Board on an acceptable stipulation of facts. Therefore it is ordered that the General Counsel's motion to transfer and consolidate is denied.

*fn2 The Charging Parties have moved to strike the affidavit attached to the Respondent's brief because it contains allegations not introduced into evidence at the hearing. We find, in agreement with the Charging Parties, that since the affidavit was not introduced at the hearing and the parties were denied the opportunity of voir dire and cross-examination, it should not be made a part of the record in this proceeding. Accordingly, we grant the Charging parties' motion to strike the affidavit from the Respondent's brief.

*fn3 The Respondent has excepted to some of the Court's credibility findings. The Board's established policy is not to overrule an administrative law Court's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

*fn4 Tinker did not testify. However, William D. Carpine, business representative for the IBEW and also president of the Seattle Metal Trades Council, testified that he had a conversation with Schell around the end of November. The substance of the Schell-Tinker and Carpine-Schell conversations is substantially the same.

*fn5 While in January 1981 it was learned that only those who failed the pulmonary function test received copies of the results, this was immediately corrected.

*fn6 Article 16.10.

*fn7 See Respondent's 1980 contract proposal, supra.

*fn8 See, e.g., LeRoy Machine Co., Inc., 147 NLRB 1431 (1964).

*fn9 The record does not support the allegation that Biro was refused employment on July 1, 1981 after undergoing the screening program. It is undisputed that on that date he was asked to return the following day for an evaluation by Respondent's physician, which he failed to do. The testimony shows, however, that other individuals were in fact placed in jobs within the physician's restrictions. Thus, the record fails to show Biro would not have been employed, or was refused employment, in July because of his failure to pass the pulmonary test.

*fn10 In the event no exceptions are filed as provided in Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.

*fn11 In the event that the Board's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.

----------------PACIFIC COAST MASTER AGREEMENT NOTES-----------------------

*fn1 It is admitted and found that the contract unit is appropriate for the purposes of collective bargaining and that the two unions involved herein are "the exclusive representatives of certain of the employees in the unit."

*fn2 See page 12 of Charging Parties' brief.

*fn3 Article 14 of Pacific Coast Master Agreement.