Kysor Industrial Corp

National Labor Relations Board - Board Decisions

May 18, 1992

307 N.L.R.B. 598 (N.L.R.B. 1992)

598
307 NLRB No. 98
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
Kysor/Cadillac, an Operating Division of Kysor In-
dustrial Corporation and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW)
and its Local 545. Case 7–CA–30283
May 18, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 14, 1991, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief1 and
the General Counsel filed an answering brief.
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
In so doing, we find that the violations arose from
the Respondent’s conduct in 1990. The dissent mis-
apprehends the record evidence in finding that the Re-
spondent’s discharge of Mark Sessler and Shad Smith
was sanctioned by their having signed applicant con-
sent forms in 1986. These forms, as we show below,
were unrelated to the policy pursuant to which Sessler
and Smith were discharged.
On January 10, 1990, Kevin Lattimer was involved
in a worksite accident. The Respondent required
Lattimer to submit to a drug test. Lattimer did so and
was found drug free. Lattimer reported the incident to
Union Steward Michael Gamble who questioned Plant
Manager Larry Payne about Lattimer’s drug test.
Payne informed Gamble that ‘‘it was company policy
as of January 1st, 1990.’’ Shortly afterwards, on Feb-
ruary 12, Gamble attended a forum on drug testing
with the Respondent’s managers. Gamble asked how
the Respondent ‘‘could post or impose a drug policy’’
without negotiating. Payne was asked ‘‘if he had post-
ed this drug-free work place policy.’’ Payne responded
that he had not. The next day, on February 13, the Re-
spondent posted a notice dated February 8 announcing
its ‘‘drug-free workplace policy.’’ The policy prohib-
ited drugs and alcohol in the workplace and working
under their influence. The notice stated:
The Company reserves the right to require any
employee who it believes to be in violation of the
foregoing policy during working hours to undergo
at Company expense appropriate urinalysis, breath
or other testing procedures to assist the Company
in determining whether violation of the foregoing
policy has occurred. Any employee who refuses a
Company request to submit, or who fails to sub-
mit, to such testing procedures will be subject to
discipline up to and including discharge.
On February 26, the Respondent discharged Mark
Sessler because he refused to submit to a drug test in
conjunction with medical treatment for a workplace ac-
cident. The next day Gamble and Union Representative
Harry Hinsley met with Payne and Larry Johnson, the
Respondent’s human resource manager. The union rep-
resentative protested the Respondent’s right to fire
Sessler for refusing to take a drug test. Larry Johnson
mentioned the 1986 consent forms and Hinsley asked
to see them. Johnson left the meeting and returned
with the forms.
This was the first time that the Respondent referred
to the applicant consent forms for drug testing that
Sessler and Lattimer had signed in 1986. However, for
almost the entire preceding 2 months, the Respondent
had told the Union that its 1990 drug-testing policy ap-
plied to all employees without qualification. In dis-
cussing the Lattimer incident and the 1990 policy with
the Union, and in the posted announcement of that pol-
icy, the Respondent made no distinction between em-
ployees who had signed the 1986 applicant consent
forms and those who had not. In these circumstances,
we find that Sessler’s having signed the consent form
has no bearing on his discharge. The Respondent sub-
jected Lattimer, Sessler, and subsequently Shad Smith
to its 1990 policy which both on its own terms and
pursuant to the Respondent’s admission, applied to all
employees irrespective of whether they had signed the
1986 applicant consent forms. In Johnson-Bateman
Co., 295 NLRB 180 (1989), the Board found that
postaccident drug testing of employees is a mandatory
subject of bargaining. Johnson-Bateman applies here.
Unlike our dissenting colleague, we find nothing in
the discussion between the parties prompted by the
Lattimer and Sessler incidents to suggest that the Re-
spondent was imposing two distinct policies at that
time. Rather, a fair reading of all the evidence shows
that on January 1 and February 12, 13, and 27, the Re-
spondent was implementing a broad new drug policy
which applied to all employees, irrespective of whether
they had signed consent forms during the application
process, and without conditioning that policy on any
preexisting practice.
Further, even assuming for argument’s sake a nexus
between the Respondent’s 1990 policy and the 1986
consent forms, we would reach the same result. We
find, for the reasons given by the judge, that the 1986
consent forms signed by job applicants did not con-
599KYSOR INDUSTRIAL CORP.
2 We find it unnecessary to reach the Respondent’s motion to
strike misrepresentations of the record from the General Counsel’s
answering brief and the General Counsel’s motion to strike the affi-
davit attached to the Respondent’s brief. These motions involve the
1986 discussions between the Respondent and the Union.
1 See JD sec. III,B, par. 6.
1 All dates are for 1990 unless otherwise indicated.
2 Certain errors in the transcript have been noted and corrected.
stitute a waiver by the Union of the right to bargain
about drug testing of unit employees.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Kysor/Cadillac, an Oper-
ating Division of Kysor Industrial Corporation, Cad-
illac, Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
MEMBER RAUDABAUGH, dissenting in part.
I dissent from my colleagues’ conclusion that the
Respondent violated the Act by requiring employees
Sessler and Smith to take a drug test.
The evidence establishes that in 1986 the Respond-
ent gave the Union a proposed employee consent form.
The form, inter alia, required new employees to con-
sent to a drug test in the event of a workplace acci-
dent. The Respondent said that it intended to imple-
ment the practice of using the form. The Union did not
object. In my view, the Union acquiesced in the use
of the form. Consistent with that, employees Sessler
and Smith signed the consent forms. In February and
May 1990, the Respondent required Sessler and Smith,
respectively, to take a drug test after a workplace acci-
dent. They refused and were discharged.
Inasmuch as the Union acquiesced in the use of the
consent form, and since employees Sessler and Smith
signed the consent form, I believe that the Respondent
could require them to take the drug test. Accordingly,
the Respondent could discipline them for refusing to
take that test.
My colleagues believe that Sessler and Smith were
required to take a drug test pursuant to a policy an-
nounced on February 13, 1990. Under that policy, an
employee could be tested if the Company believed that
the employee was using drugs or alcohol in the work-
place or was working under their influence. However,
at an earlier time, on January 1, the Respondent insti-
tuted a policy of drug testing employees who were
being treated for an on-the-job injury.1 There is noth-
ing to suggest that the February 13 policy was in-
tended to supplant, i.e., eliminate, the January 1 policy.
Hence, as of February 13, employees could be tested
in either of two situations: (1) if the Company believed
that they were using intoxicants at work or were under
the influence of same; (2) if the employee was being
treated for an on-the-job injury.
The evidence is clear that Sessler and Smith were
being tested under (2) above. Indeed, the parties have
stipulated that the tests were in conjunction with on-
the-job injuries that each had sustained. Since the tests
were required pursuant to the ‘‘on-the-job injury’’ pol-
icy, and since the Union and the employees had con-
sented to such testing, I would not find a violation.
Joseph A. Barker, Esq., for the General Counsel.
Joseph F. Martin, Esq. and Stephen B. Grow, Esq., of Grand
Rapids, Michigan, for the Respondent.
Vern Brusseau, of Grand Rapids, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. This case was
heard at Cadillac, Michigan, on January 7, 1991. The charge
and amended charges were filed respectively on March 1,
April 9, and August 21, 1990, by International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America (UAW) and its Local 545 (UAW and Local 545,
and collectively the Union).1 The amended complaint, which
issued on September 10 and was amended at the hearing, al-
leges that Kysor/Cadillac, an Operating Division of Kysor In-
dustrial Corporation (the Company or Respondent) violated
Section 8(a)(1) and (5) of the National Labor Relations Act.
The gravamen of the complaint is that the Company alleg-
edly unilaterally implemented a policy requiring certain bar-
gaining unit employees to undergo drug and/or alcohol test-
ing as a condition of employment, and pursuant to that pol-
icy discharged unit employees Mark Sessler and Shad Smith
for their refusal to submit to such testing. The Company’s
answer denies the commission of the alleged unfair labor
practices, and affirmatively alleges that claims relating to the
propriety of the drug testing procedure pursuant to which
Sessler and Smith were terminated are time-barred by Sec-
tion 10(b) of the Act.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
The General Counsel and the Company each filed a brief.
On the entire record in this case2 and from my observation
of the demeanor of the witnesses, and having considered the
arguments of the parties and brief submitted by the General
Counsel, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Company, a Michigan corporation with its principal
office and place of business in Cadillac, Michigan, is en-
gaged in the manufacture, sale, and distribution of truck radi-
ators, temperature control systems, gauges, and related prod-
ucts. The Company’s Cadillac plant is the only facility in-
volved in this proceeding. In the operation of its business,
the Company annually ships products valued in excess of
$50,000 directly to points outside of Michigan. The Com-
pany is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION AND BARGAINING
UNIT INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act. At all times material, the Union has
been and is the recognized and exclusive collective-bar-
gaining representative of the Company’s employees in the
following appropriate unit:
All production, maintenance and toolroom employees
employed by the Company at its 1100 Wright Street,
Cadillac, Michigan facility; but excluding all execu-
tives, watchmen, sweepers, office and clerical employ-
ees, guards and supervisors as defined in the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The most recent collective-bargaining contract covering
the unit employees was effective by its terms from April 2,
1984, through January 23, 1987. Insofar as pertinent, the
contract provided in sum that the Company could make and
after publication enforce reasonable rules and regulations to
maintain order, safety, and/or effective operation of the plant,
but that the Union reserved the right to question the reason-
ableness of such rules and regulations through the grievance
and arbitration procedure. The contract said nothing about
drug or alcohol testing of employees. In October or Novem-
ber 1986 the Company instituted a practice of preem-
ployment drug testing. In conjunction with that policy, all
job applicants were required to sign a ‘‘Blood/Urine Test
Consent Form’’ containing the following language:
I understand that testing for drugs and/or alcohol
through use of blood and/or urine tests is part of appli-
cant screening for employment and that positive test re-
sults may result in my being rejected for employment,
promotion, transfer or continued employment. I hereby
consent to blood and/or urine testing as part of my pre-
employment physical examination and evaluation and
understand that failure to give my consent will dis-
qualify me from consideration for employment.
I further understand that urine and/or blood testing
may be required during my term of employment, if
hired, as a condition of employment for valid reasons
such as investigation of accidents or other employment
related incidents, as well as for promotion, transfer and
for continued employment. I hereby consent to blood
and/or urine testing for drugs and/or alcohol in connec-
tion with these matters as an employee of a Kysor
plant. I further understand that my failure to take these
tests as required may result in my discharge.
Current employees were not asked to sign the form. Larry
Johnson, the Company’s human resources manager, who pre-
pared the form, testified in sum as follows: In 1986 he dis-
cussed the form with then Union President Don Mitchell and
then Union Chief Steward Harry Hinsley. Johnson said the
Company decided to implement a procedure for drug testing
employees, showed them the form and gave them a copy. He
said that the form would be part of the job application proc-
ess, and that all future hires would be drug tested. The union
representatives made no response at this time. A few days
later they returned with a prepared UAW statement con-
sisting of an article from a UAW publication. The article
stated in sum that the UAW did not condone drug usage or
drugs in the workplace, but that the rights of employees
should not be trampled on in the process of drug testing.
Johnson explained that the Company was concerned about
drug usage in the Cadillac community. He said the Company
would implement the consent form. There was no further dis-
cussion of the matter. The Company proceeded to implement
the form, and to drug test applicants, without any objection
from the Union. In his investigatory affidavit to the Board,
Johnson stated that in their first meeting he said the Com-
pany intended to implement the new form, they read it and
took a copy, and this ‘‘was the full extent of the discussion
on the subject of the form or drug testing’’ (referring to the
first meeting). Harry Hinsley became union president in
1988. Hinsley testified that he did not recall any meeting in
1986 as described by Johnson, and that until Sessler’s dis-
charge in February 1990 he did not know of the existence
of the consent forms. Michael Gamble was chief steward
from 1988 to May 1990, when he became union president
on Hinsley’s retirement. Gamble testified that he knew since
1988 that the Company was using these forms. Johnson,
Hinsley, and Gamble, who were called to testify by the Gen-
eral Counsel (Johnson as an adverse witness), were the only
witnesses in this proceeding. Johnson and Hinsley each dis-
played a tendency to be forgetful, vague, evasive, or incon-
sistent concerning matters adverse to their respective cases.
Hinsley and Gamble were already employed by the Company
in 1986, and therefore were not asked to sign the consent
form. If, as testified by Gamble he knew about the forms in
1988, then it is probable that Hinsley, his predecessor as
chief steward, also knew about the forms. Hinsley did not
deny meeting with Johnson in 1986, but simply testified that
he did not recall the meetings. In light of Johnson’s affidavit,
I find that Johnson did not expressly tell the Union that fu-
ture hires would be drug tested, although the form indicated
this would be done. In all other respects I credit Johnson
concerning his 1986 meetings with the Union.
The parties did not discuss drug testing in the 1987 con-
tract negotiations, which did not result in agreement on a
new contract. In the meantime, and until January 1990, the
Company did not drug test employees after their hire. John-
son’s testimony was vague, equivocal, inconsistent, and in
some respects demonstrably incredible in this regard. John-
son initially testified that probably in November 1986 he in-
stituted a practice of drug testing employees who had an on-
the-job injury. Johnson subsequently testified that the Com-
pany implemented such testing some time after the summer
of 1989. Johnson admitted that although some employees un-
derwent drug rehabilitation during the period from 1986 to
1990, they were not required to submit to drug testing even
after they returned to work. No evidence was adduced to
show that prior to 1990, any employee was asked or in-
structed to submit to posthire drug testing. The evidence fur-
ther indicates that until February 1990, the Company never
informed the Union or the employees that it would institute
a practice of drug testing employees under any cir-
cumstances, and never submitted any proposal to the Union
in this regard. Johnson testified that he did not know whether
or when he told the Union that there would be postinjury
testing of employees. Johnson described such testing as an
601KYSOR INDUSTRIAL CORP.
3 I credit Gamble’s testimony concerning this meeting. Gamble
generally impressed me as a more credible witness than Johnson or
Hinsley. His testimony concerning statements by Plant Manager
Payne was uncontradicted. Except as otherwise indicated, I have
credited his testimony concerning this and other matters.
‘‘evolutionary process.’’ So far as indicated by the present
record, including Johnson’s testimony, that process, until Jan-
uary 1990, consisted of the Company’s own internal thought
processes. Johnson testified that in the summer of 1989, after
the Drug-Free Workplace Act became law, he discussed the
possibility of postinjury testing with the Company’s physi-
cian. The Company was not a government contractor, and
therefore the Act did not apply to its plant. In July 1989
Plant Manager Larry Payne requested to meet with the Union
concerning safety shoes. Toward the end of the meeting
Payne distributed copies of a booklet entitled ‘‘The Drug-
Free Workplace.’’ He said that ‘‘in the near future we would
be talking about this.’’ He said nothing about drug testing,
and the Company did not thereafter contact the Union about
the matter.3 The Company subsequently posted and distrib-
uted to its employees, copies of the booklet and a statement
of company policy. However neither document set forth any
policy or practice concerning drug testing of employees. The
statement of policy asserted that each company division
would develop its own plan to comply with the Drug-Free
Workplace Act. The statement said nothing about drug test-
ing. The booklet (an outside publication) was ambiguous. At
one point the publication stated that: ‘‘You have to abide by
the rules of our Drug-Free Workplace. We can discharge you
if you don’t.’’ At another point the booklet stated: ‘‘The
Drug-Free Workplace Act does not require drug testing.
However certain government agencies do require that some
organizations doing business with them conduct tests. If
these rules affect us, or if we test for any other reason, you
can be sure we’ll tell you about it.’’
In January 1990, without notice to the Union or the em-
ployees, the Company instituted a practice of drug testing
employees who were treated for on-the-job injuries. On Janu-
ary 10 unit employee Kevin Lattimer was treated by the
company physician for an industrial accident. Lattimer had
signed a consent form. Pursuant to Johnson’s instructions,
Lattimer was given a drug test. Lattimer took the test, which
he passed. He told then Chief Steward Gamble what hap-
pened. Gamble asked Plant Manager Payne why Lattimer
had to take a drug test. Payne answered that it was company
policy as of January 1, 1990. Gamble responded that he
never heard of such a policy. On February 12, Gamble, John-
son, Payne, and the Company’s attorney attended a forum at
which the subject of drug testing was discussed. Gamble
questioned how the Company could impose a drug policy
without negotiating. Payne admitted that the Company did
not post its drug-free workplace policy. The next day the
Company posted a notice, dated February 8, announcing its
‘‘drug-free workplace policy.’’ The notice prohibited drugs
or alcohol on company premises, or working under the influ-
ence of same. With regard to drug testing, the notice stated
as follows:
The Company reserves the right to require any em-
ployee who it believes to be in violation of the fore-
going policy during working hours to undergo at Com-
pany expense appropriate urinalysis, breath or other
testing procedures to assist the Company in determining
whether violation of the foregoing policy has occurred.
Any employee who refuses a Company request to sub-
mit, or who fails to submit, to such testing procedures
will be subject to discipline up to and including dis-
charge.
Human Relations Manager Johnson testified that the Com-
pany adopted this policy because employees hired before
1986 did not sign a consent form. The policy, on its face,
would apply to all employees regardless of whether they
signed a consent form.
On February 26, the Company discharged unit employee
Mark Sessler, and on May 4 discharged unit employee Shad
Smith. The parties stipulated that both employees were termi-
nated for refusing to submit to a drug screening test in con-
junction with medical treatment paid for by the Company
and resulting from an on-the-job injury. Both employees
signed consent forms when they were hired. Johnson testified
that neither Sessler, Smith, nor any other employee was ter-
minated pursuant to the policy announced in February 1990.
Rather, Johnson testified that the basis for discharging
Sessler and Smith was that they signed consent forms when
they were hired, pursuant to the practice initiated by the
Company in 1986. The Union protested Sessler’s discharge,
and the parties (Hinsley, Gamble, Johnson, and Payne) met
to discuss the discharge. Johnson testified in sum as follows:
The Union protested Sessler’s discharge pursuant to the pol-
icy of testing employees after an on-the-job injury. Johnson
answered that they negotiated in 1986, and referred to the
consent procedure. Hinsley replied that that was conversation
or discussion, not negotiation. Gamble testified that Johnson
said they negotiated in July 1989, whereupon Hinsley re-
sponded that those were discussions, not negotiations, and
there was no mention of 1986 at this time. However, Johnson
later said that the Company based the discharge on the fact
that Sessler signed a consent form. Hinsley testified in sum
as follows: He did not recall whether Johnson referred to ne-
gotiations or 1986 meetings. Hinsley said he would not take
a drug test. Johnson mentioned the consent forms, and
brought in a folder with the forms and the booklet ‘‘The
Drug-Free Workplace.’’ Hinsley initially testified that the
forms were signed, but subsequently testified that they were
not. I find that Johnson said that the parties negotiated in
July 1989. If Johnson referred to negotiations in 1986, this
would have been tantamount to an admission that the Com-
pany unilaterally implemented a new policy in 1990 which
applied to employees who had not signed consent forms.
However in light of Hinsley’s admissions, I find that Johnson
also relied on the fact that Sessler signed a consent form.
The Union protested the policy announced in February
1990. In September and October 1990, the Company and the
Union negotiated a drug-free workplace policy, and agreed
that the Company could implement that policy without objec-
tion from the Union. With regard to testing, the policy pro-
vided that current employees were subject to drug or alcohol
testing, and discharge for refusal to submit to such testing,
‘‘where the Company has reasonable cause to believe the
employee is violating [the drug-free workplace] policy, or
where the testing is otherwise required by law.’’ The policy
became effective in November 1990. As the policy was not
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The Company’s reliance on Reynolds Electrical & Engineering
Co., 125 LRRM 1368 (1987), a General Counsel Advice memo-
randum, is misplaced. In that case General Counsel declined to issue
a complaint, concluding that the employer did not violate Sec.
8(a)(5) by unilaterally requiring employees and job applicants to
submit to drug/alcohol testing, because the Union therein waived its
right to bargain by agreeing to a contract which gave the employer
the right to require employees and applicants to take periodic phys-
ical examinations. First, advice memoranda do not constitute Board
law. Second, unlike Reynolds, the Union here never agreed to a
broad management-rights clause which expressly or impliedly per-
mitted the Company to unilaterally implement drug testing of em-
ployees. Rather as indicated, the expired collective-bargaining con-
tract (the terms of which remain in effect until changed through the
bargaining process), required the Company to publish ‘‘reasonable’’
rules and regulations to maintain order, safety, and/or effective oper-
ation of the plant, and to afford the Union an opportunity to question
the reasonableness of such rules and regulations. Third, and most
significantly, at the time of this memorandum the General Counsel
was taking the position that drug testing of applicants was a manda-
tory subject of bargaining. The Board rejected that position in Star
Tribune. Therefore the memorandum was based on a premise con-
trary to Board law.
made retroactive, it did not apply to the terminations of
Sessler and Smith.
B. Analysis and Concluding Findings
I find, as alleged in the complaint, that the Company vio-
lated Section 8(a)(5) and (1) of the Act. In January 1990 the
Company, without notice to or offering the Union an oppor-
tunity to bargain, unilaterally implemented a practice, as a
condition of employment, of requiring employees injured in
an industrial accident to submit to a drug test, or at least
those employees who signed consent forms when they were
hired. Prior to January 1990 the Company did not have such
a practice. Rather the Company used such tests only as part
of applicant screening for employment. Indeed the Company
concedes (Br. 10) that following consultations between John-
son and the Company’s physician, the Company decided ‘‘to
uniformly test post-1986 hires following industrial acci-
dents.’’ The Company conceded in January 1990 that this
was a new policy. When Gamble asked Plant Manager Payne
why employee Lattimer (who had signed a consent form)
was required to take a drug test, Payne answered that it was
company policy as of January 1, 1990.
Drug/alcohol testing of unit employees is a term of condi-
tion of employment, and ‘‘a newly imposed requirement of
[such] testing for employees who require medical treatment
for work injuries is a mandatory subject of bargaining.’’
Therefore an employer violates Section 8(a)(5) and (1) by
unilaterally implementing such a requirement without pro-
viding the bargaining representative prior notice and an op-
portunity to bargain. Johnson-Bateman Co., 295 NLRB 180
(1989). Moreover, a union’s ‘‘acquiescence in the
drug/alcohol testing requirement for new employees at the
time of hiring does not constitute a waiver of its right to bar-
gain about drug/alcohol testing of injured employees.’’ Id.
Nevertheless the Company contends that it was privileged to
unilaterally drug test employees, and to discharge Sessler and
Smith for refusing to submit to such testing, because in 1986
the Union acquiesced in the consent form procedure. The
contention is erroneous. ‘‘Applicants for employment are not
‘employees’ within the meaning of the collective-bargaining
obligations of the Act.’’ Star Tribune, 295 NLRB 543, 546
(1989). Absent unusual circumstances not here present, the
job application process is not a mandatory subject of bar-
gaining, and therefore the employer has no obligation to bar-
gain with the Union concerning that process, except insofar
as that process ‘‘vitally affects’’ the terms and conditions of
employment of unit employees. Id., citing Allied Chemical
Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S.
157, 159 (1971). In Star Tribune, the Board indicated certain
areas of the hiring process which give rise to a bargaining
obligation. The elimination of actual or suspected discrimina-
tion in hiring practices is a mandatory subject of bargaining,
because of the high national priority given to the elimination
of such discrimination, and the importance of unions’ role in
achieving that result. Id. The Board also distinguished hiring
hall cases involving intermittent employment, because in
such cases ‘‘the essence of employee security therein rest[s]
on the establishment of seniority rights through a common
source of job priority and priority standards.’’ Id., citing
Houston Chapter, AGC, 143 NLRB 409 (1963), enfd. 349
F.2d 449 (5th Cir. 1965). However, the Board made clear
that the contents of job application forms ordinarily are not
a mandatory subject of bargaining, even insofar as those
forms contain commitments which on their face pertain to
terms and conditions of employment. The Board, at fn. 6, re-
ferred to Laney & Duke Storage Warehouse Co., 151 NLRB
248 (1965), enfd. in relevant part, 369 F.2d 859 (5th Cir.
1966). In Laney & Duke, the employer unilaterally required
current employees to complete and sign new, revised job ap-
plication forms. These forms, among other things, required
the employees to agree to submit to mental examinations or
polygraph tests, to serve a 6-month probationary period, and
to accept limited recall rights if laid off. The Board held that
the employer had a duty to bargain with the representative
of its employees about the changed application forms, which
included changes in terms and conditions of employment of
unit employees. However, in Star Tribune the Board held:
‘‘To the extent that the 8(a)(5) violation is premised on a
duty to bargain about applicants, Laney & Duke is over-
ruled.’’ In sum, the Board in Star Tribune held that Laney
& Duke involved a bargaining obligation because current
employees were required to make commitments concerning
terms and conditions of employment, but there would be no
obligation if the forms were presented only to job applicants.
In light of Star Tribune, it is evident and I so find that
under Board law, the Company had no obligation to bargain
with the Union before instituting the consent form procedure.
That procedure would not vitally affect the terms and condi-
tions of unit employees, and become a mandatory subject of
bargaining, unless and until the Company instituted or in-
formed the Union that it sought to institute a practice of drug
testing employees. As the consent forms were not a manda-
tory subject of bargaining, and the Union had no knowledge
that the Company made drug testing a condition of employ-
ment of current employees until the events which gave rise
to this proceeding, it follows that the Union could not have
waived its rights in this regard.4 It further follows that the
consent forms, signed by individuals who were not yet unit
employees, and certainly not union representatives, could not
operate as a waiver or other bar to the Union’s bargaining
rights. To hold otherwise would in effect open a large loop-
hole in Section 8(a)(5) by permitting the employer to unilat-
603KYSOR INDUSTRIAL CORP.
5 Under New Horizons, interest on and after January 1, 1987, is
computed at the ‘‘short-term Federal rate’’ for the underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. § 6621.
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
erally control terms and conditions of employment through
commitments imposed on job applicants. Laney & Duke,
supra, illustrates the potential scope of such commitments.
In sum, in January 1990 the Company, unilaterally and
without prior notice to or affording the Union an opportunity
to bargain, implemented a policy and practice of requiring
unit employees, or those who signed consent forms, to sub-
mit to drug screening tests in conjunction with medical treat-
ment for on-the-job injuries, as a condition of employment.
The Company thereby violated Section 8(a)(5) and (1) of the
Act. Johnson-Bateman Co., supra. Pursuant to such policy
and practice, the Company discharged employees Mark
Sessler and Shad Smith for refusing to submit to such test-
ing. The Company thereby further violated Section 8(a)(5)
and (1), and Sessler and Smith are entitled to the usual rem-
edies of reinstatement with backpay. Fibreboard Paper Prod-
ucts Corp. v. NLRB, 379 U.S. 203, 215–217 (1964); Sand-
piper Convalescent Center, 279 NLRB 1129, 1134 (1986),
enfd. 824 F.2d 318, 324 (4th Cir. 1987); and Boland Marine
Mfg. Co., 225 NLRB 824 (1976), enfd. 562 F.2d 1259 (5th
Cir. 1977); cited with approval in Taracorp Industries, 273
NLRB 221, 222 fn. 10 (1984).
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All production, maintenance, and toolroom employees
employed by the Company at its 1100 Wright Street, Cad-
illac, Michigan facility; but excluding all executives, watch-
men, sweepers, office and clerical employees, guards and su-
pervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. At all times material, the Union has been and is the ex-
clusive collective-bargaining representative of the Company’s
employees in the unit described above.
5. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed by Section
7 of the Act, the Company has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. By unilaterally implementing a policy and practice of
requiring certain unit employees to undergo drug testing as
a condition of employment, without prior notice to or afford-
ing the Union an opportunity to bargain concerning such
practice, and by discharging Mark Sessler and Shad Smith
pursuant to such policy and practice, the Company has en-
gaged, and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
7. The aforesaid labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (5) of the Act, I shall recommend that
it be required to cease and desist therefrom and from like or
related conduct, to post appropriate notices, and to take cer-
tain affirmative action designed to effectuate the policies of
the Act. As the Company and the Union eventually nego-
tiated and agreed on a drug-free workplace policy, including
provision for drug or alcohol testing of employees under cer-
tain conditions, I do not believe that the circumstances of
this case warrant an affirmative order directing the Company
to rescind its former policy (which has been superceded by
the new policy) or to bargain with the Union concerning the
matter of drug/alcohol testing (which it has done). See Gen-
eral Electric Co., 150 NLRB 192, 285 (1964), enfd. 418
F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965. How-
ever, I shall recommend that the Company be ordered to
offer Mark Sessler and Shad Smith immediate and full rein-
statement to their former jobs, or if such jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make them
whole for any loss of earnings and benefits that they may
have suffered from the time of their termination to the date
of the Company’s offer of reinstatement. I shall further rec-
ommend that the Company be ordered to expunge from its
records any reference to the unlawful terminations of Sessler
and Smith, to give written notice of such expunction to each
of them, and to inform each of them that its unlawful con-
duct will not be used as a basis for further personnel actions
against them. Backpay shall be computed in accordance with
the formula approved in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).5 It will also be rec-
ommended that the Company be required to preserve and
make available to the Board, or its agents, on request, payroll
and other records to facilitate the computation of backpay
and reimbursement due.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Kysor/Cadillac, an Operating Division of
Kysor Industrial Corporation, Cadillac, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to bargain collectively in good faith
with the Union as the exclusive representative of all its em-
ployees in the above-described appropriate unit, by unilater-
ally changing terms and conditions of employment of unit
employees without affording the Union prior notice and an
opportunity to negotiate and bargain concerning such
changes as the representative.
(b) Terminating employees pursuant to such unilateral
changes.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Mark Sessler and Shad Smith immediate and full
reinstatement to their former jobs or, if such jobs no longer
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.’’
exist, to substantially equivalent positions, without prejudice
to their seniority or other rights and privileges previously en-
joyed, and make them whole for losses they suffered by rea-
son of their terminations as set forth in the remedy section
of this decision.
(b) Remove from their files any reference to the discharges
of Mark Sessler and Shad Smith, and notify each of them
in writing that this has been done and that evidence of the
unlawful discharges will not be used as a basis for future
personnel actions against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Cadillac, Michigan office and place of busi-
ness copies of the attached notice marked ‘‘Appendix.’’7
Copies of the notice, on forms provided by the Regional Di-
rector for Region 7, 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to bargain collectively in good
faith with International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America
(UAW) and its Local 545, as the exclusive representative of
all our employees in the appropriate unit by unilaterally
changing terms and conditions of employment of unit em-
ployees without affording that Union prior notice and an op-
portunity to negotiate and bargain concerning such changes
as the representative. The appropriate unit is:
All production, maintenance and toolroom employees
employed by us at our 1100 Wright Street, Cadillac,
Michigan facility; but excluding all executives, watch-
men, sweepers, office and clerical employees, guards
and supervisors as defined in the Act.
WE WILL NOT terminate employees pursuant to such uni-
lateral changes.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your right to engage
in union or concerted activities, or to refrain therefrom.
WE WILL offer Mark Sessler and Shad Smith immediate
and full reinstatement to their former jobs or, if such jobs
no longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for losses they suf-
fered by reason of their terminations.
WE WILL remove from our files any reference to the dis-
charges of Mark Sessler and Shad Smith, and notify them in
writing that this has been done and that evidence of the un-
lawful discharges will not be used as a basis for future per-
sonnel actions against them.
KYSOR/CADILLAC, AN OPERATING DIVISION
OF KYSOR INDUSTRIAL CORPORATION