Mobil Oil Corp.

National Labor Relations Board - Board Decisions

Jul 19, 1991

303 N.L.R.B. 780 (N.L.R.B. 1991)

780
303 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent argues that the privilege of confidentiality belongs solely
to the informant, who alone can waive it.
Mobil Oil Corporation, West Coast Pipe Lines and
West Coast Independent Union. Case 31–CA–
17741
July 19, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 18, 1990, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a reply 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 as modified and to adopt the recommended
Order as modified.
The judge has found that the Respondent violated
Section 8(a)(5) of the Act by refusing the Union’s re-
quest for the source of information that led to the man-
datory drug screening of three unit employees. Subse-
quent to the judge’s decision, the Board issued its de-
cision in Pennsylvania Power Co., 301 NLRB 1104
(1991). Based on the rationale of that decision, as sum-
marized below, we find that the Respondent did not
unlawfully refuse to disclose the name of the person
who reported drug use by the three employees, but it
did violate Section 8(a)(5) by failing to provide a sum-
mary of the informant’s report.
The Respondent has an established alcohol and drug
control policy, which includes mandatory physical test-
ing of employees suspected of drug use, even off-
premises. At some time prior to February 16, 1986, an
individual came to the Respondent’s field superintend-
ent and claimed knowledge about drug use by three of
the Respondent’s employees. Although the Respondent
has no general policy of keeping its drug use informa-
tion sources confidential, the informant here secured a
guarantee of confidentiality before providing any de-
tails. The substance of the informant’s report was then
relayed to upper management, who relied on the report
as the ‘‘reasonable cause’’ for insisting that unit em-
ployees Guy Rodgers, Ronn McFadden, and Gregory
Gill submit to drug screening. All three employees
eventually signed authorizations for screening, tested
positive, went into treatment, received disability pay,
were rehabilitated, and returned to duty. The Union
filed a grievance over the matter and requested that the
Respondent divulge the source and substance of the re-
port that precipitated the screening demand. The Re-
spondent flatly refused to supply the requested infor-
mation, asserting that the information was confidential.
The judge reasoned that the Respondent had ‘‘no
basis for asserting a defense of confidentiality in view
of the evidence presented in this case.’’ According to
the judge, the ‘‘Respondent has not claimed that it
feared retaliation against its informant. Nor has it pre-
sented any evidence that would support such a conten-
tion, had it been advanced.’’ Nevertheless, the judge
set forth his view of the evidentiary standards the Re-
spondent would have had to satisfy in order to sustain
a defense of retaliatory concern. In this regard, the
judge would have required the Respondent to show
evidence of past retaliation by the Union against em-
ployees who reported misconduct by coworkers. Alter-
natively, according to the judge, the Respondent would
have had to show evidence of direct threats by union
agents against the informant.
The Respondent argued before the judge and con-
tinues to contend that it should be free to maintain the
confidentiality of its informant. The Respondent bases
its position on the privacy rights of the information
source1 and a legitimate concern for possible retalia-
tion against the informant. The Respondent further
contends that if it is not able to maintain the confiden-
tiality of its information sources, fellow employees or
others may be deterred from coming forward with in-
formation regarding drug use by employees. Finally,
the Respondent notes that the potential danger to life,
property, and the environment from an accident on a
petroleum pipeline caused or aggravated by a drug im-
paired employee is obvious. The Respondent urges that
there is a public interest in protecting the confiden-
tiality of those who reveal illegal drug use by its em-
ployees. We find these arguments persuasive.
In Pennsylvania Power, the Board applied the bal-
ancing-of-interests test endorsed by the Supreme Court
in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979),
in evaluating an employer’s claim of confidentiality as
a defense for its refusal to provide information which
supported a suspicion of drug use and lead to the drug
testing of 16 employees. The Board determined that
the union had a legitimate interest in having the re-
quested information—including, inter alia, the names
and addresses of informants who supplied information
about drug use and summaries of their statements—in
order to process a grievance about the drug testing. On
the other hand, the Board found that the confidentiality
interests related to the respondent’s ‘‘efforts to control
possible drug-related impairment of employee job per-
formance [were] entitled to unusually great weight.’’
301 NLRB 1104 at 1107. The Board gave particular
emphasis to the clear connection between the drug in-
formant confidentiality pledge and safety concerns re-
lated to the inherent dangers of the employer’s produc-
tion and transmission of electrical power, generated, in
781MOBIL OIL CORP.
2 It is well established that the Respondent had no obligation to provide the
informant’s actual statement prior to an arbitration hearing. Anheuser-Busch,
Inc., 237 NLRB 982 (1978).
some instances, by nuclear fuels. It also referred to the
presumptive potential for harassment of informants in
the investigation of criminal drug activity.
Based on the foregoing assessment of the competing
interests involved in Pennsylvania Power, the Board
found that the respondent’s legitimate confidentiality
interest in withholding the identity of informants out-
weighed the union’s legitimate need for informants’
names and addresses. It further found, however, that
the respondent’s confidentiality and other interests
were not so great as to outweigh the union’s need for
any information about the respondent’s basis for sus-
pecting drug use by those employees who were forced
to submit to drug testing. The respondent was required
to provide the union with a summary of informants’
statements, and its failure to have done so was found
to be a violation of Section 8(a)(5).
The circumstances in this case are essentially the
same as in Pennsylvania Power. The Union was proc-
essing a grievance about the mandatory drug testing of
three employees. It had a legitimate interest in know-
ing the information which created the suspicion sup-
porting the Respondent’s demand that the employees
be tested. The Respondent, on the other hand, had se-
cured its information only after giving a specific
pledge of confidentiality to its informant. We do not
rely on the Respondent’s claim that only the informant
could thereafter waive confidentiality to permit his or
her identification to the Union. See New Jersey Bell
Telephone Co., 289 NLRB 318, 319–320 (1988). We
nevertheless find that the Respondent’s own interest in
maintaining a confidentiality pledge given in further-
ance of its drug control policy is entitled to ‘‘unusually
great weight.’’ The pledge of confidentiality is reason-
able in light of the general potential for retaliation
against informants in the investigation of criminal drug
use. Furthermore, we agree with the Respondent that
there is an obvious relationship between the drug in-
formant confidentiality pledge and the prevention of
personal injury and environmental disaster that could
result from an oil pipeline accident caused by a drug-
impaired employee. Consequently, we find that the Re-
spondent’s confidentiality interest outweighs the
Union’s interests with respect to identification of the
person whose information led to the demand that three
employees be tested for drug use.
As in Pennsylvania Power, however, the confiden-
tiality defense is not a complete defense for the Re-
spondent’s refusal to provide any information about
the evidence it relied on to mandate drug testing. Rec-
ognizing the Union’s legitimate need for information
regarding the substance of the report which aroused
suspicions of drug use, we find that the Respondent
was obligated to supply the Union with a summary of
the informant’s report.2 It therefore violated Section
8(a)(5) of the Act by refusing to give this information.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mobil
Oil Corporation, West Coast Pipe Lines, Torrance,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) On request, provide the Union with a summary
of the statement provided by the informant, on which
the Respondent relied to form its ‘‘suspicion’’ and led
it to perform drug tests on employees Guy Rodgers,
Ronn McFadden, and Gregory Gill. This summary
need not contain any information from which the iden-
tity of the informant can be ascertained, and any doubt
whether the information can be used to identify the in-
formant should be resolved in favor of nondisclosure.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail and refuse to bargain collectively
with West Coast Independent Union as the representa-
tive of our employees in the appropriate bargaining
unit of all employees described in article I of the cur-
rent collective-bargaining contract with that labor orga-
nization, excluding all other employees, guards and su-
pervisors as defined in the Act, by refusing to prompt-
ly furnish it with requested information that is relevant
and reasonably necessary to processing grievances for
arbitration.
WE WILL NOT in any like or related manner engage
in conduct in derogation of our statutory duty to bar-
gain in good faith with that labor organization.
782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless stated otherwise, all dates occurred in 1989.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights set forth above which are guaranteed by the Na-
tional Labor Relations Act.
WE WILL, on request, provide the Union with a sum-
mary of the statements provided by the informant, on
which we relied to form a ‘‘suspicion’’ and which led
us to perform the drug tests. This summary need not
contain any information from which the identity of the
informant can be ascertained, and any doubt whether
the information can be used to identify the informant
should be resolved in favor of nondisclosure.
MOBIL OIL CORPORATION, WEST COAST
PIPE LINES
Alice Joyce Garfield, for the General Counsel.
William C. Bottger Jr. and Thomas A. Ryan (Latham & Wat-
kins), of Los Angeles, California, for the Respondent.
Donald Ford, of Paso Robles, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Bakersfield, California, on November 8,
1989.1 On August 30 the Regional Director for Region 31
of the National Labor Relations Board (the Board), issued a
complaint and notice of hearing, based on an unfair labor
practice charge filed on July 9 and amended on August 2,
alleging violations of Section 8(a)(1) and (5) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq. (the Act). All
parties have been afforded full opportunity to appear, to in-
troduce evidence, to examine and cross-examine witnesses,
and to file briefs. Based on the entire record, on the briefs
filed on behalf of the General Counsel and of Respondent,
and on my observation of the demeanor of the witnesses, I
make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
At all times material, Mobil Oil Corporation, West Coast
Pipe Lines (Respondent), has been a Delaware corporation
with an office and principal place of business located in Tor-
rance, California, and has engaged in the production and dis-
tribution of petroleum products. In the course and conduct of
those business operations, Respondent annually sells and
ships goods or services valued in excess of $50,000 directly
to customers located outside of the State of California.
Therefore, I conclude that at all times material, Respondent
has been an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, West Coast Independent Union (the
Union), has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The ultimate issue in this case is whether Respondent vio-
lated Section 8(a)(5) and (1) of the Act by its responses to
the Union’s request for information concerning Respondent’s
insistence that three employees submit to drug screening.
Since it prevailed in a Board-conducted election in 1971, the
Union continuously has been the bargaining agent for all em-
ployees described in article I of its current collective-bar-
gaining contract with Respondent, excluding all other em-
ployees, guards, and supervisors as defined in the Act, an ad-
mittedly appropriate bargaining unit within the meaning of
Section 9(b) of the Act. Independent of that bargaining rela-
tionship, in 1985 Respondent implemented an alcohol and
drug control policy. That policy was, and is, intended to en-
sure a workplace free of substance abuse, thereby promoting
safety for employees, the public, and the environment. Ap-
parently because it agreed with the policy, the Union never
challenged Respondent’s formulation and implementation of
that policy. Nor did it insist on including its terms in subse-
quent collective-bargaining contracts with Respondent. Thus,
there is no mention of Respondent’s alcohol and drug control
policy in the current contract, which has a stated effective
term of May 20, 1988, until midnight April 30, 1990.
The aspect of that policy involved in this proceeding per-
tains to a situation where an employee is suspected of having
ingested alcohol or drugs, though not while on the job nor
on Respondent’s premises and, further, not to the degree that
there has been actual impairment of that employee’s job per-
formance. An employee in such a situation is first given an
opportunity to sign an authorization to obtain blood, breath,
or urine samples, with those procedures being administered
by personnel in Respondent’s medical department. An em-
ployee who rejects signing that authorization is suspended
for 10 days, without pay, to reflect on whether or not to ad-
here to his/her rejection. If the employee still declines to
consent to screening at the end of that 10-day period, he/she
is terminated.
Conversely, if the employee consents to screening and if
the results are negative, that employee is restored to duty and
is made whole for any pay loss resulting from his/her sus-
pension. But if an employee tests positive, the medical de-
partment provides an opinion as to whether or not its per-
sonnel believes that the employee can be rehabilitated. If the
opinion is that rehabilitation is not possible, the employee is
terminated. However, if medical department personnel ren-
ders a contrary opinion, the employee is offered the choice
of undergoing rehabilitation, receiving short-term disability
benefits in lieu of time off for illness during the rehabilita-
tion period, or of being terminated if he/she rejects rehabili-
tation.
This case originated with an off-duty/off-company prem-
ises poker game among some of Respondent’s employees.
Afterward, one of the players reported to his field supervisor
that three unit employee-players—Guy Rodgers, Ronn
McFadden, and Gregory Gill—had smoked marijuana and
possibly had ingested cocaine during the course of the game.
783MOBIL OIL CORP.
2 Indeed, in connection with the processing of grievances, art. XIII, sec. 151
of the current contract obliges each party ‘‘to furnish the other party with all
information in its possession regarding such grievance which may be necessary
to a full understanding of the subject matter of the complaint and to facilitate
the prompt handling of complaints.’’
However, before divulging that information to Respondent,
that individual, also an employee of Respondent, extracted a
promise that his identity would remain confidential. Re-
spondent has kept its promise. While it is generally under-
stood that the witness secured that promise because of feared
retaliation, the record is devoid of particularized evidence
that objectively would support the legitimacy of such fear.
The substance of that report was relayed up the manage-
ment chain of command. Ultimately, a decision was made to
insist that all three employees submit to drug screening. Con-
sequently, on February 16 they were summoned to a meeting
with Senior Employee Relations Coordinator Bill Traylor and
Field Supervisor Terry Parrent. The above-described alcohol
and drug control policy’s options were explained to them. In
the end, all three signed authorizations for screening. Rod-
gers and Gill did so during the meeting. McFadden returned
to Respondent’s facility later that same day to do so, fol-
lowing his suspension for not having done so during the
meeting, as had Rodgers and Gill. Each employee tested
positive. Later, all three of them were judged eligible for,
and successfully underwent, rehabilitation.
Meanwhile, communications concerning the screening de-
mand were exchanged between the Union and Respondent.
In them, the Union requested production of the information
that had generated Respondent’s screening demand; Re-
spondent repeatedly replied only that such information was
confidential. For example, Taft Area Shop Steward Dale
Hood had attended part of the February 16 meeting as the
representative of the three employees. It is not disputed that,
during that meeting, he had asked the basis of Respondent’s
‘‘reasonable cause’’ for insisting that the three employees be
screened, but had been told by Traylor ‘‘that it was basically
company confidentially [sic]. They didn’t need to disclose
that information.’’ Similarly, it is not controverted that Union
President Donald Ford twice asked for this same information
during February telephone conversations, but was told both
times by Traylor that it was confidential.
As these responses show, Respondent initially did not in-
form the Union that the source of its information had been
a report by an employee. Nevertheless, some of the employ-
ees at least suspected as much. For, Hood testified that Rod-
gers, McFadden, and Gill discussed the fact that employee
Kevin Krist had been involved in their activity and, also, had
been present at Respondent’s facility on February 16, but
neither had been included in the meeting with Traylor and
Parrent, nor had been subjected to screening. Similar discus-
sions centered on employee Val Flores, who also had been
a poker player.
A supervisor reported to Traylor that Krist had complained
bitterly about assertedly being told by Hood that Respondent
had identified him (Krist) as the informant. This led to a
meeting in late February at which Traylor warned Hood that
Respondent would take action to prevent harassment of Krist
or of any other employee intimidated by coworkers regarding
the incident. However, not until October 26, at the earliest,
did Respondent actually tell the Union that it had been an
employee’s report that had led to insistence that Rodgers,
McFadden, and Gill submit to screening. Further, Traylor ac-
knowledged that Respondent never offered the Union the op-
tion of discussing the substance of the information provided
by the source, without divulging the source’s name.
When he testified, Traylor acknowledged Respondent’s
willingness, and apparently its statutory obligation as well, to
disclose this type of information in the usual situation: ‘‘if
there would have been no request for confidentiality, there
would have been [no] reason for us to guard the information
and we would have exchanged it with the [Union.]’’2 How-
ever, as Respondent’s counsel explained during his opening
statement:
The individual came forward with the understanding
and with the request that that individual’s identity not
be disclosed. Management has honored that commit-
ment and has felt obliged to adhere to its agreement to
protect the privacy of the individual who provided it
with the information and to preserve that confiden-
tiality.
Concerned about the procedure followed by Respondent,
and by its refusal to disclose the information that had led to
that procedure, the Union filed a grievance, challenging Re-
spondent’s ‘‘refus[al] to provide the Union with evidence in
support of [Respondent’s] charge against the grievants.’’ In
its grievance, the Union stated expressly that it believed there
was ‘‘no factual evidence’’ to support Respondent’s screen-
ing demand and, accordingly, that Respondent should not
have insisted on screening, especially as Parrent had admitted
that there had been no improper job performance by any of
the three employees. The Union also pointed out that it was
concerned about the longer range implications of Respond-
ent’s February 16 conduct: ‘‘Obviously, the company’s meth-
od can be used to force any employee into a rehabilitation
program. The Union disagrees with an implementation of
such a program.’’ However, due to the absence of a provi-
sion in the contract pertaining to the alcohol and drug control
policy, Respondent countered that the subject was not a
grievable one. That contention was the subject of an arbitra-
tion conducted on October 26, 2 weeks before the hearing
in this matter.
Finally, Ford testified that had Respondent supplied the re-
quested information, he did not intend to contact the witness
to interview him prior to arbitration. Instead, testified Ford,
the Union ‘‘would . . . subpoena him to the arbitration and
ask him his side of the story.’’ Ford explained in this con-
nection that, ‘‘I would not contact him directly because the
company is the one who took the information . . . [and] are
the ones that have to answer to what took place. They would
be the ones that I would want the evidence from. They’re the
ones that took it and used it.’’ Indeed, Ford testified that he
never had asked Rodgers, McFadden, and Gill if they actu-
ally had used drugs, because, ‘‘if the company has the evi-
dence then the company’s well within their right, I mean, if
the evidence is legit.’’
Recently, the Board concluded that, to the extent it applies
to employees already working for an employer, a
‘‘drug/alcohol testing requirement is a condition of employ-
ment because it has the potential to affect the continued em-
ployment of employees who become subject to it.’’ Johnson-
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent chose to characterize such conduct as harassment. But, Krist
was not called as a witness to provide direct evidence about what had been
said to him by other employees. Nor is there independent evidence that em-
ployee remarks to Krist had been accompanied by express or implied threats
of retaliation against him. Indeed, it is as inferable that the remarks to Krist
were intended as a device for securing an off-guard admission that he had
been the informant, as it is to infer that the employees were trying to harass
Krist. If the former is the fact, then Krist’s discomfort was a direct con-
sequence of Respondent’s own agreement to a secretive approach to an in-
formant’s report.
Bateman Co., 295 NLRB 180 at 183 (1989). Of course, that
is the situation presented in the instant case. As discussed
above, Respondent’s policy, as applied to suspected sub-
stance abusers, contemplates termination if an employee de-
clines to undergo screening, or if Respondent’s medical per-
sonnel determines that a screened employee cannot be reha-
bilitated successfully, or if rehabilitation is not successful in
the case of an employee who participates in it. Consequently,
Respondent was obliged to bargain with the Union con-
cerning the terms of its alcohol and drug control policy.
That obligation is not altered by fact that no mention of
the policy is contained in the current collective-bargaining
contract. For, Respondent has presented no evidence of
Union conduct that would satisfy the clear and unmistakable
standard imposed to establish existence of waiver of the right
to bargain about that mandatory subject during the contract’s
term. Moreover, that statutory right is not diminished by the
fact that the Union does not seek to bargain about the pol-
icy’s goals and procedures, but instead seeks to bargain only
about the basis for selecting employees to whom the policy
has been, and will be, applied. Nothing in the Act obliges
a bargaining agent to negotiate about all aspects of a manda-
tory subject or, alternatively, about none at all. Procedures
for selecting employees to undergo screening are no less an
integral component of Respondent’s alcohol and drug control
policy than the means used to actually screen and, if war-
ranted, to rehabilitate them. In fact, even where the Board
has concluded that there is no duty to bargain about formula-
tion of particular programs affecting employees, it has held
that there is, in effect, a duty to bargain about application of
such programs to employees in particular situations. See,
e.g., Capital Times Co., 223 NLRB 651 (1976).
‘‘There can be no question of the general obligation of an
employer to provide information that is needed by the bar-
gaining representative for the proper performance of its du-
ties.’’ NLRB v. Acme Industrial Co., 385 U.S. 432, 432–436
(1967). Since the Union’s concern centered on Respondent’s
reason for having selected Rodgers, McFadden, and Gill for
screening, the information on which Respondent had relied
in making that decision could not have been more central to
that concern. That conclusion is not altered by the fact that
the Union did not ask the three affected employees whether
or not they had ingested drugs prior to February 16. Nor is
it affected by the screening’s assertedly conclusive proof of
that fact, followed by all three employees’ willingness to un-
dergo rehabilitation. For, the Union is not challenging the
employees’ conduct. Rather, it is questioning the basis for
Respondent’s decision to suddenly select these employees
and demand that they submit to the intrusive process of
screening, where there has been no showing of job
misperformance nor of misconduct on Respondent’s
worktime or premises. Only Respondent could supply the in-
formation pertaining to the Union’s limited concern.
In these circumstances, the information sought by the
Union was relevant for proper performance of its duties as
a bargaining agent. But that conclusion does not end the in-
quiry. A bargaining agent’s right to information is not abso-
lute. Detroit Edison Co. v. NLRB, 440 U.S. 301, 318 (1979).
During almost the entire period between the Union’s initial
request on February 16 and the hearing in this matter Re-
spondent told the Union that the information, on which it had
based its screening demand, was confidential. No further ex-
planation was provided. Yet, even in situations where a le-
gitimate confidentiality interest exists, so preemptory a re-
sponse does not necessarily discharge an employer’s statu-
tory obligation to provide relevant information. Rather, an
employer has ‘‘a duty to come forward with some offer to
accommodate its [confidentiality] concerns with its bar-
gaining obligation.’’ (Citations omitted.) Maben Energy
Corp., 295 NLRB 149, 150 at fn. 1 (1989). See generally
E. W. Buschman Co. v. NLRB, 820 F.2d 206, 209 (6th Cir.
1987), and Safeway Stores v. NLRB, 691 F.2d 953 (10th Cir.
1982). An unexplained response of confidentiality, unaccom-
panied by some satisfactory alternative means for providing
information needed by a bargaining agent, does not satisfy
that obligation.
Furthermore, there is no basis for asserting a defense of
confidentiality in view of the evidence presented in this case.
The Board has acknowledged as a general proposition that,
‘‘should the likelihood of witness coercion be established at
the hearing, the necessity and relevance of the requested in-
formation would require further inquiry.’’ Conoco Chemicals
Co., 275 NLRB 39, 40 (1985). However, Respondent has not
claimed that it feared retaliation against its informant. Nor
has it presented any evidence that would support such a con-
tention, had it been advanced. For example, there is no evi-
dence of past retaliation by the Union against employees who
reported misconduct by coworkers or who otherwise pro-
vided evidence useful to Respondent in processing griev-
ances. Nor is there evidence of direct threats by union agents
against the employee who made the report leading to the
February 16 screening demand. In fact, when Krist reported
that he had been accused of being the individual who had
made that report,3 Traylor had summoned Hood and had
warned that discipline would be imposed against those who
harassed any employee in connection with the screening de-
mand. So far as the record discloses, there were no subse-
quent comments directed at potential employee-witnesses in
connection with the incident. Accordingly, Respondent pos-
sessed the necessary for means for protecting its informant,
short of impairing the Union’s ability to fully represent an
employee for whom it was the bargaining agent.
In fact, any contention of realistic fear of informant har-
assment is obliterated completely by Traylor’s admission that
Respondent ordinarily would have disclosed that individual’s
identity to the Union, except for the promise of confiden-
tiality made to him. ‘‘[A] preference for confidentiality on
the part of . . . employees does not nullify [a bargaining
agent’s] right to the information.’’ (Citations omitted.)
WCCO Radio v. NLRB, 844 F.2d 511, 515 (8th Cir. 1988).
See also New Jersey Bell Telephone Co., 289 NLRB 318,
319–320 (1988); Detroit News, 270 NLRB 380 (1984), enfd.
759 F.2d 959 (D.C. Cir. 1985). ‘‘Otherwise, virtually all re-
quests for information on activities leading to disciplinary or
785MOBIL OIL CORP.
potential legal action would be found to have such status.’’
Postal Service, 289 NLRB 942, 944 (1988).
Furthermore, it hardly can be maintained with persuasion
that, in making such a report, an employee is disclosing sen-
sitive personal information that threatens his/her own ego
and sense of self-worth. To the contrary, in doing so, that
employee fairly can assume that the report will lead to em-
ployer-action directed at coworkers. In addition, as is shown
by Traylor’s testimony that Respondent ordinarily would dis-
close the informant’s identity to the Union, Respondent has
no established policy of maintaining confidentiality con-
cerning information provided by employees about other em-
ployees. And, as pointed out above, there is no direct evi-
dence of any concrete basis for the fear of potential retalia-
tion expressed by the informant to Respondent. In these cir-
cumstances, Respondent has failed to establish a statutorily
countenanced basis for a confidentiality defense. See, e.g.,
Salt River Valley Water Users’ Assn. v. NLRB, 769 F.2d 639,
642–643 (9th Cir. 1985). To the contrary, its curt assertion
of confidentiality serves only to frustrate the Union’s attempt
to procure needed information on the basis of, at best, an ad
hoc decision based on the parochial speculation of a single
employee.
That conclusion is not mitigated by Respondent’s October
26 disclosure that, in selecting those three employees on Feb-
ruary 16, it had been relying solely on the report of a wit-
ness. Although obviously a more forthcoming response than
its previous ones, Respondent still was not willing to make
a full disclosure. It remained unwilling to disclose the in-
formant’s identity. Nor did it offer to reach an accommoda-
tion in that respect. That is, so far as the record discloses,
it was not wiling to disclose the substance of that individ-
ual’s report. Accordingly, the belatedly provided information
advanced the Union’s effort to determine the basis for Re-
spondent’s selection of Rodgers, McFadden, and Hill for
drug screening, but the advance was not a long one. Instead,
it served only to narrow the number of possibilities, while
continuing to bar the Union from access to information
‘‘both relevant and necessary to enable the Union to make
an intelligent judgment with respect to the merits of its griev-
ance and a decision whether to proceed to arbitration.’’
(Footnote omitted.) Transport of New Jersey, 233 NLRB
694, 695 (1977).
That conclusion is not changed by the fact that, had it re-
ceived the name of the informant, the Union did not intend
to interview him prior to arbitration. The usual assumption
is that information should be submitted to a bargaining agent
in connection with grievance processing, ‘‘to encourage reso-
lution of disputes, short of arbitration hearing, briefs and de-
cision so that the arbitration system is not ‘woefully overbur-
dened.’’’ Pfizer, Inc., 268 NLRB 916, 918 (1984), enfd. 763
F.2d 887 (7th Cir. 1985) (quoting from NLRB v. Acme Indus-
trial Co., supra). But no case holds that a bargaining agent
can use requested information solely for that purpose. Nor
does any case hold that it must be used for that purpose.
Rather, the information only need be ‘‘of use to the union
in carrying out its statutory duties and responsibilities.’’
NLRB v. Acme Industrial Co., supra, 385 U.S. at 437.
One of those duties and responsibilities is to provide rep-
resentation, on behalf of employees for whom a union serves
as bargaining agent, during the arbitration stage of disputes
resolution. See generally Vaca v. Sipes, 386 U.S. 171 (1967).
Here, the Union’s grievance challenged specifically the suffi-
ciency of the information that led Respondent to insist that
Rodgers, McFadden, and Gill submit to screening. As Re-
spondent acknowledges, that insistence was based solely on
the report of one other employee. If provided with the indi-
vidual’s name, the Union intended to call him as a witness
to describe the substance of his report. In that way, the arbi-
trator could decide whether or not the report provided an
adequate basis for Respondent’s insistence that particular em-
ployees submit to screening. Inasmuch as that was the issue
posed by the grievance, ‘‘the information sought by the
[Union] was relevant to its presentation of [its] grievance,’’
NLRB v. Pfizer, Inc., 763 F.2d 887, 890 (7th Cir. 1985), and,
consequently, to performance of an important aspect of the
duties and responsibilities owed to employees whom it rep-
resented. Accordingly, the fact that the Union did not seek
to conduct a prearbitration interview of Respondent’s inform-
ant, if provided with his name, does not nullify the relevance
of the requested information to a statutory duty and responsi-
bility of the Union.
Nor is Respondent relieved of its obligation to provide in-
formation by its challenge to arbitrability of the grievance.
True, the Board has agreed that information need not be dis-
closed where it is certain that a grievance cannot be arbi-
trated. See Calmat Co., 283 NLRB 1103 (1987). However,
Respondent has not presented evidence that would establish
that, at the time of the information requests, there was no
probability that an arbitrator could conclude that the dispute,
concerning Respondent’s February 16 insistence on drug
screening, could be arbitrated under the provisions of its con-
tract with the Union. ‘‘[B]efore a union is put to the effort
of arbitrating even the question of arbitrability, it has a statu-
tory right to potentially relevant information necessary to
allow it to decide if the underlying grievances have merit and
whether they should be pursued at all.’’ Safeway Stores, 236
NLRB 1126 fn. 1 (1978). As the court concluded in enforc-
ing that decision, ‘‘This requirement of grievability is not
now a part of federal labor law, and we decline to add it.’’
NLRB v. Safeway Stores, 622 F.2d 425, 430 (9th Cir. 1980).
There can be no dispute about the societal interest in pre-
venting the harm that substance abuse potentially can cause
coworkers, the public, and the environment when employees
try to work while influenced by alcohol or drugs. However,
Respondent is not a solo actor in the scenario of its preven-
tion. Under the conclusion of Johnson-Bateman Co., supra,
a bargaining agent such as the Union shares the stage in for-
mulating programs to minimize that abuse and its harm.
Nothing in this record shows a lack of concern by the Union
with the problem. To the contrary, its officials made plain
the Union’s agreement with the goals of Respondent’s pol-
icy. Nonetheless, generalized goals are but a single aspect of
a substance abuse program. The methods of implementing
those goals, through formulation of procedures for applica-
tion in particular situations, are of no less concern to a bar-
gaining agent. Here, Respondent deprived the Union of its
right to participate in that aspect of the alcohol and drug con-
trol policy by refusing, without legitimate reason, to provide
information necessary to development of criteria for applica-
tion of that policy to particular employees. In so doing, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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 objec-
tions to them shall be deemed waived for all purposes.
5 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
CONCLUSION OF LAW
Mobil Oil Corporation, West Coast Pipe Lines has com-
mitted an unfair labor practice affecting commerce by refus-
ing to disclose the source of its information about off-duty
drug use by employees to West Coast Independent Union in
connection with the processing of a grievance concerning the
basis for selecting particular employees for drug screening,
thereby violating Section 8(a)(5) and (1) of the Act.
REMEDY
Having found that Mobil Oil Corporation, West Coast Pipe
Lines engaged in an unfair labor practice, I shall recommend
that it be ordered to cease and desist therefrom and that it
be ordered to take affirmative action to effectuate the policies
of the Act. With respect to the latter, it shall be ordered to
make available to West Coast Independent Union the name
of the employee whose report led to the selection of Guy
Rodgers, Ronn McFadden, and Gregory Gill for drug screen-
ing on February 16, 1989.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Mobile Oil Corporation, West Coast Pipe
Lines, Torrance, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain collectively with West
Coast Independent Union as the representative of employees
in the appropriate bargaining unit of all employees described
in article I of the current collective-bargaining contract with
that labor organization, excluding all other employees,
guards, and supervisors as defined in the Act, by refusing to
promptly furnish it with requested information that is rel-
evant and reasonably necessary to the processing of griev-
ances for arbitration.
(b) In any like or related manner engaging in conduct in
derogation of its statutory duty to bargain in good faith with
West Coast Independent Union, and in any like or related
manner interfering with, restraining, or coercing employees
in the exercise of rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, furnish West Coast Independent Union
with the name of the employee whose report led to the selec-
tion of Guy Rodgers, Ronn McFadden, and Gregory Gill for
submission to drug screening on February 16, 1989.
(b) Post at its Taft, California facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice on
forms provided by the Regional Director for Region 31, after
being duly signed by its authorized representative, shall be
posted by Mobil Oil Corporation, West Coast Pipe Lines im-
mediately upon receipt thereof and be maintained by it for
60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to ensure that
those notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Mobil Oil Corpora-
tion, West Coast Pipe Lines has taken to comply.