Rca Corp.

National Labor Relations Board - Board DecisionsOct 5, 1989

296 N.L.R.B. 1175 (N.L.R.B. 1989)

RCA CORP.' . RCA Corporation and Local No . 106, International Union of Electrical , Radio and Machine Work- ers, AFL-CIO. Case 4-CA-16070 October 5, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS HIGGINS AND DEVANEY On June 14, 1988, Administrative Law Judge Lowell Goerlich issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Charging Party filed a brief in opposition to the Respondent 's exceptions . The Respondent also filed a supplemental brief. The National Labor Relations Board has delegat- ed 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 judge 's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The facts are more fully set forth in the judge's decision . On August 27, 1986, the Respondent noti- fied the Union , which exclusively represents cer- tain of its employees , that it intended to institute a preeployment drug screening program for job ap- plicants effective October 6, 1986. The Respondent already required applicants to submit to medical examinations, which included blood and urine sam- ples. The Respondent, however, had never re- quired applicants to submit to drug testing , nor had the Union and Respondent ever discussed applicant drug testing in negotiations or otherwise. The Union requested bargaining over the pro- posed applicant drug testing program . The Re- spondent refused , claiming it was not an issue on which bargaining was required . On October 6, 1986, the Respondent implemented its testing pro- gram. Based on these facts, the judge found that the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing and refus- ing to bargain collectively with the Union over the institution of an applicant drug testing program. The judge concluded that because job safety was the important incentive in the Respondent's deci- sion to institute applicant drug testing , and as em- ployee safety is an obvious condition of employ- ment, applicant drug testing was a mandatory sub- ject of bargaining . The judge found that the Re- spondent 's proposed drug testing program was a material, substantial, and significant change from the Respondent 's longstanding policy of administer- ing medical examinations to applicants , and further determined that various contractual provisions cited by the Respondent did not support its unilat- eral action . Finally, the judge rejected the Re- spondent 's claim that the Union waived any bar- gaining rights by not promptly requesting bargain- ing. The Respondent has excepted to the judge's findings. In Star Tribune, 295 NLRB 543 (1989), the Board held that applicant drug testing is not a man- datory subject of bargaining . We find nothing in this case that requires a contrary result.' For the reasons stated in Star Tribune, we therefore find that the Respondent had no duty to bargain with the Union concerning its applicant drug testing program . Accordingly , we shall dismiss the com- plaint. 2 ORDER The complaint is dismissed. i In Star Tribune , the Board rejected the judge 's finding that applicant drug testing is a mandatory bargaining subject because it vitally affects job safety . The Board held that applicant testing does not affect work- place safety and that any safety concerns "can be addressed effectively in union proposals that seek post -hiring testing of new employees." That reasoning is equally applicable in this case z Because of our disposition of the case, we do not reach the various waiver arguments the Respondent has raised Richard Wainstein, Esq., for the General Counsel. Thomas J. Barton, Esq., of Philadelphia, Pennsylvania, for the Respondent. Howard S. Simonoff, Esq., of Haddenfield, New Jersey, for the Charging Party. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge. The charge in this proceeding filed on September 8, 1986, by Local No. 106, International Union of Electrical, Radio and Machine Workers, AFL-CIO (the Union) was served on RCA Corporation (the Respondent) by certi- fied mail on September 9, 1986. A complaint and notice of hearing was issued July 31, 1987. The complaint al- leges that the Respondent instituted a program of drug testing for job applicants without affording the Union, the designated bargaining agent, an opportunity to nego- tiate and bargain concerning the drug testing program in violation of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Respondent filed a timely answer denying in gen- eral that it had committed the unfair labor practices al- leged . By way of an affirmative defense, the Respondent alleges, "Charging Party waived its right to make this complaint." This case came on for hearing on February 22, 1988, at Philadelphia, Pennsylvania . All parties were afforded full opportunity to be heard , to call, examine, and cross- 296 NLRB No. 154 1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD examine witnesses , to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor , I make the fol- lowing FINDINGS OF FACT, CONCLUSIONS OF LAW, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times material, a Delaware corporation engaged in the manufacture of electronic products and equipment . The Respondent's plant on Marne Highway in Moorestown , New Jersey, is involved in this proceeding. During the past year , in the course and conduct of its business operations described above, the Respondent pur- chased and received products valued in excess of $50,000 directly from points outside the State of New Jersey, and sold products valued in excess of $50,000 directly to points outside the State of New Jersey. The Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR UNION INVOLVED The Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. At all times material, the Respondent has recognized the Union as the exclusive representative of the Re- spondent's employees in a unit (the Unit) referred to in article 52 , paragraph 52.01 of the most recent collective- bargaining agreement (effective from November 23, 1985, to December 1, 1989) between the Union and the Respondent.' III. THE UNFAIR LABOR PRACTICES First: The Respondent and the Union are parties to a current labor agreement which extends to December 1, 1989. Although, prior to October 6, 1986, the Respondent conducted medical examinations of job applicants, which included blood and urine samples, it did not administer drug tests to its job applicants until October 6, 1986. Nor prior to such date had the issue of drug testing ever been discussed between the Respondent and the Union at any contractual negotiations or otherwise . The contract does contain this stipulation : "[T]he Company shall, without interference from the Union select and hire its employ- ees." Under the drug testing program for job applicants, a blood or urine sample is taken by a nurse or physician and sent to a laboratory , Met-Path , which conducts an initial EMIT test and, if the test is positive , conducts a second detailed and sophisticated test called a gas chro- motography and mass spectometry . The laboratory tests for the presence of marijuana , cocaine , and heroin and ' Admitted by the Respondent sends a pass/fail result to the Respondent within 24 hours. Between October 6, 1986, and February 22, 1988, 98 job applicants failed the drug test and were consid- ered ineligible for employment with the Respondent. About August 27, 1986, Claudia Fletcher, then direc- tor of RCA employee relations , informed Walter Hol- royd, president of the Union, that the Respondent in- tended to institute a preemployment drug screening pro- gram for applicants and that the program would take effect on October 6, 1986. In the discussion which fol- lowed between the Union and the Respondent , Holroyd insisted (to the point of filing the unfair labor practice charge on September 8, 1986, which is the subject of this proceeding), that the drug testing issue must be bar- gained with the Union. The Respondent refused to con- sider drug testing of job applicants as a bargainable issue and implemented its drug testing program on October 6, 1986, as noted. Second: The General Counsel and the Charging Party assert that drug testing of job applicants is a mandatory subject of bargaining. Employers and statutory employee representatives are bound to bargain in good faith about any subject that falls within the definition of a mandatory subject of bar- gaining . NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). As was also stated in Van Dorn Plastic Machinery Co. v. NLRB, 736 F.2d 343, 348 (6th Cir. 1984): Section 8(d) of the Act, 29 U.S.C. § 158(d) (1976), requires collective bargaining "with respect to wages, hours, and other terms and conditions of em- ployment." A unilateral change with respect to a mandatory bargaining subject is a violation of sec- tion 8(a)(5)."2 In the case of Operating Engineers Local 12 (AGC of Southern California), 187 NLRB 430, 432 (1970), the Board defined subjects of mandatory bargaining: Mandatory bargaining subjects are those com- prised in the phrase "wages, hours, and other terms and conditions of employment" as set forth in Sec- tion 8(d) of the Act. While the language is broad, parameters have been established , although not quantified. The touchstone is whether or not the proposed clause sets a term or condition of employ- ment or regulates the relation between the employer and its employees. In Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157, 178 (1971), the Supreme Court opined: Section 8(d) of the Act, of course, does not immuta- bly fix a list of subjects for mandatory bargaining. 2 As stated in NLRB Y Hospital Employees District 1199, 824 F.2d 318 (4th Cir 1987): Section 8(d) of the Act defines the duty to bargain under section 8(a)(5) It requires the employer to bargain over wages , hours and other terms and conditions of employment . 29 U.S.C § 158(d) Bar- gaining is mandatory for these subjects; and employer may not make changes in such matters unilaterally NLRB Y. C & C Plywood Corp., 385 U S. 421, 425 ... (1967) RCA CORP. .See, e .g., Fibreboard Corp. v. NLRB, supra, at 220- 221 [13 L.Ed.2d 243], 244; Richfield Oil Corp. v. NLRB, 97 U.S. App. D.C. 383, 389-390, 231 F.2d 717, 723-724 (1956). But it does establish a limita- tion against which proposed topics must be meas- ured. In general terms, the limitation includes only issues that settle an aspect of the relationship between the employer and employees. See, e .g., NLRB v. Borg- Warner Corp., 356 U.S. 342 [2 L.Ed.2d 823, 78 S. Ct. 718] ( 1958). [Emphasis added.] In the case of Holyoke Walter Power Co., 273 NLRB 1369, 1370 ( 1985), the Board stated , "health and safety conditions are a term and condition of employment." See also Gulf Power Co., 156 NLRB 622, 625 (1966), enfd. 384 F.2d 822 (5th Cir. 1967), "[W]e therefore find that safety provisions constitute an essential part of the em- ployees' terms and conditions of employment, and as such, are a mandatory subject of bargaining." In Judge Steward's concurring opinion in Fibreboard Products v. NLRB, 279 U.S. 203, 222 (1964), there ap- pears: What one's hours are to be, what amount of work is expected during those hours, what periods of relief are available, What safety practices are observed, would all seem conditions of one's employment. [Emphasis added.] Safety was the important incentive in placing, in effect, the Respondent 's drug testing program. The Respondent announced its purpose in instituting the drug testing program as follows: RCA Aerospace and Defense is committed to pro- viding employees with a workplace which is safe, pro- ductive and conducive to the welfare of all. As part of this obligation , management will take responsible measures to assure that prospective employees do not jeopardize the safety of the work environment by their use of illicit drugs or inappropriate use of licit drugs. Such measures include pre-employment evaluation for drug use, as prescribed by this Procedure. [Em- phasis added.] In its special newsletter the Respondent comments: Among the problems associated with drug abuse in the workplace are increased absenteeism , on-the-job accidents , damage to equipment , bad business deci- sions, as well as criminal activity such as drug deal- ing, theft , and embezzlement . [Emphasis added.] To the question about why the Respondent is imple- menting the program , the Respondent answers: To help ensure that safety, security and performance required in Company operations are maintained by excluding from employment candidates that do not pass the drug screen . [Emphasis added.] In another publication the Respondent points out that one of the problems which can be avoided with the drug screening program is "increased . . . accidents." 1177 Safety of the employee in the working environment is an obvious condition of employment which falls within the definition of the subjects of mandatory bargaining. Indeed it is important and crucial to the working em- ployee whether he or she is exposed to the hazards of industrial accidents , which may result from the employ- ment of drug users or abusers . Thus, if an employer's drug testing is so administered or is so defective as to allow drug users or abusers to become employees of the employer, the employees already employed by the em- ployer must be exposed to the dangers inherent in such a state . It follows, therefore , that the Union has an interest in the type of test chosen and how it is to be adminis- tered. The employees have a vital concern in what means the employer uses to screen out drug users and abusers . Without bargaining , the employer is left to uni- laterally decide a kind of test which may not assure em- ployees that their workplace will be free of the hazards which may result from the employment of drug users or abusers. Unfortunately there is no assurance that the drug test chosen by the employer is likely to be infallible.3 The in- crease of drug users in this country with the immensity of the problems resulting therefrom accentuates the need for the representatives of employees who are exposed to the hazard of drug users and abusers in the workplace to participates in the determination of the means of afford- ing protection to these employees.4 8 In an article written by Chris Spolar , Washington Post Staff Writer, appearing in the April 22, 1988 edition of the Washington Post, Rep. Charles E Schumer (CD-NY) is quoted as saying , "There are too many workers who are being subjected to bad tests , improper procedures and a profound lack of legal protection in the work place " 4 The Respondent published the following- OVERVIEW-DRIVING FORCES FOR CONTROLLING DRUG ABUSE Many reliable sources have been reporting that drug use is rapidly increasing throughout our country and is affecting people of all eco- nomic levels and ages • A 1982 National Institute on Drug Abuse survey highlights the extent of drug consumption in the United States Based on the sur- vey's findings , it is estimated that within the 30 days preceding the survey - Marijuana had been consumed by 20 million Americans; - Cocaine had been consumed by 4.2 million, Non-medical stimu- lants had been consumed by 2 8 million, - Non-medical tranquilizers had been consumed by I I million, and - Hallucinogens had been consumed by I million persons. - March 1986 , the President 's Commission on Organized Crime reported on the serious problem of drug trafficking and use - 20 million Americans regularly use marijuana; - 5-6 million regularly use cocaine, - 500,000 are addicted to heroin - The problem keeps getting worse Some of the Commission's recommendations included - Government should test all Federal employees; - Government should not award Federal contracts to private em- ployers who do not begin drug testing programs * October 1985 , Noel Dunivant and Associates surveyed 180 rep- resentatives of major U S corporations about their drug abuse pro- grams A significant finding was that major corporations are turning increasingly to drug screening as a means to combat the problem of drug abuse. The survey indicated that many of the nation 's largest and "leading edge" companies have implemented programs to detect Continued 1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Because the drug testing of job applicants affects the working conditions of employees in that it involves their safety in the workplace, among other things, the Re- spondent was obligated to bargain with the Union con- cerning what means were to be employed to screen out drug users or abusers.5 Thus, by initially imposing its drug testing or screening program on job applicants without bargaining with the Union in respect thereto, the Respondent violated Section 8(a)(5) of the Act.6 The Respondent's drug testing program "regulates the relations between the employer and its employees," Op- erating Engineers Local 12, supra, and "settles an aspect of the employment relationship between employer and employees." Chemical Workers v. Pittsburgh Plate Glass, supra. It clearly falls within the ambit of mandatory bar- gaining. Third: In its posthearing brief, the Respondent asserts: But even assuming that the Board were to find that drug screening job applicants is a mandatory bargaining subject, it would also have to find that RCA did not violate its duty to bargain for several reasons . First, for over thirty-five years RCA has conducted medical examinations of its applicants which include taking blood and urine samples; the additional testing of urine samples for drug use is not a material, substantial and significant change from previous practice so as to constftute a viola- tion of Section 8(d). Second , the Union has clearly and unmistakably waived its right to bargain this issue by its agreement to a specific contractual pro- vision relating to applicant selection and a manage- ment rights clause both of which permit RCA to select its employees without union interference. Third, the Union's past acquiescence in changes in the applicant selection procedures , including the im- plementation of a physical examination , a forty-hour training course requirement and a vision test also the use of illicit drugs or the abuse of prescription drugs among job applicants and present employees The trend for drug testing is steadily increasing , and it is anticipated that more companies will in- clude such programs within the next few years. * The National Household Survey on Drug Abuse states that among America's young adults (ages 18-25), the segment of popula- tion generally thought to use drugs most extensively, - 64% have tried marijuana; - 20% used marijuana daily for at least one month during their adolescence; - 20% have tried cocaine, - 84% have used alcohol. This is the population now entering the workforce See Timber Products C o, 285 NLRB 1 t 14, 1117 (1987), in which it is stated. 6 In drawing this decision , I have not been unmindful of expert Rich- ard L . Rowan 's testimony and opinion which I have carefully reviewed and evaluated . Nor have I ignored the teachings of the Supreme Court as set forth in the cases cited by the Respondent . I do not find that afford- ing the Union an opportunity to bargain in respect to the safety of em- ployees in the appropriate unit as it is effected by the employment of drug users or abusers is at odds with these decisions. It should be obvious that unit employees have vital concerns about drugs in the work place and the means by [sic] which the employer will use for screening out drug users Based on the Lockheed cases, it would appear that drug testing or screening of applicants would be a mandatory subject of bargaining The issues for bargaining are not simply whether testing should take place but include significant issues of privacy and confidentiality constitutes a clear and unmistakable waiver of the Union's right to bargain over applicant drug testing. Finally, after receiving timely notice to the pro- posed change, the Union failed to satisfy its duty to sincerely and explicitly seek bargaining and there- fore waived its opportunity to bargain under 8 (a)(5). In regard to the Respondent 's first contention it would appear that it was answered in the case of Timber Prod- ucts Co., supra at 1117-1118, in which it was stated: The only evidence on this point is that the Union has not previously bargained over pre-employment physicals . However, these physicals have never before included drug testing which raises serious technical problems and legal complications. Thus, no waiver can be implied from the prior inaction. Waiver must be clear and unmistakeable . [Citations omitted .] Silence in the bargaining agreement does not meet that test. Moreover, contrary to the claim of the Respondent, the additional testing of urine samples for drug use is a material , substantial , and significant change from previ- ous practices so as to constitute a violation of Section 8(d). Drug testing is more than an extention of the physi- cal examinations given by the Respondent in the past which were to determine fitness for employment. The urine test was only for albumen and glucose . It did not include a test for drugs . Moreover, the procedure was changed whereby job applicants were required to submit to the test at the first interview , whereas before the ap- plicant was not asked to fill out any medical forms or submit to physical examinations until after an offer of employment was extended and accepted . The new drug test injected in the procedure for employment questions regarding the types of drugs to be tested ant the proce- dures to be used and the accuracy of the test . Whereas the urine tests before were to determine whether the em- ployee's body was fit to fulfill the rigors of employment, the drug test was instituted to ascertain whether the em- ployee by inducing a foreign substance in his body ren- dered him an unfit person for employment , because such inducement could affect the safety of working employ- ees. Thus, the preemployment drug test was a material, substantial , and significant change . Cf. Murphy Diesel Co., 184 NLRB 757, 763 (1970); Miller Brewing Co., 166 NLRB 831, 832 (1967). As was well stated by the Charging Party in its brief- [W]hile the physical exam sought to establish only whether the applicant was physically able to do the job, the drug test provides the company "with a periscope through which they can peer into an indi- vidual 's behavior in her private life, even in her own home." Jones v. McKenzie, 833 F.2d 339 (D.C. Cir. 1987). Moreover, "A union's acquiescence in previous unilat- eral changes does not operate as a waiver of its right to bargain over such changes for all time . Ciba-Geigy Phar- maceuticals Division , 264 NLRB 1013, 1017 (1982), enfd. RCA CORP. 722 F.2d 1120 (3d Cir. 1983); NLRB v. Miller Brewing Co., 408 F.2d 12 (9th Cir. 1969); Rockwell International Corp., supra, fn. 6." Owens-Corning Fiberglas Corp., 282 NLRB 609 (1987). The Respondent 's first contention is not well taken.? The Respondent maintains , by the Union's agreement to the following terms of its contract with the Respond- ent, it waived its rights to bargain concerning the manda- tory bargaining issue , drug testing: Paragraph 3.04 RECOGNITION OF RIGHTS AND FUNCTIONS OF MANAGEMENT: Sub- ject only to the express provisions of this Agree- ment, the IUE agrees that supervision , management and control of the Company's business , operations and plants are exclusively the function of the Com- pany and that the Company has the right to make such reasonable rules and regulations as it considers necessary or advisable for the orderly and efficient conduct of its business. Paragraph 3.05 PROVISION AGAINST DIS- CRIMINATION, INTIMIDATION OR COER- CION: There shall be no discrimination , intimida- tion or coercion by either the Company or IUE against any employee or prospective employee be- cause of race , color, creed , sex, national origin, handicap , veteran 's status or because of union activ- ity or membership. Paragraph 52.02 UNION SHOP: All employees in the bargaining unit covered by this Agreement, shall, as a condition of employment , on the 30th day following November 6, 1985, or on the 30th day following the date of their hiring , whichever is the later , become and remain members of Local No. 106, International Union of Electronic, Electrical, Technical, Salaried and Machine Workers, AFL- CIO, in good standing. The Company shall, without interference from the Union select and hire its employees , subject to the terms and conditions of this Agreement. The credible evidence in this case establishes that drug testing was never discussed in negotiations between the parties and that the subject did not surface until the Re- spondent 's notification to the Union that it was going to implement a program for drug testing on October 6, 1986. Nor does the contract make reference to a manage- ment right to impose drug testing of job applicants as a condition for hiring . The management -rights clause above-quoted is totally silent on the subject of drug test- ing. Under these circumstances , waiver will not be in- ferred where the management-rights clause makes no ref- erence to the mandatory bargaining subject. Nothing here suggests that the Union waived its right to bargain concerning preemployment drug tests by agreeing to the management-rights clause . See Ciba-Geigy Pharmaceuti- cals Division , 264 NLRB 1013, 1016, 1017 (1982); Merillat Industries, 252 NLRB 784, 785 ( 1980). UNC Nuclear Industries , 268 NLRB 841 ( 1984), relied on by the Re- spondent , unlike the instant case did not concern material , substantial, and significant changes. 1179 Concerning section 52 .02, it neither mentions drug testing nor does a reasonable interpretation thereof indi- cate that that drug testing may be unilaterally used by the Respondent in selecting its employees . The final paragraph of section 52.02, because it follows a union-se- curity clause, undoubtedly refers to the Respondent's freedom to hire employees unaffiliated with the Union, a leftover from pre-Taft-Hartley days. The word "interfer- ence" may also refer to the barring of the Union in the hiring process such as the use of hiring halls. In any event, it seems clear that it was not intended that the Re- spondent should have carte blanche in avoiding a manda- tory bargaining issue involving drug testing as found in this case. I do not find in the language of the contract a reasona- ble interpretation which supports the claim that the Union waived bargaining over drug testing for job appli- cants . "To establish waiver of a statutory right, that right must be clearly and unmistakably relinquished ." Collater- al Control Corp., 288 NLRB 308 (1988). Respondent 's second contention is not well taken. Assuming arguendo that the Union's past practice al- lowed the Respondent to implement and change its em- ployee applicant selection procedures as contended by the Respondent , this cannot be interpreted to mean that the Union has waived its statutory right to bargain on these issues for ever and for all time . Owens-Corning Fi- berglas Corp., supra. Respondent 's third contention is not well taken. Finally, the Respondent contends that the Union waived any right to bargain because after it received timely notice of the impending change it failed to specifi- cally request bargaining. The credited facts indicate that when the Union first learned of the impending change , i.e., preemployment drug testing for job applicants , and the Respondent's in- tention to put it in effect, the change was a fait accom- pli.8 Thus, it would have been futile for the Union to have requested bargaining which proved to be the case. Hence, the Union was not required to engage in this futile effort. Rose Arbor Manor, 242 NLRB 795, 798 (1979); Carpenter Sprinkler Corp., 238 NLRB 974, 983 (1978). Cf. Transmarine Navigation Corp., 152 NLRB 998, 1004 (1965). Moreover, the Union made a timely request to bargain over the issue which request was rejected out of hand. The Respondent first notified the Union that it would in- stitute a drug testing program for job applicants in the latter part of August 1986 to take effect in October 1986. The Union's representative , Holroyd , responded that he believed "it was a matter that should be negotiated with the Union." The Respondent 's representative , Fletcher, replied that the Company did not have "to negotiate with the Union when it comes to new employees." Hol- 8 The following language from Ciba-Geigy Pharmaceuticals Division, supra, 264 NLRB at 1017, is apropos However, if the notice is too short a time before implementation [of the change to allow a reasonable opportunity to bargain ] or because the employer has no intention of changing its mind , then the notice is nothing more than informing the union of a fait accompli . [Empha- sis added ] 1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD royd countered that he was going to see the union attor- ney and "get back with her." At their next meeting, Holroyd informed Fletcher that the Union's attorney advised that the Company "must negotiate with me on the matter." Fletcher replied "the company does not have to negotiate . . . on this." As- suming arguendo that the Union was obligated to request bargaining on the issue , the Union has clearly satisfied that obligation. The Respondent 's fourth contention is not well taken. Thus, the finding must be for the General Counsel and against the Respondent. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all times material, the Respondent has recog- nized the Union as the exclusive representative of its em- ployees in the Unit referred to in article 52, paragraph 52.01 of the most recent collective -bargaining agreement (effective from November 23, 1985, to December 1, 1989) between the Union and the Respondent. The Unit is, and has been at all times material , appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.9 4. By refusing to bargain collectively with the Union concerning the institution of a program for drug testing 9 The first sentence is admitted by the Respondent job applicants and by changing the terms and conditions of employment of employees in the appropriate unit by implementing the program on October 6, 1986, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. The General Counsel requests the following remedy: Respondent should be directed to offer employment to all of the prospective employees who tested posi- tive in the program and were excluded from further consideration for employment unless the Respond- ent can demonstrate on an individual basis that the person would have been denied employment for some lawful non -discriminatory reason . Employees who were unlawfully denied employment should be made whole for lost wages, benefits, and seniority in accordance with established Board law. Because the request of the General Counsel falls within the teachings of the Supreme Court in Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), I recommend the requested remedy. [Recommended Order omitted from publication.]