Union-Tribune Publishing Co.

National Labor Relations Board - Board Decisions

Sep 9, 2008

353 N.L.R.B. 11 (N.L.R.B. 2008)

UNION-TRIBUNE PUBLISHING CO.
353 NLRB No. 2
11
Union-Tribune Publishing Co., a division of Copley
Press, Inc. and Graphic Communications Con-
ference, International Brotherhood of Team-
sters, Local 432M, Graphic Communications In-
ternational Union. Case 21–CA–37535
September 9, 2008
DECISION AND ORDER
BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN
On April 24, 2008, Administrative Law Judge Burton
Litvack issued the attached decision. The Charging
Party filed exceptions and a supporting brief, and the
Respondent filed cross-exceptions, a supporting brief,
and an answering brief. The General Counsel filed an
answering brief to the Respondent’s cross-exceptions.
The National Labor Relations Board1 has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions2 and to adopt the recommended
Order as modified below.3

1 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
2 The Respondent has implicitly excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally changing the drug-testing policies for the
packaging unit and the pressroom unit, we emphasize that the Respon-
dent failed to carry its burden to prove, as an affirmative defense, that
its actions were consistent with an established past practice. See
Champion Home Builders, 350 NLRB 788, 791 (2007); Eugene Iovine,
Inc., 328 NLRB 294, 295 fn. 2 (1999), enfd. 1 Fed. Appx. 8 (2d Cir.
2001).
With respect to the packaging unit, we find it unnecessary to rely on
the judge’s finding that the Federal standard for OSHA-recordable
hearing loss changed in December 2004. Regardless of the applicable
standard, the Respondent concedes in its brief that before 2006, it did
not have a consistent practice of sending employees with OSHA-
recordable hearing loss to the company doctor. Furthermore, the Re-
spondent’s loss control manager, David Ferguson, conceded at the
hearing that he was unable to locate any documentation that such em-
ployees were sent to the doctor and drug tested prior to 2006.
With respect to the pressroom unit, as the judge found, there is no
evidence that the Union was aware that Ferguson had a practice of
making the initial determination whether an employee’s cumulative
trauma disorder (CTD) claim was valid—and ordering drug testing if
he found that it was not—before the company doctor diagnosed the
AMENDED CONCLUSIONS OF LAW
Substitute the following for the judge’s Conclusions of
Law 3 and 4.
“3. The Union is the representative for purposes of col-
lective bargaining of the following appropriate unit of the
Respondent’s employees within the meaning of Section
9(a) of the Act:
All full-time and regular part-time Packaging
Department employees, including packagers and
operators, employed by the Respondent at its fa-
cility located at 350 Camino de la Reina, San
Diego, California; excluding all other employees,
office clerical employees, professional employ-
ees, guards, and supervisors as defined in the
Act.
“4. The Union is the representative for purposes of col-
lective bargaining of the following appropriate unit of the
Respondent’s employees within the meaning of Section
9(a) of the Act:
All employees engaged in the operation of its
presses, paperhandlers and wipers employed by
the Respondent at its facility located at 350

employee. In these circumstances, we find that the Respondent failed
to prove that Ferguson acted in accordance with an established past
practice that had become an implied term or condition of employment.
See Riverside Cement Co., 296 NLRB 840, 841 (1989) (“a practice not
included in a written contract can become an implied term and condi-
tion of employment by mutual consent of the parties”) (emphasis sup-
plied); BASF Wyandotte Corp., 278 NLRB 173, 180 (1986) (“It is
implicit in establishing a past practice that the party which is being
asked to honor it be aware of its existence.”).
We grant the Respondent’s unopposed motion to correct the spelling
of Pressroom Supervisor Lee Otineru’s last name (misspelled in the
transcript as “Ontinero”).
3 We shall modify the judge’s conclusions of law and recommended
Order and substitute a new notice to correct the unit description and to
conform to the Board’s standard remedial language.
The Respondent contends that a cease-and-desist provision and af-
firmative bargaining order are no longer appropriate with respect to the
packaging unit because the Respondent withdrew recognition of that
unit based on a petition that it received after the record closed. We
leave that issue to the compliance stage of the proceedings, where the
Respondent will have the opportunity to show that the Union no longer
has the support of a majority of the packaging unit employees.
The judge applied Anheuser-Busch, Inc., 351 NLRB 644 (2007), in
denying reinstatement to discharged employees Michael Gurnett and
Nathan Jennings. Member Liebman dissented in Anheuser-Busch,
which is currently before the United States Court of Appeals for the
District of Columbia Circuit on the charging party’s petition for review.
In her view, Board law prior to Anheuser-Busch clearly would have
required that Gurnett and Jennings be reinstated and made whole. See
Tocco, Inc., 323 NLRB 480, 481, and 484 fn. 1 (1997); Great Western
Produce, 299 NLRB 1004, 1006–1007 (1990). Nevertheless, Member
Liebman recognizes that Anheuser-Busch overruled Tocco and Great
Western on that issue, and that the majority view in Anheuser-Busch
represents extant Board law. For institutional reasons, she affirms the
judge’s application of it here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Camino de la Reina, San Diego, California; ex-
cluding all other employees, guards and supervi-
sors as defined in the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Union-
Tribune Publishing Co., a division of Copley Press, Inc.,
San Diego, California, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraphs 2(a), (b), and
(c).
“(a) Before implementing any changes in wages,
hours, or other terms and conditions of employment, no-
tify and, on request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of
employees in the following appropriate units:
All employees engaged in the operation of its
presses, paperhandlers and wipers employed by
the Respondent at its facility located at 350
Camino de la Reina, San Diego, California; ex-
cluding all other employees, guards and supervi-
sors as defined in the Act.
All full-time and regular part-time Packaging
Department employees, including packagers and
operators, employed by the Respondent at its fa-
cility located at 350 Camino de la Reina, San
Diego, California; excluding all other employees,
office clerical employees, professional employ-
ees, guards, and supervisors as defined in the
Act.
“(b) Rescind the unlawful unilateral changes to the
drug and alcohol testing policies applicable to employees
in the units described above, and restore the policies that
existed prior to the unlawful unilateral changes.
“(c) Within 14 days after service by the Region, post at
its San Diego, California facility copies of the attached
notice marked “Appendix.”1 Copies of the notice, on
forms provided by the Regional Director for Region 21,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the

1 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its expense, a copy of the notice to all
current employees and former employees employed by
the Respondent at any time since July 19, 2006.”
2. Substitute the attached notice for that of the admin-
istrative 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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT unilaterally, without notice to or afford-
ing the Graphic Communications Conference, Interna-
tional Brotherhood of Teamsters, Local 432M, Graphic
Communications International Union an opportunity to
bargain, change our drug and alcohol testing policy for
our packaging employees’ bargaining unit by compelling
employees whose annual hearing tests reveal the occur-
rence of a standard threshold shift (STS) to submit to
drug and alcohol testing.
WE WILL NOT unilaterally, without notice to or afford-
ing the Union an opportunity to bargain, change our drug
and alcohol testing policy by compelling employees in
our pressroom employees’ bargaining unit who file
workers’ compensation claims for cumulative trauma
disorder (CTD) hearing injuries to submit to drug and
alcohol tests prior to examination by a company doctor.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment, no-
tify and, on request, bargain in good faith with the Union
UNION-TRIBUNE PUBLISHING CO. 13
as the exclusive collective-bargaining representative of
employees in the following appropriate units:
All employees engaged in the operation of its
presses, paperhandlers and wipers employed by
the Respondent at its facility located at 350
Camino de la Reina, San Diego, California; ex-
cluding all other employees, guards and supervi-
sors as defined in the Act.
All full-time and regular part-time Packaging
Department employees, including packagers and
operators, employed by the Respondent at its fa-
cility located at 350 Camino de la Reina, San
Diego, California; excluding all other employees,
office clerical employees, professional employ-
ees, guards, and supervisors as defined in the
Act.
WE WILL rescind the unlawful unilateral changes to the
drug and alcohol testing policies applicable to employees
in the units described above, and restore the policies that
existed prior to the unlawful unilateral changes.
UNION-TRIBUNE PUBLISHING CO., A DIVISION
OF COPLEY PRESS, INC.
Robert MacKay, Esq., for the General Counsel.
Howard M. Kastrinsky and James Fessenden, Esqs. (King &
Ballow), of Nashville, Tennessee, and Patrick Marinnan,
Esq. of San Diego, California, for the Respondent.
Richard D. Prochazka, Esq. (Richard D. Prochazka & Associ-
ates, APC), of San Diego, California, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. The unfair
labor practice charge in the above-captioned matter was filed
by the Graphic Communications Conference, International
Brotherhood of Teamsters, Local 432M, Graphic Communica-
tions International Union (the Union), on November 3, 2006.1
After completing the investigation of the unfair labor practice
charge, on February 28, 2007, the Regional Director of Region
21 of the National Labor Relations Board (the Board), issued a
complaint, alleging that the Union-Tribune Publishing Co., a
Division of Copley Press, Inc. (the Respondent), engaged in
unfair labor practices within the meaning of Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act). Respondent
timely filed an answer, essentially denying the commission of
any of the alleged unfair labor practices. Pursuant to a notice of
hearing, on October 1 and 2, 2007, a trial on the merits of the
above-described unfair labor practice allegations was held be-
fore the above-named administrative law judge in San Diego,

1 Unless otherwise stated, all events occurred during calender year
2006.
California.2 At the hearing, all parties were afforded the oppor-
tunity to examine and to cross-examine witnesses, to offer into
the record any relevant documentary evidence, to argue legal
positions orally, and to file posthearing briefs. Subsequent to
the closure of the hearing, counsel for the General Counsel,
counsel for the Union, and counsel for Respondent each filed a
posthearing brief and said documents have been carefully con-
sidered by me. Accordingly, based upon the entire record
herein, including my observation of the testimonial demeanor
of each of the witnesses and the posthearing briefs, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent, a State of Illinois corpora-
tion, with a facility located at 350 Camino de la Reina, San
Diego, California, has been engaged in the business of publish-
ing a daily newspaper in San Diego, California. Annually, in
conducting its business operations, Respondent derives gross
revenues in excess of $200,000, advertises nationally sold
products, and purchases and receives at its San Diego, Califor-
nia facility goods valued in excess of $50,000 directly from
suppliers located outside the State of California. Respondent
admits that, at all times material, it has been an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that, at all times material, the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
A. The Issues
In the instant complaint, as amended, the General Counsel
alleges that, beginning in or about July 2006, Respondent en-
gaged in activities, violative of Section 8(a)(1) and (5) of the
Act, by changing its drug and alcohol testing policy by compel-
ling its packaging department employees, whose annual hearing
examination results reveal the occurrence of STSs, to undergo
drug and alcohol testing and by compelling its pressroom de-
partment employees, who allege continuous trauma or cumula-
tive trauma hearing loss, to undergo drug and alcohol testing
without prior notice to the Union and without affording the
Union an opportunity to bargain with Respondent with respect
to its alleged acts and the effects of said acts. The General
Counsel further alleges that, as a consequence of its above-
described unlawful unilateral changes and in violation of Sec-
tion 8(a)(1) and (5) of the Act, on or about July 29, 2006, Re-
spondent discharged packaging department employee Michael
Gurnett and, on or about October 20, 2006, Respondent dis-
charged pressroom employee Nathan Jennings. Respondent
denies that the alleged unlawful unilateral changes were, in

2 At the hearing, over the objections of counsel for Respondent,
counsel for the General Counsel was permitted to amend portions of the
instant complaint.
Counsel for the General Counsel’s motion to correct the transcript is
granted.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
fact, changes from its existing practices and contends that the
said employees were lawfully terminated for failing drug and
alcohol tests.
B. The Alleged Unfair Labor Practices
1. The facts
Respondent, which employs approximately 1600 individuals,
publishes a daily newspaper, the San Diego Union-Tribune, in
San Diego, California, and operates a production facility, con-
sisting of two buildings, separated by a driveway and connected
by two bridges and an underground passageway, located in the
Mission Valley area of San Diego. Respondent’s editorial de-
partments and administrative and executive offices are housed
in one of the buildings, and its production departments, consist-
ing of its pressroom, packaging, production, maintenance, en-
gineering, and building maintenance employees, are located in
the adjacent building. The pressroom is located on the first,
second, and third floors of the production building, and Re-
spondent employs approximately 150 pressmen, who operate
the printing presses which print the newspaper. At least since
the late 1980s, said employees have been represented by the
Union in a bargaining unit, consisting of all employees engaged
in the operation of the printing presses, paperhandlers, and
wipers employed by Respondent, and covered by successive
collective-bargaining agreements, between Respondent and the
Union, the most recent of which was effective by its terms from
August 1, 2002, through July 31, 2005.3 The packaging de-
partment is located on the first and second floors of the produc-
tion building, and Respondent employs approximately 160
packaging department employees,4 who are responsible for
inserting advertising and other materials and then bundling and
stacking the newspapers. On June 20, 2005, the Union was
certified, by the Board, as the representative for purposes of
collective bargaining in a unit consisting of Respondent’s full-
time and regular part-time packaging department employees,
including packagers and operators, and, since September 2005,
the parties have been engaged in negotiations for a collective-
bargaining agreement covering said employees.
Respondent maintains drug and alcohol testing policies for
all of its represented and unrepresented employees. With re-
gard to the pressroom employees, while, except for the state-
ment in Exhibit B that failure to comply with the company’s
policy constitutes a cause for discharge, there is no description
or mention of a drug and alcohol policy in the expired collec-
tive-bargaining agreement which covers said employees, there
is no dispute that Respondent’s “policy on alcohol and drugs,”

3 According to Michael Huggins, an international representative of
the Union, since August 2005, the parties have been engaged in bar-
gaining for a successor collective-bargaining agreement and have had
approximately 35 bargaining sessions.
4 Prior to 1997, the packaging department employees were repre-
sented for purposes of collective bargaining by the Communications
Workers of America (the CWA). In 1997, the CWA was decertified as
their bargaining representative, and, from then until 2005, the packag-
ing department employees were not represented by any labor organiza-
tion. Accordingly, during said time period, Respondent applied the
same terms and conditions of employment to its packaging department
employees as it did to all of its other unrepresented employees.
General Counsel’s Exhibit 4, has been applicable to the press-
room bargaining unit employees at all times material herein
since, at least, September 19, 1986. Said policy, in part states,
The Union-Tribune Publishing Co. is committed to provide a
safe and healthful work environment for all employees. In
turn, employees are expected to report to work as scheduled,
free from the influence of alcohol or drugs.
When on the job accidents occur or when there is reason to
believe that an employee is under the influence of drugs or
alcohol, the employee may be required to submit to medical
tests for drugs and alcohol. . . .
Employees generally are required to submit to drug/alcohol
testing where:
(1) Employee is involved in an on-the-job accident and suf-
fers injury requiring medical evaluation and or treatment.
(Diagnosed CTDs are excepted.)
(2) Employee is involved in an on-the-job injury accident in-
volving equipment, machinery or a motorized vehicle (car,
truck, fork lift, etc.).
(3) Employee’s conduct (including speech, smell, coordina-
tion, work performance, etc.) raises a belief he/she may have
ingested drugs or alcohol.
Further, prior to reissuing its drug and alcohol policy, on July
15, 1991, Respondent’s then employee relations director,
Oliver B. Peter, wrote a letter to the Union, stating that the
company had decided not to compel employees who have suf-
fered “certifiable” cumulative trauma injuries to take drug and
alcohol tests. According to Peter, by the use of the term certifi-
able, “. . . the Company means an injury which is categorized
as a cumulative trauma injury by a Company physician.”
David M. Ferguson, Respondent’s loss control manager, who is
responsible for all safety, workers’ compensation, and disability
management issues, described a cumulative trauma injury or
disorder (CTD) as a repetitive injury to a body part occurring
“over a long period of time.” There is no dispute that the prac-
tice, set forth in Peter’s letter, has remained in effect at all times
material herein, and, according to George Huber, the secre-
tary/treasurer of the Union, there are no documents, which
change or modify any aspect of Peter’s letter, in Respondent’s
files.
As to the packaging department bargaining unit employees,
the record establishes that Respondent’s applicable drug and
alcohol policy is that which has been in effect at all times mate-
rial herein for its unrepresented employees. Said policy, Gen-
eral Counsel’s Exhibit 5, in part, states:
The Union-Tribune Publishing Co. is committed to providing
a safe and healthful work environment for all employees. In
turn, employees are expected to report to work as scheduled,
free from impairment by alcohol or drugs . . . .
Employees may be required to submit to tests for alcohol
and/or drugs under the following circumstances:
When there is reasonable suspicion that the employee
may be impaired by alcohol and/or drugs.
UNION-TRIBUNE PUBLISHING CO. 15
When an on-the-job accident occurs and there is reason-
able suspicion the employee caused the accident and ei-
ther:
1. The accident caused injury requiring more than
first aid, or
2. The accident resulted in property damage of
$1,000 or more.5
Michael Huggins testified that, since 2005, he has been the
chief negotiator for the Union for both the pressroom depart-
ment employees and the packaging department employees bar-
gaining units during contract negotiations with Respondent and
that neither of the above-described drug and alcohol policies
have been subjects of bargaining during the negotiations.
The alleged unlawful unilateral changes to the above-
described policies involve Respondent’s actions, in July 2006,
compelling employees, who suffered possible injuries to their
hearing, to submit to drug and alcohol testing and, in this re-
gard, pursuant to Cal/OSHA regulations, which mandate annual
hearing tests for employees, who are exposed to established
sound level thresholds, Respondent provides free annual hear-
ing examinations, consisting of an audiometric test, supervised
by a licensed audiologist, for employees in five departments,
including those in both the packaging and pressroom depart-
ments, in order to determine whether they have suffered hear-
ing losses as a result of exposure to the noise levels in their
work areas. For the conduct of its so-called hearing conserva-
tion program, which is administered by loss control manager,
Ferguson, Respondent contracts with Safe Hearing America,
and the latter brings its “hearing van” to Respondent’s Mission
Valley facility in order to perform the hearing examinations,
which are supervised by a hearing test administrator. Employ-
ees are instructed to report to the location of the van and, in
groups of four, enter the van, sit at testing stations, place head-
phones over their ears, and respond to beeps or tones in each
ear at different frequency levels by clicking or pressing down
on a button.6 The administrator compares each employee’s
hearing examination in each ear to his or her baseline audio-
gram7 to determine if a standard threshold shift (STS) has oc-
curred8 in either or both ears, and, after the employee has exited
the van, the administrator provides him or her with the print-out
result of the test.9 According to Respondent’s hearing program
guidelines, if the supervising audiologist determines that an

5 According to the policy, “failure to comply with this company pol-
icy will subject an employee to disciplinary action up to and including
termination of employment.”
6 The frequency levels are 500, 1000, 2000, 3000, 4000, 6000, and
8000 hertz (Hz).
7 Upon being hired by Respondent, each employee is given a hearing
examination in both ears, and this initial test is considered the baseline
for his or her hearing capacity in both ears.
8 Under State of California statutory law, an STS is defined as “. . . a
change in hearing threshold relative to the baseline audiogram of an
average of 10 [decibels (dB)] or more at 2000, 3000 and 4000 Hz in
either ear.”
9 Respondent has been testing its employees for possible STSs since
1983.
STS has occurred in either or both ears,10 he must inform the
employee, in writing, within 21 days that he or she should have
his or her hearing retested. David Ferguson testified that, since,
at least 1994, in practice, if any follow-up is required, the hear-
ing van technician immediately gives the employee a letter,
stating that the latter should make an appointment with his or
her own doctor in order for an examination to establish the
cause of the indicated hearing loss, and “we expected to hear
something back from [the employee] . . . .”11 As to this, while,
during cross-examination, Ferguson asserted that Respondent is
mandated by law to “. . . make sure that these people who have
problem tests be followed by a doctor,” the State of California
regulations make retesting discretionary.12 Also, according to
Ferguson, employees may suffer from a CTD hearing loss,
resulting from repetitive exposure to certain sound or noise
levels which, over a long period of time, cause a gradual de-
cline in hearing capability; such differs from a “sudden hearing
loss,” which might result from an abnormally loud noise such
as a firearm discharge or from “any number of ototoxic type
drugs,” including several antibiotic drugs. Finally, there is
nothing in Respondent’s annual hearing examination policy
(GC Exh. No. 7) establishing that, depending upon the result of
his or her annual hearing examination, an employee might be
subject to drug and alcohol testing.13

10 The record establishes that certain job-related injuries must be re-
corded with the State of California Department of Industrial Relations.
These so-called Cal/OSHA “recordable” injuries are, according to
Ferguson, of a more serious nature than “first aid type” injuries and
might require a forced absence from work or a modified or changed
duty assignment. Pursuant to Cal/OSHA requirements, whenever an
employee’s audiogram reveals a work-related STS in one or both ears
and the employee’s total hearing level in either ear is 25 decibels or
more above his or her baseline measurements, said result must be re-
corded. According to the State of California code of regulations for
industrial relations, an employer may record this incidence of hearing
loss after the initial test or after a retest.
Although not reflected in the State of California OSHA code provi-
sions, effective December 30, 2004, Sec. 1904.10 of the United States
Department of Labor Occupational Safety and Health Administration
record-keeping provisions was amended, making an STS an OSHA
recordable injury.
11 Ferguson testified that, from his own personal experience, besides
giving a letter to an employee, he knows that the technician would
instruct the employee to inform Respondent of the result of the em-
ployee’s doctor’s follow-up examination of his or her hearing. During
cross-examination, he stated that said procedure has been the norm, at
least, since he began working for Respondent in 1994.
12 However, Respondent’s own hearing conservation program re-
quires it to retest employees within 30 days of an annual hearing ex-
amination, which discloses an STS. There is no mention of what Re-
spondent must/may do if the annual hearing examination discloses the
occurrence of a Cal/OSHA recordable hearing loss.
13 In this regard, loss control manager, Ferguson, asserted that, based
upon his own decision, at least since 2002, all employees, including
those represented by a labor organization, who suffer first-aid type
injuries or Cal/OSHA recordable injuries, are sent to a company doctor
and all such employees are compelled to submit to an alcohol and drug
test. While George Huber agreed that all employees, who suffer from
“physical” injuries, are “automatically” tested for alcohol and drugs, he
denied that the Union was ever made aware that said policy had ever
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
With regard to the employees in Respondent’s packaging
employees bargaining unit, the alleged unlawful unilateral
change involves compelling said employees, whose annual
hearing examination reflected an STS, to undergo drug and
alcohol testing. In this regard, there exists no record evidence
that, prior to 2006, Respondent compelled any bargaining unit
employee, whose annual hearing examination disclosed an STS
and who was instructed to see his or her own doctor for a fol-
low-up hearing examination or retesting, to submit to an alco-
hol and drug test.14 For example, Lynn Huffman, who was
employed by Respondent as a packaging department employee
from 1996 through 2007, testified that, after his annual hearing
examination in 2004, the technician informed him that he had
“failed one part of it”; that, shortly thereafter, he received a
letter from Respondent, informing him that he was required to
undergo a retest by a company doctor at a medical facility in
Kearney Mesa; and that, at the time of the retest, he was not
compelled to submit to a drug and alcohol test. Also, Steven
Olkowski, a shop steward in the packaging department, testi-
fied that, prior to 2006, he was aware of employees, who had
failed their annual hearing examinations and who had been
sent, by Respondent, to a company doctor for retests and that
none of said employees had been compelled to submit to a drug
and alcohol test. Further, Michael Huggins, the Union’s chief
negotiator, testified that, during bargaining, Respondent never
informed the Union that packaging department employees, who
suffered from hearing loss, would be subject to drug testing.15
Finally, on this point, David Ferguson conceded that Respon-
dent possessed no documentary evidence, establishing that,
prior to 2006, any packaging department employee, who had
been sent to a company doctor for a hearing retest after his or
her annual hearing examination had disclosed sufficient hearing
loss to constitute a Cal/OSHA recordable event, had ever sub-

been extended to employees, who are diagnosed with any type of STS
during their annual hearing examinations.
14 For example, in 2005, the annual hearing examinations for em-
ployees in the packaging department bargaining unit disclosed STSs for
10 of the said employees. Each was instructed to make an appointment
with his or her own doctor for followup testing and, according to Fer-
guson, to report the result of the followup examination to Respondent.
Apparently, none did so. Ferguson added that he received the Safe
Hearing America hearing test printouts for each of the ten employees
and that he did not require any of them to have a hearing retest by a
company doctor. Patrick Marrinan, Respondent’s labor relations man-
ager conceded that, subsequent to their annual hearing test, none of
these 10 employees was compelled to undergo a drug and alcohol test.
Michael Gurnett, who worked in Respondent’s packaging depart-
ment from 1990 through July 2006, and who was one of the above-
mentioned employees, testified that, immediately after his 2005 annual
hearing examination, the technician told him he had an STS in his left
ear and, and while saying he should have it “looked at” by his own
physician, said nothing about informing Respondent of the result of
said follow-up examination. Gurnett did, in fact, have his hearing
examined by his own doctor, and he conceded not giving the result of
this examination to Respondent. Also, according to Gurnett, subse-
quently, Respondent never requested that he have his hearing retested
by a company doctor or that he submit to a drug and alcohol test.
15 Conversely, according to Huggins, Respondent never told the Un-
ion that employees, who suffered an STS or a Cal/OSHA recordable
hearing loss would not be subject to drug testing.
mitted to drug and alcohol testing.
Based upon Respondent’s counsel’s position statement to the
Board, dated January 3, 2007,16 it appears that, commencing in
or about July 2006, Respondent, without notice to the Union or
affording it an opportunity to bargain,17 did, in fact, change its
past practice by requiring its packaging department bargaining
unit employees, whose annual hearing test reflected the occur-
rence of an STS, to undergo hearing retesting by its own doctor
and, at the same time, to submit to a drug and alcohol test. For
example, on or about June 22, 2006, Michael Gurnett, who,
after his 2005 annual hearing test, was told, by the Safe Hearing
America technician he had an STS in his left ear and instructed
him to have a follow-up hearing examination by his personal
physician and who was not retested by Respondent or required
to submit to a drug and alcohol test, was given his annual hear-
ing test by a Safe Hearing America technician and, immediately
after the test, “I was told I had an STS this time in my right
ear.” The hearing test technician also gave Gurnett the print-
out result of his hearing test18 on which Gurnett was advised
that he should “consult with” his own doctor19 and that he
would be contacted with regard to having a hearing retest.
Thereafter, on or about July 19, Gurnett’s supervisor informed
him that Respondent had scheduled a retest of his hearing for
that afternoon, and, later in the day, in the company van, an
individual, who he knew to be Respondent’s head of safety,
drove Gurnett and another packaging department employee to a
medical facility in La Jolla. On the way, the driver turned to
the two employees and said “. . . there might be an alcohol
and/or urinalysis taken. . . . It was explained that [Respondent
considered] this an on-the-job accident and OSHA needed to be
notified and, therefore, this test has to be taken. Then, at the
medical facility, Gurnett had his hearing tested by a Dr.
Jurkowski and was required to submit to a drug and alcohol
test. 20
Approximately 8 days later, on or about July 27, in the mail,
Gurnett received a letter, dated the previous day and executed

16 In the said position statement, Respondent’s counsel noted that, ef-
fective December 30, 2004, the United States Department of Labor
amended its OSHA regulations to make an annual hearing test finding
of an STS a recordable injury and stated that, in accord with said rule,
notwithstanding that such had not been done in the previous year, in
2006, Respondent sent seven employees, including Michael Gurnett,
whose annual hearing tests revealed an STS, to a company doctor for
retesting and a drug and alcohol test.
17 Respondent’s counsel contends that notice was not required be-
cause it could not predict that “. . . the change in the STS standard
would result in more potentially recordable injuries which, in turn,
would lead to more followup tests, which would include drug/alcohol
tests.”
18 The print-out shows an STS in Gurnett’s right ear.
19 Subsequently, Gurnett had his test result and his ears examined by
a doctor, who informed him his hearing was normal for a man of his
age.
According to Gurnett, he received the same type of print-out after
his 2005 hearing test.
20 According to R. Exh. No. 24, Gurnett’s June 22 hearing test,
which showed an STS in his right ear, revealed a Cal/OSHA recordable
injury. However, the retest on July 19 failed to confirm the existence
of such a hearing injury.
UNION-TRIBUNE PUBLISHING CO. 17
by Michael Conner, Respondent’s packaging manager, advising
him that he had been tested for alcohol and drugs; that his test
result showed a “positive result” for marijuana in excess of the
test threshold level; that he was being suspended for five work
shifts; that, before he would be permitted to return to work, he
would be retested for alcohol and drugs; and that, if a positive
result was indicated, such had to be lower than the previous
result or “. . . your employment will be terminated.” On that
same day, shop steward Olkowski met with Patrick Marrinan in
the latter’s office and asked what programs Respondent had for
employees who failed a drug and alcohol test, and Marrinan
replied that there were no such programs. Then, Olkowski
asked why packaging department employees, who failed a hear-
ing test, were being required to take a drug and alcohol test,
:and Marrinan said it’s always been the practice that they re-
quire a drug test if you have a Cal/OSHA recordable injury and
that failing a hearing test is a Cal/OSHA recordable injury.
And I said that I know people that have failed the hearing test
before and that they didn’t have to take a drug test. He said if
they didn’t have to take a drug [sic], then it wasn’t a Cal/OSHA
recordable injury and that [what has changed] . . . is that
Cal/OSHA lowered the bar on what was recordable for hearing
tests.”21 Also, on July 27, Gurnett submitted to another drug
and alcohol test, and, he subsequently received a letter, dated
July 31, from Connor, who wrote that the former’s second drug
and alcohol test “. . . showed a positive result for [marijuana] in
excess of the positive results you obtained on July 19, 2006,”
and “. . . your employment with [Respondent] is terminated.”
Further, with regard to the discharge of Gurnett, Patrick Marri-
nan, who failed to deny the testimony of Olkowski regarding
their July 27 conversation, testified that “. . . when we let an
employee return to work after failing a drug test, he must test
clean and . . . the decision was made [for Gurnett] to let him
return to work if he tested clean or . . . lower than the first test
and then tested clean.” According to Marrinan, “we terminated
his employment consistent with the letter we’d given [him] on
July 26, 2006.
As to whether, by compelling Gurnett to take the initial drug
and alcohol test on July 19 after his June 22 annual hearing test
had revealed an STS, Respondent changed its drug and alcohol
testing policy without first informing the Union and offering it
an opportunity to bargain, David Ferguson testified that he is
Respondent’s management official responsible for determining
whether an injured employee should be sent to Respondent’s
doctor and whether the injury is such as to require a drug and
alcohol test for the employee; that hearing loss of a sufficient
magnitude became Cal/OSHA recordable injuries sometime “in
1983”; and that, as set forth above, since, at least 2002, all em-

21 There is nothing in Respondent’s drug and alcohol testing policy
for packaging department employees that mandates such testing for a
Cal/OSHA recordable injury, and Olkowski denied ever being in-
formed by Respondent of such a practice. Further, Olkowski denied
ever being informed by Respondent that packaging department em-
ployees, who were sent to its doctor for a hearing retest, would be sub-
jected to drug and alcohol testing.
I believe that, in his last comment to Olkowski, Marrinan’s reference
was to the United States Department of Labor’s revised OSHA standard
and not to Cal/OSHA.
ployees, who suffer on-the-job injuries, both first-aid type and
Cal/OSHA recordable, are sent to a company doctor for treat-
ment and, with the exception those suffering from CTD-type
injuries,22 for drug and alcohol tests. However, Respondent’s
counsel conceded that the latter is not a written policy, and
Ferguson admitted he was unable to locate any company re-
cords, establishing that, prior to 2006, any employee, whose
annual hearing examination revealed a Cal/OSHA recordable
STS, had been sent to a company doctor for both examination
and a drug and alcohol test. Further, later during his testimony,
Ferguson appeared to contradict himself, stating that, prior to
2006, regarding retesting employees, whose annual hearing
tests revealed STSs, “I had relied on employees to do that in
good faith.” Thus, in 2005, as he had done every year since
being hired by Respondent in 1994, he relied upon the Safe
Hearing America technician to inform the 10 employees, whose
annual hearing tests revealed STSs, to go to their own doctors
for followup hearing examinations, and, despite receiving the
Safe Hearing America hearing test results for each employee,
Ferguson did not require any to be retested by a company doc-
tor or to submit to a drug and alcohol test. In July 2006, the
annual hearing tests revealed that seven employees, including
Gurnett and another packing department employee, had suf-
fered Cal/OSHA reportable STSs.23 According to Ferguson, as
he had recently “discovered” that a Cal/OSHA recordable hear-
ing loss meant “a sudden hearing loss without the cumulative
trauma,”24 as none of the 10 employees, whose 2005 annual
hearing tests had disclosed STSs, had reported back the results
of follow-up medical examinations,25 and as he now felt “an
obligation” to perform follow-up examinations, he decided to
send the above seven employees, including Gurnett, to the
company’s doctor for hearing retests and, in accord with his
asserted practice since 2002, drug and alcohol testing.26 Finally,
Ferguson denied that, in 2006, by sending the seven employees
to a company doctor for hearing retests and accompanying drug
and alcohol tests, Respondent had engaged in any change from
its past practice as to packaging bargaining unit employees,
whose annual hearing examinations revealed STSs.27

22 Ferguson testified that he is responsible for determining whether
an employee’s injury is a CTD type or one resulting from a sudden
event.
23 The record is unclear whether the hearing losses for the seven em-
ployees were at the previous Cal/OSHA recordable level of 25 decibels
over the baseline test or at the new OSHA recordable 10 decibel level
over the baseline test—a standard STS.
24 Although not entirely clear, Ferguson, who is not an MD, deter-
mined on his own that Gurnett’s STS was not the result of cumulative
trauma.
25 Asked why he failed to have any of the 10 employees, who had
failed their annual hearing tests in 2005, retested by a company doctor
and submit to drug and alcohol tests, Ferguson admitted to being lax—
“I didn’t think it was important at the time.”
26 Ferguson testified that he requested that the company doctor ad-
minister drug and alcohol tests to Gurnett and the other packaging
department employee.
27 Assuming arguendo Respondent’s acts constituted a change of Re-
spondent’s drug and alcohol testing policy, there is no evidence that
Respondent informed the Union of such a change and afforded it an
opportunity to bargain prior to implementing the change.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
With regard to the employees in Respondent’s pressroom
employee bargaining unit, the alleged unlawful unilateral
change involves compelling said employees, who claim con-
tinuous trauma hearing loss injuries, to undergo drug and alco-
hol testing.28 The General Counsel’s evidence for this involves
Respondent’s treatment of employee Nathan Jennings.
Jennings was hired by Respondent in January 1995, and
worked as a pressman in the pressroom. In March 2000, he
suffered an accident, catching a hand in the press machinery.
He was sent to a company doctor for treatment and, pursuant to
Respondent’s policy, was required to submit to a drug and al-
cohol test. The result of the test showed a positive result for the
presence of marijuana, and he was suspended for five shifts.
By letter dated March 13, 2000, he was advised he would be
required to submit to a second drug and alcohol test and would
have to obtain a negative result before being allowed to return
to work. He was also advised “if at any time in the future you
are tested for any reason and obtain a positive result, your em-
ployment will be terminated.” Jennings second drug test
showed a negative result, and he was permitted to return to
work.
In July 2006, prior to taking his annual hearing test, Jennings
complained to his supervisor and the pressroom shift manager
“about hearing loss and tinnitus” in both ears.29 As a result of
Jennings’ complaint, his supervisor filled out an injury investi-
gative report, noting the incident as “noise exposure” due to
repetitive (5 days a week, 7 hours a day) activity. Approxi-
mately a week later, Jennings took his annual hearing test, and
it failed to reveal the presence of an STS in either ear. Never-
theless, he continued to believe he was suffering a hearing
problem, and, on October 13, he filed a workers’ compensation
claim, alleging continuous trauma to his hearing in both ears.
On October 17, the pressroom supervisor approached Jennings
and informed him that he was required to make an appointment
with the company doctor, Dr. Jurkowski, for a hearing test.
Later that day, Jennings left Respondent’s facility, drove to the
former’s clinic in La Jolla. The doctor tested Jennings’s hear-
ing, and the medical assistant told him he would have to submit
to a drug and alcohol test. Jennings reported for work the next
day, and the pressroom manager informed him “. . . that my
drug test results were inconclusive and that he had been in-
structed to not let me return to work until they had definite
results” and instructed him to go home and wait for notification
by Respondent. Thereafter, Jennings received a letter, dated
October 20, from Respondent, advising him that his drug test
result was positive for marijuana and that, in accord with Re-
spondent’s drug and alcohol policy, “[this date], your employ-
ment with the Union-Tribune is terminated.”
Finally, as evidence supporting his allegation that Respon-
dent had changed its existing practice with regard to the pack-

28 Michael Huggins, the Union’s chief negotiator, testified that, dur-
ing contract bargaining with Respondent since August 2005, there has
been no bargaining over Respondent’s drug and alcohol testing policy
and Respondent never informed the Union pressroom employees, who
claimed long-term hearing loss, would be subject to drug and alcohol
testing.
29 Tinnitus is a type of hearing loss accompanied by a ringing in the
ears.
aging bargaining unit employees, counsel for the General
Counsel offered into evidence a position letter, dated February
20, 2007, from Respondent’s counsel. Therein, the attorney
responded to a request from the Board regarding an employee
named Jerry Dick, who had filed a workers’ compensation
hearing loss claim. According to the position letter (GC Exh.
20), Dick, who had retired from Respondent as a pressroom
employee on May 31, 1999, had filed the above hearing loss
claim in June 1994 and again on March 23, 1995, and his hear-
ing loss claim was diagnosed as a CTD. Apparently, Dick was
not required to submit to a drug and alcohol test, and, this re-
gard, Respondent’s attorney wrote, “according to the pressroom
policy in place at the time, he should not have been required to
submit to a drug/alcohol screen.”
Loss control manager, Ferguson, testified that, since being
hired by Respondent, the latter’s practice has been to send any
employee, who suffers an on-the-job injury, which may be the
subject of a workers’ compensation claim, or who files a work-
ers’ compensation claim for an alleged work-related injury, to
the company doctor, Dr. Jurkowski, for an examination and,
except in the case of a CTD injury, for a drug and alcohol test.
He further testified that he is Respondent’s official responsible
for determining whether a workers’ compensation claim for a
CTD injury is valid and, if not, for instructing the company’s
doctor, who is charged with examining the claimed injury, to
administer a drug and alcohol test. According to Ferguson,
who, as stated above, admitted he does not have a medical de-
gree, just as he reviewed employee Dick’s earlier workers’
compensation claim, he reviewed Jennings’ 2006 annual hear-
ing test result, “.and it was obvious to me that there was no CT .
. . .” Continuing, Ferguson testified that, while, in the event of
a cumulative trauma hearing loss, an individual would gradu-
ally lose his hearing in one or both ears over a long period of
time, “in the case of Mr. Jennings, his hearing gets better,
worse, better, worse . . . changes which just don’t fit in with a
CT type of hearing loss.” Accordingly, besides sending
Jennings to the company doctor for a hearing examination, he
instructed the doctor to administer a drug and alcohol test. As
to the latter test, Ferguson stated that, if his analysis of the
claimed injury showed Jennings had a CTD injury, “. . . we
wouldn’t test for drugs and I would have to make sure that we
don’t test when we’re not supposed to test
. . . .”30 Finally, with regard to employee Dick, explaining the
difference between Respondent’s Exhibits 20 and 21, charts
showing the annual hearing test results for both Dick and
Jennings, Ferguson, who was uncontroverted, testified that
Jennings’ hearing test pattern “was very different” from that of
Dick.
2. Legal analysis
As set forth above, the General Counsel alleges that, in vio-
lation of Section 8(a)(1) and (5) of the Act, Respondent unilat-
erally changed its drug and alcohol testing policy by compel-
ling employees in its packaging department bargaining unit,

30 Assuming arguendo that Ferguson’s acts constituted a change in
Respondent’s drug and alcohol policy testing policy, there is no evi-
dence that Respondent informed the Union of said change and afforded
the Union an opportunity to bargain prior to implementation.
UNION-TRIBUNE PUBLISHING CO. 19
whose annual hearing tests revealed an STS, to submit to drug
and alcohol tests and compelling employees in its pressroom
bargaining unit, who alleged cumulative trauma hearing loss, to
submit to drug and alcohol testing without prior notice to the
Union and affording it an opportunity to bargain regarding said
changes and by discharging its employees Michael Gurnett and
Nathan Jennings as a result of said unilateral changes. At the
outset, it is, of course, longstanding Board law that an employer
violates said section of the Act by unilaterally imposing new
and different wages, hours, and other terms and conditions of
employment upon bargaining unit employees without first pro-
viding their collective-bargaining representative with notice
and a meaningful opportunity to bargain regarding the said
change. 31 NLRB v. Katz, 369 U.S. 736 (1962); Bryant & Strat-
ton Business Institute, 321 NLRB 1007 (1996); Mercy Hospital
of Buffalo, 311 NLRB 869, 873 (1993). Moreover, such notice
must be given sufficiently in advance of the change to allow the
labor organization a reasonable opportunity to present counter-
arguments or proposals; otherwise, any demand for productive
bargaining would be futile, and the “notice is nothing more than
informing the labor organization of a fait accompli.” Intersys-
tems Design Corp., 278 NLRB 759, 759–780 (1986); Ciba-
Geigy Pharmaceuticals Division, 264 NLRB 1013, 1014
(1982). However, it is clear that not all unilateral changes in
bargaining unit employees’ terms and conditions of employ-
ment constitute unfair labor practices; to be found unlawful, the
unilaterally imposed change must be “material, substantial, and
. . . significant” and must have a “real impact” upon or be “a
significant detriment to” the employees or their working condi-
tions. Outboard Marine Corp., 307 NLRB 1333, 1339 (1992);
UNC Nuclear Industries, 268 NLRB 841, 847 (1984). Finally,
where, as herein, the parties are engaged in contract negotia-
tions, “[The] employer’s obligation to refrain from unilateral
changes extends beyond the mere duty to give notice and an
opportunity to bargain; it encompasses a duty to refrain from
implementation at all unless and until an overall impasse has
been reached in bargaining for the agreement as a whole.”
Bottom Line Enterprises, 302 NLRB 373, 374 (1991). Further,
it is well settled that a drug and alcohol testing requirement is a
mandatory subject of bargaining and that an employer violates
Section 8(a)(1) and (5) of the Act by imposing such a program
without first giving notice to a labor organization, which repre-
sents its employees, and affording it an opportunity to bargain.
Tocco Inc., 323 NLRB 480 (1997), revd. on other grounds in
Anheuser Busch, Inc., 351 NLRB 644 (2007); Johnson-
Bateman Co., supra.
Regarding the allegations concerning the packaging depart-
ment bargaining unit employees, who selected the Union as

31 These are the so-called mandatory subjects of bargaining, and, in
Ford Motor Co. v. NLRB, 441 U.S. 488 (1979), the Supreme Court
defined the mandatory subjects of bargaining as those matters which
are “plainly germane to the ‘working environment’” and “not among
those ‘managerial decisions, which lie at the core of entrepreneurial
control.’” Normally, the mandatory subjects of bargaining concern
anything having to do with bargaining unit employees’ wages, hours, or
other terms and conditions of employment. Phelps Dodge Mining Co.,
308 NLRB 985 (1992), enf. denied 22 F.2d 1493, 1496–1498 (10th Cir.
1994); Johnson-Bateman Co., 295 NLRB 180, 182 (1989).
their exclusive representative for purposes of collective bar-
gaining on June 20, 2005, in agreement with counsel for the
General Counsel, I think a finding is warranted that Respondent
changed its drug and alcohol testing policy in 2006, and note
that Respondent does not contend it gave notice of its intent to
implement such a change to the Union or afforded it an oppor-
tunity to bargain regarding it. Initially, there exists no provi-
sion in Respondent’s drug and alcohol testing policy, applicable
to said employees, which provides that they shall be subject to
drug testing based upon the results of their annual hearing ex-
aminations or if said hearing examinations reveal the existence
of an STS. Further, according to the uncontroverted testimony
of Michael Huggins, the Union’s chief negotiator, whom I
credit, during bargaining for the parties initial collective-
bargaining agreement, Respondent’s drug and alcohol testing
policy has not been a subject of the negotiations, and Respon-
dent has never informed the Union that employees, who suffer
from hearing loss, would be subject to drug testing. Based
upon the entire record, including what occurred in 2005, I find
that, prior to 2006, the Safe Hearing America technicians cus-
tomarily instructed packaging department employees, whose
annual hearing examinations revealed the occurrence of an STS
in one or both ears, to see their own personal physicians for
follow-up examinations and that said employees were rarely
compelled to be examined by a doctor, under contract to or
employed by Respondent. In this latter regard, former em-
ployee Huffman and shop steward Olkowski were uncontro-
verted that, while, in the past, some bargaining unit employees,
who failed their annual hearing examinations, had been sent to
a company doctor for follow-up hearing examinations, none
had ever been compelled to submit to a drug and alcohol test.
Moreover, I note that, while David Ferguson asserted, since
2002, Respondent’s practice, concededly not in writing, was to
send any employee, who suffered a first-aid type injury or a
Cal/OSHA recordable injury, including a Cal/OSHA recordable
hearing loss, with the exception of a CTD injury, to a company
doctor for treatment and a drug and alcohol test, Respondent
produced no record evidence corroborating Ferguson’s dubita-
ble testimony, and the Union’s secretary/treasurer, George
Huber, who, I believe, was a significantly more credible wit-
ness on this subject than Ferguson, stated that Respondent’s
practice, described by Ferguson, was limited to “physical inju-
ries” to employees.
In 2006, in direct contrast to its past practice,
32
Respondent
required the seven employees, including Gurnett and another
packaging department employee, whose annual hearing tests
revealed the occurrence of an STS, to undergo retesting by a
company physician and, at the same time, to submit to drug and
alcohol tests. There can be no doubt that such represented a

32 Ferguson’s admission that, but for laxity on his part, he would
have sent the 10 employees, whose 2005 annual hearing tests disclosed
the occurrence of STSs, to the company doctor for retests and drug and
alcohol tests, is hardly dispositive of Respondent’s obligation to bar-
gain in 2006. Thus, Respondent’s obligation to give notice to the Un-
ion and to afford it an opportunity to bargain over changes in the bar-
gaining unit employees’ terms and conditions of employment attached
immediately after the June 20 election. Lawrence Textile Shrinking
Co., 235 NLRB 1178 (1978).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
change in Respondent’s drug and alcohol testing policy. Thus,
based upon the uncontroverted testimony of shop steward
Olkowski, whom I credit, after Gurnett failed his drug test, and,
upon failing a retest, was terminated, on July 27, Respondent’s
manager of labor relations Marrinan informed him that, in the
past, if Respondent had not required employees, who failed
their annual hearing examinations to submit to drug and alcohol
tests, these were not Cal/OSHA recordable hearing losses and
that what had changed in 2006 was “[OSHA] lowered the bar
on what was reportable for hearing tests.” Likewise, I believe
that, in his position statement dated January 3, 2007, Respon-
dent’s counsel essentially corroborated Marrinan’s admission,
stating that, as the United States Department of Labor had low-
ered its OSHA standard for recordable hearing loss to the 10
decibel STS level in late 2004, and as it felt obligated to do so,
Respondent altered its procedure in 2006 by sending employ-
ees, including Gurnett, whose annual hearing tests revealed the
occurrence of an STS, to its own doctor for hearing retests and,
as said STSs were now OSHA recordable, for drug and alcohol
testing.33
In his posthearing brief, contrary to my finding, Respondent
asserts that, at no time, did his client ever change its drug and
alcohol testing policy as alleged. Counsel initially argues that,
while packaging bargaining unit employees, including Gurnett,
did submit to drug and alcohol tests in 2006, Respondent did
not compel them to do so. In support, counsel for Respondent
points to the dictionary definition for the word “compel” and
contends that his client did not “force” any employee, with an
STS, to take a drug and alcohol test. This is a specious argu-
ment, for Respondent’s drug and alcohol policy, effective for
the packaging department employees bargaining unit, is a term
and condition of employment, on its face, said policy warns
that failure to comply “will subject an employee to discipline
up to and including termination,” and, according to Gurnett,
who was uncontroverted, while driving to the company doctor’s
medical facility, the director of safety told him the drug and
alcohol test “has to be done.” I believe a refusal by Gurnett to
submit to a drug and alcohol test would have been tantamount
to him refusing to perform a work assignment and, in these
circumstances, Gurnett clearly was compelled to submit to the
drug and alcohol test, which was administered to him.
The crux of counsel for Respondent’s argument is that Gur-
nett and six other employees were sent to the company doctor
for hearing retests as each had an OSHA recordable hearing
loss and were given drug and alcohol tests because since, at
least, 2002, Respondent’s practice has been that “all employees
who visit the company doctor, except those with CTDs, are
drug and alcohol tested.”34 Inasmuch as this “matter of fact”
argument ignores the change in the recordable hearing loss

33 I believe that, in his posthearing brief, counsel incorrectly states
Respondent’s duty as notifying the Union of the change in the OSHA
hearing loss standard. Rather, I believe the issue concerns Respon-
dent’s obligation to inform the Union of its new criteria for drug and
alcohol testing.
34 Respondent’s counsel argues that, in accord with his client’s past
practice, “the purpose for [the employees] visit to the Company doctor
. . . is irrelevant. The employees would have been drug and alcohol
tested regardless of the reason for their visit.”
standard, which precipitated and resulted in the drug and alco-
hol testing, at issue herein, and is directly at odds with the
credible and uncontroverted record evidence regarding the as-
serted quotidian nature of such testing by the company doctor, I
find it to be without merit. At the outset, I note that there exists
no language in Respondent’s drug and alcohol policy, effective
for the said bargaining unit employees, mandating a drug and
alcohol test for any employee, whose annual hearing test dis-
closes the existence of an STS, a Cal/OSHA recordable hearing
loss, or an OSHA recordable hearing loss, and that the new
OSHA recordable hearing loss level is that of a standard STS—
10 decibels over the baseline level, which is lower than the
existing Cal/OSHA recordable standard. Next, former em-
ployee Huffman and shop steward Olkowski were uncontro-
verted that, prior to 2006, no bargaining unit employee, who
had failed an annual hearing test and had been sent to the com-
pany doctor for retesting, had ever been compelled to submit to
a drug and alcohol test, and, at no point during collective bar-
gaining, has Respondent informed the Union of any change in
its drug and alcohol testing policy. Further, Respondent offered
no company records, corroborating Ferguson’s assertion that,
since, at least, 2002, all employees, who incurred first-aid type
injuries or Cal/OSHA recordable injuries, including hearing
loss injuries, except CTDs, and who have been sent to the com-
pany doctor for treatment, have been given drug and alcohol
tests, and I specifically credited George Huber that Respon-
dent’s policy pertained to “physical injuries” to employees and
not to the results of employees’ annual hearing tests. More-
over, Respondent’s counsel’s assertions, as to the inevitability
of drug and alcohol testing, were directly contradicted by Mar-
rinan’s uncontroverted admissions to Olkowski that, if in the
past, bargaining unit employees, who were sent to the company
doctor after failing annual hearing tests, had not been drug and
alcohol tested, it was because their hearing losses were not
Cal/OSHA recordable and that Gurnett and the other employ-
ees, who were sent to the company doctor after their 2006 an-
nual hearing tests, were subjected to drug and alcohol testing as
“[OSHA] lowered the bar on what was reportable for hearing
tests.” Of course, Marrinan’s latter admission was corroborated
by Respondent’s attorney in his January 3, 2007 position state-
ment. Based upon the foregoing and the record as a whole,
contrary to Respondent, I believe that Respondent did change
its drug and alcohol policy in 2006 by implementing a new
precipitating event and thereafter compelling employees in its
packaging department bargaining unit, whose annual hearing
tests revealed the occurrence of an STS, to submit to drug and
alcohol testing, which heretofore had not been a routine conse-
quence of being sent to the company doctor, and, accordingly,
that its defense, in this regard, is patently fallacious. Finally, as
there exists no record evidence that Respondent ever gave no-
tice to the Union of its intent to change the terms and condi-
tions of its drug and alcohol policy or afforded it an opportunity
to bargain over said change, Respondent engaged in conduct
violative of Section 8(a)(1) and (5) of the Act. Tocco, Inc.,
supra.
Turning to the validity of the complaint allegations pertain-
ing to Respondent’s pressroom employees bargaining unit and
its alleged unlawful unilateral change of the drug and alcohol
UNION-TRIBUNE PUBLISHING CO. 21
policy, effective for said employees, I agree with counsel for
the General Counsel that Respondent effectively changed said
policy in October 2006. At the outset, I think it’s clear that, for
purposes of mandatory drug and alcohol testing, Respondent’s
aforementioned policy differentiates between employees, who
suffer from discrete on-the-job accidents, and those, who incur
cumulative trauma disorders, and that, in case of the latter type
of injury, upon examination and certification by a company
doctor, pressroom employees are specifically excepted from
having to submit to drug and alcohol tests for their injuries. In
this regard, by letter, dated July 15, 1991, Respondent informed
the Union that it would not compel employees, who suffer from
“certifiable” CTDs, to submit to drug and alcohol tests; that “by
use of the term ‘certifiable,’ [Respondent] means an injury
which is categorized as a cumulative trauma injury by a com-
pany physician (emphasis added); and that hearing loss over
time resulting from repetitive exposure to noise is an example
of a CTD. Further, there is no record evidence, prior to 2006,
of Respondent requiring any employee, who suffered from
cumulative hearing loss, to submit to a drug and alcohol test;
and that, in regard to the latter point, in 1995, another bargain-
ing unit employee, Jerry Dick, filed a workers’ compensation
claim for cumulative trauma hearing loss and was not required
to submit to drug and alcohol testing; and, at no point during
the contract bargaining since August 2005 between Respondent
and the Union, has the former given notice of any change from
this past practice. Then, in October 2006, employee Nathan
Jennings filed a workers’ compensation claim, alleging cumula-
tive trauma hearing loss, and, contrary to the terms of the
aforementioned July 15, 1991 letter, rather than waiting for a
company doctor’s diagnosis that Jennings’ injury resulted from
a discrete on-the-job incident instead of from repetitive expo-
sure to noise (a CTD), loss control manager Ferguson, who
does not possess a medical degree, decided that Jennings’ in-
jury should not be classified as a cumulative trauma injury and
directed the company doctor to administer a drug and alcohol
test to the employee. Concerning what occurred, there is no
record evidence that Respondent gave notice to the Union prior
to implementing this change in its drug and alcohol testing
policy or afforded the Union an opportunity to bargain over it.
Respondent argues, as above, that there is no evidence
Jennings was compelled to submit to a drug and alcohol test
and that there is no record evidence Respondent changed its
past practice. In the latter regard, counsel for Respondent ar-
gues that his client has maintained a longstanding practice of
sending employees, who claim workers’ compensation injuries,
to the company doctor; that, with the exception of those em-
ployees, who, it “has determined,” suffer from CTDs, “. . . the
company has . . . [a practice] . . . of drug and alcohol testing all
employees who visit the company doctor”; that, as Ferguson
determined he suffered from a CTD hearing loss, employee
Jerry Dick was deemed to be exempt from, and not required to
submit to, a drug and alcohol test; and that as Ferguson deter-
mined Jennings did not have a CTD hearing loss, the latter was
drug tested. Initially, contrary to Respondent, as I have previ-
ously concluded that Michael Gurnett was compelled to submit
to a drug test, I likewise believe that Jennings, who was subject
to termination for not complying with Respondent’s drug and
alcohol testing policy, was compelled to submit to such a drug
and alcohol test. Next, by its terms, I believe that Respondent’s
July 15 1991 letter to the Union became part of its drug and
alcohol policy, effective for its pressroom employees bargain-
ing unit, and, accordingly, an aspect of their terms and condi-
tions of employment and that, thereafter, in order to avoid drug
and alcohol testing after incurring a work-related injury, a bar-
gaining unit employee must have a “certifiable” cumulative
trauma injury, one “categorized as [such] by a company physi-
cian.” There is no record evidence that Respondent ever in-
formed the Union that this latter requirement had been changed
or that it desired to change it. In these circumstances, by sub-
sequently having its loss control manager, Ferguson, make
determinations that bargaining unit employees’ asserted work-
ers’ compensation CTD-type injuries were actually discrete on-
the-job type injuries and then instruct the company doctor, who
examined the employees, to administer drug and alcohol tests,
Respondent effectively, unilaterally eviscerated a vital compo-
nent of its drug and alcohol testing policy, effective for the
pressroom department employees. This change, about which
the Union apparently first became aware in 2006 after Respon-
dent required Jennings to submit to a drug and alcohol test after
he filed a workers’ compensation claim for CTD hearing loss
and which has never been a subject of the on-going collective
bargaining between the parties, is particularly egregious, for
Ferguson does not possess a medical degree, his so-called diag-
nosis is made prior to the company doctor’s examination of the
employee’s claimed injury, and his requirement that the em-
ployee be drug and alcohol tested prior to the company doctor’s
final diagnosis renders the latter’s conclusion irrelevant. More-
over, there is no record evidence that Respondent ever commu-
nicated to the Union that Ferguson, and not a company doctor,
has been making the CTD determination decisions,35 and, in
these circumstances, the fact that Ferguson may have made the
determination that Jerry Dick’s claimed workers’ compensation
injury was a CTD injury does not militate against my conclu-
sions or establishes that the complaint allegations as to Jennings
are barred by Section 10(b) of the Act. Based upon the forego-
ing and the record as a whole, I believe that Respondent
changed its drug and alcohol testing policy, effective for its
pressroom bargaining unit employees, by requiring Nathan
Jennings, who had filed a workers’ compensation action, alleg-
ing a CTD hearing injury, to submit to a drug and alcohol test
prior to a company doctor’s determination as to the merits of
the former’s claim. Inasmuch as there is no contention or re-
cord evidence that Respondent informed the Union of this
change in its drug and alcohol policy or that it afforded the
Union an opportunity to bargain prior to implementation, I find
that Respondent engaged in conduct violative of Section 8(a)(1)
and (5) of the Act, with regard to its pressroom employees bar-
gaining unit as alleged in the instant complaint.36

35 Thus, whether, except for CTD injuries, Respondent may have
commenced drug and alcohol testing all employees, who claimed inju-
ries, in 2002 is irrelevant. In this regard, Respondent does not claim
that Ferguson gave notice to the Union he was the individual who made
the CTD diagnoses.
36 Contrary to counsel for Respondent, I do not view Gulf Coast
Automotive Warehouse, Inc., 256 NLRB 486 (1981), as supporting a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
Finally, the complaint alleges that Respondent violated Sec-
tion 8(a)(1) and (5) of the Act by discharging packaging de-
partment employee Gurnett as a result of the above-described
unlawful unilateral change of its drug and alcohol policy, effec-
tive for its packaging department employees bargaining unit,
and by discharging pressroom employee Jennings as a result of
the above-described unlawful unilateral change of its drug and
alcohol policy, effective for its pressroom employees bargain-
ing unit. In addition, the complaint seeks “traditional” rein-
statement and make-whole remedies for said individuals.
While taking a contrary position to that of counsel for Respon-
dent at the hearing, in his posthearing brief, counsel for the
General Counsel stated his agreement with the former that,
pursuant to the Board’s decision in Anheuser-Busch, Inc., su-
pra, reinstatement of Gurnett and Jennings is no longer a per-
missible or appropriate remedy. Thus, in Anheuser-Busch,
which, as herein, involved discharges, for violations of com-
pany work rules, disclosed as a result of the employer’s unlaw-
ful unilateral change, the Board considered the meaning of the
term “for cause” in Section 10(c) of the Act, concluded that
“cause, in the context of [said provision], effectively means the
absence of a prohibited reason,” one the Act forbids, and that
“[the] meaning of the phrase . . . does not include an inquiry
into the source of the employer’s knowledge of its employees’
misconduct, “ and held ‘. . . we interpret Section 10(c) to pre-
clude the Board from granting a make-whole remedy where the
employees were disciplined for cause, even if the employer
learns of the misconduct through unlawful means.” Id. at 644-
650. Herein, notwithstanding Respondent’s clear unlawful
unilateral changes, there is no dispute that Gurnett and Jennings
was each discharged for violating Respondent’s applicable drug
and alcohol policy. While counsel for the Union insists that the
correct opinion in Anheuser-Busch is the dissent, I am, of
course, bound by the majority decision. Accordingly, inasmuch
as both individuals apparently were discharged for cause, there
can be no violation of the Act in either instance, and I shall
recommend that paragraphs 9(d) and (e) be dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(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. The Union is the representative for purposes of collective
bargaining of the following appropriate unit of Respondent’s
employees within the meaning of Section 9(a) of the Act:
All full-time and regular part-time packaging department em-
ployees, including packagers and operators; excluding all
other employees, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act.

conclusion that it engaged in no violation of the Act by compelling
employees, who allege workers’ compensation claims of cumulative
trauma hearing loss, to submit to drug testing prior to a company doctor
denying their claims. Thus, in the cited decision, the Board merely
found that the employer had maintained a consistent past practice about
which the Union was well aware. Herein, of course, Respondent
changed its stated policy, and there is no evidence that the Union was
aware of the change.
4. The Union is the representative for purposes of collective
bargaining of the following appropriate unit of Respondent’s
employees within the meaning of Section 9(a) of the Act:
All employees engaged in the operation of the presses, paper-
handlers and wipers; excluding all other employees, guards,
and supervisors as defined in the Act.
5. By, in or about July 2006, unilaterally changing its drug
and alcohol policy without notice to or affording the Union an
opportunity to bargain by compelling employees in its packag-
ing department bargaining unit, whose annual hearing examina-
tions revealed the occurrence of an STS, to submit to drug and
alcohol tests, Respondent engaged in acts and conduct violative
of Section 8(a)(1) and (5) of the Act.
6. By, in or about October 2006, unilaterally changing its
drug and alcohol policy without notice to or affording the Un-
ion an opportunity to bargain by compelling employees in its
pressroom bargaining unit, who file workers’ compensation
claims for cumulative trauma hearing injuries, to submit to drug
and alcohol tests prior to examination by a company doctor,
Respondent engaged in acts and conduct violative of Section
8(a)(1) and (5) of the Act.
7. The aforementioned unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
8. Respondent engaged in no other unfair labor practices.
REMEDY
Inasmuch as Respondent engaged in serious unfair labor
practices affecting commerce, I shall recommend that it be
ordered to cease and desist from engaging in said unlawful acts
and to take certain affirmative actions designed to effectuate the
purposes and policies of the Act. Thus, having found that Re-
spondent has violated Section 8(a)(1) and (5) of the Act by
making unlawful unilateral changes in its employees’ terms and
conditions of employment, I shall recommend that it be or-
dered to restore the status quo ante by rescinding those changes
upon request by the Union and, upon request by the Union,
bargain in good faith.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended37
ORDER
The Respondent, Union-Tribune Publishing Co., a Division
of Copley Press, Inc., San Diego, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally, without notice to or affording the Union an
opportunity to bargain, changing its drug and alcohol testing
policy for its packaging employees bargaining unit by compel-
ling employees, whose annual hearing tests reveal the occur-
rence of an STS, to submit to drug and alcohol testing.
(b) Unilaterally, without notice to or affording the Union an

37 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
UNION-TRIBUNE PUBLISHING CO. 23
opportunity to bargain, changing its drug and alcohol policy by
compelling employees in its pressroom employees bargaining
unit, who file workers’ compensation claims for cumulative
trauma hearing injuries, to submit to drug and alcohol tests
prior to examination by a company doctor.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaran-
teed to them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies and purposes of the Act.
(a) On request, bargain in good faith with the Union as the
exclusive representative for purposes of collective bargaining
of Respondent’s employees in the units described below:
All full-time and regular part-time packaging department em-
ployees, including packagers and operators; excluding all
other employees, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act
All employees engaged in the operation of presses, paperhan-
dlers and wipers; excluding all other employees, guards, and
supervisors as defined in the Act.
(b) Upon request, restore conditions to the status that existed
before its unlawful, unilateral changes.
(c) Within 14 days after service by the Region, post at its fa-
cility, located in San Diego, California, copies of the attached
notice marked “Appendix.”38 Copies of the notice, on forms
provided by the Regional Director for Region 21, after being
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to [employees] [members] [employees
and members] 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. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since July 17, 2006.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed inso-
far as it alleges that employees were discharged in violation of
Section 8(a)(1) and (5) of the Act.

38 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”