United Hoisting and Scaffolding, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jan 31, 2014

29-CA-105701 (N.L.R.B. Jan. 31, 2014)

JD(NY)–08–14
Long Island City, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
UNITED HOISTING & SCAFFOLDING, INC.
and Case No. 29-CA-105701

INTERNATIONAL UNION OF ELEVATOR
CONSTRUCTORS, LOCAL NO. 1, AFL-CIO
Stephanie LaTour, Esq. for the Acting General Counsel
Gregory R. Begg, Esq. (Peckar & Abramson),
of River Edge, New Jersey, for the Respondent
Jonathan Walters, Esq. (Markowitz & Richman),
of Philadelphia, Pennsylvania, for the Charging Party
DECISION
Statement of the Case
LAUREN ESPOSITO, Administrative Law Judge. Based upon a charge in Case No. 29–
CA–105701, filed on May 21, 2013 by International Union of Elevator Constructors, Local No. 1,
AFL-CIO (“Local 1” or “the Union”), a Complaint and Notice of Hearing (the “Complaint”) issued
on August 29, 2013. The Complaint alleges that United Hoisting & Scaffolding, Inc. (“United” or
“Respondent”), violated Sections 8(a)(1) and (5) of the Act by implementing a drug-testing policy
without providing the Union with an opportunity to bargain, and by discharging two employees
for subsequently refusing to take a drug test pursuant to the newly implemented policy.
Respondent filed an Answer denying the Complaint’s material allegations. This case was tried
before me on September 26, 2013, in Brooklyn, New York.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the arguments of the parties made at trial and in their post-hearing briefs, I
make the following
Findings of Fact
I. Jurisdiction
At all times material to the complaint’s allegations, Respondent has been a corporation
with an office and place of business in Long Island City, New York, engaged in the business of
constructing and maintaining temporary scaffolding and elevators to hoist construction materials
and equipment at various building sites in the New York City area. Respondent admits and I
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find that at all material times it has been an employer engaged in commerce within the meaning
of Sections 2(2), (6), and (7) of the Act. Respondent admitted at the hearing and I find that at all
material times Local 1 has been a labor organization within the meaning of Section 2(5) of the
Act.
II. Alleged Unfair Labor Practices
A. Respondent’s Operations
Respondent’s employees erect and maintain temporary hoists at building construction
sites, which carry workers and materials up to various levels of the building during the
construction process. Respondent’s employees also perform testing on the temporary hoists as
mandated by the New York City Department of Buildings. When construction is finished and the
temporary hoist is dismantled, tenants use the newly-installed elevators inside the building in
order to continue work. Richard Halloran, who testified at the hearing, has been Respondent’s
President for over 20 years.
Respondent’s employees work at various building jobsites, and at Respondent’s shop in
Long Island City. As of May 2013, Respondent employed two employees on a full-time basis –
James Connors and Nohar Singh – and obtained additional employees as necessary through
Local 1’s hiring hall. As of May 2013, Connors had been employed by Respondent as an
elevator mechanic foreman for 22 years, and Singh had been employed for almost 5 years.
Connors and Singh both testified at the hearing.
B. The Collective Bargaining Relationship
Respondent is a member of the Hoisting and Scaffolding Trade Association, Inc.
(“HASTA”), a multi-employer association which has had a collective bargaining relationship with
Local 1 for a number of years. The most recent collective bargaining agreement between Local
1 and HASTA is effective by its terms from August 1, 2010 to March 17, 2015. Halloran served
on the HASTA negotiating committee during the negotiations for this agreement in 2010. Gary
Riefenhauser, Local 1’s Vice President and Business Agent, and Lenny LeGotte, Local 1’s
President and Business Manager, were members of Local 1’s negotiating team during the 2010
negotiations. Riefenhauser testified at the hearing, and stated that he attended all of the
bargaining sessions during the 2010 negotiations.
During the 2010 HASTA negotiations, Local 1 raised the issue of a substance abuse
policy, which was not explicitly provided for under the terms of the HASTA agreement.1 Local 1
also has a collective bargaining relationship with a multi-employer association comprised of
elevator manufacturing companies (such as Otis and Thyssen-Krupp), known as the Elevator
Manufacturers’ Association of New York (“EMANY”). During the 2010 HASTA negotiations,
LeGotte told the HASTA representatives that the Union had negotiated a substance abuse
policy with EMANY, and asked the HASTA representatives if they would be interested in
adopting the same substance abuse policy. According to Riefenhauser, the HASTA
representatives, including Halloran, said that they were not interested in discussing the issue at
that time.

1 Connors and Singh testified without contradiction that prior to May 2013 the only drug tests
they were ever asked to submit to were done at the behest of the general contractor on the site
where they were working, and were not required by the Respondent. Each was only asked to
submit to a drug test on one occasion.
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The 2010-2015 HASTA agreement recognizes Local 1 as the exclusive bargaining
representative for “all Elevator Constructor Mechanics” employed by HASTA’s members who
are “engaged in construction work…within a radius of 50 miles of City Hall of the City of New
York,” with certain geographic exceptions not relevant to this case. The HASTA agreement’s
recognition provisions further state as follows:
The Association represents that it is duly authorized by its members employing
Elevator Constructors to enter into this collective bargaining agreement, that in
so doing it is authorized to bind such members to the terms and conditions of this
Agreement for the full term of this agreement, that it will require, as a condition of
membership in said Association, that such Employer members of the Association
shall continue to be bound by such terms or, shall upon admission to the said
Association, after the date of execution of this Agreement, agree to be bound
from that date forward by all the terms and conditions of this Agreement.
Finally, the recognition provisions state that, “No modification, variation or waiver of any term or
provision herein shall be valid unless agreed upon in writing by both the Association and the
Union.”
The HASTA agreement also contains management rights and complete agreement or
“zipper” provisions. Section III, entitled “Employer Rights,” states “The Employer reserves and
retains the sole and exclusive right to manage its operations and to direct the work force, except
only to the extent that express provisions of this Agreement specifically limit or qualify these
rights.” Section IX, entitled “Complete Agreement,” states, “This Agreement constitutes the
complete agreement between the parties, and there is no other Agreement, written or oral,
which exists between them.”
Finally, the HASTA agreement contains provisions establishing a grievance and
arbitration procedure. Section VI, entitled, “Arbitration,” defines a grievance at Section 1 as “a
grievance, complaint, or dispute concerning the interpretation or application of any provision of
this Agreement” originating with “any employee, any employer, or the Union.” Section VII,
entitled “Employee Grievances,” further provides that “Should any employee have a grievance
based upon a disciplinary action of the Employer (including a disciplinary discharge) or a
discriminatory transfer or reduction of status,” such a grievance will be addressed by the Union
pursuant to the procedures for arbitration.
Respondent’s counsel stated at the hearing that Respondent does not dispute its
membership in HASTA, Local 1’s status as exclusive collective bargaining representative, or its
collective bargaining relationship with Local 1, and does not dispute its obligation to bargain with
Local 1 or comply with the HASTA agreement.
C. The Events of May 9, 2013
On May 9, 2013, Connors and Singh were working on a job at Madison Square Garden,
preparing an elevator car for a test to be performed by representatives of the New York City
Department of Buildings. Connors arrived at about 9:30 a.m., as he had previously been
working at a job in Long Island City. He began working with Singh to prepare the elevator for
the test, when Guido, a safety officer for Respondent, told Connors that Joe Covello, one of
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Respondent’s managers,2 wanted the employees to submit to a drug test immediately. Guido
told Connors and Singh to go to the toilet trailer, and Connors and Singh proceeded downstairs.
However, Connors found the demand that they take a drug test odd, and called Riefenhauser to
ask about it. Riefenhauser testified that Connors called him at about 11 a.m., and told him that
he was being asked to take a drug test pursuant to a new policy. Riefenhauser asked Connors
whether this was Madison Square Garden, and Connors confirmed the location.3 Riefenhauser
asked Connors whether Madison Square Garden was requiring that the employees be drug
tested, and Connors told him no, Respondent initiated the drug test requirement. Riefenhauser
then told Connors that Respondent did not have a drug policy, and that the employees were not
required to take a drug test.
Singh, meanwhile, had gone to the toilet trailer. When he did not see Connors or any
other employees there, he stepped out of the trailer, where he saw Guido. Singh told Guido that
he wanted to use the company phone to call Riefenhauser, but Guido said that if Singh left the
trailer he would be fired.
Connors testified that after he finished his conversation with Riefenhauser, he looked for
Singh, to have Singh talk to Riefenhauser about the drug test. Singh then spoke to
Riefenhauser, who told him that he should not take the drug test because it was not required
under the Union’s contract. Singh testified that about an hour later, Guido told him that he and
Connors were fired, and stated that Covello wanted the keys for the company vehicle.
Reifenhauser testified that Covello called him about an hour later.4 Reifenhauser asked
Covello what was going on, and Covello replied that Respondent had a new policy, and that the
employees would be fired if they didn’t take the drug test. Covello said that the employees were
fired, and that he did not want them to take the company van home because he didn’t know
whether they were sober.5 Reifenhauser asked Covello what made him think the employees
were not sober, given that they had been working for Respondent for 20 years. Covello replied
that they were not to drive the company vehicle, because they had refused to take the drug test.
Reifenhauser told Covello that the employees had their tools in the company vehicle, and
Covello said that they could return to get them the next day. Reifenhauser then told Connors
and Singh to go home because they were discharged. Riefenhauser told Connors that Covello
had said that because he and Singh were too incapacitated to drive the company vehicle, they
should give the keys to Guido. Riefenhauser told Connors that the Union would proceed from
that point.
Reifenhauser testified that the next day, Covello called him at around 5 a.m. and told
him that if Connors and Singh set foot in the building they would be arrested. Covello said that
the employees were not permitted in the building, because he did not know whether or not they
were sober.

2 Connors testified that he believed that Covello was one of Respondent’s officers, and
testified without contradiction that Covello reported directly to Halloran.
3 Riefenhauser testified that he found Respondent’s demand that employees take a drug
test at that particular phase of the work on the Madison Square Garden project odd, because
employers typically raised such concerns with the Union prior to a project’s beginning. The
Madison Square Garden project had begun three years earlier.
4 Covello did not testify at the hearing.
5 There is no evidence that Connors and Singh were intoxicated or incapacitated in any way
on May 9, 2013.
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D. The Grievance and Arbitration Procedure
On May 13, 2013, Riefenhauser initiated the grievance procedure by sending Halloran
letters stating that the Union wished to grieve the discharges of Connors and Singh. On May
23, 2013, Respondent’s counsel wrote to Riefenhauser denying the grievance, and stating that
Connors and Singh were legitimately terminated for refusing to comply with Respondent’s drug
testing policy. Respondent also contended in this letter that Connors was discharged because
he lacked the skills, training, and experience necessary to maintain and repair Variable
Frequency Drives and Programmable Logic Controllers. In subsequent correspondence
between Respondent and Union counsel, the Union contended that Respondent had violated
the National Labor Relations Act by implementing a drug testing policy without providing the
Union with notice and the opportunity to bargain. The Union also contended that the claim that
Connors lacked sufficient training and experience to continue his employment was belied by his
22 years of work for Respondent.
The grievances were not resolved, and on August 28, 2013, the Union demanded a
meeting of the New York Hoisting Trade Arbitration Committee to discuss them, pursuant to the
collective bargaining agreement’s grievance and arbitration procedure. The Union stated that if
the grievances were not resolved at the meeting, it intended to submit them to arbitration. The
Arbitration Committee meeting was held on October 3, 2013, but the grievances were not
resolved, and the Union demanded arbitration in writing that day.
III. Analysis and Conclusion
A. The Positions of the Parties
General Counsel contends that Respondent violated Section 8(a)(5) of the Act by
implementing a drug testing policy without providing Local 1 with notice and the opportunity to
bargain. Because the Board has held that drug testing is a mandatory subject of bargaining,
Respondent violated Section 8(a)(5) by its unilateral implementation. Johnson-Bateman Co.,
295 NLRB 180 (1989). General Counsel further argues that the evidence does not establish
that the Union waived its right to demand bargaining regarding the implementation of the drug
testing policy. General Counsel asserts that there was no “clear and unmistakeable” express
waiver of the right to demand bargaining on the Union’s part, and that Respondent in fact
waived its right to bargain regarding drug testing by explicitly declining to do so during the
negotiations culminating in the 2010-2015 HASTA contract. Finally, General Counsel contends
that Connors and Singh were discharged on May 9, 2013 solely for refusing to submit to a drug
test, and that Respondent’s claim that Connors was no longer qualified to continue his
employment is both irrelevant and unsubstantiated by the evidence.
Respondent argues that the charge should be deferred to the grievance and arbitration
process contained in the HASTA collective bargaining agreement pursuant to Collyer Insulated
Wire and United Technologies Corp., and that the Complaint should therefore be dismissed.
Collyer Insulated Wire, 192 NLRB 837 (1971); United Technologies Corp., 268 NLRB 557
(1984). Respondent argues that the six components of the Collyer analysis are satisfied here,
and notes that the Board has in the past deferred to the grievance procedure allegations that
the unilateral implementation of substance abuse policies and other work rules violated Section
8(a)(5). General Counsel and the Union contend that deferral under Collyer is inappropriate,
because, given the parties’ bargaining history and the wording of the HASTA agreement’s
management rights and zipper clauses, the resolution of the unilateral change allegation does
not involve a matter of contract interpretation. General Counsel further argues that an arbitrator
would not be able to fully remedy Respondent’s failure to bargain regarding the drug testing
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policy, because they would not be empowered to order a notice posting. Finally, General
Counsel asserts that Respondent should not be permitted by deferral of the Complaint’s
allegations to argue in the context of an arbitration hearing that its termination of Connors was
engendered by Connors’ lack of qualifications.
B. Deferral to Arbitration
As stated above, Respondent argues in its posthearing brief that the charge should be
deferred to the grievance and arbitration procedure contained in the HASTA collective-
bargaining agreement, pursuant to Collyer Insulated Wire and United Technologies. Whether
deferral to the grievance and arbitration process is appropriate is a “threshold question” which
must be decided prior to addressing the merits of the allegations at issue. Sheet Metal Workers
Local 18—Wisconsin (Everbrite, LLC), 359 NLRB No. 121, at p. 2 (2013), quoting L.E. Myers
Co., 270 NLRB 1010, 1010, fn. 2 (1984). Under Collyer and United Technologies, pre-arbitral
deferral to the grievance and arbitration procedure is warranted where:
the parties’ dispute arises within the confines of a long and productive collective-
bargaining relationship; there is no claim of animosity to employees’ exercise of
Section 7 rights; the parties’ agreement provides for arbitration in a broad range
of disputes; the parties’ arbitration clause clearly encompasses the dispute at
issue; the party seeking deferral has asserted its willingness to utilize arbitration
to resolve the dispute; and the dispute is well suited to resolution by arbitration.6
Sheet Metal Workers Local 18—Wisconsin, 359 NLRB No. 121, at p. 1-2. The Board
has held that its deferral policy ensures that where the parties have voluntarily created a
dispute resolution mechanism “culminating in final and binding arbitration, it is contrary
to the basic principles of the Act for the Board to jump into the fray prior to an honest
attempt by the parties” to resolve conflict in that manner. United Technologies, 268
NLRB at 558. It is also well-settled that a deferral defense can be raised at the hearing
even if, as in the instant case, it was not previously asserted in a party’s pleadings.
Sheet Metal Workers Local 18—Wisconsin, 359 NLRB No. 121, at p. 2; Hospitality Care
Center, 314 NLRB 893, 894 (1994).
The evidence establishes that, as Respondent argues, the majority of the criteria
for deferral to arbitration are satisfied here. The parties’ collective bargaining
relationship is well-established, and there is no evidence that it has been less than
productive overall. The Complaint does not contain allegations against Respondent
premised upon animosity toward the exercise of Section 7 rights, and there is no other
evidence to that effect. The HASTA agreement provides for the arbitration of a broad

6 The Board applies the analysis articulated in Spielberg Mfg. Co., 112 NLRB 1080 (1955),
and Olin Corp., 268 NLRB 573 (1984), in order to determine whether deferral to an arbitrator’s
award is appropriate. Under these cases, the Board will defer to an award where the
proceedings appear to have been fair and regular, all parties have agreed to be bound, and the
arbitrator’s decision is not “clearly repugnant” to the Act’s purposes and policies. In addition, the
evidence must establish that the arbitrator considered the unfair labor practice issue before the
Board, meaning that the contractual and unfair labor practice issues are factually parallel, the
arbitrator was generally presented with the facts relevant to the unfair labor practice, and the
arbitrator’s decision “is susceptible to an interpretation consistent with the Act.” Smurfit-Stone
Container Corp., 344 NLRB 658, 659 (2005), citing Olin Corp., 268 NLRB at 574.
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range of disputes – any “grievance, complaint, or dispute concerning the interpretation or
application of any provision” of the contract, and all disciplinary matters including
discharge. This language would clearly encompass the Union’s grievance regarding
Respondent’s discharge of Connors and Singh (for whatever the asserted reason), and
whether Respondent’s implementation of the drug test policy violated the agreement.
Respondent has represented that it is willing to resolve the dispute through the
grievance and arbitration procedure. Finally, Respondent cites a number of cases
where the Board has deferred to the grievance and arbitration procedure allegations that
an employer violated Section 8(a)(5) of the Act by unilaterally implementing substance
abuse or drug testing policies. See, e.g., Wonder Bread, 343 NLRB 55 (2004); Southern
California Edison Co., 310 NLRB 1229 (1993), review denied, 39 F.3d 1210 (D.C. Cir.
1994); Inland Container Corp., 298 NLRB 715 (1990); The Standard Oil Co. (Ohio), 254
NLRB 32 (1981).
Given the evidence and the Collyer analysis described above, the crux of the
matter here is therefore whether the dispute is well-suited to resolution by arbitration.
The Board considers an issue to be well-suited to arbitral resolution when “the meaning
of a contract provision is at the heart of the dispute.” San Juan Bautista Medical Center,
356 NLRB No. 102, at p. 2 (2011). Deferral is not appropriate, by contrast, where no
interpretation of the contract is pertinent to Respondent’s contentions regarding its
failure to comply with a particular contract provision. San Juan Bautista Medical Center,
356 NLRB No. 102, at p. 2, citing Struthers Wells Corp., 245 NLRB 1170, 1171, fn. 4
(1979). For example, deferral is inappropriate where the dispute turns upon
interpretation of the Act, or of other statutory provisions incorporated into the collective
bargaining agreement. See Avery Dennison, 330 NLRB 389, 389-391 (1990) (declining
to defer allegations involving transfer of bargaining unit work, withdrawal of recognition
and unilateral changes which implicate “the very existence of a collective-bargaining
relationship”); San Juan Bautista Medical Center, 356 NLRB No. 102, at p. 1-3 (declining
to defer dispute centered on applicability of statutory exemption to Puerto Rico law
requiring payment of a Christmas bonus). Deferral is also unwarranted where the
disputed contract provision is clear and unambiguous, so that the “special competence”
of an arbitrator is not required. University Moving & Storage Co., 350 NLRB 6, 20
(2007); New Mexico Symphony Orchestra, 335 NLRB 896, 897 (2001). Thus, the Board
has held that contract provisions which require the payment of pension and welfare fund
contributions and explicitly enumerate terms such as leave accrual and wage rates do
not require any interpretive expertise, and that disputes involving such language are not
particularly suited for resolution within the arbitral context.7 See, e.g., Chapin Hill at Red
Bank, 359 NLRB No. 125, at p. 6 (2013) (deferral inappropriate where Respondent failed
to identify a contract term requiring interpretation, and Respondent’s contractual
obligation to make pension fund contributions was clear); University Moving & Storage
Co., 350 NLRB at 20-21 (contract language which “explicitly and unequivocally provides
for” pay-out of accrued sick leave “presents no question of contract interpretation”);

7 The Board has also held that allegations regarding unilateral changes in wage rates are
particularly unsuited for deferral in that they constitute “a basic repudiation of the bargaining
relationship” and the principles of collective bargaining. Oak Cliff-Golman Baking Company,
207 NLRB 1063, 1064 (1973), enf’d, 505 F.2d 1302 (5th Cir. 1974), supplementing 202 NLRB
614 (1973). The Board distinguishes such cases, however, from situations involving alleged
unilateral changes in terms less vital to the essence of the employment relationship, as the latter
do not constitute a wholesale rejection of collective bargaining in and of itself. See Inland
Container Corp., 298 NLRB at 716, n. 3; Textron, Inc., 310 NLRB at 1211, n. 8.
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Grane Health Care, Inc., 337 NLRB 432, 436-437 (2002) (wage rates specified by
contract clear and unambiguous); Struthers Wells Corp., 245 NLRB 1170, 1171, n. 4
(1979), enf’d, 636 F.2d 1210 (3rd Cir. 1980) (merit increase provisions clear and
unambiguous).
In the instant case, however, the resolution of the Union’s grievances involves
the interpretation of several contract provisions, including the management rights clause
and the complete agreement or “zipper” clause, appropriate for the special interpretive
competence of an arbitrator. There is no definite, unambiguous contract term or
obligation to be applied here. Respondent’s contention that it was permitted to
unilaterally institute a drug testing policy will turn at least in part upon the interpretation
of the contract’s management rights clause, which states that Respondent “reserves and
retains the sole and exclusive right to manage its operations and to direct the work
force,” unless “express provisions of this Agreement specifically limit or qualify these
rights.” General Counsel is correct that this management rights clause does not
specifically empower Respondent to promulgate safety rules or other standards which
could nominally encompass drug testing, as was the case in Southern California Edison
Co., 310 NLRB at 1230-1231. See also Textron, Inc., 310 NLRB 1209, 1210, fn. 6
(1993); Certainteed Corp., 2013 WL 772784 at p. 2 (February 28, 2013) (Board Decision
not included in bound volumes). However, the Board has deferred unilateral change
allegations based upon broader management rights language, as in Wonder Bread, and
even in situations where there were no specific contract provisions in dispute.8 See
Wonder Bread, 343 NLRB at 56, n. 2; Inland Container Corp., 298 NLRB at 716; The
Standard Oil Co. (Ohio), 254 NLRB at 34-35.
The instant case is in fact similar to the situation addressed by the Board in
Wonder Bread. As discussed above, in Wonder Bread the Board deferred an allegation
that the employer violated Section 8(a)(5) by unilaterally implementing a policy requiring
physical examinations and possible drug testing to the grievance and arbitration
procedure. 343 NLRB at 55-56. The management rights clause considered by the
Board in Wonder Bread stated that “the management of the plant, the methods of
operation, and the direction of the workforce is vested in the company except as
specifically modified by this Agreement.” 343 NLRB at 55. Its wording was therefore
relatively general, as is the case with the management rights provision at issue here.
The language defining issues appropriate for the grievance and arbitration procedure in
Wonder Bread – “any difference…between the Company and the Union as to the
interpretation or application of any provision of this Agreement” – was also comparable
in breadth to the arbitration provisions in this case. 343 NLRB at 55. The Board in
Wonder Bread nevertheless rejected the General Counsel’s argument that no contract

8 Contrary to General Counsel’s contention, deferral of a unilateral change allegation under
Collyer does not involve a consideration of whether a party waived its right to bargain over the
subject matter of the unilateral change. Post-hearing brief for General Counsel at p. 23-24. As
General Counsel states, in Southern California Edison Co., the Board considered whether an
arbitrator’s award was “susceptible to the interpretation that the arbitrator found a waiver” of the
union’s right to demand bargaining regarding drug and alcohol testing. 310 NLRB at 1231.
However, the Board did so as part of its determination that the arbitrator’s award was not
“clearly repugnant to the Act” pursuant to the Spielberg Mfg. Co. analysis for evaluating whether
deferral to an arbitrator’s award was appropriate. The instant case, by contrast, involves pre-
arbitral deferral under Collyer, and therefore implicates the distinct, six factor test discussed
previously.
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provision could “reasonably be interpreted as authorizing the alleged unilateral action.”
Wonder Bread, 343 NLRB at 56. Instead, the Board found that given the lack of
“restriction on the subject matter of grievances that may be filed and pursued to
arbitration,” the issue of “reasonable interpretation” was “one…for the arbitrator.”9 Id.
Nor do I find that, as General Counsel argues, the bargaining history combined
with the language of the management rights and zipper clauses results in a clear and
unambiguous preclusion of Respondent’s prerogative to implement a drug test, such that
arbitral contract interpretation is unnecessary. In my view, a conclusion that the
management rights clause could not possibly be interpreted as permitting Respondent to
unilaterally implement a drug testing policy does not inescapably follow from
Respondent’s declining to bargain regarding a substance abuse policy during the 2010
HASTA negotiations, as General Counsel contends. Regardless, as discussed above,
the cases declining to defer on the basis of clear and unambiguous contract language
involve explicitly defined rights and obligations such as wage rates and fund contribution
requirements. By contrast, as further discussed above, the Board has deferred
unilateral change allegations based upon general management rights language such as
the provision contained in the HASTA agreement, or, indeed, where there is no specific
contract provision in dispute.
It should be noted in this respect that the Board has also deferred to arbitration
unilateral change allegations which implicate zipper clauses and bargaining history. For
example, in Radioear Corporation, 199 NLRB 1161 (1972), the General Counsel
contended that the employer violated Section 8(a)(5) by unilaterally terminating a
Thanksgiving “turkey money” bonus, which had been provided for many years but was
not explicitly addressed in the collective bargaining agreement. Radioear Corporation,
199 NLRB at 1161. The employer contended that given the contract’s zipper clause and
the union’s unsuccessful attempts during the previous contract negotiations to include
language preserving all existing benefits, the “turkey money” was not intended to have
the effect of a contract benefit. Id. Although the Administrative Law Judge found that
the employer had violated Section 8(a)(5) given the absence of a clear and unequivocal
waiver on the part of the union, the Board deferred the charge to the grievance and
arbitration procedure under Collyer. Id. The Board found that deferral was appropriate

9 As General Counsel states in her post-hearing brief, the Board in Johnson-Bateman
rejected the employer’s contention that its unilateral implementation of a drug testing policy was
“solely a matter of contract interpretation,” and therefore inappropriate for a Board
determination. 295 NLRB at 186; Post-hearing brief for General Counsel at 24-25. However,
the Board’s conclusion in this respect took place in the context of the doctrine that where the
employer and the union advance “equally plausible interpretations” of contested contract
provisions, the dispute is one of contract interpretation in which the Board will not in effect serve
as an arbitrator. Johnson-Bateman, 295 NLRB at 186, citing NCR Corp., 271 NLRB 1212
(1984). The Board has since held that the equally plausible interpretations or “sound arguable
basis” defense applies solely to allegations involving unlawful mid-term contract modifications,
and not unilateral changes in mandatory subjects of bargaining. See Bath Iron Works Corp.,
345 NLRB 499, 502 (2005), enf’d, 475 F.3d 14 (1st Cir. 2007). As a result, this aspect of the
Board’s Johnson-Bateman decision is not pertinent here. In Johnson-Bateman Co. neither
party contended that the unilateral implementation allegation should be deferred to arbitration,
and the Board therefore did not address deferral. 295 NLRB at 181, n. 6.
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in that “the collective-bargaining agreement, and the events surrounding its execution,
are at the heart of the disagreement.”10 Id.
For all of the foregoing reasons, I find that the contract provisions implicated by
the grievances here are not “clear and unambiguous” such that the interpretive
competence of an arbitrator is superfluous. As a result, I find that the dispute herein is
well-suited to resolution through arbitration.
The other arguments raised by General Counsel and the Charging Party against
deferral of the charge are unavailing. General Counsel provides no legal support for its
assertion that deferral is not appropriate because the arbitrator will not be able to fully
remedy the violation by assuring the employees that Respondent will comply with its
bargaining obligation. In fact, as discussed above, there is a substantial history of Board
deferral with respect to allegations that employers unlawfully unilaterally implemented
substance abuse or drug testing policies, despite arbitrators’ customary lack of authority
to order a notice posting. Nor is there legal precedent for General Counsel’s argument
that the charge should not be deferred in order to prevent Respondent from pursuing its
contentions regarding Connors’ purported lack of expertise in arbitration.
For all of the foregoing reasons, I find that that deferral of the Complaint’s
allegations to the grievance and arbitration procedure under the HASTA collective
bargaining agreement is appropriate. As such, I recommend that the Complaint be
dismissed.
Conclusions of Law
1. The Respondent, United Hoisting & Scaffolding, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. International Union of Elevator Constructors, Local No. 1, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. At all material times, International Union of Elevator Constructors, Local No. 1, AFL-
CIO, has been the limited exclusive collective bargaining representative of the following
appropriate unit of employees for the purposes of collective bargaining: All elevator constructor
mechanics as set forth in Section 1A of the collective bargaining agreement between Local No.
1 and the Hoisting and Scaffolding Trade Association effective from August 1, 2010 through
March 17, 2015.
4. The Complaint’s allegations are appropriate for deferral to arbitration pursuant to
Collyer Insulated Wire and United Technologies.

10 The union in Radioear Corporation subsequently requested that the Board review the
arbitrator’s award after the arbitrator explicitly declined to opine as to the applicability of the
zipper clause to the existence of an obligation on the employer’s part to bargain over the “turkey
money.” 214 NLRB 362, 363 (1974). The Board, considering the zipper clause as well as other
evidence in the record, found that the union waived its right to bargain regarding the “turkey
money,” such that no bargaining obligation existed on the employer’s part, and therefore
dismissed the complaint. Radioear Corporation, 214 NLRB at 364.
JD(NY)–08–14
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ORDER
It is recommended that the Complaint be dismissed; provided, however, that the Board
shall retain jurisdiction of this proceeding for the purpose of entertaining an appropriate and
timely motion for further consideration upon a proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this Order, either been resolved by amicable
settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance
or arbitration procedures have not been fair and regular, or have reached a result that is
repugnant to the Act.
Dated: Washington, DC January 31, 2014
___________________________________
Lauren Esposito
Administrative Law Judge