United Hoisting and Scaffolding, Inc.

National Labor Relations Board - Board Decisions

Jul 1, 2014

360 N.L.R.B. 1258 (N.L.R.B. 2014)

1258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
360 NLRB No. 137
United Hoisting & Scaffolding, Inc. and International
Union of Elevator Constructors, Local No. 1,
AFL–CIO. Case 29–CA–105701
July 1, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On January 31, 2014, Administrative Law Judge Lau-
ren Esposito issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief, the Respondent filed an answer-
ing brief, and the General Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt her recommended Order dismissing the com-
plaint.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed; howev-
er, jurisdiction of this proceeding is retained for the lim-
ited purpose of entertaining an appropriate and timely
motion for review of the award as to its appropriateness
for deferral.
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 Philadelph-
ia, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAUREN ESPOSITO, Administrative Law Judge. Based upon a
charge in Case 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 com-
plaint alleges that United Hoisting & Scaffolding, Inc. (United
or Respondent), violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) by implementing a drug testing
policy without providing the Union with an opportunity to bar-
gain, and by discharging two employees for subsequently refus-
ing to take a drug test pursuant to the newly implemented poli-
cy. Respondent filed an answer denying the complaint’s mate-
rial allegations. This case was tried before me on September
26, 2013, in Brooklyn, New York.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the arguments of
the parties made at trial and in their posthearing briefs, I make
the following
FINDINGS OF FACT
I. JURISDICTION
At all times material to the complaint’s allegations, Re-
spondent has been a corporation with an office and place of
business in Long Island City, New York, engaged in the busi-
ness of constructing and maintaining temporary scaffolding and
elevators to hoist construction materials and equipment at vari-
ous building sites in the New York City area. Respondent ad-
mits and I find that at all material times it has been an employer
engaged in commerce within the meaning of Section 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 organiza-
tion 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 materi-
als 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 Depart-
ment of Buildings. When construction is finished and the tem-
porary hoist is dismantled, tenants use the newly-installed ele-
vators 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 ba-
sis—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 multiemployer 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 nego-
tiations for this agreement in 2010. Gary Riefenhauser, Local
1’s vice president and business agent, and Lenny LeGotte, Lo-
cal 1’s president and business manager, were members of Local
1’s negotiating team during the 2010 negotiations. Riefen-
hauser 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 is-
sue of a substance abuse policy, which was not explicitly pro-
vided for under the terms of the HASTA agreement.1 Local 1

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
UNITED HOISTING & SCAFFOLDING, INC. 1259
also has a collective-bargaining relationship with a multiem-
ployer association comprised of elevator manufacturing com-
panies (such as Otis and Thyssen-Krupp), known as the Eleva-
tor Manufacturers’ Association of New York (EMANY). Dur-
ing 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 representa-
tives, including Halloran, said that they were not interested in
discussing the issue at that time.
The 2010–2015 HASTA agreement recognizes Local 1 as
the exclusive bargaining representative for “all Elevator Con-
structor 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 author-
ized to bind such members to the terms and conditions of this
Agreement for the full term of this agreement, that it will re-
quire, 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, enti-
tled, “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 estab-
lishing a grievance and arbitration procedure. Section VI, enti-
tled, “Arbitration,” defines a grievance at section 1 as “a griev-
ance, 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 discipli-
nary action of the Employer (including a disciplinary dis-
charge) or a discriminatory transfer or reduction of status,”

working, and were not required by the Respondent. Each was only
asked to submit to a drug test on one occasion.
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 De-
partment 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 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 Con-
nors 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 Riefen-
hauser, who told him that he should not take the drug test be-
cause 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.

2 Connors testified that he believed that Covello was one of Re-
spondent’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 3 years earlier.
4 Covello did not testify at the hearing.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1260
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, be-
cause they had refused to take the drug test. Reifenhauser told
Covello that the employees had their tools in the company ve-
hicle, 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 Con-
nors 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.
D. The Grievance and Arbitration Procedure
On May 13, 2013, Riefenhauser initiated the grievance pro-
cedure 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 legiti-
mately 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, train-
ing, and experience necessary to maintain and repair variable
frequency drives and programmable logic controllers. In sub-
sequent correspondence between Respondent and union coun-
sel, the Union contended that Respondent had violated the Na-
tional Labor Relations Act by implementing a drug testing poli-
cy without providing the Union with notice and the opportunity
to bargain. The Union also contended that the claim that Con-
nors lacked sufficient training and experience to continue his
employment was belied by his 22 years of work for Respond-
ent.
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 arbitra-
tion. 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
The General Counsel contends that Respondent violated Sec-
tion 8(a)(5) of the Act by implementing a drug testing policy
without providing Local 1 with notice and the opportunity to

5 There is no evidence that Connors and Singh were intoxicated or
incapacitated in any way on May 9, 2013.
bargain. Because the Board has held that drug testing is a man-
datory subject of bargaining, Respondent violated Section
8(a)(5) by its unilateral implementation. Johnson-Bateman
Co., 295 NLRB 180 (1989). The General Counsel further ar-
gues that the evidence does not establish that the Union waived
its right to demand bargaining regarding the implementation of
the drug testing policy. The 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 explic-
itly declining to do so during the negotiations culminating in
the 2010–2015 HASTA contract. Finally, The General Counsel
contends that Connors and Singh were discharged on May 9,
2013, solely for refusing to submit to a drug test, and that Re-
spondent’s claim that Connors was no longer qualified to con-
tinue 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 Col-
lyer 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). The 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 Coun-
sel further argues that an arbitrator would not be able to fully
remedy Respondent’s failure to bargain regarding the drug
testing policy, because they would not be empowered to order a
notice posting. Finally, The General Counsel asserts that Re-
spondent 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 arbitra-
tion 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 is-
sue. Sheet Metal Workers Local 18—Wisconsin (Everbrite,
LLC), 359 NLRB 1095, 1096 (2013), quoting L. E. Myers Co.,
270 NLRB 1010, 1010 fn. 2 (1984). Under Collyer and United
Technologies, prearbitral deferral to the grievance and arbitra-
tion 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;
UNITED HOISTING & SCAFFOLDING, INC. 1261
the parties’ agreement provides for arbitration in a broad
range of disputes; the parties’ arbitration clause clearly en-
compasses the dispute at issue; the party seeking deferral has
asserted its willingness to utilize arbitration to resolve the dis-
pute; and the dispute is well suited to resolution by arbitra-
tion.6
Sheet Metal Workers Local 18—Wisconsin, 359 NLRB 1095,
1095–1096. The Board has held that its deferral policy ensures
that where the parties have voluntarily created a dispute resolu-
tion 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 Work-
ers Local 18—Wisconsin, 359 NLRB 1095, 1096; Hospitality
Care Center, 314 NLRB 893, 894 (1994).
The evidence establishes that, as Respondent argues, the ma-
jority of the criteria for deferral to arbitration are satisfied here.
The parties’ collective-bargaining relationship is well estab-
lished, and there is no evidence that it has been less than pro-
ductive overall. The complaint does not contain allegations
against Respondent premised upon animosity toward the exer-
cise of Section 7 rights, and there is no other evidence to that
effect. The HASTA agreement provides for the arbitration of a
broad 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 im-
plementation of the drug test policy violated the agreement.
Respondent has represented that it is willing to resolve the dis-
pute through the grievance and arbitration procedure. Finally,
Respondent cites a number of cases where the Board has de-
ferred to the grievance and arbitration procedure allegations
that an employer violated Section 8(a)(5) of the Act by unilat-
erally implementing substance abuse or drug testing policies.
See, e.g., Wonder Bread, 343 NLRB 55 (2004); Southern Cali-
fornia Edison Co., 310 NLRB 1229 (1993), review denied 39
F.3d 1210 (D.C. Cir. 1994); Inland Container Corp., 298
NLRB 715 (1990); Standard Oil Co. (Ohio), 254 NLRB 32
(1981).

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 appropri-
ate. 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 repug-
nant” 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 deci-
sion “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.
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 736, 737 (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, supra, 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 col-
lective-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 at 736, 736–738 (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 provi-
sions 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 1119, 1124 (2013) (defer-
ral inappropriate where Respondent failed to identify a contract
term requiring interpretation, and Respondent’s contractual
obligation to make pension fund contributions was clear); Uni-
versity 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 in-
terpretation”); Grane Health Care, Inc., 337 NLRB 432, 436–
437 (2002) (wage rates specified by contract clear and unam-
biguous); Struthers Wells Corp., 245 NLRB 1170, 1171 fn. 4
(1979), enfd. 636 F.2d 1210 (3d 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 provi-
sions, including the management-rights clause and the complete
agreement or “zipper” clause, appropriate for the special inter-

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 Co., 207
NLRB 1063, 1064 (1973), enfd. 505 F.2d 1302 (5th Cir. 1974), sup-
plementing 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 fn. 3;
Textron, Inc., 310 NLRB at 1211 fn. 8.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1262
pretive competence of an arbitrator. There is no definite, un-
ambiguous contract term or obligation to be applied here. Re-
spondent’s contention that it was permitted to unilaterally insti-
tute a drug testing policy will turn at least in part upon the in-
terpretation of the contract’s management rights clause, which
states that Respondent “reserves and retains the sole and exclu-
sive right to manage its operations and to direct the work
force,” unless “express provisions of this Agreement specifical-
ly limit or qualify these rights.” The General Counsel is correct
that this management-rights clause does not specifically em-
power 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 (Feb. 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 provi-
sions in dispute.8 See Wonder Bread, 343 NLRB at 56 fn. 2;
Inland Container Corp., 298 NLRB at 716; 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 vio-
lated 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 griev-
ance and arbitration procedure in Wonder Bread—“any differ-
ence . . . between the Company and the Union as to the inter-
pretation 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 nev-
ertheless rejected the General Counsel’s argument that no con-
tract 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

8 Contrary to the General Counsel’s contention, deferral of a unilat-
eral 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. Posthearing brief for the General Counsel at p.
23–24. As the General Counsel states, in Southern California Edison
Co., the Board considered whether an arbitrator’s award was “suscepti-
ble to the interpretation that the arbitrator found a waiver” of the un-
ion’s right to demand bargaining regarding drug and alcohol testing.
310 NLRB at 1231. However, the Board did so as part of its determi-
nation 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 prearbitral deferral under Collyer, and therefore
implicates the distinct, six factor test discussed previously.
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 the General Counsel argues, the bar-
gaining history combined with the language of the manage-
ment-rights and zipper clauses results in a clear and unambigu-
ous preclusion of Respondent’s prerogative to implement a
drug test, such that arbitral contract interpretation is unneces-
sary. In my view, a conclusion that the management-rights
clause could not possibly be interpreted as permitting Respond-
ent 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 the 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 con-
tribution 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 de-
ferred to arbitration unilateral change allegations which impli-
cate zipper clauses and bargaining history. For example, in
Radioear Corp., 199 NLRB 1161 (1972), the General Counsel
contended that the employer violated Section 8(a)(5) by unilat-
erally terminating a Thanksgiving “turkey money” bonus,
which had been provided for many years but was not explicitly
addressed in the collective-bargaining agreement. Radioear
Corp., 199 NLRB at 1161. The employer contended that given
the contract’s zipper clause and the union’s unsuccessful at-
tempts 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

9 As the General Counsel states in her posthearing brief, the Board
in Johnson-Bateman rejected the employer’s contention that its unilat-
eral implementation of a drug testing policy was “solely a matter of
contract interpretation,” and therefore inappropriate for a Board deter-
mination. 295 NLRB at 186; Posthearing brief for the 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 ad-
vance “equally plausible interpretations” of contested contract provi-
sions, 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 midterm
contract modifications, and not unilateral changes in mandatory sub-
jects of bargaining. See Bath Iron Works Corp., 345 NLRB 499, 502
(2005), enfd. 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 fn. 6.
UNITED HOISTING & SCAFFOLDING, INC. 1263
Collyer. Id. The Board found that deferral was appropriate in
that “the collective-bargaining agreement, and the events sur-
rounding its execution, are at the heart of the disagreement.”10
Id.
For all of the foregoing reasons, I find that the contract pro-
visions implicated by the grievances here are not “clear and
unambiguous” such that the interpretive competence of an arbi-
trator is superfluous. As a result, I find that the dispute herein
is well suited to resolution through arbitration.
The other arguments raised by the General Counsel and the
Charging Party against deferral of the charge are unavailing.
The 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 poli-
cies, despite arbitrators’ customary lack of authority to order a
notice posting. Nor is there legal precedent for the General
Counsel’s argument that the charge should not be deferred in
order to prevent Respondent from pursuing its contentions re-
garding 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

10 The union in Radioear Corp. subsequently requested that the
Board review the arbitrator’s award after the arbitrator explicitly de-
clined to opine as to the applicability of the zipper clause to the exist-
ence 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 there-
fore dismissed the complaint. Radioear Corp., 214 NLRB at 364.
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 Sec-
tion 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 Sec-
tion 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 Associa-
tion 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.
ORDER
It is recommended that the complaint be dismissed; provid-
ed, however, that the Board shall retain jurisdiction of this pro-
ceeding for the purpose of entertaining an appropriate and time-
ly 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 repug-
nant to the Act.