Lockheed Shipbuilding Co.

National Labor Relations Board - Board Decisions

Dec 10, 1984

273 N.L.R.B. 171 (N.L.R.B. 1984)

LOCKHEED SHIPBUILDING CO 171
Lockheed Shipbuilding and Construction Company
and International Brotherhood of Electrical
Workers, Local 46, AFL-CIO and International
Brotherhood of Boilermakers, Local 104, AFL-
CIO and Clarence Spurgeon and George 0.
McDonnell and James 0. Branson. Cases 19-
CA-13226, 19-CA-13298, 19-CA-13741, 19-
CA-14066, 19-CA-15002, 1 19-CA-15003, and
19-CA-15044
10 December 1984
DECISION AND ORDER
, BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On . 31 August 1982 Administrative Law Judge
James S. Jenson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Parties filed an answering brief
to the Respondent's exceptions and a motion to
strike affidavits attached to the Respondent's
brief.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding • to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 3 and
conclusions and to adopt the recommended Order
as modified.
We agree with the judge that the ReSpOndent
violated Section 8(a)(5) of the Act by implementing
a pulmonary function and audiometric medical
Counsel for the General Counsel filed a motion to transfer Cases 19-
CA-15002, 19-CA-15003, and 19-CA-15044, in which a consolidated
complaint issued but no hearing has been held, to the Board and to con-
solidate those cases with Cases 19-CA-13226, 19-CA-13298, 19-CA-
13741, and 19-CA-14066 The General Counsel asserts that both i sets of
cases involve identical factual situations The Respondent asserts that
there are different factual circumstances and different issues We note
particularly that, in its answer to the complaint in Cases 19-CA-l5002,
19-CA-15003, and 19-CA-15044 the Respondent raises as an affirmative
defense that the "complaint or parts thereof are barred by the statute of
limitations contained in Section 10(b) of the Act" We believe that the
question of whether the facts and issues are identical and the matter of
the 10(b) defense can best be resolved by the administrative law judge if
the cases are scheduled for hearing or by the Board on an acceptable
stipulation of facts Therefore it is ordered that the General Counsel's
motion to transfer and consolidate is denied
2 The Charging Parties have moved to strike the affidavit attached to'
the Respondent's brief because It contains allegations not introduced Into
evidence at the hearing We find, in agreement with the Charging Par-
ties, that since the affidavit was not introduced at the hearing and the
parties were denied the opportunity of von- dire and cross-examination, It
should not be made a part of the record in this proceeding Accordingly,
we grant the Charging Parties' motion to strike the affidavit from the Re-
spondent's brief
3 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the cleai 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
screening program for the purpose of denying em-
ployment to new employees, without bargaining
about the utilization of such results from the pro-
gram with IBEW Local 46 and Boilermakers Local
104. The Respondent contends, however, in its Ex-
ceptions 12 and 13, that the recommended Order of.
the judge is overly broad, in that it would affect
medical programs already in usage; and that it
orders Lockheed to bargain about the implementa-
tion of medical screening - programs generally, as
opposed to the implementation and utilization, of
such programs for the purpose of terminating new
employees or refusing to hire applicants for em-
ployment. We find merit in these exceptions. It is
clear that the Respondent had informed the Unions
of its desire to establish such a program, but for the
stated purpose 'of-enabling the Respondent to prop-
erly place new employees in jobs within the em-
ployees' medical limitations. Thus, the understand-
ing was that the results of such tests would not be
used to "wash out," screen, or , terminate employ-
ment to the tested, employees, but only to establish
"baseline data" for the new employees. The Unions
acquiesced in the program, requesting only that a
copy of the test results be furnished to each of the
tested employees.
.The record is also clear that the Respondent cur-
rently has in place with the Unions' approval cer-
tain testing programs, including those in "lead-
bonding" and "toxic paints." There was no evi-
dence presented, however, that these programs had
been utilized to deny employment to, or terminate,
any of the Respondent's employees.
While the conclusions of the judge make it clear
that the Respondent's violation rests in its use of
the medical screening programs for the purpose
terminating new. employees or refusing to hire ap-
plicants for employment, we find that his recom-
mended Order ,and notice , are too restrictive. Ac-
cordingly, we shall modify the Order' and notice to
conform with his conclusions.
ORDER
The National Labor Relations Board adopts the
recommended Order- of the administrative law
judge as modified below and orders that the Re-
spondent, 'Lockheed Shipbuilding ind Construction
Company, Seattle, Washington, its officers,'agents,
successors, and assigns, shall take the 'action set
forth in the Order as modified.
1. Substitute the following for paragraphs 1(a)
and (b). '
"(a) Refusing to 'bargain collectively' regarding
the implementation and/or utilization of a medical
screening prdgram "for the 'purpose of terminating
273 NLRB No. 25
172 DECISIONS OF NATIONAL,LABOR RELATIONS BOARD
new employees and/or refusing to hire applicants
for employment.
"(b) Discharging or refusing to hire -any person
for failure to pass a unilaterally imposed pulmonary
function or audiometric medical screening pro-
gram."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The. National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively re-
garding the implementation and/or utilization of a
medical screening program for the purpose Of ter-
minating new employees and/or refusing to hire
applicants for employment, and other terms and
conditions of employment with International
Brotherhood of Electrical Workers, Local 46,
AFL-CIO and International Brotherhood of Boil-
ermakers, Local 104, AFL-CIO -as the exclusive
representatives , of certain of our employees within
the Pacific Coast Master Agreement.
WE WILL NOT discharge or refuse to hire any
person for failing to pass a unilaterally imposed
pulmonary function or audiometric medical screen-
ing program.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce' you in the exer-
cise of the rights , guaranteed you by Section 7 , of
the ACt.
WE WILL, on request, bargain collectively and in
good faith with International Brotherhood of Elec-
trical Workers, Local 46, AFL-CIO and Interna-
tional Brotherhood of Boilermakers, Local 104,
AFL-CIO as the exclusive representatives of cer-
tain of our employees encompassed within the 'Pa-
cific Coast Master Agreement, with respect to
wages, hours, and other terms and conditions of
employment, including the utilization of a ptilmo-
nary function or audiometric medical screening
program.
WE WILL offer employment to Adolph Bukacek,
Chris Boblet, Laszlo Biro, Donald Rowe, and
Bayani Alvarez in the first available job, openings
for which each is qualified, and make each of them
whole for any loss of earnings each may have . suf-
fered because of our, unlawful conduct, with inter-
est.
LOCKHEED SHIPBUILDING AND CON-
STRUCTION COMPANY
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. This
case was heard in Seattle, Washington, on January 21,
1982. The initial consolidated complaint issued on March
31, 1981, pursuant to . charges filed in Case I9-CA-13226
and 19-CA-13298 on February 10 and 27, respectively.
A second consolidated complaint issued on August 17,
1981, following the filing of the charge in Case 19-CA-
13741 on July 20, 1981. The third consolidated complaint
issued on December 28, 1981, following the filing of the
charge in Case 19-CA-14066 on November 10, 1981.,
The third consolidated complaint alleges, in substance,
that the Respondent unilaterally instituted a medical
screening program for new employees, and refused em-
ployment to five individuals after undergoing the . screen-
ing program, in violation of Section 8(a)(5) and (1) of the
Act. The Respondent denies it violated the Act, and con-
tends there was notice, bargaining and agreement over
the implementation of the medical screening program
and its effects, or that the Charging Party waived and/or
acquiesced in its right to administer the tests and to ter-
minate individuals whose pulmonary conditions could
not be accommodated. The implementation of the tests,
the Respondent claims, are completely consistent with
applicable laws and regulations, the collective-bargaining
agreement, and the past practices. All parties were af-
forded full opportunity to appear, to introduce evidence,
and to examine and cross-examine witnesses. Briefs were
filed by the General Counsel, the Respondent, and the
Charging Parties, all of which have been carefully con:
sidered.
On the entire record, including the demeanor of the
witnesses, and having considered the posthearing briefs, I
make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted and found that the Respondent is en-
gaged in the business of operating a shipyard in Seattle,
Washington, and that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and found that International Brother-
hood of Electrical Workers, Local 46, AFL-CIO and
International Brotherhood of Boilermakers, Local 104,
AFL-CIO are labor organizations within the meaning of
Section 2(5) of the Act
LOCKHEED SHIPBUILDING CO 173
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
- The Respondent, through membership in the Pacific
Coast Shipbuilders Association, and the Pacific Coast
Metal Trades District Council, a bargaining group of
various area metal trades councils and international
unions, including IBEW Local 46 and Boilermakers
Local 104, have been parties to a series of collective-bar-
gaining agreements, the most recent agreement called
Pacific Coast Master Agreement; being effective from
July 1, 1980, until June 30, 1983. 1 Pertinent sections of
the Pacific Coast Master Agreement are set forth below:
Article 3.4 Hiring.
(c) The Employer retains the right to reject any
job applicant referred by the Unions The Em-
ployer may discharge any employee for just and
sufficient cause . . . .
Article 14. Reporting Pay and Minimum Pay
14.1 Employees starting a shift or called and
starting to work after the starting time of a shift
shall receive not less than four (4) hours pay for
the first period of the shift; and if required to
continue on second penoil of the shift, they shall
receive pay for a full shift.
14.3 Employees required to report for work and
not used shall receive four (4) hours straight time
pay.
Article 1.6: Safety, Sanitation, Ventilation and Phys-
ical Examination
16.1 The Employer will exert every reasonable
effort to provide and maintain safe working con-
ditions arid shall comply with all federal and state
Safety and Health Laws and Regulations. The
Unions will cooperate to that end and encourage
their members to work in a safe manner . . . .
16.10 Physical Examination: There shall be no
Doctor's physical examination nor age limit,
except as required by law. Unless required by
law, no employee shall be compelled to pay hos-
pital or examination fees in the course of employ-
ment or as a condition to secure employment.
16.11 Where employees are assigned to work in
confined spaces as described by OSHA for ship-
building, ship repairing and ship scrapping
frequent checks for the employees' safety shall be,
made. . . .
16.12. . . Where conditions of work are such as
to require special protective devices and equip-
ment in order to protect employees from injury,
such devices and equipment will be supplied by
the Employer at its expense . .
' It is admitted and found that the contract unit is appropriate for the
purposes of collective bargaining and that the two unions involved herein
are "the exclusive representatives of certain of the employees in the
unit"
3L Effective Date and Duration of Agreement
31.3 All existing practices, customs, understand-
ings or local agreements of interpretation or
other local agreements of any nature whatsoever,
whether expressly covered by the Master Agree-
ment or otherwise, will continue in effect un-
changed until June 30, 1983, except as specifical-
ly modified as provided herein or by mutual
agreement between the parties.
The complaint alleges that on January 5, 1981, the Re-
spondent, without prior notice to the Unions, "instituted
a medical screening program for new employees," and
thereafter refused to employ five individuals after they
had undergone the screening program. At the conclusion
of the hearing, the General Counsel stated its position to
be that the Respondent could continue administering the
pulmonary function and hearing testing programs • in-
volved for the purpose of determining "baseline data,"
but that the test scores or results could not be used to
terminate or refuse to employ anyone The Charging
Parties appear to concur in this position.2
The record shows that in the 1974 negotiations, man-
agement proposed adding a physical examination provi-
sion to the Pacific Coast Master Agreement. That pro-
posal was withdrawn. During the 1980 negotiations,
management proposed to change the no physical exami-
nation clause in the old contract to permit physicals. The
proposal read as follows.
(a) Applicants for employment may be required
to be examined by a physician selected by the Com-
pany. The expense of such examination will be
borne by the Company. The purpose of such exami-
nation shall be to determine the physical fitness of
the applicant to safely and efficiently perform the
work of the classification for which the applicant is
applying.
(b) The employer shall have the right to require a
doctor's medical examination of an employee when,
in the employer's opinion, the nature of the work
assignment could jeopardize the safety and health of
the employee or the employee's co-workers Failure
of the employee to pass the medical examination
based on the doctor's evaluation of the employee's
condition as related to the work assignment shall
result in reassignment of duties (if possible), sick
leave (if a temporary condition) or termination The
cost of such medical examinations will be paid by
the Employer.
The Unions objected to the proposal which was thereaf-
ter withdrawn.
The record shows that in the fall of 1980 the Respond-
ent made arrangements to commence giving pulmonary
function and hearing tests to all employees hired or re-
called to work on the major overhaul of the ships SS
Sacramento in early 1981. Paul Schell, the Respondent's
manager of industrial relations, testified that in late No-,
2 See Br 12
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vember or early December he met with Jack Tinker,
then secretary-treasurer of the Seattle Metal Trades
Council, and discussed implementation of a "medical
screening program." Schell testified that Tinker was con-
cerned that the program would be used "to wash out
people and to use it just for an excuse to not hire some-
body and I assured him that this was not the procedure
that we were going to do, that it's used basically for
placement of the person within his medical limitations, if
there was a medical limitation." Schell went to assure
Tinker that this was not a preemployment physical, and
if there was any concern of anybody that they were not
employed, they would be paid showup time, as required
in the contract." 3 Schell asked Tinker to bring up the
matter it the next Metal Trades Council meeting 4 David
Stoner, the Respondent's manager of personnel systems,
testified that during the week of November 26, 1980, he
informed. Carpine that the Respondent ' was planning to
do pulmonary and audiometric testing of employees after
they were hired and put on the payroll. Carpine ex--
pressed his concern that the procedure constituted a
preemployment physiCal, which Stoner assured him it
did not. Stoner also discussed the new pulmonary and
audiometric testing procedures with Nathan S. Ford Jr,
assistant business manager for the Boilermakers. Ford
asked what would happen if someone, refused to take, or
did not pass, the test. Stoner stated that the test was not
intended to screen people for employment, but rather to
determine what their lung function was so that the com-
pany would have a "handle" on its liabilities with.respect
to the Longshoremen and Harbor Workers Act. He did
not know what would happen if someone refused to be
tested. Ford responded that he "understood the compa-
ny's need to find out what their liabilities were, and I
told him that if one of our people did refuse, and if there
was any disciplinary action or refusal to employ, then we
were going to run into problems at that time, that I
would definitely have to challenge that." Ford also dis-
cussed the testing procedure in December with John
Lane, the Respondent's manager Of industrial safety, who
explained the purpose of the testing procedures. Ford
asked what would happen if someone did not pass the
test, and was told "that there was no real passing of the
test, that the test merely told what the lung function in
approximately four or five different areas was
Asked what would happen if someone refused to submit
to the test; Lane replied, "There were no definite plans
. . . they would basically have to wait and see." Ford
testified that during several later discussions he was ad-
vised that the company was trying to bring people back
to work and the test was not for the purpose of eliminat-
ing people from work.
Carpme reported the substance of his conversation
with Schell to the Seattle Metal Trades Council Execu-
tive Board at its next meeting. The board minutes con-
tain the following notation
3 Art 14 of Pacific Coast Master Agreement
4 Tinker did not testify However, William D Carpine, business repre-
sentative for the IBEW and also president of the Seattle Metal Trades
Council, testified that he had a conversation with Schell around the end
of November The substance of the Schell-Tinker and Carpine-Schell
conversations is substantially the same
W. D. Carpine handed out letter from Lockheed
Shipbuilding re man power needed for U S N.S.
Sacramento. He also explained that rehires or new
employees will be required- to take hearing and
breath test. Will be on employer's payroll during
this period. This test will not be used to deny em-
ployment per company.
Discussion prevailed re testing by company doctor.
The Seattle Metal Trades will write ,a letter stating
employees be given written test results.
In accordance with the minutes, Tinker wrote Schell
the following letter dated December 10:
Dear Mr. Schell:
Mr Bill Carpine has advised us that effective Janu-
ary 1, 1981 you will be requesting additional man-
power from all crafts. Also, we have been advised
that it is the intention of the company that certain
tests be given, specifically hearing and pulmonary
We understand it is the company's intention that
each employee given this test will be on the existing
payroll and will be paid according to the report pay
provision in the Agreement during the time of test-
ing
The one area of our concern at this. point in time is
in regard to test results. We are, therefore; request-
ing that any results obtained in this test be given to
the individual employee for his own personal
records. Also, it is our intention that we do not con-
sider this a preemployment physical and hopefully
that the employer concurs with our thinking in this
matter.
If you have any questions, feel free to give me a
call.
Carpine testified the Unions had experienced problems
in the past which resulted in the filing of grievances for
showup pay, where people had spent considerable time
in interviews and waiting around and were denied em-
ployment
Arrangements were made for the test results to be
given to each employee. 5 In addition, Schell invited the
representatives of several . unions,' including Tinker and
Carp:me, to review the working of the pulmonary func-
tion testing facility on December 19. Arrangements were
made for the consulting physician to be present to
answer questions and explain the procedure. No union
representatives showed up.
B. Implementation of the Testing Procedures
The testing program was implemented on January 5,
1981, with the commencement of hiring of people to
work on the Sacramento project. The procedure fol-
lowed was for individuals dispatched by the Unions to
report to the personnel office where they completed an
5 When in January 1981 It was learned that only those who failed the
pulmonary function test recerVed copies of the results, an immediate cor-
rection was made
LOCKHEED SHIPBUILDING CO 175
application, and were interviewed or screened for qualifi-
catithis and medical limitations. Those who qualified
were then placed on the payroll; assigned a badge
number, given a timecard, and directed to the medical
facility where a medical specialist administered the hear-
ing and pulmonary function tests. Indoctrination and job
placement followed. Those individuals , receiving an un-
acceptable lung function score were referred to Re-
spondent's physician, a pulmonary specialist, who re-
viewed, all available information and established work re-
strictions or exposure limitations, which could require
use of a respirator or assignment in an area free of respi-
ratory irritants. A determination was then made- as to
whether -a Work assignment consistent with the doctor's
recommendation could be made. .Of approximately 1800
people who took the pulmonary test in 1981, approxi-
mately 16 failed to pass it but where put to , work with
restrictions imposed by the doctor. The five individuals
involved failed to receive an acceptable test score and,
consequently, medical restrictions were imposed on each.
A week or two after Respondent implemented the test,
Ford received complaints that Respondent was asking
employees to sign a form for release of all personal medi-
cal information. On January 20, 1981, a meeting was held
between representatives of both the Respondent and the
Seattle Metal Trades Council at which the Unions ob-
jected to the use of several new forms. Carpine took the
position .that the medical release forms, together with the
new pulmonary function and hearing tests, constituted a
physical examination which was prohibited under the Pa-
cific Coast Master Agreement. 6 The question was asked
as to what would happen if an individual refused to' sign
the medical release form, and the response was that the
Company was not requiring people to sign the forms,
that several had declined to sign and nothing had been
done about it, but the Company would review the forms
and see if they could make them less objectionable. Ac-
cording to Schell, the question was asked as to what
would happen to an individual who failed the screening
test and the Company responded that it would make an
effort to .place the individual within the doctor's work
restrictions. According to both Carpine and Ford, at the
end of the meeting Carpine objected to the testing pro-
gram on the ground it constituted a prejob physical ex-
amination.
On January 29, 1981, Tinker wrote Schell' the follow-
ing letter:
Dear Mr. Schell:
This letter is in regard to Our meeting with -you on
January 20, 1981. Specifically, during that meeting
we discussed the company's request that new em-
ployees complete various forms pertaining to and
entitled as follows: Medical History, Supplemental
Questionnaire, Lung Fungus [sic] -History, and Ab-
sense of Tool Clearance Policy.
Also, during the course of that meeting, we in-
formed you that in recognizing that the comiiany
had previously approached the Seattle Metal Trades
16.10
Council in regard to implementing two items,
which were basically pulmonary and hearing tests,
we are again reiterating that we object to these ad-
ditional forms mentioned above. •
You stated (at the meeting on January 20th) that
management would review the matter and respond.
To date, we have not heard from you, and we
would appreciate your response as soon as possible.
On February 9, Schell responded as' follows:
Dear Mr. Tinker:
In response to your letter dated January 29, 1981
and our meeting of January 20, 1981, the Company
has reviewed this matter and feels that these forms,
medical history and lung function, are necessary in
the placing of an employee should he have medical
disability.
The supplemental questionnaire is not a form that is
completed by the employees, but one that is filled
out if required by the personnel interviewer.
Your letter made mention of a form that employees
complete regarding absence of tool clearance
policy. I feel this was clarified in our meeting of
January 20, 1981. There is no form for this other
than a statement in our employee information sheet.
This statement has been extracted from Article 18.2
of the Pacific Coast Master Agreement.
Should you or any member of the Council have any
question regarding this matter, please contact me.
C. The Terminations
Adolph Bukacek, who had never before been em-
ployed by the Respondent, was dispatched by IBEW
Local 46 on January 16, 1981. After failing the pulmo-
nary function test, he was reviewed by the Respondent's
physician who restricted his work to areas free of fumes
and dust and that did not involve exertion. An attempt to
place' him in a job within those restrictions was unsuc-
cessful. He was therefore paid "showup" pay in accord-
ance with the contract and released.
Chris Boblet, a former employee, was dispatched by
Boilermakers Local 104 on February 13, 1981. Having
failed to pass the pulmonary function test, he was re-
viewed by the company physician who placed similar re-
strictions on the work he could perform. An attempt to
place him in a job within those restrictions was unsuc-
cessful that day and he was therefore paid "showup" pay
and released without having performed any work tasks.
Laszlo Biro, a former employee, was dispatched by
Boilermakers Local 104 on July 1, 1981, and failed the
pulmonary function test. He was dispatched that after-
noon to a swing shift job and asked to return the follow-
ing day for an evaluation by Respondent's physician. He
did not return. He was, however, dispatched again by
the Union on October 14, 1981, again failed the pulmo-
nary function test,I restrictions against work involving
"excessive smoke, fumes, toxic chemicals" were imposed,
and he was released with "showup" pay after it was de-
termined no work was available within the restrictions.
176 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
Donald Rowe was dispatched by Boilermakers Local
104 on August 19, 1981. Schell, whose testimony was
based on personnel files, testified that Rowe had a low
pulmonary function test score, that as a consequence he
was restricted to working with a respirator, that work
was available to Rowe if he wore a respirator, but that
Rowe declined to do so. Rowe, whom I credit, testified
that he had worked as a "fitter" at Todd Shipyard until
he was laid off in June 1981, and that he wore a respira-
tor while working at Todd about 50 percent of the time.
After he was dispatehed by the Union to the Respond-
ent, he was given the pulmonary function test and told
he had a low rating. He was asked, and consented, to
take an x-ray. Rowe testified the Respondent's physician
said he recommended he be hired. He was sent back to
the individual who had given him the pulmonary func-
tion test originally and was asked if he would take it
again. He did and was informed his rating was too low,
that the work required that he wear a respirator, which
he would not be able to do, and that he could not be
hired. He was taken back to _the personnel office where
he turned in the timecard that had been issued to him,
and was released with "showup" pay. On August 25 he
was dispatched back to Todd Shipyard where he was
working at the time of the hearing. He wears a respirator
about 7 out of every 8 hours or work.
Bayani Alvarez was dispatched by Boilermakers Local
104 on August 27, 1981, failed the pulmonary 'function
test, was seen by the doctor who placed restrictions on
the work he could perform, an attempt to find work
within the restrictions was unsuccessful, and he was paid
for "showup" time and released.
Unsuccessful attempts to resolve the issue raised by
the unfair labor practice charges involving Bukacek and
Boblet were made in April 1981. A further unsuccessful
effort was made to. resolve the issue through ,the `con-
tract interpretation committee," who recOmmended the,
issue be resubmitted under article 16.10 of the Pacific
Coast Master Agreement instead of article 3.4(c): No fur-,
ther action has been taken by either side in this respect.
Lane testified that in January 1981, when the Remiorid-
ent commenced administering the pulmonary funCtion
test, the Respondent "had + seven projects—ships-"--.-
where" employees could - have worked, three of which
"could have had some lead exposure . . . We did not
do pulmonary functions on existing . work force
Just the _returning members, either with seniority :Or
without . . . . We screened them without regard to as-
signment, because the probability of exposure -, to any
person working in ship repair is fairly great during his
employment with us."
Conclusions
The Respondent argues it did not violate the Act by
implementing the medical testing program or by termi-
nating individuals whose pulmonary conditions could not
be accommodated because (1) there was notice, bargain-
ing, and agreement over the implementation of .the test-
ing, program and its effects; (2) the Charging Parties
waived and/or acquiesced in its right to administer the
tests and to terminate employees; and (3) the implemen-
tation of the program was in accordance with applicable
laws and regulations, the Master, Agreement, and past
practices
The evidence, in my view, does not support the Re-
spondent's contention that the charging Unions agreed
that the testing programs could be utilized , to reject or
terminate employees, or that they waived or acquiesced
in the Respondent'S use of the testing programs to termi-
nate employees A recap of the evidence makes this
abundantly clear.
In late November or early December 1980, Schell dis-
cussed implementation of the testing program with
Tinker, who expressed concern that it would be used "to
wash out people" and as an excuse "not -to , hire some-
body." Schell - assiired Tinker his fear was unfounded and
that it would be used "basically for placement of the per-
sons within his medical limitation." About the same time
Stoner discussed' the matter with Carpine who expressed
concern that the testing procedure constituted a preem:
ployment physical, which Stoner assured him it did not.
Stoner also discussed the new procedure with Ford.
Ford asked what would happen if someone did not pass
the test, and Stoner assured him the tests were not in-
tended to sereen people for employment, but rather to
determine their lung function so that the Company could
establish its liabilities under the Longshoremen and
Harbor Workers Act Ford recognized the Respondent's
need to establish its liabilities under that Act, but went
on to state that if the testing procedure resulted in disci-
plinary action or refusal to employ, he was opposed to it.
Lane also told Ford that there was "no real passing of
the test, that the . test merely told what the lung function
in approximately four- to five different areas was . . . ."
Ford was told on several occasions that the Company
was trying to bring people back to work and that the test
was not for the purpose of eliminating people from
work. The minutes of the Seattle Metal Trades Council
executive board reveal the Unions" understanding that
"This test will not be used to deny employment per com-
pany." This same theme is reiterated in Tinker's Decem-
ber 16 letter to Schell, where it is stated. "Also, it is our
intention that we do not consider this a preemployment
physical and hopefully that the employer concurs 'With
our thinking in this matter." As late as January 20, 1981,
prior to any knowledge on the part of the Unions that
Bukacek had been refused employment after undergoing
the pulmonary' screening program, Carpine opposed 'the
testing program on the ground it constituted a physical
examination which was prohibited by article 16 10 of the
Pacific Coast Master Agreement. Moreover, in his Feb-
ruary 9, 1981' letter, Schell informed Tinker that the
medical forms, medical history, and pulmonary test were
"necessary in the placing of an employee should he 'have a
medical disa'bility." (Emphasis added.) -Thus, while the
Unions were indeed notified of Respondent's proposed
screening program and did not oppose implementation of
the testing procedures for the purposes of determining
the Respondent's liabilities under the Longshoremen and
Harbor Workers Act, it is clear the Unions did not 'agree
that the pulmonary. and audiometric tests ,could be used
to screen 'out, reject, terminate, or deny employment as
claimed by the Respondent. To the contrary, the forego-
LOCKHEED SHIPBUILDING CO

177
ing facts show the Unions steadfastly opposed their use
for those purposes, and were lead by the Respondent to
believe that they would not be so used. Therefore, the
Respondent's contention that the Unions waived , or -ac-
quiesced in the use of the tests to terminate employees is
without merit.
Article 16.10 provides explicitly that "There shall be
no Doctor's physical examination . . except as required
by law . . ." The Respondent argues that article 16
does not in any way preclude medical testing, review of
medical test results by the company physicians, or the
imposition of medical restnctions by the 'company physi-
cian. It is argued that articles 16.11 and 16.12 require
that "frequent checks for the employee's safety shall be
made," and that the employer shall provide special pro-
tective devices where conditions of work require em-
ployees to be protected from injury. In this regard, it is
noted that in 1975, pursuant to Occupational Safety and
Health Act (OSHA) regulations, the Respondent admin-
istered a "pre-placement physical" to long-term employ-
ees who were assigned to a new trade called "lead-
bonder." There was no showing any employees were ter-
minated as a result of failing to pass that examination.
Beginning in 1977, a similar type examination was insti-
tuted for painters working in "tanks" and "bottoms" and
other areas where toxic paints were used The painters'
physical examinations were not required by law or regu-
lation but were administered pursuant to an agreement
with the painters' collective-bargaining representative.
Again, there is no evidence the tests were used to reject
employees or terminate employment. Other instances
where physical examinations are performed on employ-
ees are: (1) when a newly hired worker indicates on a
medical questionnaire that there is a preexisting disabil-
ity, in which case he is examined so that he can be as-
signed to a job consistent with his physical abilities; (2)
all workers who are injured or become ill on the job are
examined by the doctor; and (3) workers who have been
off work because of an injury or illness are examined by
the company doctor before returning to work. In short,
there is no evidence that any physical examination here-
tofore performed by the Respondent, whether required
by law or regulation or past practice, has even been used
to disqualify workers from employment Further, the Re-
spondent's argument that the pulmonary and audiometric
tests administered here were conducted pursuant to
OSHA regulations has a hollow ring, when it is remem-
bered that only new or returning employees were re-
quired to undergo the tests—the existing workforce was
not required to undergo the tests.
The history of bargaining between the parties makes it
obvious that physical examinations have been a point of
bargaining contention on several occasions, in 1974, and
as late as 1980, when the Respondent proposed a provi-
sion granting it the right, inter aim, to terminate an em-
ployee for failure to pass a medical examination based on
a doctors' evaluation of the employee's condition as re-
lated to the work assignment. Upon objection by the
Unions, the proposal was withdrawn It seems obvious to
me that what the Respondent could not obtain through
collective bargaining, it decided to implement unilateral-
ly. It terminated five employees for their "failure . . to
pass the medical examination based on the dOctor's ,eval-
uation of the employee's condition as related to the work
assignment "7 Physical examinations being a mandatory
subject of bargaining, 9 and the Respondent having failed
to show that the Unions either .agreed to - or waived
and/or acquiesced in the Respondent's use of The pulmo-
nary and audiometric testing program for the purpose of
terminating or refusing to employ employees, or that the
testing program was in accordance with applicable laws
and regulations, the Master Agreement or past practices,
it is found that the Respondent violated Section 8(a)(5)
and (1) of the Act by implementing the pulmonary and
auditory tests for the purpose of screening out, or - dis-
qualifying employees from employment. See, e.g., Hanes
Corp., 260 NLRB 557 (1982) In these circumstances, the
refusal to employ Bukacek on January 16, 1981; Boblet
on February- 13, 1981; Biro on October 14, 1981; 9 Rowe
on August 19, 1981; and Alvarez on August 1981, be-
cause they failed to pass the -pulmonary test, also violat-
ed Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in corn-,
merce within the meaning of Section 2(6) ,and (7) of the
Act
2 JBEW Local 46 and Boilermakers Local 104 are
labor organizations within the meaning of Section 2(5) of
the Act, and at all times material, each , union has been
and is now the exclusive bargaining representative of
certain of the Respondent's employeès .
3 By unilaterally implementing and enforcing a medi-
cal screening -program for the purpose of denying em-
ployment to. new employees, and ` by denying employ-
ment : to Adolph Bukacek, Chris Boblet, Laszlo Biro,
Donald Rowe, and Bayam Alvarez, the Respondent has
refused to bargain with IBEW Local 46 and Boilermak-
ers Local 104 in violation of Section 8(a)(5) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It having
been found that the Respondent has unlawfully refused
to bargain with the two Unions by unilaterally imple-
menting and utilizing a medical screening program for
the purpose of denying employment to new employees, it
is recommended that the Respondent cease such unlaw-
' See the Respondent's 1980 contract proposal, supra
8 See, e g, LeRoy Machine Co, 147 NLRB 1431 (1964)
9 The record does not support the allegation that Biro was refused em-
ployment on July I. 1981, after undergoing the screening program It is
undisputed that on that date he was asked to return the following day for
an evaluation by the Respondent's physician, which he failed to do The
testimony shows, however, that other individuals were in fact placed in
Jobs within the physicians's restrictions Thus, the record falls to show
Biro would not have been employed, or was refused employment, in July
because of his failure to pass the pulmonary test
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ful conduct and offer employment . to Adolph Bukacek,
Chris Boblet, Laszlo Biro, Donald Rowe, and Bayani Al-
varez in the.first available job openings for which each is
qualified and make each of them whole for any loss of
pay they may have suffered by reason of the Respond-
ent's discnmination against them Loss of earnings for all
individuals shall be computed as prescribed in E W.
Woolworth Co., 90-NLRB 289 (1950), plus interest as set
forth in Isis Plumbing Co., 138 NLRB 716 (1962), and
Florida Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record, I issue the following redommend-
ed"
ORDER
The Respondent, Lockheed Shipbuilding and Con-
struction Company, Seattle, Washington, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively regarding the im-
plementation and utilization of a medical screening pro-
gram for new employees and/or applicants for employ-
ment.
(b) Discharging or refusing to hire any person for fail-
ure to pass a unilaterally imposed pulmonary function,
audiometric or 'other type of physical examination or
medical screening program
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed theft by Section 7 of the Act.
1.° If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall: as proyideiFin See 102 48 of the Rules, be. adopted by the
Board and all objections to them_shall be deemed waived for all pur-
poses .
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) On request, bargain collectively and in good faith
with International Brotherhood of Electrical Workers,
Local 46, AFL-CIO and International Brotherhood of
Boilermakers, Local 104, AFL-CIO concerning wages,
hours, and other terms and conditions of employment of
its employees and, if an understanding is reached,
embody such understanding in a written agreement
(b) Offer employment to Adolph 13ukcek, Chris
Boblet, Laszlo , Bird, Donald Rowe, and Bayani Alvarez
in the first available job openings for which each is quali-
fied, and make each of them whole for any loss of earn-
ings each may have suffered by reason of the Respond-
ent's unlawful conduct herein in the.manner set forth in
the section entitled "The Remedy."-
(c) Post at its shipyard in Seattle, Washington, copies
of the attached notice marked "Appendix." Copies of
the notice, on forms provided by the Regional Director
for Region 19, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
-places where notices to employees and applicants for em-
ployment are customarily posted Reasonable steps shall
be taken by theRespondent to ensure that the notices are
not altered; defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. -
,
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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board 'S