Chicago Tribune Co. v. N.L.R.B.

• Decision Date: 10 September 1992
• Docket Number: No. 16,Nos. 91-3135,91-3275 and 91-3317,AFL-CI,P,C,16,s. 91-3135
• Citation: 974 F.2d 933
• Parties: 141 L.R.R.M. (BNA) 2209, 61 USLW 2184, 123 Lab.Cas. P 10,351 CHICAGO TRIBUNE COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. and Chicago Typographical Unionommunications Workers of America,etitioner, Cross-Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 933

974 F.2d 933

141 L.R.R.M. (BNA) 2209, 61 USLW 2184,

123 Lab.Cas. P 10,351

CHICAGO TRIBUNE COMPANY, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner and Chicago Typographical Union No. 16, Communications Workers of America, AFL-CIO, Petitioner, Cross-Respondent.

Nos. 91-3135, 91-3275 and 91-3317.

United States Court of Appeals Seventh Circuit.

Argued May 20, 1992.

Decided Sept. 10, 1992.

John C. Truesdale, N.L.R.B., Contempt Litigation Branch, Washington, D.C., Elizabeth Kinney, Emilie F. Fall, N.L.R.B., Chicago, Ill., Aileen A. Armstrong, Margaret E. Luke (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, D.C., for N.L.R.B.

R. Eddie Wayland (argued), John J. Matchulat, Michael D. Oesterle, King & Ballow, Nashville, Tenn., for Chicago Tribune Co.

Gail E. Mrozowski (argued), Cornfield & Feldman, Chicago, Ill., for Chicago Typographical Union No. 16, Communications Workers of America, AFL-CIO.

Before BAUER, Chief Judge, POSNER, Circuit Judge, and GIBSON, Senior Circuit Judge. ^*

POSNER, Circuit Judge.

Employer and union, both dissatisfied with the Labor Board's order, ask us to set different parts of it aside, and the Board asks us to enforce it in its entirety. The case concerns the interpretation of the management-rights clause, and related documents, in the collective bargaining agreement between the publisher of the Chicago Tribune and the union that represents employees in the Tribune's composing room. Without negotiating with the union, the company adopted certain standards of employee conduct that, it claims, the management-rights clause entitled it to adopt. The Board (304 N.L.R.B. no. 62 (Aug. 27, 1991)) agreed except with regard to the standard concerning drug and alcohol use, and we begin with that issue.

The management-rights clause emerged from a long history of wrangling (more politely, bargaining). The parties draw different inferences from the history. We find it singularly unilluminating. It is full of unintelligible sentence fragments, such as a union negotiator's note that one of the company's proposals was "OK--with additional clause provided by the Union--also union proposal re: Zipper," from which the company draws a significance that eludes us. The company also wants us to give great weight to the fact that the Board voted against it on the drug and alcohol issue by 2-1, reversing the administrative law judge, who had ruled for the company. The company says that that makes the score 2-2. Would it were so; then the Supreme Court could not reverse a one-sided en banc decision of this court by a 5-4 vote--and could not reverse a unanimous en banc decision of this court (i.e., 11-0) by any vote (9-0 wouldn't do it). The rule of one person, one vote does not apply to officers at different levels of a judicial or administrative hierarchy.

What is true is that an administrative law judge's determinations of credibility are entitled to a certain weight by a reviewing court, because he sees and hears the witnesses and the Board has only a transcript of their testimony. Universal Camera Corp. v. NLRB, 340 U.S. 474, 492-97, 71 S.Ct. 456, 466-69, 95 L.Ed. 456 (1951). But that is not a factor here. A number of decisions seem to go further, suggesting without express limitation to issues of credibility that judicial review of a decision by the Board is less deferential when the Board is reversing the administrative law judge. E.g., International Union, UAW v. NLRB, 802 F.2d 969, 971 (7th Cir.1986); C.E.K. Industrial Mechanical Contractors, Inc. v. NLRB, 921 F.2d 350, 355 (1st Cir.1990); Litton Microwave Cooking Products Division v. NLRB, 868 F.2d 854, 857 (6th Cir.1989); Centre Property Management v. NLRB, 807 F.2d 1264, 1268 (5th Cir.1987). No doubt that is true as a practical matter when factual determinations, even if they don't involve credibility, are involved, but it should not be treated as a fixed policy or a rigid rule. We want simplicity, not complexity, in standards of appellate review, United States v. Spears, 965 F.2d 262, 269-72 (7th Cir.1992)--though for completeness we add that sometimes judicial review is of an administrative law judge's decision, and it is the appellate tribunal within the agency, corresponding to the Labor Board, that receives no deference. Old Ben Coal Co. v. Prewitt, 755 F.2d 588, 589 (7th Cir.1985). That is not the case with review of the Labor Board's decisions. Id. at 590.

The materials for the decision of this appeal are really very simple. There is to begin with a management-rights clause which provides, so far as pertinent to this case, that "except as specifically limited by the express language of this Agreement ... the Company has and retains exclusively to itself ... the exclusive right ... to establish and enforce reasonable rules and regulations relating to the operation of its facilities and to employee conduct." So we must consider first whether the challenged standard, authorizing testing for the presence of drugs or alcohol, is a regulation relating to employee conduct, and next whether, even if so, language elsewhere in the collective bargaining agreement carves the standard out of the management-rights clause.

The standard has several parts but only two need be discussed. One regulates conduct on the job and provides that "whenever Management has an 'articulable belief' that an employee may be under the influence of an intoxicant during working hours on Company property ... [he] will be required to undergo a medical evaluation and take an alcohol and/or drug test as determined by the Medical Division." (The alcohol test is a blood test, the drug test a urine test.) The other part regulates conduct off the job. It provides that the sale, distribution, or manufacture of alcohol or illegal drugs is a dischargeable offense--and if the employee is arrested for any of these activities he is to be discharged regardless of the eventual disposition of the charge for which he was arrested. It also makes "off-the-job illegal drug activities or alcohol addiction that could have an adverse effect on an employee's job performance or that would jeopardize the safety of other employees, the public, Company equipment, or the Company's relations with the public or its employees" grounds for discharge.

We have no doubt that the alcohol and drug standard the critical parts of which we have just quoted is a regulation relating to employee conduct. That is plainest with respect to being drunk or high on the job, but it is plain enough with regard to conduct off the job that affects performance on the job. Even if the effect takes the form of a harm only to the company's public relations, the ultimate consequence is to make the employee less valuable to the company.

No doubt there are limits to a company's reasonable concern with the off-duty conduct of its employees. Suppose the publisher of the Tribune made divorce a ground for discharge. The prevention of this sort of abuse of the "employee conduct" provision in the management-rights clause lies, however, precisely in the requirement that the company's rule or regulation relating to such conduct be "reasonable." Our hypothetical divorce rule would be unreasonable, unless perhaps the employer was a religious organization and the religion forbade divorce. We do not understand the union to be arguing that the alcohol and drug standard is unreasonable, only that it does not relate to employee conduct--an argument we barely understand.

But we must consider whether the standard is inconsistent with language or implications elsewhere in the agreement. Dreis & Krump Mfg. Co. v. International Association of Machinists, 802 F.2d 247, 252-53 (7th Cir.1986). The agreement provides that the "General Laws" of the international union, which are appended to the agreement, "shall govern relations between the parties on those subjects concerning which no provision is made in this Agreement." The General Laws include a provision that "No journeyman shall be required to submit to a physical examination as a condition of employment." The parties, oddly overlooking the question whether the provision even applies to retention of employment, as distinct from obtaining employment in the first place, have treated us to an elaborate Scholastic dispute over whether a blood or urine test is "a physical examination." Literally it is not; it is a part of some physical examinations, but is often administered separately from any "physical examination" as that term is ordinarily understood. The Board argues that any part of a physical examination is itself a physical examination. This is like arguing that any part of an atom must be an atom too, or that a person's finger is a person. Physical examinations typically include such things as weighing the person being examined and asking him whether he's had any illnesses since the last examination. These components are not themselves physical examinations. The examination is the ensemble.

But if we have regard not to the meaning of "physical examination" but to the purpose of the provision in the General Laws concerning it, we can see the basis for an argument that an employee cannot be required to pass a test of medical fitness, such as a blood or a urine test. After all, these workers are more likely to be concerned about their jobs than about the modest invasion of privacy involved in a "real" physical examination, and the jobs are as much threatened by the tests as they are by the doctor's poking in private places. We must not forget, however, that the General Laws apply only to "subjects concerning which no provision is made in" the collective bargaining agreement. It's a gap filler. There is no gap concerning employee conduct. The management-rights clause gives management carte blanche to impose rules relating to employee conduct, provided only that they are reasonable rules. The alcohol and drug...