## Facts

- Johnson-Bateman Company and the International Association of Machinists were parties to a collective-bargaining agreement (CBA) containing broad management-rights and zipper clauses.
- During the CBA term, the company unilaterally implemented certain work rules; at least one dispute over a unilateral rule (an overtime-notice requirement) proceeded to arbitration, where the rule was upheld as consistent with existing contract language.
- The company also issued a rule permitting termination for drinking alcohol at work; the union did not formally challenge that rule.
- The company later unilaterally implemented a post-accident alcohol and drug-testing policy requiring testing of employees injured on the job who needed medical treatment.
- The union objected and filed an unfair labor practice charge alleging the company unlawfully changed terms and conditions of employment without bargaining, in violation of NLRA § 8(a)(5) and (1).
- The employer asserted that the CBA’s management-rights and zipper clauses, together with past practice and arbitration history, authorized unilateral implementation and supported deferral to arbitration.

## Issues

1. Whether post-accident drug and alcohol testing of injured employees is a mandatory subject of bargaining under the NLRA.
2. Whether the union clearly and unmistakably waived its statutory right to bargain over a post-accident testing policy through the CBA’s management-rights and zipper clauses and related bargaining history.
3. Whether the Board should defer to the contractual grievance-arbitration procedure rather than decide the unfair labor practice charge.

## Decision

- The Board held that post-accident drug and alcohol testing is a mandatory subject of bargaining.
- The Board found no clear and unmistakable waiver permitting unilateral adoption of the testing policy.
- The Board concluded the employer violated NLRA § 8(a)(5) and (1) by implementing the testing policy without bargaining.
- The Board ordered standard bargaining-order relief, including ceasing unilateral implementation and bargaining upon request.

## Legal Principles

- Drug and alcohol testing policies that affect discipline, job security, privacy, and working conditions are mandatory subjects of bargaining.
- A union waives statutory bargaining rights only by a clear and unmistakable waiver; broad management-rights and zipper clauses generally do not suffice absent specific language covering the disputed change.
- Prior arbitration upholding a work rule as consistent with existing contract terms does not, by itself, authorize unilateral implementation of materially different rules introducing new and invasive requirements.

## Conclusion

The NLRB ruled that a post-accident drug and alcohol testing policy materially affects terms and conditions of employment and therefore requires bargaining; generalized management-rights and zipper clauses, and prior acceptance of different work rules, did not show a clear and unmistakable waiver allowing unilateral implementation.


Johnson-Bateman Co. v. Int’l Ass’n of Machinists, 295 N.L.R.B. 180 (1989)