This article examines a range of legal and philosophical issues related to the drugtesting debate. The discussion of legal issues includes potential litigation on constitutional grounds (for public employees), statutory and tort grounds, or on the basis of civil rights legislation. Arbitration standards are also examined for situations involving unionized employees. The article further highlights pragmatic issues including the accuracy and costs (economic and noneconomic) of drug tests as well as the distinction between a positive drug test and impaired performance. Finally, the article addresses the delicate balance between an employer's right to unimpaired performance and an employee's right to privacy.KEY WORDS: drug testing; legal and philosophical aspects of drug testing; arbitration and drug testing; accuracy and costs of drug testing.

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The NLRB's 1984 decision in Olin Corporation established new guidelines making it more likely that the Board and its Regional Offices would defer, in unfair labor practice cases, to the prior decisions of arbitrators in those cases. Analyzing case file data in two NLRB Regional Offices for the January 1983-June 1985 period, the author questions the validity of some assumptions underlying the Olin decision and raises concerns about the consequences of the decision. She finds that the two offices frequently deferred to, and infrequently dissected, arbitral opinions even before Olin, and that subsequently the percentage of cases deferred rose even higher. Furthermore, following Olin, the Board's Division of Advice promulgated, and at least one of the two Regional Offices apparently adopted, an inferential form of analysis that may compromise the statutory rights of charging parties—particularly individual charging parties.

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Table 1.2 Incidence of Closure by Region Among Service Establishments Employing More Than 100 Employees From 1969 and 1976 Region Northeast North Central South West TOTAL Number of states 9 12 16 13 50 Number of establishments in 1969 sample 633 433 476 284 1,826 Number in sample closed by 1976 237 172 182 117 708 Incidence of closure of 1969 establishments by 1976 .37 .40 .38 .41 .39