Monday, May 14, 2012

PERB: Management Cannot Unilaterally Adopt "Zero Tolerance" Drug Testing

In Fairfield-Suisun Unified School District (May 8, 2012) PERB Dec. No. 2262, the Public Employment Relations Board ruled management must give advance notice and an opportunity to meet and confer before adopting a "zero tolerance" drug policy.  The case started when an employee refused to disrobe in front of a technician during a drug test.  The employer responded by terminating him, citing their "zero tolerance" drug testing policy.  The union then filed an unfair labor practice charge with PERB.

The "zero tolerance" policy had been on the books since 1996, but had never been used before.  The union never received advance notice of the policy or an opportunity to meet and confer.  Management claimed the union waived meet and confer because so much time had passed since it was implemented.  To support their claim, the District provided evidence a union representative received a copy of the District's agenda packet describing the policy back in 1996.  PERB, however, rejected the District's argument, finding insufficient evidence the union knew about the policy's details.

The District also claimed federal law required it to have a "zero tolerance" policy on drug testing.  However, PERB examined the specific federal regulations and found that federal law did not require termination or the specific details of the testing procedure.  As a result, PERB found the contours of the policy were subject to meet and confer ordered the District to put the employee back to work and to give him back pay.