Decision 2262E – Fairfield-Suisun Unified School District
Decision Date: May 8, 2012
Decision Type: PERB Decision
Description: The complaint alleged that the employer unilaterally changed its discipline policy as set forth in the parties’ collective bargaining agreement, when it terminated a MOS unit employee without following the progressive discipline steps and relied instead on a “zero tolerance” policy with respect to the employee’s alleged refusal to submit to a random controlled substance and/or alcohol test. The Hearing Officer concluded that the termination in question complied with contractual procedure, and dismissed the complaint.
Disposition: The Board overturned the proposed decision and ordered the District to cease and desist from enforcing as to MOS unit employees a zero tolerance provision with respect to an employee’s alleged refusal to submit to a random controlled substance and/or alcohol test, and to pay back pay and benefits with 7 percent interest per annum. The Board held that adoption of the “zero tolerance” policy unilaterally changed the discipline policy without providing the union notice and an opportunity to bargain.
Perc Vol: 36
Perc Index: 176
602.02000 – Prior Notice and Opportunity to Bargain
General publication of a governing board agenda does not constitute effective notice to exclusive representative of proposed changes.
602.04000 – Time of Implementation
Notice of an agenda indicating a drug testing policy would be effective retroactively rendered negotiations futile.
602.06000 – Change in Past Practice
A “zero tolerance” drug testing policy not mandated by federal law that required dismissal of bus drivers if they refused to submit to an alcohol or drug test constituted a change in past policy and practice which required progressive discipline. The “safety” exception to progressive discipline was not applicable to the employee’s refusal to disrobe during a drug test, as it did not threaten or expose to danger students, employees or District property.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Waiver by contract will be effective only if the matter was “fully discussed” and the Union “consciously yielded” to it. The “safety” exception to the progressive discipline article did not waive the union’s right to negotiate over a “zero tolerance” policy that required dismissal of employees who refused drug tests. Union did not waive its right to negotiate over a “zero tolerance “ policy where it was adopted retroactively, rendering negotiations futile. Employer failed to show that it gave the Union notice of adoption of the policy. Without notice, the Union could neither acquiesce in the policy nor unreasonably fail to demand negotiations over it.
1000.02029 – Disciplinary Action
Employee discipline, including criteria and procedures, are within the scope of representation. Where external law mandates certain procedures within the scope of representation, those procedures are negotiable only to the extent of the employer’s discretion. Federal drug testing regime does not mandate establishment of a “zero tolerance” policy. Such policy is therefore negotiable.
1101.03000 – Computation of Six-Month Period
Union had actual notice of a change in disciplinary policy when employee was dismissed for failing to disrobe during a drug test. Policy was adopted several years prior, but Union was not notified of the adoption at that time.
1101.07000 – Waiver; Estoppel
Employer asserting a defense of waiver by inaction has the burden of proof to show by a preponderance of evidence that it gave union notice and opportunity to bargain over the proposed change and the union failed to act. Where policy was adopted retroactively, request to bargain would have been futile, defense of waiver fails.
1200.01000 – In General
Employer that unilaterally adopted a change in disciplinary policy by implementing a “zero tolerance” policy not authorized by the progressive discipline article in the parties contract is ordered to cease and desist from enforcing such policy after a finding that employer failed to bargain with the Union over the adoption of the “zero tolerance” policy.
1201.02000 – Reinstatement
Reinstatement of employee dismissed in violation of contract provision requiring progressive discipline is appropriate where the “zero tolerance” policy, purporting to be an exception to the progressive discipline policy, was adopted unilaterally without giving the union an opportunity to negotiate over the policy.
1201.03000 – Back Pay; Interest
Where employee is ordered reinstated after dismissal in violation of contract provision requiring progressive discipline, where the “zero tolerance” policy, purporting to be an exception to the progressive discipline policy, was adapted unilaterally without giving the union an opportunity to negotiate over the policy, back pay and benefits at 7% per annum were appropriate to restore status quo ante.