Be Careful When Locking Yourself Into Progressive Discipline …

Fairfield-Suisun Unified School District (2012) PERB Dec. No. 2262-E (Issued 5/08/12)

This case involved an allegation that a school district (district) made an unlawful unilateral change in policy. Specifically, the parties had a memorandum of understanding (MOU) that required “progressive discipline” to be followed except where the misconduct endangered the safety of others or where there is an emergency. Subsequently, the district adopted a “zero tolerance” policy for drug use.

What gave rise to this specific unfair practice charge was a drug test involving a school bus driver. During the drug test, the school bus driver refused to comply with the protocols established by the drug testing facility to ensure the integrity of samples. The district considered the employee’s refusal to comply with instructions to be a refusal to comply with the district’s “zero tolerance” drug testing policy. As a result, the employee was terminated without going through the steps of “progressive discipline.”

The hearing officer found that the district complied with the MOU and dismissed the charge. The Board, however, rejected the proposed decision. The Board found that the district changed its policy on “progressive discipline” by adopting the “zero tolerance” drug testing policy without bargaining with the union. The Board then rejected the district’s defense that the safety exception to the progressive discipline policy applied. Specifically, the Board found that the employee’s refusal to comply with the testing facility protocols did not endanger anyone or compromise anyone’s safety.

Member Dowdin-Calvillo filed a concurrence. She joined in the result but not in the majority’s rejection of the safety exception. Member Dowdin-Calvillo held that since the district did not invoke the safety exception when it first fired the employee, it was clear that the district did not rely on the safety exception. Thus, Member Dowdin-Calvillo saw no need to reach that issue.

Comments:

I disagree with this decision. My major disagreement is with the majority’s rejection of the district’s argument that the “safety” exception to progressive discpline applies to these facts. Presumably, if the employee had tested positive and been fired, the Board would have upheld the termination as a “safety” exception to progressive discipline. But here, the Board rejected the safety exception because the employee was fired not for testing positive, but for refusing to comply with the testing protocols. The Board held that the employee’s refusal to comply with protocols did not endanger anyone.
I concede that the employee’s refusal to comply with the protocols did not pose a safety issue by itself. But I believe this is too narrow a view of “safety” and ignores the reality of drug use and drug testing. You can’t have an effective drug testing policy where the penalty for refusing to be tested is less than the penalty for testing positive. For example, consider the laws regarding driving under the influence. My understanding is that in California, if you refuse to be tested after being arrested for DUI you are subject to severe penalties almost as severe as the penalty for a DUI conviction, in addition to the fact that you can still be convicted of DUI. When you think about it, this makes sense because if the penalty was less, anyone who was drunk would just refuse to be tested.
This case presents similar public policy issues. Imagine an employee with a federal driver’s license. Last week he smokes marijuana. This week he gets picked for a random drug test. He has two choices: 1) get tested, test positive, and get fired; or 2) refuse to be tested and receive a penalty less than termination. What do you think the employee is going to do? The employee is obviously going to refuse to be tested in order to save his job. In my opinion, such a result is contrary to public policy.
Here, I think a strong argument can be made that adhering to the testing facility’s protocols is an integral part of the drug testing policy. Following that logic, an employee who refuses to comply with the protocols poses as much as a safety risk as an employee who tests positive.