Fairfield-Suisun Unified School District (PERB 2262E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

MUTUAL ORGANIZATION OF SUPERVISORS,
Charging Party, Case No. SF-CE-2806-E
v. PERB Decision No. 2262
FAIRFIELD-SUISUN UNIFIED SCHOOL May 8, 2012
DISTRICT,
Respondent.

Appearances: Rick Lemke, Job Steward, for Mutual Organization of Supervisors;
Littler Mendelson by Bruce Sarchet, Attorney, for Fairfield-Suisun Unified School District.

Before Martinez, Chair; Dowdin Cavillo and Huguenin, Members.
DECISION

HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Mutual Organization of Supervisors (MOS) to the
proposed decision of a PERB Hearing Officer (Hearing Officer). The Hearing Officer
concluded that the Fairfield-Suisun Unified School District (District) did not violate
section 3543.5(c) of the Educational Employment Relations Act (EERA).!

The complaint alleged that without affording MOS notice or an opportunity to
negotiate, the District 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

' EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

employee's alleged refusal to submit to a random controlled substance and/or alcohol test, and
cited the employee's alleged failure to model appropriate behavior with respect to such testing
requirements. The Hearing Officer concluded that the termination in question complied with
contractual procedure, and dismissed the complaint.
In its exceptions, MOS urges that the District terminated the employee in violation of
the contractual progressive discipline procedure. The District filed no exceptions, but opposes
those of MOS.2
We have reviewed the proposed decision and the hearing record in light of MOS' s
exceptions, the District's response thereto, and the relevant law. As set forth below, we
reverse the proposed decision.
PROCEDURAL HISTORY
On October 19, 2009, MOS filed its unfair practice charge.
On November 12, 2009, the Office of the General Counsel issued a complaint in this
matter.
On August 24, 2010, a formal hearing was held.
On January 25, 2011, the Hearing Officer issued the proposed decision.
On February 15, 2011, MOS fiied its exceptions.
On March 8, 2011, the District responded.
In its response to the MOS exceptions, the District asserts that several claims made by
MOS in its exceptions are unsupported by the record. We have reviewed the record, and
considered the contentions of both parties. Our :findings stated below reflect only the record
evidence. 	·
2

FINDINGS OF FACT
Jurisdiction
The District is a public school employer within the meaning
of
EERA
section 3540.l(k). MOS is the exclusive representative
of
an appropriate bargaining unit
of
employees within the meaning
of
EERA section 3540.l(e).
Bargaining Unit
The MOS-represented bargaining unit includes
12
supervisory positions. Two
of
the
positions are in the District's transportation department (transportation supervisors), including
the position
of
"Transportation Operation Supervisor."
Progressive Discipline
Prior to 1996, the parties' negotiated contract (contract) contained an article
establishing a progressive discipline procedure (Article
11
).
	Although the parties have
negotiated several contracts since 1996, they have not changed the progressive discipline
language. Article
11
states, in pertinent part:
Progressive steps shall be utilized in handling discipline and
the discipline shall be commensurate with the offense. The
following actions will be taken in order:
Verbal reprimand
Written reprimand
Discipline less than dismissal
Dismissal
If
the conduct
of
[the unit member] endangers the safety of
students, employees, or District property, the Superintendent
or his/her designee will not be required to follow the
progressive steps of discipline and may suspend 	supervisor
with pay pending the outcome of the process prescribed herein.
The Superintendent or designee for reasons stated in
writing and sent to [MOS] may skip one or more steps in
the above sequence in cases of emergency.
3

Article
11
requires the District to use progressive discipline, with two exceptions. The District
may skip the progressive steps
of
discipline when the employee's "conduct" endangers
"the
safety
of
students, employees or District property." It may also skip the progressive steps
of
discipline
"in
cases
of
emergency," provided it affords MOS written notice
of
the reasons
therefor.
Federal Drug Testing Requirement
The District employs approximately 45 school bus drivers. 	Each driver must possess a
commercial driver's license and a "school bus driver certificate" issued by the Department
of
Motor Vehicles (DMV). 	The transportation supervisors occasionally fill in for the drivers.
Thus, each transportation supervisor must also possess a commercial driver's license and a
school bus driver certificate.
Federal regulations require any driver holding a commercial license to submit to
random drug and alcohol tests (drug tests). (See, e.g., 49 C.F.R. § 382 et seq.)
Section 382.211
of
Title 49
of
the Code
of
Federal Regulations provides, in pertinent part:
No driver shall refuse to submit to a
...
random alcohol
or controlled substances test required under § 382.305
....
No employer shall permit a driver who refuses to submit to
such tests to perform or continue to perform safety-sensitive
functions.
The federal regulations do not 	an employer to terminate an employee 	to
submit to a random drug test, but they also do not prohibit an employer from terminating an
employee who refuses to test. (See, 	49 C.F.R.
§§
285-289 [if driver violates regulations,
employer can nevertheless return employee to safety-sensitive duties, provided employee
shows signs of rehabilitation].)
4

Adoption of Drug Testing Procedure
On March 14, 1996, the District's Governing Board adopted a policy and approved a
regulation establishing a drug testing procedure. District Administrative Regulation 4112.41,
"Drug and Alcohol Testing For School Bus Drivers" (the Regulation) is "intended to bring the
[D]istrict into compliance" with the federal regulations. Although the Regulation does not
specifically mention supervisors, it defines "driver" broadly enough to include the
transportation supervisors. The drug testing policy and the cognate Regulation both recite that
they were adopted/approved on March 14, 1996, and were effective retroactive to January 1,
1996.
Like the federal regulations, the Regulation requires random drug testing and states that
a driver who refuses a random drug test "shall be removed from performing safety-sensitive
functions." Unlike the federal regulations, the Regulation provides that a driver who refuses a
random drug test "will be disciplined in accordance with the [D]istrict's policy of 'Zero
Tolerance"' (Zero Tolerance Policy). The Regulation defines zero tolerance as follows:
Drivers covered by this policy will be dismissed if they
violate [the drug testing policy]. This zero tolerance policy
will apply to those drivers who refuse to submit to an alcohol
or controlled substance test. 	Drivers who are dismissed from
employment under board policy and administrative regulation
of zero tolerance shall not be entitled to any special
considerations for any future employment with the
Fairfield-Suisun Unified School 	for any position.
Under the zero tolerance policy, drivers refusing to be tested "will be dismissed." There are no
exceptions.
MOS does not object to the provision in the Regulation that requires the transportation
supervisors to submit to random drug tests, because that provision simply "mirror[s]" federal
law. Rather, MOS objects to the Regulation's "zero tolerance" provision because federal law
5

does not require it. Thus, contends MOS, the District must negotiate with MOS before the
District can apply the zero tolerance provision to employees in the MOS bargaining unit.
Notice to MOS
Rick Lemke (Lemke) is a supervisor employee and since 1989 has served as the MOS
job steward. Lemke has acted as MOS chief negotiator for all MOS-District collective
bargaining agreements since 1989. Lemke typically receives District governing board meeting
agendas at his home, having requested that the District mail them to him.
In March 1996, Lemke received the agenda for the March 14, 1996 meeting of the
District's governing board, to which was attached a copy of District Policy 4112.41 proposed
for adoption by the governing board at the March 14, 1996 meeting. It was not established that
the cognate Regulation was attached to the agenda sent to Lemke. Lemke was unaware of the
zero tolerance policy contained in the Regulation until he learned of the District's suspension
and termination of MOS member Keith A. Campbell (Campbell) in reliance on the zero
tolerance policy.
Paul D1"11 "'n 1D1" 11	J...1-V 	on) a 	superVl
0
1 	1. \ 	1.1. 	' 	transporta+1·on	l, 	SO".l "'"""'1"'"""'	"-'1..U.1-' VJVV ""''"''""'""'ntP.ti	.1v_p.1.v ..;n.1.l.l.l.VU l-nr	UJ r,.,1ne;	l.Y.L'-...'u, c,pr~r,,,rl	iJV.l. vvu
on the MOS negotiating team as note-taker starting in or around 2002. Dillon had routinely
undergone drug testing in accordance with the District's drug testing policy. It was not
established that Dillon was aware that the District's drug testing policy applicable to MOS
bargaining unit members included a "zero tolerance" provision.
6

Campbell Termination3
The District's bus drivers are supervised by two transportation supervisors represented
by MOS. The District hired Campbell as a school bus driver in or about 2001. The District
promoted Campbell to transportation supervisor in 2003. Following his promotion, Campbell
was represented by MOS.
On April 10, 2009, the District sent Campbell for a random drug test. Campbell
traveled to the testing facility where he provided two samples for testing. Campbell was
observed directly by testing facility personnel while giving the second sample. After providing
the second sample under direct observation, testing facility personnel gave Campbell several
instructions which he followed. 	When instructed to disrobe below the waist to permit
inspection for a prosthetic device, Campbell refused. The testing facility reported to the
District that Campbell had refused to participate. It was not alleged that Campbell had tested
positive for a controlled substance or alcohol.
Thereafter, the District moved immediately against Campbell. On April 13, 2009, the
District "suspended" Campbell. On May 15, 2009, the District served Campbell with written
notice it was considering termination.4 On May 27, 2009, the District served Campbell with
The parties offered into evidence a written stipulation
of
certain facts regarding the
assignment and termination
of
Campbell. The stipulation did not foreclose either party from
adducing further evidence on the subject matter
of
	stipulation. We have considered the
stipulated facts.
4 The notice to Campbell of possible termination recited, inter alia, that:
[T]he technician who observed the second sample asked you
to raise your shirt above your waist and lower your clothing and
underpants, to determine whether you had a prosthetic device.
You refused to do this. The technician therefore properly
concluded that you 'refused to participate' in the test
...
The
District has adopted a 'zero tolerance' policy. Board policy
7

written termination charges (charges). The charges identified the cause for Campbell's
termination as refusal "to submit to a ... random ... controlled substance and/or alcohol test"
pursuant
to
the Regulation.
The Campbell termination was appealed to "advisory" arbitration. The arbitrator's
recommendation is not part
of
the record. The District terminated Campbell on March 25,
2010. California's DMV revoked Campbell's school bus driver's certificate effective
December 30, 2009 for a period
of
"[n]ot less than three (3) years".
District's Basis for Terminating Campbell
During the hearing in this matter, MOS sought to elicit testimony from Campbell about
his testing experience. When the District's counsel objected, a colloquy ensued.
The
MOS
advocate argued that such testimony was relevant to establish that Campbell was terminated
because he refused to drop his pants when so directed by a technician at the off-site testing
facility, not because he tested positive for use
of
a controlled substance or alcohol, and that
therefore Campbell's conduct did not implicate the safety exception in Article 11. The District
counsel responded that the District terminated Campbell under the zero tolerance policy, which
permitted the District to act without using progressive discipline, and that in any event the
safety exception in Article
11
was implicated by Campbell's conduct at the testing facility.
Later in the hearing, District Assistant Superintendent for Human Resources
Ron Hawkins (Hawkins) testified that he approved the written dismissal charges delivered to
Campbell. Hawkins characterized Campbell's termination as "[b]ased on Article
11
dealing
with safety."
and administrative regulations (AR 4112.41) provide: 	'A
driver will be dismissed from his/her position if he/she refuses
to submit to a ... random ... controlled substance and/or alcohol test.'
8

Based on the charging documents in the record issued to Campbell in May 2009 by the
District, we find that the District terminated Campbell for the reason specified therein, to wit,
violation of the zero tolerance policy in the Regulation. The documents allege Campbell's
refusal to comply with an instruction from the testing facility technician giving rise to a "refuse
to test" report, which the District also characterized as failure to model appropriate behavior.
CONCLUSIONS OF LAW
We consider here an allegation of unilateral change. MOS contends that without
providing MOS notice or an opportunity to bargain, the District adopted a drug testing regime
containing a zero tolerance policy inconsistent with the negotiated progressive discipline
procedure. Thereafter, asserts MOS, the District implemented the zero tolerance policy by
terminating Campbell without implementing the agreed-upon progressive discipline procedure.
To prove up a unilateral change, the charging party must establish that: (1) the
employer took action to change policy; (2) the change in policy concerns a matter within the
scope of representation; (3) the action was taken without giving the exclusive representative
notice or opportunity to bargain over the change; ( 4) the action had a generalized effect or
continuing impact on terms and conditions of employment. (Walnut Valley Unified School
District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982) PERB
Decision No. 196 (Grant).) 	We look at each of these requirements.
Change in Policy
We look first at whether the District's actions of March 14, 1996 and May 15, 2009,
changed its policy on employee discipline. It is undisputed 	(1) 	District's progressive
discipline policy located in Article 11 of its contract with MOS was in effect prior to January
1996, and has been in effect at all times since; (2) on March 14, 1996, the District governing
9

board adopted a drug testing policy impacting some employees (transportation supervisors) in
the MOS bargaining unit; (3) the drug testing policy adopted in March 1996 contained a zero
tolerance provision not mandated by state or federal law; and (4) the District first implemented
the zero tolerance provision as to MOS unit employees when it noticed Campbell for
termination on May 15, 2009.
MOS contends that the zero tolerance provision conflicted with and unilaterally
changed the status quo progressive discipline provision in Article
11
of
its contract with the
District, which generally provides for progressive discipline. The District counters that the
safety exception within the progressive discipline provision in Article
11
permits the District to
utilize the zero tolerance provisions
of
the drug testing policy, and therefore it effected no
unilateral change. (See Findings
of
Fact, at page
8,
above.) We turn to Article 11.
Article
11
sets forth a general rule mandating progressive discipline with two
exceptions. The general rule provides:
Progressive steps shall be utilized in handling discipline and
the discipline shall be commensurate with the offense. The
following actions will be taken in order:
Verbal reprimand
Written reprimand
Discipline less than dismissal
Dismissal
The exceptions are:
If
the conduct
of
[the unit member] endangers the safety of
students, employees, or District property, the Superintendent
or his/her designee will not be required to follow the progressive
steps of discipline and may suspend the supervisor with pay
pending the outcome of the process prescribed herein.
The Superintendent or his designee for reasons stated in writing
and sent to [MOS] may skip one or more steps in the above
sequence in cases of emergency. 	[Emphasis added.]
10

The District contends that the reference to "safety" in the first exception permits it to disregard
progressive discipline when implementing the zero tolerance provision. MOS counters that the
District reads the "safety" exception too broadly. 	We are called on to construe the extent of
this "safety" exception in Article 11. 5
We are guided by the normal aids to interpretation. (Grossmont Union High School
District (1983) PERB Decision No. 313, pp. 16-17.) \Ve consider first the plain meaning of
the "safety" exception language. (See Glendora Unified School District (1991) PERB
Decision No. 876, p. 9.) We look at the three principal terms, "conduct," "endanger" and
"safety." We understand "conduct" to mean "behavior" of the unit member. (Webster's Third
New International Dictionary (1976): "behavior in a particular situation or relation or on a
specified occasion.") We understand "endanger" to mean "imperil." (Id., "to bring into danger
or peril of probable harm or loss: imperil or threaten danger to.") We understand "safety" to
mean "being safe." (Id., "the condition of being safe: freedom from exposure to danger:
exemption from hurt, injury or loss.") Read together, we understand this "safety" exception to
excuse compliance with progressive discipline steps where the unit member's "behavior
threatens or exposes to danger" students, employees or District property.
We next consider the context of the "safety" language. It is couched as an exception to
a broad general principle assuring employees progressive discipline. 	such cases arbitrators
construing collective agreements hold that an exception should "be strictly though, to be sure,
5 PERB may not enforce collective agreements (EERA § 3541.S(b)), but construes them
when necessary. (Victor Valley Joint Union High School District (1981) PERB Decision
No. 192.)
11

properly construed and applied. "6 We note that statutory exceptions to grants of rights are
likewise narrowly construed.7 We thus read the "safety".provision in light of its context, as an
exception to the general rule of progressive discipline. 8
We conclude that the conduct for which Campbell was disciplined, refusing to comply
with a directive from a testing technician, falls outside both exceptions. It did not threaten or
expose to danger students, employees or District property constituting merely a refusal to
follow an instruction given at a drug testing facility away from students, employees or property
of the District. Nor did it constitute an emergency.
We conclude that the District's zero tolerance policy as adopted in March 1996, and as
enforced by notice of termination issued on May 15, 2009 exceeds the scope of the exceptions
in Article 11, and therefore effected a change in the parties' negotiated progressive discipline
policy.
Scope of Representation
Employee discipline, including both the criteria for discipline and the procedure to be
followed, are matters with the scope of representation under EERA. (Healdsburg Union High
School District and Healdsburg Union School District/San Mateo City School District (1984)
PERB Decision No. 375 (Healdsburg); San Bernardino City Unified School District (1998)
Unitog Company, Inc., 	740, 742 (Heinsz, 1985); Elkouri & Elkouri,
Arbitration Works, 498 (5 th ed. 1997).
7 Los Rios Community College District (1977) EERB Decision No. 18 (Prior to January
1978, 	was known as the Educational Employment Relations Board or EERB.); City of
National City v. Fritz (1949) 33 Cal.2d 635.
8 We note that the parties also crafted a second exception for matters of "emergency."
We construe the "safety" exception in tandem with its "emergency" sibling, and conclude that
the "safety" exception is further limited to circumstances other than an emergency.
12

PERB Decision No. 1270; San Bernardino City School District (1982) PERB Decision
No. 255 (San Bernardino).)
Where, as here, external law mandates specified procedures in an area within the scope
of representation, such procedures remain negotiable to the extent of the employer's discretion,
that is, to the extent that the external law does not "set an inflexible standard or insure
immutable provisions." (San Mateo City School Dist. v. Public Employment Relations Bd.
(1983) 33 Cal.3d 850, 864-865.) Thus, where the external law is silent or otherwise fails
clearly to "set an inflexible standard or insure immutable provisions," the parties may
negotiate. (Ibid.) Contrarily, where external law sets an immutable standard, the parties may
negotiate over including such a provision without a change in substance in their negotiated
agreement. (Id. at p. 864.)
As noted above, the external federal law mandating a drug testing regime does not
require the District to establish a zero tolerance discipline policy for violations thereof.
Accordingly, such a zero tolerance discipline poiicy is discretionary with the District (Id. at pp.
864-865), and negotiable because it relates to employee discipline. (Healdsburg;
San Bernardino.)
Notice and the Opportunity to Bargain
We look next at whether the District afforded MOS notice and an opportunity to
negotiate over the adoption of the zero tolerance policy. PERB has long held that an
employer's duty to bargain arises upon an exclusive representative's demand to bargain.
(Newman-Crows Landing Unified School 	(1982) 	Decision No. 223.) Notice
a proposed change must be given to an official of the employee organization having the
authority to act on behalf of the organization. (Fresno County Office of Education (2004)
13

PERB Decision No. 1674.) The notice must be communicated in a manner that clearly informs
the recipient of the proposed change. (Lost Hills Union Elementary School District (2004)
PERB Decision No. 1652.) 	General publication of a governing board's agenda does not
constitute effective notice to an exclusive representative of proposed changes in scope matters.
(Arvin Union School District (1983) PERB Decision No. 300.) In any event, an exclusive
representative need not make a demand to bargain where such demand is futile due to a change
having already been made. (San Francisco Community College District (1979) PERB
Decision No. 105; Arcohe Union School District (1983) PERB Decision No. 360.)
In March 1996, shortly before the March 14, 1996 District governing board meeting,
Lemke, the MOS steward and chief negotiator, received at his home a copy of the District
governing board's meeting agenda. A document accompanying the agenda described a drug
testing policy. It was not established that the agenda was accompanied as well by a copy of the
Regulation containing the drug testing regime and the zero tolerance policy. The document
which accompanied the agenda stated that the drug testing policy was effective retroactively on
January 1, 1996. We conclude that the document accompanying the agenda did not inform
Lemke or MOS of the zero tolerance policy, and that even had it done so, the policy's
retroactive effect on January 1, 1996 would have rendered negotiations futile.
Following adoption of the policy and the Regulation in March 1996, transportation
supervisor employees represented by MOS were subjected to random drug tests thereunder. It
was not established that any of these employees was informed of the zero tolerance provision
Regulation, or 	so informed, they in turn informed MOS. 	was not a
transportation supervisor. He testified that he first learned of the zero tolerance provision in
May 2009 when the District initiated termination proceedings against Campbell. Dillon, a
14

transportation supervisor, did hot testify. Testimony
of
Lemke established that as a
transportation supervisor Dillon was required to undergo random drug testing. 	Dillon served
as a member
of
the MOS negotiating team, in the role
of
note taker. 	It was not established that
Dillon knew
of
the zero tolerance provision in the Regulation, or that Dillon informed MOS
of
such provision.
We conclude that MOS did not receive notice
of
the District's adoption or
implementation
of
the zero tolerance provision
of
the Regulation until May I 5, 2009, when
Campbell was noticed for termination in reliance on the provision.
Generalized Effect or Continuing Impact
For a violation
of
a negotiated agreement also to constitute a change in policy, it must
have a generalized effect or continuing impact upon the terms and conditions
of
employment
of
bargaining unit members, and not constitute merely an isolated breach. (Grant.) 	A breach
of
contract results in a unilateral change where the party in breach asserts that the contract
authorizes its conduct Hacienda La Puente Unified School District (1997) PERB Decision
No. 1186 or where there is a change in policy that is generally applicable to future situations.
(State
of
California (Department
of
Youth Authority) (2000) PERB Decision No. 1374-S.)
Here it is undisputed that the zero tolerance provision
of
the drug testing policy adopted
in March 1996 and first applied to a MOS unit member in May 2009 had a generalized effect
and continuing impact.
In sum, we conclude that the District made and implemented a change in policy without
affording MOS notice or an opportunity to meet 	negotiate thereon. 	turn now to the
defenses raised by the District.
15

District Defenses: Statute of Limitations, Waiver/Laches
EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. (Gavilan Joint Community College
District (1996) PERB Decision No. 1177.) A charging party must file a charge within six
months of when it has actual or constructive notice of the respondent's clear intent to
implement a unilateral change in policy. (The Regents of the University of California (1990)
PERB Decision No. 826.)
We have found that MOS first learned on May 15, 2009 of the District's application of
the zero tolerance provision to MOS unit members. Here MOS filed its charge on October 12,
2009, within six months of the District's termination notice to Campbell on May 15, 2009. 	We
conclude, therefore, that MOS timely filed its unfair practice charge.
The District failed to establish that MOS waived by contract the right to negotiate over
the District's decision to establish a zero tolerance policy. Waivers of the right to bargain are
disfavored and must therefore be shown by "clear and unmistakable" language. An exclusive
representative's waiver of the right to negotiate must be clear and unmistakable. (Amador
Valley Joint Union High School District (1978) PERB Decision No. 74, p. 8; San Mateo
County Community College Disirict (1979) PERB Decision No. 94.) For a waiver by contract
to be effective the matter must have been "fully discussed," and the union must have
"consciously yielded" to 	(Compton Community College 	(1989) 	Decision
No. 720, p. 19.) We conclude that the safety exception language of Article 11 fails to
effectuate a waiver of the right to negotiate over the zero tolerance provision in the Regulation.
16

Nor did the District establish that MOS waived by "inaction" of the right to negotiate
over the District's decision to adopt a zero tolerance policy. Crucial to an employer's prima
facie defense of waiver by inaction is proof, by a preponderance of the evidence, that the
employer asserting the defense gave the union notice and an opportunity to bargain, and that
the union failed to act. (Los Angeles Community College District (1982) PERB Decision
No. 252; Beverly Hills Unified School District (1990) PERB Decision No. 789.) Such proof
was not adduced here. Moreover, where, as here, the District adopted retroactively its zero
tolerance provision, a request to bargain would have been futile. 	In such circumstances a
request to bargain is unnecessary. (San Francisco Community College District (1979) PERB
Decision No. 105.)
Nor would the doctrine of laches compel dismissal of the charge. 9 Laches is an
equitable defense based on charging party having: (1) unreasonably delayed asserting its claim
and (2) either acquiescing in the act about which it now complains or permitting the respondent
to have relied to its detriment on the charging party's silence. (See Mt. San Antonio
Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178,
188.) The District failed to prove up either of the prerequisites for laches. The District failed
to establish that prior to May 15, 2009 it provided MOS notice of the zero tolerance policy.
Without notice MOS could neither acquiesce in adoption of the zero tolerance policy nor
unreasonably fail to demand negotiations thereon. Likewise, the District failed to establish any
detrimental reliance arising from MOS's failure to demand bargaining over the zero tolerance
policy.
We find a laches claim implicit in the District's contentions regarding inaction, so we
address it.
17

CONCLUSION
We conclude that the District unilaterally changed its contractual employee discipline
policy by establishing and enforcing a zero tolerance policy with respect to an employee's
alleged refusal to submit to a random controlled substance and/or alcohol test, without meeting
and negotiating with MOS over the decision to change its contractual policy, thereby violating
EERA section 3543.S(a), (b) and (c).
REMEDY
We have concluded that the District unilaterally changed its employee discipline policy
by establishing and enforcing a zero tolerance provision with respect to an employee's alleged
refusal to submit to a random controlled substance and/or alcohol test, without meeting and
negotiating with MOS over the decision to change the policy. By this conduct the District
refused to bargain in good faith in violation of EERA section 3543.S(c). This conduct also
interfered with the rights of bargaining unit employees to be represented by MOS in violation
of EERA section 3543.S(a). And this conduct denied MOS its right to represent bargaining
unit employees in violation of EER,A,. section 3543.S(b).
We will order 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.
In addition, the appropriate remedy when an employer has committed an unlawful
unilateral change is to direct the employer to restore the status quo by rescinding the change
and making affected employees whole for any losses suffered as a result of this change.
conclude that the District terminated MOS unit employee Campbell in reliance on the zero
tolerance provision and in violation of progressive discipline procedures in Article 11 of its
18

contract with MOS. Accordingly, we will order the District rescind the change, and, within
thirty (30) days
of
the effective date
of
this order, to: (1) offer Campbell immediate
unconditional reinstatement to a position
of
equivalent rank and stature as that held by
Campbell prior to his termination; and (2) reimburse Campbell for all loss
of
salary and
benefits caused by the termination, plus interest at the rate
of
seven (7) percent per annum,
from the date
of
his termination on March 25, 2010, until the date the offer
of
reinstatement is
made to him.
Finally, it is the customary remedy that the party found to have committed an unfair
practice be ordered to post a notice incorporating the terms
of
the order. Such an order is
granted to provide employees with a notice, signed by an authorized agent that the offending
party has acted unlawfully, is being required to cease and desist from its unlawful activity, and
will comply with the order. Thus, we will order the District to post a notice incorporating the
terms
of
the order herein at its buildings, offices and other facilities where notices to
bargaining unit employees are customarily posted. Posting
of
such notice effectuates the
policies
of
the EERA that employees be informed
of
the resolution
of
this matter and the
District's readiness to comply with the ordered remedy. (Placerville Union School District
(1978) PERB Decision No. 69.)
ORDER
Based on the foregoing finding
of
facts and conclusions
of
law, and the entire record in
this case, we conclude that the Fairfield-Suisun Unified School District (District) violated the
Educational Employment Relations Act (EERA), 	3543.S(a), (b) and
(c), by establishing and enforcing a zero tolerance policy with respect to an employee's alleged
refusal to submit to a random controlled substance and/or alcohol test, without meeting and
19

negotiating with the Mutual Organization of Supervisors (MOS) over the decision to establish
this policy.
Pursuant to EERA section 3541.5(c) of the Government Code, it is hereby ORDERED
that the District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Establishing and enforcing a zero tolerance policy with respect to any
MOS unit employee's alleged refusal to submit to a random controlled substance and/or
alcohol test without meeting and negotiating with MOS.
2. 	Interfering with the rights of employees to be represented by MOS by the
conduct described above.
3. 	Denying MOS its right to represent its unit members guaranteed by
EERA.
B. 	TAKE THE FOLLOWOING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Rescind as to MOS unit employees the zero tolerance policy with respect
to an employee's alleged refusal to submit to a random controlled substance and/or alcohol
test.
2. 	Within fifteen (15) days of the service of a final decision in this matter:
(a) offer Keith 	Campbell (Campbell) 	to a position of equivalent rank
stature as that held by Campbell upon his termination; and (b) reimburse Campbell for all loss
of salary and benefits caused by the termination, plus interest at 	rate of seven (7) percent
per annum, from the date of his termination on March 25, 2010, until the date the offer
reinstatement is made to him.
20

3.	
Within ten (10) workdays
of
the service
of
a final decision in this matter,
post at all work locations where notices to classified supervisory employees are customarily
posted, copies
of
the Notice attached hereto as an Appendix. The Notice must be signed
by
an
authorized agent
of
the District, indicating that it will comply with the terms
of
this Order.
Such posting shall be maintained for a period
of
thirty (30) consecutive workdays. 	Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered
with any other material.
4.	
Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board, or the General
Counsel's designee. The District shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on MOS.
Chair Martinez joined in this Decision.
Member Dowdin Calvillo concurrence begins on page 22.
21

DOWD IN CALVILLO, Member: I concur with the result reached by the majority in this
case. I find it unnecessary, however, to determine whether Keith A. Campbell's (Campbell)
conduct fell within the "safety" exception to Article 11 of the memorandum of understanding.
Based upon the record before us, and as found by the majority, it is clear that the Fairfield
Suisun Unified School District (District) did not rely on Article 11 in terminating Campbell but
instead based its decision on its determination that Campbell violated the zero tolerance policy.
Only after the charge was filed in this case did it claim that it acted pursuant to the safety
exception of Article 11. Therefore, I do not join in the majority's determination that the conduct
for which Campbell was disciplined falls outside the scope of the exceptions to the progressive
discipline policy set forth in Article 11. Rather, I conclude that the District unlawfully
unilaterally changed its policy on employee discipline when it terminated Campbell based upon
the zero tolerance policy without first satisfying its obligation to provide the Mutual
Organization of Supervisors with notice and an opportunity to bargain over that policy.
22

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-2806-E, Mutual Organization
of
Supervisors
v.
Fairfield-Suisun Unified School District, in which ali parties had the right to
participate, it has been found that the Fairfield-Suisun Unified School District violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(a), (b) and
(c), by establishing and enforcing a zero tolerance policy with respect to an employee's alleged
refusal to submit to a random controlled substance and/or alcohol test, without meeting and
negotiating with the Mutual Organization
of
Supervisors (MOS) over the decision to establish
this policy.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A.	
CEASE AND DESIST FROM:
1.	
Establishing and enforcing a zero tolerance policy with respect to any
MOS unit employee's alleged refusal to submit to a random controlled substance and/or
alcohol test without meeting and negotiating with MOS.
2.	
Interfering with the rights
of
employees to be represented by MOS by the
conduct described above.
3.	
Denying MOS its right to represent its unit members guaranteed
by
EERA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Rescind as to MOS unit employees the zero tolerance policy with respect
to an employee's alleged refusal to submit to a randoni controlled substance and/or alcohol
test.
2. 	Within fifteen (15) days
of
the service
of
a final decision 	this matter:
(a) offer Keith 	Campbell {Campbell) reinstatement to a position
of
equivalent rank and
stature as that held by Campbell upon his termination; and (b) reimburse Campbell

for all loss
of
salary and benefits caused by the termination, plus interest at the rate
of
seven
(7) percent per annum, from the date
of
his termination on March 25, 2010, until the date the
offer
of
reinstatement is made to him.
Dated: 	FAIRFIELD-SUISUN UNIFIED SCHOOL
DISTRICT
By:
--------------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	MUST REMAIN POSTED FOR 	LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2