Judge: 'San Diego U-T' Unfairly Drug Tested Employees

By: Meg Campbell An administrative law judge in San Francisco ruled late last month that The San Diego Union-Tribune engaged in unfair labor practices when it unilaterally mandated drug tests for press and packaging workers. The judge recommended that the National Labor Relations Board order the paper to cease mandating the tests, but did not recommend reinstatement of two employees fired after testing positive for drugs.

The Graphic Communications Conference filed the charges against the daily in November 2006, and the National Labor Relations Board issued a complaint the following February. In the complaint, the union accused the Union-Tribune of implementing a new drug and alcohol testing policy in July 2006 without first informing or negotiating with the union. The new policy compelled press and packaging employees to submit to drug and alcohol testing if they alleged job-related hearing loss or manifested hearing loss during annual hearing exams.

The complaint further stated that soon after the policy was implemented, one employee who demonstrated hearing loss and a second who filed a worker's compensation claim for the same condition were tested for drugs and alcohol, and were fired when they tested positive for marijuana.

In his decision, Administrative Law Judge Burton Litvak found the paper's assertion that it had been following the same drug and alcohol testing policy since 2002 "to be without merit," and he ruled the Union-Tribune had unlawfully changed its testing practices and had not informed the workers' union of the changes nor given them the opportunity to bargain.

According to the ruling, by "unilaterally changing its drug and alcohol policy without notice to or affording the Union an opportunity to bargain by compelling employees in its packaging department bargaining unit, whose annual hearing examinations revealed the occurrence of an STS [standard threshold shift], to submit to drug and alcohol tests, [the Union-Tribune] engaged in acts and conduct violative of [the National Labor Relations Act]."

Similarly, the judge found that the policy of forcing employees who file workers' comp claims for cumulative-trauma hearing injuries to submit to drug and alcohol tests prior to being examined by a company doctor also violated the NLRA.

The judge dismissed the complaint's allegation that the employees were fired, and did not recommend reinstatement. "The board cannot reinstate employees that were discharged for cause, even if it was related to an unfair labor practice," said NLRB regional attorney William Pate.

The GCC will file exceptions to decision over the issues of reinstatement and back pay, said Richard Prochazka, the attorney representing the union.