American Federation of Labor v. Unemployment Ins. Appeals Bd.

• Decision Date: 09 March 1994
• Docket Number: No. B068526,B068526
• Citation: 28 Cal.Rptr.2d 210,23 Cal.App.4th 51
• Court: California Court of Appeals Court of Appeals
• Parties: , 9 IER Cases 490 AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent.

Page 210

28 Cal.Rptr.2d 210

23 Cal.App.4th 51, 9 IER Cases 490

AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Plaintiff and Appellant, v. UNEMPLOYMENT INSURANCE APPEALS BOARD, Defendant and Respondent.

No. B068526.

Court of Appeal, Second District, Division 6, California.

March 9, 1994.

As Modified on Denial of Rehearing April 5, 1994.

Altshuler, Berzon, Nussbaum, Berson & Rubin and Stephen P. Berzon and Michael Rubin, San Francisco, Laurence Gold, Washington, DC, for plaintiff and appellant.

Daniel E. Lungren, Atty. Gen., Robert L. Mukai, Chief Asst. Atty. Gen., Charlton G. Holland III, Asst. Atty. Gen., John H. Sanders, Supervising Deputy Atty. Gen., Laurie R. Pearlman, Deputy Atty. Gen., for defendant and respondent.

STEVEN J. STONE, Presiding Justice.

Was a worker on an offshore oil drilling platform who was discharged for refusing to submit to a urinalysis drug test discharged for "misconduct connected with his or her most recent work" and thus ineligible for unemployment compensation benefits? (Unemp.Ins.Code, § 1256.) ¹ We hold that he was. We affirm the trial court's judgment denying declaratory relief to the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) which brought an action pursuant to section 409.2 to obtain a judicial declaration of the validity of the 1990 California Unemployment Insurance Appeals Board (CUIAB) Precedent Benefit Decision No. P-B-470, In the Matter of David Hayes.

FACTS

The facts set forth in the Precedent Benefit Decision are as follows: David Hayes was employed as a housekeeper for SHRM Catering Services, Inc. (SHRM) which maintained living quarters for oil drill workers on offshore drilling platforms. His work hours were generally 7 a.m. to 7 p.m., for 14 days straight with 7 days' shore leave before returning for another 14-day shift. Hayes lived on the oil platform while working.

SHRM was under contract with its client, Chevron Corporation (Chevron), to maintain a drug-free work force. SHRM's drug-free policy was set forth in its handbook distributed to all employees and was posted on the platforms. Employees were required to take an annual physical which included a drug test and were subject to discharge for refusal to take a drug test. Employees were also subject to random drug testing conducted by SHRM, by Chevron, and by the United States Coast Guard.

According to Hayes, he tested positive for marijuana in a drug screen as part of a pre-employment physical in 1987 but was eventually hired. When required to take a drug screen as part of his annual physical, he told his then supervisor that he would test positive at that time, and was not required to take the screen. In May 1988, Hayes was given a random drug screen and tested positive for cocaine and marijuana use. He was suspended for approximately three weeks before he was returned to work.

In May 1989, a new supervisor began to enforce strictly the employer's drug-free policy. The supervisor advised Hayes that he would soon be asked to take his annual physical, including a drug screen. While Hayes was on his next shore leave, the supervisor scheduled Hayes' physical which was to be completed before Hayes returned to the platform. Hayes was not expecting the physical until the following shore leave. He told the supervisor that he would not take the drug test at this time because he knew he would test positive. When he refused to take the drug test, the employer discharged him.

Hayes acknowledged smoking marijuana while on shore but stated that even if he ingested the drug on the night before reporting back to work, its effects would have worn off completely by the time he reached the platform after a two-hour drive from his home to the helipad and an hour wait for the helicopter to carry him to the platform. He acknowledged that the platform was a dangerous place to work and he had witnessed several accidents. He knew that it would pose a danger to himself if he were impaired while working on the platform because it would be easy to slip on one of the many steps or to spill kitchen grease on himself.

Hayes claimed at the hearing before the CUIAB that it was unfair for SHRM to demand a drug screen with the annual physical when it had waived that requirement for the two preceding years, and that if he had been given more advance notice, he would have been able to test "clean." He denied any drug usage while on the offshore rig. SHRM contended that the purpose of the drug policy was to enhance safety in the workplace. The tests were not scheduled to provide the employees with an opportunity to "get clean" for the test while engaging in drug usage during the rest of the year.

The majority of the CUIAB found the issue to be "whether the claimant can be discharged for refusal to take a regularly scheduled annual physical which includes drug screening." The CUIAB found that Hayes was not being required to submit to a random, unscheduled, first-time drug test, but a regularly scheduled test which had been given in the past with only the date of the present test unknown. Moreover, Hayes had tested positive in the past and had consequently been suspended from his work. Thus he had a lesser expectation of privacy.

The CUIAB, in balancing the employer's interest in ensuring a drug-free workplace with Hayes' expectation of privacy, found that Hayes did not have an expectation of privacy sufficient to offset the employer's interest in ensuring a drug-free workplace. "He knew that his working environment was dangerous. He was aware that his employment was subject to random testing and to an annual physical which included drug screening. He knew from May of 1989 that the new supervisor was enforcing the testing policy. He knew specifically that his physical exam would be scheduled in October. The employer happened to schedule the testing for the claimant's first shore leave in October. We do not believe that the claimant had a reasonable expectation that the testing would occur during a later leave, affording him the opportunity to test 'clean'.... [p] The employer hired the claimant to work in a dangerous environment on an offshore oil drilling platform. For safety reasons, the employer has an obvious interest in having its work force drug free. The employer was contractually obligated to its client to maintain a drug-free work force. In addition, the claimant had tested positive in the past."

The CUIAB found that, on balance, the employer's interest in having its employees submit to annual drug testing was substantial while Hayes' expectation of privacy was minimal. Thus, Hayes' right of privacy under article I, section 1 of the California Constitution was not violated and by refusing to submit to the drug screen, "a reasonable requirement of the employer directly related to its business," Hayes was insubordinate and his resulting discharge was for misconduct. The CUIAB reversed the decision of the administrative law judge who had reached the opposite conclusion and ordered Hayes discharged for misconduct.

The AFL-CIO filed an action for declaratory relief under section 409.2 to declare invalid the Precedent Benefit Decision, In the Matter of David Hayes, supra, contending that it was at odds with earlier decisions. ² It cited the dissent of two members of the CUIAB which found that Hayes' job was not an inherently dangerous or sensitive employment and that the employer had no reasonable suspicion that Hayes was under the influence of drugs while on the job, a standard the dissent stated the CUIAB had adopted in its earlier Precedent Benefit Decision No. P-B-454 in In the Matter of Vernon Ables (1987). The AFL-CIO stated that the only issue was whether, under section 1256, a worker is statutorily ineligible for unemployment compensation benefits if he or she is discharged for refusing to take a random drug test, when that worker performed a nonsafety-sensitive job and there was no evidence of on-the-job drug use or impairment. ³

The trial court found that even though there was not reasonable cause to believe Hayes was then using or under the influence of illegal drugs on the job, he was employed in a hazardous work environment "which was obviously safety sensitive by nature of the environment, though not as a result of the specific job the worker performed." The court refused to declare invalid Precedent Benefit Decision No. P-B-470, supra, and denied the motion for declaratory relief. This appeal followed.

DISCUSSION

1. Standard of Review

The California Supreme Court has set forth the proper standard of review for appellate courts assessing the validity of Precedent Benefit Decisions under section 409.2. Precedent decisions are akin to agency rulemaking and, therefore, judicial recourse is available under section 409.2 to persons affected by the precedent similar to recourse generally available against regulations. (Pacific Legal Foundation v. Unemployment Ins. Appeals Bd. (1981) 29 Cal.3d 101, 109, 172 Cal.Rptr. 194, 624 P.2d 244.) Since the board's precedent decisions simply interpret controlling statutes and regulations, their correctness as precedent relates to law and policy rather than to factual resolutions. (Ibid.)

Because a judicial declaration of invalidity obtained by a third person does not alter the operative impact between claimants and employers, "in a third-party declaratory action under section 409.2 the courts may only determine whether the board decision accords with the law that would govern were the rule announced articulated as a regulation. There should be no review of the underlying record or new evidence to discover whether the board correctly resolved disputes on adjudicative facts. The board's version of those facts may not be disturbed unless it lacks substantial support on the face of the decision." (Pacific Legal Foundation v. Unemployment Ins. Appeals Bd., supra, 29 Cal.3d at p. 111, 172 Cal.Rptr. 194, 624 P.2d...