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Do CSRs Belong in the Drug-Testing Pool? PHMSA Says No

May 28, 2020

In 2017, PG&E determined that it had likely committed a violation of federal regulations enforced by the U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) by failing to drug test hundreds of employees in customer service roles, including call center and local office customer service representatives (CSR), in addition to electric and gas service dispatchers.

Acting on this belief, the Company submitted a letter to the California Public Utilities Commission (PUC), pursuant to the Commission’s self-report procedures, outlining the basis for its presumed violation, and expressing its intent to begin drug testing the employees at once.  Thereafter, PG&E decided to unilaterally place these employees within the drug-testing pool and begin routinely testing them over above the objections of IBEW Local 1245, which argued that doing so was both a violation of the parties’ clerical collective bargaining agreement and a unilateral change to a mandatory subject of bargaining (and therefore an unfair labor practice) under the National Labor Relations Act.

In response, the Union immediately filed two business manager’s grievances challenging the Company’s decision (one was filed on behalf of CSRs, and the other was filed on behalf of dispatchers), as well as an unfair labor practice charge with the NLRB.  After reviewing the Union’s charge, the NLRB decided to take a back seat and defer to the parties’ grievance procedure based on the likelihood that this would most direct path to resolution.  The Board, however, would monitor the case to ensure that progress was being made.

While wrangling over the procedure for holding an arbitration hearing, the parties also exchanged respective exhibits that shed light on the specific functions performed by these employees that, in the Company’s view, would subject them to PHMSA oversight.  Specifically, under the applicable regulations, employees that perform certain operations, maintenance, or emergency-response functions on a gas pipeline or liquified natural gas (LNG) facility are required to submit to regular drug testing to ensure that they are able to perform such a safety-sensitive role.  Around this time, the Union realized that rather than submit the dispute to a labor arbitrator, who would likely have no experience dealing with such esoteric and complicated issues of federal law, the parties would be better served directly petitioning the regulatory agencies tasked with enforcing the operative regulations – that is, the CPUC and/or PHMSA.

Accordingly, the Union submitted a letter to the PUC, requesting to know whether it intended to issue a decision regarding whether PG&E had, in fact, committed the violations alleged in its self-report letter, or otherwise respond in any fashion to that letter.  Unfortunately, the PUC ultimately concluded that it had no intent to respond in any fashion to PG&E’s self-report letter, so that proved to be a dead end.

However, after intensive back-and-forth, the parties came to a tentative settlement agreement whereby, in exchange for keeping the gas service dispatchers in the drug-testing pool (since there’s little argument that these individuals perform functions that are covered under the regulations), the Company would agree to remove the local office CSRs, and the parties would submit the last remaining dispute concerning the call center CSRs to PHMSA.

A short time later, the parties submitted a joint letter to PHMSA explaining, in detail, the duties of a call center CSR, and asking for guidance regarding whether those duties would necessitate routine drug-testing under the federal regulations.  PHMSA responded that, contrary to the assumptions of the Company, these individuals do not perform any such duties, and therefore, they are not subject to federally-mandated drug testing, thereby bringing this contentious saga to a definitive close.

While the Union’s position may have been the one that ultimately prevailed, this appears to be a win for all of the parties involved, considering that, going forward, not only will hundreds of the Union’s members no longer be drug tested for invalid reasons, on the flip side of the coin, the Company no longer has to administer a costly and onerous program with respect to those employees.

–Alexander Pacheco, IBEW 1245 General Counsel

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