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Union Employee Has Weingarten Rights When Asked to Submit to Drug Test

May 31, 2013

A grocery store violated the National Labor Relations Act (“NLRA”) when it fired a produce manager who refused to take a drug test without first speaking to a union representative, according to a National Labor Relations Board (“NLRB”) Administrative Law Judge.  

Facts of the Case:  In Ralph’s Grocery Store, a grocery store employee at a unionized facility exhibited behaviors that caused his managers to conclude that he was under the influence of alcohol or drugs.  After consulting with the company’s senior labor relations representative, the store manager told the employee that he would have to submit to a drug test.  The employee denied using drugs and refused to comply.  The store manager warned the employee that a refusal to take the test would be deemed a positive test under company policy, would constitute insubordination, and would be grounds for immediate suspension and termination.  At that point, the employee demanded to have a union representative present.  Management responded that while he could contact the union representative, the employee did not have a right to have the representative present during the test.  The employee was unable to reach the union representation and continued to refuse the drug test.   He was suspended for his refusal and thereafter terminated for insubordination. 

The union arbitrated the termination decision and argued that the employer violated the employee’s Weingarten right to consult with a union representative before submitting to the drug test.  Specifically, the U.S. Supreme Court has held that, upon request, union employees have the right to representation at an investigatory interview.  The arbitrator concluded that the meeting was not an “investigatory interview” because the employer had already decided to send the employee for testing before meeting with him.  In addition, the arbitrator rejected the union’s argument that the drug test, itself, triggered Weingarten rights, finding that the order was simply an order and not intended to gather independent evidence. 

The ALJ’s Ruling:  An NLRB ALJ refused to defer to the arbitrator’s decision because he concluded that the employee was denied his Weingarten right to union representation. .  The ALJ held that by requiring the employee to immediately submit to a drug and alcohol test, the employer was initiating an investigation into his behavior.  As such, the employer committed an unfair labor practice by insisting that the employee be tested without giving him the right to consult with his union representative beforehand.  The ALJ issued an order that the employee be reinstated with back pay. 

Lessons Learned:  The employer likely will appeal the ALJ’s ruling to the NLRB, which has never fully considered the issue.  Although the Board has ruled that where a drug test is part of a larger investigation into an employee’s conduct, Weingarten rights will attach if the employee reasonably believes the investigation may result in discipline, it has not addressed whether such rights attach to drug testing for cause.  The ability to detect the presence of drugs or alcohol diminishes with time, so there are practical problems with prohibiting a test until a union representative is available.  In light of this decision, unionized employers should consider asking the unions that represent their employees to provide alternate contacts who can be available in the event of a drug test.