Aug 7, 2014

By Dale L. Deitchler

The National Labor Relations Board in late July ruled that so-called “Weingarten rights” – the general right of a unionized employee to request union representation in connection with an investigatory interview that could lead to discipline – apply when employees request representation after an employer refers them for a workplace drug/alcohol test.

Based on this ruling in Ralph’s Grocery Co., 361 NLRB. No. 9 (2014), the NLRB overturned an employee’s suspension and discharge, finding the actions were inextricably linked to the employee’s request for representation after referral for a drug test, and ordered a make-whole remedy.

NLRB had not  previously answered this question

The employee refused to submit to a drug test after his representation request was denied. Previously, the NLRB had not directly answered the question of whether referral for a test, in and of itself (and absent an interview or employee questioning), provided an opportunity for the assertion of Weingarten rights.

The Board answered that question here affirmatively, stating that the “drug and alcohol test, ordered as part of the [employer’s] investigation into [the employee’s] conduct, triggered [the employee’s] right to a Weingarten representative.”

The NLRB rejected the employer’s argument that the employee’s refusal constituted insubordination or the equivalent of a positive test result, finding instead that the employer had penalized the employee “for refusing to waive his right to representation.”

Board Member Harry I. Johnson III, who joined in the conclusion that the employer had interfered with protected rights, dissented with respect to the award of a make-whole remedy. Johnson reasoned that the employee’s discharge was based on “information [the employer] already had” apart from the test result.

NLRB Chairman Mark Gaston Pearce and Board Member Nancy J. Schiffer disagreed, noting the absence in the termination report to any reference to observed behavior reflecting impairment or any finding beyond the test refusal that the employee was under the influence of intoxicants. This is not surprising as, in the case of issues of proof as to whether an employee is working under the influence of or impaired by drugs or alcohol, the best evidence is typically a confirmed positive test result.

Employer faulted for not waiting for employee representation

Unionized employers that refer union-represented employees for a drug or alcohol test need not advise an employee of his/her Weingarten representational rights.

It bears emphasis that the action in Ralph’s found to be unlawful was not a test refusal per se, but rather a test refusal combined with the employer’s refusal to allow union representation. Where a unionized employer refers an employee for a test, and a union-represented employee refuses to submit to testing but does not request representation, adverse employment action is still lawful.

Note also that Weingarten rights generally do not include a requirement that an employer, absent specific labor agreement language, allow an employee’s specific choice of union representative, or permit the employee to unreasonably delay the drug test in the event no union representative is available.

In contrast, in the Ralph’s case, the NLRB faulted the employer for not “wait[ing] to see if a representative would become available” after the employee requested representation.

This was originally published on Littler Mendelson’s Labor Relations Counsel blog. © 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.