Skip to main content

NLRB: Gee Whiz...Union Representative Required for Urine Test


Ralph's Grocery Co. - NLRB


Facts:  Managers at Ralph's Grocery noticed that the conduct of one employee caused them to believe he might be under the influence.  The employee was instructed to submit to a drug and alcohol test which he refused.  The employee was informed that any refusal would result in his termination.  As a result, the employee requested union representation.  After management tried to find a union representative but were unable to do so after about 15 minutes, the employee was directed to take the test or a refusal would constitute a positive test result.  The employee again refused and was subsequently discharged. 

Holding:  An Administrative Law Judge found the discharge interfered with the employee's exercise of his Weingarten rights and a three member panel of the NLRB agreed.  In essence, the Weingarten rule is based upon the notion that employees have a right to union representation in an investigatory proceeding.  In this case, the NLRB held that there was no way to separate the employee's refusal to take the test from the assertion of his Weingarten rights and the employer penalized the employee for refusing to waive those rights.  As a result, Ralph's was required to reinstate the employee.

As others have noted, it appears that the NLRB either views the Weingarten rights as applying to requests to submit to drug and alcohol test (even in the absence of investigatory interview questions), or it views the request for a reasonable suspicion drug and alcohol test to be an "investigatory interview question."  Interesting, if not concerning, either way.  Employers would be wise to find a union member to be a witness for the union employee who requests a union representative after being direct to submit to a drug or alcohol test.

Date:  July 31, 2014

Opinion:  http://www.constangy.net/nr_images/els-ralphs2.pdf

Comments

Post a Comment

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum, it was noted that emplo
Post a Comment
Read more

What I’ve Been Reading This Week

A few years ago, I remember when the “Fight for $15” movement was taking off around the country.  Lo and behold, it appears that a $15/hour minimum wage is not the stopping point, which should be no surprise.  As the below article notes, New York is aggressively moving to ramp up hourly wage rates even higher.  While all the  below articles are worth a read, I called particular attention to that one. As always, below are a couple article that caught my eye this week. Disney World Workers Reject Latest Contract Offer Late last week, it was announced that workers at Disney World had rejected the most recent contract offer from the company, calling on their employer to do better.  As Brooks Barnes at The New York Times writes, the unions that represent about 32,000 workers at Disney World reported their members resoundingly rejected the 5 year contract offer which would have seen workers receive a 10% raise and retroactive increased back pay.  While Disney’s offer would have increased pa
Post a Comment
Read more

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies in the state, to per
Post a Comment
Read more