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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

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