Union Issues – The Latest from the NLRB and How the
Ruling Could Impact Your Workplace
By
William J. Judge
Chief Research Officer
Encompass Compliance Corp.
Introduction:1
There are many new and fast-evolving developments impacting workplace drug testing
these days. One area that is often overlooked involves union issues. If your employees
are members of a union you should be aware of a recent ruling that could impact your
testing program. This article focuses on that key ruling and the changes it brings.
Background:
You have an employee who is suspected of coming to work
under the influence. You confront her and ask her to take a
drug test. She says she will, but she would like to talk to her
union representative first.
What do you do?
Must you allow your employee time to contact her union representative? If so, how
much time? What happens if you demand that the employee take the test and then
consult with their union representative?
These questions have been litigated in our courts and before the National Labor
Relations Board (NLRB) for more than 40 years. The most recent NLRB decision2 adds a
new wrinkle to an old rule and may require changes to your testing procedures.
1
This article will focus only on the NLRB’s August 27, 2015 ruling in Manhattan Beer Distributors, LLC, 362
NLRB No. 192 (August 27, 2015) copies available upon request. Many other related issues exist and are
fully discussed on the Encompass Compliance Corp. Research Library at https://www.encompinc.com.
2
Manhattan Beer Distributors, LLC, 362 NLRB No. 192 (August 27, 2015).
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The Old Rule:
Since 1975 union employees have enjoyed the right to have a union representative
“present at an investigatory interview which the employee reasonably believes might
result in disciplinary action.”3 This right, known as the “Weingarten Right,” was first
recognized by the NLRB in the 1972 decision Quality Mfg. Co., 195 NLRB 197. But it
didn’t become “real” until the United States Supreme Court acknowledged that the right
existed, inherent in Section 7 of the National Labor Relations Act. (NLRA). Quoting
another 1972 NLRB ruling, Mobile Oil Corp.,4 the Supreme Court said:
“‘An employee’s right to union representation upon request is based on
Section 7 of the Act which guarantees the right of employees to act in
concert for ‘mutual aid and protection.’ The
denial of this right has a reasonable
Union membership has dropped
steadily over the past 33 years1, from
tendency to interfere with, restrain, and
approximately 20% of the United
coerce employees in violation of Section
States workforce in 1983 to just 11%
8(a)(1) of the Act. Thus, it is a serious
in 2015. The largest numbers of
violation of the employee’s individual right
union members lived in California
to engage in concerted activity by seeking
(2.5 million) and New York (2.0
the assistance of his statutory representative million). Roughly half of the 14.8
million union members in the U.S.
if the employer denies the employee’s
lived in just seven states (California,
request and compels the employee to
2.5 million; New York, 2.0 million;
appear unassisted at an interview which may Illinois, 0.8 million; Pennsylvania, 0.7
put his job security in jeopardy. Such a
million; and Michigan, Ohio, and New
dilution of the employee’s right to act
Jersey, 0.6 million each).
collectively to protect his job interests is, in
our view, unwarranted interference with his right to insist on concerted
protection, rather than individual self-protection, against possible adverse
employer action.’” [emphasis added]
3
4
NLRB v. Weingarten, 420 U.S. 251 (1975).
Mobile Oil Corp., 196 N.L.R.B. 1052 (1972).
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The Weingarten Rule has had a somewhat complicated and controversial past.5
Depending on the jurisdiction - court, arbitration, state or local labor board or NLRB –
the application of the Weingarten Rule in drug or alcohol cases may be different.6
What has evolved from the Supreme Court’s ruling are the following:
1. The right to a union representative’s assistance is based on the statutory
guarantee that employees may act in concert for mutual aid and protection;
2. The right arises only when the employee requests representation;
3. The right is limited to situations where the employee reasonably believes the
investigation will result in disciplinary action;
4. The right may not interfere with the employer’s legitimate prerogative to
continue the interview, and
5. The employer has no duty to bargain in any way with a union representative who
may be permitted to attend.
Application of the Weingarten Rule to Workplace Drug Testing:
The rule was first applied in a workplace drug test case in 1988.7 In System 99 the NLRB
determined that an employee believed to have come to work intoxicated was denied his
Weingarten Rights when he asked and was denied the opportunity to consult with a
union representative or in private with a co-worker before taking a “sobriety” test. As a
result the employer was found to have violated the NLRA. The NLRB affirmed the
Administrative Law Judge’s (ALJ) determination that the meeting with the employee in
the facility manager’s office, along with another senior management level employee and
two co-worker witnesses, was confrontational as anticipated by Weingarten. It was
made clear to the employee that he must either submit to the “sobriety” test or be
“presumed intoxicated” if he refused and face discipline. The ALJ concluded:
“Where, as here, an employee is advised by his employer—and therefore he
“reasonably believes“—that he may be disciplined if he refuses to submit to a
proposed set of tests, there appears to be no reason for concluding that he
should not be entitled to the services of a representative before deciding
what he will do.”
See for example In the Matter of New York City Transit Authority v. New York State Public
Employment Relations Board, 8 N.Y.3d 226 (2007) discussing the difference between New York Public
Employee rights under the state’s “Taylor Act” and those of private employees governed by the
NLRA; see also In the Matter of the Application of Kimmi Johnson, 2012 N.Y. Misc. LEXIS 1718 (2012)
where the Court upheld the Administrative Law Judge’s determination that Weingarten Rights do not
attach before a drug test; also see, A Square Peg and a Round Hole: The Application of Weingarten
Rights to Employee Drug and Alcohol Testing, D. Johns, 28 Pace L. Rev. 33 (2007).
6 See, A Square Peg and a Round Hole: The Application of Weingarten Rights to Employee Drug and
Alcohol Testing, D. Johns, 28 Pace L. Rev. 33 (2007).
7 System 99, 289 NLRB No. 91, 289 NLRB 723 (1988).
5
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But if an employer is merely asking an employee to take a drug test is a Weingartentype investigative really taking place? Three years after System 99, in Safeway Stores,
Inc., the NLRB adopted an ALJ’s determination that a drug test is the “interview” in the
Weingarten sense.8 The employer had argued that the sole purpose of the
confrontation was to “instruct” the employee to submit to the drug screen. The
employer argued that “no interrogation or factual or discretionary determination was to
be made” during the discussion and that Weingarten therefore didn’t apply. That
argument was rejected as meritless by the ALJ saying:
“ . . . the purpose of an employer’s investigatory interview concerning the
use of drugs and the possible adverse effects of such an interview on an
employee’s employment are the same regardless of whether the employer’s
interrogation of the employee during the interview is done personally by
supervision or by means of a drug test.”
In a 2014 drug testing case before the NLRB the employer argued that the disciplinary
action it took was for the employee’s “insubordination” not his refusal to submit to a
drug test without union representation. 9
In Ralphs Grocery Company the company argued, and an arbitrator agreed, that the two
meetings with the employee did not constitute an investigatory interview under
Weingarten. The company had decided to require that the employee take a drug test
based on his behavior before calling him into a meeting. The Company claimed that the
purpose of the meeting “was to get [the employee] to submit to the test, not to gather
independent, additional evidence by evaluating his response,” therefore the meeting
was not investigatory in the Weingarten sense.
The ALJ disagreed and found that the drug test was “part of an investigation into
employee conduct.” The test itself, as the Union argued, triggered Weingarten. The ALJ
agreed and noted that “when faced with a legitimate request for union representation,
an employer is entitled to proceed with the investigatory interview [the test] without
delay only if a union representative is available.” [emphasis added]. It was noted that
the interview [the test] need not be postponed because a specific union representative
is unavailable so long as another, qualified union representative is available.
8
9
Safeway Stores, Inc., 303 NLRB 989 (1991).
Ralphs Grocery Company, 361 NLRB 9 (2014).
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If no union representative is available, the employer must either
1. Discontinue the interview;
2. Offer the employee the choice between continuing the interview
unaccompanied by a union representative or
3. Have no interview at all (where the employer is free to take disciplinary action
based on information from other sources).
The New Wrinkle:
Over the years the policy and practice in drug testing had been to allow union
employees who where confronted with a request to submit to a drug test a defined
period of time to contact and confer with their union representative. One hour by
telephone was typical. In August 2015 the NLRB changed all that.
In Manhattan Beer Distributors,10 the employer fired an employee for insubordination
when he refused to submit to a drug test based on suspicion that he was under the
influence on the employer’s property.11 The employee allegedly “reeked of the smell of
marijuana.” He was asked to take a drug test. He indicated that he would but first
wanted to talk to his union representative. His assistant shop steward could not be
reached. He called the shop steward who said it was his day off.
The employee refused to take the drug test until a union representative could arrive and
accompany him during the drug test. The company discharged him for refusing to
submit to the test. The NLRB found that the company violated the employee’s
Weingarten Rights.
The case boiled down to the definition of “assistance” from a union representative. Here
the NLRB concluded that not only does Weingarten guarantee union employees the
right to consult with their representative but to have that representative “physically
present” during the test process. As the Board said:
“Here, the physical presence of a union representative was reasonably
necessary to provide “active assistance” to [the employee]. As found by
the judge, Facility Manager’s and Delivery Manager’s concern that [the
employee] was under the influence of marijuana was based entirely on
their sensory perceptions of the [employee’s] appearance and odor. At
the very least, the physical presence of a union representative was
necessary in order to permit the representative to independently observe
10
Manhattan Beer Distributors, 362 NLRB 192. (August 27, 2015)
The employee had been injured at work but showed up at work the next day only to find that no work
had been assigned to him.
11
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[the employee’s] condition and potentially contest the grounds for [the]
suspicions.”
The NLRB found further that the presence of the union representative could have
provided the employee with valuable assistance with respect to the testing procedure
such as “advising the employee regarding the standard testing protocol and [ensure]
that those protocols were followed.”
The NLRB went on to explain that due consideration must be given to the company’s
need to conduct drug and alcohol testing in a timely manner. The Board acknowledged
that an employer “cannot delay testing indefinitely while an employee seeks out an
available union representative.” A balance must be found between the company’s
legitimate management interests and the employee’s Weingarten rights. The Board
said:
“. . . our position is not that the [company] was required to postpone
indefinitely a drug test of [the employee], but rather that the [the
company] was required to afford [the employee] a reasonable period of
time to obtain union representation, which it did not. Notably, in addition
to calling [one union representative], [the employee] attempted to
contact [another], who was at work that day, but the [company] did not
allow [the employee] sufficient time to determine whether [the second
representative] might become available.
Conclusion and Takeaways:
Weingarten was announced 41 years ago. The rights to union representation
announced by the Supreme Court in that key case have evolved and no doubt will
continue to do so.
Some of the key points we know now are:
1. When confronted with a request to submit to a reasonable cause drug or
alcohol a union employee has the right to union representation;
2. That representation is not merely to consult by telephone with a union
representative but to have that union representative present during the test
process.
3. These rules apply to union workers – not non-union workers;
4. The union worker’s rights cannot be used to unreasonably delay the test
process;
5. The union employee must request the opportunity to consult with a union
representative;
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6. The union employee must reasonably believe the investigation could lead to
discipline;
7. A drug test is an investigation (interview).
Other nuanced rules exist. For a complete discussion of these and other rules related to
union employees visit the Encompass Compliance Corp. Research Library at:
www.encompinc.com
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7/2016