Weingarten Protects Employee Who Refuses Drug Test

In NLRB v. Weingarten (U.S. 1975), the U.S. Supreme Court held that the National Labor Relations Act (NLRA) requires employers to grant unionized employees the right to union representation at an investigatory interview that the employee reasonably believes could result in discipline. One vexing issue for employers is how to comply with the Weingarten rule in circumstances such as suspected drug use on the job, where an employer’s right to enforce its ban on the use of unlawful drugs collides with an employee’s Weingarten rights.

Unfortunately, the National Labor Relations Board (NLRB) has given an employee’s Weingarten rights superior status to an employer’s interest in maintaining a drug-free workplace. In Ralphs Grocery Co. (2014), the NLRB clarified that an employee has the right to an authorized union representative even if the employee’s request delays a drug or alcohol test. Now, the United States Court of Appeals for the Second Circuit has agreed with the NLRB, even where the employee had an opportunity to check in with his union representative.

Manhattan Beer Distributors employee Joe Diaz was injured on the job. Diaz’s job involved driving a truck and other safety-sensitive duties. When he reported to work the following day, he learned he had not been scheduled to work, apparently because of his injury. When he went to talk to his manager about his schedule, Diaz’s manager smelled marijuana on Diaz and observed bloodshot and glassy eyes. Another manager observed the same indicators of marijuana use and told Diaz he would have to take a drug test to work that day.

Diaz agreed but stated he wanted the shop steward present during the test. That day, the company and the shop steward signed a progressive discipline report acknowledging that Diaz had been requested to submit to reasonable suspicion testing. In addition, Diaz actually spoke with his shop steward prior to his refusal to submit to the test. Notwithstanding these facts, Diaz refused to submit to a drug test without the presence of a shop steward, and the company terminated his employment.

An Administrative Law Judge determined that the company violated Section 8(a)(1) of the NLRA by terminating Diaz in violation of his Weingarten rights, and the NLRB agreed. While the NLRB acknowledged that “an employer cannot delay testing indefinitely while an employee seeks out an available union representative,” it nevertheless held that by failing to “accommodate” the employee, the company violated the NLRA.

Last week, in a discouraging decision for employers, the U.S. Court of Appeals for the Second Circuit agreed with the NLRB. Manhattan Beer Distributors v. NLRB (2d Cir. 2016). According to the court, the company could not require a drug test and then discharge the employee for refusing to take the test without a union steward present.

This is another cautionary tale for employers. Even where a company may lose the ability to verify whether an employee in a safety-sensitive position is under the influence of drugs or alcohol, employers must remember Weingarten. Employers have three options when an employee invokes Weingarten: 1) grant the employee’s request; (2) give the employee the option of proceeding without representation; or (3) discontinue the interview and make a disciplinary decision based on the information it has available.

Because the Weingarten rule can be difficult to comply with under exigent circumstances such as drug/alcohol testing, members should contact MSEC for assistance and guidance on Weingarten matters.