Wednesday, September 3, 2014

Recent NLRB Decision Holds Weingarten Rights Extend to Workplace Drug and Alcohol Testing

In a rather ground-breaking decision from the National Labor Relations Board ("NLRB"), in Ralph's Grocery Co., 361 NLRB No. 9 (2014), the Board held that an employee's Weingarten Rights extends to employees who request representation after an employer refers them for a workplace drug and alcohol test.  Weingarten Rights come out of a 1975 Supreme Court case whereby it was held that unionized employees have the right to have union representation at any interview or meeting that could lead to disciplinary action against you.  Thus, because the results of a drug and alcohol test could lead Weingarten Rights would extend to these situations and consider them "investigatory interviews."

The employee, Vittorio Razi, was ordered by his employer to take a drug and alcohol test.  Razi refused  and requested union representation, which he was denied.  After Razi refused to submit to the drug and alcohol testing, he was suspended and subsequently terminated.  The Board held that "[t]he drug and alcohol test, ordered as part of the Respondent’s investigation into Razi’s conduct, triggered Razi’s right to a Weingarten representative."  

In agreeing with the administrative law judge, the Board held:
We agree with the judge that the Respondent violated Section 8(a)(1) by requiring Vittorio Razi to submit to a drug and alcohol test notwithstanding his request for representation, and by suspending and discharging Razi for his refusal to take the test without representation.  Because the reason for Razi’s suspension and discharge is inextricably linked to his assertion of Weingarten rights, with which the Respondent unlawfully interfered, we find that the judge’s make-whole remedy is appropriate. 

There was discussion about Board Member Harry Johnson's dissenting opinion who believed the employer "had a legitimate interest in conducting its investigation and taking action without delay, particularly given the time-sensitive nature of sobriety tests."  However, given the facts of this case, the Board held that "although the investigation was triggered by the Respondent’s observations of Razi’s behavior, the Respondent did not take disciplinary action based “on the information it already had,” because the employer made no mention to Razi being under the influence in deciding to suspend and terminate his employment.  Thus, perhaps this case comes out differently if Razi was clearly under the influence and a safety hazard to himself and his coworkers, but even this scenario depends on very specific facts as such an observation can be highly subjective.  However, the only way to be sure of whether someone is under the influence is through a positive test result.

It is important to note that these cases are highly fact-specific and Razi prevailed in this matter specifically because he requested union representation before submitting to the drug and alcohol test.  If an employee refuses a drug and alcohol test and doesn't request union representation, there would not be a finding of violation of Weingarten Rights, unless the collective bargaining agreement ("CBA") requires such.

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