In a strongly worded opinion, a National Labor Relations Board Administrative Law Judge sustained an employee’s discharge for refusing to drug test against an allegation of unlawful discrimination because the employee had engaged in union activity. Ozburn-Hessey Logistics, LLC, JD (ATL) 08-15 (NLRB ALJ April 28, 2015). The Judge repeatedly refused to credit the employee’s account of his employer’s attempts to test him.

Renal Dotson, a forklift driver, was involved in an incident in the employer’s warehouse in which the Operations Manager came into contact with a moving forklift driven by Dotson. Dotson was hostile to his supervisor and testimony suggested he was “not behaving in an entirely rational manner,” the Judge found. According to the Operations Manager, Dotson bumped him intentionally with the truck; Dotson claimed the Manager “chest-bumped” the vehicle.

The Human Resources Department ordered a post-accident drug test for Dotson. The employer’s established policy required that after an accident involving equipment such as a forklift, the operator would not be able to resume duty until he passed a drug screening.

Dotson was sent to a laboratory selected for testing. The laboratory followed strict protocols to assure drug test reliability. Dotson was shown into a secure rest room, told he had four minutes to provide a specimen and advised that his failure to do so would result in his failing the test. After three minutes, the laboratory technician rapped on the door of the rest room. She told him to “wrap it up” and come out. Dotson spoke from behind the door, “I can’t go yet.”

At the four minute mark, the technician told Dotson he should come out anyway, that he would be allowed to drink water, and then could try again. Dotson did not emerge. The technician knocked on the door again saying Dotson’s time was up and he had to come out. “I’m jumping up and down to see if I can use the restroom,” Dotson’s replied. The technician said “either way” she could not take the sample, because he had exceeded the time limit. Dotson persisted: “I think I’m doing something.” But the technician again instructed Dotson to come out, drink water, and restart the process. There was no response at first. Then, from behind the door came the reply, “Oops, I dropped my cup.”

Asked once more, Dotson finally exited the restroom with some urine. It was discolored and did not have a temperature; “and it was trashy,” the technician testified, “with a lot debris on the bottom.” The technician rejected the specimen. She told Dotson the next time he went in the restroom there would have to be a male observer with him, which was standard procedure in these cases. The laboratory collection form, which Dotson initialed, indicated “Specimen Out of [Temperature] Range And/Or Signs of Tampering.”

By now, the laboratory was closing and no male staff members were present to administer another test. So, Dotson could not be retested at that time. He left the laboratory. Dotson then went to another drug testing company where he obtained a certificate showing negative results, but neither the employer nor the ALJ found these results an acceptable substitute, as the testing facility was not approved by the employer.

Since Dotson had not passed a drug test, the employer’s policy prohibited him from returning to work. Meanwhile, the Company investigated not only the accident, but also Dotson’s claims that the approved laboratory had treated him poorly (rushed him) and used sloppy procedures (having another person’s specimen present in the restroom). The Company concluded Dotson’s complaints about the laboratory were baseless.

Eight days later, the employer directed Mr. Dotson to go at once to the laboratory for another test. He was sent without notice, after being told to report to work. A video showed Dotson repeatedly refused to go, despite warnings from management that he could be fired for refusing. He was terminated for violating the Company’s Drug Free Workplace Policy by refusing to take a drug test.

Although Dotson had been an active union organizer, the subject of a court injunction proceeding by the NLRB to secure his reinstatement pending completion of Board proceedings, and of another Board ALJ’s unfair labor practice decision against the Company, the judge here found the Company would have suspended and then terminated him regardless of any anti-union motivation. The Company had an established drug testing policy which required the testing on any employee who had an accident with a fork lift truck and which provided for the termination of any employee who refused to test. Dotson was required to be tested, but refused, and therefore was terminated. The ALJ found other employees who had refused to test were fired, as well. This did not show a violation of the NLRA, the judge concluded. The Judge recommended dismissal of these unfair labor practice allegations.

Adherence to a well-designed, consistently enforced substance abuse policy may help an employer defend against NLRB and other discrimination charges, by providing an objective standard by which to take disciplinary action. The employer may show that regardless of any alleged discriminatory intent, the employee would have been terminated for its violation.