On August 27, 2015, the National Labor Relations Board (“NLRB”) determined a Manhattan beer distributor violated the National Labor Relations Act (“NLRA”) when it terminated a unionized employee for refusing to take a drug test without first providing him a reasonable opportunity to consult in person with an authorized union representative. Manhattan Beer Distributors, LLC, 362 NLRB No. 192 (August 27, 2015). The employee, a driver for the company, had shown up to work “reek[ing] of the smell of marijuana” and had “glassy and bloodshot” eyes. The employee refused the employer’s direction that he submit to a drug test because no union representative was available at the time to advise him regarding the test.

It is settled Board law that a unionized employee has the right to consult with a union representative before responding to an employer’s request that the employee submit to a drug and/or alcohol test. An employer’s failure to allow an employee this consultation right before submitting to the test would interfere with his right to seek the active assistance of a union representative during an investigatory interview — a right long established under NLRB v. Weingarten, 420 U.S. 251 (1972). However, in Manhattan Beer Distributors, LLC, the employee was terminated for his refusal to submit to a drug test only after the employee had been allowed to consult over the telephone with an authorized union representative, who informed the employee that he was off duty and unable to assist the employee with the test. The employee also was afforded the opportunity to call another union representative, who was not able to be reached. Thus, unlike the NLRB’s decision in Ralphs Grocery Co., 361 NLRB No. 9 (2014) — a decision heavily relied upon by the Board’s majority — the employee’s invocation of his Weingarten rights were not blatantly ignored in this instance. Nevertheless, the NLRB held the employer did not give the employee a reasonable amount of time to consult in person with a union representative regarding the drug test.  

Because a drug test has been construed as an investigative interview at which discipline or termination can be imposed, the Board found the employer’s immediate demand for the employee to submit to the test, or face the immediate consequences of a presumed positive result, violated his Weingarten rights. In issuing its ruling, the Board stated the physical presence of a union representative was reasonably necessary to provide active assistance to the employee. It reasoned, at the very least, the physical presence of such a representative was needed to allow the representative an opportunity to independently observe the employee’s condition and potentially contest the grounds for the employer’s suspicion that he was under the influence of drugs. Moreover, the Board thought it important the representative could have advised the employee regarding the standard drug testing protocol and made sure such protocol was followed.

While the Board acknowledged an employer cannot delay testing indefinitely while an employee seeks out an available union representative, its holding requires employers to provide their union employees a reasonable period of time to physically consult with a union representative about requested alcohol and/or drug tests. Of course, what is reasonable in any given circumstance is left to be argued in other cases. However, in Manhattan Beer Distributors, LLC, less than two (2) hours passed from the time the employee showed up to work and the time he was sent home for refusing the drug test.

As the dissenting member of the Board suggested, the majority’s decision paints companies seeking to maintain safe, drug-free workplaces into a corner by foreclosing their ability to take immediate steps to confirm whether unionized employees have reported to work under the influence of drugs or alcohol. Employers should consult their counsel and fully consider their options in situations where union employees are suspected of arriving to work intoxicated, as failing to fully consider the impact of any disciplinary decision may lead to violations of the NLRA.