Executive Summary: The National Labor Relations Board (NLRB or Board) recently held that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee who refused to take a drug test without first consulting with his union representative. See Ralphs Grocery Company and United Food and Commercial Workers Union, Local 324, 361 N.L.R.B. No. 9 (July 31, 2014). In the 2-1 decision, the Board found that the employee's suspension and subsequent discharge were "inextricably linked to his assertion of Weingarten rights," and therefore, reinstatement and backpay were warranted.

Background: On May 18, 2011, the employee, Razi, arrived to work an early morning shift. Several co-workers informed Ralphs' store director that Razi appeared agitated, anxious, and nervous and that his speech was slurred. The store director found Razi stocking produce and noticed that he was fidgety, spoke rapidly, and had trouble focusing on the conversation. Based on the circumstances, the store director asked Razi to take a drug and alcohol test. Razi refused, at which point the store director informed him that a refusal to take the test would be grounds for immediate suspension because it would constitute insubordination and an automatic positive test result. Razi then asked to contact his union representative.

Although the store director informed Razi that he did not have the right to have a union representative present, she permitted him to contact one. However, Razi was unable to reach his representative. Razi still refused to take the test, so the store director suspended him pending further investigation. The next day, Ralphs fired Razi for insubordination and refusal to take the drug test. Razi filed a grievance with the union, which contested Razi's suspension and discharge under the parties' collective bargaining agreement (CBA). Six weeks later the union filed a charge with the NLRB alleging that Ralphs violated the NLRA by unlawfully interfering with Razi's Weingarten rights. Under Weingarten, employees have a right to union representation at an investigatory interview they reasonably believe may result in discipline. NLRB v. Weingarten, 420 U.S. 251 (1975).

Board Affirms ALJ's Determination that Employer Violated the NLRA

In the grievance under the CBA, the arbitrator found that Ralphs terminated Razi for just cause based on his refusal to take the drug test. He further found that the meetings where Ralphs requested the drug test did not constitute investigatory interviews and, as such, did not trigger Razi's Weingarten rights. The Administrative Law Judge (ALJ) disagreed and rejected the arbitrator's decision on the grounds of repugnancy to the Act, finding it "totally inconsistent with Board precedent." In adopting the ALJ's findings, the Board stated that Razi's suspension and termination were a direct result of his invocation of his Weingarten rights, and thus, Ralphs violated the NLRA.

In his dissent, Member Johnson agreed that Ralphs interfered with Razi's Weingarten rights but concluded that Ralphs suspended and terminated him because of its belief that he was intoxicated, not due to any hostility toward his representation request. He stated that under the circumstances, Ralphs should not have been required to postpone a time-sensitive test simply because, through no fault of its own, it was unable to comply with Razi's request. The majority agreed that employers have a legitimate interest in promptly addressing situations where employees may be under the influence of drugs or alcohol. Nevertheless, that interest does not allow employers to take actions against employees who invoke their rights under the NLRA.  

Employers' Bottom Line: As always, when conducting any type of investigation, an employer must respect an employee's right to a union representative in any situation where that employee could face discipline. In light of this recent decision, employers should be aware that the Board may find, at least in some situations, that this right extends to employees who are asked to take a for-cause drug test.