An Administrative Law Judge of the NLRB has ruled that a "for cause" drug test is an "investigation" for which the employee is entitled to union representation, refusing to defer to an arbitrator's position to the contrary. In Ralphs Grocery Co., the employer had noticed strange behavior from a long-term employee and directed him to take a drug test. The employee asked for union representation and attempted to call a union representative but was unable to reach one. Because the union representative was unavailable, the employer directed the employee to submit to the test without waiting for a representative or be discharged for insubordination. The employee refused and was terminated. A local of the UFCW filed charges alleging interference with the employee's Section 7 right to union representation in any investigatory interview that might lead to discipline or discharge (known as Weingarten rights). Ralphs argued that requesting the employee to submit to the drug test was not an investigatory interview, and therefore that Weingarten did not apply. The ALJ disagreed, finding that the purpose of the drug test was to "investigate" the reason for the employee's strange behavior. Whether the Board will review the case and reach the same result remains to be seen. It is also unclear as to whether the reasoning of this decision would apply to random or universal drug tests, which are arguably less "investigatory" than for-cause or post-accident tests. But union as well as non-union employers* conducting any type of controlled substance testing should be aware of this decision.
*The NLRB has sometimes taken the position that a non-union employee has the right under Weingarten to have a co-worker present for an investigatory interview that might lead to discipline or discharge.