The National Labor Relations Board (NLRB), in agreeing with an administrative law judge’s (ALJ) April 2013 ruling, has held that suspending and discharging a union member for refusing a drug and alcohol test after the employee demanded union representation is a direct violation of the National Labor Relations Act (NLRA). 

In Ralphs Grocery Co., 361 NLRB No. 9 (2014), coworkers observed the employee displaying unusual behavior, such as slurring his words and having difficulty operating the computer.  Based on these observations, the employee was ordered to submit to a drug and alcohol test.  The employee requested a union representative, but was told that he did not have this right.  The employee attempted to contact a union representative or alternate steward regardless, but was unable to reach anyone.  The employee again refused to submit to the test, despite warnings that his refusal would lead to discharge under Ralphs Grocery Company’s (Ralphs) drug/alcohol testing policy, and he was ultimately terminated.

Ralphs insisted that the employee’s refusal to submit to the testing was insubordinate and amounted to an automatic positive test result under its drug/alcohol testing policy, and this was a complete defense in the case.  Ralphs also argued that it was not required to postpone its investigation because the employee could not contact a representative.

Both the NLRB and the ALJ held that the drug and alcohol test trigger the employee’s Weingarten rights, which were established by a 1975 U.S. Supreme Court decision allowing employees to insist on having a union representative present for any investigatory interview that the employee reasonably believes could lead to disciplinary action.  The NLRB and the ALJ determined that the employee’s discharge was a direct result of his invocation of his Weingarten rights, and not because Ralphs believed the employee to be intoxicated.

While employers may institute policies calling for an employee’s discharge for refusing to submit to a drug/alcohol test, this decision underscores the importance of recognizing an employee’s attempt at exercising his/her union rights.  Managers also should make record of any observed behavior indicating intoxication or illegal drug use as a means to support any actions in the wake of an unfair labor practice claim.