On July 31, a three-member panel of the National Labor Relations Board in Ralph's Grocery Co. ruled that a union-represented employee has a right, upon request, to have union representation for a "reasonable suspicion" drug or alcohol test being required by an employer. "Weingarten rights" under the National Labor Relations Act – the presence of a union representative upon request – generally apply when an employee in a unionized work setting is asked to participate in an employer's investigatory interview that the employee reasonably believes may lead to discipline. The Board ordered Ralph's to rescind the employee's discharge for refusal to take the requested test, finding that discharge was inextricably linked to the assertion of Weingarten rights.
In the Ralph's case, managers noticed some conduct on the part of an employee that caused them to believe he might be under the influence. The employee was directed to submit to a drug and alcohol test. He refused, and was informed that his refusal would result in termination. He then requested union representation. Management tried but was unable to find a union representative, and after about 10 to 15 minutes of delay directed the employee to take the test and indicated that a refusal would constitute a positive test result. The employee still refused and was discharged.
An Administrative Law Judge found that the discharge interfered with the employee's exercise of hisWeingarten rights, and the majority of a three-Member panel of the Board agreed. The majority, consisting of Chairman Mark Gaston Pearce and Member Nancy Schiffer, rejected the employer's argument that the employee had been discharged, not for exercise of his Weingarten rights, but instead for insubordination and refusal to test. Pearce and Schiffer determined that there was no way to divorce the employee's refusal from the assertion of Weingarten rights and found that the employer penalized the employee for refusing to waive those rights.
The lone Republican on the panel, Member Harry Johnson, disagreed with the Board's order to rescind the discharge, finding that the employer discharged the employee because it believed, based on observations, that the employee was under the influence of drugs or alcohol. The other panel members disagreed, finding that the discharge report did not mention an offense other than the refusal to take the test as the basis for the discharge.
The Ralph's decision makes it clear that a current Board majority either views Weingarten rights as applying to requests to submit to drug and alcohol tests, even in the absence of any investigatory interview questions, or views a request for a reasonable cause drug test to be an "investigatory interview question." Absent a requirement in a collective bargaining agreement, an employer generally has no obligation to advise an employee of Weingarten rights and an employee has no right to any particular union representative. The Board has gone back and forth on whether Weingarten rights apply to non-union workplaces, but employers should be watching for the current Board to assert such an expansion.