The National Labor Relations Board (“NLRB”) recently ruled that a union-represented employee has the 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 (“NLRA”) require the presence of a union representative upon request when an employee in a unionized workplace is asked to participate in an employer’s investigatory interview that the employee reasonably believes may lead to discipline.

The ruling was based on the following fact situation in Ralph’s Grocery Co.:

Managers noticed some conduct by 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. After he refused the test, he was informed that his refusal would result in termination.  He then requested a union representative to be present. Management tried but was unable to find a union representative. After about a 10-15 minute delay, the employee was directed to take the test and told that his refusal would constitute a positive test result. The employee was terminated when he continued to refuse. The employer argued that the employee was terminated, not for attempting to exercise his Weingarten rights, but for insubordination and refusal to take the test. The NLRB determined that there was no way to separate the employee’s refusal to take the test from his assertion of his Weingarten rights and held that the employer penalized the employee for refusing to waive those rights. Therefore, the employer was required to reinstate the employee.

Based on this decision, it is clear that the current NLRB majority either views the Weingarten rights as applying to requests to submit to drug and alcohol tests, even in the absence of any investigatory interview questions, or it views the request for a reasonable suspicion drug/alcohol test to be an “investigatory interview question.” Either way, it is important to find a union member to be a witness for the union employee who requests a union representative after being instructed to submit to a drug or alcohol test.

It you have any questions regarding this decision, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.