Recent NLRB decisions have expanded Weingarten rights – especially as they affect drug and alcohol testing procedures and an employer’s right to conduct a prompt test.
For decades, union represented employees had the right to the presence of a union steward during an investigative interview that could reasonably lead to disciplinary action - so called Weingarten rights, named after the Supreme Court case, NLRB v. J. Weingarten, 425 U.S. 251 (1975). Non-represented employees do not currently have Weingarten rights. But the National Labor Relations Board (NLRB) has changed its position on application of Weingarten rights to non-represented employees four times over the past forty years – most recently in IBM, 341 NLRB 1288 (2004). Current NLRB General Counsel Richard Griffin is seeking to restore Weingarten rights to non-represented employees, Gen. Counsel Memo. 14-01.
Weingarten rights apply to drug testing too. An employee has a right to consult a union steward prior to taking a drug test. However, two recent NLRB decisions have required employers to delay any drug testing until the employee has had sufficient time to locate a union steward.
In Ralph’s Grocery Store, Co., 361 NLRB No. 9 (2014), an employee refused to take a drug test without first discussing the test with his steward. Unfortunately no steward could be found in person or by phone in the fifteen minutes allotted by the employer. When the employee refused to be tested because he had been unable to speak with his steward, he was terminated. The NLRB concluded the employer violated the Act by terminating the employee because it should have delayed the test to give him more time to find a steward.
Last August, NLRB held, for the first time, that Weingarten rights included a right for a union steward to be physically present for the alcohol or drug test so the employee can obtain advice about testing protocols. Manhattan Beer Distributors, L.L.C., 362 NLRB No. 192 (2015). In Manhattan Beer, the employer, after concluding an employee “reeked of marijuana,” directed the employee to be tested for drugs. The employee spoke with his steward by phone and requested he accompany the employee to the test. However, the steward declined to give up his day off to be present for administration of the test.
After a two hour delay, the employer demanded the employee submit to the test or be terminated. He refused - and was fired. The majority of the NLRB held that, an employer is not required to postpone the test indefinitely, but is required to wait a reasonable period of time for the employee to secure union representation to accompany the employee to the testing site. The NLRB pointed out that marijuana remains detectable for months so the Employer’s discharge of the employee for a delay of two hours was unreasonable and unlawful.
The dissent argued the presence of another party in the midst of a physical administration of a drug or alcohol test poses “substantial risks of inaccuracy and adulteration”. The dissent also argued there was “no basis to extrapolate from the Supreme Court’s Weingarten decision that employees have a right to have a union representative for the actual administration of drug or alcohol testing.”
These two cases present challenges for employers. How long must employers delay drug testing waiting for a steward? The majority in Manhattan Beer stated it would continue to take “careful account of the particular circumstances of each case.” Thus, the Board appears to concede that not all drug and alcohol testing situations are the same. Unlike marijuana, alcohol and many controlled substances can be difficult to detect after a number of hours. Therefore, while a lengthy delay awaiting a steward may be reasonable for marijuana, it may not be reasonable if alcohol or a drug other than marijuana is suspected. Nonetheless, some reasonable waiting period to secure a steward for alcohol or some types of drug testing is likely required. But the exact parameters are unknown.
The Board majority in Manhattan Beer, noted that parties to labor agreements “are free to negotiate appropriate procedures – including having a union representative on call at all times that might include such testing.” But that suggestion, if implemented, doesn’t guarantee a steward will be present at the testing site. Employers should meet with labor unions representing employees to proactively anticipate and discuss the issues presented by these decisions. Weingarten procedures can be modified if the union “clearly and unmistakably” waives Weingarten rights or procedures. Employers should seek to convince unions to agree to waive the right for an employee to insist a steward be present at the testing facility or agree to other accommodations. Agreements on drug and alcohol testing procedures could well lessen the risk of untimely testing of employees suspected of being under the influence and unlawful terminations for failure and refusal to be tested.