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The Old Rule Since 1975 union employees have enjoyed the right to have a union representative “present at an investigatory interview which the employee reasonably believes might result in disciplinary action.”3


Tis right,


known as the “Weingarten Right,” was first recognized by the NLRB in the 1972 decision Quality Mfg. Co., 195 NLRB 197. But it didn’t become “real” until the United States Supreme Court acknowledged that the right existed, inherent in Section 7 of the National Labor Relations Act. (NLR). Quoting another 1972 NLRB ruling, Mobile Oil Corp.,4


the Supreme Court said: “An employee’s right to union


representation upon request is based on Section 7 of the Act which guarantees the right of employees to act in concert for ‘mutual aid and protection.’ Te denial of this right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of Section 8(a)(1) of the Act. Tus, it is a serious violation of the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview, which may put his job security in jeopardy. Such a dilution of the employee’s right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action.’” [emphasis added] Te Weingarten Rule has had a


somewhat complicated and controversial


past.5


Depending on the jurisdiction—


court, arbitration, state or local labor board or NLRB—the application of the Weingarten Rule in drug or alcohol cases may be different.6 What has evolved from the Supreme


Court’s ruling are the following: 1. Te right to a union representative’s assistance is based on the statutory guarantee that employees may act in concert for mutual aid and protection;


2. Te right arises only when the em- ployee requests representation;


3. The right is limited to situations where the employee reasonably be- lieves the investigation will result in disciplinary action;


4. Te right may not interfere with the employer’s legitimate prerogative to continue the interview, and


5. Te employer has no duty to bargain in any way with a union representative who may be permited to atend.


Application of the Weingarten Rule to Workplace Drug Testing:


The rule was first applied in a workplace drug test case in 1988.7


In System


99 the NLRB determined that an employee believed to have come to work intoxicated was denied his Weingarten Rights when he asked and was denied the opportunity to consult with a union representative or in private with a co- worker before taking a “sobriety” test. As a result the employer was found to have violated the NLRA. The NLRB affirmed the Administrative Law Judge’s (ALJ) determination that the meeting with the employee in the facility manager’s office, along with another senior


Union membership has dropped steadily over the past 33 years1 , from


approximately 20% of the United States workforce in 1983 to just 11% in 2015. The largest numbers of union members lived in California (2.5 million) and New York (2.0 million). Roughly half of the 14.8 million union members in the U.S. lived in just seven states (California, 2.5 million; New York, 2.0 million; Illinois, 0.8 million; Pennsylvania, 0.7 million; and Michigan, Ohio, and New Jersey, 0.6 million each).


28 datia focus


management level employee and two co-worker witnesses, was confrontational as anticipated by Weingarten. It was made clear to the employee that he must either submit to the “sobriety” test or be “presumed intoxicated” if he refused and face discipline. The ALJ concluded:


“Where, as here, an employee is advised by his employer—and therefore he “reasonably believes“—that he may be disciplined if he refuses to submit to a proposed set of tests, there appears to be no reason for concluding that he should not be entitled to the services of a representative before deciding what he will do.”


But if an employer is merely asking


an employee to take a drug test is a Weingarten-type investigative really taking place? Tree years aſter System 99, in Safeway Stores, Inc., the NLRB adopted an ALJ’s determination that a drug test is the “interview” in the Weingarten sense.8


Te


employer had argued that the sole purpose of the confrontation was to “instruct” the employee to submit to the drug screen. Te employer argued that “no interrogation or factual or discretionary determination was to be made” during the discussion and that Weingarten therefore didn’t apply. Tat argument was rejected as meritless by the ALJ saying:


“. . . the purpose of an employer’s investigatory interview concerning the use of drugs and the possible adverse effects of such an interview on an employee’s employment are the same regardless of whether the employer’s interrogation of the employee during the interview is done personally by supervision or by means of a drug test.”


In a 2014 drug testing case before the


NLRB the employer argued that the disciplinary action it took was for the employee’s “insubordination” not his refusal to submit to a drug test without union representation.9 In Ralphs Grocery Company, the


company argued, and an arbitrator agreed, summer 2016


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