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that the two meetings with the employee did not constitute an investigatory interview under Weingarten. Te company had decided to require that the employee take a drug test based on his behavior before calling him into a meeting. Te company claimed that the purpose of the meeting “was to get [the employee] to submit to the test, not to gather independent, additional evidence by evaluating his response,” therefore the meeting was not investigatory in the Weingarten sense. The ALJ disagreed and found that the


drug test was “part of an investigation into employee conduct.” The test itself, as the union argued, triggered Weingarten. The ALJ agreed and noted that “when faced with a legitimate request for union representation, an employer is entitled to proceed with the investigatory interview [the test] without


delay only if a union representative is available.” [emphasis added]. It was noted that the interview [the test] need not be postponed because a specific union representative is unavailable so long as another, qualified union representative is available. If no union representative is available the


employer must either: 1. Discontinue the interview, 2. Offer the employee the choice between continuing the interview unaccompa- nied by a union representative, or


3. Have no interview at all (where the employer is free to take disciplinary action based on information from other sources).


The New Wrinkle Over the years, the policy and practice in drug testing had been to allow union


employees who where confronted with a request to submit to a drug test a defined period of time to contact and confer with their union representative. One hour by telephone was typical. In August 2015 the NLRB changed all that. In Manhatan Beer Distributors,10


the employer fired an employee for insubordination when he refused to submit to a drug test based on suspicion that he was under the influence on the employer’s property.11


Te employee allegedly “reeked


of the smell of marijuana.” He was asked to take a drug test. He indicated that he would but first wanted to talk to his union representative. His assistant shop steward could not be reached. He called the shop steward who said it was his day off. Te employee refused to take the drug


test until a union representative could arrive and accompany him during the


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