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company’s need to conduct drug and alcohol testing in a timely manner. Te board acknowledged that an employer “cannot delay testing indefinitely while an employee seeks out an available union representative.” A balance must be found between the company’s legitimate management interests and the employee’s Weingarten rights. Te board said:

drug test. Te company discharged him for refusing to submit to the test. Te NLRB found that the company violated the employee’s Weingarten Rights. Te case boiled down to the definition

of “assistance” from a union representative. Here, the NLRB concluded that not only does Weingarten guarantee union employees the right to consult with their representative but to have that representative “physically present” during the test process. As the Board said:

“Here, the physical presence of a union representative was reasonably necessary to provide “active assistance” to [the employee]. As found by the judge, Facility Manager’s and Delivery Manager’s concern that [the employee] was under the influence of marijuana was based entirely on their sensory perceptions of the [employee’s] appearance and odor. At the very least, the physical presence of a union representative was necessary in order to permit the representative to independently observe [the employee’s] condition and potentially contest the grounds for [the] suspicions.”

The NLRB found further that the

presence of the union representative could have provided the employee with valuable assistance with respect to the testing procedure such as “advising the employee regarding the standard testing protocol and [ensure] that those protocols were followed.” Te NLRB went on to explain that due consideration must be given to the

30 datia focus

“. . . our position is not that the [company] was required to postpone indefinitely a drug test of [the employee], but rather that the [the company] was required to afford [the employee] a reasonable period of time to obtain union representation, which it did not. Notably, in addition to calling [one union representative], [the employee] atempted to contact [another], who was at work that day, but the [company] did not allow [the employee] sufficient time to determine whether [the second representative] might become available.

Conclusion and Takeaways: Weingarten was announced 41 years ago. Te rights to union representation announced by the Supreme Court in that key case have evolved and no doubt will continue to do so. Some of the key points we know now are:

1. When confronted with a request to submit to a reasonable cause drug or alcohol a union employee has the right to union representation;

2. Tat representation is not merely to con- sult by telephone with a union represen- tative but to have that union representa- tive present during the test process.

3. Tese rules apply to union workers— not non-union workers;

4. Te union worker’s rights cannot be used to unreasonably delay the test process;

5. The union employee must request the opportunity to consult with a union representative;

6. Te union employee must reasonably believe the investigation could lead to discipline;

7. A drug test is an investigation (interview).

Other nuanced rules exist. For a

complete discussion of these and other rules related to union employees visit the Encompass Compliance Corp. library at ❚

References 1

This article will focus only on the NLRB’s August 27, 2015 ruling in Manhattan Beer Distributors, LLC, 362 NLRB No. 192 (August 27, 2015) copies available upon request. Many other related issues exist and are fully discussed on the Encompass Compliance Corp. library at


Manhattan Beer Distributors, LLC, 362 NLRB No. 192 (August 27, 2015).

3 4 5

NLRB v. Weingarten, 420 U.S. 251 (1975). Mobile Oil Corp., 196 N.L.R.B. 1052 (1972).

See for example In the Matter of New York City Transit Authority v. New York State Public Employment Relations Board, 8 N.Y.3d 226 (2007) discussing the difference between New York Public Employee rights under the state’s “Taylor Act” and those of private employees governed by the NLRA; see also In the Matter of the Application of Kimmi Johnson, 2012 N.Y. Misc. LEXIS 1718 (2012) where the Court upheld the Administrative Law Judge’s determination that Weingarten Rights do not attach before a drug test; also see, A Square Peg and a Round Hole: The Application of Weingarten Rights to Employee Drug and Alcohol Testing, D. Johns, 28 Pace L. Rev. 33 (2007).


See, A Square Peg and a Round Hole: The Application of Weingarten Rights to Employee Drug and Alcohol Testing, D. Johns, 28 Pace L. Rev. 33 (2007).

7 8 9 10

System 99, 289 NLRB No. 91, 289 NLRB 723 (1988). Safeway Stores, Inc., 303 NLRB 989 (1991). Ralphs Grocery Company, 361 NLRB 9 (2014).

Manhattan Beer Distributors, 362 NLRB 192. (August 27, 2015)


The employee had been injured at work but showed up at work the next day only to find that no work had been assigned to him.

Bill Judge is an attorney who, for the past 30 years, has concentrated his practice on research, consultation, litigation assistance, and management training related

to the legal issues of substance abuse in the workplace and in our nation’s schools.

Bill is the co-founder of Encompass Compliance Corp. which is an on-line research and risk management service that provides customers with state, federal and issue-specific drug and alcohol test- ing information, policies and procedures and training, which can be utilized for defeating Workers’ Compensation claims involving intoxication.

summer 2016

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