NLRB Extends Weingarten Rights to Drug and Alcohol Test Scenarios

Tuesday, September 2, 2014
In a recent decision by the National Labor Relations Board, a three member panel determined that Ralphs Grocery Co. violated federal labor law by firing a produce manager who refused to take a drug test without consulting a union representative first.  The Board found that the employee's suspension and discharge following the refusal was intertwined with his assertion of his Weingarten rights.  

The Board agreed with an administrative law judge's April 2013 which found that Ralphs violated Section 8(a)(1) by requiring the employee, Razi, to submit to a drug and alcohol test notwithstanding his request for representation, and by suspending and discharging him for his refusal to take the test without representation.

The company said Razi's refusal to take the drug and alcohol test was grounds for discipline because it constituted both insubordination and an automatic positive test result, as reflected in his termination notice. The Board determined that this argument was not a valid defense because there was no way to separate the refusal to take the tests from his assertion of his Weingarten rights.

Weingarten rights are named for the 1975 U.S. Supreme Court decision that established them.  The rights allow employees to insist on having a union representative present for an investigatory interview that the employee reasonably believes could lead to disciplinary action.

The Board ruled that "[a]s Razi’s refusal to submit to the test without the benefit of representation was an exercise of that right, his refusal could not lawfully be used against him. By relying on Razi’s refusal to take the test as a basis for discipline, the Respondent [Ralphs] penalized Razi for refusing to waive his right to representation, irrespec- tive of whether it considered his refusal to be insubordination or an automatic positive test result. In these cir- cumstances, it is clear that Razi’s suspension and discharge were a direct result of his invocation of his Weingarten rights and, therefore, reinstatement and backpay are warranted."

Razi was a longtime bargaining-unit employee and member of UFCW 324 who worked for Raphs in Irvine, Calif., until May 2011. According to the 2013 decision, a store director and others allegedly observed Razi acting strangely, which led to the bid to compel the drug test.

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