Gee Whiz! NLRB says union representative required for urine test.

by Michael Haberman on September 3, 2014 · 1 comment


ID-100235847 Image courtesy of aopsan at FreeDigitalPhotosnetThe NLRB recently ruled that an employee who was asked to take a urine test due to his erratic behavior was entitled to have a union representative present under the Weingarten Rule.

What is Weingarten?

The Weingarten rule was instituted in 1975 as the result of a Supreme Court ruling on a case (surprisingly called NLRB v. J. Weingarten, Inc.) that said that employees have a right to union representation at investigatory interviews. They established rules which said:

Rule 1: The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

Rule 2: After the employee makes the request, the employer must choose from among three options:

  • grant the request and delay questioning until the union representative arrives and (prior to the interview continuing) the representative has a chance to consult privately with the employee;
  • deny the request and end the interview immediately; or
  • give the employee a clear choice between having the interview without representation, or ending the interview.

Rule 3: If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.

The current case of Ralph’s Grocery

Some of Ralph’s managers noticed an employee acting erratically and suspected he might be under the influence. He was told he needed to take a drug test. He refused and was told such a refusal would result in his termination. As all good union guys did he cried for a union rep. Unfortunately, the union rep was not to be found so the managers told him to take the test or be fired. He refused and the fired him, not for exercising his Weingarten rules but for insubordination. According to an article by Smith Gambrell and Russell, “The NLRB determined that there was no way to separate the employee’s refusal to take the test from his assertion of his Weingarten rights and held that the employer penalized the employee for refusing to waive those rights. Therefore, the employer was required to reinstate the employee.”

The SGR attorneys concluded “the current NLRB majority either views the Weingarten rights as applying to requests to submit to drug and alcohol tests, even in the absence of any investigatory interview questions, or it views the request for a reasonable suspicion drug/alcohol test to be an “investigatory interview question.”

The conclusion

As a result of this ruling the SGR attorneys are recommending that any situation involving drug testing now requires a union representative be present. I would suggest you require that they hold the pee cup.

Image courtesy of aopsan at FreeDigitalPhotos.net


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