Wednesday, December 7, 2016

2nd Circuit Affirms: No Union Rep; No Drug Test

The 2nd Circuit Court of Appeals recently affirmed a decision by the NLRB which held that the employer in the case of Manhattan Beer Distributors, LLC v. NLRB violated federal labor law when it refused to delay a reasonable suspicion drug test because no union representative could be on site to advise the employee when the testing was ordered, and then discharged the employee when he refused to take the drug test without a union representative present.

In this case, a company representative noted that employee Joe Diaz “rocked the smell of marijuana” when he reported to work one day. As a result, Diaz was ordered to immediately report for drug and alcohol testing pursuant to the reasonable suspicion testing provision of the parties’ collective bargaining agreement. The employee, while stating that he had no objection to taking a drug test, also invoked his Weingarten rights, demanding that he consult with a union steward prior to reporting for testing. The employer agreed. The only problem was that the union steward that was normally on duty with Diaz was off of work that day. Diaz then telephoned the other steward who told him that he was not working and could not accompany Diaz to the testing.

Diaz again stated that he did not mind undergoing testing, but he demanded that the test be postponed until he had the opportunity to consult with a union steward. Probably understanding that time could be of the essence in the testing process, the company representative insisted that Diaz report immediately for testing. Diaz refused on the basis that he had not been afforded the chance to consult with his steward. The company then discharged him for failure to submit to reasonable suspicion drug testing.

As employers know, Weingarten rights allow an employee to have union representation at meetings or interviews which could reasonably lead to disciplinary action against the employee. The employer in the Manhattan Beer Distributors case argued that the employee had a telephone consultation with his union steward which satisfied his Weingarten rights. The NLRB rejected that argument, relying on its 2014 ruling in Ralph’s Grocery, Inc. where it found that “an employee has the right to the assistance of an authorized union representative even if that might cause some delay in the administration of the drug or alcohol test.”  Here it went a step further and held that an employee’s right to prior consultation with a union representative  is not satisfied by a phone call in reasonable suspicion testing situations. The employee has the right to the physical presence of the representative. Without much discussion, the 2nd Circuit Court of Appeals affirmed the decision of the NLRB.
This obviously presents a problem for employers, although hopefully one that they rarely face. If no union representative is available when an employer directs a reasonable suspicion testing, what can the employer do? Most union contracts require a positive drug or alcohol test before an employee can be subject to discipline for being under the influence. If a union representative is not available, then testing cannot proceed, which also effectively prevents discipline as well.

The solution might be found in bargaining. Parties can negotiate this issue in the course of bargaining a reasonable suspicion drug and alcohol testing provision. Given both the gravity of the allegations that an employee is suspected of being under the influence and the urgency of timely testing, it may be well worth it to the employer to pay for an off duty union representative to accompany the employee for testing. Other agreed upon options exist, such as an agreement that a telephone consultation will suffice when no union representative is available. Obviously, these are subject to the bargaining process.

As always, we remind our readers that while public sector employers are not bound by NLRB decisions, public sector labor boards, including those in Illinois, generally follow NLRB precedent. The best practice is to be mindful of these private sector rulings and don’t make yourself the public sector test case.