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Weingarten Rights Not Violated; Employee Lawfully Terminated for Refusal to Take Drug/Alcohol Test

An employee’s Weingarten rights have limits, especially as to drug and alcohol testing, where time is often of the essence, an NLRB Administrative Law Judge has held. Fred Meyer Stores, Inc., No. 19-CA-206136 (July 2, 2018).

The National Labor Relations Board has long-recognized unionized employees’ right to have a union representative present for investigative meetings that may result in discipline (these “Weingarten rights” do not apply in non-union workplaces). In Fred Meyer Stores, Inc., a cashier was suspected of drinking alcohol on the job after two customers allegedly reported smelling alcohol on his breath. The employee was called in by management for a meeting and once the employee understood the nature of the meeting, he requested his Weingarten right to union representation. Weingarten rights were spelled out to the employee on a union-provided card, which included numbers for individual union representatives, plus a 24/7 “emergency” phone number printed in red. The employee called multiple union representatives, but could not reach one directly. He did not call the “emergency” line.

After about 20 minutes, management asked the employee to submit to a drug/alcohol test, which the employee refused to do without a union representative. The employee was advised that a union representative could attend if available, but the employee continued to refuse to take the test in light of his inability to reach a union representative.

The employee was suspended pending investigation, and his employment was ultimately terminated a few days later.

The Administrative Law Judge rejected the employee’s challenge to his termination on Weingarten grounds, recognizing that “alcohol testing is time sensitive.” The Judge also found the company’s actions reasonable in light of the employee’s failure to contact an available union representative through the union’s 24/7 emergency phone number.

In other contexts, the Board has found that an employer’s refusal to allow an employee accused of alcohol or drug abuse union representation violated the employee’s Weingartenrights. The Judge in Fred Meyer Stores distinguished those cases in rejecting the employee’s claim in this case.

Fred Meyer Stores reminds employers that unionized workers must be given a reasonable opportunity to seek and obtain union representation before requiring a drug or alcohol test. However, an employer need not wait indefinitely and risk losing the utility of a time-sensitive drug or alcohol test before testing an employee for suspected substance abuse.

Jackson Lewis P.C. © 2020National Law Review, Volume VIII, Number 200

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About this Author

Associate

Adam C. Doerr is an Associate in the St. Louis, Missouri, office of Jackson Lewis P.C. He represents management in labor and employment matters before state and federal courts, administrative agencies and arbitrators.

Mr. Doerr’s practice involves representing clients in all phases of litigation, including jury and bench trials, dispositive motions, discovery, pre-trial strategy, and client counseling and best practices. Mr. Doerr’s experience includes investigating allegations of employee and managerial misconduct and ...

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Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
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Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

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Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

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