The National Labor Relations Board's Misapplication of Weingarten Rights to Employer Substance Abuse Testing Programs

By Johns, Daniel, V | Labor Law Journal, Spring 2016 | Go to article overview

The National Labor Relations Board's Misapplication of Weingarten Rights to Employer Substance Abuse Testing Programs


Johns, Daniel, V, Labor Law Journal


I. INTRODUCTION

In 2014, with little fanfare, the National Labor Relations Board (the "NLRB" or the "Board") issued a significant decision that has the potential to severely disrupt and limit the ability of unionized employers to timely test and hold employees accountable for being under the influence of drugs or alcohol in the workplace.1 In Ralphs Grocery Co.,2 the NLRB considered whether a unionized employee's right to representation in the workplace extends to a drug and alcohol test pursuant to an employer's testing policy.3 Without any significant analysis of the impact on the decision on legitimate drug and alcohol testing programs, the NLRB held that drug and alcohol tests do trigger a unionized employee's right to have a representative present under the Supreme Court's decision in NLRB v. J. Weingarten, Inc.4

This article examines the NLRB's decision in Ralph's Grocery and concludes that it is wrongly decided under existing Board precedent. Indeed, a drug and alcohol test is not an investigatory interview triggering the protections of Weingarten. Other than attempting to prevent the testing process from moving forward, it is unclear what role, if any, a union official would play in representing an employee who is required to provide some sort of sample for the purpose of testing. Moreover, in the case of alcohol testing, the imposition of an employee's Weingarten right to a union representative has the potential to severely limit the ability of employers to hold employees accountable for workplace misconduct caused by being under the influence of alcohol in the workplace. The Board, however, provided little or no analysis of the impact of the decision on testing processes and no guidance whatsoever for employers struggling to ensure that their workplaces are safe and free of employee abuse of drugs or alcohol.

In short, this Article argues that the Board got it wrong in Ralph's Grocery. Drug and alcohol tests do not implicate the right to a union representative under Weingarten and the NLRB's decision in Ralph's Grocery has the potential to severely diminish the effectiveness of employer testing programs while providing no legitimate benefit to the employee subject to the testing.5

II. EMPLOYEE DRUG AND ALCOHOL TESTING PROGRAMS

Since the 1980s, it has become relatively commonplace for employers to test applicants and/or current employees for illegal drug use and being under the influence of alcohol while on duty.6 As one commentator put it:

In less than a decade, testing bodily fluids for evidence of past drug use has become part of the American way of life. Once it would have been considered improper for one person to watch another urinate, or for your employer or your government to require you to urinate on demand. But in less than a decade, it has become the American way for employees to provide urine on demand for government bureaucrats or low level supervisors.7

Such testing has been challenged in various ways and under disparate legal theories.8 Additionally, various states have passed laws regulating employee drug and alcohol testing.9 With few exceptions and some limitations, however, employers have the right to institute testing programs for their employees.10

The primary driver for employee drug and alcohol testing is employee safety and the reduction of employer expense related to employee drug and alcohol abuse.11 As one commentator has stated, "[d]rug and alcohol abuse by workers can lead to safety risks, damage to the environment, lost time, and diminished productivity."12 Through the years, many studies and commentators have noted the strong correlation between substance abuse and threats to employee health and safety in the workplace.13 Anecdotally, employees report a fear of impaired co-workers:

When [former drug czar Barry] McCaffrey told management to stay out of the room and asked employees what they thought, he heard something else: "All I heard about was worker safety-'I didn't trust the guy I was working with because he was drug-impaired. …

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