In Ralphs Grocery Co., NLRB ALJ, No. 21-CA-39867, 4/30/13, a National Labor Relations Board Administrative Law Judge held Ralphs Grocery Co. (“Ralphs”) committed an unfair labor practice by terminating an employee, Razi, who refused to submit to a drug and alcohol test until the employee had an opportunity to consult with his union representative.

Supervisors, including the Store Director at Ralphs, had observed Razi in an agitated, anxious and nervous state.  Razi exhibited slurred speech, would not make eye contact, spoke rapidly and in an animated fashion and had difficulty using the company computer.  Razi also had difficulty kneeling down to tie his shoes.  Based on these observations, the Store Director concluded Razi was under the influence of some type of substance and wanted to send him for a drug and alcohol test.

Upon notification of the Company’s decision, Razi refused to submit to the test and claimed he was insulted by the accusation.  The Store Director advised Razi that his refusal to submit would be grounds for immediate termination.  Razi then stated he wanted to contact a union representative.  The Store Director advised Razi that he did not have the right to union representation, but allowed him to try to contact a union representative anyway.  Under NLRB v. J. Weingarten Inc., 420 U.S. 251, 88 LRRM 2689 (1975), an employee has a right upon request to have a union representative present during an investigatory hearing the employee reasonably believes may result in disciplinary action.  Razi could not reach a union representative and after about 10 to 15 minutes the Store Director again requested he submit to a test.  Razi again refused despite the warnings from the Store Director that it would result in his termination from employment.  Ultimately Ralphs terminated Razi’s employment for refusing its request that he submit to a drug and alcohol test and an arbitration and unfair labor practice hearing ensued.

The Arbitrator held in favor of the Company on the ground that the National Labor Relations Act’s Weingarten Rights did not apply to a drug and alcohol testing directive since no questions were asked by Ralph’s and it already had made the decision to send Razi for a drug and alcohol test based on the Store Director’s observations.   The ALJ disagreed and found the Arbitrator’s decision to be “clearly repugnant to the Act.”  The ALJ held “the drug test was ordered as part of an investigation into employee conduct.”  Further, Razi had “an objectively reasonable belief that his employer’s investigation and request to take a drug test could put his job in jeopardy.”

The ALJ’s decision, in our view, is questionable.  The act of submitting to a drug and alcohol test is not an investigatory meeting that might result in discipline.  Had a union representative been available, the conversation between Razi and the union representative would have been, “go for the test or they can terminate you.”  There was no investigation into directing the employee to take the test; the employer already had decided there was reasonable suspicion to test the employees. And if a random drug test were involved, there would have been no “investigation into employee conduct” on which the ALJ would rely.  There was no dispute in the case as to whether the Collective Bargaining Agreement allowed Ralphs to test the employee or whether a refusal to submit would result in the employee’s termination from employment.  Drug and especially alcohol testing is time sensitive.  The ALJ’s decision in this case allows an employee and union to delay the test while waiting for a union representative to become available, leaving the employer helpless in the process as the substance metabolizes in the employee’s system — potentially altering test results.  The ALJ failed to recognize this point.  While this decision may be appealed to the NLRB and the courts, an employer who finds itself in this position should make sure the employee contacts a union representative, if only to explain that the employee must submit to the test or risk having his/her employment terminated.