The National Labor Relations Board has held that a supermarket chain violated the National Labor Relations Act by terminating an employee who refused to submit to a drug test without first consulting a union representative, affirming an April 2013 decision by its Administrative Law Judge.  Ralphs Grocery Co., 361 NLRB No. 9 (July 31, 2014).

Vittorio Razi, a produce manager represented by a union, was observed by supervisors to be acting in an agitated, anxious and nervous state.  Razi exhibited slurred speech, would not make eye contact, spoke rapidly and in an animated fashion, had difficulty using the company computer and struggled to kneel 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.  After being informed of this, Razi refused to submit to the test and subsequently was advised by the Store Director that his refusal to submit would be grounds for immediate termination.  At this point, Razi said he wanted to contact a union representative.   The Store Director told Razi that although he possessed no right to union representation, he would be allowed to try to contact a union representative anyway.  Razi was unable to reach a union representative and, after approximately ten to fifteen minutes, the Store Director again requested Razi’s submission to a test.  In spite of warnings from the Store Director that the refusal to submit to a test would result in Razi’s discharge from employment, Razi refused, was suspended, and ultimately, was terminated.  The employer explained that its action was based on Razi’s insubordination, and because the employee’s refusal to submit was deemed to be an automatic positive test result, also warranting discharge.

A three-member Board panel agreed with the ALJ’s finding, and the panel majority agreed with his make-whole remedy. The NLRB found that the reason for Razi’s suspension and discharge was “inextricably linked” to his assertion of Weingarten rights to union representation, rights that the Company had interfered with unlawfully.  Under NLRB v. J. Weingarten Inc., 420 U.S. 251, 88 LRRM 2689 (1975), an employee, upon request, has the right to have a union representative present during an employer’s investigatory interview where the employee reasonably believes it may result in disciplinary action.  The Board agreed with the ALJ that the Company took disciplinary action against Razi for refusing to take the drug and alcohol test, as ordered.

The Board rejected the Company’s argument that Razi’s refusal to take the drug and alcohol test constituted insubordination, as well as an automatic positive test result, warranting discipline.   “There is simply no way to divorce Razi’s refusal from his assertion of his Weingarten rights…,” the Board stated.  By relying on Razi’s refusal to take the test as a basis for discipline, the Respondent, it said, penalized Razi for refusing to waive his right to union representation, irrespective of whether it considered his refusal to be insubordination or an automatic positive test result.”

NLRB member Harry Johnson partially dissented from the Board’s decision, concluding that Razi was suspended and discharged because of the Company’s belief that Razi was intoxicated, and not as a result of hostility toward Razi’s request for union representation.  As a result, Johnson reasoned, the suspension and discharge were not unlawful and a make-whole remedy would be inappropriate.  Further, Johnson made the point (previously raised by this Blog – NLRB ALJ Stifles Drug Testing Process By Allowing Union Representation Before Test) that sobriety test results are time-sensitive.  Johnson noted the Company’s legitimate interest in moving forward with its investigation, citing the argument that the “exercise of Weingarten rights may not interfere with legitimate employer prerogatives.”  While the majority also allowed that the Company had such a valid interest, it made no attempt to reconcile this position with its decision.

The Board’s decision makes clear that Weingarten rights apply to unionized employees faced with for-cause drug tests.  Employers should ensure that these employees are able contact a union representative at the earliest possible time so as to obtain assistance while minimizing delay of any drug and alcohol tests to be performed.