A federal appeals court upheld November 16, 2016 the decision of the National Labor Relations Board (NLRB) that an employer violated Section 8(a)(1) of the National Labor Relations Act by denying an employee the right to the physical presence of a union representative before consenting to take a drug test, and by discharging him for refusing to take the test without a union representative present.  Manhattan Beer Distributors LLC v. National Labor Relations Board, Nos. 15-2845, 15-3099 (2d Cir. Nov. 16, 2016).

The Court stated that the NLRB’s decision was supported by substantial evidence and that it reasonably construed the NLRA in light of relevant judicial and administrative precedent. The NLRB’s award of reinstatement and back pay also was upheld.

We previously blogged about the facts of this case here.  In short, the employer wanted to send its employee for “reasonable suspicion” drug testing because he “reeked of the smell of marijuana.” The employee requested the presence of his union steward, but it was the union steward’s day off.  The employee spoke with the union steward on the telephone and then stated that he would not consent to the drug test without union representation.  The employer discharged him for refusing to take the drug test.  In Ralph’s Grocery Co., 361 NLRB No. 9 (2014), discussed here, the NLRB held 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.”  The NLRB, and the Second Circuit, followed that precedent here.

When employers have “reasonable suspicion” to drug or alcohol test an employee, timing is critical. The more time that passes, the more likely the employee will test negative.  This case highlights the tension between an employer’s need to enforce its drug testing policy by conducting timely drug and alcohol tests, and the represented employee’s right to the physical presence of a union representative prior to consenting to test (and thereby potentially delaying the testing).  Employers of represented employees should review their policies and procedures to address these issues.