Do Your Employees Have the Right to a Union Representative During a Drug Test?

Recent court case affects how companies might need to manage reasonable suspicion drug testing union employees.

A recent court case  in N.J. may come as a surprise for some employers with union employees. In May 2014, Administrative Law Judge Steven Davis ruled in favor of an employee who was terminated for not submitting to a reasonable suspicion drug test. The employee, Joe Garcia Diaz, who allegedly “reeked of the smell of marijuana” and exhibited “bloodshot and glassy eyes” while on the job, had declined to submit to a reasonable suspicion drug test without the presence of a union representative. Diaz’s supervisor notified him that his failure to immediately submit to the test would be treated the same as a positive result, potentially resulting in his termination. He refused, and subsequently was discharged for “his refusal to submit to substance abuse testing based on reasonable suspicion.”

On August 27, 2015, a three-member panel of the National Labor Relations Board (NLRB) issued Manhattan Beer Distributors, LLC and Joe Garcia Diaz, (29-CA-115694) finding that an employer had unlawfully denied an employee his right to the physical presence of a union representative during a reasonable suspicion drug test.

Interestingly enough, the NRLB states…

“Where an employer insists that an employee submit to a drug and/or alcohol test as part of an investigation into an employee’s alleged misconduct, the employee has a right to union representation before consenting to take the test.”

Employers have three options:

(1) Grant the employee’s request (to require union representative “physical” accompaniment)

Note: The NLRB states “At the very least, the physical presence of a union representative was necessary in order to permit the representative to independently observe Diazs’ condition and potentially contest the grounds for suspicions.”

(2) Give the employee the option of proceeding without representation.

(3) Dis-continue the interview and make a disciplinary decision based on the information it has available (In this case, they recommended the employer discharge the employee not for refusing to take the test, but rather for prior employee actions or information not related to the drug test event.)

This is despite the fact that delaying a drug or alcohol test could ultimately affect the outcome of the test result. To that, the NLRB stated they although the recognized the employer’s right to test in a timely manner, that in this case, the employee was not given sufficient time to obtain Union representation before he was discharged. In their decision, NLRB also weighed the fact that that the signs and symptoms observed were marijuana-related, which lessened the importance of immediate testing as the outcome of the marijuana test likely would not have changed within a short window of time.

The NLRB required Diaz to be reinstated with back pay, without prejudice and required the employer to cease and desist from:

(a) Requiring employees to submit to a drug test as part of an investigation into their behavior or conduct

notwithstanding their request to have a union representative at the investigatory interview.

(b) Discharging employees because of their refusal to submit to such a drug test without having a union representative at the investigatory interview.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them.

Take-aways:

• Employers with unionized workers should review their drug free workplace policy with their legal counsel and determine if any changes might need to me made to reflect the company’s position in regards to union employees and reasonable suspicion drug or alcohol testing.
• Ensure supervisors and employees he been educated on the company policy.
• Ensure supervisors have the contact information of the union representation on hand.
• Consider delaying termination decisions based solely on refusal to test without union representation