NLRA Violation for Refusal to Allow Union Representation Prior to Drug Test

by FordHarrison

Executive Summary: The National Labor Relations Board (NLRB or Board) recently held that an employer violated the National Labor Relations Act (NLRA) when it discharged an employee who refused to take a drug test without first consulting with his union representative. See Ralphs Grocery Company and United Food and Commercial Workers Union, Local 324, 361 N.L.R.B. No. 9 (July 31, 2014). In the 2-1 decision, the Board found that the employee's suspension and subsequent discharge were "inextricably linked to his assertion of Weingarten rights," and therefore, reinstatement and backpay were warranted.

Background: On May 18, 2011, the employee, Razi, arrived to work an early morning shift. Several co-workers informed Ralphs' store director that Razi appeared agitated, anxious, and nervous and that his speech was slurred. The store director found Razi stocking produce and noticed that he was fidgety, spoke rapidly, and had trouble focusing on the conversation. Based on the circumstances, the store director asked Razi to take a drug and alcohol test. Razi refused, at which point the store director informed him that a refusal to take the test would be grounds for immediate suspension because it would constitute insubordination and an automatic positive test result. Razi then asked to contact his union representative.

Although the store director informed Razi that he did not have the right to have a union representative present, she permitted him to contact one. However, Razi was unable to reach his representative. Razi still refused to take the test, so the store director suspended him pending further investigation. The next day, Ralphs fired Razi for insubordination and refusal to take the drug test. Razi filed a grievance with the union, which contested Razi's suspension and discharge under the parties' collective bargaining agreement (CBA). Six weeks later the union filed a charge with the NLRB alleging that Ralphs violated the NLRA by unlawfully interfering with Razi's Weingarten rights. Under Weingarten, employees have a right to union representation at an investigatory interview they reasonably believe may result in discipline. NLRB v. Weingarten, 420 U.S. 251 (1975).

Board Affirms ALJ's Determination that Employer Violated the NLRA

In the grievance under the CBA, the arbitrator found that Ralphs terminated Razi for just cause based on his refusal to take the drug test. He further found that the meetings where Ralphs requested the drug test did not constitute investigatory interviews and, as such, did not trigger Razi's Weingarten rights. The Administrative Law Judge (ALJ) disagreed and rejected the arbitrator's decision on the grounds of repugnancy to the Act, finding it "totally inconsistent with Board precedent." In adopting the ALJ's findings, the Board stated that Razi's suspension and termination were a direct result of his invocation of his Weingarten rights, and thus, Ralphs violated the NLRA.

In his dissent, Member Johnson agreed that Ralphs interfered with Razi's Weingarten rights but concluded that Ralphs suspended and terminated him because of its belief that he was intoxicated, not due to any hostility toward his representation request. He stated that under the circumstances, Ralphs should not have been required to postpone a time-sensitive test simply because, through no fault of its own, it was unable to comply with Razi's request. The majority agreed that employers have a legitimate interest in promptly addressing situations where employees may be under the influence of drugs or alcohol. Nevertheless, that interest does not allow employers to take actions against employees who invoke their rights under the NLRA.  

Employers' Bottom Line: As always, when conducting any type of investigation, an employer must respect an employee's right to a union representative in any situation where that employee could face discipline. In light of this recent decision, employers should be aware that the Board may find, at least in some situations, that this right extends to employees who are asked to take a for-cause drug test.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© FordHarrison | Attorney Advertising

Written by:


FordHarrison on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.