Beer Distributor Fighting NLRB Drug Test Ruling in 2nd Cir.

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By Lawrence E. Dubé

June 14 — The National Labor Relations Board held last year that a New York employer illegally denied a worker's request to have a union representative present at a company-ordered drug test, but Manhattan Beer Distributors LLC is vigorously challenging the board's decision in the Second Circuit ( Manhattan Beer Distributors LLC v. NLRB, 2d Cir., No. 15-1485, briefing completed 6/13/16 ).

In a 2-1 decision (362 N.L.R.B No. 192, 204 LRRM 1322 (2015)), NLRB Members Kent Y. Hirozawa and Lauren McFerran held Manhattan Beer gave a driver who allegedly smelled of marijuana an illegal ultimatum when the employee couldn't locate a union steward—take a drug test without representation or face the termination of his employment. Then-Member Harry I. Johnson dissented from the ruling.

The company and the NLRB are divided on whether a drug test was an investigatory “interview” or whether it was more like examinations and tests where union representation has not been considered a statutory right.

In the U.S. Court of Appeals for the Second Circuit, the employer argued in a June 13 brief that the NLRB majority ignored a long-standing distinction between an interview presenting a “confrontation” that triggers the right to union representation and “investigatory tools” like examinations and tests that do not entitle a worker to union representation.

The NLRB argued that Joe Garcia Diaz's encounter with Manhattan Beer managers “clearly was confrontational, and constituted an investigatory interview.”

Driver Fired After Drug Test Refusal

According to the NLRB's findings, Diaz reported to work in June 2013 but found that he had not been assigned a delivery route. A Manhattan Beer manager later testified that Diaz “reeked” of marijuana.

When Diaz was told he would have to report to an off-site facility for drug testing, he called a steward for the Laundry, Distribution and Food Service Joint Board, which represented the distributor's employees. He could not find a steward available to accompany him to the drug test.

Although Manhattan Beer warned Diaz that a failure to submit to testing would be treated as a positive test result and could result in his termination, the driver refused to take a test without a union representative, and the company discharged him.

NLRB Found Weingarten Violations

The U.S. Supreme Court held in NLRB v. J. Weingarten Inc., 420 U.S. 251, 88 LRRM 2689 (1975), an employee has a statutory right upon request to have a union representative present during an investigatory interview if the employee reasonably believes the interview may result in disciplinary action.

Hirozawa and McFerran found the drug test demanded by Manhattan Beer was an investigatory procedure covered by Weingarten. The company could have dropped the drug test and proceeded to discipline Diaz based on the information it had, including the smell of marijuana, but it could not insist on the drug test and then discharge him when he refused to participate without the presence of a union representative, the board found.

The company's reason for firing Diaz was “inextricably linked to his assertion of Weingarten rights” and the discharge was illegal, Hirozawa and McFerran said.

Employer Argues No Confrontation, No Interview

In its principal brief to the Second Circuit and in a reply brief, Manhattan Beer argued the board majority “disregarded the cardinal legal principle of Weingarten, that the right to representation is available only in connection with an investigatory interview that could lead to discipline, but not to the sort of drug test offered to avert discipline for prohibited conduct.”

In U.S. Postal Service, 252 N.L.R.B. 61, 105 LRRM 1200 (1980), the company noted, the board held that an employee was not entitled to Weingarten representation at a fitness-for-duty examination that did not include “questions of an investigatory nature” or a “confrontation” between employee and employer.

The drug test Diaz refused would not have involved questioning, the employer argued. Calling it a “non-verbal, non-confrontational” procedure, the company argued it was “far different from the active ‘confrontation' between an employee and his employer central to Weingarten.”

Board Cites Driver's Jeopardy, Concern

The NLRB argued in its brief to the appeals court that under the circumstances confronting Diaz, he was entitled to union representation.

The driver was told the company wanted him to submit to drug testing because he smelled of marijuana, and he knew that a positive test result could result in discipline.

“In the circumstances,” the NLRB argued, “Diaz reasonably believed that discipline could result from further questioning or examination and, accordingly, had a right to request representation.”

The board acknowledged the Postal Service ruling, but said the case was distinguishable. The fitness examinations “were not connected to any specific ongoing investigations and were not calculated to discipline employees for past misconduct,” the NLRB said.

On the other hand, the board said, Manhattan Beer planned to use the drug test to determine whether Diaz was under the influence of marijuana. “As such,” the board contended, “Diaz reasonably believed that the interview could result in his discipline and the Board's finding that it was an investigatory interview is well founded.”

Allen B. Roberts of Epstein Becker & Green P.C. in New York filed the briefs for Manhattan Beer Distributors LLC. NLRB attorney Michael Ellement in Washington filed the board's brief.

The Second Circuit has not yet scheduled an oral argument in the case.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

For More Information

Text of the company's principal brief is available at http://src.bna.com/fTR, the NLRB's brief at http://src.bna.com/fTS and the employer's reply brief at http://src.bna.com/fTT.