Failure to Take Drug Test Termination Upheld Despite No Witness

Union employees have Weingarten rights which allow them to have a union representative accompany them to meetings with management that could result in discipline. An employee’s Weingarten rights, however, do have limits. A recent case involved the time-critical element of drug and alcohol testing. In Fred Meyer Stores, Inc., a cashier was suspected of drinking alcohol on the job after two customers allegedly reported smelling alcohol on her breath. The employee was called in by management for a meeting and once the employee understood the nature of the meeting, he requested his Weingarten right to union representation. The employee called many union representatives, but could not reach one directly.

After about twenty minutes, management asked the employee to submit to a drug and alcohol test, which the employee refused to do without a union representative. The employee was suspended pending investigation, and his employment was ultimately terminated a few days later.

The Administrative Law Judge rejected the employee’s challenge to his termination on Weingarten grounds, recognizing that “alcohol testing is time sensitive.” The judge also found the company’s actions are reasonable in light of the employee’s failure to contact an available union representative through the union’s 24/7 emergency phone number. Critical to the analysis was that no representative was available. This case does not give employers the right to drug test a unionized employee without a Weingarten witness if a witness is readily available and wants to participate.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at