NLRB Reinstates Fired Employee Because Employee Denied Union Rep before Drug Test

A manager noticed that a delivery driver “reeked of the smell of marijuana.” The manager informed the employee that he would assign him a route for that day only if he agreed to take a drug test. The employee called the union shop steward, but it was the steward’s day off, so he could not accompany the employee to the drug test. The manager told the employee that if he failed to take the test, he would be treated as if he had tested positive, which could result in termination. The employee never took the test, and the Company terminated him later that day.

A well-known U.S. Supreme Court decision NLRB v. Weingarten provides that an employee has a statutory right to request the presence of a union representative during an investigatory interview if the employee reasonably believes the interview may result in disciplinary action. Here, the Board found that the employee had been presented with an ultimatum of taking the drug test immediately without representation or being treated as if he had tested positive and thus face termination.

The Board explained that Weingarten also addressed the physical presence of a union representative to assist an employee. Because the Company was concerned that the employee was under the influence of marijuana based on the employee’s appearance and odor, the Board reasoned that the physical presence of the union representative was necessary so that the representative could independently observe the employee’s condition and potentially contest the grounds for the company’s suspicions.

The Board ultimately concluded that the employee’s discharge was inexplicably linked to his assertion of Weingarten’s rights because he refused to take the test without having his union representative present. The Board ordered reinstatement with back pay. If you’re confused about this outcome, I was too, until I remembered some of the more egregious head-scratching decisions rendered by the current NLRB.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at