NLRB GC May Stop Obama Board’s Expansion of Weingarten Rights

Many employers (and this management-side labor lawyer in particular) were surprised by the Obama Board’s inability to overturn IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to non-union employees. The Obama Board, nevertheless, expanded the scope of Weingarten rights in a few areas.

  1. Manhattan Beer: The Obama Board ruled that a beer distributor violated the NLRA by terminating a unionized employee for refusing to take a drug test without first providing him with a reasonable opportunity to consult in person with an authorized union representative, despite the fact that the employee was able to consult with a union representative via telephone.
  2. Howard Industries: This case broadened the range of permissible conduct by union representatives in Weingarten interviews to include allowing union representatives to assist witnesses by providing scripted answers.
  3. Fry’s Food Stores: The Obama Board ruled that Weingarten required an employee to have right to consult with a union representative not only during the investigatory interview, but also before the interview, even without the employee requesting such a meeting.

The Trump NLRB General Counsel issued GC Memo 18-2 which previews that his office will seek to rein in the Obama Board’s overreach by requiring Regions to submit to the Division of Advice any matters involving the range of permissible conduct by union representatives in Weingarten interviews and matters involving the application of Weingarten in the drug-testing context.

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 Matt@MattAustinLaborLaw.com.

Company Threats of Closure or Drug Testing Hands Union Organizing Victory without Election

Employees testified that immediately after the UE local filed an election petition with the NLRB supervisors at MTIL, Inc., the Company made comments to employees that the employer, which sanitizes plastic packing crates for another company, might close or relocate its plant if the union was elected. The NLRB also received testimony that supervisors told workers that MTIL might begin a drug testing program if the union was elected to represent the employee.

Threats of closure during a union organizing are unlawful. Actually closing is lawful, but threatening to do so is not. The threat to drug test is a little more grey to me. Drug testing may in fact be part of a yet-to-be-negotiated collective bargaining agreement. So the Company didn’t lie. But if the employee interpreted the comment as a threat (assuming that some employees would fail a drug test), then was unlawful.

This case is a perfect reminder of the thin line employers must walk when battling a union organizing campaign.

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 Matt@MattAustinLaborLaw.com.

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 maustin@ralaw.com.