TOP TIP: Recent Developments on Weingarten Rights

In NLRB v. J. Weingarten, Inc., the U.S. Supreme Court upheld a National Labor Relations Board decision that an employee was entitled to union representation in an investigatory interview that could lead to discipline. Over the past four decades, other cases have expanded upon or interpreted the scope of these Weingarten rights, including two decisions this past month.

Request for Representation. Under Board law, “[n]o magic or special words are required” to trigger a Weingarten request. Rather, the employee’s statements “need only be sufficient to put the employer on notice of the employee’s desire for union representation.” Such statements include “I would like someone there that could explain to me what was happening” and “Should I have someone in here with me, someone from the union?” Arguably, these statements affirmatively express the wish for a union presence.

In Circus Circus Casinos, Inc., however, the Board takes a more expansive view of what constitutes a Weingarten request. In this case, the employee arrived for his interview, announcing that he had “called the Union three times [and] nobody showed up, I’m here without representation.” Although a dissenting Board member noted that the statement could constitute a waiver of the right to union representation, the Board majority found that this statement could be reasonably understood as a request to have the union present.

Given this opinion, when faced with an ambiguous statement about union representation, employers would be wise to clarify whether the employee actually wishes to invoke Weingarten rights.

Drug and Alcohol Testing. In the context of drug and alcohol testing, the Board has held that Weingarten rights attach when an employee is sent for testing because of an employer’s reasonable suspicion that the employee is under the influence. The test itself is deemed an investigatory interview. The rights are not without limitation, however.

In Fred Meyer Stores, Inc., an employee was suspected of drinking on the job and told that he would be sent for testing. He invoked his Weingarten rights, and tried calling a number of union representatives, but could not reach any of them. He did not call a 24-7 union emergency number. He refused to undergo testing without union representation and was terminated. Given that the Board has recognized that “alcohol testing is time sensitive,” the Board Administrative Law Judge held that the employer acted reasonably under the circumstances: the employee was given more than 18 minutes in which to obtain union representation and, although he made several unsuccessful attempts to reach the union, he failed to call the union emergency number.

This case does not address random drug testing, which may be bargained for between the employer and the union. It appears that the Board has not yet issued any decision on this issue. In our opinion, however, Weingarten rights do not apply in a random drug testing situation. Unlike reasonable suspicion testing, the test is not being conducted as part of a targeted investigation. If an employee tests positive for drug use as part of the random testing process, however, any further proceedings with the employee would be subject to Weingarten.