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NLRB Creates New Rights and Enhances Organizing Tools

on Tuesday, 13 October 2015 in Labor & Employment Law Update: Sarah M. Huyck, Editor

For several years we’ve cautioned employers on the changing legal standards being adopted and enforced by the current National Labor Relations Board. To name just a few of the significant new standards, employers are now confronting quickie elections, less flexibility to control access to email for organizing purposes, and much tighter restrictions on policies governing employment-at-will, confidential information, civility in the workplace, social media, and electronic recordings in the workplace.

It isn’t stopping. Between August and September 2015, the Board expanded employee rights to union representation during investigatory interviews (commonly known and “Weingarten rights” because of the case that defined them). The Board also made it much easier for unions to secure employees’ authorization for representation during organizing drives.

In Manhattan Beer Distributors, 204 LRRM 1322, 362 NLRB No 192 (August 27, 2015), the employee (a driver) reported to work “reeking” of marijuana. The employer promptly asked the employee to submit to a drug test. Before submitting, the employee was afforded the chance to speak with his union shop steward by phone. The employee asked the steward to attend the drug test. The steward refused since it was his day off.

The employee then refused to submit to the test without his steward’s presence. The employer cautioned the employee that his refusal would be interpreted as a positive test, and that he may be discharged as a result. The employee refused to relent, and was terminated the same day.

At trial, the employee argued that his Weingarten rights were violated since he was asked to submit to an investigatory interview (the drug test) without union representation, despite his request. Never before has the NLRB held that employees have the right to the physical presence of a union representative at an off-site drug testing facility.

The administrative law judge (ALJ) who heard the case upheld the discharge, concluding that the employee was in fact afforded access to his union rep by telephone when he was initially asked to submit to the test. The NLRB reversed the ALJ’s decision, finding that the employee had a right to demand that his steward be physically present at the testing facility. That’s a first.

Now, the law of NLRB-land says that when you want to test employees for reasonable suspicion of drug use, and the employee requests the presence of their union representative at the testing facility, employers must accommodate that request. Never mind that employers typically conduct absolutely no investigation at the testing facility, other than to rely on an outside agency to collect a specimen. Forget the fact that delays in testing can sometimes impact test results. Ignore the increased risk of specimen tampering when a third party has access to the employee at the testing site. Employees have the right – that’s it.

In a second and completely unrelated development, the Board in early September 2015 once again used its seemingly unregulated rule-making authority to create a new substitute for union authorization cards. Authorization cards are to organizing drives what your car keys are to driving. You can’t do the latter without the former.

Before, unions had to collect authorization cards the old fashioned way – with signatures on paper. Now, thanks to the NLRB’s newest rule, authorization for union representation can be secured, and submitted to the NLRB, via access to the internet and a few key board strokes. If you think that change might speed up the organizing process, you’re right. Suspicious minds would say that’s the point.

How does an employer challenge the validity of electronic authorizations? Exactly as was the case with old fashioned paper signatures. There is no right to challenge alleged authorization without tangible evidence of fraud. That means that unless an employee reports fraud, employers must depend on the integrity of organizers, and the quality of NLRB scrutiny, for verification.

And so goes the multi-year pattern …

Mark McQueen

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